1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JENNIFER H.,1 Case No. 19-cv-05757-TSH
8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT
10 ANDREW SAUL, Re: Dkt. Nos. 14, 16 11 Defendant.
12 13 I. INTRODUCTION 14 Plaintiff Jennifer H. brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial 15 review of a final decision of Defendant Andrew Saul, Commissioner of Social Security, denying 16 her claim for disability benefits. Pending before the Court are the parties’ cross-motions for 17 summary judgment. ECF Nos. 14 (Pl.’s Mot.), 16 (Def.’s Mot.). Pursuant to Civil Local Rule 16- 18 5, the motions have been submitted without oral argument. Having reviewed the parties’ 19 positions, the Administrative Record (“AR”), and relevant legal authority, the Court hereby 20 DENIES Plaintiff’s motion and GRANTS Defendant’s cross-motion for the following reasons. 21 II. BACKGROUND 22 A. Age, Education and Work Experience 23 Plaintiff is 45 years old. AR 156. She has a bachelor’s degree and attended graduate 24 school. AR 38. She previously worked as a nanny, for Growth and Learning Opportunities as an 25 aide for a disabled child and as a retail associate at Gymboree. AR 39-42, 171, 432, 453, 471, 26
27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 1 491. 2 B. Medical Evidence 3 Plaintiff has been diagnosed with Major Depressive Disorder, severe, recurrent and Post- 4 Traumatic Stress Disorder. AR 502. 5 1. Treatment Records 6 In a clinical therapy note from December 30, 2015, Plaintiff told her treatment provider 7 that medication prescribed by her primary care physician was “very helpful in mitigating her 8 [symptoms].” AR 510-11. On January 15, 2016, she reported that her medication helped reduce 9 her depressive symptoms “tremendously.” AR 507-08. She told her treatment provider she 10 believed her current prescriptions have “contained her ‘disabling’ depressive [symptoms] (i.e. 11 inability to work, get out of bed, shower, etc.).” AR 507. She also indicated “that her last 12 ‘disabling’ depressive episode was over 1 year ago, before beginning psychotropic medication, but 13 endorsed persistent low mood, low energy, and lack of motivation and sleep disturbance most 14 days.” Id. On mental status examination, Plaintiff’s mood was depressed and her affect was 15 restricted (although she demonstrated a sense of humor), but all other findings were normal. AR 16 501. 17 On March 10, 2016, Plaintiff told her therapist that she felt relieved to start psychotherapy 18 and identified two friends who she could rely on for support. AR 494-95. On March 15 she 19 reported that she was working as a nanny. AR 491. Her mental status examination was normal 20 despite reports of depression and anxiety. AR 493. On March 18 Plaintiff described her 21 symptoms as “manageable.” AR 488-89. On April 7 she described frustration over continuing 22 depressive symptoms but expressed that she enjoyed taking walks on the beach when she felt 23 depressed. AR 484-85. 24 On May 10, 2016, Helen Carlile, N.P., opined that Plaintiff was socially withdrawn and 25 awkward, having poor hygiene, poor communication, and experiencing panic attacks with stress. 26 AR 323-24. Carlile also opined that Plaintiff had no limitation with respect to handling very short 27 and simple instructions, good ability to carry out instructions, fair ability to attend and concentrate 1 supervisors. Id. 2 On June 2, 2016, Plaintiff described an increase in symptoms due to physical complaints 3 and conflict with her partner. AR 472-73. She was doing some work as a nanny. AR 471. On 4 June 20 she described continuing symptoms but rated her symptoms as a four out of ten. AR 468- 5 69. 6 On August 12, 2016, Plaintiff reported feeling very productive and hopeful, and that she 7 had interviewed for a job at a preschool. AR 458. On September 26 she described improvement 8 in her symptoms, with less depression, more motivation, and more productivity. AR 455. She 9 reported less use of alcohol and denied use of all other substances. Id. On mental status 10 examination, she had clear and linear thought process, euthymic affect, denied anxiety and suicidal 11 and homicidal ideation, and said her sleep was okay. Id. 12 On October 24, 2016, Plaintiff told Carlile that she was working part time as a nanny and 13 had taken her daughter to the zoo. AR 453. On mental status examination, Carlile reported that 14 Plaintiff made good eye contact, had okay mood, sad affect, and linear and clear thought process, 15 and denied any suicidal or homicidal ideation. Id. 16 On November 21, 2016, Plaintiff reported that she had been working. AR 451. Despite 17 reporting stressors related to taking care of her daughter and her partner’s depression, she denied 18 having acute depression and that her medication improved her mood. Id. 19 On January 9, 2017, Plaintiff reported feeling more depressed and unable to sleep. AR 20 446-50. On January 17 she continued to report improvement in sleep and mood with new 21 medications. AR 444. Carlile noted clear and linear thought process. Id. On March 13 Plaintiff 22 told Carlile that her medications were helpful and reported better mood, increased activity, better 23 sleep, and less drinking. AR 440. 24 On July 11, 2017, Plaintiff reported that her brother died in June and she was depressed 25 and staying in bed most days. AR 435. On August 14 she reported that she was feeling less 26 depressed, she was drinking less, and she was working part-time as a caretaker for a disabled 27 child. AR 432. 1 affect. AR 423-24. She discussed her concerns about her daughter’s school placement. AR 424- 2 25. 3 On November 7, 2017, Plaintiff reported that she had stopped drinking and was waking up 4 earlier than usual, she had more energy to practice self-care, and she was commuting with her 5 daughter to school (a 45 minute) every morning. AR 420-21. Her therapist described her affect as 6 cheerful. AR 421. 7 On December 8, 2017, Plaintiff told Carlile that “she has been mostly stable” and “said she 8 felt overall the meds were beneficial to her mood.” AR 419. On mental status examination she 9 had a pleasant, cheerful affect, clear and linear thought process, and described therapy as helpful. 10 Id. However, she also reported that she had “persistent depressed mood, irritability, low energy, 11 lack of motivation, social isolation, anhedonia, hypersomnia and insomnia, anxious mood, low 12 self-esteem, disassociation, and decreased ability to self-care.” AR 420-21. 13 On January 12, 2018, Plaintiff had a pleasant and warm affect as she discussed moving 14 forward with weight loss surgery with her therapist. AR 407-08. She reported that she had been 15 able to abstain from alcohol after New Year’s and was utilizing a vape pen to control anxiety. AR 16 408-09. On January 23 and 30 she reported that she been in bed all week due to her depression. 