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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 MELINDA GARCIA, ) Case No.: 1:19-cv-01053-BAM 12 ) Plaintiff, ) ORDER REGARDING SOCIAL SECURITY 13 v. ) COMPLAINT ) 14 ANDREW M. SAUL, Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Melinda Garcia (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying her application for supplemental security 21 income under Title XVI of the Social Security Act. The matter is currently before the Court on the 22 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 23 McAuliffe.1 24 Having considered the briefing and record in this matter, the Court finds the decision of the 25 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole 26 27 1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including 28 entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Docs. 6, 8, 21.) 1 and based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to 2 deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff filed an application for supplemental security income on December 9, 2014. AR 173- 5 76.2 Plaintiff alleged that she became disabled on July 28, 2008, due to depression, anxiety, learning 6 disabilities, sleep deprivation, ADHD or OCD, gastric reflux, a suicide attempt, self-harm and anger 7 issues. AR 100, 188. Plaintiff’s application was denied initially and on reconsideration. AR 100-03, 8 109-13. Subsequently, Plaintiff requested a hearing before an ALJ. ALJ Timothy S. Snelling held a 9 hearing on April 11, 2018. AR 32-71. ALJ Snelling issued an order denying benefits on August 28, 10 2018. AR 12-26. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, 11 making the ALJ’s decision the Commissioner’s final decision. AR 1-5. This appeal followed. 12 Hearing Testimony 13 The ALJ held an initial hearing on April 11, 2018, in Fresno, California. Plaintiff appeared 14 with her attorney, Jonathan Pena. Kenneth Ferra, an impartial vocational expert, also appeared and 15 testified. AR 34-35. 16 Plaintiff testified that she was 22 years old. AR 38. She lives in a two-bedroom home with her 17 parents, two sisters and her nephew. She sleeps in a room with her mom and dad. Her sisters and 18 nephew sleep in the living room. AR 42-43. She currently is in college but did not know what year or 19 the number of credits earned. AR 44-45. 20 When asked about her impairments, Plaintiff confirmed her understanding that she has 21 depression, anxiety, a learning disability, ADHD, OCD and GERD, a gastrointestinal issue. She has 22 stomach problems from time to time, but she does not take medication for it. AR 39. She has been 23 diagnosed with a bipolar disorder not otherwise specified with a psychotic disorder. She has had 24 hallucinations, but they have lessened. She has a generalized anxiety disorder and a history of 25 marijuana dependence in remission. She still smokes marijuana weekly for medicinal purposes. She 26 also is taking psychotropic drugs. When she gets medications from her psychiatrist, she stops taking 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 marijuana until she has tested the medication. They are trying different medications to find the right 2 cocktail. She does not have a marijuana card. AR 39-42. Plaintiff also confirmed she has a panic 3 disorder without agoraphobia, possible post-traumatic stress disorder and a borderline personality 4 disorder. AR 44. 5 In response to questions from her attorney, Plaintiff testified that she was recently hospitalized. 6 It was considered a 5150, but it was the only time that it had happened. She has had other incidents of 7 self-harm, which happen about every two months. When she has suicidal thoughts, she can reach out 8 and talk to a professional. A typical episode will last the whole day and she will stay in her 9 boyfriend’s house when he goes out of town. She cannot be alone and debates whether to call the 10 suicide hotline. In terms of harm to others, she usually has thoughts of hurting others every day. She 11 is a very angry person. She has physically attacked someone, but she has never spent time in jail or 12 been prosecuted in court. AR 45-49. 