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

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WAYNE WILLIAM WOFFORD, No. 2:19-CV-0792-WBS-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 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 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 17 and 18. 21 The Court reviews the Commissioner’s final decision to determine whether it is: 22 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 23 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 24 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 25 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 26 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 27 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 28 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 1 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 2 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 3 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 4 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 5 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 6 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 7 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 8 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 9 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 10 Cir. 1988). 11 For the reasons discussed below, the court recommends the Commissioner’s final 12 decision be affirmed. 13 14 I. THE DISABILITY EVALUATION PROCESS 15 To achieve uniformity of decisions, the Commissioner employs a five-step 16 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 17 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 18 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 19 not disabled and the claim is denied; 20 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 21 impairment; if not, the claimant is presumed not disabled and the claim is denied; 22 Step 3 If the claimant has one or more severe impairments, 23 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 24 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 25 Step 4 If the claimant’s impairment is not listed in the regulations, 26 determination whether the impairment prevents the claimant from performing past work in light of the 27 claimant’s residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied; 28 1 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 2 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 3 national economy; if so, the claimant is not disabled and the claim is denied. 4 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 5 6 To qualify for benefits, the claimant must establish the inability to engage in 7 substantial gainful activity due to a medically determinable physical or mental impairment which 8 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 9 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 10 impairment of such severity the claimant is unable to engage in previous work and cannot, 11 considering the claimant’s age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 13 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 14 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 15 The claimant establishes a prima facie case by showing that a physical or mental 16 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 17 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 18 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 19 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 20 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 21 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on March 23, 2015. See CAR 13.1 In 3 the application, plaintiff claims disability began on November 3, 2014. See id. Plaintiff’s claim 4 was initially denied. Following denial of reconsideration, plaintiff requested an administrative 5 hearing, which was held on August 16, 2017, before Administrative Law Judge (ALJ) Ruxana 6 Meyer. In a May 2, 2018, decision, the ALJ concluded plaintiff is not disabled based on the 7 following relevant findings: 8 1. The claimant has the following severe impairment(s): blindness and exotropia of the left eye, headaches, a history of polysubstance 9 abuse, and depression; 10 2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 11 the regulations; 12 3. The claimant has the following residual functional capacity: a full range of work at all exertional levels; the claimant can perform 13 frequent climbing, balancing, kneeling, and crawling; he can occasionally negotiate uneven terrain; he can do work that does not 14 involve ladders, working at heights, moving machinery, or proximity to open flames; he is capable of performing simple 15 repetitive tasks involving occasional interaction with coworkers and the general public; he is able to perform work tasks that do not 16 require fine visual discrimination or more than occasional near acuity, far acuity, depth perception, and field of vision with the left 17 eye; he can handle and work with large objects such as boxes of tools like brooms, shovels, and sledgehammers; the claimant 18 should avoid ordinary hazards such as boxes on the floor, doors ajar, and approaching people or objects; 19 4. Considering the claimant’s age, education, work experience, 20 residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy 21 that the claimant can perform. 22 See id. at 16-25. 23 After the Appeals Council declined review on March 1, 2019, this appeal followed. 24 / / / 25 / / / 26 / / / 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on 28 September 9, 2019, see ECF No. 12. 1 III. DISCUSSION 2 In his opening brief, Plaintiff argues: (1) the ALJ’s findings regarding limitations 3 cause by Plaintiff’s visual impairment are not supported by any medical opinion; (2) the ALJ’s 4 mental residual functional capacity assessment is also unsupported; (3) the ALJ erred in rejecting 5 Plaintiff’s testimony as not credible; and (4) the ALJ failed to provide sufficient reasons for 6 rejecting lay witness evidence. 7 A. Medical Opinions 8 Plaintiff’s first two arguments are related in that they touch on the ALJ’s 9 evaluation of the medical opinion evidence. In his first claim of error, Plaintiff asserts the ALJ’s 10 physical residual functional capacity assessment is not based on any medical evidence and, as 11 such, must represent the ALJ’s lay opinion. See ECF No. 17, pg. 11. In his second claim of 12 error, Plaintiff asserts the ALJ’s mental residual functional capacity assessment is flawed because 13 the ALJ failed to properly account for opinions rendered by Dr. Izzi, the agency examining 14 psychologist, and his treating therapist. See id. at 14. 