(SS) Dubord v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDOLPH ANTHONY DUBORD IV, No. 2:20-cv-634-KJM-KJN 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON PARTIES’ CROSS-MOTIONS FOR 13 v. SUMMARY JUDGMENT 14 COMMISSIONER OF SOCIAL (ECF Nos. 22, 27) SECURITY, 15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Disability Insurance Benefits under Title II the Social Security Act.1 19 In his motion for summary judgment, plaintiff contends the Administrative Law Judge (“ALJ”) 20 erred in: (A) failing to consider his disability rating from the Department of Veterans Affairs 21 (“VA”); (B) analyzing the opinions of medical, non-medical and state-agency sources; (C) failing 22 to articulate clear and convincing reasons for rejecting plaintiff’s subjective-symptom testimony; 23 and (D) failing to consider a lay-witness statement. The Commissioner contends in its cross- 24 motion that the ALJ’s decision is supported by substantial evidence and free from legal error. 25 For the reasons set forth below, the court recommends plaintiff’s motion be DENIED, the 26 Commissioner’s cross-motion be GRANTED, and the final decision of the Commissioner be 27 1 This action was referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 28 302(c)(15) for the entry of findings and recommendations. See Local Rule 304. 1 AFFIRMED. 2 I. RELEVANT LAW 3 The Social Secur i t y Act provides benefits for qualifying individuals with disabilities. 4 Disability is defined, in part, as an inability to “engage in any substantial gainful activity” due to 5 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) (Title II). 6 An ALJ is to follow a five-step sequence when evaluating an applicant’s eligibility for benefits.2 7 20 C.F.R. § 404.1520(a)(4). 8 A district court may reverse the agency’s decision only if the ALJ’s decision “contains 9 legal error or is not supported by substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 10 Cir. 2020). Substantial evidence is more than a mere scintilla, but less than a preponderance, i.e., 11 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 12 Id. The court reviews the record as a whole, including evidence that both supports and detracts 13 from the ALJ’s conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the 14 court may review only the reasons provided by the ALJ in the decision, and may not affirm on a 15 ground upon which the ALJ did not rely. Id. “[T]he ALJ must provide sufficient reasoning that 16 allows [the court] to perform [a] review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 17 The ALJ “is responsible for determining credibility, resolving conflicts in medical 18 testimony, and resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is susceptible to 19 more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id. Further, the 20 2 The sequential evaluation is summarized as follows: 21 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 22 Step two: Does the claimant have a “severe” impairment? If so, proceed to step 23 three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet 24 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 25 Step four: Is the claimant capable of performing past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 26 Step five: Does the claimant have the residual functional capacity to perform any 27 other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The burden of proof rests with the 28 claimant through step four, and with the Commissioner at step five. Ford, 950 F.3d at 1148. 1 court may not reverse the ALJ’s decision on account of harmless error. Id. 2 II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS 3 In December of 2 0 18, plaintiff applied for Disability Insurance Benefits, alleging 4 disability due to “post-traumatic stress disorder, back problems, degenerative lumbosacral 5 condition, tinnitus, radiculopathy left and right lower, thoracolumbar spine degenerative disc 6 disease, and ‘bilat’ knee.” (See Administrative Transcript (“AT”) 71 and 176, electronically filed 7 at ECF No. 14.) Plaintiff’s applica tion was twice denied, and he sought review with an ALJ after 8 retaining counsel. (See AT 84, 100, 107, 116.) The ALJ held a hearing on October 30, 2019, 9 where plaintiff testified about his symptoms and a Vocational Expert (“VE”) testified regarding 10 jobs for someone with plaintiff’s limitations. (See AT 34-69.) 11 On December 3, 2019, the ALJ issued a decision determining plaintiff was not disabled 12 from his onset date forward. (AT 15-27.) At step one, the ALJ found plaintiff had not engaged in 13 substantial gainful activity since her alleged onset date of July 24, 2017. (AT 17.) At step two, 14 the ALJ noted plaintiff had the following severe impairments: post-traumatic stress disorder, 15 lumbar degenerative disc disease, status post right knee strain, and obesity. (Id.) At step three, 16 the ALJ determined plaintiff was not disabled under the listings. (AT 18, citing 20 C.F.R. Part 17 404, Subpart P, Appendix 1). 