17 AR 404-06. She described feeling anxious about an upcoming visit to her mother’s house where 18 she was abused as a child, but she felt proud that she was still able to come to therapy and take 19 care of her child. AR 404-05 20 On February 13, 2018, Plaintiff disclosed personal feelings of attraction to her therapist. 21 AR 401. She again expressed romantic feelings for her therapist on February 20, but her therapist 22 assured her that “erotic transference [was]. . . a normal part of therapy.” AR 399-402. 23 On February 27, 2018, Plaintiff told her therapist that a book he had recommended was 24 very helpful in helping her process past trauma. AR 396-97. Her therapist praised her for being 25 able to “discuss difficult feelings of shame and embarrassment from the last session.” AR 397. 26 Plaintiff also described spending time at the beach with her family and feeling happy. Id. 27 On March 6, 2018, Plaintiff “discussed feeling lighter and brighter and was able to work 1 trauma.” AR 395-96. On March 20, 2018, Plaintiff reported feeling “incapacitated” if she does 2 not have her mental health medication. AR 392-93. 3 On March 26, 2018, Plaintiff told Carlile that “she is doing well, taking meds, feels meds 4 are beneficial, as well as ther[apy].” AR 391. She denied alcohol use, and she described her sleep 5 as good and her moods as stable. Id. 6 On April 3, 2018, Plaintiff’s therapist observed she had a “bright and happy affect 7 congruent with reported feelings.” AR 389-90. Plaintiff described feeling renewed, empowered 8 and hopeful after completing a difficult hike and confronting her mother about childhood abuse, 9 and she was completing a list of places to hike as a way of continuing to utilize her new coping 10 skill. Id. At her closing therapy session on April 24, her therapist reflected that she had 11 “increased her physical activity and ability for self care practices . . . [and] made significant 12 progress at understanding her [symptoms] . . . and boundary setting with self and others.” AR 13 385-86. 14 In a Residual Function Capacity Assessment dated July 8, 2018, Carlile opined that 15 Plaintiff is markedly limited in the following areas: ability to work with others, ability to complete 16 a normal workday and work week, ability to interact with the public, and ability to maintain 17 socially appropriate behavior. AR 375-77. Carlile also opined that Plaintiff suffers from “chronic 18 symptoms of anxiety, depression, fatigue, eating disorder, fatigue, and poor concentration. As a 19 result of her psychiatric symptoms, she finds self-care to be extremely difficult. She is unable to 20 interact with people appropriately and finds most/if not all environments intolerable.” AR 377. 21 As to daily activities, Plaintiff reported at various times that she prepared meals using a 22 crockpot, did laundry, had no trouble with her personal care, and handled full house chore and 23 yard duties. AR 210, 228, 331. 24 2. State Agency Opinions 25 On June 24, 2016, State agency consultant Nadine J. Genece, Psy.D. reviewed the record 26 and determined that Plaintiff’s mental impairments were nonsevere. AR 67. State agency 27 physician K. Econome, M.D. made the same determination on January 12, 2017. AR 81-83. 1 III. SOCIAL SECURITY ADMINISTRATION PROCEEDINGS 2 On April 14, 2016, Plaintiff filed a claim for Disability Insurance Benefits, alleging 3 disability beginning on January 1, 2016. AR 156-64. On June 28, 2016, the agency denied 4 Plaintiff’s claim, finding she did not qualify for disability benefits. AR 91-95. Plaintiff 5 subsequently filed a request for reconsideration, which was denied on January 13, 2017. AR 99- 6 103. On March 17, 2017, Plaintiff requested a hearing before an Administrative Law Judge 7 (“ALJ”). AR 104. ALJ Lisa Lunsford conducted a hearing on August 28, 2018. AR 32-59. 8 Plaintiff testified in person at the hearing and was represented by counsel, John Robert Unruh. 9 The ALJ also heard testimony from Vocational Expert Jim Van Eck. 10 A. Plaintiff’s Testimony 11 Plaintiff testified that she was unable to attend her graduate degree program classes 12 because she was depressed. AR 38. The department withdrew her from the program after they 13 were unable to contact her. AR 39. She experiences severe depressive episodes that confine her 14 to bed for days on end, cause her to not take care of herself or personal hygiene, and cause her to 15 not take care of her family. AR 44, 47. At her last two jobs, she just stopped showing up for 16 scheduled shifts due to her depression symptoms. AR 44-45. Plaintiff testified that even if she’s 17 not confined to bed during severe depressive episodes, she still experiences an inability to leave 18 her home, fear of interaction with other people, flashbacks, sleep disruptions, anxiety, and panic 19 attacks. AR 48, 52. 20 Plaintiff testified that on a typical weekday she cared for her twelve-year-old daughter, 21 including making her breakfast and helping her get ready for school, making her a snack and 22 dinner when she gets home, giving her a bath, and putting her to bed. AR 51-52. She was unable 23 to play outside with her daughter or take her to school because of anxiety and panic attacks. AR 24 52. 25 B. Vocational Expert’s Testimony 26 The ALJ asked the vocational expert a series of hypotheticals. In the first, the ALJ asked 27 the expert to consider experience as the claimant, who is limited to . . . medium work, but 1 has the following additional limitations. Can frequently climb, balance, stoop, crouch, and craw; and can have occasional exposure 2 to fumes, odors, dust, gases, and poor ventilation. . . . [W]ould there be any work that that individual could perform? 3 4 AR. 54. The expert responded that the individual could perform work as a dishwasher (Dictionary 5 of Occupation Titles (“DOT”)2 318.687-010, Specific Vocational Preparation (“SVP”)3 level 2), 6 hospital cleaner (DOT 323.687-010, SVP 2), and dining room attendant (DOT 311.677-018, SVP 7 2). Id. 8 In the second hypothetical, the ALJ added limitations “such that the individual would be 9 further limited to simple tasks, with only occasional changes in work routine. The individual 10 could have no interaction with the public and occasional interaction with co-workers and 11 supervisors. And the individual would be off task ten percent of a workday.” AR 55. The expert 12 responded that the individual could still work as a dishwasher and hospital cleaner but removed 13 the dining room attendant and instead added a food mixer (DOT 520.687-034, SVP 2). AR 55-56. 14 The expert testified that being off task more than 10% of the time would preclude all 15 employment. AR 56. The expert also testified that an employer would not tolerate a second 16 unexcused absence and would terminate the employee. AR 57. 17 C. ALJ’s Decision and Plaintiff’s Appeal 18 On September 18, 2018, the ALJ issued an unfavorable decision finding Plaintiff was not 19 disabled. AR 12-27. This decision became final when the Appeals Council declined to review it 20 on July 11, 2019. AR 1-3. Having exhausted all administrative remedies, Plaintiff commenced 21 this action for judicial review pursuant to 42 U.S.C. § 405(g). On February 21, 2020, Plaintiff 22
