(SS)Kaur v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MANINDER KAUR, Case No. 1:22-cv-00697-JLT-CDB (SS) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT; GRANT DEFENDANT’S CROSS-MOTION FOR 14 KILOLO KIJAKAZI, Acting SUMMARY JUDGMENT Commissioner of Social Security, 15 (Docs. 17, 23) Defendant. 16 17 18 Plaintiff Maninder Kaur seeks judicial review of a final decision of the Commissioner of 19 Social Security (“Commissioner” or “Defendant”) denying her application for disability insurance 20 benefits under the Social Security Act. (Doc. 1). The matter is currently before the Court on the 21 parties’ briefs, which were submitted without oral argument. (Docs. 17, 23). Upon review of the 22 Administrative Record (AR) and the parties’ briefs, the Court will recommend that Plaintiff’s 23 Motion for Summary Judgment be denied and the Commissioner’s Cross-Motion for Summary 24 Judgment be granted. 25 BACKGROUND 26 On November 13, 2019, Plaintiff protectively filed a Title II application for Social 27 Security Disability Insurance (SSDI) which alleged disability beginning January 28, 2019. (AR 13, 205-208). Plaintiff’s claim was initially denied on September 16, 2020 (AR 93-97), and 1 again upon reconsideration on March 13, 2021. (AR 105-107). Plaintiff filed a request for 2 hearing before an Administrative Law Judge (ALJ) on April 1, 2021. (AR 108-109). The ALJ 3 held the hearing on August 17, 2021, and Plaintiff appeared and testified. (AR 29-46). 4 The ALJ issued an unfavorable decision on August 27, 2021. (AR 10-28). After 5 reviewing the evidence, the ALJ considered Plaintiff’s claims using the five-step sequential 6 evaluation required by 20 C.F.R § 404.1520(a)(4). At step one, the ALJ found that Plaintiff had 7 not engaged in substantial gainful activity since the alleged onset date. At step two, the ALJ 8 found that Plaintiff had osteoarthritis of the right knee, a severe impairment. (AR 15). While 9 finding that Plaintiff had medically determinable impairments (MDI) of obesity, diabetes, 10 hypertension, anxiety and depression, the ALJ concluded these were not “severe” impairments. 11 (AR 16-18). 12 The ALJ’s findings concerning Plaintiff’s anxiety and depression are particularly relevant 13 for the appeal at issue. The ALJ noted that Plaintiff presented symptoms of anxiety and 14 depression following the death of her daughter and received treatment for her depression through 15 her primary care provider (PCP), Dr. Pannu. (AR 16, 399-414). The ALJ noted that at the time 16 of the psychological consultative examination (provided by Dr. Livesay in August 2020), Plaintiff 17 reported she suffered from and was taking medication for depression. In addition, Plaintiff 18 reported symptoms of crying and lack of motivation. (AR 386). 19 The ALJ also noted that following the psychological consultative examination, Plaintiff 20 did not seek any additional or specialized mental health treatment. Dr. Pannu’s treatment notes, 21 which memorialized treatment some months after Plaintiff’s psychological consultative 22 examination, reflect that Plaintiff denied anxiety and depression. (AR 400, 403, 410, 416, 436). 23 Dr. Pannu’s notes still list major depressive disorder in Plaintiff’s treatment list, but also indicates 24 that Plaintiff was not taking any medications for her depression. (AR 400, 403, 406, 411, 416, 25 436). 26 The ALJ ultimately determined that Plaintiff’s depression and anxiety medically 27 determinable impairments (MDIs), considered “singly and in combination,” do not cause more 1 not severe. (AR 17). The ALJ reached this determination by considering the four broad 2 functional areas of mental functioning listed in the “Paragraph B” criteria.1 3 The first functional area is understanding, remembering, or applying information. The 4 ALJ found that Plaintiff has a mild limitation. He supported his finding by referring to function 5 reports where Plaintiff reported difficulty with memory but did not indicate difficulty with 6 understanding or following instructions. (AR 273-287, 296-304, 305-313). The ALJ further 7 relied on Plaintiff’s demonstration during the August 2020 consultative psychological exam of 8 low-average range intelligence. (AR 386-392). 9 The next functional area is interacting with others. The ALJ found that Plaintiff has no 10 limitation. (AR 17). The ALJ supported this determination by citing to the function reports, the 11 testimony from Plaintiff’s daughter in law and Plaintiff’s testimony during the hearing where she 12 indicated that she maintains relationships with family members. 13 The third functional area is concentrating, persisting, or maintaining pace. The ALJ found 14 that Plaintiff had a mild limitation in this functional area. The ALJ cited to Plaintiff’s 15 consultative psychological examination, which indicates that Plaintiff was able to work slowly 16 but persistently at a steady pace. (AR 388). 17 The fourth functional area is adapting or managing oneself. The ALJ found that Plaintiff 18 had no limitation in this area. The ALJ noted that Plaintiff lives independently with her family 19 and helps with the care of her grandchildren. The ALJ further found that Plaintiff can obtain 20 appropriate medical treatment as needed. (AR 17). 