1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tyandrah Ashley, No. CV-22-00163-TUC-EJM
10 Plaintiff,
11 v. ORDER
12 Kilolo Kijakazi, Acting Commissioner of Social Security, 13 Defendant. 14 15 Currently pending before the Court is Plaintiff Tyandrah Ashley’s Opening Brief 16 (Doc. 18). Defendant filed her Answering Brief (“Response”) (Doc. 19), and Plaintiff 17 replied (Doc. 23). Plaintiff brings this cause of action for review of the final decision of 18 the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 19 Compl. (Doc. 1). Based upon the pleadings of the parties and the administrative record 20 submitted to the Court, the Magistrate Judge denies Plaintiff’s Opening Brief (Doc. 18). 21 22 I. BACKGROUND 23 A. Procedural History 24 On July 4, 2020, Plaintiff protectively filed a Title II application for Social Security 25 Disability Insurance Benefits (“DIB”), as well as a Title XVI application for Supplemental 26 Security Income (“SSI”) alleging disability as of June 27, 2020, due to Bipolar I disorder, 27 psychotic features, and anxious distress. See Administrative Record (“AR”) at 30–33, 86– 28 1 87, 89, 97–98, 100, 102, 108, 110, 112, 114, 116, 118–19, 130–31, 134, 340, 359, 361.1 2 The Social Security Administration (“SSA”) denied these applications on July 30, 2020. 3 Id. at 30, 86–112, 142–49. On August 3, 2020, Plaintiff filed a request for reconsideration. 4 Id. at 154–55. On August 13, 2020,2 SSA denied Plaintiff’s application upon 5 reconsideration. Id. at 30, 116–41, 156–63. On November 6, 2020, Plaintiff filed her 6 request for hearing. Id. at 30, 170–71. On April 6, 2021, a telephonic hearing was held 7 before Administrative Law Judge (“ALJ”) Elizabeth Ebner. AR at 30, 47–67. On April 8 16, 2021, the ALJ issued an unfavorable decision. Id. at 27–39. On June 15, 2021, Plaintiff 9 requested review of the ALJ’s decision by the Appeals Council, and on November 4, 2021, 10 review was denied. Id. at 1–6, 392–94. On April 5, 2022, Plaintiff filed this cause of 11 action. Compl. (Doc. 1). 12 B. Factual History 13 Plaintiff was twenty-eight (28) years old at the time of the alleged onset of her 14 disability and twenty-nine (29) years old at the time of the administrative hearing. AR at 15 30–32, 38, 47, 53–54, 68, 70, 72, 86–87, 89, 97–98, 100, 108, 110, 112, 114, 116, 118–19, 16 130–31, 134, 210, 252, 291, 300, 340, 359, 361. Plaintiff is a high school graduate with a 17 bachelor’s degree, as well as some work toward advanced degrees. Id. at 38, 68, 53–54, 18 68, 70, 108, 110, 112, 114, 116, 335. Prior to her alleged disability, Plaintiff worked as a 19 community helper, customer service representative in various technology industries, after 20 school program developer, and management trainee. Id. at 50–51, 55–57, 58–59, 286–88, 21 322–32, 335. 22 1. Plaintiff’s Testimony 23 a. Administrative Hearing 24 At the administrative hearing, Plaintiff confirmed that she had a bachelor’s degree 25 26 1 Page numbers refer to the page numbers demarcated in the Administrative Record rather than the Court’s Case Management/Electronic Case Files (“CM/ECF”) page numbers. 27 2 August 13, 2020 is the date that SSA adjudicators signed off on the denial of Plaintiff’s 28 claim, but the letters from the agency informing Plaintiff of the denial were dated September 3, 2020. 1 and was taking an online course toward a master’s degree in finance. AR at 53–54. 2 Plaintiff also confirmed that she had previously taken classes for a couple of months toward 3 a Master of Business Administration degree. Id. at 54. Plaintiff described her most recent 4 work to include kitchen staff at Eegee’s, deli clerk at Strauss,3 and Red Lobster. Id. at 54– 5 56. Plaintiff worked at these jobs for a few days to approximately four (4) months. Id. 6 Plaintiff testified that she worked for approximately three (3) call centers, and the duties in 7 each position were broadly similar. Id. at 54. Plaintiff described these positions as sitting 8 jobs that did not require any lifting. AR at 56. Plaintiff further testified that in 2015 she 9 worked for AmeriCorps as an after school program developer. Id. at 57. Plaintiff explained 10 that the AmeriCorps position involved standing, sitting, and lifting, but her primary 11 responsibility was planning the lessons for an after school program and working directly 12 with the children. Id. at 57–59. Following her time at AmeriCorps, Plaintiff went to work 13 at America Eagle as a manager in training for approximately four (4) months. Id. at 57– 14 58. Plaintiff described the American Eagle position to include training the staff, processing 15 incoming shipments, folding clothes, talking to customers, opening and closing the cash 16 register, and putting up new displays and marketing. Id. at 58. Plaintiff indicated that she 17 worked at AmeriCorps during her senior year of college. AR at 58. 18 Plaintiff testified that she currently sees a therapist once every two weeks and her 19 psychiatrist once every two (2) months. Id. at 59. Plaintiff estimated that she reduced her 20 therapy from once a week to biweekly approximately one (1) year ago. Id. Plaintiff further 21 testified that she had been seeing her psychiatrist every two (2) months since she began 22 seeing him. Id. at 60. Plaintiff confirmed that she has seen improvement through 23 treatment. Id. 24 Plaintiff testified that she has gained personal satisfaction and understanding 25 regarding her life, as well as greater stability and improved relationships, through 26 treatment. AR at 60. Plaintiff described trying to find a job that fits as the main issue that 27 28 3 The hearing transcript states “Strauss”; however, a review of the record indicates that Plaintiff was working at Sprouts grocery store. 1 she continues to struggle with in therapy. Id. Plaintiff acknowledged that different jobs 2 had different reasons for not working out. Id. Plaintiff explained that Red Lobster would 3 not allow her a break, at Sprouts she had reduced hours following her mental health break, 4 and at Anderson Financial it was very stressful and she could not focus. Id. at 60–61. 5 Plaintiff testified that some of her symptoms go in cycles. Id. at 61. Plaintiff described 6 having difficulty sleeping, which becomes so severe, approximately once a year, that she 7 cannot sleep even with medication and can cause suicidal ideation. AR at 61. Plaintiff 8 further testified that her anxiety has reduced and fluctuates less as a result of her stable 9 support system and ongoing medication compliance. Id. Plaintiff denied having any issues 10 with medication compliance, and opined that the medications were the most important 11 aspect of her treatment to maintain stability. Id. at 61–62. Plaintiff also indicated that her 12 art program was still going well. Id. at 62. Plaintiff opined that she felt that a low stress 13 job, isolated from people, would cause her to become depressed. Id. Plaintiff further 14 opined that she requires interaction with others to maintain her stability in the workplace. 15 AR at 62. Plaintiff doubted that she would be able to maintain a simple job for more than 16 two (2) weeks, even with some interaction with people. Id. at 63. 17 b. Administrative Forms 18 i. Work History Report 19 a. July 9, 2019 20 On July 9, 2019, Plaintiff completed a Work History Report.4 AR at 322–32. 