23 2 The Dictionary of Occupational Titles by the United States Department of Labor, Employment & Training Administration, may be relied upon “in evaluating whether the claimant is able to 24 perform work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements and may be a primary source of 25 information for the ALJ or Commissioner. 20 C.F.R. § 404.1566(d) (1). The “best source for how a job is generally performed is usually the Dictionary of Occupational Titles.” Pinto v. 26 Massanari, 249 F.3d 840, 846 (9th Cir. 2001). 3 “The DOT lists an SVP time for each described occupation. Using the skill level definitions in 27 20 C.F.R §§ 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled 1 filed the present Motion for Summary Judgment. On March 20, 2020, Defendant filed a Cross- 2 Motion for Summary Judgment. 3 IV. STANDARD OF REVIEW 4 This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 5 U.S.C. § 405(g). An ALJ’s decision to deny benefits must be set aside only when it is “based on 6 legal error or not supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 7 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). Substantial evidence is “such 8 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek 9 v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation and quotation marks omitted). It requires 10 “more than a mere scintilla” but “less than a preponderance” of the evidence. Id.; Trevizo, 871 11 F.3d at 674. 12 The court “must consider the entire record as a whole, weighing both the evidence that 13 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm 14 simply by isolating a specific quantum of supporting evidence.” Trevizo, 871 F.3d at 675 (citation 15 and quotation marks omitted). However, “[w]here evidence is susceptible to more than one 16 rational interpretation, the ALJ’s decision should be upheld.” Id. (citation and quotation marks 17 omitted). “The ALJ is responsible for determining credibility, resolving conflicts in medical 18 testimony, and for resolving ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 19 (citation and quotation marks omitted). 20 Additionally, the harmless error rule applies where substantial evidence otherwise supports 21 the ALJ’s decision. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n error is 22 harmless so long as there remains substantial evidence supporting the ALJ’s decision and the error 23 does not negate the validity of the ALJ’s ultimate conclusion.” Id. (citation and quotation marks 24 omitted). A court may not reverse an ALJ’s decision because of a harmless error. Id. at 1111 25 (citation omitted). “[T]he burden of showing that an error is harmful normally falls upon the party 26 attacking the agency’s determination.” Id. (citation and quotation marks omitted). 27 1 V. DISCUSSION 2 A. Framework for Determining Whether a Claimant Is Disabled 3 A claimant is considered “disabled” under the Social Security Act if two requirements are 4 met. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the 5 claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of 6 any medically determinable physical or mental impairment which can be expected to result in 7 death or which has lasted or can be expected to last for a continuous period of not less than 12 8 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe 9 enough that the claimant is unable to perform previous work and cannot, based on age, education, 10 and work experience “engage in any other kind of substantial gainful work which exists in the 11 national economy.” Id. § 423(d)(2)(A). 12 The regulations promulgated by the Commissioner of Social Security provide for a five- 13 step sequential analysis to determine whether a Social Security claimant is disabled.4 20 C.F.R. § 14 404.1520. The claimant bears the burden of proof at steps one through four. Ford v. Saul, 950 15 F.3d 1141, 1148 (9th Cir. 2020) (citation omitted). 16 At step one, the ALJ must determine if the claimant is presently engaged in a “substantial 17 gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), defined as “‘work done for pay or profit that 18 involves significant mental or physical activities.’” Ford, 950 F.3d at 1148 (internal quotations 19 and citation omitted). Here, the ALJ determined Plaintiff had not performed substantial gainful 20 activity since February 21, 2016. AR 17. 21 At step two, the ALJ decides whether the claimant’s impairment or combination of 22 impairments is “severe,” 20 C.F.R. § 404.1520(a)(4)(ii), “meaning that it significantly limits the 23 claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 24 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant is not disabled. 25 20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe 26
27 4 Disability is “the inability to engage in any substantial gainful activity” because of a medical 1 impairments: degenerative disc disease, obesity, asthma, depression, anxiety, and post-traumatic 2 stress disorder. AR 17. 3 At step three, the ALJ evaluates whether the claimant has an impairment or combination of 4 impairments that meet or equals an impairment in the “Listing of Impairments” (referred to as the 5 “listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings 6 describe impairments that are considered “to be severe enough to prevent an individual from doing 7 any gainful activity.” Id. § 404.1525(a). Each impairment is described in terms of “the objective 8 medical and other findings needed to satisfy the criteria of that listing.” Id. § 404.1525(c)(3). 9 “For a claimant to show that his impairment matches a listing, it must meet all of the specified 10 medical criteria. An impairment that manifests only some of those criteria, no matter how 11 severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnote omitted). If a 12 claimant’s impairment either meets the listed criteria for the diagnosis or is medically equivalent 13 to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering 14 age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined Plaintiff 15 did not have an impairment or combination of impairments that meets the listings. AR 18. 16 If the claimant does not meet or equal a listing, the ALJ proceeds to step four, where the 17 ALJ assesses the claimant’s residual functional capacity (“RFC”),5 which is defined as “work that 18 [the claimant has] done within the past 15 years, that was substantial gainful activity, and that 19 lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). If the ALJ 20 determines, based on the RFC, that the claimant can perform past relevant work, the claimant is 21 not disabled. Id. § 404.1520(f). Here, the ALJ determined Plaintiff has the RFC to