13 Plaintiff testified that she and her boyfriend had been together for two years. He lives in a 14 house on the back his parents’ property. She goes over there and spends time in an isolated situation 15 despite knowing that she does not do well when isolated because she does not have privacy at her 16 house. She does not feel safe in her house. She called the police on her family when she was younger, 17 but nobody responded, and she has never decided to call since then. Plaintiff clarified that going to 18 her boyfriend’s house is intentional as sort of her outlet. AR 49-51. Plaintiff further clarified that she 19 constantly fights with her father, physically and verbally, and gets into arguments with her sisters. Her 20 nephew occasionally will attack her, punching her hard. She defends herself, but usually attacks her 21 father. AR 51-53. She also gets into verbal arguments with her mother. AR 54. 22 Plaintiff testified that she is getting therapy to help with anger outbursts. She feels like it is 23 helpful along with the medication, but just not when she is at home. It is triggered by both internal 24 and external forces, such as her surroundings. AR 53-54. She would not have the anger issues if she 25 was not in the situation that she is with her family. She has had periods of time when she did not have 26 issues with her family, such as when out of town visiting relatives in Bakersfield. She would have 27 altercations with relatives in Bakersfield, but not out in public. AR 55-56. 28 1 Plaintiff confirmed that she has crying spells, but she does not feel better after she cries. She 2 does not get any relief from the release of emotion. When she gets angry, she is not yelling, cussing, 3 belligerent or bellicose. She tends to walk away because she does not like conflict, but people 4 provoke her and don’t let her leave. AR 56-57. 5 When asked about school, Plaintiff reported that she has had instances at school where she has 6 wanted to lash out at somebody that was not her relative. She has gone home sad, crying or depressed 7 because of something that occurred at school. Her grades at school are Bs, but lately they are 8 becoming a C, barely passing. She takes smaller classes. She only asks questions when the class ends 9 so that she can see the teacher one-on-one. She does not ask questions during class because she does 10 not like to speak out in front of people. She has rarely left or missed class because she was upset or 11 depressed. However, she dropped two classes because she could not handle it all. She is only in one 12 class, and usually takes one or two classes in a semester. AR 57-59. 13 When asked about sleeping, Plaintiff testified that she takes medication to help her sleep. She 14 does not have any trouble sleeping so long as she has the medication. She takes naps every day. She 15 sleeps more during the day. AR 59-60. 16 On a typical day, she will leave her house at 8:00 a.m. to go to the college and will get home as 17 soon as it is fully closed, around 11:00 a.m. She walks to school because she lives across the street. 18 The only friend she has at school is her boyfriend. She gets Bs and Cs in school and is taking general 19 education classes. She is hoping for a two-year degree and then to transfer. AR 60-63. She does not 20 miss much school and has perfect attendance. AR 68. 21 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The ALJ asked the 22 VE hypotheticals. For the first hypothetical, the ALJ asked the VE to consider an individual limited to 23 medium work, who could lift and carry fifty/twenty-five, stand and walk and sit six of eight each, 24 could perform all postural activities frequently, including climbing ladders, ropes or scaffolding, 25 ramps and stairs, crouching, crawling, kneeling and stooping, but the individual could not maintain 26 attention and concentration or persistence and pace for complex and detailed work-related job 27 assignments or cope with the stress normally associated with semi-skilled or skilled employment or 28 make judgments on complex and detailed work-related job assignments. The individual also could 1 have no more than occasional face-to-face interaction with the general public, with co-workers and 2 with supervisors. AR 66-67. Additionally, the ALJ asked the VE to assume an individual between 3 late teens and early twenties—22—with a high school education, current city college, and no past 4 work. The VE testified that such an individual could perform medium jobs in the national economy, 5 such as cleaner, harvest worker, and hand packager. AR 67-68. 