18 The ALJ then determined plaintiff had the Residual Functional Capacity (“RFC”) to 19 perform light work as defined in 20 C.F.R. § 404.1567(b), except that “he is limited to 20 understanding, remembering and carrying out simple, routine and repetitive tasks; use of 21 judgment is limited to simple work-related decisions; and he is capable of occasional interaction 22 with supervisors, coworkers and the public.” (AT 20.) In fashioning this RFC, the ALJ stated he 23 considered plaintiff’s symptoms, the medical and other evidence, and the medical opinions and 24 prior administrative medical findings in the record. (Id.) Relevant here, the ALJ found the 25 opinion of Dr. Shanmugham, a VA psychiatrist, “not persuasive” because it was (i) “unsupported 26 by the objective findings from this psychiatrist, but rather [was] just diagnosis and prescription 27 information,” and (ii) “not consistent with evidence of record [showing] that other than objective 28 reports of depressed or dysphoric mood, as well as flat affect or similar findings, and one finding 1 of disheveled appearance, the claimant has routinely had normal objective mental findings.” (AT 2 25.) Further relevant, the ALJ summarized the records of plaintiff’s mental status examinations, 3 as generated by his socia l worker Mr. Fuller (AT 22), but did not otherwise address the social 4 worker’s opinions on plaintiff’s mental limitations. (See AT 643-44, 654.) Instead, the ALJ 5 relied heavily on the prior administrative medical findings. (AT 24-25.) Additionally, the ALJ 6 rejected the more limiting aspects of plaintiff’s subjective symptom testimony, noting they were 7 “neither entirely consistent nor enti rely supported by the evidence,” and also were inconsistent 8 with his daily activities, conservative treatment, and prior statements. (AT 23-24.) Finally, the 9 ALJ summarized reports from plaintiff’s sister (AT 19), but did not specifically address her third 10 party functional report she submitted prior to the initial disability determination. (See ECF No. 11 199-206.) Based on the RFC and the VE’s testimony, the ALJ concluded that while plaintiff was 12 incapable of performing past relevant work, there were jobs existing in significant numbers in the 13 national economy that plaintiff could perform. (AT 26.) These jobs included office helper, ticket 14 taker, and investigator-dealer accounts, with approximately 150,000 jobs in the nation. (Id.) 15 Thus, the ALJ determined plaintiff was not disabled for the relevant period. (AT 27.) 16 The Appeals Council denied plaintiff’s appeal. (AT 1-5.) Thereafter, plaintiff filed this 17 action requesting review of the ALJ’s decision, and the parties moved for summary judgment. 18 (ECF Nos. 1, 22, 27.) 19 III. DISCUSSION 20 Plaintiff contends the ALJ erred in failing to: (A) consider the 90-100% disability rating 21 from the VA; (B) finding the “outdated” opinions of the state-agency physicians and psychiatrists 22 more probative than those of Dr. Shanmugham, plaintiff’s psychiatrist, and Mr. Fuller, plaintiff’s 23 therapist; (C) articulate clear and convincing reasons for rejecting plaintiff’s subjective-symptom 24 testimony; and (D) failing to consider the statement of plaintiff’s sister. Thus, plaintiff requests 25 this court remand either for a payment of benefits or for further proceedings. (ECF No. 22.) 26 The Commissioner requests affirmance, arguing the current regulations and substantial 27 evidence supports the ALJ’s findings regarding the VA’s rating, the evaluation of the medical and 28 nonmedical opinion evidence and prior administrative medical findings, and the subjective- 1 symptom and lay testimony. (ECF No. 27.) 2 3 A. VA Disability R a ting. 4 Plaintiff’s first contention is that the ALJ committed error by failing “to give any reasons 5 for rejecting Plaintiff’s VA Disability Rating,” wherein he was rated 90% disabled based on his 6 PTSD and degenerative lumbosacral disease and, later, 100% disabled because of his PTSD. 7 Under prior regulations and case law, an ALJ not only was required to consider the VA’s 8 determination in reaching a disability determination, but also was to give it “great weight,” or 9 “less weight . . . if he gives persuasive, specific, valid reasons for doing so that are supported by 10 the record.” See McCartey v. Massanari, 298 1072, 1076 (9th Cir. 2002) (citing a prior version of 11 the regulation that only noted determinations by other agencies were not binding on the 12 Commissioner). However, under new regulations, which apply to claims filed on or after March 13 27, 2017, the ALJ is not required to articulate “any analysis in our determination or decision 14 about a decision made by any other governmental agency or a nongovernmental entity about 15 whether you are disabled, blind, employable, or entitled to any benefits.” 20 C.F.R. § 404.1504. 16 Thus, the new regulation appears to remove any requirement for an ALJ to discuss another 17 agency’s rating. Because plaintiff filed his claim with the Commission in December of 2018 (see 18 AT 71), the new regulations apply. Thus, it was not error for the ALJ to wholly ignore plaintiff’s 19 VA’s rating. See, e.g., Diaz v. Commr, 2020 WL 2732027, at *3 (E.D. Cal. May 26, 2020) 20 (finding no error under the new regulations in the ALJ’s ignoring of another agency’s disability 21 rating); Edward L. C. v. Comm’r, 2019 WL 6789813 at *2 (W.D. Wash. Dec. 12, 2019) (same); 22 Kathleen S. v. Comm’r, 2019 WL 4855631 at *7-8 (W.D. Wash. Oct. 2, 2019) (same). 23 Instead, the new regulations require the ALJ to consider “all of the supporting evidence 24 underlying the other governmental agency or nongovernmental entity’s decision.” 20 C.F.R. 25 § 404.1504. This aligns with the requirement from McCartey—as both case law and the 26 regulations direct the analysis away from an agency’s rating and toward the underlying evidence. 27 This is exactly what the ALJ did here. (See AT 22-23, summarizing plaintiff’s VA medical 28 1 records.) Plaintiff does not challenge the ALJ’s assessment of this evidence, nor the validity of 2 the revised Section 404.1504. (See ECF No. 22 at 14-15.) 3 B. Medical, Opinio n , and Other Evidence. 