21 Plaintiff listed her prior work a Big Brother Big Sister community helper, customer service 22 representative in technology sales, dictating for the hearing impaired, and customer service 23 in fitness. Id. at 322. Plaintiff described the position at Big Brother Big Sister as full- 24 time—eight (8) hours per day, five (5) days per week. Id. at 323. Plaintiff reported earning 25 $32,000.00 per year, without any further information regarding this position. Id. Plaintiff 26 described the position of customer service representative at Cox Communications as full- 27 28 4 The Work History Report form appears undated; however, the Agency’s Exhibit List provides a date. AR Exhibit Index (Doc. 17-7) at 1 (refers to CM/ECF page number). 1 time—eight (8) hours per day, five (5) days per week. Id. at 324. Plaintiff reported earning 2 $12.00 per hour, without any further information regarding this position. AR at 324. The 3 next customer service job, Plaintiff described as full-time—eight (8) hours per day, five 4 (5) days per week. Id. at 325. Plaintiff reported earning $11.00 per hour, without any 5 further information regarding this position. Id. Plaintiff described her position at LA 6 Fitness as full-time—eight (8) hours per day, five (5) days per week. Id. at 326. Plaintiff 7 reported earning $10.00 per hour in this position, but did not provide any further details. 8 Id. The position at Valley Premaculture Alliance, Plaintiff described as full-time—eight 9 (8) hours per day, five (5) days per week. AR at 327. Plaintiff reported earning $26,000.00 10 per year, without any further details. Id. 11 b. March 4, 2021 12 On March 4, 2021, Plaintiff completed a Work Background form.5 AR at 380. 13 Plaintiff reported working at Eegee’s doing food preparation, cleaning, and dishes. Id. 14 ii. Function Report—Adult 15 On July 27, 2020, Plaintiff completed a Function Report—Adult.6 AR at 343–51. 16 Plaintiff reported that she lived in an apartment with family. Id. at 343. Plaintiff outlined 17 the limitations that her medical conditions cause as follows: 18 I am not able to hold a job for longer than a few months. It limits my ability to be independent and earn income[.] 19 20 Id. Plaintiff described her usual day to include waking up, performing personal hygiene 21 tasks, then going for an approximately one (1) mile walk. Id. at 344. Plaintiff described 22 the remainder of her day to include watching television, getting lunch or going grocery 23 shopping, and relaxing, followed by taking a shower and bed. Id. Plaintiff denied caring 24 for other people or pets. AR at 344. Plaintiff noted that prior to the onset of her bipolar 25 disorder, she was able to go to sleep and stay asleep; however, these sleep issues have
26 5 The Work Background form appears undated; however, the Agency’s Exhibit List 27 provides a date. AR Exhibit Index (Doc. 17-7) at 1 (refers to CM/ECF page number). 28 6 The Function Report form appears undated; however, the Agency’s Exhibit List provides a date. AR Exhibit Index (Doc. 17-7) at 1 (refers to CM/ECF page number). 1 resulted in hospitalization. Id. Plaintiff denied any trouble with personal care. Id. at 345. 2 Plaintiff indicated that she buys her own lunches and eats out often. Id. Plaintiff 3 reported that she prepares her own meals approximately two (2) to three (3) times per week, 4 and it takes her between thirty (30) to forty-five (45) minutes to cook. Id. Plaintiff noted 5 that her cooking habits were unchanged. AR at 345. Plaintiff indicated that she does 6 laundry and dishes, as well as other cleaning including taking out the garbage and cleaning 7 the bathtub. Id. at 346. Plaintiff estimated that it takes her approximately thirty (30) 8 minutes to do each task, and she performs them two (2) to three (3) times per week. Id. 9 Plaintiff reported that she goes outside approximately twice per day. Id. Plaintiff 10 further reported that she is able to go out alone, and when she is out can walk, drive, and 11 ride a bicycle. Id. Plaintiff indicated that she shops in stores for home essentials and 12 groceries. AR at 346. Plaintiff stated that she shops daily for approximately thirty (30) 13 minutes. Id. Plaintiff noted that she is able to count change, handle a savings account, and 14 use a checkbook or money orders, but has difficulty paying bills because she is unable to 15 maintain employment. Id. at 347. Plaintiff denied that her ability to handle money had 16 changed since the onset of her illness. Id. 17 Plaintiff listed her hobbies to include photography, cycling, going on walks, and 18 watching television. Id. Plaintiff observed that she does not have the time or ability to do 19 photography, and the heat prevents her from cycling. AR at 347. Plaintiff reported walking 20 and watching television daily. Id. Plaintiff denied engaging in spending any time with 21 others. Id. Plaintiff noted that prior to the COVID-19 pandemic, she enjoyed volunteering 22 at a nonprofit bike shop. Id. Plaintiff also denied needing reminders to go places or anyone 23 to accompany her, because she does not go anywhere due to COVID-19. Id. Plaintiff 24 reiterated that she does not go out for any social activities. AR at 348. 25 Plaintiff reported that her illness affects her ability to complete tasks, concentrate, 26 and follow instructions. Id. Plaintiff indicated that her “conditions do not allow [her] to 27 complete tasks necessary to hold a job longer than a few months.” Id. Plaintiff is right 28 handed. Id. Plaintiff reported that she can walk a mile prior to needing a rest, and noted 1 that she can resume walking after twenty (20) minutes of rest. Id. Plaintiff further reported 2 that she can pay attention for thirty (30) minutes and is able to finish what she starts. AR 3 at 348. Plaintiff described being able to follow written and spoken instructions well. Id. 4 Plaintiff also indicated that she is able to get along with authority figures. Id. at 349. 5 Plaintiff reported that she is able to handle stress, but noted that it affects her ability to 6 concentrate, socialize, and complete job tasks. Id. 7 Plaintiff indicated that she wears glasses and/or contact lenses. Id. Plaintiff 8 described her mother as her caretaker. AR at 350. Plaintiff noted that her mother pays her 9 bills and reminds her to take her medication. Id. Plaintiff observed that “[w]ithout [her] 10 mother and family support, [she] would not be able to make the effort needed to seek 11 employment that would accommodate [her] bipolar disability.” Id. 12 2. Plaintiff’s Medical Records 13 a. Treatment Records7 14 On June 2, 2019, Plaintiff was seen at the Crisis Response Center (“CRC”) after she 15 had been discharged the previous week. AR at 680–95. Plaintiff remained at the CRC 16 until June 4, 2019. See id. at 680–712. On June 14, 2019, Plaintiff returned to the CRC 17 and was committed for inpatient mental health treatment at Sonora Behavioral Health from 18 June 14, 2019, through June 26, 2019 via petition. Id. at 396–596, 713–22. During the 19 course of her treatment, Plaintiff consented to voluntary treatment. Id. at 411. On June 26, 20 2019, Plaintiff was discharged with a diagnosis of Bipolar I with psychosis. Id. at 403. 21 Plaintiff’s medications on discharge included Lithobid and Risperdal. AR at 404. 22 On July 2, 2019, Plaintiff was seen by Ole J. Thienhaus, M.D. at Banner University 23 Medical Center (“Banner UMC”) Integrated Whole Health Clinic (“WHC”). Id. at 643– 24 45. Plaintiff reported quitting her “job at a call center because ‘it was too stressful.’” Id. 25 at 643. “Shortly after, she was bothered by strange thoughts (no elaboration other than ‘it 26