6 For the second hypothetical, Plaintiff’s counsel asked the VE to assume that the individual 7 from the first hypothetical would be off-task 20 percent of the workday. The VE testified that there 8 would be no jobs for that individual. AR 68-69. 9 For the next hypothetical, Plaintiff’s counsel asked the VE to assume an individual who, 10 because of symptoms would miss work one day a month every month. The VE testified that that this 11 hypothetical individual could not perform any jobs. AR 69. 12 Medical Record 13 The relevant medical record was reviewed by the Court and will be referenced below as 14 necessary to this Court’s decision. 15 The ALJ’s Decision 16 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 17 determined that Plaintiff was not disabled under the Social Security Act. AR 12-26. Specifically, the 18 ALJ found that Plaintiff had not engaged in substantial gainful activity since October 14, 2014, the 19 application date. AR 17. The ALJ identified gastroesophageal reflux disease, depression with 20 psychotic features not otherwise specified, anxiety, learning disorder, attention deficit hyperactivity 21 disorder, obsessive compulsive disorder, bipolar disorder, psychotic disorder, post-traumatic stress 22 disorder, panic disorder without agoraphobia and sacroiliitis as severe impairments. AR 17-18. The 23 ALJ determined that the severity of Plaintiff’s impairments did not meet or equal any of the listed 24 impairments. AR 18-19. 25 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 26 functional capacity (“RFC”) to perform a wide range of medium work. She could lift and carry 50 27 pounds occasionally and 25 pounds frequently, could stand, walk and sit six of eight hours each with 28 normal breaks, could frequently perform all postural movements like climbing ladders, ropes, 1 scaffolding, ramps and stairs, stooping, crouching, crawling and kneeling. She could not maintain 2 attention, concentration, persistence, or pace for complex and detail-related job assignments. She also 3 could not cope with the stress of semi-skilled or skilled employment, could not make judgments on 4 complex and detailed job-related assignments and could have no more than occasional face-to-face 5 interaction with the general public, co-workers, and supervisors. AR 20-25. With this RFC, the ALJ 6 found that Plaintiff could perform jobs in the national economy, such as cleaner, harvest worker and 7 hand packager. The ALJ therefore concluded that Plaintiff had not been under a disability since 8 October 14, 2014, the date the application was filed. AR 25-26. 9 SCOPE OF REVIEW 10 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 11 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 12 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 13 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 14 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 15 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 17 considered, weighing both the evidence that supports and the evidence that detracts from the 18 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 19 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 20 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 21 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 22 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 23 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 24 REVIEW 25 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 26 substantial gainful activity due to a medically determinable physical or mental impairment which has 27 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 28 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 1 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 2 her age, education, and work experience, engage in any other kind of substantial gainful work which 3 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 4 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 5 1990). 6 DISCUSSION3 7 Plaintiff contends that the ALJ erred by (1) failing to address certain disabling limitations 8 identified by the consultative psychological examiner, Elke M. Kurpiers, Ph.D.; (2) relying on an RFC 9 that was not supported by substantial evidence of record; and (3) failing to identify and obtain a 10 reasonable explanation for conflicts between VE testimony and the requirements of the Dictionary of 11 Occupational Titles.(“DOT”). 