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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUTRICIA LANE THOMPSON, Case No. 1:22-cv-00364-BAM 12 Plaintiff, ORDER REGARDING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT 14 KILOLO KIJAKAZI, Acting Commissioner (Doc. 10) 15 of Social Security, 16 Defendant. 17 18 19 INTRODUCTION 20 Plaintiff Lutricia Lane Thompson (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (“Commissioner”) denying her application for disability insurance 22 benefits under Title II of the Social Security Act. The parties’ briefing on the motion was submitted, 23 without oral argument, to Magistrate Judge Barbara A. McAuliffe. (Docs. 10-12.)1 24 Having considered the parties’ briefs, along with the entire record in this case, the Court finds 25 that the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the 26 27 1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, 28 including entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Docs. 2, 7-8.) 1 record and is based upon proper legal standards. Accordingly, this Court affirms the agency’s 2 determination to deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff filed an application for disability insurance benefits on November 27, 2019. AR 271- 5 279.2 Plaintiff alleged that she became disabled on November 7, 2018, due to bipolar disorder with 6 anxiety, depression, and posttraumatic stress disorder (PTSD). AR 273. Plaintiff’s application was 7 denied initially and on reconsideration. AR 91-120. Subsequently, Plaintiff requested a hearing 8 before an ALJ. ALJ Vincent A. Misenti held a hearing on April 8, 2021. AR 51-74. ALJ Misenti 9 issued an order denying benefits on the basis that Plaintiff was not disabled on May 5, 2021. AR 121- 10 139. The Appeals Council vacated the hearing decision and remanded the case to the ALJ for further 11 evaluation of the record and Plaintiff’s residual functional capacity. AR 140-145. ALJ Misenti held a 12 subsequent hearing on November 23, 2021. AR 75-90. ALJ Misenti issued a second order denying 13 benefits on December 23, 2021. AR 12-34. Plaintiff sought review of the ALJ’s second decision, 14 which the Appeals Council denied, making the ALJ’s second decision the Commissioner’s final 15 decision. AR 1-6, 267-270. This appeal followed. 16 April 8, 2021 Hearing Testimony 17 The ALJ held a telephonic hearing on April 8, 2021. AR 51-74. Plaintiff appeared with her 18 attorney, Terry La Porte. Id. Alina Sala, an impartial vocational expert, also appeared and testified. 19 AR 68-74. 20 In response to questions from the ALJ, Plaintiff testified that she was 56 years of age, lives in a 21 house by herself, and has a high school education. AR 52-53. Plaintiff stated that she has done some 22 part-time shifts since November 7, 2018, but no work lasting for more than 30 days. AR 53-54. 23 Discussing her bipolar disorder, Plaintiff stated that she feels extreme fatigue, depression, 24 anxiety, lethargy, no joy in doing anything, and feels “unable to do the most simple of self-care tasks 25 when it’s bad.” AR 54. Plaintiff testified that she feels heavy and tired, sleeps a lot, has mood swings, 26 27 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page 28 number. 1 and has “no ambition or desire to do anything.” Id. Plaintiff further testified that people, life in 2 general, bills, and life stresses make her anxious. Id. Plaintiff testified that her mood could shift from 3 minute to minute and that she has approximately four bad days and three good days per week. AR 55. 4 In discussing her post traumatic stress disorder, Plaintiff said that her symptoms include depression, 5 anxiety, inability to go out into the world, and weekly flashbacks. AR 55-56. 6 Plaintiff stated that she has weekly therapy sessions and discussions with a psychiatrist every 7 three months. AR 56. She had been seeing her therapist for approximately 2.5 years. Id. Plaintiff 8 testified that her medication allows her to “do basic tasks” and to self-care, though she noted that she 9 still has “good days and bad days.” AR 57-58. During the approximately four bad days per week, she 10 cannot go out in public. AR 58-59. Her medication is adjusted approximately every six months. AR 11 57. 12 During a typical day, Plaintiff gets up between 7:00 and 9:00, takes her medication, feeds her 13 cats, checks email and Facebook, and makes breakfast. AR 59. Plaintiff then watches TV and has 14 lunch. Plaintiff then usually feels exhausted around 1:00, so she takes a nap and sleeps for 15 approximately two to five hours. AR 59. Plaintiff then wakes up, has dinner, and goes to bed around 16 10:00 to 11:00. AR 59. Plaintiff testified that she paints as a hobby and sold a few paintings for 17 around $200 at a craft fair once. AR 59. During the craft fair, she had to leave early and needed a 18 friend to help her move the table as she was exhausted. AR 59-60. Plaintiff testified that the only 19 places she goes are a gas station, grocery store, and AA recovery meetings approximately five times 20 per week. AR 60. Plaintiff also testified that she would have dinners with close friends at her house 21 prior to COVID and would sometimes see outdoor concerts before that became too overwhelming. 22 AR 61. Plaintiff also testified that on bad days, she is not able to go to AA recovery meetings and 23 outdoor concerts. AR 63. 24 In response to questions from her attorney, Plaintiff testified that she was working as an 25 interior designer on a full-time basis until November 2018 but has not tried to go back to work as an 26 interior designer following suicide attempts as it is too stressful. AR 61-62. Plaintiff also testified that 27 she did administrative secretarial work at a small real estate firm for three days but quit because she 28 was exhausted, could not function, and felt stressed and anxious. AR 62. Plaintiff also did one four- 1 hour shift in January 2021 at Ross Stores that consisted of her watching training videos. AR 63. She 2 quit the Ross Stores position after the shift, as she felt overwhelmed by the employee procedures and 3 level of productivity. Id. 4 In responding to questions from her attorney about physical restrictions and musculoskeletal 5 problems, Plaintiff testified that she had lower back pain, neck pain, and shoulder pain that prevented 6 her from lifting anything over 20 pounds. AR 64. She also testified that she could not reach above her 7 head and needed to take a nap daily for approximately two to five hours. AR 64-65. Plaintiff testified 8 that she believes the need to nap is based on depression and fatigue. AR 65. Plaintiff further testified 9 that her prescriptions included Abilify for bipolar disorder, Venlafaxine for depression, medication for 10 back, neck, and shoulder problems, and previously Lamictal for bipolar disorder. AR 65-66. An 11 overdose with her prescriptions and a natural sleep remedy led to Plaintiff’s psychiatric hospitalization 12 in July 2020. AR 66. Plaintiff testified that she previously lived with a roommate and was actively 13 looking for a new roommate for rental income, to have company to avoid worsening depression, and 14 to help with household chores. AR 67. 15 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. AR 67-74. The VE 16 first summarized Plaintiff’s past work as interior design, 142.051-014, where the “SVP is 7, light,” and 17 performed at “medium.” AR 68. The ALJ then asked the VE hypothetical questions. Id. For the first 18 hypothetical, the ALJ asked the VE to consider an individual with at least a high school education, 19 past work as described, and capable of performing a medium range of work. AR 68. In this 20 hypothetical, the ALJ limited the individual to understanding, remembering, and carrying out simple, 21 routine, and repetitive tasks; using judgment; making simple work-related decisions; and interacting 22 with the public occasionally. AR 68. The VE testified that the individual could not perform the past 23 work. AR 69. The VE further testified that there would be jobs that exist in the national economy that 24 this individual could perform. Id. At the medium level, these jobs would include linen room 25 attendant, cleaner/sweeper, and dining room attendant. AR 69. For the second hypothetical, the ALJ 26 asked the VE to consider the restrictions in the first hypothetical and add that the individual would be 27 off task 20 percent of the time and/or miss 2 days of work a month. AR 69. The VE opined that the 28 individual could not perform any work. Id. 1 In examination of the VE, Plaintiff’s attorney asked the VE to assume the restrictions in the 2 first hypothetical and to add the restriction that the individual would be limited to occasional bending, 3 stooping, and overhead reaching with the left arm. AR 69. The VE testified that the dining room 4 attendant and linen room attendant jobs could still be performed, but the cleaner job would be 5 eliminated under those restrictions. AR 69-70. The VE testified that the dining room attendant and 6 linen room attendant positions did not require lifting from the floor or lower levels. AR 70. 7 Plaintiff’s attorney next asked the VE to assume an individual of Plaintiff’s same age, 8 education, and work experience and with restrictions of a light functional capacity with simple and 9 repetitive tasks and occasional public contact. AR 70-71. The VE testified that such an individual 10 could not perform past relevant work and that the skills would not be transferable from Plaintiff’s past 11 relevant work to other work. AR 71. 12 Plaintiff’s attorney also asked the VE to assume the restrictions from the first hypothetical and 13 to assume that the individual is limited in concentration. AR 71-72. After discussion between the 14 ALJ and VE in which the VE noting that concentration could be vocationally relevant to the 15 individual’s ability to be on-task, the VE testified that an individual who would be off-task a third of 16 the time would not be able to perform any jobs. AR 72. 17 November 23, 2021 Hearing Testimony 18 The ALJ held a second telephonic hearing on November 23, 2021. AR 77-89. Plaintiff 19 appeared with her attorney, Terry La Porte. Id. Luis Mas, an impartial vocational expert, also 20 appeared and testified. AR 68-74. The ALJ began by noting that evidence that was previously 21 submitted but not properly exhibited had been added into the file. AR 77-78. The ALJ admitted 22 Exhibits 1A through 13F, except for Section C. AR 78. 23 In response to questions from the ALJ regarding whether there had been any changes in her 24 condition since the previous hearing, Plaintiff testified that she still dealt with depression and could 25 only function in the world about half the time with the help of therapy, medication, and psychiatric 26 monitoring. AR 79. Plaintiff testified that she attends weekly therapy with Janet Black of the Sonora 27 Indian Health Clinic to work on childhood trauma issues and attends AA meetings via Zoom and 28 sometimes in person when she is not too exhausted. AR 79. Plaintiff also testified that she had a 1 loose, painful shoulder and cannot pick up anything with her left hand, though doctors had not 2 narrowed down the source of the pain. AR 80. 3 In response to questions from her attorney, Plaintiff testified that her depression has worsened 4 and “definitely not gotten better” since the previous hearing, and that during some periods of 5 depression she goes into a dissociative state where she cannot take in new information and goes to 6 sleep. AR 81. She testified that she takes long naps during the day and typically has to sleep for 7 around two to four hours. Id. During these episodes she feels a numbness to the world. AR 82. She 8 has experienced this during the four-hour shift she worked at Ross Stores and during some therapy 9 sessions. AR 82-83. Plaintiff further testified that her psychiatrist, Dr. Edwards, had increased her 10 Abilify and started her on Desipramine prescriptions but this had not helped with the dissociative 11 episodes. AR 82. Dr. Edwards also prescribed Seroquel, which helps Plaintiff with nighttime sleep 12 disturbances but not from exhaustion. AR 83. Plaintiff testified that she avoids driving when she feels 13 she might experience a dissociative episode, so avoids driving about three or four days per week. AR 14 83. Plaintiff testified that she has not had suicidal thoughts since April 2021, and views that as an 15 improvement. AR 83. Plaintiff stated that she cries “all the time” as a release for feeling 16 overwhelmed. AR 84. Plaintiff testified that she was still unable to lift over 20 pounds and is left- 17 handed. AR 84. 