27 7 Although the Court has reviewed the entirety of Plaintiff’s medical records, its summary 28 is generally limited to records regarding Plaintiff’s mental health treatment after her alleged onset date. 1 had to do with the president and politics[’]), and became profoundly hopeless.” Id. 2 On August 16, 2019, Plaintiff again saw Dr. Thienhaus. Id. at 641–42. Plaintiff 3 discussed her work plans “after the managerial position she’d hoped for was filled.” Id. at 4 642. On September 16, 2019, Plaintiff met briefly with Saren Seeley, MA, BHT at Banner 5 University Medical Center (“Banner UMC”) Integrated Whole Health Clinic (“WHC”) 6 regarding her recently completed intake for EPICenter. AR at 639–40. 7 On January 20, 2020, Ms. Seeley called Plaintiff regarding her interest in returning 8 to therapy. Id. at 638. On January 22, 2020, Plaintiff spoke with Ms. Seeley for an initial 9 consultation. Id. at 636–37. On January 29, 2020, Plaintiff received telehealth services 10 from Ms. Seeley for an individual therapy appointment. Id. at 634–35. Plaintiff reported 11 that her job at Red Lobster was going well. Id. at 634. 12 On February 5, 2020, Plaintiff spoke with Ms. Seeley for an individual therapy 13 appointment. Id. at 632–33. Plaintiff reported that she had been let go from Red Lobster 14 because “they refused to provide her with any breaks during her 9.5 hour shifts.” AR at 15 632. On February 12, 2020, Plaintiff returned to Ms. Seeley for a telephonic individual 16 therapy appointment. Id. at 629–31. Plaintiff reported that she had been hired at Sprouts 17 and discussed the events leading up to “her two ‘breakdowns’ after graduating from 18 college.” Id. at 630. On February 20, 2020, Plaintiff spoke with Ms. Seeley (“WHC”) for 19 an individual therapy appointment. Id. at 627–28. Plaintiff reported that she had started 20 working at Sprouts and had been accepted in the University of Arizona as a business major. 21 Id. at 627. On February 26, 2020, Plaintiff received telehealth services from Ms. Seeley 22 for an individual therapy appointment. AR at 625–26. Plaintiff reported enjoying her job 23 and was contemplating which course of study she would pursue. Id. at 625. On February 24 27, 2020, Plaintiff saw Dr. Thienhaus. Id. at 623–24. Treatment records indicate that 25 Plaintiff had stopped all medications the previous Fall without a recurrence of symptoms. 26 Id. at 623. 27 On March 11, 2020, Plaintiff again received telehealth services from Ms. Seeley for 28 individual therapy. Id. at 620–22. Plaintiff reported that her week had been uneventful 1 and she was scheduled to begin an MBA program online through Grand Canyon University 2 the following week. AR at 620. On March 25, 2020, Plaintiff spoke with Ms. Seeley for 3 a telephonic individual therapy appointment. Id. at 618–19. Plaintiff reported continuing 4 to work at Sprouts and that she was generally doing well. Id. at 618. 5 On April 15, 2020, Plaintiff requested that Ms. Seeley put her therapy appointments 6 on hold. Id. at 617. On April 27, 2020, Plaintiff was seen by Dr. Thienhaus. Id. at 615– 7 16. Dr. Thienhaus’s review of Plaintiff’s systems and mental status examination were 8 unremarkable. AR at 615–16. Treatment records indicate that Plaintiff did not exhibit a 9 re-emergence of her mood instability. Id. at 615. Dr. Thienhaus listed Plaintiff’s ongoing 10 issues to include mood disorder of depressed type, schizophrenia spectrum disorder with a 11 psychotic disorder type not yet determined, and severe manic bipolar 1 disorder with 12 psychotic behavior. Id. at 615. Dr. Thienhaus assessed Plaintiff’s mood disorder to be in 13 remission. Id. at 616. 14 On May 6, 2020, Ms. Seeley called Plaintiff following Plaintiff’s request to resume 15 phone therapy. Id. at 614. Ms. Seeley left a message when Plaintiff failed to answer at the 16 time of their scheduled appointment. AR at 614. On May 7, 2020, Plaintiff received 17 telehealth services from Ms. Seeley. Id. at 677–79. Plaintiff discussed her previous 18 hospitalization, as well as issues within her family of origin that contributed to her negative 19 beliefs about herself. Id. at 677. Ms. Seeley’s observations regarding Plaintiff were 20 generally unremarkable. Id. at 678. On May 8, 2020, Ms. Seeley received a call from 21 Plaintiff and also spoke with her mother, after which Ms. Seeley and Dr. Thienhaus 22 discussed restarting her antipsychotic medications. Id. at 673, 675. On May 11, 2020, Ms. 23 Seeley received a voicemail from Plaintiff’s mother requesting a same-day appointment 24 with a psychiatrist, because the weekend had been difficult. AR at 671. Ms. Seeley 25 counseled Plaintiff’s mother regarding taking Plaintiff to the CRC versus waiting for a next 26 day appointment with Dr. Thienhaus. Id. at 672. On May 12, 2020, Plaintiff received 27 telehealth services from Dr. Thienhaus. Id. at 669–70, 792–93. Plaintiff reported having 28 trouble sleeping, and her mother reported behavioral changes that she associated with 1 prodromal symptoms before a psychotic break. Id. at 669, 792. Dr. Thienhaus stressed the 2 importance of early intervention and restarting her medications that induced remission last 3 time. Id. at 670, 793. His observations of Plaintiff were generally unremarkable. AR at 4 669–70, 792–93. On May 13, 2020, Plaintiff received telehealth services from Ms. Seeley. 5 Id. at 666–68. Plaintiff “reported that she is feeling ‘better’ after having re-started 6 risperidone and lithium.” Id. at 666. Plaintiff indicated that she took a week off of work 7 to adjust to the medications. Id. Ms. Seeley’s observations regarding Plaintiff were 8 generally unremarkable. Id. at 667. On May 20, 2020, Plaintiff returned to Ms. Seeley for 9 individual therapy. AR at 664–65. Treatment records reflect that Plaintiff was “continuing 10 to take lithium and risperidone as prescribed.” Id. at 664. Plaintiff reported generally doing 11 well. Id. at 664–65. On May 28, 2020, Ms. Seeley spoke with Plaintiff on the telephone 12 following a no-show appointment the previous day. Id. at 662–663. Plaintiff reported that 13 her return to work was “good” and that she did not have anything further to talk about at 14 that time. Id. at 662. 