22 Perform medium work as defined in 20 CFR 416.967(c) except she can frequently climb, balance, stoop, crouch and crawl. She can 23 tolerate occasional exposure to fumes, odors, dusts, gases, and poor ventilation. She is limited to simple tasks with occasional changes in 24 work routine. The claimant cannot have interaction with the public and can have occasional interaction with coworkers and supervisors. 25 She will be off task 10 percent of a typical workday. 26 AR 19. However, the ALJ determined Plaintiff had no past relevant work. AR 25. 27 1 At step five, the burden shifts to the agency to prove that “‘the claimant can perform a 2 significant number of other jobs in the national economy.’” Ford, 950 F.3d at 1149 (quoting 3 Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To meet this burden, the ALJ may rely on 4 the Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404 Subpt. P, App. 2,6 or on the 5 testimony of a vocational expert. Ford, 950 F.3d at 1149 (citation omitted). “[A] vocational 6 expert or specialist may offer expert opinion testimony in response to a hypothetical question 7 about whether a person with the physical and mental limitations imposed by the claimant’s 8 medical impairment(s) can meet the demands of the claimant’s previous work, either as the 9 claimant actually performed it or as generally performed in the national economy.” 20 C.F.R. § 10 404.1560(b)(2). An ALJ may also use “other resources, such as the DOT. Id. Here, the ALJ 11 determined Plaintiff could make a successful adjustment to work that exists in significant numbers 12 in the national economy, and she was therefore not disabled. AR 26-27. 13 B. Plaintiff’s Arguments 14 Plaintiff raises three arguments: (1) the ALJ erred by failing to give sufficient weight to her 15 treating provider’s 2018 RFC Assessment; (2) the ALJ erred by finding that Plaintiff did not meet 16 a listed impairment; and (3) the ALJ’s RFC is not supported by substantial evidence. 17 C. ALJ’s Assessment of the Medical Opinion Evidence 18 The ALJ determined that although Plaintiff was not disabled, her mental impairments 19 caused her to be restricted to simple tasks with only occasional changes in work routine, no 20 interaction with the public, and only occasional interaction with coworkers and supervisors. AR 21 19. The ALJ further recognized that Plaintiff would be off task for ten percent of a typical 22 workday. AR 19. In assessing this limited RFC, the ALJ gave “great weight” to the May 2016 23 opinion by Nurse Practitioner Carlile but rejected her July 2018 opinion, which described Plaintiff 24 6 The Medical-Vocational Guidelines “relieve the Secretary of the need to rely on vocational 25 experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy.” Heckler v. Campbell, 461 U.S. 458, 461(1983). The Guidelines “consist of a matrix 26 of the four factors identified by Congress—physical ability, age, education, and work experience—and set forth rules that identify whether jobs requiring specific combinations of these 27 factors exist in significant numbers in the national economy.” Id. at 461-62 (footnotes omitted). 1 as significantly more limited. AR 23. 2 Plaintiff argues the ALJ erred because she reached this conclusion from “a highly selective 3 reading” of her treatment records and notes. Pl.’s Mot. at 5. For instance, although the ALJ refers 4 to Plaintiff “enjoying time with her family at the beach” as evidence of there not being any 5 significant impairment in social adaptation, AR 23, she contends this omits the context in which 6 this session note was taken wherein Plaintiff also states she had not been able to “get out” and 7 enjoy herself “in months.” AR 397. Plaintiff also notes that although the ALJ cites to a treatment 8 note from November 7, 2017 that refers to her having reported more energy to practice self-care, 9 AR 22, she also reported around this same time symptoms of “persistent depressed mood, 10 irritability, low energy, lack of motivation, social isolation, anhedonia, hypersomnia and insomnia, 11 anxious mood, low self-esteem, disassociation, and decreased ability to self-care.” AR 420-21. 12 1. Legal Standard 13 When determining whether a claimant is disabled, the ALJ must consider each medical 14 opinion in the record together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); King 15 v. Berryhill, 2018 WL 4586726, at *11 (N.D. Cal. Sept. 25, 2018). In deciding how much weight 16 to give to any medical opinion, the ALJ considers the extent to which the medical source presents 17 relevant evidence to support the opinion. 20 C.F.R. § 416.927(c)(3). Generally, more weight will 18 be given to an opinion that is supported by medical signs and laboratory findings, and the degree 19 to which the opinion provides supporting explanations and is consistent with the record as a 20 whole. 20 C.F.R. § 416.927(c)(3)-(4). 21 In conjunction with the relevant regulations, the Ninth Circuit “developed standards that 22 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 23 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Courts “distinguish among the 24 opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) 25 those who examine but do not treat the claimant (examining physicians); and (3) those who neither 26 examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 27 (9th Cir. 1995). “By rule, the Social Security Administration favors the opinion of a treating 1 20 C.F.R. § 404.1527(c)(2)). 2 If a claimant has a treatment relationship with a provider, and clinical evidence supports 3 that provider’s opinion and is consistent with the record, the provider will be given controlling 4 weight. 20 C.F.R. § 416.927(c)(2). “The opinion of a treating physician is given deference 5 because ‘he is employed to cure and has a greater opportunity to know and observe the patient as 6 an individual.’” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) 7 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). “If a treating physician’s 8 opinion is not given ‘controlling weight’ because it is not ‘well-supported’ or because it is 9 inconsistent with other substantial evidence in the record, the [SSA] considers specified factors in 10 determining the weight it will be given.” Orn, 495 F.3d at 631. “Those factors include the 11 ‘[l]ength of the treatment relationship and the frequency of examination’ by the treating physician; 12 and the ‘nature and extent of the treatment relationship’ between the patient and the treating 13 physician.” Id. (citing 20 C.F.R. § 404.1527(c)(2)(i)-(ii)).