4 Legal Standards 5 On January 18, 2017, the Social Security Administration published comprehensive 6 revisions to its regulations regarding the evaluation of medical evidence. See Revisions to Rules 7 Regarding the Evaluation of Medic al Evidence, 82 Fed. Reg. 5844-01 (January 18, 2017) 8 (available at 2017 WL 168819). For applications filed on or after March 27, 2017,3 the new 9 regulations state an ALJ need “not defer or give any specific evidentiary weight, including 10 controlling weight, to any medical opinion(s) or prior administrative medical finding(s) 11 (“PAMF”) [i.e., state-agency medical consultants], including those from [plaintiff’s] medical 12 sources.” See 20 C.F.R. § 404.1520c(a). Instead, an ALJ is to evaluate opinions and PAMFs by 13 considering their “persuasiveness.” § 404.1520c(a). In determining how “persuasive” the 14 opinion of a medical source or PAMF is, an ALJ must consider the following factors: 15 supportability, consistency, treatment relationship, specialization, and “other factors.” 16 3 For applications filed prior to March 27, 2017, an ALJ was to give more weight to “those 17 physicians with the most significant clinical relationship with the plaintiff . . . .” Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). This “treating physician rule” allowed an ALJ to 18 reject a treating or examining physician’s uncontradicted medical opinion only for “clear and 19 convincing reasons,” and allowed a contradicted opinion to be rejected for “specific and legitimate reasons that are supported by substantial evidence in the record.” Id. However, the 20 agency has moved away from this hierarchy. See 82 Fed. Reg. 5844. In doing so, it is not yet clear how much the new regulations affect other Ninth Circuit 21 principles governing Social Security review, as appeals of decisions governed by the new regulations are only just beginning to reach the district courts. In the absence of binding 22 interpretation by the Ninth Circuit, the court joins other district courts in concluding that 23 longstanding general principles of judicial review—especially those rooted in the text of the Social Security Act—still apply to cases filed on or after March 27, 2017. Cf, e.g., Jones v. Saul, 24 2021 WL 620475, *10 (E.D. Cal. Feb. 17, 2021) (finding the ALJ permissively found a doctor’s opinion unpersuasive by accurately noting the inconsistency between it and treatment notes, 25 relying in part on Valentine v. Comm’r, 574 F.3d 685 (9th Cir. 2009) (a contradiction between an opinion and treatment notes constitutes a “specific and legitimate” reason for rejecting the 26 opinion)); with Mark M. M. v. Saul, 2020 WL 2079288, *5 (D. Mont. Apr. 29, 2020) (finding the 27 ALJ failed to “link purportedly inconsistent evidence with the discounted medical opinion,” relying on Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989) (ALJ must provide a detailed and 28 thorough summary of conflicting evidence, and an interpretation and findings thereon)). 1 § 404.1520c(b), (c)(1)-(5). Despite a requirement to “consider” all factors, the ALJ’s duty to 2 articulate a rationale for each factor varies. § 404.1520c(a)-(b). 3 In all cases, the A L J must at least “explain how [she] considered” the supportability and 4 consistency factors, as they are “the most important factors.” § 404.1520c(b)(2). For 5 supportability, the regulations state: “[t]he more relevant the objective medical evidence and 6 supporting explanations presented by a medical source are to support his or her medical 7 opinion(s) or prior administrative m edical finding(s), the more persuasive [the opinion or PAMF] 8 will be.” § 404.1520c(c)(1). For consistency, the regulations state: “[t]he more consistent a 9 medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 10 medical sources and nonmedical sources in the claim, the more persuasive [the opinion or PAMF] 11 will be.” § 404.1520c(c)(2). The ALJ is required to articulate findings on the remaining factors 12 (relationship with claimant, specialization, and “other”) only when “two or more medical 13 opinions or prior administrative medical findings about the same issue” are “not exactly the 14 same,” and both are “equally well-supported [and] consistent with the record.” 15 § 404.1520c(b)(2)&(3). Finally, the regulations allow an ALJ to address multiple opinions from a 16 single medical source in one analysis. § 416.920c(b)(1) (“source-level articulation”). 17 Analysis 18 Plaintiff takes issue with multiple aspects of the ALJ’s resolution of the opinion evidence, 19 contending the RFC is fundamentally flawed. Plaintiff argues the ALJ: (1) failed to address two 20 letters from plaintiff’s therapist David Fuller, a licensed clinical social worker; (2) failed to obtain 21 all records from plaintiff’s treating psychiatrist Dr. Shanmugham; (3) misconstrued the PAMFs 22 regarding plaintiff’s mental limitations; and (4) failed to fully account for plaintiff’s inability to 23 stand and walk more than 6 hours per day, as expressed by the reviewing physicians in the 24 PAMFs. (ECF No. 22 at 15-22.) 25 The Commissioner argues the ALJ’s findings are properly explained, contain no legal 26 error, and are supported by substantial evidence, as below. (ECF No. 27 at 22-29.) 27 //// 28 //// 1 1. Social Worker Fuller’s Opinions 2 Plaintiff first argues the ALJ failed to address two letters from plaintiff’s therapist David 3 Fuller, a licensed clinica l social worker (“LCSW”), who opined plaintiff (i) was not likely to hold 4 gainful employment because of his PTSD, and (ii) requires an emotional support dog “to enable 5 him to function in society.” (See AT 643-44, 654.) Plaintiff contends the ALJ’s failure to 6 mention either of these letters constitutes error under both the prior and new regulations. Plaintiff 7 notes that for cases filed prior to M arch 27, 2017, an ALJ was required to give “germane” reasons 8 for discounting the opinion of individuals like social workers. See Dale v. Colvin, 823 F.3d 941, 9 943 (9th Cir. 2016) (holding that [under the prior regulations], an ALJ “may discount testimony 10 from these ‘other sources’ if the ALJ gives reasons germane to each witness for going so”). 