21 1 The “paragraph B criteria” evaluates mental impairments in the context of four broad areas of 22 functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. § Pt. 404, 23 Subpt. P, App. 1. The severity of the limitation a claimant has in each of the four areas of functioning is identified as either “no limitation,” “mild,” “moderate,” “marked,” or “extreme.” Id. To satisfy the 24 paragraph B criteria, a claimant must have an “extreme” limitation in at least one of the areas of mental functioning, or a “marked” limitation in at least two of the areas of mental functioning. Id. An “extreme” 25 limitation is the inability to function independently, appropriately, or effectively, and on a sustained 26 basis. Id. A “marked” limitation is a seriously limited ability to function independently, appropriately, or effectively, and on a sustained basis. Id. A “moderate” degree of mental limitation means that functioning 27 in this area independently, appropriately, effectively, and on a sustained basis is “fair.” Id. And a “mild” degree of mental limitation means that functioning in this area independently, appropriately, effectively, and on a sustained basis is “slightly limited.” Id. See, Carlos v. Comm’r of Soc. Sec., 1:21-cv-00517-SAB, 1 Since none of Plaintiff’s medically determinable mental impairments caused more than 2 mild limitations in any of the paragraph B functional areas, the ALJ found that Plaintiff’s anxiety 3 and depression impairments are non-severe. 4 At step three, the ALJ found that Plaintiff’s severe impairments did not meet or equal any 5 of the per se disabling impairments listed in 20 C.F.R. Pt. 404, Subptn P, App. 1. The ALJ 6 concluded that Plaintiff was able to perform a reduced range of medium work with additional 7 postural limitations. (AR 19). 8 At step four, the ALJ determined that Plaintiff could perform her past relevant work 9 (PRW) as a packaging line attendant. (AR 23). At step five, the ALJ determined that Plaintiff 10 could perform “other work” that exists in significant numbers in the national economy like linen 11 room supply worker, and laundry worker. (AR 24). The ALJ made a finding of “non-disability” 12 at steps four and five. 13 Plaintiff filed a request for review, which was denied by the Appeals Council on April 5, 14 2022. (AR 1-6). After exhausting her administrative remedies, Plaintiff brough the instant action, 15 and seeks judicial review pursuant to 42 U.S.C. § 405(g). 16 STANDARD OF REVIEW 17 A district court’s review of a final decision of the Commissioner of Social Security is 18 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 19 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 20 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 21 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 22 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 23 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 24 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 25 consider the entire record as a whole rather than searching for supporting evidence in isolation. 26 Id. 27 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 1 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 3 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 4 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 6 U.S. 396, 409-10 (2009). 7 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 8 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 9 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 10 activity by reason of any medically determinable physical or mental impairment which can be 11 expected to result in death or which has lasted or can be expected to last for a continuous period 12 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 13 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of substantial 15 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 16 The Commissioner has established a five-step sequential analysis to determine whether a 17 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 18 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 19 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 20 claimant is not disabled. 20 C.F.R. § 416.920(b). 21 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 22 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 23 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 24 impairments which significantly limits [his or her] physical or mental ability to do basic work 25 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 26 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 27 claimant is not disabled. Id. 1 recognized by the Commissioner to be so severe as to preclude a person from engaging in 2 substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more 3 severe than one of the enumerated impairments, the Commissioner must find the claimant 4 disabled and award benefits. 20 C.F.R. § 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the severity of the 6 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 7 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 8 ability to perform physical and mental work activities on a sustained basis despite his or her 9 limitations (20 C.F.R. § 416.945(a)(1)) is relevant to both the fourth and fifth steps of the 10 analysis. 