18 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. AR 84-89. The VE 19 first summarized Plaintiff’s past work as interior design, 142.051-014, with SVP 7 and light work. AR 20 85. The ALJ then asked the VE hypothetical questions. AR 85-87. 21 For the first hypothetical, the ALJ asked the VE to consider an individual with Plaintiff’s past 22 work experience, at least a high school education, able to perform work at all exertional levels, limited 23 mentally to understanding, remembering, and carrying out simple, routine, and repetitive tasks using 24 judgment, limited to simple work-related decisions, and capable of interacting with coworkers and the 25 public occasionally. AR 85-86. The VE testified that there would be jobs that exist in the national 26 economy that this individual could perform. AR 86. At the medium level, these jobs would include 27 hand packager, store laborer, and small parts assembler. Id. 28 1 For the second hypothetical, the ALJ asked the VE to consider the restrictions in the first 2 hypothetical and add that the individual would be off task daily between two and four hours. AR 86. 3 The VE opined that the individual could not perform any work. Id. The ALJ then asked the VE to 4 consider that the individual would be off task for only two hours, and the VE testified that the 5 individual would not be employable. Id. For the third hypothetical, the ALJ asked the VE to consider 6 that such an individual would miss two days of work a month. AR 87. The VE testified that the 7 individual could not perform any work. Id. 8 Plaintiff’s attorney then asked the VE hypotheticals. AR 87-89. Plaintiff’s attorney asked the 9 VE to consider an individual of the same age, education, and work experience as Plaintiff, capability 10 at all exertional levels, limited to simple, routine and repetitive tasks with occasional public and 11 coworker contact, and unable to complete work tasks or maintain a reasonable pace without an 12 unreasonable number of rest periods for one third of the day. AR 87. The VE testified that the 13 individual could not perform any work. Id. Plaintiff’s attorney then asked the VE to consider an 14 individual of the same age, education, and work experience as Plaintiff, restricted to light work, able 15 ability to sit/stand 6 hours of an 8-hour day, able to lift 10 pounds frequently, able to lift 20 pounds 16 occasionally, able to reach overhead occasionally, and restricted to routine and/or repetitive tasks. AR 17 87-88. Plaintiff’s attorney asked whether there would be transferability of skills for such an individual 18 from Plaintiff’s previous work to other light work. AR 88. The VE provided no response on record 19 and the ALJ stated that he would make a finding of no transferability of skills given Plaintiff’s 20 advanced age. Id. 21 Medical Record 22 The relevant medical record was reviewed by the Court and will be referenced below as 23 necessary to this Court’s decision. 24 The ALJ’s Decision 25 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 26 determined that Plaintiff was not disabled under the Social Security Act. AR 12-34. Specifically, the 27 ALJ found that Plaintiff had not engaged in substantial gainful activity since November 7, 2018, the 28 alleged onset date. AR 17. The ALJ identified the following severe impairments: bipolar disorder 1 with anxiety, depression and posttraumatic stress disorder (PTSD). AR 18. The ALJ determined that 2 Plaintiff did not have an impairment or combination of impairments that met or medically equaled any 3 of the listed impairments. AR 19-29. Based on a review of the entire record, the ALJ found that 4 Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all 5 exertional levels with the following nonexertional limitations: she can understand, remember and carry 6 out simple, routine and repetitive tasks using judgment, is limited to simple work-related decisions, 7 and can occasionally interact with the public and coworkers. AR 20. With this RFC, and considering 8 Plaintiff’s age, education, and work experience, the ALJ found that Plaintiff could perform work in the 9 national economy, such as hand packager, store laborer, or small parts assembler. AR 29-30. The 10 ALJ therefore concluded that Plaintiff had not been under a disability from the alleged onset date of 11 November 7, 2018. AR 30. 12 SCOPE OF REVIEW 13 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 14 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 15 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 16 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 17 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 18 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 20 considered, weighing both the evidence that supports and the evidence that detracts from the 21 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 22 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 23 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 24 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 25 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 26 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 27 /// 28 /// 1 REVIEW 2 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 3 substantial gainful activity due to a medically determinable physical or mental impairment which has 4 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 5 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 6 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 7 her age, education, and work experience, engage in any other kind of substantial gainful work which 8 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 9 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 10 1990). 11 DISCUSSION3 12 Plaintiff contends that the ALJ erred at Step Two of the sequential evaluation by concluding 13 that certain of Plaintiff’s impairments were non-severe impairments and not taking them into account 14 in the sequential evaluation. (Doc. 10 at 12-15.) Plaintiff also contends that the ALJ erred by not 15 properly evaluating the opinions of Dr. Charles Edwards, primary care provider Dr. Robert Reina, 16 mental health therapist Donna Villanueva, LMFT, and mental health therapist Janet Black, LCSW. 17 (Doc. 10 at 15-21.) Plaintiff further contends that the ALJ improperly discredited Plaintiff’s 18 subjective complaints and symptom testimony. (Doc. 10 at 21-26.) Finally, Plaintiff contends that the 19 ALJ’s decision failed to account for Plaintiff’s age category in examining the Medical-Vocational 20 Guidelines. (Doc. 10 at 26.) 21 A. Step Two Impairments 22 Plaintiff argues that the ALJ erroneously concluded that her physical impairments were non- 23 severe at step two of the sequential evaluation. (Doc. 10 at 12-15.) Specifically, Plaintiff contends 24 that the ALJ dismissed Plaintiff’s shoulder, neck, back, and ankle pain as non-severe and having only 25 a minimal effect on her ability to perform basic work activities. (Id. at 12.) 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 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 At step two of the five-step sequential evaluation, the ALJ is required to determine whether a 2 plaintiff has a “severe” medical impairment or combination of impairments. 20 C.F.R. § 404.1520(c). 3 An impairment, or combination of impairments, can be found to be non-severe if the evidence 4 establishes a slight abnormality that has no more than a minimal effect on an individual’s ability to 5 work. See SSR 85–28, 1985 WL 56856 (Jan. 1, 1985); see also Yuckert v. Bowen, 841 F.2d 303, 306 6 (9th Cir.1988) (adopting SSR 85–28). “The mere existence of an impairment is insufficient proof of a 7 disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.1993). A claimant bears the burden of 8 proving that an impairment is disabling. Id. (citation omitted). 9 “Step two is merely a threshold determination meant to screen out weak claims.” Buck v. 10 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017), citing Bowen v. Yuckert, 482 U.S. 137, 146–47 (1987). 11 “It is not meant to identify the impairments that should be taken into account when determining the 12 RFC . . . . The RFC . . . should be exactly the same regardless of whether certain impairments are 13 considered ‘severe’ or not.” Id. (emphasis in original). Any error in failing to include an impairment 14 at step two is harmless if the ALJ considered any limitations imposed by the impairment at step four. 15 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“The decision reflects that the ALJ considered any 16 limitations posed by the bursitis at Step 4. As such, any error that the ALJ made in failing to include 17 the bursitis at Step 2 was harmless.”). 18 In addressing the impairments beyond bipolar disorder with anxiety, depression, and PTSD, 19 the ALJ noted that: 20 The undersigned finds that those impairments that are not specifically mentioned reveal only a slight abnormality having such minimal effect 21 on the claimant that it would not be expected to interfere with her ability to perform basic work activities, and, therefore, are nonsevere. For 22 instance, the record shows a diagnosis for multiple strains of the 23 shoulder, neck, back and ankle (Exhibit 6F at 5). The record shows limited treatment for these impairments. In the complete absence of any 24 subsequent medical records showing complaints of or treatment for related symptoms, it is reasonable to conclude that these impairments 25 have not resulted in any limitations on the claimant’s ability to do basic 26 work activities and are nonsevere impairments. AR 18. 27 28 1 Substantial evidence supports an ALJ’s finding that an impairment is not severe when medical 2 records show that the claimant’s impairment has been controlled by treatment. See Huff v. Astrue, 275 3 F. App’x 713, 717 (9th Cir. 2008) (finding ALJ did not err in finding claimant’s depression to be non- 4 severe because the ALJ reasonably relied on physician’s finding that claimant’s depression had 5 improved with treatment); Kenneth K. v. Berryhill, 2018 WL 6991256, at *4 (D. Or. Dec. 19, 2018) 6 (finding ALJ’s determination that claimant’s diabetes was not a severe impairment was supported by 7 substantial evidence because medical records showed her diabetes was “controlled”), report and 8 recommendation adopted by, 2019 WL 165700 (D. Or. Jan. 10, 2019). 9 The ALJ here pointed to evidence in the record showing normal examination findings and 10 minimal treatment associated with Plaintiff’s musculoskeletal findings. AR 18, 442-443 (normal 11 musculoskeletal findings, “Visual overview of all four extremities is normal” despite listed back pain 12 and joint pain), 514-515 (normal findings in physical exam despite listed back pain and muscle 13 weakness), 1318-1319 (normal findings in physical exam despite listed back pain, joint pain, and joint 14 swelling), 1435 (chart update with medication prescriptions). 15 In addition, the ALJ discounted the opinion of physical consultative examiner Dr. Satish 16 Sharma which supported Plaintiff’s assertion of physical impairments beyond bipolar disorder with 17 anxiety, depression, and PTSD. AR 18, 855-860. In an internal medicine evaluation summary report 18 dated October 13, 2020, Dr. Sharma opined that Plaintiff could perform light work and was limited to 19 occasional bending, stooping, and reaching overhead above the shoulder with the left arm. AR 860. 