Lopriore v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 VINCENT MICHAEL LOPRIORE, Case No. 18-CV-06970-LHK 13 Plaintiff, ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY 14 v. JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR 15 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT SECURITY, 16 Re: Dkt. Nos. 17, 18 Defendant. 17 18 Vincent Lopriore (“Plaintiff”) appeals the final decision of the Commissioner of Social 19 Security (“the Commissioner”) denying Plaintiff’s application for disability insurance benefits 20 under Title II of the Social Security Act and for supplemental security income under Title XVI of 21 the Social Security Act. Before the Court are Plaintiff’s motion for summary judgment, ECF No. 22 17, and the Commissioner’s cross-motion for summary judgment, ECF No. 18. Having 23 considered the parties’ briefs, the relevant law, and the record in this case, the Court hereby 24 DENIES Plaintiff’s motion for summary judgment and GRANTS the Commissioner’s cross- 25 motion for summary judgment. 26 I. BACKGROUND 27 1 A. Plaintiff’s Age, Education and Vocational Background, and Claimed Disability 1 Plaintiff was born on March 25, 1975. Administrative Record (“AR”) 47. Plaintiff 2 reported that he only completed tenth grade and never graduated high school. AR 517. Plaintiff 3 last maintained significant employment while working as a waste treatment operator for the 4 United States Department of Agriculture, where he was provided accommodations due to his 5 difficulties with reading. AR 88-90, 102. Plaintiff’s work history also includes janitorial work 6 and a variety of odd jobs. AR 88-90. Plaintiff alleges he is disabled due to a left scaphoid wrist 7 fracture, osteoarthritis, joint pain, lumbar degenerative disc disease, chronic lumbar pain, 8 depression, anxiety, bipolar disorder, and post-traumatic stress disorder (PTSD). See ECF No. 18 9 at 2. Additional facts are discussed as necessary in the analysis. 10 B. Procedural History 11 Plaintiff filed applications for disability insurance benefits and supplemental security 12 income on July 22, 2014. AR 110, 126. In both applications, Plaintiff alleged that he became 13 disabled on January 12, 2014. AR 111, 127. On October 28, 2014, the Social Security 14 Administration denied Plaintiff’s applications for disability insurance benefits and supplemental 15 security income. AR 176-80, 181-86. On January 6, 2015, the Social Security Administration 16 denied both of Plaintiff’s applications upon reconsideration. AR 189. 17 Plaintiff timely requested a hearing on February 5, 2015. AR 197. An initial hearing date 18 of November 3, 2016 before an Administrative Law Judge (“ALJ”) was continued to March 30, 19 2017 to allow for additional time to supplement the medical record and to secure the testimony of 20 a medical expert. AR 23. Plaintiff testified at the March 30, 2017 hearing and was represented by 21 an attorney. AR 85-93. An impartial medical expert and an impartial vocational expert also 22 testified. AR 93-97, 98-108. The ALJ left the record open after the March 30, 2017 hearing so 23 that Plaintiff could obtain additional medical records. AR 108-09. 24 On May 23, 2017, the ALJ issued a partially favorable written decision that found that 25 Plaintiff was disabled within the meaning of the Social Security Act from January 12, 2014 26 through April 30, 2016. AR 23, 27-33. The ALJ, however, found that medical improvement 27 2 1 occurred as of May 1, 2016 such that Plaintiff had the residual functional capacity to perform a 2 light range of work that exists in significant numbers within the national economy, and therefore, 3 denied benefits for the period beginning May 1, 2016 and onward. AR 23-24, 33-37. After 4 Plaintiff filed a timely request for review of the ALJ’s decision on July 27, 2017, AR 302-03, the 5 Appeals Council denied review on September 14, 2018, and the ALJ’s decision became the final 6 decision of the Commissioner, AR 1-4. The Appeals Council stated “[i]f you disagree with our 7 action, you may ask for court review of the Administrative Law Judge’s decision by filing a civil 8 action.” AR 2. 9 On November 16, 2018, Plaintiff filed a complaint in this Court seeking review of the 10 Commissioner’s decision. ECF No. 1. On April 15, 2019, the Commissioner filed an answer. 11 ECF No. 12. On June 12, 2019, Plaintiff filed a motion for summary judgment. ECF No. 17 12 (“Plaintiff’s Mot.”). On July 10, 2019, the Commissioner filed a cross-motion for summary 13 judgment and opposition to Plaintiff’s motion for summary judgment. ECF No. 18 14 (“Commissioner’s Mot.”). Plaintiff filed a reply on July 23, 2019. ECF No. 19 (“Reply”). 15 II. LEGAL STANDARD 16 A. Standard of Review 17 This Court has the authority to review the Commissioner’s decision to deny benefits. 42 18 U.S.C. § 405(g). The Commissioner’s decision will be disturbed only if it is not supported by 19 substantial evidence or if it is based upon the application of improper legal standards. Trevizo v. 20 Berryhill, 871 F.3d 664, 674 (9th Cir. 2017); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 21 595, 599 (9th Cir. 1999). In this context, the term “substantial evidence” means “more than a 22 mere scintilla but less than a preponderance, i.e., such relevant evidence as a reasonable mind 23 might accept as adequate to support a conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 24 882 (9th Cir. 2006). Where the evidence is susceptible to more than one rational interpretation, 25 the Court must defer to the decision of the Commissioner. Morgan, 169 F.3d at 599. “However, a 26 reviewing court must consider the entire record as a whole and may not affirm simply by isolating 27 3 1 a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 2 (quoting Robbins, 466 F.3d at 882). 3 B. Standard for Determining Disability 4 An individual is considered disabled for the purposes of Title II and Title XVI of the 5 Social Security Act if he is unable “to engage in any substantial gainful activity by reason of any 6 medically determinable physical or mental impairment which can be expected to result in death or 7 which has lasted or can be expected to last for a continuous period of not less than twelve 8 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The physical or mental impairment must 9 be “of such severity that he is not only unable to do his previous work but cannot, considering his 10 age, education, and work experience, engage in any other kind of substantial gainful work which 11 exists in the national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B). 12 “ALJs are to apply a five-step sequential review process in determining whether a claimant 13 qualifies as disabled.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). 14 At step one, the ALJ determines whether the claimant is performing “substantial gainful activity.” 15 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If so, the claimant is not disabled. If not, the 16 analysis proceeds to step two. At step two, the ALJ determines whether the claimant suffers from 17 a severe impairment or combination of impairments that meets the durational requirement. 20 18 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If not, the claimant is not disabled. If so, the 19 analysis proceeds to step three. At step three, the ALJ determines whether the claimant’s 20 impairment or combination of impairments meets or equals an impairment contained in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1 (“Listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 22 If so, the claimant is disabled. If not, the analysis proceeds to step four. At step four, the ALJ 23 determines whether the claimant has the residual functional capacity (“RFC”) to perform his or her 24 past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If so, the claimant is not 25 disabled. If not, the analysis proceeds to step five. At step five, the ALJ determines whether the 26 claimant can perform other jobs in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 27 4 1 416.920(a)(4)(v). If so, the claimant is not disabled. If not, the claimant is disabled. 2 “The burden of proof is on the claimant at steps one through four, but shifts to the 3 Commissioner at step five.” Bray, 554 F.3d at 1222. “The Commissioner can meet this burden 4 through the testimony of a vocational expert or by reference to the Medical Vocational Guidelines 5 at 20 C.F.R. pt. 404, subpt. P, app. 2.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). 6 III. DISCUSSION 7 Plaintiff asserts that the ALJ committed four errors. First, Plaintiff argues that the ALJ 8 erred in determining that Plaintiff’s statements concerning the intensity, persistence, and limiting 9 effects of his symptoms were not consistent with the medical evidence. Plaintiff’s Mot. at 4-7. 