15 On June 4, 2020, Plaintiff received telehealth services from Ms. Seeley. AR at 659– 16 61. Plaintiff reported generally doing well. Id. at 659. Plaintiff further reported having 17 “finished one of her online courses and enjoying being back at work[.]” Id. Treatment 18 records reflect that Plaintiff had difficulty finding balance during the stress of the 19 pandemic, protests, and highly publicized examples of police brutality. Id. On June 11, 20 2020, Plaintiff met with Ms. Seeley for a telehealth appointment. Id. at 655–57. Plaintiff 21 reported that “things are going well” and that she did not have anything to talk about. AR 22 at 655. On June 18, 2020, Plaintiff received telehealth services from Ms. Seeley. Id. at 23 652–54. Plaintiff was late due to a phone interview for a new job. Id. at 652. Plaintiff 24 “reported that she had a ‘breakdown’ on Monday, which involved being emotionally 25 distressed to the point where she was unable to eat or drink for a few hours.” Id. Plaintiff 26 attributed the “breakdown” to stress living with several family members in a small 27 apartment which did not give her sufficient space to be alone. Id. Ms. Seeley discussed 28 revising/removing redundant diagnoses from Plaintiff’s chart leaving Bipolar Disorder 1 with psychosis as the only diagnosis. AR at 653. On June 25, 2020, Plaintiff spoke with 2 Ms. Seeley for an individual therapy appointment. Id. at 649–51. Plaintiff reported being 3 stable and having another job interview. Id. at 649. Treatment records reflect that Plaintiff 4 “experienced a re-emergence of a mood/psychosis episode mid-May[,] [and] . . . agreed to 5 start taking psychiatric medication again (had stopped ⁓fall 2019) and symptoms resolved 6 without the need for another hospitalization.” Id. at 650. On June 29, 2020, Plaintiff 7 received individual therapy via videoconference from Shannon Carmona, LPC through the 8 Banner Health Early Psychosis Intervention Center. Id. at 647–48, 789–90. Plaintiff 9 reported looking for a new job because she was only working one (1) day per week, which 10 provided insufficient income. AR at 647, 789. Plaintiff reported feeling better on her 11 medications. Id. 12 On July 22, 2020, Plaintiff received telehealth services from Ms. Carmona. Id. at 13 726–27, 787–88. Plaintiff reported that she was “doing okay.” Id. at 726, 787. Plaintiff 14 expressed the desire to be independent and noted that she was going to begin a new inbound 15 sales job. Id. Plaintiff indicated that she “[e]njoys sales and talking to people.” AR at 16 726, 787. 17 On August 4, 2020, Plaintiff spoke with Ms. Carmona for individual therapy. Id. at 18 785–86. Plaintiff reported doing “pretty good” and noted that she had begun a new job. 19 Id. at 785. Plaintiff expressed concern that if she does not feel challenged enough in the 20 job, she will want to leave. Id. at 785. On August 11, 2020, Plaintiff received telehealth 21 services from Ms. Carmona. Id. at 724–25, 783–81. Plaintiff reported that work had been 22 productive, she was consistently taking her medications, and denied any positive 23 symptoms. AR at 724, 783. On August 25, 2020, Plaintiff had an individual therapy 24 telephone call with Ms. Carmona. Id. at 781–82. Plaintiff reported that she was feeling 25 good and expressed a desire to increase exercise to help manage her depressive symptoms. 26 Id. at 781. 27 On September 8, 2020, Plaintiff received telehealth services from Ms. Carmona. Id. 28 at 777–78. Plaintiff reported that things were going well and she had started a new 1 administrative position for a mattress firm. Id. at 777. Plaintiff further reported that she 2 was starting her MBA program in approximately two (2) weeks. AR at 777. Plaintiff also 3 discussed her mother’s health. Id. On September 22, 2020, Plaintiff spoke with Ms. 4 Carmona for individual therapy. Id. at 774–75. Plaintiff reported sadness following the 5 death of her Godfather. Id. at 774. On the same date, Ms. Carmona staffed Plaintiff’s case 6 with her treatment team. Id. at 776. Ms. Carmona noted that Plaintiff was compliant with 7 her medications and denied any positive symptoms of psychosis or mood changes. AR at 8 776. Plaintiff also reported that she had lost her job the previous week “due to a lack of 9 communication.” Id. On September 25, 2020, Plaintiff received telehealth services from 10 Dr. Thienhaus. Id. at 772–73. Treatment records indicate that Plaintiff had not had a 11 recurrence of psychotic symptoms or mood instability. Id. at 772. Dr. Thienhaus’s 12 examination of Plaintiff was generally unremarkable. Id. at 772–73. On September 30, 13 2020, Plaintiff received telehealth services from Ms. Carmona. AR at 770–71. Plaintiff 14 reported that she remained unemployed and feeling depressed. Id. at 770. Plaintiff 15 indicated that she was still taking her medication. Id. 16 On October 6, 2020, Ms. Carmona received a call from Plaintiff regarding “her fears 17 of not being able to hold down a job.” Id. at 769. Ms. Carmona discussed work programs 18 in the community that are available to her. Id. On October 14, 2020, Plaintiff received 19 telehealth services from Ms. Carmona. AR at 767–68. Plaintiff reported wanting help with 20 maintaining employment. Id. at 767. On October 20, 2020, Ms. Carmona staffed 21 Plaintiff’s case with her treatment team and indicated Plaintiff lost her job due to her 22 mother’s health issues and not communicating her needs with her employer. Id. at 765– 23 66. On October 22, 2020, Plaintiff received telehealth services from Dr. Thienhaus. Id. at 24 763–64. Treatment records indicate that Plaintiff was still unsuccessful maintaining 25 employment, but had not suffered a recurrence of psychotic symptoms or excessive mood 26 fluctuations. Id. at 763. Dr. Thienhaus’s examination of Plaintiff was generally 27 unremarkable. AR at 763–64. On October 28, 2020, Plaintiff spoke with Ms. Carmona 28 for individualized therapy. Id. at 761–62. Plaintiff reported depression. Id. at 761. 1 Plaintiff further indicated that she was trying to find a job and had submitted numerous 2 applications without success. Id. 3 On November 11, 2020, Plaintiff received telehealth services from Ms. Carmona. 4 Id. at 759–60. Plaintiff reported that she was doing fine and working with her mother until 5 she can find a job. AR at 759. On November 13, 2020, Plaintiff spoke with Ms. Carmona 6 for an individual therapy session. Id. at 757–58. Plaintiff “reported anxiety associated 7 with past trauma.” Id. at 757. On November 24, 2020, Plaintiff received telehealth services 8 from Ms. Carmona. Id. at 755–56. Plaintiff reported that she was doing well, but not 9 working. Id. at 755. Treatment records indicate that Plaintiff had not suffered a recurrence 10 of psychotic symptoms or other mood instability. AR at 755. 11 On December 9, 2020, Ms. Carmona called Plaintiff for a scheduled telehealth 12 appointment; however, Plaintiff had forgotten about the appointment and was unable to 13 meet. Id. at 754. On December 22, 2020, Plaintiff received telehealth services from Ms. 14 Carmona. Id. at 752–53. Plaintiff reported that she was doing well, but not currently 15 looking for a job. Id. at 752. Plaintiff noted that her brother was living with them, which 16 was an adjustment. Id. On the same date, Dr. Thienhaus completed a Mental Residual 17 Functional Capacity Assessment regarding Plaintiff. AR at 729–31. Dr. Thienhaus 18 reported Plaintiff’s diagnosis as schizoaffective disorder with symptoms including mood 19 lability and intermittent psychotic episodes. Id. at 729. Dr. Thienhaus further reported that 20 Plaintiff had no impairment of her ability to understand, remember, or apply information; 21 mild impairment regarding her ability to concentrate, persist, or maintain pace; and 22 moderate limitations on her ability to interact with others, as well as adapt or manage 23 herself. Id. Dr. Thienhaus opined regarding the percentage of a total work-month that he 24 would expect Plaintiff’s symptoms to interfere with her ability to perform work-related 25 functions as follows: her ability to remember locations and work-like procedures, 