20 The ALJ pointed to the inconsistencies within Dr. Sharma’s opinion, noting that the limitations Dr. 21 Sharma suggested were not supported by his relatively normal findings, which included no muscle 22 spasms in neck or back, straight leg raising test negative, motor strength muscle power “5/5 in both 23 upper and lower extremities,” pain on forward flexion in neck and back, and tenderness to palpation in 24 regions of the left shoulder, neck, and back. AR 18, 858-860. 25 This evidence of comparatively normal findings with minimal treatment constitutes substantial 26 evidence to support the ALJ’s finding that Plaintiff’s shoulder, neck, back, and ankle pain were non- 27 severe. The ALJ thus did not commit error by finding Plaintiff’s shoulder, neck, back, and ankle pain 28 to be non-severe impairments at Step Two. 1 B. Medical Opinion Evidence 2 Plaintiff contends that the ALJ erred by improperly discounting the opinions of Dr. Charles 3 Edwards and Janet Black, LCSW, Dr. Robert Reina, and mental health therapist Donna Villanueva, 4 LMFT. (Doc. 10 at 16.) 5 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 6 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 7 404.1520c. Under the new regulations, the Commissioner does “not defer or give any specific 8 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 9 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). 10 The Commissioner evaluates the persuasiveness of the medical opinions based on the following 11 factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 12 (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence 13 in the claim or an understanding of our disability program’s policies and evidentiary requirements.” 14 20 C.F.R. § 404.1520c(c)(1)-(5). Supportability and consistency are the most important factors. 20 15 C.F.R. § 404.1520c(b)(2). 16 Ninth Circuit case law preceding the new regulations afforded deference to the medical 17 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 18 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 19 the medical opinions of treating or examining physicians. These standards of articulation no longer 20 apply in light of the new regulations, and the ALJ was not required to provide “specific and legitimate 21 reasons” to discount the medical opinions. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 22 (finding revised social security regulations “clearly irreconcilable with our caselaw according special 23 deference to the opinions of treating and examining physicians on account of their relationship with 24 the claimant”). However, the Ninth Circuit has clarified that “under the new regulations, an ALJ 25 cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without 26 providing an explanation supported by substantial evidence.” Id. “The agency must ‘articulate ... 27 how persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, . . . and 28 1 ‘explain how [it] considered the supportability and consistency factors’ in reaching these findings.” 2 Id. (internal citations omitted); see 20 C.F.R. § 404.1520c(c). In this context, 3 Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant ... objective medical 4 evidence. Id. § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is “consistent ... with the evidence from other medical 5 sources and nonmedical sources in the claim. Id. § 404.1520c(c)(2). 6 Id. at 791-92. 7 1. Opinion of Dr. Charles Edwards and Janet Black, LCSW 8 On June 22, 2020, Charles L. Edwards, M.D., and Janet Black, LCSW, filled out a Mental 9 Impairment Questionnaire. AR 494-499. On the form, Dr. Edwards noted that he began treating 10 Plaintiff on January 21, 2019 while Ms. Black began treating Plaintiff on November 8, 2018. AR 494. 11 They treated Plaintiff initially on a bi-weekly basis from November 2018 to January 2019, then on a 12 weekly basis, and finally saw Plaintiff bimonthly as of June 2020. Id. Dr. Edwards and Ms. Black 13 noted the DSM-5 Evaluation and Diagnoses as “PTSD – Chronic + Acute” and “Bi-polar II – most 14 recent episode – Depression.” Id. Dr. Edwards and Ms. Black indicated that Plaintiff was between 15 “unable to meet competitive standards” and “no useful ability to function” in terms of her ability to: 16 complete a normal workday and workweek without interruptions from psychologically based 17 symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, 18 and deal with normal work stress. AR 496. They further indicated that Plaintiff had “marked” 19 difficulties understanding, remembering, or applying information, “marked” difficulties interacting 20 with others, “marked” difficulties in ability to concentrate, persist, or maintain pace, and “marked” 21 difficulties adapting or managing oneself. AR 497-498. They finally indicated that Plaintiff’s 22 impairments or treatment would cause her to be absent from work or be unable to complete a work day 23 more than four days per month. AR 498. 24 In evaluating Dr. Edwards and Ms. Black’s opinion, the ALJ summarized their findings and 25 reasoned as follows: 26 The undersigned is not persuaded by the opinions of Dr. Edwards and Ms. Black. There is minimal narrative support for the opinions within the 27 submitted documents, and the initial opinion was based upon a limited treatment period of the claimant, from June 2018 through January 2019 28 1 (Exhibit 4F). In addition, opinions as to the claimant’s extreme mental functional limitations are not supported by Dr. Edward’s treatment notes, 2 which show no significant changes, euthymic mood, upbeat presentation, goal directed thought processes and nonpressured speech (Exhibit 5F at 3 76-77, 89-90, 196-197). Additionally, neither of Ms. Black’s opinions are 4 supported by her mostly unremarkable findings, with the exception of labile mood with anxious, agitated and tearful affect, circumstantial 5 speech, episodic tangential reports/responses and episodic mild to moderate dissociative mindsets (Exhibit 5F at 68, 178, 221, 246). Further, 6 their treatment notes did not show that detailed mental functional status 7 examinations were conducted of the claimant, and their opinion is not consistent with that of psychological consultative examiner Dr. 8 Richwerger, who conducted such examination and opined that the claimant was not so limited (Exhibit 3F). Finally, their opinions are also 9 inconsistent with the claimant's reported activities, including attending 10 and/or chairing multiple AA meetings per week, spending time with friends, doing volunteer work, researching and expressing interest in a 11 position as Mental Health Ambassador for Tuolumne County, and creating and selling artwork (Exhibits 5F at 67, 121, 173, 185, 222). 12 AR 26-27. 13 The Court finds that the ALJ properly evaluated the June 22, 2020 opinion of Dr. Edwards and 14 Ms. Black under the new regulations. 15 First, the ALJ found that there was “minimal narrative support” of the opinion, the opinion was 16 not supported by the findings in Dr. Edwards’s and Ms. Black’s treatment notes, the treatment notes 17 did not show that detailed mental functional status examinations were conducted with Plaintiff, and 18 the initial opinion was based upon a limited treatment period. AR 26. The ALJ’s reasoning here 19 invokes the supportability factor. “The more relevant the objective medical evidence and supporting 20 explanations presented by a medical source are to support his or her medical opinion(s) or prior 21 administrative medical finding(s), the more persuasive the medical opinions or prior administrative 22 medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). 23 In assessing the supportability of Dr. Edwards’s and Ms. Black’s opinion, the ALJ cited Dr. 24 Edwards’s treatment notes as showing a lack of “significant changes, euthymic mood, upbeat 25 presentation, goal directed thought processes and nonpressured speech (Exhibit 5F at 76-77, 89-90, 26 196-197).” AR 27. A survey of the treatment notes supports this conclusion. In a January 30, 2020 27 visit report, Dr. Edwards noted that Plaintiff had no significant change and reliable medication 28 1 adherence despite reporting exacerbating depressive symptoms and sleeping many hours a day. AR 2 575-576. In a September 30, 2019 visit report, Plaintiff presented with a euthymic mood, had no 3 significant change in mood, affect, thought process, orientation, behavior, or functioning. AR 588- 4 589. In that visit, Plaintiff was “very upbeat but not hypomanic” and exhibited non-pressured speech 5 and goal directed thought processes. Id. In an April 25, 2019 visit report, Plaintiff showed a notable 6 change in mood and affect, but no significant change in thought process and orientation or behavior 7 and functioning. AR 695-696. The ALJ further cited Ms. Black’s treatment notes and “mostly 8 unremarkable findings, with the exception of labile mood with anxious, agitated and tearful affect, 9 circumstantial speech, episodic tangential reports/responses and episodic mild to moderate dissociative 10 mindsets (Exhibit 5F at 68, 178, 221, 246).” AR 27, 566-67 (June 8, 2020 visit report noting 11 Plaintiff’s anxious mood and affect and that Plaintiff “appears to be anxious, tearful at times; however, 12 less extremes in [sic] previously.”); 677-78 (May 16, 2019 visit report noting Plaintiff’s labile mood, 13 Plaintiff reporting that she “was doing pretty well, the new meds regime is helping,” and assessment of 14 severe major depressive disorder); 720-721 (March 18, 2019 visit report noting Plaintiff’s labile mood 15 and no present psychosis or hopelessness/helplessness, denial of intent or plan to self-injury, Plaintiff 16 reporting being “physically tired, yet somewhat pleased with self [i.e.] accomplishments and being 17 able to stay out of bed for the amount of time.”); 744-45 (January 21, 2019 visit report noting 18 Plaintiff’s labile mood, Plaintiff “appears to be less anxious, Lucid, and more connected w/emotions, 19 with the goal of ‘letting go of the hurt & go forward.’” Also notes that Plaintiff feels she is at a “7/10” 20 in her progress and feels “more empowered, feeling less depressed AND NOT suicidal.”). 21 The ALJ also notes that the opinion itself offered minimal narrative support and did not show 22 whether detailed mental functional status examinations were conducted with Plaintiff. AR 27. 23 Indeed, apart from checking boxes for Plaintiff’s symptoms, the main support in the opinion comes 24 from Dr. Edwards and Ms. Black writing that the clinical findings that demonstrate the severity of 25 Plaintiff’s impairment included “Dissociative process during session, hypervigilance, anxiety, 26 uncontrollable crying, reports sleeping 12-15 hrs/day, Diff. memory, concentration, processing info.” 27 AR 494. The ALJ thus properly evaluated the supportability of Dr. Edwards’s and Ms. Black’s 28 opinion based upon their treatment notes and the opinion itself. 1 The ALJ further notes that the “initial opinion was based upon a limited treatment period of the 2 claimant, from June 2018 through January 2019 (Exhibit 4F).” AR 27. However, on the form, Dr. 3 Edwards noted that he began treating Plaintiff on January 21, 2019 while Ms. Black began treating 4 Plaintiff on November 8, 2018 and treated Plaintiff on a bimonthly or weekly basis. AR 494. As 5 discussed above and cited by the ALJ, their treatment notes primarily include reports from after 6 January 2019. AR 566-67, 575-76, 588-89, 695-96, 677-78, 720-721, 744-45. Accordingly, it appears 7 that the ALJ erred in stating the treatment period lasted from June 2018 through January 2019. 