10 Second, Plaintiff contends that the ALJ erred in failing to give proper weight to the medical 11 evidence. Id. at 7-15. Third, Plaintiff asserts that the ALJ erred in concluding that Plaintiff did 12 not meet Listings 12.04 or 12.06 at Step Three of the sequential evaluation process. Id. at 15-16. 13 Fourth, Plaintiff argues that substantial evidence does not support the ALJ’s assessment of 14 Plaintiff’s residual functional capacity. Id. at 16-18. The Court first summarizes the relevant 15 evidence and the ALJ’s opinion before determining whether the ALJ erred. Because Plaintiff’s 16 third and fourth arguments are dependent on Plaintiff’s first and second arguments, the Court 17 addresses each of Plaintiff’s arguments in the order presented. 18 A. Relevant Evidence 19 The Court first discusses the evidence concerning Plaintiff’s alleged psychological 20 impairments. Then, the Court briefly discusses Plaintiff’s alleged physical impairments. 21 1. Psychological Impairments 22 a. Non-Examining Physician Lesleigh Franklin, Ph.D. and Dionne Childs, M.S. 23 Following a period of homelessness, Plaintiff became housed, obtained health insurance, 24 and entered treatment at Highland General Hospital and the Bay Area Family Institute in 2014. 25 AR 461, 516. On July 23, 2014, Plaintiff met with Dionne Childs, M.S., who assessed Plaintiff’s 26 psychological capabilities. AR 516. At the July 23, 2014 meeting, Plaintiff told Ms. Childs that 27 5 1 Plaintiff was not taking any psychiatric medication. AR 518. Dr. Lesleigh Franklin, Ph.D., was 2 Ms. Childs’s supervisor. Although Dr. Franklin was not present at the July 23, 2014 meeting and 3 Ms. Childs’s opinion was based exclusively on the July 23, 2014 meeting, the opinion of Ms. 4 Childs was issued jointly with Dr. Franklin. 5 Among other things, the joint opinion noted that Plaintiff “was oriented to person, place, 6 year, month, season, and day of the week, but not to the date.” AR 518. Plaintiff, however, 7 “endorsed manic symptoms: elevated mood, decreased need for sleep, pressured speech, racing 8 thoughts, distractibility, increased goal oriented activity and behavior with a high risk of 9 consequences.” AR 521. Plaintiff also endorsed “symptoms related to Posttraumatic Stress 10 Disorder.” AR 521. The joint opinion diagnosed Plaintiff with bipolar disorder; PTSD; 11 obsessive-compulsive disorder; and academic, relational, and occupational problems. AR 522. 12 The joint opinion qualified the diagnosis by explaining that “the results of the evaluation are 13 limited in scope by the records available, the time of the evaluation, and the client’s self report.” 14 AR 521. The joint opinion noted that “Plaintiff’s cognitive and neuropsychological impairments 15 . . . might be roadblocks to his being able to maintain a position in a job.” AR 522. 16 b. Patricia Jones, MFT 17 From September 2014 to November 2015, Plaintiff participated in therapy with the East 18 Bay Family Institute, where he was seen by Patricia Jones, a marriage and family therapist intern. 19 AR 557-60. Ms. Jones’s “progress notes” from this period include a paragraph on subjective 20 observations, objective observations, Ms. Jones’s assessment, and plan for future therapy. AR 21 557-60. Ms. Jones observed that Plaintiff felt “victimized” and “resentful” on multiple occasions. 22 AR 557-58. In the “objective” observation sections, Ms. Jones noted that Plaintiff “was dressed 23 and groomed appropriately,” that Plaintiff “showed signs of aggravation and depression,” and that 24 Plaintiff “still falls short when it comes to holding in his angry outburst but he is aware of it and is 25 attempting to find ways of coping with the negativity going on in his head.” AR 558-59. On other 26 occasions, however, Ms. Jones’s notes appear to report “subjective” observations as “objective” 27 6 1 ones, including that Plaintiff “reported getting better at recognizing [his] anger triggers” and that 2 Plaintiff “reported that his wife and children are starting to feel uncomfortable around him at 3 times.” AR 558-59. 4 On November 3, 2015, Ms. Jones completed a check-box mental impairment questionnaire 5 that categorized Plaintiff as having numerous marked or extreme impairments for work-related 6 activities. AR 554-56. Ms. Jones noted that Plaintiff exhibits “antisocial behavior” and is 7 “[e]xtremely angry and frustrated with the world and everything in it.” AR 556. Ms. Jones also 8 noted “symptoms of major [d]epressive [d]isorder and PTSD.” AR 556. 9 c. Kaiser Medical Records 10 In 2015, Plaintiff transferred his care to Kaiser, where he saw a primary care physician, a 11 psychotherapist, and a psychiatrist. See, e.g., AR 461, 561-64, 573-74, 577-78, 605. 12 At an initial meeting with his Kaiser primary care physician, Plaintiff requested 13 psychotherapy. AR 564. On February 4, 2015, Plaintiff met with Lance Friis, M.F.T., a marriage 14 and family therapist, and “complain[ed] of anxiety including excessive worry, restlessness, muscle 15 tension, hypervigilance, somatic complaints.” AR 577. Friis noted that Plaintiff “listed 16 depression as an issue, but then spoke primarily about anxiety.” AR 578. Friis also noted that 17 Plaintiff “[r]uminates on things, can’t stay still, [is] easily agitated, [has] sleep disturbance,” has a 18 [l]ong trauma history,” and possesses “[s]ymptoms of PTSD.” AR 578. Nonetheless, Plaintiff’s 19 behavior appeared normal, his thought process was logical, he was fully oriented, had intact recent 20 and remote memory, and possessed good insight and judgment. AR 579. Friis suggested a 21 treatment plan involving individual psychotherapy and group therapy, and referred Plaintiff for 22 medication management. AR 580. Kaiser’s records indicate that Plaintiff took part in group and 23 individual therapy sessions. See AR 608, 625, 631. During this time, Plaintiff was also prescribed 24 medication to treat his insomnia and back pain. AR 617, 647. 25 d. Treating Psychologist Dr. John Frederick Hiatt, M.D. 26 On May 29, 2015, Plaintiff met with psychologist Dr. John Frederick Hiatt, M.D. AR 655. 27 7 1 Dr. Hiatt observed that Plaintiff appeared well-groomed and had a pleasant and cooperative 2 demeanor. AR 657. Plaintiff’s insight and judgment were marked as “good,” and Dr. Hiatt noted 3 that Plaintiff’s attention and concentration were “within normal limits.” AR 657. At the same 4 time, Dr. Hiatt also noted that Plaintiff was fidgety, dysphoric, and anxious. AR 657. Dr. Hiatt 5 made an assessment that Plaintiff had “dyscontrol issues” and was “[c]urrently experiencing 6 increased anxiety [and] volatility” such that “[a] mood stabilizer seem[ed] the most appropriate 7 route.” AR 658. Dr. Hiatt also diagnosed Plaintiff with PTSD, and prescribed Plaintiff with 8 lamotrigine and lorazepam to treat Plaintiff’s anxiety issues. AR 658, 663. According to 9 treatment notes, the medication helped stabilize Plaintiff’s mental symptoms for a period of time. 10 AR 899-901. 11 On March 31, 2016, following the suicide of his brother-in-law and a physical altercation 12 with a neighbor, Plaintiff had another appointment with Dr. Hiatt. AR 899. Plaintiff was tearful, 13 fidgety, and depressed, but had “fair” impulse control and possessed normal attention and 14 concentration. AR 900. Plaintiff complained of depression and insomnia and that since Plaintiff’s 15 last visit, his “symptoms of mood disorder and insomnia [had] significantly worsened.” AR 899- 16 900. Plaintiff noted that one or two months prior to the March 31, 2016 appointment, Plaintiff had 17 run out of medication for a few days and developed serious difficulty sleeping. AR 899. Plaintiff 18 refilled his medication, “but did not recover his former stability.” AR 899. Dr. Hiatt noted that 19 Plaintiff “denies medication side effects with poor medication compliance.” AR 900. Dr. Hiatt 20 diagnosed Plaintiff with a “major return of PTSD” and “depression with associated anxiety and 21 irritability,” and prescribed “restart[ing] [medication] at higher levels” before “consider[ing] 22 [additional new medication] after a week.” AR 901. 23 e. Sabrina Estell, MFT 24 In 2016 and 2017, Plaintiff also received psychotherapy treatment from Sabrina Estell, a 25 marriage and family therapist intern. AR 727-31, 1019-20. On October 28, 2016, Ms. Estell, 26 utilizing a check-box form, found that Plaintiff had “marked” limitations in the following seven 27 8 1 areas: (1) remembering work-like procedures, (2) working in coordination with or proximity to 2 others without being unduly distracted, (3) performing at a consistent pace without an 3 unreasonable number and length of rest periods, (4) accepting instructions and responding 4 appropriately to criticism from supervisors, (5) dealing with normal work stress, (6) interacting 5 appropriately with the general public, and (7) maintaining socially appropriate behavior. AR 729- 6 30. As part of the check-box form, Ms. Estell also noted that Plaintiff “experiences PTSD 7 symptoms which include but are not limited to: difficulty [in] focusing, concentrating, managing 8 anger and mood swings, persistent anxiety, flashbacks, intense psychological distress, heightened 9 arousal, fatigue, as well as frequent pain.” AR 731. 