14 Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that 15 supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician 16 providing the opinion; and ‘[o]ther factors’ such as the degree of understanding a physician has of the [Social Security] Administration’s ‘disability programs and their 17 evidentiary requirements’ and the degree of his or her familiarity with other information in the case record. 18 19 Id. (citing 20 C.F.R. § 404.1527(c)(3)-(6)). 20 When there is contradictory opinion evidence, an ALJ may reject a treating physician’s 21 opinion by providing specific and legitimate reasons supported by substantial evidence.7 See 22 7 On January 18, 2017, the agency published final rules titled “Revisions to Rules Regarding the 23 Evaluation of Medical Evidence.” 82 Fed. Reg. 5844. These final rules were effective as of March 27, 2017. Some of the new final rules state that they apply only to applications/claims filed 24 before March 27, 2017, or only to applications/claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1527, 416.927 (explaining how an adjudicator considers medical opinions for 25 claims filed before March 27, 2017) and 20 C.F.R. §§ 404.1520c, 416.920c (explaining how an adjudicator considers medical opinions for claims filed on or after March 27, 2017); see also 26 Notice of Proposed Rulemaking, 81 Fed. Reg. 62560, 62578 (Sept. 9, 2016) (summarizing proposed implementation process). Here, the agency’s final decision was issued on September 18, 27 2018 (AR 27), after the effective date of the final rules, but Plaintiff filed her claim before March 1 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“If a treating or examining doctor’s 2 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing 3 specific and legitimate reasons that are supported by substantial evidence.”). “Substantial 4 evidence is relevant evidence which, considering the record as a whole, a reasonable person might 5 accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 6 2002) (citation omitted). It is not a high standard. See Biestek, 139 S. Ct. at 1154 (“[W]hatever 7 the meaning of ‘substantial’ in other contexts,” in the context of judicial review of Social Security 8 decisions, the threshold “is not high.”). 9 2. Application 10 The Court finds substantial evidence supports the ALJ’s assessment of Carlile’s opinions. 11 The ALJ explained that treatment notes, including Carlile’s own, showed Plaintiff experienced 12 “mild to moderate symptoms that stabilized over time with therapy and medications.” AR 23. 13 Thus, the ALJ gave “great weight” to Carlile’s 2016 opinion that Plaintiff had no limitation with 14 respect to handling very short and simple instructions, good ability to carry out instructions, fair 15 ability to attend and concentrate and work without supervision, and fair ability to interact with the 16 public, coworkers, and supervisors. AR 23, 323-24. For the same reason, the ALJ found Carlile’s 17 2018 opinion describing marked impairment in areas related to concentration and social 18 interaction “not persuasive.” AR 23, 375-77. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 19 Cir. 2008) (ALJ properly discounted treating physician’s opinion where there was an 20 “incongruity” between the doctor’s questionnaire responses and the doctor’s medical records); 20 21 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a medical opinion is with the record as a 22 whole, the more weight we will give to that medical opinion.”). The ALJ properly concluded that 23 the treatment notes do not suggest a worsening of mental health symptoms between 2016 and 24 2018. AR 23. 25 When Plaintiff initiated treatment for depression in December 2015, she was in graduate 26 school and her medication was helpful in mitigating her symptoms. AR 21, 511. In January 2016 27 she reported that her medication helped reduce her depressive symptoms “tremendously.” AR 21, 1 (although she demonstrated a sense of humor), but all other findings were normal. AR 21, 501. In 2 March 2016 Plaintiff reported that she was working as a nanny and had two good friends who she 3 could go to for support. AR 21, 491, 495. Again, her mental status examination was normal 4 despite reports of depression and anxiety. AR 21, 493. Later that month, Plaintiff described her 5 symptoms as “manageable.” AR 21, 489. In April Plaintiff told her therapist that she enjoyed 6 taking walks on the beach when she felt depressed. AR 21, 485. In June she described an increase 7 in symptoms due to physical complaints and conflict with her partner. AR 21, 473. By August, 8 however, she reported feeling very productive and hopeful, and had interviewed for a job at a 9 preschool. AR 21, 458. The next month, Plaintiff described improvement, with less depression, 10 more motivation, and more productivity. AR 21-22, 455. In October 2016 she was working part 11 time as a nanny and took her daughter to the zoo. AR 22, 453. On mental status examination, 12 Carlile reported that Plaintiff made good eye contact, had okay mood, sad affect, and linear and 13 clear thought process, and denied any suicidal or homicidal ideation. AR 22, 453. In November 14 Plaintiff reported that she had been working, and despite stressors related to taking care of her 15 daughter and her partner’s depression, she denied having acute depression, and said overall that 16 her medication had improved her mood. AR 451. 17 In January 2017 Plaintiff continued to report improvement with medications, and Carlile 18 again noted clear and linear thought process. AR 22, 444. In March she told Carlile again that her 19 medications were helpful and reported better mood, increased activity, better sleep, and less 20 drinking. AR 22, 440. In July she experienced heightened depressive symptoms after her brother 21 died, AR 22, 435, but by the next month reported that she felt less depressed and was working part 22 time as a caretaker. AR 432. In October Plaintiff’s therapist described her as tired but with 23 cheerful affect. AR 22, 424. In November she reported that she had stopped drinking and was 24 waking up earlier than usual; she had more energy to practice self-care; her therapist described her 25 affect as cheerful; and she was commuting with her daughter to school (a 45-minute drive) every 26 morning. AR 22, 420-21. Plaintiff told Carlile that “she has been mostly stable” and “said she felt 27 overall the meds were beneficial to her mood.” AR 22, 419. On mental status examination, 1 described therapy as helpful. AR 22, 419. 