11 However, plaintiff argues the new regulations have wiped away the distinctions between other 12 medical sources and physicians/psychologists, and so for claims filed after March 27, the ALJ 13 was required to provide specific and legitimate reasons for rejecting opinions like those of a 14 licensed social worker. (ECF No. 22 at 16-17, citing Lester, 81 F.3d at 830and 20 C.F.R. 15 § 404.1513 (categories of evidence).) The text of the new regulations indicates otherwise. 16 Under the new regulations, an ALJ’s burden to articulate findings on the persuasiveness of 17 depends on a host of factors—but only for medical opinions or prior administrative medical 18 findings. 20 C.F.R. 404.1520c(c). Conversely, the ALJ is not required to articulate how he/she 19 considered “evidence from nonmedical sources.” 20 C.F.R. 404.1520c(d). Nonmedical sources 20 include “[p]ublic and private social welfare agency personnel.” 20 C.F.R. § 404.1502(e)(3); see 21 also, e.g., Burdine v. Saul, 2020 WL 4339493, at *8 (E.D. Cal. July 28, 2020) (noting that 22 plaintiff’s licensed clinical social worker was not considered an acceptable medical source). 23 Based on these regulations, persuasive case law, and uncited other sources (see, e.g., Revisions to 24 Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, available at 2017 WL 25 168819, *5846-474), the undersigned found the new regulations “allowed the ALJ to resolve 26 4 “Comment: We received many other public comments on the criteria we should use to add 27 AMSs and whether we should add other medical sources, such as licensed clinical social workers (LCSW), to the AMS list. Most of these commenters supported recognizing LCSWs as AMSs, 28 and they suggested we also add a wide variety of other medical sources and nonmedical sources, 1 plaintiff’s case without articulating findings on Mr. Fuller’s two letters.” (ECF No. 28.) 2 However, since the issuance of those findings and recommendations, the parties have 3 alerted the court (ECF N o s. 29, 30) that the state of California does in fact treat licensed clinical 4 social workers as health care professionals. See Cal. Bus. & Prof. Code § 4996(c). Thus, under 5 Section 404.1520, the ALJ should have treated LCSW Fuller as a medical source, and articulated 6 a rationale on any medical opinion he stated. See 20 C.F.R. § 404.1502(d) (“Medical source 7 means an individual who is licensed as a healthcare worker by a State and working within the 8 scope of practice permitted under State or Federal law”). 9 With this in mind, the court now turns to the substance of LCSW Fuller’s opinions 10 expressed in his December 2017 letters. In the first, Fuller expresses that plaintiff “is not likely to 11 hold gainful employment as a result of his presumed service-connected disabilities.” (AT 643.) 12 Fuller states plaintiff “requires (moderate) level of care due to intrusions, avoidance, negative 13 alterations in cognitions and mood, and hyper vigilance, related to his PTSD/MST.” (Id.) Fuller 14 states his opinion that the prognosis is “permanent with no cure,” and can be “managed by 15 psychotherapy and medication management to reduce symptoms, but symptoms can fluctuate 16 over time and situations.” (AT 643-44.) The core of Fuller’s second letter is that plaintiff 17 “need[s] an Emotional Support Dog,” as under the Fair Housing Amendments Act and the Air 18 Carrier Access Act. (AT 645.) 19 To the extent the ALJ should have articulated a rationale on Fuller’s two letters, the 20 undersigned finds this omission harmless error at best. Ford, 950 F.3d at 1154 (noting the court 21 may not reverse the ALJ’s decision on account of harmless error). Under the regulations, Fuller’s 22 blanket statement that plaintiff “is not likely to hold gainful employment” is an issue explicitly 23 24 including licensed marriage and family therapists (LMFT), registered nurses (RN), licensed professional counselors (LPC), physical therapists (PT), chiropractors, and even healthcare 25 professionals without medical licensure. Response: We value these comments, and we will continue to monitor licensure requirements for 26 the medical sources the commenters suggested that we add. At this time, however, we have 27 decided to add only APRNs, audiologists, and PAs as AMSs. Upon investigation of licensing requirements for other medical sources, we did not find a similar level of consistency or rigor in 28 terms of education, training, certification, and scope of practice.” 1 reserved for the Commissioner, and so is categorized as “evidence that is inherently neither 2 valuable nor persuasive.” 20 C.F.R. § 404.1520b(c)(3)(i). Further, the Commissioner “does not 3 take the possibility of ‘re a sonable accommodation’ into account” when considering a disability 4 application. Cleveland v. Pol'y Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999); see also, e.g., 5 Morsea v. Berryhill, 725 F. App'x 463, 466 (9th Cir. 2018) (finding no error in the ALJ’s 6 disregard of plaintiff’s need for an oxygen-tank accommodation in determining plaintiff’s 7 disability, in reliance on Cleveland) . Finally, to the extent Fuller’s letters expressed limitations 8 based on his observations at plaintiff’s mental status examinations and group therapy sessions, the 9 court finds no harmful error was committed by the ALJ in failing to cite the letters. The ALJ not 10 only summarized the evidence from plaintiff’s interactions with LCSW Fuller on which his 11 opinions would have been based, but also took note of various issues noted therein when 12 resolving plaintiff’s RFC. (See AT 22.) To the extent the ALJ is required to “consider” all 13 evidence, including statements from nonmedical sources, the court is satisfied that the ALJ did 14 not cherry-pick the record to construct a result. See Holohan v. Massanari, 246 F.3d 1195, 1205 15 (9th Cir. 2001) (an ALJ’s “selective . . . reliance” on the record does not meet the substantial- 16 evidence standard). 