15 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 16 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 17 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 18 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 19 opinion over another. See id. 20 Under the regulations, only “licensed physicians and certain qualified specialists” 21 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 22 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 23 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 24 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 25 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 26 substantial evidence when the opinions are consistent with independent clinical findings or other 27 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 28 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 1 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 2 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 3 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 4 workers may be discounted provided the ALJ provides reasons germane to each source for doing 5 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 6 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 7 when opinions from “other sources” may be considered acceptable medical opinions). 8 The weight given to medical opinions depends in part on whether they are 9 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 10 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 11 professional, who has a greater opportunity to know and observe the patient as an individual, than 12 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 13 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 14 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th 15 Cir. 1990). 16 In addition to considering its source, to evaluate whether the Commissioner 17 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in 18 the record; and (2) clinical findings support the opinions. The Commissioner may reject an 19 uncontradicted opinion of a treating or examining medical professional only for “clear and 20 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 21 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 22 by an examining professional’s opinion which is supported by different independent clinical 23 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 24 1041 (9th Cir. 1995). 25 A contradicted opinion of a treating or examining professional may be rejected 26 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 27 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 28 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 1 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 2 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 3 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 4 without other evidence, is insufficient to reject the opinion of a treating or examining 5 professional. See id. at 831. In any event, the Commissioner need not give weight to any 6 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 7 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 8 also Magallanes, 881 F.2d at 751. 9 At Step 4, the ALJ evaluated the medical opinions of record. See CAR 21. In 10 particular, the ALJ considered reports prepared by Drs. Fabella and Izzi, who conducted 11 examinations at the request of the agency, and four agency reviewing doctors. See id. 12 As to Drs. Fabella and Izzi, the ALJ stated: 13 . . .[c]onsultative examiner, Emmanuel Fabella, M.D., performed a physical examination on the claimant in July 2015. Following the 14 examination, Dr. Fabella diagnosed the claimant with headaches and visual deficits with mild error of retraction, as well as mild visual field 15 defect to the left of the midline. He opined that as a result of these impairments, the claimant retains the ability to frequently climb, balance, 16 kneel, or crawl. He assessed that the claimant is also able to occasionally walk in uneven terrain, but should avoid ladders and working at heights or 17 moving machinery (Exhibit 2F). 18 In August 2015, consultative examiner, Roger Izzi, Ph.D., performed a psychological evaluation on the claimant. Afterwards, he diagnosed the 19 claimant with major depressive disorder with anxious distress. Dr. Izzi opined that due to this condition, the claimant’s ability to get along with 20 peers or supervisors is moderately limited. He further indicated that the claimant’s significant fluctuation of mood also limits the claimant’s ability 21 to perform complex tasks on a consistent basis for over an eight-hour period (Exhibit 3F). The undersigned affords great weight to the opinion 22 of both Dr. Fabella and Dr. Izzi. Specifically, their opinions are consistent with and well supported by their own examinations of the claimant, as 23 well as the treatment notes in the record. 24 CAR 21. 25 As to the agency reviewing doctors, the ALJ stated: 26 Two medical state agency consultants reviewed the claimant’s medical evidence of record in September 2015 and January 2016. Following their 27 review, both doctors opined that the claimant has mild restrictions in activities of daily living, mild difficulties with social functioning, and mild 28 difficulties with centration, persistence, or pace (Exhibits 1A, 2A, 5A, 1 6A). The undersigned acknowledges that, in forming their opinions, the two reviewing doctors evaluated the claimant’s impairments using the B 2 criteria set forth in a previous version of the medical listings. Therefore, the undersigned has addressed their opinions within the context of the 3 updated listings. 4 Another two agency consultants reviewed the claimant’s medical evidence of record in August 2015 and January 2016. Both reviewing doctors 5 opined that the claimant’s physical impairments are non-severe (Exhibits 1A, 2A, 5A, 6A). The undersigned affords little weigh to the opinions of 6 all four above-mentioned reviewing doctors because their assessments contrast[] sharply with the other evidence of record, rendering them less 7 persuasive. 8 CAR 21. 9 Finally, in addressing the medical opinions, the ALJ commented on a Global 10 Assessment of Functioning score assessed by a treating source: 11 The undersigned notes that a Global Assessment of Functioning (GAF) score was assigned to the claimant. This claimant was assigned a GAF 12 score of 45 (Exhibit 7F). However, the undersigned acknowledges that GAF scores are subjectively assessed scores that often contain information 13 on financial or relationship stressors, not necessarily related to work ability. In fact, single GAF scores reveal only snapshots of impaired or 14 improved behavior and are simply a prediction of the claimant’s level of function at that moment in time. GAF scores can also vary wildly from 15 day-to-day and among practitioners. It is notable that the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) no longer utilize[s] GAF 16 scores because of the subjective nature of each score. Thus, the undersigned gives more weight to the objective details and chronology of 17 the record, which more accurately describes the claimant’s impairments and limitations. For these reasons, the undersigned gives minimal weight 18 to the GAF scores documented in the treatment records. 19 CAR 21. 