12 1. Consultative Examiner Opinion 13 Plaintiff first argues that the ALJ erred by failing to address certain limitations identified by the 14 consultative psychological examiner, Dr. Kurpiers, which are incompatible with an ability to sustain 15 full-time work activity. (Doc. 18 at 8-11.) 16 On April 11, 2015, Dr. Kurpiers completed a consultative psychological evaluation of Plaintiff. 17 AR 326-32. On mental status examination, Plaintiff had no evidence of physical impairments, her eye 18 contact was appropriate, and she was cooperative. Dr. Kurpiers identified some inconsistencies in 19 Plaintiff’s report and Plaintiff “was felt to exaggerate problems at times.” AR 328. Her psychomotor 20 behavior was within normal limits and she presented as calm and pleasant. Her affect was bland, and 21 her mood was normal, without evidence of clinical anxiety or depression. She was coherent and in 22 touch with reality with no evidence of psychosis. She reported hearing voices and very rare weird 23 visions. She was alert and fully oriented, her speech was clear and fluent and there was no evidence of 24 cognitive defects. Her intellectual abilities were grossly estimated be within low normal to normal 25 limits. AR 328. She was reserved, calm and polite with no evidence of social withdrawal, impulsivity 26 27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to 28 be construed that the Court did not consider the argument or brief. 1 or hostility. AR 329. On psychological testing, Plaintiff scored around the Low Average/Borderline 2 range on the WAIS-4 for intellectual abilities and the WMS-4 for memory and learning. AR 329-31. 3 Dr. Kurpiers diagnosed Plaintiff with a provisional depressive disorder not otherwise specified, 4 cannabis abuse and borderline personality disorder. AR 331. Dr Kurpiers suggested that Plaintiff 5 was not capable of handling funds in her own best interests. When asked to provide statements of 6 Plaintiff’s functional limitations, Dr. Kurpiers stated: 7 A. The claimant does not appear to have any medical or physical restrictions. She has restrictions relating to personality disturbance, including interpersonal dysfunction and 8 anger. B. She appears to have severe difficulties in maintaining social functioning. 9 C. She scored around the low average/borderline range on measures of attention and pace. 10 Her persistence was satisfactory in this exam. She graduated from high school at age 17 but reports dropping out of college. 11 D. Repeated episodes of emotional deterioration in work-like settings are anticipated due to interpersonal difficulties, mood disturbance and negative attitude toward working. 12 13 AR 332. Dr. Kurpiers also provided statements of limitations in the following areas: 14 1. The claimant is capable of understanding, carrying out and remembering simple instructions. She had no difficulty understanding and following instructions in this 15 exam. 16 2. Her ability to respond appropriately to coworkers, supervisors and the public appears impaired. 17 3. She has the ability to respond appropriately to usual work situations. 4. Her ability to deal with changes in a routine work setting appears mildly impaired. 18 19 AR 332. 20 In formulating Plaintiff’s RFC, the ALJ assigned “great weight” to Dr. Kurpiers’ opinion, 21 stating: 22 The claimant psychological consultative examiner opined the claimant was capable of understanding, remembering, and carrying out simple instructions, had an impaired ability 23 to interact with others, could respond appropriately to usual work situations and deal with changes in a routine work setting (Exhibit 3F/7). The undersigned gives this opinion great 24 weight, as it is supported by and consistent with the medical evidence of record. The 25 claimant’s normal thought process supports the claimant would be capable of simple instructions Exhibits 2F/19; 5F/11, 15, 22; 6F2; 9F/3; 12F/1, 5, 9, 12). The claimant’s 26 noted isolation supports the claimant’s ability to interact with other is impaired (Exhibit 6F/20). The claimant normal insight and judgment support the claimant could respond 27 appropriately to normal work situations and deal with changes in a routine work setting 28 Exhibit 2F/19; 5F/11, 15, 22; 6F/2; 9F/3; 12F/1, 5, 9, 12). 1 AR 23-24. 2 Plaintiff claims that ALJ erred by failing to address (and include in the RFC) Dr. Kurpiers’ 3 conclusions that Plaintiff “appears to have severe difficulties in maintaining social functioning;” 4 “repeated episodes of emotional deterioration in work-like settings are anticipated;” “her ability to 5 respond appropriately to coworkers, supervisors and the public appears impaired;” and she is not 6 capable of handling funds in her best interest. AR 332. 