26 understand and remember very short and simple instructions, carry out very short and 27 simple instructions, make simple work-related decisions, and travel in unfamiliar places or 28 use public transportation would be impacted less than ten percent (10%) of the time; 1 Plaintiff’s ability to understand and remember detailed instructions, ask simple questions 2 or request assistance, carry out detailed instructions, maintain attention and concentration 3 for extended periods, perform activities within a schedule, maintain regular attendance, and 4 be punctual within customary tolerance, and be aware of normal hazards and take 5 appropriate precautions would be impacted between ten and fifteen percent (10%–15%) of 6 the time; her ability to interact appropriately with the general public, accept instructions 7 and respond appropriately to criticism from supervisors, maintain socially appropriate 8 behavior and to adhere to basic standards of neatness and cleanliness, sustain an ordinary 9 routine without special supervision, respond appropriately to changes in the work setting, 10 and set realistic goals or make plans independently of others would be impacted between 11 fifteen and twenty percent (15%–20%) of the time; Plaintiff’s ability to get along with 12 coworkers or peers without distracting them or exhibiting behavioral extremes and work 13 in coordination or in proximity to others without being distracted by them would be 14 impacted between twenty-one and fifty percent (21%–50%) of the time; and her ability to 15 complete a normal workday and workweek without interruptions from psychologically 16 based symptoms and to perform at a consistent pace without an unreasonable number and 17 length of rest periods would be impacted fifty-one percent (51%) or more of the time. Id. 18 at 730. Dr. Thienhaus noted that Plaintiff had been receiving care for at least two (2) years. 19 Id. at 731. Dr. Thienhaus reported that when Plaintiff is faced with changes in environment 20 or demands that were not already a part of her life, she experienced an exacerbation of 21 symptoms and deterioration in functioning. AR at 731. On December 29, 2020, Plaintiff 22 received telehealth services from Dr. Thienhaus. Id. at 746–47. Plaintiff reported that she 23 had not had any recurrence of psychotic symptoms or any major mood instability. Id. at 24 746. Dr. Thienhaus’s examination of Plaintiff was generally unremarkable. Id. at 746–47. 25 On January 6, 2021, Plaintiff spoke with Ms. Carmona for an individualized therapy 26 session. Id. at 744–45. Plaintiff reported that her brother had been staying with her and 27 her mother for approximately one (1) month, which Plaintiff found disruptive. AR at 744. 28 Plaintiff further reported that she had decided not to pursue her MBA as the classes were 1 becoming increasingly difficult. Id. On January 20, 2021, Plaintiff received telehealth 2 services from Ms. Carmona. Id. at 742–43. Plaintiff reported that things were going well. 3 Id. at 742. Plaintiff expressed that she enjoys talking to people and likes to be on her feet, 4 moving around. Id. 5 On February 12, 2021, Plaintiff spoke with Ms. Carmona for individual therapy. 6 AR at 740–41. Plaintiff reported experiencing an auditory hallucination while waiting in 7 line at the post office. Id. at 740. Plaintiff reported consistently taking her medications, 8 and denied any other auditory hallucinations or intrusive thoughts. Id. On February 17, 9 2021, Plaintiff received telehealth services from Ms. Carmona. Id. at 738–39. Plaintiff 10 reported “feeling excited having found a new passion in design and photography.” Id. at 11 738. On February 23, 2021, Plaintiff received telehealth services from Dr. Thienhaus. AR 12 at 736–37. Plaintiff reported a brief episode of auditory hallucination while working 13 especially hard helping her mother, but was otherwise asymptomatic. Id. at 736. Dr. 14 Thienhaus’s examination of Plaintiff was generally unremarkable. Id. at 736–37. 15 On March 3, 2021, Plaintiff spoke with Ms. Carmona for individualized therapy. 16 Id. at 734–35. Plaintiff reported that things were “going well.” Id. at 734. Plaintiff 17 discussed obtaining a Master of Fine Arts in Media Design. AR at 734. Plaintiff expressed 18 that she wanted to find a job. Id. Plaintiff noted that she was not afraid of getting hired, 19 but expressed concern that she would not be able to sustain it long term. Id. 20 b. Reviewing physicians 21 i. R. Nathan, M.D. 22 On July 29, 202, Dr. Nathan performed an initial review Plaintiff’s medical records. 23 AR at 89–96, 100–107. Dr. Nathan considered Plaintiff’s impairments to include 24 depressive, bipolar, and related disorders, and anxiety and obsessive-compulsive disorders. 25 Id. at 90, 101. Dr. Nathan opined that if the bipolar diagnosis is correct, Plaintiff would 26 likely continue to improve with continued medication and no drug or alcohol abuse; 27 however, if Plaintiff is schizoaffective, as initially thought, she would likely become less 28 functional. Id. at 91, 105. 1 ii. E. Campbell, Ph.D. 2 On August 13, 2020, on reconsideration, Dr. Campbell opined that “[Plaintiff] does 3 not allege worsening of Y conditions[,] [and] [the] M[edical] E[vidence] [of] R[ecord] 4 shows improvement and that she is working.” AR at 124, 136. 5 3. Vocational Expert Ruth Van Vleet’s Testimony 6 Ms. Van Vleet testified as a vocational expert at the administrative hearing. AR at 7 30, 63–66. Ms. Van Vleet described Plaintiff’s past relevant work at Sprouts as a deli 8 clerk. Id. at 64. Ms. Van Vleet reported this position as Dictionary of Occupational Titles 9 (“DOT”) number 316.684-014, unskilled, and with a Specific Vocational Preparation 10 (“SVP”) of 2. Id. Next, Ms. Van Vleet described Plaintiff’s past work in customer service 11 at a call center as telephone solicitor or customer service representative, DOT number 12 299.357-014, with an SVP of 3, semiskilled, and sedentary exertional level. Id. Ms. Van 13 Vleet described Plaintiff’s past work as a customer order clerk, DOT number 249.362-026, 14 with an SVP of 4, semiskilled, and sedentary exertional level. Id. Ms. Van Vleet described 15 Plaintiff’s past work at Caption Call as somewhat close to a telecommunications operator, 16 DOT number 203.582-050, with an SVP of 4, semiskilled, and sedentary exertional level. 