17 2. Psychiatrist Dr. Shanmugham’s Opinions 18 Plaintiff also argues the ALJ failed to articulate legally-sufficient reasons regarding the 19 October 2019 medical opinion of Dr. Shanmugham, plaintiff’s “treating” psychiatrist. Dr. 20 Shanmugham opined, among other things, that plaintiff: (i) “gets easily frustrated due to his 21 limitations”; (ii) could perform “simple tasks for less than 10 percent of the day”; (iii) had 22 irritability that limited his ability to deal with the public to “about 10-30% [of the] day”; (iv) 23 could receive and carry out instructions from supervisors for 20-40% of the time; and (v) had 24 “poor ability” to relate and interact with co-workers. (AT 642.) The ALJ found this opinion “not 25 persuasive,” reasoning: 26 [T]here is no supporting statement provided for such extreme limitations and the record does not demonstrate any objective 27 findings from this psychiatrist, but rather just diagnosis and prescription information. Further, it is not consistent with evidence 28 of record that shows that, other than objective reports of depressed 1 or dysphoric mood, as well as flat affect or similar findings, and one finding of disheveled appearance, the claimant has routinely 2 had normal objective mental findings. 3 (AT 25, citations omitted ) .) Plaintiff contends the VA only provided Dr. Shanmugham’s health 4 summaries, but not his treatment notes, and so the ALJ’s discounting of the psychiatrist’s opinion 5 for lack of support runs afoul of the ALJ’s duty to “conduct an appropriate inquiry” into the basis 6 of the opinion. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1988); see also Smolen v. Chater, 7 80 F.3d 1273, 1288 (9th Cir. 1996) (noting an ALJ cannot just assume a medical opinion was 8 based on unwarranted assumptions, and had a duty to supplement the record in such an instance). 9 Further, plaintiff argues the ALJ erred in his consistency analysis, as the records cited to by the 10 ALJ were “more cursory” than other records. 11 On the supportability issue, the court concurs with plaintiff. The Ninth Circuit has held 12 that an ALJ has a duty to develop the record, even where the claimant is represented by counsel. 13 Smolen, 80 F.3d at 1288. “The ALJ may discharge this duty in several ways, including: 14 subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians, 15 continuing the hearing, or keeping the record open after the hearing to allow supplementation of 16 the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing Tidwell, 161 F.3d 17 at 602 and Smolen, 80 F.3d at 1288). Here, the ALJ took none of the steps outlined by the Ninth 18 Circuit, leading the court to conclude the ALJ erred. 19 The Commissioner contends the ALJ satisfied his duties by asking counsel at the hearing 20 whether plaintiff had any objections to the record, and counsel expressed none. Given the fact 21 that plaintiff bears the burden to prove his case in the first four steps, Ford, 950 F.3d at 1148, the 22 Commissioner argues counsel’s acquiescence, combined with the fact that the ALJ himself voiced 23 no concerns about ambiguities or holes in the record, should result in a finding of no error. See 24 Tonapetyan, 242 F.3d at 1150 (“Ambiguous evidence, or the ALJ's own finding that the record is 25 inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to “conduct an 26 appropriate inquiry.”) (emphasis added). However, the court notes that in an unpublished case 27 released around the time of Tonapetyan, the Ninth Circuit found the ALJ’s failure to supplement 28 1 was “compounded by the fact that the ALJ did not simply adjudicate [plaintiff’s] application on a 2 deficient record, but used the absence of particular records (i.e., physician's notes and test results) 3 to support the rejection o f [the] treating physician's opinion.” See, e.g., Miksch v. Massanari, 18 4 Fed. Appx. 632, 635 (9th Cir. 2001) (citing Tonapetyan, 242 F.3d at 1150). This is the same 5 situation as here, where the ALJ relied on the absence of records to cut against Dr. 6 Shanmugham’s opinion. (See AT 25 (“[T]he record does not demonstrate any objective findings 7 from this psychiatrist, but rather jus t diagnosis and prescription information.”).) The undersigned 8 finds the reasoning of Miksch highly persuasive, and finds error in the ALJ’s analysis here. 9 However, as the Commissioner notes, the ALJ also found Dr. Shanmugham’s opinion 10 unpersuasive because it was inconsistent with evidence elsewhere in the record. 20 C.F.R. 11 § 404.1520c(c)(2) (“The more consistent a medical opinion(s) or prior administrative medical 12 finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, 13 the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.”). 14 The ALJ noted reports of depressed or dysphoric mood, and one instance of a disheveled 15 appearance, but detailed how “plaintiff’s mental status examinations were routinely normal.” 