10 On March 15, 2017, Ms. Estell again assessed Plaintiff’s level of impairment for work- 11 related activities. Ms. Estell, again utilizing a check-box form, found that Plaintiff exhibited 12 “marked” impairments in 12 areas related to work-related mental abilities. AR 1019. The mental 13 impairment check-box questionnaire included two sections asking the reviewer to describe the 14 patient’s impairments. Ms. Estell answered, “Please refer back to previous mental impairment 15 questionnaire” in response to these sections. AR 1020. 16 f. State Agency Physicians 17 Plaintiff’s medical records were examined by two State agency medical providers, 18 physicians R. Ferrell, M.D., and Paula Kresser, Ph.D. On October 14, 2014, Dr. Ferrell reviewed 19 the record and found that Plaintiff could perform simple tasks with no limitations in social 20 functioning. In other categories relevant to an individual’s ability to perform sustained work 21 activities, Dr. Ferrell found that Plaintiff did not have significant limitations or was only 22 moderately limited in areas such as, inter alia, the ability to understand and remember very short 23 and simple instructions, the ability to carry out very short and simple instructions, the ability to 24 maintain attention and concentration for extended periods, and the ability to make simple work- 25 related decisions. AR 137-39. 26 On January 2, 2015, Dr. Kresser also reviewed the record and made similar findings. AR 27 9 1 152-54. Dr. Kresser found that Plaintiff could perform “simple tasks with minimal or superficial 2 interaction with others.” AR 153. Dr. Kresser noted that Plaintiff had adaptation limitations, but 3 only insignificant or moderate limitations in categories such as the ability to carry out very short 4 and simple instructions, the ability to maintain attention and concentration for extended periods, 5 the ability to sustain an ordinary routine without special supervision, and the ability to make 6 simple work-related decisions. AR 152-53. 7 2. Physical Impairments 8 Plaintiff has a left scaphoid wrist fracture, slight right-wrist osteoarthritis, and lumbar 9 degenerative disc disease. AR 27; see also, e.g., AR 471, 561-63, 593, 646, 676-78. However, 10 the Court does not discuss Plaintiff’s physical impairments at length because they are not the 11 subject of the summary judgment motions. Rather, Plaintiff challenges the ALJ’s findings 12 regarding Plaintiff’s mental impairments. 13 B. The ALJ’s Decision 14 On May 23, 2017, the ALJ filed a partially favorable written decision that awarded 15 Plaintiff a closed period of benefits from January 12, 2014 to April 30, 2016, but denied benefits 16 for the period beginning May 1, 2016 and onward. AR 20-43. 17 1. January 12, 2014 to April 30, 2016 18 The ALJ applied the five-step evaluation process for determining disability described in 20 19 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not engaged in 20 substantial gainful activity since January 12, 2014, the alleged onset date. AR 27. At step two, 21 the ALJ found that from January 12, 2014 through April 30, 2016, Plaintiff “had the following 22 severe impairments: left scaphoid wrist fracture, slight osteoarthritis of the right wrist, lumbar 23 degenerative disc disease, obesity, depression, and anxiety/posttraumatic stress disorder.” AR 27. 24 At step three, the ALJ determined that none of Plaintiff’s impairments or combination of 25 impairments met or medically equaled any impairment listed in 20 C.F.R. Part 404, Subpart P, 26 Appendix 1. AR 27. 27 10 1 Before moving on to step four, the ALJ assigned the following RFC, which accounted for 2 Plaintiff’s symptoms and the extent to which those symptoms can reasonably be accepted as 3 consistent with the objective medical evidence and other evidence: 4 [T]he claimant had the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). With his non-dominant left hand, 5 he could occasionally handle and finger; with his right upper extremity, he could frequently handle and finger; he could not climb ladders, ropes, or scaffolds, but 6 could occasionally balance, stoop, crouch, kneel, crawl, and use ramps/stairs; he could perform simple repetitive tasks not requiring interaction with the public. 7 AR 29. In arriving at this conclusion regarding Plaintiff’s RFC, the ALJ summarized and weighed 8 the medical evidence and Plaintiff’s subjective symptom testimony. AR 29-31. The ALJ noted 9 that Plaintiff alleged that bone injuries, PTSD, and learning disorders limited his ability to work. 10 AR 29. The ALJ also explained that Plaintiff “reported difficulty sleeping and feeling anxious and 11 irritable most days.” AR 29. According to Plaintiff, “symptoms and resulting limitations either 12 prevent [Plaintiff] from performing or make it difficult for him to perform his usual activities of 13 daily living, such as preparing meals, taking care of his personal needs, completing household 14 chores, doing laundry, shopping, sleeping, driving, and doing yard work.” AR 29. The ALJ 15 concluded that Plaintiff’s alleged symptoms were “reasonably consistent with the medical 16 evidence and other evidence in the record. Specifically, the medical findings support the existence 17 of limitations as reflected in” the RFC assigned to Plaintiff. AR 30. 18 The ALJ began the analysis of Plaintiff’s RFC by explaining Plaintiff’s physical 19 impairments. AR 30. The ALJ found that there was “evidence of a scaphoid wrist fracture, which 20 developed into non-union,” “[o]steroarthritis of the right wrist,” “[l]umbar degenerative disc 21 disease [with] multiple levels of degeneration with disc protrusion,” and problems associated with 22 obesity. AR 30. 23 The ALJ then turned to assessing Plaintiff’s mental impairments. Citing to Plaintiff’s 24 medical and psychiatric records from Kaiser, the ALJ first noted that “objective evidence supports 25 the diagnoses of depression, anxiety, and arguably posttraumatic stress disorder.” AR 30. At the 26 same time, the ALJ found that Plaintiff “never received inpatient treatment or psychiatric 27 11 1 hospitalization,” and instead participated in “conservative treatment in the form of medication and 2 therapy.” AR 30. The ALJ determined that “[c]linical findings include dysphoric and anxious 3 mood with congruent affect, disorganized thought process, [and] marginal impulse control,” but 4 that there were also “many normal or unremarkable clinical findings,” including “evidence of 5 normal mood and affect, well-groomed, normal behavior, unremarkable thought content, goal 6 oriented thought process, age appropriate fund of knowledge, attention and concentration within 7 normal limits, no evidence of delusions or hallucinations, and good insight and judgment.” AR 8 30. 9 The ALJ then accorded “great weight” to the State agency mental health providers, “who 10 opined [Plaintiff’s] mental health conditions would limit him to simple tasks with minimal or 11 superficial interaction with others.” AR 31. Though the ALJ found that these assessments were 12 “generally consistent with the findings upon exam and treatment history,” the ALJ nonetheless 13 granted Plaintiff “the benefit of doubt” and included an additional limitation of no public 14 interaction, a limitation that the State agency mental health providers had not assigned. AR 31. 15 At step four, for the period from January 12, 2014 to April 30, 2016, the ALJ found that 16 Plaintiff could not perform his past relevant work. AR 31. At step five, again for the period from 17 January 12, 2014 to April 30, 2016, the ALJ—considering Plaintiff’s age, education, work 18 experience, and RFC—concluded that “there were no jobs that existed in significant numbers in 19 the national economy that [Plaintiff] could have performed.” AR 32. The vocational expert 20 (“VE”) found that given all of Plaintiff’s attributes, there were two light unskilled representative 21 jobs in the national economy that Plaintiff could have performed, but the ALJ found that “both 22 jobs obviously require[d] interaction with the public” such that “[e]ven th[ose] jobs [were] 23 excluded.” AR 32-33. Accordingly, the ALJ determined that Plaintiff was disabled for the 24 purposes of the Social Security Act from January 12, 2014 through April 30, 2016. 