20 1. Visual Impairment 21 Plaintiff argues: 22 Briefly, Plaintiff’s left eye was knocked out of its socket when he was hit by a car at age two (Tr. 353). He underwent eye surgery, but his 23 left eye remained laterally deviated (Tr. 353). Plaintiff reported his vision had worsened and he had “constant” double vision, cloudiness and 24 difficulty focusing (Tr. 48-51). At Plaintiff’s hearing the ALJ indicated she would send Plaintiff to an ophthalmological CE (consultative 25 examiner) so the ALJ could “properly form an RFC” (Tr. 63-64). The ophthalmologist’s examination revealed the uncorrected visual 26 acuity in Plaintiff’s right eye was 20/40 and in his left eye it was 20/200 (Tr. 421). The best corrected visual acuity in Plaintiff’s right eye was 27 20/30 and in his left eye it was 20/200 (Tr. 421). There was presbyopia (farsightedness) in his right eye (Tr. 421). Visual fields were constricted to 28 40 to 60 degrees in Plaintiff’s right eye and 30 to 40 degrees in his left eye 1 (Tr. 421). A normal visual field is 50 to 60. (footnote omitted). The ophthalmologist diagnosed left eye exotropia (outward deviating eye) and 2 amblyopia (reduced vision caused by exotropia). (footnote omitted). (Tr. 421). 3 The ophthalmologist did not provide a medical source statement as to the functional limitations caused by Plaintiff’s visual impairment (Tr. 4 421). A medical source statement is the medical opinion of an acceptable medical source about what an individual can still do in spite of his severe 5 impairments, focusing on the individual’s ability to perform work-related activities on a sustained basis. Social Security Ruling (SSR) 96-5p 6 (“Medical source statements are medical opinions submitted by acceptable medical sources, including treating sources and consultative examiners, 7 about what an individual can still do despite a severe impairment(s), in particular about an individual’s physical or mental abilities to perform 8 work-related activities on a sustained basis”) (footnote omitted). Nor apparently was the ophthalmologist’s report reviewed by an 9 ophthalmologist or other medical expert to obtain an opinion of Plaintiff’s visual functioning. Perhaps coincidentally, the ALJ’s RFC finding is 10 substantially the same as the limitations the ALJ presented to the VE in her relevant hypothetical questioning at Plaintiff’s hearing (Tr. 54-57). 11 However, Plaintiff’s hearing was held before he was examined by the consultative examining ophthalmologist (Tr. 63). This suggests the ALJ’s 12 decision may have been results-driven. The ALJ’s visual RFC finding is not supported by any medical 13 opinion of record, not even the opinions of the state agency physicians (Tr. 66-113). Thus, the ALJ’s findings regarding Plaintiff’s visual limitations 14 must be based on the ALJ’s lay opinion, which does not constitute substantial evidence sufficient to support her decision. There is no medical 15 support for the ALJ’s finding that Plaintiff could occasionally (up to 1/3 of the workday) use his left eye for near acuity, far acuity, depth perception 16 or field of vision, as found by the ALJ (Tr. 19). Indeed, the ALJ did not explain how occasional use of Plaintiff’s left eye for these purposes 17 would work on a practical basis in a work setting (Tr. 19). The ALJ’s conclusions are far from intuitive. Further, the ALJ’s RFC finding does 18 not account for limitations caused by such things as Plaintiff’s eye strain, difficulty focusing and constant double vision. 19 Because the Commissioner’s “path cannot be reasonably discerned,” the ALJ’s decision regarding Plaintiff’s visual limitations 20 should be reversed because it cannot be subjected to meaningful judicial review. Treichler, 775 F.3d at 1103. On remand, the ALJ should be 21 instructed to obtain an ophthalmologist’s opinion as to what work activities Plaintiff can perform in spite of his visual impairment. 22 ECF No. 17, pgs12-13. 23 24 Here, the ALJ’s residual functional capacity finding limited Plaintiff to jobs “that 25 do not require fine visual discrimination or more than occasional near acuity, far acuity, depth 26 perception, and field of vision with the left eye.” CAR 19. The record reflects that Plaintiff was 27 seen by Syed S. Hasnain, M.D., an agency examining ophthalmologist on September 12, 2017. 28 See id. at 421. As Plaintiff admits, Dr. Hasnain did not provide any assessment of functional 1 limitations associated with Plaintiff’s left eye. See id. Dr. Hasnain’s report reflects that 2 Plaintiff’s right eye is essentially normal with corrected vision at 20/30. Pressure in both eyes 3 was normal. See id. Fundus exam was normal in each eye. See id. Visual fields were 4 constricted 40 to 60 degrees in the right eye and 30 to 40 degrees in the left eye. See id. 5 The only doctor to express an opinion regarding Plaintiff’s vision is Dr. Fabella, 6 who opined Plaintiff has a “mild error of retraction” and “mild visual field defect to the left of 7 midline.” As with Dr. Hasnain, Dr. Fabella did not assess any work-related limitations associated 8 with these mild visual impairments. The ALJ accepted Dr. Fabella’s conclusions and Plaintiff 9 does not challenge this analysis. 10 Moreover, as the ALJ noted, the first two agency consultative reviewing doctors 11 found only mild limitations but based their opinions on outdated regulations. The second two 12 agency consultative reviewing doctors opined Plaintiff’s impairments were non-severe. The ALJ 13 was entitled to resolve the conflict between the reviewing doctors’ opinions of no severe 14 impairments and Dr. Fabella’s opinion that Plaintiff’s visual impairments were mild. The ALJ 15 did so by accounting for visual limitations in the residual functional capacity assessment. 16 Plaintiff has not met his burden of producing objective medical evidence showing 17 a greater degree of work-related limitation than that assessed by the ALJ. To the extent Plaintiff 18 asserts limitations due to double vision caused by his left eye impairment, Plaintiff has not 19 provided any medical opinions to support the assertion, and neither Dr. Fabella nor Dr. Hasnain 20 noted limitations due to double vision. Additionally, there is no evidence Plaintiff ever sought 21 further treatment for double vision associated with amblyopia of the left eye, such as corrective 22 eye alignment surgery. 23 Finally, as Defendant notes, Plaintiff’s left eye impairment has existed since he 24 was a child, yet Plaintiff says he only became disabled as an adult in November 2014. Before 25 that time, Plaintiff engaged in substantial gainful activity for many years. See CAR 195-96. 26 Plaintiff stopped working due to a layoff. See id. at 360. The Court agrees with Defendant that 27 Plaintiff’s demonstrated ability to work even with his left eye impairment supports the ALJ’s 28 residual functional capacity finding. See Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988); 1 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 2 For the foregoing reasons, the Court finds the ALJ’s analysis and residual 3 functional capacity assessment concerning Plaintiff’s left eye impairment is supported by 4 substantial evidence. 