8 Nevertheless, the Ninth Circuit has found the harmless error standard applies in instances of ALJ’s 9 discounting of physician opinions. See Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (holding 10 that the “harmless error analysis applies ... to assess the impact of the ALJ’s failure to even mention [a 11 treating physician] or [his] notes, let alone its failure to give specific and legitimate reasons that are 12 supported by substantial evidence for rejecting a treating source’s medical opinion”); Hernandez v. 13 Berryhill, 707 F. App’x 456, 458 (9th Cir. 2017) (holding that the ALJ committed harmless error in 14 misidentifying physician’s notes); Roy v. Colvin, 656 F. App’x 816, 818–19 (9th Cir. 2016) (holding 15 the ALJ committed harmless error where she did not consider a reviewing physician’s opinion because 16 she believed the physician was “referring to ‘another individual of the same name.’”) The Ninth 17 Circuit has also “affirmed under the rubric of harmless error where the mistake was nonprejudicial to 18 the claimant or irrelevant to the ALJ’s ultimate disability conclusion.” Stout v. Comm’r, 454 F.3d 19 1050, 1055 (9th Cir. 2006). Even if the ALJ erred in his belief that the treatment was limited to a 20 seven-month period from June 2018 through January 2019, the ALJ still appears to have assessed the 21 treatment period through the June 2020 opinion. AR 26-27. Additionally, the ALJ did not solely 22 discredit Dr. Edwards and Ms. Black’s opinion based upon his belief that there was an abbreviated 23 treatment period. Instead, the ALJ examined multiple items affecting the supportability and 24 consistency of the opinion. Id. Accordingly, the ALJ’s error in assuming that “initial opinion was 25 based upon a limited treatment period of the claimant, from June 2018 through January 2019” is 26 harmless and does not necessitate remand. 27 Second, the ALJ found that Dr. Edwards’s and Ms. Black’s opinion was “not consistent with 28 that of psychological consultative examiner Dr. Richwerger, who conducted [a detailed mental 1 functional status] examination and opined that the claimant was not so limited (Exhibit 3F).” AR 27. 2 This reasoning invokes the consistency factor. “The more consistent a medical opinion(s) or prior 3 administrative medical finding(s) is with the evidence from other medical sources and nonmedical 4 sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 5 finding(s) will be.” 20 C.F.R. § 404.1520c. The opinion from Dr. Richwerger included relatively 6 normal findings regarding the client’s mannerisms, orientation and intellect, speech, thought 7 processes, understanding of instructions, affect and emotional expression, memory and concentration. 8 AR 489-90. Dr. Richwerger also conducted a mental status examination and his opinion included 9 normal results of tests involving abstractions and similarities, judgment, calculations, fund of 10 knowledge, and proverbs. AR 490. In his functional assessment, Dr. Richwerger found that Plaintiff 11 had no impairment in her ability to: perform detailed and complex tasks, perform simple and repetitive 12 tasks, perform work activities without special supervision, and understand and accept instructions 13 from supervisors. AR 492. Dr. Richwerger further found that Plaintiff had only mild impairment in 14 her ability to interact with coworkers and the public and maintain regular attendance in the workplace. 15 AR 491. Given the inconsistency between Dr. Edwards and Ms. Black’s opinion and Dr. 16 Richwerger’s relatively normal findings, the ALJ properly evaluated their opinion under the 17 consistency factor. 18 The ALJ further noted that that Dr. Edwards’s and Ms. Black’s opinion was also inconsistent 19 with Plaintiff’s reported activities. AR 27. ALJs may consider a claimant’s reported activities in 20 evaluating the persuasiveness of medical opinions. Mitchell v. Kijakazi, No. 21-35647, 2022 WL 21 17547806, at *1 (9th Cir. Dec. 9, 2022) (finding that substantial evidence supported the ALJ’s 22 decisions where the ALJ evaluated medical opinions’ “consistency and supportability against other 23 evidence in the record, including… [a plaintiff’s] contrasting reported activities”); Leonard v. Comm'r 24 of Soc. Sec., No. 1:21-cv-00627-EPG, 2022 WL 4123990, at *4 (E.D. Cal. Sept. 9, 2022) (“when 25 considered in conjunction with the rest of the ALJ's reasoning, the ALJ's reliance on Plaintiff's daily 26 activities—caring for her cat, preparing simple meals, cleaning, and sometimes administering her 27 father's insulin, etc.—is a reasonable basis to discount the severe limitations assessed [in a medical 28 opinion]”). Here, the ALJ noted that the reported activities include “attending and/or chairing multiple 1 AA meetings per week, spending time with friends, doing volunteer work, researching and expressing 2 interest in a position as Mental Health Ambassador for Tuolumne County, and creating and selling 3 artwork (Exhibits 5F at 67, 121, 173, 185, 222).” AR 27, 566 (Plaintiff said she “really appreciates 4 and enjoys her roommate who works for the Tuolumne County behavioral health Department” and has 5 “really good talks” with her roommate); 620 (Plaintiff stated that she “really wants to be” a Mental 6 Health Ambassador for Tuolumne County and is “willing [to] investigate more and will follow 7 protocol to obtain the job”); 672 (Plaintiff continued to go AA meetings during the week); 684 8 (Plaintiff “is hiking at least once a week with friends, has attended 2 potluck functions, all within the 9 last week.”); 721 (Plaintiff was physically tired but was pleased with “being able to stay out of bed for 10 the amount of time,” met with her best friend, agreed to continue meeting her best friend on a weekly 11 basis, and volunteered at a play where she “[r]eally enjoyed interacting with the community”). 12 Accordingly, the ALJ appropriately evaluated the persuasiveness of Dr. Edwards’s and Ms. Black’s 13 opinion with evidence from other medical sources and nonmedical sources. 14 Plaintiff argues that the ALJ improperly “cherry picked” from medical evidence to discredit 15 the opinion of Dr. Edwards and Ms. Black. (Doc. 10 at 17.) The Ninth Circuit has noted that it is 16 “improper for the ALJ to discount [a claimant’s] testimony by ‘cherry pick[ing]’ the absence of certain 17 symptoms from the report.” Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017). The Ninth 18 Circuit further cautioned that, “[w]hile ALJs obviously must rely on examples to show why they do 19 not believe that a claimant is credible, the data points they choose must in fact constitute examples of a 20 broader development to satisfy the applicable ‘clear and convincing’ standard.” Garrison v. Colvin, 21 759 F.3d 995, 1018 (9th Cir. 2014). However, the ALJ here appears to have examined and cited the 22 relevant treatment notes and record in evaluating Dr. Edwards’s and Ms. Black’s opinion rather than 23 choosing unrepresentative data points. AR 27, 566-67, 575-76, 588-89, 677-78, 695-96, 720-721, 24 744-45. Accordingly, the ALJ properly evaluated the persuasiveness of Dr. Edwards and Ms. Black’s 25 opinion. 26 Plaintiff further contends that the ALJ erred by failing to consider the 20 C.F.R. § 27 404.1520c(c)(1)-(5) factors of (1) Supportability; (2) Consistency; (3) Relationship with the claimant; 28 (4) Specialization; and (5) Other factors including “evidence showing a medical source has familiarity 1 with the other evidence in the claim or an understanding of our disability program’s policies and 2 evidentiary requirements.” (Doc. 10 at 20.) The statute notes that the ALJs “may, but are not required 3 to, explain how [they] considered the factors in paragraphs (c)(3) through (c)(5) of this section, as 4 appropriate, when [they] articulate how [they] consider medical opinions and prior administrative 5 medical findings in your case record.” 20 C.F.R. § 404.1520c(b)(2). A discussion of the Relationship, 6 Specialization, and “Other” factors may be appropriate when ‘two or more medical opinions ... about 7 the same issue are ... equally well-supported ... and consistent with the record ... but are not exactly the 8 same.’” Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(b)(3)). 9 Here, the opinions were not equally well-supported, and the ALJ was not required to address 10 the Relationship, Specialization, and “Other” factors. Nevertheless, the ALJ appears to have discussed 11 the factors relevant to the case. As discussed above, the ALJ invoked the “most important” 12 Supportability and Consistency factors in his analysis. AR 26-27. In addition, the ALJ reviewed and 13 discussed Dr. Edwards’s and Ms. Black’s relationship with the Plaintiff in his discussion of the 14 treatment period and his review of their treatment notes. AR 26-27 (reviewing Dr. Edwards’s and Ms. 15 Black’s treatment notes and findings). As to the Specialization factor, the ALJ notes Dr. Edwards’s 16 M.D. Credentials and Ms. Black’s LCSW credentials. AR 26. In her motion, Plaintiff notes that 17 Plaintiff’s “doctors and therapists have extensive psychiatric experience,” but does not provide further 18 detail regarding experience or specialization. (Doc. 10 at 21.) As to the “Other” factors, there is no 19 indication in the record that Dr. Edwards or Ms. Black were familiar with the other evidence in the 20 claim or had an understanding of Social Security policies and evidentiary requirements. The ALJ 21 therefore properly considered the 20 C.F.R. § 404.1520c(c) factors in his discounting of Dr. Edwards 22 and Ms. Black’s opinion. 23 2. Opinion of Janet Black, LCSW 24 On November 1, 2022, Ms. Black, LCSW, filled out another Mental Impairment 25 Questionnaire. AR 1462-1466. Ms. Black noted that she began treating Plaintiff on November 18, 26 2018 and had seen Plaintiff weekly, though Plaintiff worked with a “different clinical for one year.” 27 AR 1462. On the form, Ms. Black indicated that Plaintiff had no useful ability to function in 28 remembering work-like procedures and maintaining attention for two-hour segments. AR 1464. Ms. 1 Black further indicated that Plaintiff was either unable to meet competitive standards or had no useful 2 ability to function in completing a normal workday and workweek without interruptions from 3 psychologically based symptoms, performing at a consistent pace without an unreasonable number 4 and length of rest periods, responding appropriately to changes in a routine work setting, dealing with 5 normal work stress, understanding and remembering detailed instructions, carrying out detailed 6 instructions, traveling in unfamiliar places, and using public transportation. AR 1464-1465. Ms. 7 Black also indicated that Plaintiff was unable to meet competitive standards in understanding and 8 remembering very short and simple instructions, accepting instructions, and responding appropriately 9 to criticism from supervisors. AR 1464. Ms. Black indicated that Plaintiff’s impairments or treatment 10 would cause her to be absent from work or be unable to complete a workday more than four days per 11 month. AR 1466. 12 In evaluating Ms. Black’s opinion along with her earlier opinion with Dr. Edward, the ALJ 13 reasoned as follows: 14 The undersigned is not persuaded by the opinions of Dr. Edwards and Ms. Black. There is minimal narrative support for the opinions within the 15 submitted documents, and the initial opinion was based upon a limited treatment period of the claimant, from June 2018 through January 2019 16 (Exhibit 4F). In addition, opinions as to the claimant’s extreme mental 17 functional limitations are not supported by Dr. Edward’s treatment notes, which show no significant changes, euthymic mood, upbeat presentation, 18 goal directed thought processes and nonpressured speech (Exhibit 5F at 76-77, 89-90, 196-197). Additionally, neither of Ms. Black’s opinions are 19 supported by her mostly unremarkable findings, with the exception of 20 labile mood with anxious, agitated and tearful affect, circumstantial speech, episodic tangential reports/responses and episodic mild to 21 moderate dissociative mindsets (Exhibit 5F at 68, 178, 221, 246). Further, their treatment notes did not show that detailed mental functional status 22 examinations were conducted of the claimant, and their opinion is not 23 consistent with that of psychological consultative examiner Dr. Richwerger, who conducted such examination and opined that the 24 claimant was not so limited (Exhibit 3F). Finally, their opinions are also inconsistent with the claimant’s reported activities, including attending 25 and/or chairing multiple AA meetings per week, spending time with friends, doing volunteer work, researching and expressing interest in a 26 position as Mental Health Ambassador for Tuolumne County, and 27 creating and selling artwork (Exhibits 5F at 67, 121, 173, 185, 222). Finally, Ms. Black’s latter opinion is supported by no contemporaneous 28 1 treatment notes, as the record shows no treatment of the claimant by Ms. Black after June 2020 (Exhibit 5F at 57). 