25 2. May 1, 2016 and onward 26 However, for the period from May 1, 2016 and onward, the ALJ concluded that Plaintiff 27 12 1 was not disabled for the purposes of the Social Security Act. Specifically, prior to step four and in 2 regards to Plaintiff’s mental impairments, the ALJ found that there was some evidence that 3 Plaintiff “experienced some improvement in depressive symptoms,” but that as a whole, Plaintiff 4 “continued to have symptoms of anxiety and perhaps PTSD” and that “the record does not 5 demonstrate any worsening.” AR 33. At the same time, the ALJ also determined that “after the 6 closed period [ending on April 30, 2016,] there is little medical evidence [regarding Plaintiff’s 7 mental impairments].” AR 28. The ALJ found that Plaintiff “continued with conservative 8 outpatient treatment and medication,” and that “[w]hile there [were] a few abnormal exam 9 findings, most mental status exams from May 2016 and ongoing d[id] not support any additional 10 functional limitations. AR 33. As a result, the ALJ adopted his earlier findings and analysis 11 regarding Plaintiff’s mental impairments. AR 33. 12 Nonetheless, the ALJ found that Plaintiff was no longer disabled because Plaintiff 13 “underwent physical therapy, which improved the functioning of his left wrist” and “symptoms 14 improved.” AR 34. According to the ALJ, these physical improvements led to an increase in 15 Plaintiff’s RFC such that Plaintiff could use both upper extremities frequently in all modalities. 16 AR 34. Furthermore, while the ALJ determined that Plaintiff still could not climb ladders, ropes, 17 or scaffolds, the ALJ found that Plaintiff could now occasionally balance, stoop, crouch, kneel, 18 crawl, and use ramps and stairs. AR 34. The ALJ also noted that as long as tasks did not require 19 interaction with the public, Plaintiff could perform simple repetitive tasks. AR 34. 20 As relevant for the instant motions, the ALJ accorded great weight to the assessments of 21 State agency physicians that Plaintiff could perform a light range of work because those 22 assessments were consistent with the record as a whole. AR 35. The ALJ accorded little weight 23 to Ms. Estell’s October 28, 2016 and March 15, 2017 assessments because “[t]he extreme mental 24 limits opined [were] not at all supported in the record and State agency doctors contradict[ed] the 25 intern’s [Ms. Estell’s] opinion.” The ALJ found that Ms. Estell’s assessment was not supported 26 by any objective findings or records and that Ms. Estell utilized “a check box form” that was “not 27 13 1 supported with a narrative” and did not “cit[e] objective findings.” AR 35. 2 Additionally, the ALJ accorded little weight to Ms. Jones’s assessments because Ms. 3 Jones’s opinions were “inconsistent with the objective records at the time” and “appear[ed] to rely 4 primarily on [Plaintiff’s] subjective complaints.” AR 36. Finally, the ALJ accorded little weight 5 to the joint opinion of Ms. Childs and Dr. Franklin. The ALJ noted that “[t]he report is not from a 6 treating or independent source, but one engaged, it appears, by counsel.” AR 36. The ALJ also 7 concluded that the joint opinion was “inconsistent with the longitudinal evidence and 8 presentation.” AR 36. Moreover, the ALJ explained that it was discounting the joint opinion 9 because “the exam was conducted during a period in which [Plaintiff] was not taking any 10 psychotropic medication.” AR 36. 11 At step four, for the period May 1, 2016 and onward, the ALJ found that Plaintiff could not 12 perform his past relevant work. AR 36. At step five, the ALJ found that beginning May 1, 2016, 13 and considering Plaintiff’s age, education, work experience, and RFC, there were “jobs that exist 14 in significant numbers in the national economy that [Plaintiff] [could] perform.” AR 36. Relying 15 on VE testimony, the ALJ concluded that Plaintiff was capable of performing the requirements of 16 representative occupations such as routing clerk, can filling and closing machine tender, hand 17 rolling machine operator, and apple packing header. AR 37. Accordingly, Plaintiff was “capable 18 of making a successful adjustment to work that exists in significant numbers in the national 19 economy,” and therefore, for the period from May 1, 2016 and onward, the ALJ determined that 20 Plaintiff was not disabled for the purposes of the Social Security Act. AR 37. 21 C. Analysis 22 As stated above, Plaintiff asserts that the ALJ committed four errors. First, the ALJ 23 allegedly erred in determining that Plaintiff’s statements concerning the intensity, persistence, and 24 limiting effects of his symptoms were not consistent with the medical evidence. Second, Plaintiff 25 contends that the ALJ erred in failing to give proper weight to the medical evidence. Third, 26 Plaintiff asserts that the ALJ erred in concluding that Plaintiff did not meet Listings 12.04 or 12.06 27 14 1 at Step Three of the sequential evaluation process. Fourth, Plaintiff argues that substantial 2 evidence does not support the ALJ’s assessment of Plaintiff’s residual functional capacity. Id. at 3 16-18. The Court addresses each of Plaintiff’s arguments in the order presented. 4 1. Whether the ALJ Erred in Determining Plaintiff’s Statements Regarding His Symptoms Were Inconsistent with the Medical Evidence 5 Plaintiff argues that the ALJ erred when finding that Plaintiff’s statements concerning the 6 intensity, persistence, and limiting effects of the symptoms from his mental impairments were not 7 fully supported by evidence in the record. Plaintiff’s Mot. at 4; AR 34. In particular, Plaintiff 8 contends that the ALJ erred by (1) characterizing Plaintiff’s treatment history as “conservative” 9 and (2) not fully developing the record after concluding that there was “little medical evidence” of 10 mental health impairments after the closed period from January 2014 to April 2016. See AR 28, 11 30, 33. 12 When there is no affirmative evidence of malingering, as is the case here, instead of 13 reviewing for substantial evidence, the ALJ’s reasons for rejecting a claimant’s testimony about 14 the severity of his symptoms must be “clear and convincing.” Trevizo, 871 F.3d at 678. When 15 reviewing for clear and convincing reasons to reject a claimant’s testimony, “[g]eneral findings are 16 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 17 undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The 18 Court finds that insofar as the ALJ did reject Plaintiff’s testimony about the severity of his mental 19 symptoms, the ALJ’s reasons for doing so are clear and convincing. 20 a. Plaintiff’s Medication Management and Therapy Qualify as “Conservative 21 Treatment” 22 The ALJ determined that “objective evidence supports the diagnoses of depression, 23 anxiety, and arguably posttraumatic stress disorder.” AR 30. At the same time, the ALJ found 24 that Plaintiff “never received inpatient treatment or psychiatric hospitalization,” and instead 25 participated in “conservative treatment in the form of medication and therapy.” AR 30. The ALJ 26 determined that “[c]linical findings include dysphoric and anxious mood with congruent affect, 27 15 1 disorganized thought process, [and] marginal impulse control,” but that there were also “many 2 normal or unremarkable clinical findings,” including “evidence of normal mood and affect, well- 3 groomed, normal behavior, unremarkable thought content, goal oriented thought process, age 4 appropriate fund of knowledge, attention and concentration within normal limits, no evidence of 5 delusions or hallucinations, and good insight and judgment.” AR 30. 6 On this basis, Plaintiff asserts that the ALJ improperly discounted Plaintiff’s mental 7 impairments based on the erroneous “expectation that one must be hospitalized or receiving 8 inpatient care in order to be considered suffering from disabling conditions.” Plaintiff’s Mot. at 5. 9 Plaintiff’s argument is not well-taken. 10 To begin, the ALJ determined that “[Plaintiff’s] statements concerning the intensity, 11 persistence[,] and limiting effects of [his mental] symptoms [were] generally consistent with the 12 evidence.” AR 31. Indeed, “in an abundance of caution,” the ALJ credited Plaintiff’s statements 13 regarding his mental impairments; declined to follow the medical opinions of State agency 14 physicians, who found Plaintiff could execute simple tasks with minimal or superficial interaction 15 with others; and precluded Plaintiff from any work entailing interaction with the public. AR 31. 16 From the ALJ’s own decision, it is not entirely clear that the ALJ in fact rejected Plaintiff’s 17 subjective allegations as Plaintiff contends. 18 Nonetheless, in any event, “evidence of ‘conservative treatment’ is sufficient to discount a 19 claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 20 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); Wennet v. Saul, 21 777 Fed. App’x 875, 877 (9th Cir. 2019) (same). Plaintiff claims that “regular therapy and 22 medication management with an increase in medication” should not be characterized as 23 “conservative treatment,” Plaintiff’s Mot. at 4, but courts have reached the opposite conclusion. 