11 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 12 claimant is capable of performing work that he or she has performed in the past (past relevant 13 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 14 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 15 the claimant is incapable of performing such work, the analysis proceeds to step five. 16 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is 17 capable of performing other work in the national economy. 20 C.F.R. § 416.920(a)(4)(v). In 18 making this determination, the Commissioner must also consider vocational factors such as the 19 claimant’s age, education and past work experience. Id. If the claimant is capable of adjusting to 20 other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 21 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis concludes with a 22 finding that the claimant is disabled and is therefore entitled to benefits. Id. 23 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 24 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 25 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 26 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 27 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 3 application for SSDI and SSI. (Doc. 1). She raises two issues for the Court’s review. (Doc. 17 p. 4 1). First, Plaintiff claims that the ALJ’s step two findings that her depression and anxiety are 5 non-severe constituted harmful legal error. Second, Plaintiff claims that the ALJ’s rejection of Dr. 6 Livesay’s MRFC is not supported by substantial evidence. 7 A. Whether the ALJ’s step two findings regarding the “non-severity” of Plaintiff’s 8 depression and anxiety constitute harmful legal error. 9 Plaintiff asserts that the ALJ committed legal error since he rejected the MRFC and RCF 10 of every treating, examining, and reviewing physician on record. (Doc. 17 p. 6-7). Plaintiff 11 further claims that the ALJ “took it upon himself” to formulate his own RFC. 12 At step two of the disability inquiry, the Commissioner determines whether a claimant has 13 a medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 14 1289, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)). In reaching 15 this determination, the ALJ “must consider the combined effect of all of the claimant’s 16 impairments on her ability to function, without regard to whether each alone was sufficiently 17 severe.” Id. In addition, the regulations require “a careful evaluation of the medical findings 18 which describe the impairment(s) and an informed judgment about its (their) limiting effects on 19 the individual’s physical and mental ability(ies) to perform basic work activities . . .” Social 20 Security Ruling (SSR) 85-28, at *4; see Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) 21 (adopting SSR 85-28). 22 In the Ninth Circuit, step two of the disability inquiry is “a de minimis screening device to 23 dispose of groundless claims.” Smolen, 80 F.3d at 1290. Thus, “[i]f an adjudicator is unable to 24 determine clearly the effect of an impairment or combination of impairments on the individual’s 25 ability to do basic work activities, the sequential evaluation should not end with the not severe 26 evaluation step.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citing SSR 85-28). 27 Nonetheless, “[t]he plaintiff has the burden of establishing the severity of the impairment.” See, 1 burden of proving a disability in steps one through four of the analysis”) (citations omitted). 2 In his step two analysis, the ALJ noted that Plaintiff had a psychological consultative 3 examination with Dr. Jerry Livesay in August 2020. During that examination, Plaintiff reported 4 depression and that she was taking medication for depression. Plaintiff also reported symptoms 5 of crying and lack of motivation. (AR 16, 386-392). 6 The Commissioner acknowledged that Plaintiff had not sought any additional or 7 specialized mental health treatment following the psychological consultative examination in 8 August 2020. Beginning months later, Dr. Pannu, Plaintiff’s medical treatment provider, still 9 listed major depressive disorder in his medical notes but indicated that Plaintiff was not taking 10 any medications and denied suffering from anxiety or depression. (AR 17, 400, 403, 406, 410, 11 411, 416, 436). 12 Plaintiff argues that the Commissioner erred as all physicians on record, including 13 Plaintiff’s treating physician, diagnosed her with major depressive disorder. See (AR 345 - 449). 14 However, a diagnosis alone does not establish severity. 20 C.F.R. § 404.1520(c). See Verduzco v. 15 Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (“Although the appellant clearly does suffer from 16 diabetes, high blood pressure, and arthritis, there is no evidence to support his claim that those 17 impairments are ‘severe’). 18 Separately, Plaintiff points to certain inconsistencies in the record that purportedly would 19 trigger the ALJ’s duty to further develop the record. (Doc. 17 p. 12). For instance, Plaintiff points 20 to Dr. Livesay’s report that she was taking psychiatric medication but did not specify what 21 medications she was taking in his August 2020 report. (AR 387). In addition, Plaintiff points to 22 Dr. Pannu’s consistent diagnoses of “major depressive disorder” but nevertheless noted that 23 Plaintiff was not taking psychiatric medications. 