2 AR 26-27. 3 First, the ALJ found that there was “minimal narrative support” of the opinion, the opinion was 4 not supported by the findings in Ms. Black’s treatment notes, the treatment notes did not show that 5 detailed mental functional status examinations were conducted with Plaintiff, and the initial opinion 6 was based upon a limited treatment period. AR 26. This reasoning invokes the supportability factor, 7 which means “the extent to which a medical source supports the medical opinion by explaining the 8 ‘relevant ... objective medical evidence.’” Woods, 32 F.4th at 791-92 (citing 20 C.F.R. § 9 404.1520c(c)(1)). 10 In assessing Ms. Black’s opinion, the ALJ cites Ms. Black’s treatment notes and “mostly 11 unremarkable findings, with the exception of labile mood with anxious, agitated and tearful affect, 12 circumstantial speech, episodic tangential reports/responses and episodic mild to moderate dissociative 13 mindsets (Exhibit 5F at 68, 178, 221, 246).” AR 27, 566-67 (June 8, 2020 visit report noting 14 Plaintiff’s anxious mood and affect and that Plaintiff “appears to be anxious, tearful at times; however, 15 less extremes in [sic] previously.”); 677-678 (May 16, 2019 visit report noting Plaintiff’s labile mood, 16 Plaintiff reporting that she “was doing pretty well, the new meds regime is helping,” and assessment of 17 severe major depressive disorder); 720-721 (March 18, 2019 visit report noting Plaintiff’s labile mood 18 and no present psychosis or hopelessness/helplessness, denial of intent or plan to self-injury, Plaintiff 19 reporting being “physically tired, yet somewhat pleased with self [i.e.] accomplishments and being 20 able to stay out of bed for the amount of time.”); 744-45 (January 21, 2019 visit report noting 21 Plaintiff’s labile mood, Plaintiff “appears to be less anxious, Lucid, and more connected w/emotions, 22 with the goal of ‘letting go of the hurt & go forward.’” Also notes that Plaintiff feels she is at a “7/10” 23 in her progress and feels “more empowered, feeling less depressed AND NOT suicidal.”). The ALJ 24 therefore evaluated the supportability of Ms. Black’s opinion. 25 The ALJ also incorrectly states that Ms. Black’s November 1, 2022, opinion is not supported 26 by contemporaneous treatment notes, “as the record shows no treatment of the claimant by Ms. Black 27 after June 2020 (Exhibit 5F at 57)”. AR 27. However, the record provides multiple case consultation 28 1 reports from visits Plaintiff had with Ms. Black in September and October 2021. AR 1456-1458 2 (October 19, 2021 report noting euthymic mood and anxious affect); 1453-1455 (October 12, 2021 3 report noting euthymic mood and congruent affect); 1450-1452 (September 23, 2021 report noting 4 Plaintiff’s symptoms of depression have improved but that Plaintiff feels constantly tired); 1447-1449 5 (September 20, 2021 report noting Plaintiff’s dysphoric mood with anxious affect, and that Plaintiff 6 “appears to be mildly dissociative at the end of session” but “denies any thoughts/intent, or plans of 7 suicide or harming others” and “reports that current medicine regime appears to be helping.”). It 8 therefore appears that the ALJ erred in his assumption that the record showed no treatment of the 9 claimant by Ms. Black after June 2020. Nevertheless, the Ninth Circuit has found the harmless error 10 standard applies in instances of ALJ’s discounting of physician opinions. See Marsh, 792 F.3d at 11 1172; Hernandez, 707 F. App’x at 458; Roy, 656 F. App’x at 818–19. The Ninth Circuit has also 12 “affirmed under the rubric of harmless error where the mistake was nonprejudicial to the claimant or 13 irrelevant to the ALJ’s ultimate disability conclusion.” Stout v. Comm’r, 454 F.3d 1050, 1055 (9th 14 Cir. 2006). Even if the ALJ erred in his belief that there were no treatment notes from Ms. Black after 15 2020, the findings in her treatment notes were substantially similar to her earlier findings. AR 566- 16 567, 677-678, 720-721, 744-745, 1456-1458, 1453-1455, 1450-1452, 1447-1449. In addition, the ALJ 17 did not solely discredit Ms. Black’s November 1, 2022 opinion based upon the lack of later treatment 18 notes. AR 27. The ALJ instead evaluated Ms. Black’s opinion based upon its supportability and 19 consistency. Accordingly, the ALJ’s error in assuming that “the record shows no treatment of the 20 claimant by Ms. Black after June 2020” is harmless and does not necessitate remand. 21 Second, the ALJ found that Ms. Black’s opinion was “not consistent with that of psychological 22 consultative examiner Dr. Richwerger, who conducted [a detailed mental functional status] 23 examination and opined that the claimant was not so limited (Exhibit 3F).” AR 27. The ALJ also 24 noted that Ms. Black’s opinion was also inconsistent with Plaintiff’s reported activities. Id. This 25 reasoning invokes the consistency factor, which “means the extent to which a medical opinion is 26 ‘consistent ... with the evidence from other medical sources and nonmedical sources in the claim.’” 27 Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). As discussed above, Dr. Richwerger 28 conducted a mental status examination and his opinion included relatively normal findings and results 1 with a functional assessment that Plaintiff had only mild impairment in her ability to interact with 2 coworkers and the public and maintain regular attendance in the workplace and no impairment in her 3 ability to perform detailed and complex tasks, perform simple and repetitive tasks, perform work 4 activities without special supervision, understand and accept instructions from supervisors. AR 489- 5 92. Given the inconsistency between Ms. Black’s opinion and Dr. Richwerger’s relatively normal 6 findings, it appears that the ALJ appropriately evaluated the consistency of Ms. Black’s opinion with 7 evidence from other medical sources and nonmedical sources. 8 The ALJ further noted that that Ms. Black’s opinion was also inconsistent with Plaintiff’s 9 reported activities. AR 27. ALJs may consider a claimant’s reported activities in evaluating the 10 persuasiveness of medical opinions. Mitchell, 2022 WL 17547806, at *1; Leonard, 2022 WL 11 4123990, at *4. The ALJ noted that Plaintiff’s reported activities include “attending and/or chairing 12 multiple AA meetings per week, spending time with friends, doing volunteer work, researching and 13 expressing interest in a position as Mental Health Ambassador for Tuolumne County, and creating and 14 selling artwork (Exhibits 5F at 67, 121, 173, 185, 222).” AR 27, 566 (Plaintiff said she “really 15 appreciates and enjoys her roommate who works for the Tuolumne County behavioral health 16 Department” and has “really good talks” with her roommate); 620 (Plaintiff stated that she “really 17 wants to be” a Mental Health Ambassador for Tuolumne County and is “willing [to] investigate more 18 and will follow protocol to obtain the job”); 672 (Plaintiff continued to go AA meetings during the 19 week); 684 (Plaintiff “is hiking at least once a week with friends, has attended 2 potluck functions, all 20 within the last week.”); 721 (Plaintiff was physically tired but pleased with “being able to stay out of 21 bed for the amount of time,” met with her best friend, agreed to continue meeting with her friend on a 22 weekly basis, and volunteered at a play where she “[r]eally enjoyed interacting with the community”). 23 Accordingly, the ALJ properly evaluated the persuasiveness of Ms. Black’s opinion through 24 examining Plaintiff’s reported activities. 25 As discussed above, Plaintiff argues that the ALJ improperly “cherry picked” from medical 26 evidence to discredit the opinion of Ms. Black. (Doc. 10 at 17.); see Diedrich, 874 F.3d at 642; 27 Garrison, 759 F.3d at 1018. However, the ALJ here appears to have examined and cited the relevant 28 treatment notes and record preceding Dr. Edward’s and Ms. Black’s opinion rather than choosing 1 unrepresentative data points. AR 27, 566-67, 575-76, 588-89, 677-78, 695-96, 720-721, 744-45. 2 Accordingly, the ALJ properly evaluated the persuasiveness of Dr. Edwards and Ms. Black’s opinion. 3 Plaintiff further contends that the ALJ erred in evaluating Ms. Black’s opinion by failing to 4 consider the 20 C.F.R. § 404.1520c(c) factors, which include (1) Supportability; (2) Consistency; (3) 5 Relationship with the claimant; (4) Specialization; and (5) Other factors including “evidence showing 6 a medical source has familiarity with the other evidence in the claim or an understanding of our 7 disability program’s policies and evidentiary requirements.” (Doc. 10 at 20.) ALJs “may, but are not 8 required to, explain how [they] considered the factors in paragraphs (c)(3) through (c)(5) of this 9 section, as appropriate, when [they] articulate how [they] consider medical opinions and prior 10 administrative medical findings in your case record.” 20 C.F.R. § 404.1520c(b)(2). A discussion of 11 the Relationship, Specialization, and “Other” factors may be appropriate when ‘two or more medical 12 opinions ... about the same issue are ... equally well-supported ... and consistent with the record ... but 13 are not exactly the same.’” Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(b)(3)). 14 Here, the opinions were not equally well-supported, and the ALJ was not required to address 15 the Relationship, Specialization, and Other factors. Nevertheless, the ALJ appears to have discussed 16 the factors relevant to the case. As discussed above, the ALJ invoked the “most important” 17 Supportability and Consistency factors in his analysis. AR 26-27. In addition, the ALJ appears to 18 have reviewed and discussed Ms. Black’s relationship with the Plaintiff in his discussion of the 19 treatment period and his review of their treatment notes. Id. (reviewing Ms. Black’s treatment notes 20 and findings). As to the Specialization factor, the ALJ notes Ms. Black’s LCSW credentials. AR 26. 21 In her motion, Plaintiff notes that Plaintiff’s “therapists have extensive psychiatric experience,” but 22 does not provide further detail regarding experience or specialization. (Doc. 10 at 21.) As to the 23 “Other” factors, there is no indication in the record that Ms. Black was familiar with the other 24 evidence in the claim or had an understanding of Social Security policies and evidentiary 25 requirements. The ALJ therefore properly considered the 20 C.F.R. § 404.1520c(c) factors in his 26 discounting of Ms. Black’s opinion. 27 /// 28 /// 1 3. Opinion of Dr. Robert Reina, M.D. 2 On March 10, 2021, Robert Reina, M.D., filled out a Physical Residual Functional Capacity 3 Questionnaire. AR 948-949. On the form, Dr. Reina noted that he began treating Plaintiff on January 4 20, 2014, and had saw Plaintiff every three months. AR 948. He listed his diagnoses as “PTSD 5 (chronic and acute), Bipolar II disorder” and the prognosis as “Poor prognosis as she has been 6 struggling with diagnosis since 2014 with poor results.” Id. Dr. Reina indicated that Plaintiff could sit 7 for at least 6 hours in a day, Plaintiff could stand or walk for about four hours in a day, and Plaintiff 8 required three-minute periods of walking around every 90 minutes during an eight-hour working day. 9 Id. Dr. Reina further indicated that Plaintiff would not need to take unscheduled breaks during an 10 eight-hour working day, did not need to have her legs be elevated. AR 949. Dr. Reina marked that in 11 a competitive work situation, Plaintiff could never lift fifty pounds, could occasionally lift twenty 12 pounds, and could frequently lift ten pounds or less. Id. Dr. Reina further noted that Plaintiff’s 13 impairments were likely to produce “good days” and “bad days” and that on average, he estimated 14 Plaintiff to be absent for more than four days per month. Id. 15 In evaluating Dr. Reina’s opinion, the ALJ summarized his findings and reasoned as follows: 16 In a form dated March 10, 2021, Robert Reina, M.D., opined that because of PTSD and bipolar II disorder, the claimant could, in part, stand/walk 17 for about four hours, sit for at least six hours, occasionally lift twenty pounds, frequently lift ten pounds, and would miss more than four days 18 of work per month (Exhibit 9F). The undersigned is not persuaded by the 19 opinion of Dr. Reina. His opinion of the claimant’s physical functional limitations is internally unsupported by his diagnoses of chronic and acute 20 PTSD and bipolar II disorder (Exhibit 9F at 1). What is more, his opinion of these limitations is not supported by his mostly normal physical exam 21 findings (Exhibit 2F at 12-13, 16, 21, 45-46). Finally, his opinion is not 22 consistent with other unremarkable physical exam findings of record (5F at 16; 11F at 11; 12F at 61). 