17 AR at 64. Regarding Plaintiff’s past work at AmeriCorps, Ms. Van Vleet described a tutor 18 position, DOT number 099.227-034, an SVP of 7, skilled, and light exertional level. Id. 19 Finally, Ms. Van Vleet described Plaintiff’s past work as a manager trainee, DOT number 20 189.167-018, with an SVP of 6, skilled, and light exertional level. Id. 21 The ALJ asked Ms. Van Vleet to consider a hypothetical individual of Plaintiff’s 22 age, education, and work history; who is limited to simple, routine tasks involving simple 23 work related decisions and occasional changes in the work setting; and who can frequently 24 interact with supervisors, coworkers, and the public. Id. at 64–65. Ms. Van Vleet opined 25 that such an individual would be unable to perform Plaintiff’s past work. Id. at 65. Ms. 26 Van Vleet further opined that such an individual would be employable as a housekeeper, 27 cleaner, or janitor, DOT number 323.687-014, with an SVP of 2, unskilled, light exertional 28 level, and of which there are up to 220,000 jobs in the national economy. AR at 65. Ms. 1 Van Vleet also opined that such an individual would be employable as a paper pattern 2 folder, DOT number 794.687-034, with an SVP of 1, unskilled, light exertional level, and 3 up to 5,400 jobs in the national economy. Id. Finally, Ms. Van Vleet opined that such an 4 individual would be employable as a dishwasher, DOT number 318.687-010, with an SVP 5 of 2, unskilled, medium exertional level, and approximately 194,000 jobs in the national 6 economy. Id. 7 The ALJ then asked Ms. Van Vleet to modify the characteristics of the hypothetical 8 individual to only occasional interaction with supervisors, coworkers, and the public. Id. 9 Ms. Van Vleet opined that even with the further restriction, such an individual would be 10 able to perform the janitor, paper pattern folder, and dishwasher jobs that she had 11 previously described. Id. 12 Ms. Van Vleet testified that based upon her experience and contact with employers, 13 such a hypothetical individual would typically sit less than five (5) minutes per hour. AR 14 at 65. Ms. Van Vleet further testified that such an individual who was off-task five (5) 15 percent of an eight (8) hour workday would be able to perform those jobs if that individual 16 were able to stay in their workplace and change from task to task. Id. at 65–66. Ms. Van 17 Vleet also opined that if such an individual was twenty (20) percent off task, they would 18 not be able to maintain competitive employment. Id. at 66. Ms. Van Vleet opined that 19 based on her experience with labor market research and placing individuals in jobs, it was 20 unlikely that ten (10) to fifteen (15) percent of the time off task would be tolerated by an 21 employer. Id. 22 23 II. STANDARD OF REVIEW 24 The factual findings of the Commissioner shall be conclusive so long as they are 25 based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 26 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may 27 “set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s 28 findings are based on legal error or are not supported by substantial evidence in the record 1 as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see 2 also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 3 Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a 4 preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 5 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 6 Further, substantial evidence is “such relevant evidence as a reasonable mind might accept 7 as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 8 Where “the evidence can support either outcome, the court may not substitute its judgment 9 for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 10 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). 11 Moreover, the court may not focus on an isolated piece of supporting evidence, rather it 12 must consider the entirety of the record weighing both evidence that supports as well as 13 that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations 14 omitted). 15 16 III. ANALYSIS 17 A. The Five-Step Evaluation 18 The Commissioner follows a five-step sequential evaluation process to assess 19 whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as 20 follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 21 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant 22 has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 23 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the 24 claimant’s impairments or combination thereof meet or equal an impairment listed in 20 25 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is 26 not disabled. Step Four considers the claimant’s residual functional capacity and past 27 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, 28 then he or she is not disabled. Step Five assesses the claimant’s residual functional 1 capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is 2 determined that the claimant can make an adjustment to other work, then he or she is not 3 disabled. Id. 4 In the instant case, the ALJ found that Plaintiff had not engaged in substantial 5 gainful activity since her alleged onset date of June 27, 2020. AR at 32. At step two of 6 the sequential evaluation, the ALJ found that “[t]he claimant has the following severe 7 impairments: bipolar I disorder with psychosis (20 CFR 404.1520(c) and 416.920(c)).” Id. 8 at 33. At step three, the ALJ further found that “[t]he claimant does not have an impairment 9 or combination of impairments that meets or medically equals the severity of one of the 10 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 11 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Id. Prior to step four and “[a]fter 12 careful consideration of the entire record,” the ALJ determined that “the claimant has the 13 residual functional capacity to perform a full range of work at all exertional levels but with 14 the following non-exertional limitations: simple, routine tasks involving simple work 15 related decisions and occasional changes in the work setting[,] [and] [s]he can frequently 16 interact with supervisors, coworkers, and the public.” Id. at 34. At step four, the ALJ 17 found that “the claimant is unable to perform any past relevant work (20 CFR 404.1565 18 and 416.965).” Id. at 37. At step five, the ALJ found that after “[c]onsidering the 19 claimant’s age, education, work experience, and residual functional capacity, there are jobs 20 that exist in significant numbers in the national economy that the claimant can perform (20 21 CFR 404.1569, 404.1569(a), 416.969, and 404.969(a)).” Id. at 38. Accordingly, the ALJ 22 determined that Plaintiff was not disabled. AR at 39. 23 B. Plaintiff’s Symptom Testimony 24 Plaintiff asserts that “[t]he ALJ has failed to identify any clear and convincing 25 reasons . . . supported by substantial evidence for disregarding symptom testimony[,] [and] 26 . . . has failed to account for all factors of the other evidence apart from objective medical 27 evidence.” Opening Br. (Doc. 18) at 17. Defendant argues that the ALJ “reasonably 28 discounted Plaintiff’s subjective complaints” and “Plaintiff is effectively asking this Court 1 to reweigh the evidence in a light more favorable to her.” Response (Doc. 19) at 3, 12. 2 Defendant further argues that even if the ALJ erred, such error was harmless. Id. at 12. 3 The Court agrees with agrees with Respondent and finds the ALJ provided clear and 4 convincing reasons for discounting Plaintiff’s testimony. 5 1. Legal Standard 6 An ALJ must engage in a two-step analysis to evaluate a claimant’s subjective 7 symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First, 8 “a claimant who alleges disability based on subjective symptoms ‘must produce objective 9 medical evidence of an underlying impairment which could reasonably be expected to 10 produce the pain or other symptoms alleged[.]’” Smolen v. Chater, 80 F.3d 1273, 1281– 11 82 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) 12 (internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 13 2014). Further, “the claimant need not show that her impairment could reasonably be 14 expected to cause the severity of the symptom she has alleged; she need only show that it 15 could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 16 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor 17 must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the 18 severity thereof.