24 Finally, Plaintiff points to Dr. Livesay’s report and his remark therein that “[t]he claimant 25 is not an adequate historian due to her limitations and receptive English.” Dr. Livesay’s report 26 further notes that Plaintiff needed her son’s assistance “to clarify communication.” (AR 386). 27 She supports her contentions by citing to Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) 1 exercise of poor judgment in seeking rehabilitation.”) 2 The Ninth Circuit holds that the Commissioner has a special duty to develop the record 3 fully and fairly, and to assure that a claimant’s interests are considered, even when the claimant is 4 represented by counsel. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014); see 5 Delorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) (this duty is especially important when a 6 claimant suffers from a mental impairment). However, it remains the claimant’s “duty to prove” 7 that she is disabled and entitled to benefits. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 8 2001). This duty may require that the ALJ obtain additional information by, inter alia, contacting 9 treating physicians, scheduling consultative examinations, or calling a medical expert. 20 C.F.R. 10 §§ 416.912(e)-(f), 416.919a. However, the ALJ’s duty to develop the record attaches only when 11 there is ambiguous evidence or when the record is inadequate to allow proper evaluation of the 12 evidence. Mayes, 276 F.3d at 459-60. 13 The Ninth Circuit draws a distinction between instances where the record indicates that 14 the failure to seek mental health treatment was attributable to the mental impairment as opposed 15 to the failure stemming from the claimant’s own personal choices. Molina v. Astrue, 674 F.3d 16 1104, 1113-1114 (9th Cir. 2012); Gegan v. Kijakazi, No. 1:22-cv-00005-GSA, 2023 WL 17 3304432, at * 5 (E.D. Cal. May 8, 2023). Here, the ALJ found that Dr. Livesay’s opinion was not 18 consistent with the record as a whole. The ALJ cited to Dr. Pannu’s records, who did have the 19 opportunity to regularly provide medical care to Plaintiff and noted that she repeatedly denied 20 symptoms of depression and anxiety. (AR 22, 400, 403, 406, 410, 416, 436). Under these 21 circumstances, the ALJ did not have a duty to further develop the record because the record was 22 neither ambiguous nor inadequate to allow for proper evaluation of the evidence. Although Dr. 23 Livesay’s report indicated that Plaintiff may be a bad historian, the record was sufficiently well 24 developed by Dr. Pannu’s treatment notes to enable the ALJ to independently ascertain Plaintiff’s 25 treatment history. Evidence of conservative treatment is a valid basis for rejecting a Plaintiff’s 26 claims of severe impairment. Tommasetti, 533 F.3d at 1039-1040. The ALJ may properly infer 27 that Plaintiff’s depression was not severe given that she repeatedly denied symptoms and did not 1 Plaintiff also claims error since the ALJ rejected the mental residual functional capacity 2 (MRFC) and residual functional capacity (RFC) opinions of every physician of record and “took 3 it upon himself to formulate his own RFC.” (Doc. 17 pp. 5-6). At step two, the ALJ found that 4 Plaintiff had no more than mild limitation in any of the functional areas set forth in the paragraph 5 B criteria. (AR 18). Later, at step four, the ALJ found that Plaintiff had the ability to perform 6 medium work as defined in 20 C.F.R. 404.1567(c). (AR 19). The ALJ also reported that “the 7 undersigned cannot defer or give any specific evidentiary weight, including controlling weight, to 8 any prior administrative medical finding(s) or medical opinion(s), including those from medical 9 sources.” (AR 20). 10 As noted by the Commissioner, the RFC is a legal decision expressly reserved for the 11 ALJ. See C.F.R. §§ 404.1527(d)(2); 404.1546(c); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 12 Cir. 2001) (“It is clear that it is the responsibility of the ALJ, not the claimant’s physician to 13 determine [RFC]). “The ALJ is the final arbiter with respect to resolving ambiguities in the 14 medical evidence.” Tommasetti, 533 F.3d at 1041-42. 15 The ALJ is not required to adopt the findings or opinion of a physician but rather is 16 charged with determining the RFC based on all the evidence on the record. See 20 C.F.R. § 17 404.1527 (d)(2) “Although we consider opinions from medical sources on issues such as . . . your 18 residual functional capacity. . . the final responsibility for deciding these issues is reserved to the 19 Commissioner.”); Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ 20 is responsible for translating and incorporating clinical findings into a succinct RFC”). In 21 addition, the regulations provide that the agency “will not defer or give any specific evidentiary 22 weight, including controlling weight, to any medical opinion(s) or prior administrative medical 23 finding(s), including those from your medical sources.” 20 C.F.R. § 404.1520c(a). 24 The Court finds that the ALJ’s RFC and MRFC determinations are supported by 25 substantial evidence in the record. Plaintiff has not demonstrated that the ALJ was required to 26 further develop the record. The ALJ is not required to adopt any medical provider’s RFC 27 determination and ultimately is responsible to make an RFC determination with the record before 1 B. Whether the ALJ’s rejection of Dr. Livesay’s MRFC is supported by substantial 2 evidence. 