7 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record.” 8 Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). “[A]n RFC that fails to take into 9 account a claimant’s limitations is defective.” Valentine v. Comm'r. of Soc. Sec. Admin., 574 F.3d 685, 10 690 (9th Cir. 2009). “Where an ALJ accords substantial or great weight to a physician’s opinion, he 11 must either incorporate their findings into the RFC or offer an explanation for why he chose not to 12 accept them.” Sahyoun v. Saul, No. 2:18-CV-576-EFB, 2020 WL 1492661, at *3 (E.D. Cal. Mar. 27, 13 2020), citing Martin v. Comm’r of Soc. Sec. Admin., 472 Fed.App’x 580 (9th Cir. 2012) (unpublished) 14 (“The administrative law judge (ALJ) erred when formulating Martin’s residual functional capacity 15 (RFC) because the RFC neither incorporated Dr. Steiner’s opinion of Martin’s work limitations nor 16 gave specific and legitimate reasons for rejecting it.”) and Neufeld v. Berryhill, 2018 WL 4739699, at 17 *6, (C.D. Cal. Sept. 30, 2018) (“Having afforded ‘great weight’ to the opinions of Dr. Bartell and Dr. 18 Loomis, the ALJ was bound to either incorporate their findings as to Plaintiff’s limitations or explain 19 why she decided not to accept them.”); see also Bain v. Astrue, 319 Fed.App’x 543, 545-46 (9th Cir. 20 2009) (holding ALJ erred in not including consultative examining psychologist’s moderate limitations 21 in the RFC, despite specifically crediting these limitations in the opinion); Flores v. Saul, No. 1:18-cv- 22 01523-SKO, 2020 WL 509098, at *5 (E.D. Cal. Jan. 31, 2020) (finding ALJ erred by assigning great 23 weight to consultative psychologist’s opinion, but failing to provide specific and legitimate reasons for 24 rejecting significant portions of the opinion); Wascovich v. Saul, No. 2:18-cv-659-EFB, 2019 WL 25 4572084, at *3-*5 (E.D. Cal. Sept. 20, 2019) (finding ALJ erred by assigning substantial weight to 26 consulting examiner’s opinion that the plaintiff had a mild to moderate impairment in her capacity to 27 maintain regular attendance, but failed to account for the limitation in the RFC). 28 1 Contrary to Plaintiff’s argument, the ALJ appropriately accounted for Dr. Kurpiers’ limitations 2 in the RFC finding. The ALJ’s RFC determination—which precluded Plaintiff from performing 3 complex and detailed job-related assignments, semi-skilled or skilled employment and having no more 4 than occasional face-to-face interaction with the general public, co-workers, and supervisors-- 5 adequately addressed Dr. Kurpiers’ medical opinion that Plaintiff was unable to handle funds in her 6 own interest and that her ability to respond appropriately to coworkers, supervisors and the public 7 appeared “impaired.” AR 20, 332. “[T]he ALJ is responsible for translating and incorporating clinical 8 findings into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 9 2015); Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (finding an ALJ may translate 10 assessed mental limitations into “the only concrete restrictions available to him,” which does not 11 constitute a rejection of that opinion). 12 With regard to Dr. Kurpiers’ statements of severe difficulties in maintaining social functioning 13 and repeated episodes of emotional deterioration in work-like settings (AR 332), the Commissioner 14 correctly notes that Dr. Kurpiers’ comments on these limitations responded to a question about the 15 four functional domains (AR 333 “Describe the claimant’s functional limitations specifying: A. Any 16 restrictions of daily activities. B. Difficulties in maintaining social functioning. C. Difficulties of 17 concentration, persistence and pace. D. Repeated episodes of emotional deterioration in work-like 18 situations.”). (Doc. 19 at 9.) The Commissioner argues that at the time of Dr. Kurpiers’ examination 19 in 2015, the agency used those four domains when evaluating mental impairments, but in 2017, the 20 agency changed those domains. Compare 20 C.F.R. § 416.920a(c)(3) (2015) with 20 C.F.R. § 21 416.920a(c)(3) (2017). The Commissioner contends that the ALJ used the new domains, which did not 22 include episodes of decompensation, and, thus, “Dr. Kurpiers’s assessment about emotional 23 deterioration or decompensation was obsolete by the time of the ALJ’s decision, and the ALJ 24 reasonably did not include her response to that obsolete question in his 2018 decision.” (Doc. 19 at 9.) 