2 In January 2018 Plaintiff reported spending a few days in bed due to depression, but also 3 said that she had been able to work more, had continued abstaining from alcohol, and was proud 4 that she was still able to come to therapy and take care of her child. AR 22, 405, 408-09. In 5 February she spent time at the beach with her family and described feeling happy. AR 22, 397. In 6 March Plaintiff “discussed feeling lighter and brighter and was able to work multiple times last 7 week” and her therapist described her as “making significant insights into her trauma.” AR 22, 8 392-93, 395-96. Carlile noted Plaintiff’s report that she was doing well, taking meds, felt meds 9 and therapy were beneficial, denied alcohol use, and described her sleep as good and her moods as 10 stable. AR 391. In April, Plaintiff’s therapist observed she had a “bright and happy affect 11 congruent with reported feelings”; she described feeling renewed, empowered and hopeful after 12 completing a difficult hike and confronting her mother about childhood abuse, and she was 13 completing a list of places to hike as a way of continuing to utilize her new coping skill. AR 22, 14 389-90. At her closing therapy session later that month, Plaintiff’s therapist reflected that she had 15 “increased her physical activity and ability for self care practices . . . [and] made significant 16 progress at understanding her [symptoms] . . . and boundary setting with self and others.” AR 22, 17 386. 18 As noted above, Plaintiff identifies select excerpts from a handful of notes to show she, at 19 times, reported continuing depressive symptoms. Pl.’s Mot. at 5-6. However, the record as a 20 whole shows consistently unremarkable mental status examinations, her own reports that 21 medications were helpful, and the overall positive trajectory of treatment. See Wellington v. 22 Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“Symptoms may wax and wane during the 23 progression of a mental disorder,” but they “may also subside during treatment” and “[t]hat is 24 what happened here . . ..”). The ALJ, on the other hand, considered the entire record. AR 21-22. 25 The ALJ discounted the State agency consultants’ opinions that Plaintiff did not have a mental 26 impairment, AR 24, 66, 81, and assessed a significantly restrictive RFC — Plaintiff could perform 27 simple tasks with only occasional changes in work routine, no interaction with the public, only 1 a typical workday — that was in line with Carlile’s 2016 opinion. AR 19. Plaintiff further argues 2 that the fact that she developed romantic feelings for her therapist is further evidence of her 3 “extreme inability to have socially appropriate interactions with others.” Pl.’s Mot. at 6. 4 However, she fails to show how this suggests she could not work within the parameters set by the 5 ALJ. Indeed, the record reflects that Plaintiff was able to resolve her discomfort, develop new 6 insights into her past trauma, and discover alternative paths to happiness within two weeks of 7 disclosing her feelings to her therapist. AR 397. Regardless, the ALJ’s reasonable interpretation 8 of the record is entitled to deference. See Burch, 400 F.3d at 679 (“Where evidence is susceptible 9 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.”). 10 Accordingly, the Court finds the ALJ’s decision must be affirmed. 11 D. Step Three 12 At step three, the ALJ determined that “[t]he severity of [Plaintiff’s] mental impairments, 13 considered singly and in combination, do not meet or medically equal the criteria of listings 12.04, 14 12.06, or 12.15.” AR 18. Listing 12.04 addresses depressive, bipolar and related disorders; 15 Listing 12.06 addresses anxiety and obsessive-compulsive disorders; and Listing 12.15 addresses 16 trauma- and stressor-related disorders. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §§ 12.04, 12.06, 17 12/15. 18 Plaintiff argues she more than satisfies the “paragraph B” criteria of these listings as the 19 record establishes that she is “extremely limited” in more than one broad area of functioning. Pl.’s 20 Mot. at 7. She cites to Carlile’s 2018 opinion, which states: “As a result of her psychiatric 21 symptoms [Plaintiff] finds self care to be extremely difficult. She is unable to interact with people 22 appropriately and finds most/if not all environments intolerable.” Id. (citing AR 377). She also 23 notes Carlile checked boxes on the form that reflect at least two marked limitations in the area of 24 sustained concentration and persistence and three marked limitations with social interactions. Id. 25 Plaintiff also argues the ALJ failed to explain why she believes the “paragraph C” criteria is not 26 met, given that her conditions are “serious and persistent.” Id. at 8. 27 1. Legal Standard 1 conditions meet or equal any of the impairments outlined in the Listing of Impairments, 20 C.F.R. 2 Part 404, Subpt. P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). The listings describe 3 impairments that “would prevent an adult, regardless of his age, education, or work experience, 4 from performing any gainful activity.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (emphasis in 5 original). If a claimant’s “impairment meets or equals one of the listed impairments, the claimant 6 is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987); see also 7 20 C.F.R. § 404.1520(d). The claimant bears the burden of establishing a prima facie case of 8 disability under the listings. See Thomas, 278 F.3d at 955; 20 C.F.R. § 404.1520(a)(4)(iii). 9 An impairment meets a listing when all the medical criteria required of that listing is 10 satisfied. 20 C.F.R. § 404.1525(c)(3); Tackett, 180 F.3d at 1099 (“To meet a listed impairment, a 11 claimant must establish that he or she meets each characteristic of a listed impairment relevant to 12 his or her claim.”); Sullivan, 493 U.S. at 530 (“For a claimant to show that his impairment matches 13 a listing, it must meet all of the specified medical criteria. An impairment that manifests only 14 some of those criteria, no matter how severely, does not qualify.”). “To equal a listed impairment, 15 a claimant must establish symptoms, signs and laboratory findings ‘at least equal in severity and 16 duration’ to the characteristics of a relevant listed impairment . . ..” Tackett, 180 F.3d at 1099 17 (quoting 20 C.F.R. § 404.1526(a)). 18 “If a claimant suffers from multiple impairments and none of them individually meets or 19 equals a listed impairment, the collective symptoms, signs and laboratory findings of all of the 20 claimant’s impairments will be evaluated to determine whether they meet or equal the 21 characteristics of any relevant listed impairment.” Id. (citing 20 C.F.R. § 404.1526(a)). However, 22 “‘[m]edical equivalence must be based on medical findings,” and “[a] generalized assertion of 23 functional problems is not enough to establish disability at step three.’” Id. at 1100 (quoting 20 24 C.F.R. § 404.1526(a)). Further, an impairment does not meet the criteria of a listing based only on 25 a diagnosis. 