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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MANINDER KAUR, Case No. 1:22-cv-0697 JLT CDB 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND AFFIRMING THE 14 KILOLO KIJAKAZI, ADMINISTRATIVE DECISION DENYING Acting Commissioner of Social Security, PLAINTIFF’S APPLICATION FOR 15 BENEFITS Defendant. 16 (Docs. 17, 23 and 24) 17 Plaintiff seeks judicial review of the administrative decision denying her application for a 18 period of disability and disability insurance benefits under Title II of the Social Security Act. 19 (Doc. 17.) Plaintiff contends the administrative law judge erred in finding her depression and 20 anxiety were “non-severe” at step two of the sequential evaluation, and the ALJ’s rejection of a 21 mental residual functional capacity identified by Dr. Livesay was improper. (See id. at 2, 6-20.) 22 The Commissioner contends the Court should affirm the administrative decision. (Doc. 23.) 23 I. Findings and Recommendations 24 The assigned magistrate judge determined that “the ALJ did not have a duty to further 25 develop the record because the record was neither ambiguous nor inadequate to allow for proper 26 evaluation of the evidence.” (Doc. 24 at 9.) The magistrate judge found: “the record was 27 sufficiently well developed by Dr. Pannu’s treatment notes to enable the ALJ to independently ascertain Plaintiff’s treatment history. Evidence of conservative treatment is a valid basis for 1 rejecting a Plaintiff’s claims of severe impairment.” (Id., citing Tommasetti v. Astrue, 533 F.3d 2 1035, 1039-1040 (9th Cir. 2008).) In addition, the magistrate judge found the ALJ properly 3 evaluated the supportability and consistency factors in analyzing the opinion of Dr. Livesay, and 4 the rejection of the opinion was “supported by substantial evidence.” (Id. at 11-12.) In so 5 finding, the magistrate judge observed: “It was reasonable for the ALJ to discount Dr. Livesay’s 6 opinion, particularly because Dr. Pannu, Plaintiff’s PCP who monitored Plaintiff’s depression for 7 over a year after Dr. Livesay’s report, regularly documented that Plaintiff denied anxiety and 8 depression and did not take any medications for her conditions.” (Id. at 12.) Therefore, the 9 magistrate judge recommended Plaintiff’s motion for summary judgment be denied, and the 10 Commissioner’s cross-motion be granted. (Id.) 11 II. Objections and Response 12 Plaintiff filed timely objections, asserting the Court should not adopt the Findings and 13 Recommendations. (Doc. 25.) Plaintiff asserts the magistrate judge erred in relying on 14 Tomassetti, because “[i]n Tomasetti, the issue was whether the ALJ had provided the requisite 15 ‘clear and convincing’ evidence to reject the plaintiff’s symptomology given her ‘conservative 16 treatment’ and failure to take medication, at later steps of the sequential evaluation.” (Id. at 6-7.) 17 Plaintiff contends “both the Magistrate Judge and the ALJ fail to address the well-supported 18 argument that Ms. Kaur was suffering from significant confusion stemming from either or both 19 her psychiatric impairment and/or a language limitations which could explain her failure to seek 20 further treatment or her confusion over whether she was taking medications.” (Id. at 9.) Plaintiff 21 maintains the ALJ erred by not developing the record, which she maintains was ambiguous in 22 light of conflicting evidence: namely, that Plaintiff denied depression and anxiety symptoms and 23 was not seeking additional psychiatric treatment, but also testified at the hearing that she was 24 taking medication for depression. (Id. at 10-13.) In addition, Plaintiff maintains the ALJ erred in 25 evaluating the opinion of Dr. Livesay, stating: 26 It is conceivable that Ms. Kaur was not taking medication during the three routine physical examinations occurring over the course of one 27 month in May 2021 and did not report depression and anxiety to her physician at that time because she was being seen for annual 1 2021. There is also a possibility, given her communication limitations and documented confusion during questioning that she 2 failed to report she was taking medication and/or was experiencing depression and anxiety symptoms. Again, it is unclear from the 3 r ecord and from her testimony. 4 (Id. at 14-15.) Plaintiff concludes the matter should be remanded for additional administrative 5 proceedings related to her psychological treatment and symptoms. (Id. at 15-16.) 