23 AR 19. 24 The Court finds that the ALJ properly evaluated the opinion of Dr. Reina under the new 25 regulations. First, the ALJ found that Dr. Reina’s opinion was “unsupported by his diagnoses of 26 chronic and acute PTSD and bipolar II disorder” and Dr. Reina’s opinion of Plaintiff’s limitations 27 were “not supported by his mostly normal physical exam findings.” AR 19. This reasoning invokes 28 1 the supportability factor, which means “the extent to which a medical source supports the medical 2 opinion by explaining the ‘relevant ... objective medical evidence.’” Woods, 32 F.4th at 791-92 (citing 3 20 C.F.R. § 404.1520c(c)(1)). 4 The ALJ’s note that Dr. Reina’s opinion was “unsupported by his diagnoses of chronic and 5 acute PTSD and bipolar II disorder” appears to consider that Dr. Reina did not provide further 6 explanation or connection between the diagnoses and the limited functionality he suggests. 7 Furthermore, the ALJ cites Dr. Reina’s treatment notes, which reveal normal findings as to orientation, 8 affect, and mood as well as a mix of positive and negative findings for depression and anxiety and 9 related symptoms. See AR 19, 420-423 (September 11, 2019 office visit report noting “symptoms are 10 reported as being severe” and “Leading diagnosis is bipolar” though Plaintiff is “Doing well with 11 Lamictal/Effexor,” “states ‘this is the best she has felt in a long time’” and “Denies any severe 12 depression.”); 424-427 (June 27, 2014 office visit report noting “symptoms are chronic and are 13 uncontrolled, patient was severe anxiety disorder with panic attacks… Her medications are being 14 adjusted. Still with severe anxiety disorder and panic attacks. On temp her disability due to her 15 inability to manage her work at this time.”); 428-431 (April 18, 2019 office visit report noting “patient 16 presents with anxious/fearful thoughts, compulsive thoughts, depressed mood, difficulty 17 concentrating, difficulty falling asleep, diminished interest or pleasure, excessive worry, fatigue, 18 racing thoughts and restlessness but denies feelings of invulnerability, loss of appetite, paranoia or 19 thoughts of death or suicide… Interventions the patient has tried have not provided any relief” but 20 psychiatric findings are “Normal… Oriented to time, place, person & situation. No agitation. 21 Appropriate mood and affect. Sufficient fund of knowledge. Sufficient language… Not forgetful… No 22 increased activity. No memory loss. Normal insight. Normal judgment. No suicidal ideation.”); 432- 23 435 (March 14, 2019 office visit noting “symptoms are reported as being incapacitating” and “occur 24 constantly,” though “Normal” psychiatric findings with appropriate orientation, mood, and affect.); 25 436-439 (February 27, 2019 office visit report noting depression “symptoms are uncontrolled. There is 26 worsening of previously reported symptoms. The patient reports functioning as very difficult.” 27 Positive psychiatric findings for anxiety, compulsive thoughts or behaviors, excessive worry, feeling 28 down, depressed, or hopeless, Little interest or pleasure in doing things, racing thoughts. Negative 1 psychiatric findings for decreased sleep, invulnerability, and suicidal ideation. Normal psychiatric 2 findings as to orientation, mood, and affect.); 440-444 (February 12, 2019 office visit report noting 3 positive psychiatric findings for depression, feeling down, depressed, or hopeless, little interest or 4 pleasure in doing things. Negative psychiatric findings for anxiety, insomnia, and suicidal ideation. 5 Normal psychiatric findings as to orientation, mood, and affect.); 445-448 (November 21, 2018 office 6 visit report noting normal findings as to orientation, mood, and affect; positive findings for difficulty 7 concentrating, feeling down, depressed or hopeless; and negative findings for anxiety, depression, and 8 suicidal ideation); 449-452 (November 8, 2018 office visit report noting positive findings for anxiety, 9 compulsive thoughts, feeling down, suicidal ideation; negative findings for difficulty concentrating, 10 hallucinations, paranoia, and racing thoughts; normal findings as to orientation, mood, and affect); 11 453-456 (October 10, 2017 office visit report noting negative findings as to feeling down, depressed or 12 hopeless and little interest or pleasure in doing things; normal findings as to orientation, mood, and 13 affect). While there are positive findings related to depression and anxiety, the ALJ holistically 14 examined Dr. Reina’s treatment notes to address the supportability of his opinion. 15 Second, the ALJ found that Dr. Reina’s opinion was “not consistent with other unremarkable 16 physical exam findings of record (5F at 16; 11F at 11; 12F at 61).” AR 19. This reasoning invokes 17 the consistency factor, which “means the extent to which a medical opinion is ‘consistent ... with the 18 evidence from other medical sources and nonmedical sources in the claim.’” Woods, 34 F.4th at 792. 19 The ALJ cited findings and charts in the record that reveal relatively normal findings. AR 515 20 (normal eyes, ears, nasopharynx, respiratory, cardiovascular, abdomen, extremity, neurological, and 21 psychiatric findings); 1319 (normal constitutional, eyes, ears, nose/mouth/throat, neck exam, 22 respiratory, cardiovascular, abdomen, extremity, neurological, psychiatric findings); 1435-1437 23 (noting medication chart update). Given the inconsistency between Dr. Reina’s opinion and his 24 relatively unremarkable findings and other findings in the record, the ALJ properly evaluated his 25 opinion under the consistency factor analysis. 26 Plaintiff argues that the ALJ improperly “cherry picked” from medical evidence to discount 27 Dr. Reina’s opinion. (Doc. 10 at 17.); see Diedrich, 874 F.3d at 642; Garrison, 759 F.3d at 1018. 28 However, the ALJ here appears to have examined and cited the relevant treatment notes and record 1 preceding Dr. Reina’s opinion rather than choosing unrepresentative data points. AR 19, 420-423; 2 424-427; 428-431; 432-435, 436-439, 440-444, 445-448, 449-452, 453-456. Accordingly, the ALJ 3 properly evaluated the persuasiveness of Dr. Reina’s opinion. 4 Plaintiff further contends that the ALJ erred in evaluating Dr. Reina’s opinion by failing to 5 consider the 20 C.F.R. § 404.1520c(c) factors of (1) Supportability; (2) Consistency; (3) Relationship 6 with the claimant; (4) Specialization; and (5) Other factors including “evidence showing a medical 7 source has familiarity with the other evidence in the claim or an understanding of our disability 8 program’s policies and evidentiary requirements.” (Doc. 10 at 20.) ALJs “may, but are not required 9 to, explain how [they] considered the factors in paragraphs (c)(3) through (c)(5) of this section, as 10 appropriate, when [they] articulate how [they] consider medical opinions and prior administrative 11 medical findings in your case record.” 20 C.F.R. § 404.1520c(b)(2). A discussion of the Relationship, 12 Specialization, and “Other” factors may be appropriate when ‘two or more medical opinions ... about 13 the same issue are ... equally well-supported ... and consistent with the record ... but are not exactly the 14 same.’” Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(b)(3)). 15 Here, the opinions were not equally well-supported, and the ALJ was not required to address 16 the Relationship, Specialization, and “Other” factors. Nevertheless, the ALJ discussed the factors 17 relevant to the case. As discussed above, the ALJ invoked the “most important” Supportability and 18 Consistency factors in his analysis. AR 19. Additionally, as to the specializations factor, the ALJ 19 noted Dr. Reina’s M.D. credentials in assessing his opinion. AR 19. In her motion, Plaintiff notes that 20 “[t]hese doctors and therapists have extensive psychiatric experience,” but does not provide further 21 detail regarding Dr. Reina’s experience or specialization. (Doc. 10 at 21.) As to the “Other” factors, 22 there is no indication in the record that Dr. Reina was familiar with the other evidence in the claim or 23 had an understanding of Social Security policies and evidentiary requirements. The ALJ therefore 24 properly considered the 20 C.F.R. § 404.1520c(c) factors in his discounting of Dr. Reina’s opinion. 25 4. Opinion of Donna Villanueva, LMFT 26 On February 18, 2021, Donna Villanueva, LMFT, filled out a Mental Impairment 27 Questionnaire. AR 943-47. In the questionnaire, Ms. Villanueva noted that she began treating 28 Plaintiff on August 3, 2020, for Post-Traumatic Stress Disorder and Major Depressive Disorder with 1 weekly contact. AR 943. Ms. Villanueva noted that the present treatment was weekly psychotherapy 2 and Effexor and Abilify prescriptions which had no side effects. Id. Ms. Villanueva wrote that 3 Plaintiff “is significantly impaired in her ability to do work tasks and social functioning due to the 4 symptoms of her PTSD and MDD.” Id. Ms. Villanueva indicated that Plaintiff’s symptoms included: 5 anhedonia, significant difficulties learning and using academic skills, thoughts of suicide or death, 6 feelings of guilt or worthlessness, panic attacks followed by a persistent concern or worry about 7 additional panic attacks or their consequences, disturbance of mood and behavior, feelings of 8 inadequacy, involuntary re-experiencing of the traumatic event, difficulty thinking or concentrating, 9 irritability, frequent distractibility, decreased energy, disproportionate fear or anxiety about at least 10 two different situations, easily fatigued, avoidance of external reminders of traumatic event, muscle 11 tension, depressed mood, easy distractibility, preoccupation with perfectionism and orderliness. AR 12 944. Ms. Villanueva indicated that Plaintiff did not have reduced intellectual functioning and that the 13 psychiatric condition did not exacerbate Plaintiff’s experience of pain or other physical symptoms. Id. 14 Ms. Villanueva also indicated that Plaintiff had “no useful ability to function” regarding 15 completing a normal workday and workweek without interruptions from psychologically based 16 symptoms and performing at a consistent pace without an unreasonable number and length of rest 17 periods. AR 945. Ms. Villanueva further indicated that Plaintiff was “unable to meet competitive 18 standards” in dealing with normal work stress, dealing with stress of semiskilled and skilled work, 19 traveling in unfamiliar places, and using public transportation. AR 945-946. She also indicated that 20 Plaintiff had a “marked” functional limitation, with “[d]ifficulties in the ability to concentrate, persist, 21 or maintain pace.” AR 946. Ms. Villanueva wrote that the “significant symptoms of PTSD make it 22 difficult to do everyday jobs tasks.” AR 947. She further estimated Plaintiff’s impairments or 23 treatment would cause Plaintiff to be absent or unable to complete a work day for more than four days 24 per month. Id. 25 In evaluating Ms. Villanueva’s opinion, the ALJ summarized her findings and reasoned as 26 follows: 27 On February 18, 2021, Donna Villanueva, LMFT, opined, in part, that the claimant had no useful abilities to function in a normal workday or 28 1 workweek or perform at a consistent pace, and she was unable to meet competitive standards with respect to dealing with normal work stress, 2 skilled or semi-skilled work, traveling in unfamiliar places, or using public transportation. She determined that the claimant would miss more 3 than four days of work per month due to her psychiatric impairments 4 (Exhibit 8F). The undersigned is not persuaded by the opinion of Ms. Villanueva. Such opinion is supported by a limited narrative based upon 5 a limited treatment period, as Ms. Villanueva reported that she had just started treating the claimant on August 3, 2020 (Exhibit 8F at 1). In 6 addition, the record contains no mental status findings from Ms. 7 Villanueva, and her opinion is not supported by her recommendation of generally conservative treatment with group therapy and EMDR (Exhibit 8 7F at 37). Moreover, her opinion of the claimant’s extreme mental functional limitations is not consistent with the normal mental status 9 findings of record (Exhibits 1F at 17, 18; 2F at 13, 16, 21, 24; 3F at 5, 6; 10 5F at 67, 89, 246; 6F at 4; 7F at 32, 33; 12F at 5, 79). Further, Ms. Villanueva’s opinion is inconsistent with the claimant’s reported 11 activities, including having a supportive roommate and friends and creating and selling artwork (Exhibit 7F at 70, 74, 77, 78). It is further 12 inconsistent with the claimant’s ability to participate in developing a plan of care and to decrease her depressive symptoms using skills gained 13 through therapy (Exhibit 7F at 59, 73, 79). 