5 2. Mental Impairment 6 According to Plaintiff, the ALJ erred with respect to evaluation of Dr. Izzi’s 7 opinions as well as evaluation of the GAF score assessed by Plaintiff’s treating source: 8 The ALJ found Plaintiff had the mental capacity to perform simple repetitive tasks requiring occasional interaction with co-workers and the 9 general public (Tr. 19). In so finding, the ALJ failed to reject limitations opined by the consultative examining psychologist and erroneously 10 rejected the opinion of Plaintiff’s therapist. 11 ECF No. 17, pg. 14. 12 a. Dr. Izzi’s Opinions 13 As to Dr. Izzi, Plaintiff argues: 14 In this case, the ALJ indicated she gave “great weight” to the opinion of Dr. Izzi, the psychologist who examined Plaintiff at the request 15 of the state agency (Tr. 21). Dr. Izzi opined Plaintiff could perform simple repetitive type tasks and his abilities to get along with peers or supervisors 16 in a work-like setting were moderately limited by his mood disorder (Tr. 362). 17 The ALJ accounted for Dr. Izzi’ opinion of Plaintiff’s moderately limited ability to get along with peers by including a limitation to 18 occasional interaction with co-workers (Tr. 19). However, the ALJ did not account for Dr. Izzi’s opinion of Plaintiff’s moderately limited ability to 19 get along with supervisors in his RFC finding - nor did she give any reasons for rejecting it (Tr. 19, 21). 20 This omission is material. The Commissioner specifically recognizes that limitations in the amount of supervision a person can 21 tolerate constitutes an important part of the rating of the ability to perform the social requirements of work activity. 20 CFR §§ 404.1520a(c)(2), 22 416.920a(c)(2). The ability to respond appropriately to supervision and coworkers is at the core of a residual functional capacity assessment. 20 23 CFR §§ 404.1545(c), 416.945(c). Thus, any limitation in a claimant’s ability to get along with supervisors should be included in a decision’s 24 RFC finding. The ALJ’s failure to do so is a legal error. Therefore, on remand the ALJ should either accept or give legally 25 adequate reasons for rejecting Dr. Izzi’s opinion, in whole or in part. 26 ECF No. 17, pgs. 14-15. 27 / / / 28 / / / 1 Dr. Izzi prepared a report following his psychological evaluation of Plaintiff on 2 August 4, 2015. See CAR 360-63. Dr. Izzi concluded: 3 The claimant presented as a 44-year-old male. He reported that he is presently working. He last worked full time at Wal-Mart. After working 4 there for six years, he reported that there was a layoff. He then began collecting unemployment. 5 His performance on the present mental status examination seems 6 satisfactory. 7 Clinical interview indicates that the claimant is not having any difficulties caring for his basic hygiene. The present evaluation suggests that the 8 claimant does appear capable of performing a simple and repetitive type task on a consistent basis over an eight-hour period. His ability to get 9 along with peers or be supervised in a work-like setting would be moderately limited by his mood disorder. The claimant’s mood disorder 10 will fluctuate. Any significant fluctuation of mood would limit the claimant’s ability to perform a complex task on a consistent basis over an 11 eight-hour period. On a purely psychological basis, the claimant appears capable of responding to usual work session situations regarding 12 attendance and safety issues. On a purely psychological basis, the claimant appears capable of dealing with changes in a routine work 13 setting. 14 Id. at 362. 15 The ALJ largely accepted Dr. Izzi’s conclusions and adopted the doctor’s limitations in the 16 residual functional capacity assessment. Specifically, the ALJ limited Plaintiff to “simple 17 repetitive tasks involving occasional interaction with coworkers and the general public.” CAR 18 19. 19 Plaintiff faults the ALJ for not accounting for Dr. Izzi’s opinion that Plaintiff is 20 moderately limited in his “ability to. . . be supervised.” A similar argument concerning opinions 21 rendered by Dr. Izzi was evaluated in Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017). In that 22 case, Dr. Izzi examined Shaibi and rendered opinions on mental functional abilities. See id. at 23 1104. Dr. Izzi opined that Shaibi was “moderately limited” in the ability to get along with peers 24 and supervisors due a mood disorder. See id. Shaibe made the same argument as Plaintiff makes 25 here – that the ALJ erred in not including specific limitations to interactions with supervisors in 26 the residual functional capacity assessment. See id. at 1106-07. The Ninth Circuit rejected this 27 / / / 28 / / / 1 argument. See id. at 1107. The court held: 2 . . .Ultimately, the ALJ found that Shaibi was “limited to simple routine tasks in a non-public setting, with occasional interaction with coworkers.” 3 The ALJ evidently contemplated that Shaibi’s social limitations were significant enough that he was incapable of frequent or sustained 4 interactions with coworkers, but not sufficiently debilitating that Shaibi could never interact with colleagues or supervisors. That conclusion is 5 consistent with Dr. Izzi’s opinion that Shaibi’s social limitations were “moderate,” rather than mild or marked. 6 Id. 7 8 Following the court’s rationale in Shaibi, this Court concludes that the ALJ’s 9 evaluation of Dr. Izzi’s opinions is consistent with the residual functional capacity finding. In 10 particular, as in Shaibi, the ALJ’s inclusion of limitations on social interactions in the workplace 11 account for Dr. Izzi’s opinion that Plaintiff is moderately limited in various social interactions, 12 including with co-workers and supervisors. 13 b. GAF Score Assessed by Treating Source 14 As to the GAF score assessed by Plaintiff’s treating source, Plaintiff contends: 15 Further, the ALJ erred when rejecting the GAF score of 45 assigned by Plaintiff’s therapist (Tr. 21). A GAF score is a psychiatric 16 opinion and, “As with other opinion evidence, the extent to which an adjudicator can rely on the GAF rating as a measure of impairment 17 severity and mental functioning depends on whether the GAF rating is consistent with other evidence, how familiar the rater is with the claimant, 18 and the rater’s expertise.” Administrative Message (AM) -13066 (effective 07/22/13)6; see Garrison, 759 F.3d at 1003 n.4 (“A GAF score is a rough 19 estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment [that] “may 20 be a useful measurement [regarding whether a] “person’s mental impairments rise to the level of disability”) (quoting Vargas v. Lambert, 21 159 F.3d 1161, 1164 n. 2 (9th Cir. 1998)). Therefore, an ALJ is required to give legally adequate reasons for rejecting a claimant’s GAF scores. 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (ALJ must give clear and convincing reasons for rejecting the uncontroverted opinion of a 23 treating or examining physicians and specific and legitimate reasons for rejecting the controverted opinion of a treating or examining physician). 