6 The Commissioner filed a response to the objections, maintaining the decision should be 7 affirmed. (Doc. 26.) The Commissioner contends “no doctor’s opinion is required to validate an 8 RFC finding, and “several decisions within this district have reaffirmed this principle.” (Id., 9 citing Perez v. Comm’r of Soc. Sec., 2023 WL 4023997, at *14 (E.D. Cal. June 15, 2023); Xiong 10 v. Comm’r of Soc. Sec., 2023 WL 4022925, at *3 (E.D. Cal. June 15, 2023); Jones v. Kijakazi, 11 No2023 WL 3955679, at *6 (E.D. Cal. June 12, 2023); Flores v. Kijakazi, 2023 WL 3931719, at 12 *3 (E.D. Cal. June 9, 2023); Karl v. Kijakazi, 2023 WL 3794334, at *6 (E.D. Cal. June 1, 2023). 13 The Commissioner asserts that “regardless of what authority Judge Baker cited, the Ninth Circuit 14 has recognized that a claimant’s use of psychiatric medication—or lack thereof—is a valid factor 15 that an ALJ may consider in determining the severity of an alleged mental impairment.” (Id. at 3, 16 citing Wilson v. Colvin, 583 F. App’x 649, 651 (9th Cir. 2014); Leitner v. Comm’r Soc. Sec., 361 17 F. App’x 876, 877 (9th Cir. 2010). The Commissioner also argues that the record was not 18 ambiguous, but even if it was, “the record was adequate to make a decision.” (Id. at 3-4.) 19 Furthermore, the Commissioner contends any error at step two was harmless “because the ALJ 20 considered Plaintiff’s alleged mental impairments later in the sequential evaluation and in 21 assessing her RFC.” (Id. at 4, citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).) 22 III. Discussion and Analysis 23 A district judge may “accept, reject or modify, in whole or in part, the findings and 24 recommendations...” 28 U.S.C. § 636(b)(1). If objections are filed, “the court shall make a de 25 novo determination of those portions of the report or specified proposed finding or 26 recommendations to which objection is made.” Id. A de novo review requires the court to 27 “consider[] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). 1 A. Duty to develop the record 2 The law imposes a duty to develop the record only in limited circumstances. 20 C.F.R. §§ 3 404.1512(d)-(f), 416.912(d)-(f) (recognizing a duty on the agency to develop medical history, 4 contact medical sources, and arrange a consultative examination if the evidence received is 5 inadequate for a disability determination). The duty to develop the record is “triggered only when 6 there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of 7 the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); see also Tonapetyan v. 8 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“[a]mbiguous evidence, or the ALJ’s own finding 9 that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s 10 duty to conduct an appropriate inquiry”). 11 Contrary to Plaintiff’s assertion, a conflict in evidence is not the same as an ambiguity. 12 See, e.g., Zargi v. Comm'r of Soc. Sec., 2009 WL 1505311, at *19 (E.D. Cal. May 27, 2009). 13 Ambiguous evidence “means incapable of explanation,” while conflicts in the record can be 14 confronted by the ALJ without additional evidence, including “inconsistencies as resulting from 15 plaintiff’s lack of credibility.” Id.; see also Torres v. Comm'r of Soc. Sec., 2020 WL 5820610, at 16 *8 (E.D. Cal. Sept. 30, 2020) (“Simply because various opinions present a conflict does not mean 17 any particular opinion is ambiguous such as would trigger the … duty to develop the record”). 18 The purported conflict—between Plaintiff’s testimony that she was taking medication for 19 depression at the time of the hearing and the treatment notes indicating Plaintiff denied anxiety 20 and depression—does not render the record ambiguous.1 The ALJ also did not find the record was 21 inadequate to evaluate the evidence, and the ALJ confronted conflicts in the record.2 Therefore, 22 Plaintiff fails to show the ALJ’s duty to develop the record was triggered. See Tonapetyan, 242 23 F.3d at 1150; see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 24 1 The Court declines to speculate, as Plaintiff would have it, that Plaintiff was merely mistaken that she was 25 not suffering from anxiety and depression, or that confusion could be the reason she reported not taking medication. Indeed, the record indicates Plaintiff’s doctor identified each of her prescriptions, and indicated that Plaintiff was 26 “not taking medication” for depression. (See Doc. 12-1 at 39-40, emphasis omitted.) 