20 C.F.R. § 404.1525(d); Sullivan, 493 U.S. at 530 (“For a claimant to show that his 26 impairment matches a listing, it must meet all of the specified medical criteria. An impairment 27 that manifests only some of those criteria, no matter how severely, does not qualify.”); Moncada v. 1 2. Application 2 In finding that Plaintiff’s impairments did not meet a Listing, the ALJ rated Plaintiff’s 3 functioning in four areas of mental functioning (“paragraph B criteria”).8 AR 18-19. Paragraph B 4 provides the functional criteria an ALJ assesses to evaluate how an impairment limits a claimant’s 5 functioning. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(A)(2)(b). The criteria, which represent 6 the areas of mental functioning a person uses in a work setting, are: [1] understand, remember, or 7 apply information; [2] interact with others; [3] concentrate, persist, or maintain pace; and [4] adapt 8 or manage oneself. Id. To satisfy the paragraph B criteria, a claimant’s mental impairment must 9 result in “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental 10 functioning. Id.; 20 C.F.R. § 404.1520a(c)(3). An extreme limitation is an inability to function 11 independently, appropriately, effectively, and on a sustained basis, and a marked limitation is a 12 seriously limited ability to function independently, appropriately, effectively, and on a sustained 13 basis. Listings § 12.00(F)(2)(d)-(e). 14 Here, the ALJ found Plaintiff’s mental health impairments did not result in at least one 15 extreme or two marked limitations. AR 18. Instead, she found Plaintiff had only moderate 16 limitation in understanding, remembering, or applying information because she alleged handling 17 stress and change in routine poorly, but had normal findings on mental status examination; she 18 was considered highly intelligent; and she was enrolled in a graduate program. Id. She found 19 moderate limitation in interacting with others because Plaintiff alleged having trouble getting 20 along with others, but she spent a lot of time at home with her daughter and had two close friends 21 she could rely on for support. Id. The ALJ assessed moderate limitation with regard to 22 8 The listings typically have three sets of criteria: paragraphs A, B, and C. 20 C.F.R. § Pt. 404, 23 Subpt. P, App. 1 § 12.00(A). The criteria in Paragraph A (except 12.05) “includes the medical criteria that must be present in [the] medical evidence,” paragraph B “(except 12.05) provides the 24 functional criteria [assessed], in conjunction with a rating scale” to evaluate how the claimant’s mental disorder limits his or her functioning, and paragraph C provides criteria used to evaluate 25 “serious and persistent mental disorders.” Id. Only some of the eleven diagnostic categories of mental disorders have paragraph C criteria and for those categories, the “mental disorder must 26 satisfy the requirements of both paragraphs A and B, or the requirements of both paragraphs A and C.” Id. If the claimant satisfies the diagnostic description in the introductory paragraph and the 27 criteria of both paragraphs A and B (or A and C, when appropriate) are satisfied, the claimant has 1 concentration, persistence, and pace because Plaintiff described having difficulty concentrating 2 and finishing tasks, but she followed written instructions well and spoken instructions fairly well, 3 she reported watching television and reading regularly, and by September 2016, she was attending 4 to more tasks and feeling more motivated. AR 19. Finally, the ALJ assessed moderate limitation 5 in adapting or managing oneself because Plaintiff alleged neglecting personal care for days at a 6 time during episodes of depression, but she still cared for her daughter, prepared meals, and told 7 her doctors that she was fully able to care for her personal needs and household duties. Id. 8 Plaintiff does not challenge the evidence the ALJ marshalled to support her findings; 9 instead, she argues the ALJ should have considered other evidence. The question, however, is not 10 whether other evidence in the record might speak to the paragraph B criteria but whether the 11 ALJ’s determination is supported by substantial evidence. See Noah v. Berryhill, 732 F. App’x 12 520, 521 (9th Cir. 2018) (claimant’s “arguments do not show the ALJ erred in finding [his] 13 combination of impairments do not fulfill the Paragraph B criteria—rather, [claimant] advocates 14 for an alternative interpretation of the evidence”; “Because the ALJ supported her conclusions 15 concerning [claimant’s] level of limitation with substantial evidence and provided a rational 16 interpretation of the record, we will uphold the ALJ’s decision”). Moreover, the only evidence 17 Plaintiff cites to support her alternative paragraph B assessment is Carlile’s 2018 opinion, which, 18 as discussed above, the ALJ properly discounted. Such evidence is inadequate for Plaintiff to 19 meet her burden of proof. See Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) 20 (claimant’s listing argument failed because she did not “set forth any evidence which would 21 support the diagnosis and findings of a listed impairment”); Littledeer v. Colvin, 2013 WL 22 5272812, at *11 (D. Or. Sept. 17, 2013) (“As discussed above, the ALJ properly rejected the 23 opinions of Ms. Van Epps and Dr. Williams. The ALJ considered each Listing with respect to the 24 credible evidence in the record and found that Littledeer did not meet the applicable criteria. Tr. 25 24. Because he did not err in his evaluation of the medical evidence, the ALJ did not err in finding 26 that Littledeer did not meet a listed impairment.”); Huecias v. Colvin, 2015 WL 1005410, at *3 27 (C.D. Cal. March 6, 2015) (“The ALJ decision must be affirmed. The ALJ properly considered 1 concluded that Plaintiff’s impairments did not meet or equal a listing.”). 2 Accordingly, the Court finds the ALJ’s decision must be affirmed. 3 E. RFC 4 The ALJ determined Plaintiff had the RFC to:
5 [P]erform medium work . . .except she can frequently climb, balance, stoop, crouch and crawl. She can tolerate occasional exposure to 6 fumes, odors, dusts, gases, and poor ventilation. She is limited to simple tasks with occasional changes in work routine. The claimant 7 cannot have interaction with the public and can have occasional interaction with coworkers and supervisors. She will be off task 10 8 percent of a typical workday. 9 AR 19. Plaintiff argues the ALJ “erroneously omitted [her] frequent inability get out of bed, 10 attend to personal hygiene, or leave her house, [her] tendency to need unscheduled breaks from 11 commitments that last for days and even weeks; and her inability to be around anyone other than 12 her immediate family, her finding most if not all environments intolerable.” Pl.’s Mot. at 8. She 13 maintains the record establishes she would be off-task a substantial part of the workday and, “[a]s 14 demonstrated by [her] unexcused absences from her last two jobs and her grad school program, it 15 is almost certain [she] would require more than one unexcused absence due to her symptoms.” Id. 16 at 9. 