3 Plaintiff next asserts that the ALJ’s rejection of the findings of Dr. Livesay, the only 4 examining psychiatric specialist, regarding Plaintiff’s psychiatric limitations, undermines the 5 ALJ’s supportability and consistency analysis. (Doc. 17 pp. 15-20). Dr. Livesay opined that 6 Plaintiff’s ability to perform simple and repetitive tasks was mildly impaired; her ability to 7 perform detailed and complex tasks was moderately impaired; her ability to accept instructions 8 from supervisors was unimpaired; her ability to interact with coworkers and the public was mildly 9 impaired; her ability to perform work activities on a consistent basis without special or additional 10 instruction is mildly impaired; her ability to maintain regular attendance and complete a normal 11 workday/workweek without interruptions from a psychiatric conditions was moderately impaired. 12 Dr. Livesay found that Plaintiff’s ability to deal with stress in the workplace was markedly 13 impaired. (AR 22, 388-390). 14 The ALJ found that Dr. Livesay’s opinion was supported by his examination findings. 15 However, the ALJ found that the findings were not consistent with the records as a whole and 16 pointed to Plaintiff’s denial of anxiety and depression when she saw Dr. Pannu. (AR 22). The 17 Court of Appeals recently provided guidance in regard to court review of medical opinions: 18 “The most important factors” that the agency considers when evaluating the persuasiveness of medical opinions are “supportability” and “consistency.” 20 19 C.F.R. § 404.1520c(a). Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant . . . objective 20 medical evidence.” Id. § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is “consistent . . . with the evidence from other medical 21 sources and nonmedical sources in the claim.” Id. § 404.1520c(c). 22 Woods v. Kijakazi, 32 F.4th 785, 791-792 (9th Cir. 2022). An ALJ cannot reject a doctor’s 23 opinion without providing an explanation supported by substantial evidence. Id. The ALJ must 24 explain how persuasive he finds all the medical opinions from each doctor or source and how he 25 considered the supportability and consistency factors when reaching his findings. Id.; 20 C.F.R. § 26 404.1520c(b)(2). 27 The ALJ included the supportability and consistency factors in his analysis. In his 1 In addition to reviewing her Medical Source Vendor questions, Dr. Livesay examined Plaintiff on 2 August 8, 2020. (AR 386). He assessed that Plaintiff had a mild impairment in performing simple 3 and repetitive tasks, moderate impairment in the ability to perform detailed and complex tasks, no 4 impairment in the ability to accept instructions from supervisors, mild impairment in the ability to 5 interact with coworkers and the public, moderate impairment in the ability to maintain regular 6 attendance in a normal workday without interruptions and a marked impairment in the ability to 7 deal with the usual stress encountered in the workplace. (AR 390). 8 In contrast, in a check-off report signed on May 21, 2021, Dr. Pannu assessed that 9 Plaintiff had no limitations in her ability to understand and remember, concentration and memory, 10 social interaction, and adaptation. (AR 446-447). The ALJ discounted Dr. Livesay’s opinion 11 because it was inconsistent with Dr. Pannu’s findings, and the record as a whole. (AR 22). Dr. 12 Pannu’s medical treatment notes, which were drafted after Dr. Livesay’s report, indicate that 13 Plaintiff had not been taking medication and that she repeatedly denied having anxiety and 14 depression. (AR 435-445). 15 After considering the ALJ’s reasons for rejecting Dr. Livesay’s opinion, and the record as 16 a whole, the Court finds that the ALJ’s rejection is supported by substantial evidence. It was 17 reasonable for the ALJ to discount Dr. Livesay’s opinion, particularly because Dr. Pannu, 18 Plaintiff’s PCP who monitored Plaintiff’s depression for over a year after Dr. Livesay’s report, 19 regularly documented that Plaintiff denied anxiety and depression and did not take any 20 medications for her conditions. “The ALJ is permitted to consider lack of treatment in his 21 credibility determination.” Burch, 400 F.3d at 682. The ALJ’s finding that Dr. Livesay’s opinion 22 is inconsistent with the record is supported by substantial evidence. 23 CONCLUSION AND RECOMMENDATIONS 24 For the reasons stated above, the undersigned recommends that the Court DENY 25 Plaintiff’s Motion for Summary Judgment and GRANT the Commissioner’s Cross-Motion for 26 Summary Judgment. 27 These Findings and Recommendations will be submitted to the United States District 1 | (14) days from the date of service of these Findings and Recommendations, Plaintiff may file 2 || written objections with the Court. The document should be captioned, “Objections to Magistrate 3 | Judge’s Findings and Recommendations.” Plaintiffs failure to file objections within the specified 4 | time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 5 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 | IT IS SO ORDERED. "| Dated: _ June 26, 2023 | Word bo 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13