25 As suggested by the Commissioner, the ALJ used the following broad areas of functioning in 26 evaluating Plaintiff’s mental impairments: “understanding, remembering, or applying information; 27 interacting with others; concentrating persisting, or maintaining pace; or adapting or managing 28 themselves.” AR 18. However, even if applicable, the ALJ would not have committed error by 1 failing to include episodes of decompensation in the RFC. As courts have explained, the issue of 2 whether Plaintiff suffered episodes of decompensation related to the ALJ’s step two and step three 3 determinations, not the RFC. Section 416.920a “episodes of decompensation” were part of the 4 psychiatric review technique considered in rating the severity of mental impairments at steps two and 5 three of the sequential evaluation process, not the RFC assessment. See, e.g., Lyons v. Colvin, No. CV 6 14-00605-DMG (KK), 2015 WL 9701184, at *28 (C.D. Cal. June 11, 2015), report and 7 recommendation adopted, No. CV 14-00605-DMG (KK), 2016 WL 164240 (C.D. Cal. Jan. 11, 2016) 8 (“whether Plaintiff suffered episodes of decompensation related not to the ALJ’s RFC determination, 9 but rather to the ALJ’s Step Two determination as to whether Plaintiff’s mental impairments were 10 severe, as well as to the Step Three analysis;” concluding ALJ did not commit error by not including 11 episodes of decompensation in her determination of plaintiff’s RFC), (citing 20 C.F.R § 416.920a; 12 SSR 96-8p; 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00C); see also Coleman v. Astrue, No. 07–CV– 13 1722–JM (JMA), 2009 WL 861864, at *11 (S.D. Cal. Mar. 26, 2009) (“that Plaintiff would have one 14 or two periods of decompensation related not to the RFC determination at steps four and five of the 15 sequential evaluation process, but rather to the determination at step two whether Plaintiff’s mental 16 impairments were severe (as well as to the step three analysis);” concluding that ALJ did not commit 17 error by not including the one or two episodes of decompensation in his determination of plaintiff’s 18 RFC); Langford v. Astrue, No. CIV S–07–0366 EFB, 2008 WL 2073951, at *3 (E.D. Cal. May 14, 19 2008) (finding that the ALJ was under no obligation to incorporate the findings from the psychiatric 20 review technique in his ultimate assessment of plaintiff's RFC at steps four and five); Lopez v. Astrue, 21 No. C 07–2649 PJH, 2008 WL 3539623, at *7 (N.D. Cal. Aug. 12, 2008) (finding ALJ was under no 22 obligation to include findings from a psychiatric review technique in his ultimate assessment of 23 claimant’s RFC at step four because such limitations are relevant instead at steps two and three). 24 Thus, the ALJ would not have been required to incorporate Dr. Kurpiers’ assessment regarding 25 episodes of decompensation in the RFC finding. 26 Further, as to the assessment of severe difficulties in social functioning, the ALJ implicitly 27 rejected Dr. Kurpiers’ opinion, finding that Plaintiff had only moderate limitations in interacting with 28 others based on Plaintiff’s being cooperative during all examinations. AR 18-19. An ALJ may 1 discount a medical opinion that is inadequately supported by clinical findings. See Britton v. Colvin, 2 787 F3d 1011, 1012 (9th Cir. 2015); see also Burrell v Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) 3 (“[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by 4 the record as a whole or by objective medical findings.”); Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 5 1995). Here, the record relied upon by the ALJ reflects that on mental status examinations Plaintiff 6 was noted to be cooperative. AR 304, 349, 353, 360, 427, 438, 442, 449. On mental status 7 examination, Dr. Kurpiers also noted that Plaintiff’s presented as calm, pleasant, reserved, and polite, 8 with nothing unusual about her behavior or no evidence of social withdrawal, impulsivity or hostility. 9 AR 328, 330. 