24 Here, as in other cases, “Plaintiff was never hospitalized for [his] mental problems, but instead 25 medical providers prescribed and recommended medication [and] therapy.” Ayala-Salamat v. 26 Berryhill, 2017 WL 2968737, at *15 (N.D. Cal. July 12, 2017); Holaday v. Colvin, 2016 WL 27 16 1 880971, at *11 (E.D. Cal. Mar. 8, 2016) (holding that a plaintiff’s treatment involving prescribed 2 medication and therapy sessions was conservative). Indeed, following a period of using 3 medication, Plaintiff’s mental symptoms improved.1 AR 699 (noting that Plaintiff reported that 4 “[s]ince he started taking Lamictal, he feels he is in a much better space,” that “[p]atient 5 demonstrated a much more relaxed mood than in previous sessions,” and that Plaintiff reported 6 that “since the last visit[,] [his] symptoms have been improved”); AR 899-901 (noting that 7 Plaintiff only “became unstable after a brief period off med[ication]”). 8 Accordingly, the ALJ did not err by characterizing Plaintiff’s treatment history as 9 “conservative.” Insofar as the ALJ discounted Plaintiff’s testimony, Plaintiff’s conservative 10 treatment was a clear and convincing reason to do so. 11 b. The ALJ Fulfilled His Duty to Develop the Record for the Period Starting May 1, 2016 12 Plaintiff next argues that the ALJ improperly concluded that there was “little medical 13 evidence” of mental health impairments after the closed period from January 2014 to April 2016 14 such that the ALJ’s conclusion regarding the intensity, persistence, and limiting effects of his 15 mental symptoms was erroneous. In particular, Plaintiff contends that his counsel “made a 16 reasonable effort to obtain additional mental health treatment records but experienced 17 unforeseeable difficulty in obtaining such records.” Plaintiff’s Mot. at 6. Plaintiff contends that 18 the ALJ’s knowledge of these difficulties required the ALJ to “subpoena[] the relevant records 19 which [Plaintiff] was unable to obtain.” Id. at 7. The ALJ, however, took no action and therefore, 20 according to Plaintiff, the ALJ “failed to fulfill his duty to develop the record fully.” Id. 21 The ALJ found that following the closed period ending on April 30, 2016, Plaintiff 22 “experienced some improvement in depressive symptoms,” “continued to have symptoms of 23 anxiety and perhaps PTSD,” and that “the record [did] not demonstrate any worsening.” AR 33. 24 At the same time, the ALJ also determined that “after the closed period [ending on April 30, 25 26 1 Plaintiff’s mental symptoms returned, however, after Plaintiff ran out of medication for a few 27 days and following the suicide of Plaintiff’s brother-in-law. AR 893, 899-901. 17 1 2016,] there is little medical evidence [regarding Plaintiff’s mental impairments].” AR 28 2 (emphasis added). The ALJ found that Plaintiff “continued with conservative outpatient treatment 3 and medication,” and that “[w]hile there [were] a few abnormal exam findings, most mental status 4 exams from May 2016 and ongoing d[id] not support any additional functional limitations.” AR 5 33. As a result, the ALJ adopted his earlier findings and analysis regarding Plaintiff’s mental 6 impairments during the closed period from January 12, 2014 to April 30, 2016—namely, that 7 Plaintiff experienced depression, anxiety, PTSD, dysphoric and anxious mood with congruent 8 affect, disorganized thought process, and marginal impulse control.” AR 30, 33. 9 Plaintiff relies on Tonapetyan v. Halter, but Tonapetyan does not cover Plaintiff’s 10 situation. Plaintiff’s Mot. at 7 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). 11 Under Tonapetyan, an “ALJ in a social security case has an independent duty to fully and fairly 12 develop the record and to assure that the claimant’s interests are considered.” Tonapetyan, 242 13 F.3d at 1150 (quotation marks omitted). This duty, however, is only “trigger[ed]” when there is 14 “[a]mbiguous evidence” or the ALJ “find[s] that the record is inadequate to allow for the proper 15 evaluation of evidence.” Id. Here, the ALJ did find that there was “little medical evidence” but 16 also concluded that “most mental status exams from May 2016 and ongoing d[id] not support any 17 additional functional limitations.” AR 28, 33. This situation is different from the one in 18 Tonapetyan, where the medical expert himself “recommend[ed] that a more detailed report be 19 obtained” because it was “‘difficult to say’ whether the medical record was complete enough to 20 allow the ALJ to reach a conclusion in the case.” Id. Here, neither the ALJ nor any medical 21 experts made “equivocations” or expressed “concern over the lack of a complete record.” Id. at 22 1151; Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ’s duty to develop the 23 record further is triggered only when there is ambiguous evidence or when the record is 24 inadequate to allow for proper evaluation of the evidence. The record before the ALJ was neither 25 ambiguous nor inadequate to allow for proper evaluation of the evidence.” (citing Tonapetyan, 26 242 F.3d at 1150)). 27 18 1 Moreover, in any event, even if the ALJ’s duty was “trigger[ed]” by any such 2 “[a]mbiguous evidence” or a “record [that] [was] inadequate to allow for the proper evaluation of 3 evidence,” an “ALJ may discharge this duty in several ways, including: subpoenaing the 4 claimant’s physicians, submitting questions to the claimant’s physicians, continuing the hearing, 5 or keeping the record open after the hearing to allow supplementation of the record.” Id. at 1150 6 (citations omitted). In the instant case, the ALJ properly discharged that duty by “continuing the 7 hearing” and “keeping the record open after the hearing to allow supplementation of the record.” 8 Id. at 1150; AR 23, 79-81, 108-09. Furthermore, the ALJ in the instant case “provided plaintiff 9 with ample opportunity to fully develop the record,” and insofar as the ALJ acknowledged that the 10 record lacked sufficient evidence, the ALJ nonetheless gave Plaintiff “repeated opportunities to 11 submit additional evidence” such that the burden of proof does not shift to the ALJ. Shakhbazyan 12 v. Colvin, 2015 WL 4932812, at *4 (C.D. Cal. Aug. 17, 2015) (“An ALJ’s acknowledgement that 13 the record lacks sufficient evidence despite plaintiff’s repeated opportunities to submit additional 14 evidence, does not shift the burden of proof to the ALJ.” (citing Mayes, 276 F.3d at 459)). 15 Accordingly, the ALJ fully discharged his duties to fully develop the record, and therefore, 16 did not err in determining the extent of the intensity, persistence, and limiting effects of the 17 symptoms from Plaintiff’s mental impairments. 18 2. Whether the ALJ Erred in Weighing the Medical Evidence 19 Plaintiff’s second argument asserts that the ALJ erred in failing to give proper weight to 20 the medical evidence. Specifically, Plaintiff contends that (1) the ALJ failed to evaluate and 21 consider the opinion evidence from Plaintiff’s treating psychiatrist, Dr. Hiatt; (2) the ALJ failed to 22 provide specific and legitimate reasons for rejecting the joint opinion of Ms. Childs, M.S., and Dr. 23 Franklin, Ph.D.; (3) the ALJ failed to provide germane reasons for rejecting the opinion of Ms. 24 Jones, MFTi; (4) the ALJ failed to provide germane reasons for rejecting the opinion of Ms. Estell, 25 MFTi; and (5) the ALJ erroneously relied on State agency physicians whose opinions were 26 allegedly inconsistent with the record. Plaintiff’s Mot. at 8. The Court addresses each of 27 19 1 Plaintiff’s contentions in turn. 2 a. The ALJ Did Not Fail to Evaluate and Consider Dr. Hiatt’s Opinion Evidence 3 Plaintiff asserts that the ALJ overlooked Dr. Hiatt’s opinions regarding Plaintiff’s mental 4 impairments. In particular, Plaintiff argues that the ALJ did not consider Dr. Hiatt’s May 20, 2015 5 and March 31, 2016 observations that Plaintiff was fidgety, dysphoric, and anxious, AR 657; that 6 Plaintiff had “dyscontrol issues” and was “[c]urrently experiencing increased anxiety [and] 7 volatility” such that “[a] mood stabilizer seem[ed] the most appropriate route,” AR 658; that 8 Plaintiff was diagnosed with PTSD, and prescribed Plaintiff with lamotrigine and lorazepam to 9 treat Plaintiff’s anxiety issues, AR 658, 663; that following the suicide of his brother-in-law and a 10 physical altercation with a neighbor, Plaintiff presented as tearful, fidgety, and depressed, AR 900; 11 and that Plaintiff was diagnosed with a “major return of PTSD” and “depression with associated 12 anxiety and irritability” and prescribed “restart[ing] [medication] at higher levels” before 13 “consider[ing] [additional new medication] after a week,” AR 901. 14 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards 15 that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. 16 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “Cases in this circuit 17 distinguish among the opinions of three types of physicians: (1) those who treat the claimant 18 (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); 19 and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. 