24 In this case, Plaintiff was assigned a GAF score of 55 in April 2015, which indicated moderate limitations7 (Tr. 345). This corroborates, 25 at least in part, the opinion of Dr. Izzi, who examined Plaintiff in August 2015 and opined he had moderate social limitations (Tr. 362). However, 26 by December 2015, Plaintiff’s depression had increased and he was experiencing discouragement, resignation and he did not go anywhere 27 anymore (Tr. 389). In February 2016, Plaintiff’s therapist assigned a GAF score of 45, indicating a serious impairment8, and referred Plaintiff for 28 medication management based on his severe Major Depressive Disorder 1 with psychotic features, depression, anhedonia, auditory hallucinations, insomnia, feelings of worthlessness and thoughts about death (Tr. 416). 2 Thus, the GAF score of 45 addressed by the ALJ showed a worsening of Plaintiff’s impairment between April 2015 and January 2016. 3 When rejecting the January 2016 opinion of Plaintiff’s therapist (GAF score of 45), the ALJ indicated she was giving more weight “to the 4 objective details and chronology of the record, which more accurately describes the claimant’s impairments and limitations” (Tr. 21). However, 5 the ALJ did not describe these “objective details and chronology of the record” (Tr. 21). In any event, this finding is contradicted by a fair reading 6 of the record. Subsequent clinical findings indicate Plaintiff continued to be seriously impaired after his therapist offered his opinion in January 7 2016. For example, in May 2016, Plaintiff’s therapist observed he was easily distracted and his thoughts frequently became tangential (Tr. 409); 8 in June 2016, Plaintiff’s thoughts and speech were more rapid and dysregulated and he had difficulties distinguishing the difference between 9 his emotions and his thoughts (Tr. 406); and in July 2017, Plaintiff was depressed, discouraged and mildly unkempt and had not planted a garden 10 that year (Tr. 417). These “objective details,” not addressed by the ALJ, accurately reflected Plaintiff’s serious impairments and limitations and 11 show his mental functioning actually worsened after Dr. Izzi expressed his opinion. 12 Thus, the ALJ’s failure to give specific and legitimate reasons rejecting the opinion of Plaintiff’s therapist that Plaintiff was seriously 13 impaired is another error that warrants remand. 14 ECF No. 17, pgs. 15-16. 15 Regarding the one-time GAF score of 45 assessed by a treating source, the ALJ 16 gave this evidence minimal weight. See CAR 21, noting, the ALJ noted that GAF scores are 17 necessarily subjective and represent only a snapshot of someone’s condition at that moment in 18 time. See id. The ALJ also observed that GAF scores are no longer relevant under the current 19 DSM-V for these reasons. As Defendant notes, the Ninth Circuit has affirmed findings of non- 20 disability in cases where claimants have had GAF scores in the 40s. See Bayliss v. Barnhart, 427 21 F.3d 1211, 1217 n.3 (9th Cir. 2005); Morgan v. Comm’r of SSA, 169 F.3d 595, 598 n.1 (9th Cir. 22 1999). 23 The Court finds no error in the ALJ’s analysis of a one-time GAF score of 45 24 assessed by Plaintiff’s treating source. 25 / / / 26 / / / 27 / / / 28 / / / 1 B. Credibility 2 Plaintiff argues the ALJ’s credibility analysis is flawed because it “appears to be 3 based largely on the ALJ’s flawed interpretation of the medial evidence (addressed above).” ECF 4 No. 17, pg. 17. Plaintiff also contends the ALJ erred in citing his daily activities. See id. 5 The Commissioner determines whether a disability applicant is credible, and the 6 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 7 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 8 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 9 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 10 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 11 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 12 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 13 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 14 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 15 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 16 If there is objective medical evidence of an underlying impairment, the 17 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 18 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 19 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 20 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 21 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 22 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 23 be a reasonable inference, not a medically proven phenomenon. 24 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 25 26 / / / 27 / / / 28 / / / 1 The Commissioner may, however, consider the nature of the symptoms alleged, 2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 3 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 4 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 5 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 6 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 7 physician and third-party testimony about the nature, severity, and effect of symptoms. See 8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 9 claimant cooperated during physical examinations or provided conflicting statements concerning 10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 11 claimant testifies as to symptoms greater than would normally be produced by a given 12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 14 Regarding reliance on a claimant’s daily activities to find testimony of disabling 15 pain not credible, the Social Security Act does not require that disability claimants be utterly 16 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 17 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 18 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 19 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 20 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 21 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 22 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 24 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 25 activities are not easily transferable to what may be the more grueling environment of the 26 workplace, where it might be impossible to periodically rest or take medication”). Daily 27 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 28 his day engaged in pursuits involving the performance of physical functions that are transferable 1 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 2 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 3 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 4 At Step 4, the ALJ evaluated the credibility of Plaintiff’s statements and 5 testimony. See CAR 19-20. The ALJ stated: 6 . . .In his disability report, the claimant alleged an inability to work due to mental issues, vision problems, and headaches (Exhibit 5E). In November 7 2015, the claimant reported a decrease in his vision, an increase in his psychological symptoms, and an increase in his psychiatric medication 8 (Exhibit 10E). Specifically, he states that his blurry vision causes him to see shadows or people that are not there, and his medication causes side 9 effects such as drowsiness (Exhibits 10E, 12E). The claimant reported that the worsening of his symptoms makes it harder for him to leave his 10 home (Exhibit 12E). At the hearing, the claimant testified that he is currently working eight hours a week as a sign holder but stated that even 11 this is becoming too difficult for him to manage (Testimony). 