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting 19 Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence 20 of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her 21 symptoms only by offering specific, clear and convincing reasons for doing so.’” 22 Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v. 23 Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and 24 convincing” requirement had been excised by prior Ninth Circuit case law). “This is not 25 an easy requirement to meet: ‘The clear and convincing standard is the most demanding 26 required in Social Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r 27 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 28 1 SSR 16-3p8 states, in relevant part: 2 We will not evaluate an individual’s symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding 3 that the individual is disabled. We will evaluate an individual’s symptoms 4 based on the evidence in an individual’s record as described below; however, not all of the types of evidence described below will be available or relevant 5 in every case. 6 * * * 7 In evaluating an individual’s symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that “the individual’s 8 statements about his or her symptoms have been considered” or that “the 9 statements about the individual’s symptoms are (or are not) supported or consistent.” It is also not enough for our adjudicators simply to recite the 10 factors described in the regulations for evaluating symptoms. The 11 determination or decision must contain specific reasons for the weight given to the individual’s symptoms, be consistent with and supported by the 12 evidence, and be clearly articulated so the individual and any subsequent 13 reviewer can assess how the adjudicator evaluated the individual’s symptoms. 14 15 SSR 16-3p, available at 2017 WL 5180304, at *5, 10 (October 25, 2017). “[T]he ALJ is 16 not ‘required to believe every allegation of disabling pain, or else disability benefits would 17 be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina 18 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds 19 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Plaintiff “bears the burden of 20 proving that an impairment is disabling.” Miller v. Heckler, 779 F.2d 845, 849 (9th Cir. 21 1985) (citations omitted). 22 2. Analysis 23 The ALJ acknowledged the two-step process for assessing Plaintiff’s symptom 24 testimony. AR at 34–35. Next, the ALJ described Plaintiff’s responses on the 25 administrative forms and recounted her hearing testimony. Id. at 35. The ALJ then
26 8 Social Security Rulings are “binding on all components of the Social Security 27 Administration.” 20 C.F.R. §§ 402.35(b)(1) and (2); Heckler v. Edwards, 465 U.S. 873 n.3, 104 28 S. Ct. 1532, 79 L. Ed. 2d 878 (1984).3 1 concluded “[a]fter careful consideration of the evidence, the undersigned finds that the 2 claimant’s medically determinable impairments could reasonably be expected to cause the 3 alleged symptoms; however, the claimant’s statements concerning the intensity, 4 persistence and limiting effects of these symptoms are not entirely consistent with the 5 medical evidence and other evidence in the record for the reasons explained in this 6 decision.” Id. at 35. The ALJ went on to review Plaintiff’s medical records and other 7 evidence in the file. See id. at 35–36. 8 a. Improvement with medication 9 Plaintiff asserts that her 2019 mental breakdown “is clearly evidence of severe 10 mental illness.” Pl.’s Opening Br. (Doc. 18) at 12 (citations omitted). Plaintiff 11 acknowledges that “her condition improved with medication[,] [but] . . . contend[s] [] that 12 she is not yet at a point where she can return to the workforce on a regular and continuing 13 basis.” Pl.’s Reply (Doc. 23) at 1–2. The ALJ observed that “[c]onsistent with the 14 claimant’s testimony regarding symptom stability with medication and therapy, behavioral 15 health records show no signs of major mood instability and no recurrence of psychotic 16 symptoms[.]” AR at 35 (citations omitted). 17 Plaintiff alleges an onset date of June 27, 2020. See, e.g., AR at 30. At the time of 18 her alleged onset, Plaintiff was receiving regular behavioral health treatment. See Factual 19 Bkgd., Section I.B.2., supra. On May 12, 2020, Dr. Thienhaus stressed the importance of 20 early intervention and restarting her medications that induced remission last time, and his 21 observations of Plaintiff were generally unremarkable. AR at 669–70, 792–93. 22 Subsequently, Plaintiff “reported [to her therapist] that she [wa]s feeling ‘better’ after 23 having re-started risperidone and lithium.” Id. at 666. Treatment records further reflect 24 that Plaintiff “experienced a re-emergence of a mood/psychosis episode mid-May[,] [and] 25 . . . agreed to start taking psychiatric medication again (had stopped ⁓fall 2019) and 26 symptoms resolved without need for another hospitalization.” Id. at 650. Throughout the 27 remainder of 2020, Plaintiff consistently reported doing “good,” “well,” or other positive 28 descriptor to treatment providers. See AR at 647, 655, 659, 662, 664–65, 726, 752, 755, 1 759, 777, 781, 785, 787, 789. In February 2021, Plaintiff reported experiencing an auditory 2 hallucination or intrusive thought while waiting in line at the post office, and once while 3 working especially hard helping her mother. Id. at 736, 740. Other than these two 4 episodes, once on medication Plaintiff remained asymptomatic. See id. at 736, 740, 746, 5 755, 763, 772, 776. 6 “Impairments that can be controlled effectively with medication are not 7 disabling[.]” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 8 The ALJ reasonably found that Plaintiff’s symptoms were controlled with medication. 9 b. Work and school 10 The ALJ observed that Plaintiff’s “[b]ehavioral health records from June 2020 note 11 the claimant was making good progress with her goals, getting along well with co-workers, 12 and going on job interviews for a new position with more hours[.]” AR at 35 (citations 13 omitted). The ALJ further noted that “[b]y July 2020, the claimant obtained a new job in 14 sales, working from home[,] . . . [and] reported that she enjoyed talking to people and 15 described her work as productive.” Id. at 35–36. The ALJ also considered Plaintiff’s 16 applications to, and participation in, various graduate programs, as well as her reports of 17 working with employment services to find a new position. Id. The ALJ determined “[s]uch 18 evidence suggests that the claimant can adapt and manage to occasional changes in a work 19 setting, simple work-related decision making, and frequent interactions with co-workers, 20 supervisors, and the public.” Id. at 36. 