16 (AT 25, citing AR 282, 290-91, 293, 303, 306, 312, 365-66, 370-71, 535, 538-39.) Further, the 17 ALJ noted similar inconsistencies in his summary of the medical evidence and resolution of 18 plaintiff’s symptom statements. (See AT 22-24.) These records and findings contrast Dr. 19 Shanmugham’s opinions on plaintiff’s abilities to interact with others, perform tasks, carry out 20 instructions, and exist without getting frustrated. Thus, the ALJ’s finding that Dr. Shanmugham’s 21 opinion was inconsistent with the record satisfies the duty to articulate findings under the new 22 regulations. See, e.g., Jones v. Saul, 2021 WL 620475, *10 (E.D. Cal. Feb. 17, 2021) (finding the 23 ALJ legitimately found a physician’s opinion unpersuasive by accurately noting the inconsistency 24 between the opinion and the treatment notes, relying in part on Valentine v. Comm’r, 574 F.3d 25 685 (9th Cir. 2009) (a contradiction between an opinion and treatment notes constitutes a 26 “specific and legitimate” reason for rejecting the physician’s opinion)). Plaintiff’s argument 27 appears to be a request to reevaluate the consistency of this evidence, which the court cannot do. 28 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more 1 than one rational interpretation, it is the ALJ's conclusion that must be upheld.”). 2 3. Prior Administrative Medical Findings regarding Mental-Limitations 3 Additionally, pla i n tiff argues the ALJ erred in relying on the prior administrative medical 4 findings when considering the scope of plaintiff’s mental limitations. Plaintiff contends the 5 PAMFs held plaintiff to simple one- and two-step tasks, which are equated with Reasoning Level 6 1 in the Dictionary of Occupational Titles (“DOT”). See DOT at App. C, § III, 1991 WL 688702 7 (Reasoning Development Level 1: “Apply commonsense understanding to carry out simple one- 8 or two-step instructions.”; Reasoning Developmental Level 2: “Apply commonsense 9 understanding to carry out detailed but uninvolved written or oral instructions”). Thus, when the 10 ALJ found plaintiff could work as an office helper or ticket taker, this constituted legal error 11 because those positions require Reasoning Level 2. (See, ECF No. 22-1, DOT entry for “Office 12 Helper,” assigning “GED: R2”.) 13 First, the ALJ did not formulate an RFC with simple 1-2 step tasks, but instead limited 14 plaintiff to “understanding, remembering and carrying out simple, routine and repetitive tasks,” as 15 well as “use of judgment [] to simple work-related decisions.” (AT 20.) Courts have found this 16 limitation equates to Reasoning Level 2. See, e.g., Tudino v. Barnhart, 2008 WL 4161443, at 17 *10–11 (S.D. Cal. Sept. 5, 2008) (“Level-two reasoning appears to be the breaking point for those 18 individuals limited to performing only simple repetitive tasks.”) (citing Hackett v. Barnhart, 395 19 F.3d 1168, 1176 (10th Cir. 2005) (“[L]evel-two reasoning appears more consistent with Plaintiff's 20 [RFC]” to perform ‘simple and routine work.’”); Meissl v. Barnhart, 403 F.Supp.2d 981, 984-85 21 (C.D. Cal. 2005) (finding that plaintiff's ability to perform “simple tasks . . . that had some 22 element of repetitiveness to them” indicated a reasoning level of two); Flaherty v. Halter, 182 23 F.Supp.2d 824, 850 (D. Minn. 2001) (“[T]he DOT's level two reasoning requirement did not 24 conflict with the ALJ's prescribed limitation” to “simple, routine, repetitive, concrete, tangible 25 tasks”); see also Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (agreeing in dicta that 26 ‘simple, repetitive’ correlates more with a Level 2 Reasoning when holding “an apparent conflict 27 [existed] between the residual functional capacity to perform simple, repetitive tasks, and the 28 demands of Level 3 Reasoning.”). Thus, the court sees no error in the ALJ’s reliance on the VE’s 1 statement that plaintiff could perform the jobs of office helper, ticket taker, and investigator- 2 dealer accounts, with approximately 150,000 jobs in the nation in total. (AT 26.) 3 Plaintiff is correc t that the ALJ formulated this portion of the RFC by finding persuasive 4 the opinions expressed in the PAMFs, which did express limitations to “simple 1-2 step tasks.” 5 (See AT 24, citing AT 81, 96.) However, these same findings also expressed that plaintiff would 6 be “capable of simple tasks w/ limited public contact.” (AT 76, 91.) Further, the ALJ noted that 7 aside from plaintiff’s depressed or d ysphoric mood, he “would not be further limited because . . . 8 he has routinely had otherwise normal findings with regard to his mental functioning . . . .” (AT 9 24.) The ALJ then cited to portions of the record in making this finding, which is sufficient to 10 demonstrate that the RFC formulation is based on substantial evidence. Vertigan v. Halter, 260 11 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ, not [a] 12 physician, to determine residual functional capacity.”) (citing 20 C.F.R. § 404.1545). 13 4. Prior Administrative Medical Findings regarding Physical-Limitations 14 Finally, plaintiff notes that the ALJ relied upon the prior administrative medical findings 15 to determine that he could perform light work with no physical restrictions. (AT 20.) Plaintiff 16 argues the ALJ erred in crafting this RFC because the PAMFs limited him to 6 hours per day of 17 standing and walking, and the RFC expressed no such limitation. 18 Light work under the regulations is defined as “a job [that] requires a good deal of 19 walking or standing, or when it involves sitting most of the time with some pushing and pulling 20 of arm or leg controls.” 