2 The ALJ acknowledged that “[a]t the time of the hearing, [Plaintiff] was taking medications for 27 hypertension and depression.” (Doc. 12-1 at 23.) Nevertheless, the ALJ found Plaintiff’s statements concerning the limiting effects of her impairment were “not entirely consistent with the medical evidence and other evidence in the 1 B. Step two analysis 2 The inquiry at step two is a de minimus screening for severe impairments “to dispose of 3 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) citing Bowen v. 4 Yuckert, 482 U.S. 137, 153-54 (1987). The purpose is to identify claimants whose medical 5 impairment makes it unlikely they would be disabled even if age, education, and experience are 6 considered. Bowen, 482 U.S. at 153. At step two, a claimant must make a “threshold showing” 7 that (1) she has a medically determinable impairment or combination of impairments and (2) the 8 impairment or combination of impairments is severe. Id. at 146-47; see also 20 C.F.R. §§ 9 404.1520(c), 416.920(c). For an impairment to be “severe,” it must significantly limit the 10 claimant’s physical or mental ability to do basic work activities, or the “abilities and aptitudes 11 necessary to do most jobs.” 20 C.F.R. §§ 404.1520(c), 416.920(c). 12 Plaintiff identifies evidence she contends supports a determination that her medically 13 determinable mental impairments are severe. (See Doc. 17 at 6-16; Doc. 25 at 3-13.) However, 14 the ALJ considered the medical and testimonial evidence related to Plaintiff’s major depressive 15 disorder and anxiety disorder, and found Plaintiff had no more than mild limitations in the four 16 functional areas identified in the “Paragraph B” criteria, as set forth in 20 C.F.R., Pt. 404, Subpart 17 P, App. 1 to evaluate the mental impairments of a claimant. (Doc. 12-1 at 20-22.) For example, 18 the ALJ considered that Plaintiff’s statements concerning the severity of her symptoms, but noted 19 Plaintiff had not sought mental health treatment, and the treatment notes from Dr. Pannu, “her 20 primary care provider,… indicate[d] that she denies anxiety and depression” and was not taking 21 any medications for depression. (Id. at 20-21, citing Ex. 5F/5 [Id. at 40].) The lack of treatment 22 is a proper consideration by the ALJ in evaluating the severity of a Plaintiff’s impairment(s).3 See 23 Ivy v. Comm’r of Soc. Sec., 2011 WL 2038579, at *10 (E.D. Cal. May 24, 2011) (finding the 24 ALJ’s conclusion that the claimant’s depression was not severe at step two was supported by the 25 3 Plaintiff contends the magistrate judge erroneously relied on Tomassetti in finding the ALJ properly 26 considered this factor. However, a review of the decision indicates the ALJ was addressing Plaintiff’s subjective statements to the consultative examiner regarding the severity of her depression, prior to performing the “Paragraph 27 B” analysis.. (See Doc. 12-1 at 20.) In Tomassetti, the Court indicated failure to seek treatment permits the inference that a claimant’s symptoms were not as severe as reported. Id., 533 F.3d at 1039. It does not appear the magistrate 1 record where the “plaintiff never sought any kind of mental health treatment, nor did he 2 consistently take medications for any psychiatric condition”). Although Plaintiff contends the 3 evidence concerning her depression and anxiety may be interpreted differently—including 4 possible reasons why she did not report depression and anxiety to her physician, or take 5 medication— “[w]hen the evidence before the ALJ is subject to more than one rational 6 interpretation, [the court] must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 7 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 8 C. Evaluation of Dr. Livesay’s opinion 9 The regulations4 direct ALJs to determine how persuasive a medical opinion is according 10 to the following factors: supportability, consistency, relationship with the claimant, specialization, 11 and other factors showing the medical source’s “familiarity with … other evidence in the record 12 or an understanding of [the] disability program’s policies and evidentiary requirements.” 20 13 C.F.R. §§ 404.1520c(c)(1)-(5). An ALJ is required to discuss supportability and consistency, 14 which are the most important factors “when evaluating the persuasiveness of medical opinions.” 15 Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(a)); see also 16 20 C.F.R. § 416.920c(b)(2) (“we will explain how we considered the supportability and 17 consistency factors for a medical source’s medical opinions or prior administrative medical 18 findings in your determination or decision. We may, but are not required to, explain how we 19 considered the [remaining] factors in paragraphs (c)(3) through (c)(5) of this section…”). 