14 AR 28. 15 The Court finds that the ALJ properly evaluated the opinion of Ms. Villanueva under the new 16 regulations. First, the ALJ found that the opinion is only “supported by a limited narrative based upon 17 a limited treatment period” and “contains no mental status findings from Ms. Villanueva.” AR 28. 18 This reasoning invokes the supportability factor, which means “the extent to which a medical source 19 supports the medical opinion by explaining the ‘relevant ... objective medical evidence.’” Woods, 32 20 F.4th at 791-92 (citing 20 C.F.R. § 404.1520c(c)(1)). As noted by the ALJ, Ms. Villanueva’s progress 21 notes in the record show client narratives without further mental status examination findings and a 22 limited treatment window from August 28, 2020 to February 5, 2021. AR 897-942. The ALJ thus 23 appropriately examined Ms. Villanueva’s treatment notes to address the supportability of her opinion. 24 Second, the ALJ found that Ms. Villanueva’s opinion was “not consistent with the normal 25 mental status findings of record (Exhibits 1F at 17, 18; 2F at 13, 16, 21, 24; 3F at 5, 6; 5F at 67, 89, 26 246; 6F at 4; 7F at 32, 33; 12F at 5, 79).” This reasoning invokes the consistency factor, which 27 “means the extent to which a medical opinion is ‘consistent ... with the evidence from other medical 28 1 sources and nonmedical sources in the claim.’” Woods, 34 F.4th at 792 (citing 20 C.F.R. § 2 404.1520c(c)(2)). The ALJ cited treatment notes and visit reports that reveal relatively normal 3 findings. AR 406-407 (normal neurological and psychiatric mood and affect findings, noting anxiety, 4 depression, and suicide risk); 422 (normal psychiatric exam findings), 425 (normal psychiatric exam 5 findings), 430 (normal psychiatric exam findings), 433 (normal psychiatric exam findings); 489-490 6 (noting that Plaintiff’s “depressive symptoms have been stable. She continues to have distressing 7 anxiety, and agreed to continue medications.” Normal findings as to orientation, intellect, speech, 8 thought processes, understanding of instructions, memory, concentration, judgment, fund of 9 knowledge, reality contact, and cognitive test results); 566-567 (noting anxious mood and affect and 10 that Plaintiff “appears to be anxious, tearful at times; however, less extremes in [sic] previously.”); 11 588-589 (noting no significant change in mood, affect, thought process, orientation, behavior, or 12 functioning. Plaintiff presenting with a euthymic mood, “very upbeat but not hypomanic,” goal 13 directed thought processes, and speech not pressured); 744-745 (noting Plaintiff’s labile mood, 14 Plaintiff “appears to be less anxious, Lucid, and more connected w/emotions, with the goal of ‘letting 15 go of the hurt & go forward.’” Also notes that Plaintiff feels she is at a “7/10” in her progress and 16 feels “more empowered, feeling less depressed AND NOT suicidal.”); 858-860 (normal neurological 17 evaluation findings, noting chronic fatigue syndrome, referral to specialist for evaluation of anxiety, 18 depression, PTSD, bipolar disorder, and schizoaffective disorder); 892-93 (normal findings for speech, 19 thought, orientation, and attention; findings of “fair,” “poor,” or “impaired” for ability to concentrate, 20 memory, judgment, and insight); 1379 (noting severe depression and severe bipolar disorder, patient 21 plan includes continuing current medications and following up in three months), 1453 (Plaintiff was 22 “alert and oriented, with mild-moderate dissociative episodes during session; with Euthymic Mood 23 with congruent Affect. She reports in a Linear Thought Process as she shares serious changes within 24 her support circle.”). Given the inconsistency between Ms. Villanueva’s opinion and other findings in 25 the record, the ALJ properly evaluated her opinion through a consistency factor analysis. 26 Plaintiff argues that the ALJ improperly “cherry picked” from medical evidence to discount 27 Ms. Villanueva’s opinion. (Doc. 10 at 17.); see Diedrich, 874 F.3d at 642; Garrison, 759 F.3d at 28 1018. However, the ALJ here appears to have examined and cited the relevant treatment notes and 1 record rather than relying on unrepresentative data points. AR 406-407, 422, 425, 433, 489-490, 566- 2 67, 588-89, 744-45, 858-860, 892-93, 897-942, 1379, 1453. Accordingly, the ALJ properly evaluated 3 the persuasiveness of Ms. Villanueva’s opinion. 4 Plaintiff further contends that the ALJ erred in evaluating Ms. Villanueva’s opinion by failing 5 to consider the 20 C.F.R. § 404.1520c(c) factors of: (1) Supportability; (2) Consistency; (3) 6 Relationship with the claimant; (4) Specialization; and (5) Other factors including “evidence showing 7 a medical source has familiarity with the other evidence in the claim or an understanding of our 8 disability program’s policies and evidentiary requirements.” (Doc. 10 at 16.) ALJs “may, but are not 9 required to, explain how [they] considered the factors in paragraphs (c)(3) through (c)(5) of this 10 section, as appropriate, when [they] articulate how [they] consider medical opinions and prior 11 administrative medical findings in your case record.” 20 C.F.R. § 404.1520c(b)(2). A discussion of 12 the Relationship, Specialization, and “Other” factors may be appropriate when ‘two or more medical 13 opinions ... about the same issue are ... equally well-supported ... and consistent with the record ... but 14 are not exactly the same.’” Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(b)(3)). 15 Here, the opinions were not equally well-supported, and the ALJ was not required to address 16 the Relationship, Specialization, and “Other” factors. Nevertheless, the ALJ discussed the factors 17 relevant to the case. As discussed above, the ALJ invoked the “most important” Supportability and 18 Consistency factors in his analysis. AR 28. Additionally, as to the Specialization factor, the ALJ 19 noted Ms. Villanueva’s LMFT credentials in assessing his opinion. Id. In her motion, Plaintiff notes 20 that “[t]hese doctors and therapists have extensive psychiatric experience,” but does not provide 21 further detail regarding Ms. Villanueva’s experience or specialization. (Doc. 10 at 21.) As to the 22 “Other” factors, there is no indication in the record that Ms. Villanueva was familiar with the other 23 evidence in the claim or had an understanding of Social Security policies and evidentiary 24 requirements. The ALJ therefore properly considered the 20 C.F.R. § 404.1520c(c) factors in 25 evaluating Ms. Villanueva’s opinion. 26 The Court therefore concludes that the ALJ did not err in discounting the opinions of Dr. 27 Edwards, Ms. Black, Dr. Reina, and Ms. Villanueva. 28 /// 1 C. Plaintiff’s Subjective Complaints 2 Plaintiff next contends that the ALJ committed harmful error by failing to provide clear and 3 convincing reasons for rejecting Plaintiff’s testimony as inconsistent with the evidence. (Doc. 10 at 4 21.) In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a two- 5 step analysis. Garrison, 759 F.3d at 1014; Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir. 2004). 6 First, the claimant must produce objective medical evidence of her impairment that could reasonably 7 be expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014. If 8 the claimant satisfies the first step and there is no evidence of malingering, the ALJ may reject the 9 claimant’s testimony regarding the severity of her symptoms only by offering specific, clear and 10 convincing reasons for doing so. Id. at 1015. 11 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms. AR 21. However, the ALJ discounted Plaintiff’s statements 13 concerning the intensity, persistence, and limiting effects of those symptoms, noting that the 14 statements were not consistent with medical evidence and other evidence in the record. Id. The ALJ 15 was therefore required to provide specific, clear and convincing reasons for discounting Plaintiff’s 16 subjective complaints. 17 In assessing Plaintiff’s statements and subjective complaints, the ALJ noted: 18 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be 19 expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of 20 these symptoms are not entirely consistent with the medical evidence and 21 other evidence in the record for the reasons explained in this decision… Moreover, the record supports that the claimant’s mental symptoms can 22 be largely controlled with medication and therapy (Exhibits 1F at 10; 2F at 11; 3F at 3; 5F at 89, 179, 246; 7F at 62, 70, 73, 79; 12F at 14-15, 27, 23 80). As for the claimant’s statements about the intensity, persistence, and 24 limiting effects of her symptoms, they are inconsistent because she is not as restricted as she claims. The undersigned must assess the consistency 25 of the claimant’s statements about the intensity, persistence, and limiting effects of symptoms with the objective medical evidence and the other 26 evidence of record. Despite her combination of alleged impairments, the 27 claimant has engaged in a somewhat normal level of daily activity and interaction. The claimant admitted to activities of daily living including 28 light housecleaning, performing self-care activities such as dressing and 1 bathing, socializing with others, driving, managing her finances, doing volunteer work and interacting with the community and displaying 2 sufficient concentration and attention to paint rocks, create and sell artwork (Exhibits 3F at 4, 5; 5F at 67, 222; 7F at 74). Some of the physical 3 and mental abilities and social interactions required to perform these 4 activities are the same as those necessary for obtaining and maintaining employment. The undersigned finds the claimant’s ability to participate 5 in such activities is inconsistent with her allegations of functional limitations. 6 AR 21, 25. 