12 After careful consideration of the evidence, the undersigned finds that the claimant’s medially determinable impairments could reasonably be 13 expected to cause the alleged symptoms, however, the claimant’s statements concerning the intensity, persistence, and limiting effects of 14 these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 15 For example, the medical evidence confirms that the claimant has been 16 experiencing left eye issues since the age of two when a car struck him. According to the records, the claimant underwent left eye surgery to 17 resolve a dislodged left eyeball. Since then, the claimant’s left eye has been laterally deviated causing blurry vision and a blind spot on his left 18 peripheral vision. Upon examination, the claimant’s left eye is deviated at 45 degrees to the left with both eyes are open (Exhibit 2F). In addition, 19 the claimant’s visual acuity with eyeglasses was found to be 20/30 in the right eye, but 20/200 in the left eye (Exhibit 9F). As such, the 20 undersigned has taken the claimant’s blindness and exotropia of the left eye into consideration when determining the above-referenced residual 21 functional capacity. 22 The medical evidence also confirms that the claimant experiences daily tension headaches that are likely stress-related (Exhibit 2F). However, the 23 treatment records indicate that the claimant’s headaches are intermittent and usually only last about 15 minutes before going away on their own 24 (Exhibits 5F, 10F). Furthermore, the claimant informed his treating providers that he does not take pain medication and has not seen a doctor 25 in over 25 years (Exhibits 1F, 5F, 10F). This statement is confirmed by the lack of medical records in the claimant’s file pertaining to any physical 26 health impairments and/or treatment. Therefore, the undersigned finds that the claimant’s lack of more aggressive treatment, surgical 27 intervention, or even a referral to a specialist suggests the claimant’s symptoms and limitations are not as severe as alleged. 28 1 * * * 2 The medical evidence shows that the claimant has depression, precipitated by the March 2015 death of his girlfriend (Exhibit 3F). Specifically, the 3 medical records describe a depressed mood, worried thoughts, occasionally suicidal ideations, delusions, and auditory and visual 4 hallucinations (Exhibit 1F). In fact, the claimant reported having conversations with people who are not there (Exhibit 5F). However, by 5 June 2015, the claimant informed his treating provider that his individual and group therapy were helping lower the intensity of his grief (Exhibit 6 1F). Bereavement issues aside, the limitations associated with the claimant’s depression do not warrant the level of limitation alleged owing 7 to such impairment. 8 Although the claimant’s activities of daily living illustrate some functional deficits, they are not to the level of severity related by the claimant. For 9 example, despite his impairments, the claimant continues to engage in a somewhat normal level of daily activity and interaction. Specifically, the 10 claimant admitted activities of daily living including living alone, working part-time, managing his own finances, gardening, conducting yard sales, 11 playing poker, and tending to his own personal needs (Exhibits 3F, 6F, 7F, 10F, Testimony). Furthermore, throughout the medical records, the 12 claimant is described as well nourished, well developed, alert, oriented, awake, and in no acute distress (Exhibits 2F, 3F, 5F, 10F). This indicates 13 to the undersigned that the claimant is more able-bodied than he alleged. 14 CAR 19-20. 15 In his brief, Plaintiff first contends the ALJ’s analysis is based on a faulty analysis 16 of the medical evidence. See ECF No. 17, pg. 17. Second, Plaintiff argues reversal is warranted 17 because the ALJ relied solely on a lack of objective support. See id. Third, Plaintiff contends 18 the ALJ improperly relied on Plaintiff’s daily activities. See id. at 17-19. According to Plaintiff: 19 The ALJ’s rejection of Plaintiff’s testimony appears to be based above largely on the ALJ’s flawed interpretation the medical evidence 20 (addressed) (Tr. 20-22). Further, an ALJ’s rejecting of a claimant’s subjective complaints will not survive judicial review if such rejection is 21 based only on lack of support in his medical records. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (a credibility finding 22 cannot be premised wholly on a lack of medical support for the severity of his symptoms). 23 The ALJ also rejected Plaintiff’s testimony because his “somewhat normal level of daily activity and interaction” indicated he was “more 24 able-bodied than he alleged” (Tr. 19-21). This reasoning should fail judicial review because the ALJ was required to consider “the complete 25 picture” of Plaintiff’s daily functioning, including the help and support he received. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D)(3)(a) (“We will 26 consider the complete picture of your daily functioning, including the kinds, extent, and frequency of help your receive [ ]”). The fact that a 27 claimant “performs routine activities without help or support” does not necessarily mean claimant does not have a disabling mental disorder. Id. 28 1 These activities may include taking care of personal needs, cooking, shopping, paying bills, living alone and driving a car. Id. (“For example, 2 you may be able to take care of your personal needs, cook, shop, pay your bills, live by yourself, and drive a car.”). Further, the Commissioner’s 3 regulations recognize that a claimant may receive various kinds of help that enable him to do many things that, because of a mental disorder, 4 claimant may not be able to do independently and further provides: 5 Your daily functioning may depend on the special contexts in which you function. For example, you may spend your 6 time among only familiar people or surroundings, in a simple and steady routine or an unchanging environment, 7 or in a highly structured setting. However, this does not necessarily show how you would function in a work setting 8 on a sustained basis, throughout a normal workday or workweek. 9 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D)(3)(b). 10 In this case, the activities cited by the ALJ were “living alone, 11 working part time, managing his own finances, gardening, conducting yard sales, playing poker, and tending to his own personal needs” (Tr. 20). 