20 The supportability inquiry is an assessment of “the extent to which a medical source 21 supports the medical opinion by explaining the relevant objective medical evidence.” Woods, 32 22 F.4th at 791-792 (internal quotation marks omitted). The regulations provide: “The more relevant 23 the objective medical evidence and supporting explanations presented by a medical source are to 24 support his or her medical opinion(s) or prior administrative medical finding(s), the more 25 persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 26 416.920c(c)(1). Consistency compares an opinion with other evidence to determine its 27 4 1 persuasiveness. See Woods, 32 F.4th at 792. With the “consistency” factor, the regulations 2 explain: “The more consistent a medical opinion(s) or prior administrative medical finding(s) is 3 with the evidence from other medical sources and nonmedical sources in the claim, the more 4 persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 5 416.920c(c)(2). The Ninth Circuit observed that an ALJ must explain how both the supportability 6 and consistency factors were considered, and “[e]ven under the new regulations, an ALJ cannot 7 reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing 8 an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. 9 Plaintiff contends the ALJ erred in rejecting the limitations identified by Dr. Livesay, who 10 performed a consultative psychological examination. (Doc. 17 at 16-21.) The ALJ summarized 11 the opinions of Dr. Livesay as follows: 12 Dr. Livesay opined that the claimant’s ability to perform simple and repetitive tasks was mildly impaired; her ability to perform detailed 13 and complex tasks was moderately impaired; her ability to accept instructions from supervisors was unimpaired; her ability to interact 14 with coworkers and the public was mildly impaired; her ability to perform work activities on a consistent basis without special or 15 additional instruction is mildly impaired; her ability to maintain regular attendance and complete a normal workday/workweek 16 without interruptions from a psychiatric condition was moderately impaired and her ability to deal with the usual stress encountered in 17 the workplace was markedly impaired. 18 (Id. at 26.) The ALJ found these opinions were supported by the examination findings. (Id.) 19 However, the ALJ found the limitations identified were “not consistent” with other evidence in 20 the record, which relates to the consistency factor. (Id.) For example, the ALJ noted Plaintiff 21 “denied symptoms of depression and anxiety when she saw her regular treatment provider.” (Id., 22 citing Ex. 12F [Id. at 439-459].) Thus, the ALJ found the opinion was inconsistent with Dr. 23 Pannu’s treatment notes, which post-dated Dr. Livesay’s examination. (Id.) This evidence 24 supports the ALJ’s analysis and finding that the opinions of Dr. Livesay were not persuasive. See 25 Ferreira v. Kijakazi, 2023 WL 2815735, at *4 (E.D. Cal. Apr. 5, 2023) (a finding that “opined 26 limitations were not consistent with the treatment record… expressly invokes the consistency 27 factor”); see also Ernest C. v. Kijakazi, 2022 U.S. Dist. LEXIS 112341, at *20 (C.D. Cal. June 1 | Plaintiffs statements regarding treatment). Accordingly, the Court finds the ALJ properly 2 | explained the supportability and consistency factors under the revised regulations in evaluating 3 | the opinion of Dr. Livesay. 4 | IV. Conclusion and Order 5 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this 6 | case. Having carefully reviewed the entire file—including Plaintiff's objections and Defendant’s 7 | response thereto—the Court concludes the Findings and Recommendations are supported by the 8 | record and by proper analysis. Because the ALJ applied the proper legal standards and the 9 | decision is supported by substantial evidence, the administrative decision must be affirmed. See 10 || Sanchez v. Sec’y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). Based upon the 11 | foregoing, the Court ORDERS: 12 1. The Findings and Recommendations issued on June 24, 2023 (Doc. 24) are 13 adopted in full. 14 2. Plaintiff's motion for summary judgment (Doc. 17) is denied. 15 3. The decision of the Commissioner of Social Security is affirmed. 16 4. The Clerk of the Court is directed to enter judgment in favor of Defendant Kilolo 17 Kiakazi, Acting Commissioner of Social Security, and against Plaintiff Maninder 18 Kaur, and to close this case. 19 20 IT IS SO ORDERED. Dated: _ September 26, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28