7 First, the ALJ noted the inconsistences between Plaintiff’s symptom statements and objective 8 medical evidence in the record. Id. Although lack of supporting medical evidence cannot form the 9 sole basis for discounting testimony, it is a factor that the ALJ can consider. See Burch v. Barnhart, 10 400 F.3d 676, 681 (9th Cir. 2005). In discussing the restrictions in the residual functional capacity, the 11 ALJ pointed to the objective medical evidence in the record, noting that “[m]ental status examinations 12 have routinely shown the claimant to be cooperative, alert and fully oriented, with appropriate dress 13 and hygiene, and normal psychomotor activity, mood, affect, speech, perception, thought process and 14 thought content.” AR 21, 25, 406-407, 422, 425, 433, 489-490, 566-67, 588-589, 744-745, 858-860, 15 892-93, 897-942, 1379, 1453. The ALJ further summarized that, during treatment, Plaintiff “has been 16 found to have adequate judgment and insight, grossly intact immediate, recent and remote memory, 17 normal attention and sufficient fund of knowledge and abstraction ability.” AR 25, 430, 490, 745, 18 893. Accordingly, the ALJ properly considered medical evidence as one factor in discounting 19 Plaintiff’s testimony. 20 Second, the ALJ found that Plaintiff’s subjective symptoms and difficulties were inconsistent 21 with her relatively intact daily activities. AR 25. An ALJ may properly discount a claimant’s 22 subjective complaints when the daily activities demonstrate an inconsistency between what the 23 claimant can do and the degree that disability is alleged. Molina v. Astrue, 674 F.3d 1104, 1112–13 24 (9th Cir. 2012) (an ALJ may consider “whether the claimant engages in daily activities inconsistent 25 with the alleged symptoms”), superseded by regulation on other grounds (identifying two-step 26 analysis in assessing the credibility of a claimant's testimony regarding the subjective pain or intensity 27 of symptoms). Even where a plaintiff’s activities suggest some difficulty functioning, they may be 28 1 grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a totally 2 debilitating impairment. Id. at 1113. 3 Here, the ALJ discussed treatment notes and stated that Plaintiff’s daily activities included 4 “light housecleaning, performing self-care activities such as dressing and bathing, socializing with 5 others, driving, managing her finances, doing volunteer work and interacting with the community and 6 displaying sufficient concentration and attention to paint rocks, create and sell artwork.” AR 25, 488- 7 489 (Plaintiff noted that she rarely does household chores or errands, does a little driving and cooking, 8 dresses and bathes herself, is able to move about alone, and handles her own financial affairs), 566- 9 567 (Plaintiff took up hobby of painting rocks and connected more with her roommate), 720-721 10 (Plaintiff met with her best friend, volunteered at a play, and made cough syrup for her best friend), 11 934 (Plaintiff “reports selling her artwork, using positive self talk”). The Court therefore finds the 12 ALJ appropriately discounted Plaintiff’s subjective complaints given Plaintiff’s demonstrated 13 activities. 14 Third, the ALJ properly considered that the “the record supports that the claimant’s mental 15 symptoms can be largely controlled with medication and therapy.” AR 25. “Impairments that can be 16 controlled effectively with medication are not disabling for the purpose of determining eligibility for 17 SSI benefits.” Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) (quoting Brown v. Barnhart, 18 390 F.3d 535, 540 (8th Cir.2004); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987); Odle v. Heckler, 19 707 F.2d 439, 440 (9th Cir.1983)). Here, the ALJ cited treatment reports noting patient’s positive 20 responses to medication and other forms of treatment. AR 25, 399 (noting medications including 21 Effexor and Prozac and that Plaintiff reported “no longer feeling suicidal, and feels like she is 22 stabilized not [sic] she has been on medications and resting in the emergency department. She is 23 requesting discharge home.”); 420 (Plaintiff is doing “well with Lamictal/Effexor” and reported “this 24 is the best she has felt in a long time… Denies any severe depression. She is looking forward to 25 returning back to work.”); 487 (Plaintiff “is adamant that she is not suicidal and feeling much better”); 26 588 (Plaintiff returning to monitor response to psychotropic medication, was “upbeat but not 27 hypomanic” and had normal thought process and speech); 678 (Plaintiff “reports that she ‘was doing 28 pretty well, the new meds regime is helping, believes will keep Wellbutrin to 2 tabs q day.’”); 744-745 1 (noting Plaintiff’s labile mood, Plaintiff “appears to be less anxious, Lucid, and more connected 2 w/emotions, with the goal of ‘letting go of the hurt & go forward.’” Also noting that Plaintiff feels she 3 is at a “7/10” in her progress and feels “more empowered, feeling less depressed AND NOT 4 suicidal.”); 922 (Plaintiff participating in relaxation, breathing, guided imagery and other exercises); 5 930 (Plaintiff “successfully participated in EMDR, reports 0 distress from an 8. Clt reported feeling 6 ‘good.’”); 933 (Plaintiff stated that she was feeling better, would use CBT skills to address issues); 7 939 (Plaintiff “is able to identify coping skills to reduce negative emotions and fear, meditating, 8 painting, gratitude list and being grateful that not only does she have the tools but uses them.”); 1388- 9 1389 (Plaintiff “reports that since increasing venlafaxine dose to 225 mg QD, her symptoms of 10 depression have lessened. She is managing the anxiety associated to her environmental stresses 11 adequately.”); 1401 (Bipolar II Disorder is “Stable with current medication regimen of a Abilify 2 mg 12 daily. Effexor ER 225 mg daily.”); 1454 (Plaintiff “reports that current medicine regime appears to be 13 helping, states that the new medication/Seroquel helps with sleep.”). Given that the ALJ assessed the 14 record to determine whether Plaintiff’s impairment was effectively controlled, the ALJ properly used 15 Plaintiff’s treatment as a basis to discount Plaintiff’s symptom testimony. 16 Plaintiff argues that the ALJ improperly “cherry picked” from medical evidence to discount 17 Plaintiff’s subjective testimony. (Doc. 10 at 22.) The Ninth Circuit has noted that it is “improper for 18 the ALJ to discount [a claimant’s] testimony by ‘cherry pick[ing]’ the absence of certain symptoms 19 from the report.” Diedrich, 874 F.3d at 642. The Ninth Circuit further cautioned that, “[w]hile ALJs 20 obviously must rely on examples to show why they do not believe that a claimant is credible, the data 21 points they choose must in fact constitute examples of a broader development to satisfy the applicable 22 ‘clear and convincing’ standard.” Garrison, 759 F.3d at 1018. However, the ALJ here discussed 23 Plaintiff’s treatment history in depth from November 2018 to October 2021. AR 21-25. The ALJ 24 further cites to relevant treatment notes from the during the alleged impairment period. AR 25, 406- 25 407, 422, 425, 433, 489-490, 566-67, 588-89, 744-45, 858-860, 892-93, 897-942, 1379, 1453. By 26 including both the larger treatment history and individual relevant treatment notes, the ALJ 27 demonstrated that he did not rely on unrepresentative data points, and thus satisfied the clear and 28 convincing standard. 1 The Court therefore concludes that the ALJ did not err in discounting Plaintiff’s subjective 2 complaints. 3 D. Incorrect Age and Medical-Vocational Guidelines 4 Plaintiff argues that the ALJ committed reversible error by insufficiently accounting for 5 Plaintiff’s change in age category during the relevant period. (Doc. 10 at 26.) Plaintiff “was 54 years 6 old, which is defined as an individual closely approaching advanced age, on the alleged disability 7 onset date (20 CFR 404.1563).” AR 29. By the time of the second hearing, Plaintiff was 56 and in the 8 “advanced age” category. AR 52-53. Defendant concedes that the ALJ did not acknowledge that 9 Plaintiff had changed age categories during the relevant period but contends that any error is harmless 10 because Plaintiff’s change in age categories would not change the outcome of the decision. (Doc. 11 11 at 25.) 12 The Commissioner may support a finding of no disability by showing “that the claimant can 13 perform some other work that exists in significant numbers in the national economy” by reference to 14 the Medical–Vocational Guidelines. Tackett v. Apfel, 180 F.3d 1094, 1100-1101 (9th Cir. 1999); 15 Valentin v. Saul, No. 2:18-cv-02394-AC, 2020 WL 91997, at *4 (E.D. Cal. Jan. 8, 2020). The 16 Medical-Vocational Guidelines (the “Grids”) consist of a matrix of the “four factors identified by 17 Congress—physical ability, age, education, and work experience—and set forth rules that identify 18 whether jobs requiring specific combinations of these factors exist in significant numbers in the 19 national economy.” Heckler v. Campbell, 461 U.S. 458, 461–62 (1983) (footnotes omitted). Within 20 the Grids, an “impairment which does not preclude heavy work (or very heavy work) would not 21 ordinarily be the primary reason for unemployment, and generally is sufficient for a finding of not 22 disabled, even though age, education, and skill level of prior work experience may be considered 23 adverse.” 20 C.F.R. § Pt. 404, Subpt. P, App. 2 at 204.00. Courts have upheld ALJs’ reliance on 24 section 204.00 of the Grids to find claimants not disabled, noting that “where a claimant is limited to 25 simple, repetitive tasks, but otherwise retains the ability to perform a full range of work at all 26 exertional levels, the Grids accurately and completely describe the claimant's particular impairments.” 27 McLain v. Astrue, No. SACV 10-1108 JC, 2011 WL 2174895, at *3 (C.D. Cal. June 3, 2011); see also 28 Perez v. Colvin, No. CV 15-807 JC, 2015 WL 7853699, at *8 (C.D. Cal. Dec. 2, 2015) (“Where, like 1 here, a claimant is limited to unskilled work, but otherwise retains the ability to perform a full range of 2 work at all exertional levels, the Grids alone accurately and completely account for the plaintiff's 3 particular impairments… Therefore, here, the ALJ properly found plaintiff not disabled under the 4 framework of Section 204.00.”); Young v. Comm’r of Soc. Sec., No. 2:11-cv-1283-CMK-TEM, 2012 5 WL 3249506, at *14 (E.D. Cal. Aug. 7, 2012), aff’d, 594 F. App’x 914 (9th Cir. 2014) (ALJ’s 6 reasoning and findings supported by substantial evidence where the ALJ relied on Grids section 7 204.00 to find a plaintiff not disabled who had nonexertional limitations and was able to perform work 8 at all exertional levels). 9 Here, the ALJ found “that the claimant has the residual functional capacity to perform a full 10 range of work at all exertional levels but with the following nonexertional limitations: she can 11 understand, remember and carry out simple, routine and repetitive tasks using judgment limited to 12 simple work related decisions. She can occasionally interact with the public and coworkers.” AR 20. 13 The ALJ then stated that a “finding of ‘not disabled’ is therefore appropriate under the framework of 14 section 204.00 in the Medical-Vocational Guidelines.” AR 30. Plaintiff argues that she should have 15 been considered to have had a light residual functional capacity, and thus Grids section 202.06 should 16 have been applied. (Doc. 10 at 26.) This ignores the ALJ’s finding that Plaintiff could perform a full 17 range of work at all exertional levels and was not considered to have a light RFC. AR 20. Given the 18 ALJ’s findings of Plaintiff’s ability to perform a full range of work at all exertional levels, a change in 19 age category to advanced age would not have impacted the ultimate disability conclusion because 20 Grids section 204.00 would still apply. The ALJ’s error in discussing Plaintiff’s age category is 21 therefore harmless. Stout, 454 F.3d at 1055 (Ninth Circuit has “affirmed under the rubric of harmless 22 error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate 23 disability conclusion.”) 24 CONCLUSION 25 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 26 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 27 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 28 1 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Kilolo Kijakazi, 2 Acting Commissioner of Social Security, and against Plaintiff Lutricia Thompson. 3 4 IT IS SO ORDERED. 5 Dated: May 3, 2023 /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