20 C.F.R. § 404.1567(b). As the Commissioner notes, Social Security 21 Rule 83-10 has equated light work with “standing or walking, off and on, for a total of 22 approximately 6 hours of an 8-hour workday.” See SSR 83-10, available at 1983 WL 31251, at 23 *6. At the hearing, the ALJ put to the VE a hypothetical that limited plaintiff to a light range of 24 work. (AT 62.) Courts have consistently held that no error exists where these kinds of shorthand 25 are used and easily understood. See Grether A. D. v. Saul, 2021 WL 1664174, at *7 (C.D. Cal. 26 Apr. 28, 2021) (noting the ALJ asked the VE about an individual limited to medium work, and 27 that SSR 83-10 defined the standing/walking limitations of medium work, when holding “[o]n 28 this record, the ALJ's hypothetical questioning of the vocational expert was not materially 1 incomplete”) (collecting cases in accord). 2 C. Subjective Symptom Testimony. 3 Legal Standards 4 In evaluating a claimant’s symptoms report, the following two-step analysis is applied: 5 F irst, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be 6 expected to produce the pain or other symptoms alleged. In this analysis, the 7 claimant is not required to s how that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only 8 show that it could reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, 9 or the severity thereof. If the claimant satisfies the first step of this analysis, and there is no evidence of 10 malingering, the ALJ can reject the claimant's testimony about the severity of her 11 symptoms only by offering specific, clear and convincing reasons for doing so. 12 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017). 13 The ALJ’s reasons for discounting a claimant’s subjective symptom testimony must be 14 “sufficiently specific to allow a reviewing court to conclude the adjudicator . . . did not arbitrarily 15 discredit a claimant’s testimony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th Cir. 2015). 16 This requires the ALJ to “specifically identify the testimony [from a claimant] she or he finds not 17 to be credible and . . . explain what evidence undermines that testimony.” Treichler v. Comm’r, 18 775 F.3d 1090, 1102 (9th Cir. 2014). Examples of “specific, clear and convincing reasons” for 19 discounting or rejecting a claimant’s subjective symptom testimony include: inconsistencies 20 between a claimant’s testimony and his or her daily activities, the effectiveness of or 21 noncompliance with a prescribed regime of medical treatment, and whether the alleged symptoms 22 are consistent with the medical evidence of record. See Tommasetti v. Astrue, 533 F.3d 1035, 23 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); see also 20 24 C.F.R § 404.1529(c) (listing “factors relevant to [a claimant’s] symptoms). A lack of 25 corroborating, objective medical evidence alone is insufficient grounds to discount a claimant’s 26 subjective symptoms; however, it is a factor the ALJ may consider. 20 C.F.R § 404.1529(c)(2); 27 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Broadly speaking, a claimant’s 28 statements of subjective symptoms alone is insufficient grounds to establish disability. 20 C.F.R 1 § 404.1529(a); Treichler, 775 F.3d at 1106. 2 Analysis 3 Plaintiff contends the ALJ’s resolution of his subjective-symptom testimony fails the 4 “clear and convincing” standard set forth by the Ninth Circuit. Plaintiff argues the ALJ’s finding 5 regarding inconsistent statements is based on a partial representation of plaintiff’s actual 6 testimony, and “the only other reason given by the ALJ rejecting Plaintiff’s testimony was based 7 the fact that he had not required psy chiatric hospitalization or surgeries and did not take pain 8 medications on a regular basis.” (ECF No. 22 at 19-20.) 9 The ALJ summarized plaintiff’s symptom testimony, which included (relevantly) 10 plaintiff’s reports of solitary living, daily activities, medicinal side effects, “panic attacks, 11 flashbacks, night terrors, anger issues,” difficulty processing issues, ceasing to attend therapy 12 sessions, difficulties at his prior jobs, and difficulty with sleep, depression, and suicidal thoughts. 13 (AT 21-22.) The ALJ found plaintiff’s impairments could cause plaintiff’s symptoms, but that 14 his “statements concerning the intensity, persistence and limiting effects of these symptoms are 15 not entirely consistent with the medical evidence and other evidence in the record for the reasons 16 explained in this decision.” (AT 22.) The ALJ then summarized the medical evidence. (AT 22- 17 23.) Turning back to plaintiff’s testimony, the ALJ found it “neither entirely consistent nor 18 entirely supported by the evidence,” reasoning: 19 For example, he testified that he had problems leaving the house due to suicidal thoughts, but he has repeatedly reported to his 20 mental health and medical providers that he did not have any such thoughts (Ex. 1F/25, 2F/13 and 18, 3F/64, 4F/9, 19, 44 and 58, and 21 Testimony). He reported that he had numerous side effects to medications, but the record does not demonstrate any such reports 22 to his treatment providers, and objective findings have routinely shown he was alert and oriented (Ex. 5E/1, 1F/17, 25-26, 28, 2F/13- 23 14, 18-19, 38 and 41, 3F/64, and 4F/9 and 13). Likewise, he has allegations of sleep difficulties, but he has not been objectively 24 reported to appear fatigued, but rather has repeatedly been found to be alert and oriented (Ex. 5E/1, 1F/17, 25-26, 28, 2F/13-14, 18-19, 25 38 and 41, 3F/64, 4F/9 and 13, and Testimony). Further, he has not required any inpatient psychiatric hospitalizations . . ., which are 26 factors that are not consistent with the finding of disability in a younger individual. 27 28 (AT 23-24.) Reviewing the ALJ’s rationale, the undersigned finds the ALJ’s combination of 1 rationales provide clear and convincing reasons for his discounting of plaintiff’s “intensity, 2 persistence, and limiting effects” statements. 20 C.F.R § 404.1529(c)(1)-(3). 