10 2. Mental RFC 11 Plaintiff additionally contends that the substantial evidence of record does not support the 12 ALJ’s RFC limiting Plaintiff to no more than occasional face-to-face interaction with the general 13 public, co-workers and supervisors. (Doc. 18 at 11-15.) Plaintiff first argues that this finding is not 14 supported because the ALJ determined at step two of the sequential evaluation that she suffered from 15 numerous “severe” mental impairment and there is extensive evidence that she suffers from severe 16 psychological impairments. (Id. at 12-13.) However, “[t]he mere existence of an impairment is 17 insufficient proof of a disability.” Matthews v. Shalala, 10F.3d 678, 680 (9th Cir. 1993). 18 Second, Plaintiff appears to argue that the RFC limitation to no more than occasional 19 interaction is not supported because she was involuntarily psychologically hospitalized in 2017. (Doc. 20 18 at 13.) Plaintiff’s argument relies on speculation that her hospitalization precludes her from 21 occasional interaction with the general public, co-workers and supervisors. This is not sufficient. 22 Third, Plaintiff argues that the limitation to occasional interaction is supported by her “credible 23 testimonial symptomology evidence of record, …which was harmfully erroneously rejected by the 24 ALJ absent the requisite ‘clear and convincing’ reasons.” (Doc. 18 at 13.) In deciding whether to 25 admit a claimant’s subjective complaints, the ALJ must engage in a two-step analysis. Garrison v. 26 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 27 1196 (9th Cir. 2004). First, the claimant must produce objective medical evidence of her impairment 28 that could reasonably be expected to produce some degree of the symptom or pain alleged. Garrison, 1 759 F.3d at 1014. If the claimant satisfies the first step and there is no evidence of malingering, the 2 ALJ may reject the claimant’s testimony regarding the severity of her symptoms only by offering 3 specific, clear and convincing reasons for doing so. Id. at 1015. 4 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 5 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 6 persistence and limiting effects of those symptoms. AR 20-21. The ALJ was therefore required to 7 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 8 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting 9 Plaintiff’s subjective complaints. First, the ALJ considered that Plaintiff’s statements were not 10 entirely consistent with the medical record. AR 21. Although lack of supporting medical evidence 11 cannot form the sole basis for discounting testimony, it is a factor that the ALJ can consider. See 12 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). In this case, the ALJ considered record 13 evidence that undermined Plaintiff’s complaints of totally disabling symptoms from her mental 14 impairments. For instance, the ALJ considered that Plaintiff was treated in 2014 for her mental 15 impairments before the alleged onset date, and while she had an anxious and irritable mood, her 16 mental status examination showed normal appearance, memory, judgment, insight, attitude, attention 17 and thought process. AR 21, 304. When Plaintiff presented for a psychological consultative 18 examination in April 2015, her mental status examination showed normal grooming, normal mood, 19 normal thought process, full orientation, and she was noted to be reserved, calm and polite. AR 21, 20 328, 330. The ALJ indicated that Plaintiff’s remaining mental status examinations in 2015 were 21 normal except with some notations of hallucinations and depressed or anxious mood. AR 21, 349, 22 353, 360; 363; 446. The ALJ further identified that Plaintiff’s mental examinations through 2016 23 were normal, except for noting an anxious mood. AR 22, 442, 444. The ALJ acknowledged 24 Plaintiff’s hospitalization in September 2017, but then noted that upon discharge, Plaintiff was 25 described as stable with no suicidal ideations and no mood disturbances. AR 22, 434, 476. 26 Thereafter, in October 2017 and in 2018, her mental status examinations were generally normal except 27 for notations of an anxious mood. AR 22, 438, 440. 28 1 Second, the ALJ considered that Plaintiff’s activities of daily living were not consistent with 2 disabling levels of mental functions, including her ability to do a variety of household chores, go to the 3 gym, walk her dogs and take care of herself. AR 22, 400-01. An ALJ may properly discount a 4 claimant’s subjective complaints when the daily activities demonstrate an inconsistency between a 5 claimant’s testimony and the claimant’s reported activities. Burrell v. Colvin, 775 F.3d 1133, 1137 6 (9th Cir. 2014); Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (engaging in daily activities 7 that are incompatible with the severity of symptoms alleged can support an ALJ’s determination to 8 discount a claimant’s subjective testimony). The ALJ reasonably determined that Plaintiff engaged in 9 a somewhat normal level of daily activity and interaction and that “[s]ome of the physical and mental 10 abilities and social interactions required in order to perform these activities are the same as those 11 necessary for obtaining and maintaining employment.” AR 22. 