12 However, the evidence of record, including the exhibits cited by the ALJ, shows Plaintiff was almost a recluse - he lived alone in a trailer on his 13 parent’s property, he rarely left home and, when he did, he only went to the store and to mental health appointments (Tr. 43, 267, 360, 389). His 14 mother drove him to his appointments (Tr. 267). (The exhibits cited by the ALJ do not indicate Plaintiff played cards or conducted yard sales 15 (Tr. 20)). He had lost interest in activities he previously enjoyed (Tr. 387). He did not see friends or family (other than his parents), did not belong to 16 any clubs, groups or organizations and did not attend religious services (Tr. 360). He worked part-time waving a sign for two days a week, four 17 hours a day (Tr. 39). Even this limited type of work was a “struggle” for him to complete (Tr. 38-39). These extremely limited activities indicate an 18 individual who can function only in the protected environment (“special contexts”) he created for himself. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 19 12.00(D)(3)(b). Therefore, Plaintiff’s testimony is not contradicted by his daily activities nor do Plaintiff’s activities show he could perform 20 sustained work in a competitive work environment. 21 ECF No. 17, pgs. 17-19. 22 1. Interpretation of Medical Evidence 23 Plaintiff states that the ALJ’s credibility analysis is insufficient because it is based 24 on a “flawed interpretation of the medical evidence (addressed above).” Id. at 17. Plaintiff cites 25 “Tr. 20-22.” Id. This citation references the portion of the hearing decision at CAR 20-22 in 26 which the ALJ discusses both the objective medical findings and the various medical opinions of 27 record. In this portion of the hearing decision, the ALJ discusses the following medical evidence: 28 1 (1) the objective medical evidence related to Plaintiff’s left eye; (2) the objective medical 2 evidence related to headaches; (3) the objective evidence related to Plaintiff’s mental impairment; 3 (4) the opinions rendered by Drs. Izzi and Fabella; (5) the GAF score assessed by Plaintiff’s 4 treating source; and (6) the opinions of the agency consultative reviewing doctors. See CAR 20- 5 22. 6 The ALJ’s discussion of Plaintiff’s headaches is not at issue. According to 7 Plaintiff: 8 The ALJ rejected Plaintiff’s testimony regarding his headaches largely because of Plaintiff’s failure to seek more aggressive treatment 9 (Tr. 20). Plaintiff will not address this finding because he has not raised the issue of the ALJ’s assessment of his headaches. 10 ECF No. 17, pg. 17 n.9. 11 12 As discussed above, the Court finds no error in the ALJ’s disregard of a one-time 13 GAF score of 45. As also discussed above, the Court finds no error in the ALJ’s analysis of the 14 medical opinion evidence offered by Dr. Izzi and Plaintiff does not challenge the ALJ’s analysis 15 as to Dr. Fabella. Plaintiff also does not challenge the ALJ’s evaluation of the opinions offered 16 by the various consultative reviewing doctors. 17 Remaining, then, is Plaintiff’s contention that the ALJ’s credibility finding is 18 based on a flawed interpretation of the objective evidence related to Plaintiff’s left eye and mental 19 impairments. Plaintiff appears to incorporate his discussion of the objective evidence in the 20 context of his challenge to the ALJ’s analysis of the opinion evidence into this portion of his 21 brief. 22 a. Interpretation of Objective Evidence Relating to Plaintiff’s Left Eye 23 24 In the context of the opinion evidence, Plaintiff describes the objective evidence as 25 indicating the following relating to his left eye: (1) Plaintiff’s left eye was knocked out of its 26 socket when he was hit by a car at age two; (2) he underwent eye surgery, but the left eye 27 remained laterally deviated; (3) Plaintiff’s right eye visual acuity uncorrected is 20/40; (4) 28 Plaintiff’s left eye visual acuity uncorrected is 20/200; (5) Plaintiff’s right eye visual acuity 1 corrected is 20/30; (6) Plaintiff’s left eye visual acuity cannot be corrected; (7) Plaintiff’s left eye 2 visual field is constricted to 30 to 40 degrees; and (8) Plaintiff has left eye exotropia. See id. at 3 12. 4 Plaintiff appears to contend the ALJ’s “interpretation” of this evidence is flawed 5 because the ALJ substituted his own lay medical conclusions for those of medical professionals. 6 See ECF No. 17, pg. 13 (Plaintiff’s discussion of evidence relating to visual impairment). The 7 Court does not agree. First, in discussing Plaintiff’s left eye limitation, the ALJ accurately recited 8 the objective evidence outlined by Plaintiff. See CAR 19 (summary of objective findings). 9 Second, as discussed above in this opinion, the Court concludes that the ALJ’s analysis of 10 Plaintiff’s left eye impairment and resulting work-related limitations is sound. Specifically, 11 Plaintiff has failed to provide objective evidence of greater functional limitations than those 12 opined by Drs. Hasnain and Fabella. Third, the Court does not find that the ALJ substituted her 13 lay opinion for an opinion of a medical professional. To the contrary, the ALJ accepted the 14 interpretations of the evidence as expressed by Drs. Hasnain and Fabella. 15 b. Interpretation of Objective Evidence Relating to Plaintiff’s Mental Impairment 16 17 As to the objective evidence relating to Plaintiff’s mental impairment, Plaintiff 18 does not challenge the ALJ’s interpretation of such evidence. Rather, Plaintiff contends the ALJ 19 failed to account for a specific limitation opined by Dr. Izzi and that the ALJ failed to account for 20 a GAF score of 45 assessed by a treating source. See ECF No. 17, pgs. 14-16. For the reasons 21 discussed above, the Court finds no errors in either regard. Plaintiff has not otherwise explained 22 how the ALJ’s interpretation of the evidence is flawed. 23 2. Lack of Objective Evidence 24 In challenging the ALJ’s adverse credibility finding, Plaintiff argues in a single 25 sentence: “[A]n ALJ’s rejecting of a claimant’s subjective complaints will not survive judicial 26 review if such rejection is based only on lack of support in his medical records.” ECF No. 17, pg. 27 17 (emphasis added). Plaintiff does not specifically contend that the ALJ in this case did so, nor 28 can he. It is clear from the hearing decision that the ALJ’s credibility finding is based on 1 inconsistency with the objective evidence as well as inconsistency with Plaintiff’s daily activities 2 (discussed below). See CAR 19-20. Because the ALJ did not rely solely on inconsistency with 3 the objective evidence, the Court rejects this argument. 4 3. Reliance on Daily Activities 5 Plaintiff’s primary contention is that the ALJ improperly relied on daily activities 6 to find his statements and testimony not credible. See ECF No. 17, pg. 17-19. The Court does 7 not agree. Here, the ALJ noted Plaintiff lives alone, works part-time, manages his own finances, 8 gardens, does yard work, plays poker, and tends to his own personal needs. See CAR 19-20. 