3 First, the ALJ no t e d the lack of support in the underlying medical evidence, and 4 inconsistency therewith, to demonstrate intense, persistent, and limiting effects due medicinal 5 side effects or fatigue from lack of sleep. (See AT 24, citing e.g. AT 282 (noting no signs of 6 neglect and intact thought processes), 290-91 (same), 293 (same), 366 (same), 371 (same), 535 7 (same).) This is permissible. Rolli ns, 261 F.3d at 857 (noting a lack of support in the medical 8 evidence cannot be the only reason to discount a plaintiff’s testimony, but is a relevant factor for 9 the ALJ to consider). 10 Second, the ALJ considered plaintiff’s prior statements to his medical professionals in 11 denying extreme impairments like suicidal thoughts. (See AT 24, citing AT 290, 365, 370, 457, 12 535, 545, 570, 584). This is permissible. See Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 13 1989) (explaining that the ALJ may employ ordinary techniques of credibility evaluation and may 14 take into account prior inconsistent statements). 15 Third, the ALJ was permitted to take into account plaintiff’s relatively conservative 16 treatment regarding his mental impairments, including the lack of hospitalizations and, as noted 17 earlier in the decision, his attendance at group therapy (which he later ceased attending). See 18 Tommasetti, 533 F.3d at 1039-40 (conservative treatment undermines complaints of disabling 19 symptoms); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“We have previously indicated 20 that evidence of conservative treatment is sufficient to discount a claimant’s testimony regarding 21 severity of an impairment”); Fair, 885 F.2d at 604. 22 Fourth and finally, the court notes the ALJ’s significant detailing of plaintiff’s abilities to 23 perform daily activities such as shopping, housework, attend appointments. (See AT 21-22) 24 These do not detract from the ALJ’s overall findings. See Molina v. Astrue, 674 F.3d 1104, 25 1112-13 (9th Cir. 2011) (“Even where [everyday] activities suggest some difficulty functioning, 26 they may be grounds for discrediting the claimant’s testimony to the extent that they contradict 27 claims of a totally debilitating impairment.”). 28 //// 1 D. Lay Testimony. 2 Lastly, plaintiff argues the ALJ erred in failing to acknowledge the statement of plaintiff’s 3 sister, which she provide d to the agency prior to plaintiff’s initial disability determination. (AT 4 199-205.) Therein, she stated plaintiff had limitations similar to those plaintiff expressed at the 5 hearing, including difficulty interacting with others, difficulty working, and difficulty listening or 6 paying attention. (See Id.) Plaintiff argues that under Ninth Circuit precedent, the ALJ is at least 7 required to provide “germane” reas ons for discounting a lay witness’s testimony. Molina v. 8 Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). Again, plaintiff fails to appreciate the change in the 9 Commissioner’s regulations, which do not require an ALJ to articulate how he/she considered 10 “evidence from nonmedical sources.” 20 C.F.R. 404.1520c(d). Nonmedical sources include 11 “[f]amily members, caregivers, friends, neighbors, employers, and clergy.” 20 C.F.R. 12 § 404.1502(e)(4). Thus, these new regulations plainly allow for the ALJ to resolve plaintiff’s 13 case without articulating findings plaintiff’s sister’s statement. Plaintiff does not challenge the 14 validity of Subsection 404.1520c(d). 15 Further, to the extent the ALJ is required to “consider” all evidence, including statements 16 from nonmedical sources, the court is satisfied that the ALJ did not cherry-pick the record to 17 construct a result. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (an ALJ’s 18 “selective . . . reliance” on the record does not meet the substantial-evidence standard). The ALJ 19 noted plaintiff’s sister’s statement in his Step Two findings, indicating the ALJ was aware of her 20 reports and so considered them. (See AT 19.) Further, the court notes that the sister’s reports 21 were similar in nature to those plaintiff expressed at the hearing, which (as above) the ALJ 22 properly rejected. See Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009) (the ALJ 23 provided germane reasons for rejecting third-party witness testimony similar to claimant’s 24 subjective testimony, when the ALJ provided clear and convincing reasons for rejecting 25 claimant’s subjective testimony); See Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) 26 (contradictory evidence in the record is a germane reason for rejecting lay testimony). 27 //// 28 //// 1 IV. CONCLUSION 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiff's motion for summary judgment (ECF No. 22) be DENIED; 4 2. The Commissioner’s cross-motion (ECF No. 27) be GRANTED; 5 3. The final decision of the Commissioner be AFFIRMED; and 6 4. The Clerk of Court be directed to issue judgment in the Commissioner’s favor and 7 CLOSE this case. 8 | These findings and recommendations are submitted to the United States District Judge assigned to 9 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). The parties have already submitted 10 || their objections based on previous F&R’s, to which the undersigned has issued a narrow 11 || correction regarding the ALJ’s treatment of LCSW Fuller. (See ECF Nos. 28-31 and Section 12 | III.B.1. above.) Should either party wish to issue additional objections based on the 13 || undersigned’s analysis of the LCSW Fuller issue, they should file notice of their intent to do so 14 || by July 2, 2021 and the court will set the appropriate deadlines. Otherwise, these findings and 15 || recommendations will be submitted to the district judge immediately. 16 | Dated: June 29, 2021 Aectl Aharon 18 KENDALL J. NE dubo.634 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 19