12 Third, and finally, the ALJ considered that medications helped to relieve Plaintiff’s symptoms. 13 AR 22-23. “Impairments that can be controlled effectively with medication are not disabling.” Warre 14 v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 15 3. Step Five 16 Plaintiff first argues that the ALJ erred at step five by failing to identify or resolve the conflict 17 between the RFC limiting her to no more than occasional face-to-face interaction with the general 18 public, co-workers, and supervisors and the Dictionary of Occupational Titles (“DOT”) description of 19 the occupations of cleaner (DOT #381.687-018), harvest worker (DOT #403.687-018), and hand 20 packager (DOT #920.587-018). 21 An ALJ may not rely on a vocational expert’s testimony regarding the requirements of a 22 particular job without first inquiring whether the testimony conflicts with the DOT, and if so, why it 23 conflicts. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing Social Security Ruling 24 00-4p). However, Plaintiff admits that the DOT “is silent on the issues of either the amount 25 (percentage of time) or the type (i.e., face-to-face) interaction is required to perform a specific job.” 26 (Doc. 18 at 17). There is no apparent conflict between VE testimony and the DOT on an issue that the 27 DOT does not address. See Dewey v. Colvin, 650 Fed. App’x. 512, 514 (9th Cir. 2016); Pena Martinez 28 1 v. Saul, No. CV 18-06155-AS, 2019 WL 3818205, at *13 (C.D. Cal. Aug. 14, 2019) (finding no 2 conflict between the VE’s testimony and the DOT where DOT silent on issue).4 3 Plaintiff additionally argues that the RFC limitation to work that requires no judgments on 4 complex and detailed job-related assignments and no complex or detail-related job assignments 5 preclude her from performing two of the three jobs identified by the VE—hand packager and cleaner-- 6 because they have Level 2 Reasoning requirements. (Doc. 18 at 20-21.) Even if the ALJ erred in 7 finding that Plaintiff could perform jobs requiring Level 2 Reasoning, any such error is harmless 8 because the ALJ found that Plaintiff could perform the occupation of harvest worker, which requires 9 only Level 1 Reasoning. AR 25; Harvest Worker, Fruit, DICOT 403.687-018, 1991 WL 673307. The 10 VE testified that there were 140,000 harvest worker jobs in the national economy. AR 25, 68. This is 11 a sufficient number of jobs to render Plaintiff not disabled, even if the other jobs of cleaner and hand 12 packager were not available. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 n.7 (9th Cir. 2017) 13 (observing that 2,500 jobs in California, or 25,000 nationwide, constitute a significant amount of work 14 in the regional and national economies); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 15 2014) (finding that 25,000 jobs represents a significant number of jobs in several regions of the 16 country). 17 18 CONCLUSION 19 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 20 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 21 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 22 23 24 4 Moreover, for each of the identified jobs, the DOT states: “People: 8 – Taking Instructions- Helping, N-Not Significant.” See Cleaner, Industrial, DICOT 381.687-018, 1991 WL 673258 (“); 25 Harvest Worker, Fruit, DICOT 403.687-018, 1991 WL 673307 (“People: 8 – Taking Instructions- 26 Helping, N-Not Significant”); Packager, Hand, DICOT 920.587-018, 1991 WL 687916) (“People: 8 – Taking Instructions-Helping, N-Not Significant”). There is no apparent conflict between this 27 description and a limitation to occasional face-to-face interaction with the general public, co-workers and supervisors. 28 1 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 2 Commissioner of Social Security, and against Plaintiff Melinda Garcia. 3 4 IT IS SO ORDERED. 5 Dated: March 19, 2021 /s/ Barbara A. McAuliffe _ 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28