20 Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). “Generally, the opinion of a 21 treating physician must be given more weight than the opinion of an examining physician, and the 22 opinion of an examining physician must be afforded more weight than the opinion of a reviewing 23 physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014); see also Reddick v. Chater, 24 157 F.3d 715, 725 (9th Cir. 1998). “If a treating or examining doctor’s opinion is contradicted by 25 another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons 26 that are supported by substantial evidence.” Ryan, 528 F.3d at 1198 (quoting Bayliss v. Barnhart, 27 20 1 427 F.3d 1211, 1216 (9th Cir. 2005)). Nonetheless, “a treating physician’s opinion . . . is not 2 binding on an ALJ with respect to the existence of an impairment or the ultimate determination of 3 disability.” Tonapetyan, 242 F.3d at 1148. 4 To begin, the ALJ’s opinion carefully noted that “some doctors did note posttraumatic 5 stress disorder as a diagnosis” such that Plaintiff’s “anxiety disorder and posttraumatic stress 6 disorder [were] both considered in assessing [Plaintiff’s] ability to function.” AR 28. Therefore, 7 it is unclear whether the ALJ actually rejected or ignored Dr. Hiatt’s opinion evidence, as Plaintiff 8 contests. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (“It is not clear, 9 however, that . . . the ALJ actually rejected [a medical] report.”). 10 Furthermore, and more importantly, “[i]t is not clear . . . that [Dr. Hiatt] actually concluded 11 that [Plaintiff] was disabled from post-traumatic stress disorder.” Id. (emphasis added). “An ALJ 12 does not err by not incorporating a physician’s opinion when the physician had not ‘assign[ed] any 13 specific limitations on the claimant.” Youngblood v. Berryhill, 734 Fed. App’x 496, 498 (9th Cir. 14 2018) (quoting Turner, 613 F.3d at 1223). As was the case in Turner, Dr. Hiatt’s opinion 15 evidence did not proffer “any evidence or anything that would actually confirm that [Plaintiff] 16 could not work.” See Turner, 613 F.3d at 1223 (internal alterations omitted). Indeed, as in 17 Turner, Dr. Hiatt’s May 20, 2015 and March 31, 2016 assessments “did not necessarily imply that 18 [Plaintiff] [was] incapacitated by his post-traumatic stress disorder” because “nothing in [Dr. 19 Hiatt’s assessments] assigned any specific limitations on [Plaintiff].” See id. (quotation marks and 20 internal alterations omitted); see also Garner v. Colvin, 626 Fed. App’x 699, 702 (9th Cir. 2015) 21 (“Dr. Birdlebough’s evidence consisted only of diagnosis and treatment notes, rather than an 22 actual opinion regarding Garner’s remaining functional abilities in the workplace.”). 23 Accordingly, “the ALJ did not need to provide ‘clear and convincing reasons’ for rejecting 24 [Dr. Hiatt’s assessments] because the ALJ did not reject any of [Dr. Hiatt’s] conclusions.” Turner, 25 613 F.3d at 1223. Rather, [t]he ALJ incorporated [Dr. Hiatt’s] observations into [Plaintiff’s] 26 residual functional capacity.” Id. In other words, the ALJ did not fail to evaluate and consider Dr. 27 21 1 Hiatt’s opinion testimony such that reversal is warranted. The Court next discusses whether the 2 ALJ provided specific and legitimate reasons for rejecting the joint opinion of Ms. Childs and Dr. 3 Franklin. 4 b. The ALJ Provided Specific and Legitimate Reasons for According Little Weight to the Joint Opinion of Ms. Childs, M.S., and Dr. Franklin, Ph.D. 5 Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for rejecting 6 the joint opinion of Ms. Childs, M.S., and Dr. Franklin, Ph.D. “If a treating or examining doctor’s 7 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing 8 specific and legitimate reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 9 1198 (quotation marks omitted). 10 On July 23, 2014, Plaintiff met with Ms. Childs, M.S., who assessed Plaintiff’s 11 psychological capabilities. AR 516. At the July 23, 2014 meeting, Plaintiff told Ms. Childs that 12 Plaintiff was not taking any psychiatric medication. AR 518. Dr. Franklin was Ms. Childs’s 13 supervisor. Although Dr. Franklin was not present at the July 23, 2014 meeting and Ms. Childs’s 14 opinion was based exclusively on the July 23, 2014 meeting, the opinion of Ms. Childs was issued 15 jointly with Dr. Franklin. The joint opinion noted that Plaintiff “was oriented to person, place, 16 year, month, season, and day of the week, but not to the date.” AR 518. Plaintiff, however, 17 “endorsed manic symptoms: elevated mood, decreased need for sleep, pressured speech, racing 18 thoughts, distractibility, increased goal oriented activity and behavior with a high risk of 19 consequences.” AR 521. Plaintiff also endorsed “symptoms related to Posttraumatic Stress 20 Disorder.” AR 521. The joint opinion diagnosed Plaintiff with bipolar disorder; PTSD; 21 obsessive-compulsive disorder; and academic, relational, and occupational problems. AR 522. 22 The joint opinion qualified the diagnosis by noting that “the results of the evaluation are limited in 23 scope by the records available, the time of the evaluation, and the client’s self report.” AR 521. 24 The joint opinion noted that “Plaintiff’s cognitive and neuropsychological impairments . . . might 25 be roadblocks to his being able to maintain a position in a job.” AR 522. 26 The ALJ assigned “little weight” to the joint opinion. The ALJ determined that (1) “[t]he 27 22 1 report [was] not from a treating or independent source, but one engaged, it appears, by counsel,” 2 AR 36; (2) “the exam was conducted during a period in which [Plaintiff] was not taking any 3 psychotropic medication,” AR 36; and (3) the report was “inconsistent with the longitudinal 4 evidence and presentation,” AR 36. 5 Plaintiff argues that none of the ALJ’s three reasons for discounting the joint opinion 6 constitute a specific and legitimate reason to afford the joint opinion less weight. Plaintiff’s Mot. 7 at 13-14. At the outset, the Court notes that it agrees with Plaintiff that the fact that a claimant has 8 been referred for examination by his or her counsel is not sufficient on its own to discredit a 9 report. “The purpose for which medical reports are obtained does not provide a legitimate basis 10 for rejecting them.” Lester, 81 F.3d at 832. The Commissioner “may introduce evidence of actual 11 improprieties,” but the Commissioner “may not assume that doctors routinely lie in order to help 12 their patients collect disability benefits.” Id. (quotation marks omitted). 13 Nonetheless, when there is substantial evidence supporting an ALJ’s decision and the error 14 does not affect the ultimate non-disability conclusion, the error is harmless. Carmickle, 533 F.3d 15 at 1162 (“[T]he relevant inquiry in this context is not whether the ALJ would have made a 16 different decision absent any error, it is whether the ALJ’s decision remains legally valid, despite 17 such error.” (citations omitted)); Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 18 2006); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004). Here, the 19 error is harmless because the ALJ’s other two reasons for according little weight to the joint 20 opinion are specific and legitimate and supported by substantial evidence. 21 First, substantial evidence supports the ALJ’s finding that Plaintiff was not yet taking 22 psychotropic medication at the time of the joint opinion. Plaintiff in fact told Ms. Childs on July 23 23, 2014 that Plaintiff was not taking any psychiatric medication. AR 518. Additionally, 24 Plaintiff’s symptoms improved when Plaintiff began taking medication following a meeting with 25 Dr. Hiatt on May 29, 2015, but Plaintiff’s symptoms flared up following a brief period off 26 medication and following the suicide of Plaintiff’s brother-in-law. AR 699 (noting that Plaintiff 27 23 1 reported that “[s]ince he started taking Lamictal, he feels he is in a much better space,” that 2 “[p]atient demonstrated a much more relaxed mood than in previous sessions,” and that Plaintiff 3 reported that “since the last visit[,] [his] symptoms have been improved”); AR 899-901 (noting 4 that Plaintiff only “became unstable after a brief period off med[ication]”). 