9 According to Plaintiff, the ALJ erred because the evidence shows that Plaintiff was a recluse who 10 rarely left home and he only worked part-time, which he found to be a struggle. Plaintiff does not 11 address his ability to manage finances, cook, garden, do yard work, and tend to personal needs on 12 his own. Further undermining Plaintiff’s credibility is evidence that Plaintiff was able to engage 13 in substantial gainful activity for many years as an adult despite claiming to be disabled as a result 14 of his left eye impairment caused by a childhood injury. 15 On the whole, the Court agrees with the ALJ that Plaintiff’s daily activities show 16 more functional capacity than alleged by Plaintiff and, as such, constitute substantial evidence 17 supporting an adverse credibility finding. 18 19 C. Lay Witness Evidence 20 Plaintiff argues the ALJ failed to adequately consider lay witness evidence offered 21 by his mother, Judith Wofford. See ECF No. 17, pg. 19. 22 In determining whether a claimant is disabled, an ALJ generally must consider lay 23 witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 24 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay 25 testimony as to a claimant's symptoms or how an impairment affects ability to work is competent 26 evidence . . . and therefore cannot be disregarded without comment.” See Nguyen v. Chater, 100 27 F.3d 1462, 1467 (9th Cir. 1996). Consequently, “[i]f the ALJ wishes to discount the testimony of 28 lay witnesses, he must give reasons that are germane to each witness.” Dodrill, 12 F.3d at 919. 1 When rejecting third party statements which are similar in nature to the statements of plaintiff, the 2 ALJ may cite the same reasons used by the ALJ in rejecting the plaintiff’s statement. See 3 Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (approving 4 rejection of a third-party family member’s testimony, which was similar to the claimant’s, for the 5 same reasons given for rejection of the claimant’s complaints). 6 Concerning lay witness evidence offered in this case, the ALJ stated: 7 Under the mandate of Social Security Ruling 06-03p, the undersigned has considered the third-party function reports completed by the claimant’s 8 mother, Judith Wofford, in May 2015. In her reports, Ms. Wofford indicated that the claimant is very anxious, angry, depressed, and 9 paranoid. She observed that the claimant experiences hallucinations, vision issues, and “grave” social disassociation. However, Ms. Wofford 10 further reported that despite these impairments, the claimant retains the ability to tend to his own personal needs, perform household chores, ride a 11 bike, use public transportation, shop for groceries, and attend his doctor appointments (Exhibits 6E, 8E). As such, the undersigned has considered 12 Ms. Wofford’s statements, but finds that they do not warrant a modification to the above-determined residual functional capacity in any 13 way. 14 CAR 22. 15 According to Plaintiff: 16 The ALJ found that the statement of Plaintiff’s mother, Judith Wofford, did not warrant a modification of the RFC finding “in any way” 17 (Tr. 22). This is error. 18 Mrs. Wofford’s statement describes an individual who is reclusive and isolated. Plaintiff spent no time with other people, did not socialize 19 and was estranged from his family (other than his parents) (Tr. 267-68). He left home only to go to doctors appointments and to the store (Tr. 267). 20 He handled stress very poorly and became agitated (Tr. 269). His activities consisted of taking a shower twice a day, assisting with yard work, doing 21 his laundry, cleaning his trailer and microwaving meals, but he needed reminding to do his chores (Tr. 264-65). He was unable to concentrate on 22 tasks, follow simple orders or balance a bank account (Tr. 266-67). He could pay attention for 10 minutes, followed written instructions poorly 23 and required a lengthy explanation to follow spoken instructions (Tr. 268). He handled changes in routine poorly (Tr. 269). 24 * * * 25 Although the ALJ did not explicitly reject Mrs. Wofford’s 26 statement, the ALJ’s description of her statement is inaccurate and incomplete (Tr. 22). See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 27 2009) (ALJ credited wife’s testimony as to claimant’s daily activities, but failed to accept or properly reject wife’s testimony that claimant’s 28 1 activities were limited). Further, the ALJ gave no reasons for rejecting Mrs. Wofford’s observations of Plaintiff’s impaired abilities to 2 concentrate, remember and deal with stress (Tr. 22). Mrs. Wofford’s statement cannot be so easily disposed of. See Dodrill, 12 F.3d at 918-19 3 (the testimony of witnesses who clearly saw claimant on a frequent basis cannot be easily disposed of). 4 Mrs. Wofford’s statement indicates Plaintiff could function only when he isolated himself at home and even then he had problems with 5 concentrating and remembering simple tasks, such as chores and appointments. The ALJ should not have given such short shrift to this 6 significant, probative evidence. The ALJ’s failure to adequately assess Mrs. Wofford’s statement is legal error and is yet another reason for 7 remanding this case. Tobeler, 749 F.3d at 832-33. 8 ECF No. 17, pgs. 19-20. 9 Plaintiff challenges the ALJ’s assessment, concluding that the ALJ failed to 10 “explicitly reject” Plaintiff’s mother’s statements. The Court disagrees. The ALJ found that Ms. 11 Wofford’s statements did not warrant an alteration of the residual functional capacity finding. 12 This, by any fair reading of the ALJ’s decision, constitutes a rejection of Ms. Wofford’s 13 testimony. Additionally, the Court finds that, in rejecting Ms. Wofford’s statements, the ALJ 14 gave reasons germane to the witness. Specifically, the ALJ cited the same reasons as cited for 15 rejecting Plaintiff’s own statements and testimony as not credible – largely functional daily 16 activities. The Court finds no error in the ALJ’s analysis of lay witness evidence. See Valentine, 17 574 F.3d at 694. 18 19 IV. CONCLUSION 20 Based on the foregoing, the undersigned recommends that: 21 1. Plaintiff’s motion for summary judgment, ECF No. 17, be denied; 22 2. Defendant’s cross-motion for summary judgment, ECF No. 18, be granted; 23 and 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 3. The Commissioner’s final decision be affirmed. 2 These findings and recommendations are submitted to the United States District 3 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 4 | after being served with these findings and recommendations, any party may file written 5 || objections with the court. Responses to objections shall be filed within 14 days after service of 6 | objections. Failure to file objections within the specified time may waive the right to appeal. See 7 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 9 || Dated: February 26, 2021 Sx