21 Plaintiff “does not dispute that she is grossly capable of such activities for a time; 22 however, she contends that she is not capable of maintaining such activities on a regular 23 and continuing basis.” Pl.’s Opening Br. (Doc. 18) at 17. Plaintiff further contends that 24 her “history of short-lived work activity, marked by a pattern of finding reasons for leaving 25 or giving her employer reasons to terminate her overlaying bipolar disorder that reduces 26 her ability to maintain attention and concentration on a regular and continuing basis, is not 27 a clear and convincing reason to disregard her consistent symptom testimony.” Id. 28 Indeed, the ALJ considered that “[w]hile [Plaintiff] testified that she has trouble 1 keeping a job, the record does not show that her job losses were related to her bipolar 2 disorder.” AR at 36. This conclusion is supported by the record. “Even where th[e] 3 activities suggest some difficulty functioning, they may be grounds for discrediting the 4 claimant’s testimony to the extent that they contradict claims of a totally debilitating 5 impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citations omitted), 6 superseded by regulation on other grounds. The ALJ reasonably found that Plaintiff’s 7 reports of debilitating mental health symptoms unsupported by the record. Where “the 8 evidence can support either outcome, the court may not substitute its judgment for that of 9 the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing Matney v. Sullivan, 10 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 11 (9th Cir. 2007). 12 c. Stress Management 13 The ALJ also considered Plaintiff’s ability to manage stressors. AR at 36. The ALJ 14 noted that “[d]uring June 2020, [Plaintiff] reported increased stress from her crowded 15 living situation [and] her job that did not provide enough work hours[.]” Id. (citations 16 omitted). The ALJ observed that “[d]espite this stress, [Plaintiff’s] symptoms remained 17 stable with medication, without any negative side effects.” Id. 18 The ALJ reasonably concluded that Plaintiff’s ability to manage stressors was 19 inconsistent with her reports of totally disabling mental health symptoms. Where “the 20 evidence can support either outcome, the court may not substitute its judgment for that of 21 the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing Matney v. Sullivan, 22 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 23 (9th Cir. 2007). 24 C. Medical Opinion Evidence 25 Plaintiff asserts that “[t]he ALJ’s analysis of opinion evidence of record fails to 26 adequately address the factors of supportability and consistency in a manner that is 27 supported by substantial evidence.” Pl.’s Opening Br. (Doc. 18) at 20. The Court finds 28 that the ALJ properly considered the medical opinion evidence. 1 1. Legal Standard 2 Section 404.1520c, 20 C.F.R., governs the analysis of medical opinions for 3 disability claims filed on or after March 27, 2017. “Under the revised regulations, ‘there 4 is not an inherent persuasiveness to evidence from [government consultants] over [a 5 claimant’s] own medical source(s), and vice versa.’”9 Woods v. Kijakazi, 32 F.4th 785, 6 791 (9th Cir. 2022) (alterations in original) (quoting Revisions to Rules Regarding the 7 Evaluation of Medical Evidence, 82 Fed. Reg. at 5844)). Rather, medical opinions are 8 evaluated pursuant to the factors set forth in Section 404.1520c(c)(1)–(5), with the most 9 important factors being supportability and consistency: 10 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical 11 source are to support his or her medical opinion(s) or prior 12 administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical findings(s) 13 will be. 14 (2) Consistency. The more consistent a medical opinion(s) 15 or prior administrative medical fining(s) is with the evidence from other medical sources and nonmedical sources in the 16 claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 17 18 20 C.F.R. § 404.1520c(c); see also 20 C.F.R. § 404.1520c(b)(2). The regulations 19 specifically require the ALJ to explain how he or she considered supportability and 20 consistency in evaluating medical opinions and making the disability determination. 20 21 C.F.R. § 404.1520c(b)(2). Additionally, the ALJ may, but is not required to, consider other 22 factors such as the medical source’s relationship with the claimant, the medical source’s 23 area of specialization, or “evidence showing a medical source has familiarity with the other 24 evidence in the claim or an understanding of our disability program’s policies and 25 evidentiary requirements.” 20 C.F.R. 404.1520c(c)(3)–(5). 26 27 9 The Ninth Circuit Court of Appeals has held that its previous “requirement that ALJs provide ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s opinion . . 28 . is . . . incompatible with the revised regulations. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 1 2. Analysis 2 The ALJ summarized Dr. Thienhaus’s Mental Residual Functional Capacity 3 (“MRFC”) Assessment regarding Plaintiff and contrasted it with inconsistencies with his 4 own treatment notes, as well as Plaintiff’s hearing testimony. AR at 36–37. As an initial 5 matter, the ALJ observed that Dr. Thienhaus’s MRFC Assessment was on a checkbox 6 form. The Ninth Circuit has held “that the ALJ may ‘permissibly reject[] . . . check-off 7 reports that [do] not contain any explanation of the bases of their conclusions.’” Molina v. 8 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (alterations in original) (quoting Crane v. 9 Shalala, 76 F.3d 251, 253 (9th Cir. 1996)), superseded by regulation on other grounds. 10 Plaintiff focuses on Dr. Thienhaus description of “intermittent” psychotic episodes in the 11 MRFC to demonstrate that his opinion was not inconsistent; however, this does not account 12 for Dr. Thienhaus’s repeated unremarkable mental status examinations of Plaintiff. 13 Plaintiff further objects to the ALJ’s observation that Plaintiff “has sustained the 14 concentration, persistence, and pace to complete coursework online.” Compare AR at 37, 15 with Pl.’s Opening Br. (Doc. 18) at 20. Plaintiff’s inability to pass her graduate level 16 accounting class does not negate the ALJ’s finding. 17 Plaintiff further objects to the ALJ’s consideration of the State-agency medical 18 consultant’s opinions, asserting that “none of the[] background assumptions and 19 considerations [are] supported by substantial evidence.” Pl.’s Opening Br. (Doc. 18) at 20. 20 Contrary to Plaintiff’s argument, however, the Court finds that the ALJ properly 21 summarized and considered the State-agency physician testimony. 22 Substantial evidence “means—and means only—such relevant evidence as a 23 reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 24 139 S. Ct. 1148, 1154 (2019) (quotations and citations omitted). The Court finds that the 25 ALJ properly analyzed the medical opinion evidence of record, and the ALJ’s findings are 26 supported by the record. 27 . . . 28 . . . IV. CONCLUSION 2 Based on the foregoing, the Court finds the ALJ properly assessed the medical || opinion evidence of record and Plaintiff's symptom testimony. Plaintiff “bears the burden 4|| of proving that an impairment is disabling.” Miller v. Heckler, 779 F.2d 845, 849 (9th Cir. 1985) (citations omitted). Plaintiff has not met her burden in this case. 6 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Opening Brief (Doc. 18) 7\| is DENIED, and the Commissioner’s decision is AFFIRMED. 8 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 9|| accordingly. 10 11 Dated this 26th day of September, 2023. ° Soa [ Wha C_ 13 me Enric J. M#kovich 14 United States Masistale Sudue 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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