5 “[I]nstances where treatment and medication alleviate[] [a claimant’s] symptoms” 6 constitute “specific, clear, and convincing reasons for discounting” testimony. Youngblood, 734 7 Fed. App’x at 499. Therefore, the substantial evidence that Plaintiff’s mental symptoms improved 8 when Plaintiff used medication constitutes a specific and legitimate reason to discount the joint 9 opinion that predated Plaintiff’s use of medication. Id.; Warre v. Comm’r of Soc. Sec. Admin., 439 10 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication 11 are not disabling for the purpose of determining eligibility for SSI benefits.”); Grace E.F., v. Saul, 12 2019 WL 6135029, at *10 (C.D. Cal. Nov. 19, 2019) (“The effectiveness of treatment is a relevant 13 factor in determining the severity of a claimant's symptoms. . . . Consequently, evidence of 14 effective treatment may provide a specific, clear, and convincing reason to discount a claimant’s 15 subjective symptom testimony.” (citing Youngblood, 734 Fed. App’x at 499)); Baricevic v. 16 Comm’r of Soc. Sec., 2016 WL 4192415, at *4 (E.D. Cal. Aug. 9, 2016), aff’d sub nom. Baricevic 17 v. Berryhill, 720 Fed. App’x 858 (9th Cir. 2018) (“It was also proper for the ALJ to consider 18 plaintiff’s positive reaction to the treatment she received.” (citing Parra, 481 F.3d at 751)); Ashley 19 v. Colvin, 2014 WL 60342, at *8 (N.D. Cal. Jan. 7, 2014) (holding that an “ALJ properly 20 discounted opinions of physicians who met with patient early in treatment, and because plaintiff’s 21 mental health had improved” (citation omitted)). 22 Second, substantial evidence supports the ALJ’s finding that the joint opinion was 23 “inconsistent with the longitudinal evidence.” AR 36. The ALJ determined that “[c]linical 24 findings include dysphoric and anxious mood with congruent affect, disorganized thought process, 25 [and] marginal impulse control,” but that there were also “many normal or unremarkable clinical 26 findings,” including “evidence of normal mood and affect, well-groomed, normal behavior, 27 24 1 unremarkable thought content, goal oriented thought process, age appropriate fund of knowledge, 2 attention and concentration within normal limits, no evidence of delusions or hallucinations, and 3 good insight and judgment.” AR 30. 4 Plaintiff’s treatment notes from Kaiser confirm the ALJ’s findings. AR 563 (noting that 5 Plaintiff appeared alert, well-appearing, and in no distress and that his mental status was alert, and 6 oriented to person, place, and time); AR 579 (finding that Plaintiff’s behavior appeared normal, 7 his thought process was logical, he was fully oriented, had intact recent and remote memory, and 8 possessed good insight and judgment); AR 626 (noting that Plaintiff’s symptoms have remained 9 unchanged and that Plaintiff’s mental status was largely normal); AR 699 (noting that Plaintiff 10 reported that “[s]ince he started taking Lamictal, he feels he is in a much better space,” that 11 “[p]atient demonstrated a much more relaxed mood than in previous sessions,” and that Plaintiff 12 reported that “since the last visit[,] [his] symptoms have been improved”); AR 886-87 (noting that 13 Plaintiff’s symptoms were unchanged and that Plaintiff’s mental status was normal). 14 The joint opinion, on the other hand, diagnosed Plaintiff with bipolar disorder; PTSD; 15 obsessive-compulsive disorder; and academic, relational, and occupational problems. AR 522. 16 Based on these findings, the joint opinion noted that “Plaintiff’s cognitive and neuropsychological 17 impairments . . . might be roadblocks to his being able to maintain a position in a job.” AR 522. 18 Finally, the joint opinion qualified the diagnosis by explaining that “the results of the evaluation 19 are limited in scope by the records available, the time of the evaluation, and the client’s self 20 report.” AR 521. 21 “[I]nconsistency with the medical record is a specific and legitimate reason to reject a [] 22 physician’s opinion.” Barney v. Berryhill, 769 Fed. App’x 465, 465 (9th Cir. 2019) (quoting 23 Tommasetti, 533 F.3d at 1041). Furthermore, “the one-time nature of an assessment is a valid 24 reason to afford less weight than is afforded medical evidence found elsewhere in the record.” 25 Everett v. Astrue, 2012 WL 1965958, at *12 (E.D. Cal. May 31, 2012). Indeed, the fact that a 26 physician examined a claimant “only one time and produced a brief report” can be a “specific, 27 25 1 legitimate reason[] for disregarding the conclusions of” that physician. Matney v. Sullivan, 981 2 F.2d 1016, 1020 (9th Cir. 1992); see also Nguyen v. Barnhart, 170 Fed. App’x 471, 472 (9th Cir. 3 2006) (“First, Dr. Engelhorn’s opinion is entitled to less weight than those of Nguyen’s treating 4 and examining physicians because it is conclusory, based on a single examination and is 5 unsupported by independent clinical findings.”). Here, substantial evidence from Plaintiff’s 6 treatment notes indicate that the joint opinion is inconsistent with other evidence in the record. 7 See, e.g., AR 563, 579, 626, 886-87. Furthermore, as the joint opinion notes, “the results of the 8 evaluation are limited in scope by the records available, the time of the evaluation, and the client’s 9 self report.” AR 521. 10 As a result, the ALJ provided specific and legitimate reasons supported by substantial 11 evidence for according little weight to the joint opinion. As such, the Court finds that the ALJ did 12 not err by discounting the joint opinion. The Court now analyzes whether the ALJ provided 13 germane reasons supported by substantial evidence for rejecting the opinion of Ms. Jones and Ms. 14 Estell. 15 c. The ALJ Provided Germane Reasons Supported by Substantial Evidence for Rejecting the Opinion of Ms. Jones, MFTi, and Ms. Estell, MFTi 16 Plaintiff contends that the ALJ failed to give germane reasons supported by substantial 17 evidence (“germane reasons”) for discounting the opinions of Ms. Jones and Ms. Estell. The ALJ 18 accorded little weight to the opinion of Ms. Jones because the opinion was “inconsistent with the 19 objective records” and “appear[ed] to rely primarily on the claimant’s subjective complaints.” AR 20 36. The ALJ granted little weight to the opinion Ms. Estell on similar grounds. AR 35. The ALJ 21 found that the record and State agency physicians contradicted Ms. Estell’s opinion and that Ms. 22 Estell’s opinion consisted of a “check box form, not supported with a narrative and not citing 23 objective findings.” AR 35. These were all germane reasons to discount the opinions of Ms. 24 Jones and Ms. Estell. 25 In addition to the medical opinions of “acceptable medical sources,” an ALJ must consider 26 the opinions of other “medical sources who are not acceptable medical sources and [the testimony] 27 26 1 from nonmedical sources.” 20 C.F.R. § 414.1513(a). An ALJ must consider observations by 2 “other sources” regarding how an impairment affects a claimant’s ability to work, though “other 3 sources” “are not entitled to the same deference as “acceptable medical sources.” Molina v. 4 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). An “ALJ may discount testimony from these ‘other 5 sources’ if the ALJ gives reasons germane to each witness for doing so.” Molina, 674 F.3d at 6 1111 (internal quotations and citations omitted). Inconsistency with a medical source opinion or 7 the medical record is a germane reason to discount an “other source” opinion. Cachu v. Colvin, 8 2015 WL 5232524, at *5 (E.D. Cal. Sept. 8, 2015) (citing Ball v. Colvin, 607 Fed. App’x 709, 710 9 (9th Cir. 2015); see also Molina, 674 F.3d at 1112 (concluding that an inconsistency between an 10 “other source” and an “acceptable medical source” was a germane reason to discount the “other 11 source” opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“Inconsistency with 12 medical evidence is one such [germane] reason.”). If an “other source” opinion utilizes a 13 “standardized, check-the-box form” without “supporting reasoning or clinical findings,” that is 14 another germane reason to afford less weight to an “other source” opinion. Molina, 674 F.3d at 15 1112. Furthermore, “rel[ying] too heavily on [a claimant’s] subjective complaints” provides yet 16 another “germane reason[] for discounting” an opinion. Hall v. Berryhill, 717 Fed. App’x 708, 17 710 (9th Cir. 2017). 18 i. Ms. Jones’s Opinion 19 Here, Ms. Jones’s “progress notes” from September 2014 to November 2015 include a 20 paragraph on subjective observations, objective observations, Ms. Jones’s assessment, and plan for 21 future therapy. AR 557-60. In the “objective” observation sections, Ms. Jones noted that Plaintiff 22 “was dressed and groomed appropriately,” that Plaintiff “showed signs of aggravation and 23 depression,” and that Plaintiff “still falls short when it comes to holding in his angry outburst but 24 he is aware of it and is attempting to find ways of coping with the negativity going on in his head.” 25 AR 558-59. On other occasions, however, Ms. Jones’s notes appear to report “subjective” 26 observations as “objective” ones, including that Plaintiff “reported getting better at recognizing 27 27 1 [his] anger triggers” and that Plaintiff “reported that his wife and children are starting to feel 2 uncomfortable around him at times.” AR 558-59. This fact suggests that Ms. Jones “relied too 3 heavily on [Plaintiff’s] subjective complaints” and that Ms. Jones’s progress notes should be 4 discounted, just as the ALJ concluded. Hall, 717 Fed. App’x at 710; AR 36. 5 This conclusion is buttressed by the fact that Ms. Jones’s notes are inconsistent with 6 medical source opinion and medical records. Molina, 674 F.3d at 1112 (concluding that an 7 inconsistency between an “other source” and an “acceptable medical source” was a germane 8 reason to discount the “other source” opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 9 2005) (“Inconsistency with medical evidence is one such [germane] reason.”). 10 Ms. Jones’s opinion categorized Plaintiff as having numerous marked or extreme 11 impairments for work-related activities. AR 554-56. Ms. Jones noted that Plaintiff exhibits 12 “antisocial behavior” and is “[e]xtremely angry and frustrated with the world and everything in it.” 13 AR 556. Ms. Jones also concluded that Plaintiff would have marked limitations in making simple 14 work-related decisions, maintaining attention for two hour segments, and completing a normal 15 workday and workweek without interruptions from psychologically based symptoms. AR 555. 16 Indeed, Ms. Jones’s opinion goes further than Dr. Hiatt’s treatment notes in opining on the 17 severity of Plaintiff’s PTSD. See AR 555-56, 655-58, 899-901. 18 Both State agency physicians disagreed with Ms. Jones’s opinion, AR 28, 138-39, 153-54, 19 and the ALJ was entitled to afford greater weight to the opinions of State agency physicians 20 because they were acceptable medical sources and Ms. Jones was not, Hayes v. Berryhill, 721 Fed. 21 App’x 648, 651 (9th Cir. 2018) (holding that an inconsistency with a physician’s opinion was a 22 germane reason to discount the opinion of a vocational counselor); Robinson, 690 Fed. App’x at 23 524 (determining that germane reasons to discount “other source” opinions include inconsistency 24 with an opinion provided by an “acceptable medical source”). Dr. Ferrell reviewed the record and 25 found that Plaintiff could perform simple tasks with no limitations in social functioning. In other 26 categories relevant to an individual’s ability to performed sustained work activities, Dr. Ferrell 27 28 1 found that Plaintiff did not have significant limitations or was only moderately limited in areas 2 such as, inter alia, the ability to understand and remember very short and simple instructions, the 3 ability to carry out very short and simple instructions, the ability to maintain attention and 4 concentration for extended periods, and the ability to make simple work-related decisions. AR 5 137-39. 6 Dr. Kresser also reviewed the record and made similar findings. AR 152-54. Dr. Kresser 7 found that Plaintiff could perform “simple tasks with minimal or superficial interaction with 8 others.” AR 153. Dr. Kresser noted that Plaintiff had adaptation limitations, but only insignificant 9 or moderate limitations in categories such as the ability to carry out very short and simple 10 instructions, the ability to maintain attention and concentration for extended periods, the ability to 11 sustain an ordinary routine without special supervision, and the ability to make simple work- 12 related decisions. AR 152-53. 13 Additionally, as noted previously, Plaintiff’s treatment notes from Kaiser include, as the 14 ALJ found, evidence of normal mood and affect, well-groomed, normal behavior, unremarkable 15 thought content, goal oriented thought process, age appropriate fund of knowledge, attention and 16 concentration within normal limits, no evidence of delusions or hallucinations, and good insight 17 and judgment. See AR 30, AR 563, 579, 626, 886-87; Bayliss, 427 F.3d at 1218 (“Inconsistency 18 with medical evidence is one such [germane] reason.”). 19 Accordingly, the ALJ provided germane reasons for according little weight to Ms. Jones’s 20 opinion. 21 ii. Ms. Estell’s Opinion 22 In 2016 and 2017, Plaintiff received psychotherapy treatment from Ms. Estell, also a 23 marriage and family therapist intern. AR 727-31, 1019-20. On October 28, 2016, Ms. Estell, 24 utilizing a check-box form, found that Plaintiff had “marked” limitations in the following seven 25 areas: (1) remembering work-like procedures, (2) working in coordination with or proximity to 26 others without being unduly distracted, (3) performing at a consistent pace without an 27 29 1 unreasonable number and length of rest periods, (4) accepting instructions and responding 2 appropriately to criticism from supervisors, (5) dealing with normal work stress, (6) interacting 3 appropriately with the general public, and (7) maintaining socially appropriate behavior. AR 729- 4 30. As part of the check-box form, Ms. Estell also noted that Plaintiff “experiences PTSD 5 symptoms which include but are not limited to: difficulty to focusing, concentrating, managing 6 anger and mood swings, persistent anxiety, flashbacks, intense psychological distress, heightened 7 arousal, fatigue, as well as frequent pain.” AR 731. 8 On March 15, 2017, Ms. Estell again assessed Plaintiff’s level of impairment for work- 9 related activities. Ms. Estell, again utilizing a check-box form, found that Plaintiff exhibited 10 “marked” impairments in 12 areas related to work-related mental abilities. AR 1019. The mental 11 impairment check-box questionnaire included two sections asking the reviewer to describe the 12 patient’s impairments. Ms. Estell answered, “Please refer back to previous mental impairment 13 questionnaire” in response to these sections. AR 1020. 14 The ALJ properly discounted Ms. Estell’s opinion. First, Ms. Estell’s opinion, like Ms. 15 Jones’s opinion, was not supported by medical source opinions and the record. State agency 16 physicians did not find that Plaintiff had the same limitations that Ms. Estell found, AR 137-39, 17 152-54, and the medical record does not indicate that Plaintiff’s mental impairments were as 18 severe as Ms. Estell concluded, AR 563, 579, 626, 886-87. Second, just as the ALJ determined, 19 Ms. Estell’s opinion consisted of a “check box form, not supported with a narrative and not citing 20 objective findings.” AR 35, 727-31, 1019-21. An “ALJ may permissibly reject check-off reports 21 that do not contain any explanation of the bases of their conclusions.” Molina, 674 F.3d at 1111 22 (internal alterations omitted). Therefore, the ALJ provided germane reasons for rejecting the 23 opinion of Ms. Estell. 24 d. The ALJ Did Not Erroneously Rely on the Opinions of State Agency Physicians 25 Plaintiff’s final argument that the ALJ improperly weighed the evidence contends that the 26 ALJ erroneously relied on State agency physicians whose opinions were allegedly inconsistent 27 30 1 with the record. Plaintiff’s Mot. at 14-15. Plaintiff’s argument, however, is dependent on finding 2 that “the opinions of Dr. Hiatt, Ms. Estell, Ms. Jones, Ms. Childs, and Dr. Franklin[] should have 3 been entitled to more weight.” Id. at 15. Because the Court concludes that the ALJ did not err in 4 weighing the other opinion evidence, the Court finds no reason to disturb the ALJ’s decision to 5 rely on the opinions of State agency physicians. 6 3. The ALJ Properly Concluded that From May 1, 2016 and Onward, Plaintiff Was Not Disabled For the Purposes of the Social Security Act 7 Plaintiff’s final challenges to the ALJ’s decision finding Plaintiff not disabled after May 1, 8 2016 consists of arguments that (1) the ALJ erred in concluding that Plaintiff did not meet Listings 9 12.04 or 12.06 at Step Three of the sequential evaluation process, and (2) substantial evidence 10 does not support the ALJ’s assessment of Plaintiff’s residual functional capacity. Id. at 16-18. 11 Again, Plaintiff’s arguments are entirely dependent on finding that the ALJ erred in weighing the 12 evidence. Id. at 16 (“Had the ALJ correctly assessed Mr. Lopriore’s statements and correctly 13 reviewed and weighed the medical evidence of record, he would have found sufficient evidence to 14 support a finding that Mr. Lopriore meets or equals Listings 12.04 and/or 12.06 as originally 15 alleged at the ALJ hearing.”); id. at 17 (“Had the ALJ considered the overall record and 16 appropriately weigh[ed] the opinion evidence, he would have determined that Mr. Lopriore’s 17 combination of exertional and non-exertional impairments prevent him from meeting the basic 18 mental demands of unskilled work . . . .”). Because the ALJ did not err in weighing the evidence, 19 the Court concludes that the ALJ properly concluded that Plaintiff was not disabled for the 20 purposes of the Social Security Act for the period from May 1, 2016 and onward. 21 IV. CONCLUSION 22 For the foregoing reasons, the Court DENIES Plaintiff’s motion for summary judgment 23 and GRANTS the Commissioner’s cross-motion for summary judgment. 24 IT IS SO ORDERED. 25 26 Dated: December 5, 2019 27 31 1 ______________________________________ LUCY H. KOH 2 United States District Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 32