17 RFC is assessed by considering all the relevant evidence in a claimant’s case record. 20 18 C.F.R. § 404.1545(a)(1). It is the ALJ’s responsibility to assess a claimant’s RFC. 20 C.F.R. § 19 404.1546(c); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is 20 the responsibility of the ALJ, not the claimant's physician, to determine residual functional 21 capacity.”). “Generally, the more consistent an opinion is with the record as a whole, the more 22 weight [the ALJ] will give to that opinion.” 20 C.F.R. § 416.927(c)(4). 23 The Court finds the ALJ’s assessment is supported by substantial evidence. First, the ALJ 24 explained that Plaintiff’s treatment notes were inconsistent with the objective medical evidence 25 (AR 20). See 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence . . . is a useful indicator to 26 assist us in making reasonable conclusions about the intensity and persistence of your symptoms 27 and the effect those symptoms, such as pain, may have on your ability to work[.]”). As discussed 1 to depression, anxiety, and post-traumatic stress disorder, she consistently attended therapy and 2 medication management sessions with Carlile, she described her medications as helpful in 3 managing her symptoms, her mental status examinations were unremarkable, she worked part- 4 time, she stopped drinking, she took care of her daughter, her treatment providers described her as 5 cheerful, she effectively utilized techniques to deal with past trauma, and she developed new 6 coping skills like taking walks on the beach and hiking. Based on this record, the ALJ reasonably 7 concluded that Plaintiff’s treatment notes did not support her statements regarding her subjective 8 symptoms. See Turner v. Comm’r, 613 F.3d 1217, 1224-25 (9th Cir. 2010) (ALJ properly rejected 9 the claimant’s assertion that he could not “put up” with “most people” and his suggestion that this 10 limitation left him unable to work, because (1) two doctors found him cooperative and pleasant; 11 (2) the claimant told his doctor that he had been able to develop control over his anger; (3) the 12 claimant’s residence on a ranch reflected the confidence that others had in him to perform tasks 13 and that he adequately dealt with people when he went into town to obtain supplies or to the VA 14 for examinations; and (4) he was capable of developing a personal relationship during this time 15 that resulted in marriage). 16 Second, the ALJ observed that Plaintiff “retained a basic level of functionality despite her 17 severe allegations.” AR 20. As the ALJ pointed out, Plaintiff cared for her daughter, cooking for 18 her, bathing her, getting her ready for school, commuting with her, and cleaning up after her. AR 19 20, 51-52, 210. Plaintiff also prepared meals using a crockpot, did laundry, had no trouble with 20 her personal care, and handled full house chore and yard duties. AR 20, 210, 228, 331. Her 21 ability to engage in these activities was inconsistent with her claim that she had debilitating mental 22 impairments. See Molina, 674 F.3d at 1113 (“Even where those activities suggest some difficulty 23 functioning, they may be grounds for discrediting the claimant’s testimony to the extent that they 24 contradict claims of a totally debilitating impairment”). 25 Third, the ALJ noted that Plaintiff also alleged disability based in part on physical 26 impairment, AR 20, 190, 209, but her treatment was conservative and she sought it inconsistently, 27 AR 22-23. This was also a valid reason for the ALJ to discount Plaintiff’s statements. See 1 discredited where claimant received “minimal” and “conservative” treatment); Tommasetti, 533 2 F.3d at 1039 (“The ALJ may consider many factors in weighing a claimant’s credibility,” 3 including “unexplained or inadequately explained failure to seek treatment or to follow a 4 prescribed course of treatment”). 5 Plaintiff contends the RFC limitation giving her the latitude to be off task ten percent of 6 the time was arbitrary (AR 19), but she has failed to show how she was harmed by the ALJ’s 7 decision to give her the benefit of the doubt and include this additional limitation in the RFC. See 8 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (“Reversal on account of error is not 9 automatic, but requires a determination of prejudice. . . . The burden is on the party claiming error 10 to demonstrate not only the error, but also that it affected his ‘substantial rights,’ which is to say, 11 not merely his procedural rights.”) (quoting Shinseki v. Sanders, 556 U.S. 396, 407-09 (2009)). 12 Additionally, Plaintiff contends she simply could not work based on the number of absences she 13 accumulated in her prior work and in her graduate program. The ALJ, however, thoroughly 14 reviewed Plaintiff’s treatment notes and the opinion evidence from the relevant period and did not 15 find any evidence-based reason why Plaintiff’s impairments should preclude her from performing 16 work at the opined RFC level. 17 Finally, although Plaintiff argues the ALJ’s RFC assessment did not fully incorporate her 18 subjective complaints, she does not actually contest the ALJ’s decision except to argue that the 19 ALJ should have accepted her testimony at face value and incorporated those limitations into the 20 RFC. The Court may therefore decline to reach the claim. See Carmickle v. Comm’r, 533 F.3d 21 1155, 1161 n.2 (9th Cir. 2008) (“We do not address this finding because [claimant] failed to argue 22 this issue with any specificity in his briefing”); Indep. Towers of Washington v. Washington, 350 23 F.3d 925, 929 (9th Cir. 2003) (finding that party had forfeited issue on appeal where, “[b]eyond its 24 bold assertion, [plaintiff] provides little if any analysis to assist the court in evaluating its legal 25 challenge”). Regardless, as discussed above, the Court finds the ALJ properly discounted 26 Plaintiff’s statements regarding the severity of her symptoms. AR 20-23. 27 Because the ALJ’s analysis on these issues was legally sufficient, the Court must find that 1 1197 (9th Cir. 2004) In determining a plaintiff's RFC, the ALJ is not required to incorporate the 2 || claimant’s properly rejected testimony or statements nor is he “required to incorporate evidence 3 from the opinions of [the claimant’s] treating physicians, which were permissibly discounted”); 4 || Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (“because the ALJ provided specific and 5 legitimate reasons supported by substantial evidence to give less weight to [the examining 6 || physician’s] opinion, we conclude that the ALJ did not err in basing the RFC on [the DDS non- 7 examining physician’s] findings rather than [the examiner’s]”) (alterations in original). Further, 8 the Court notes that RFC is an administrative finding, not a medical determination, and need not 9 || match any one physician’s opinion. See 20 C.F.R. § 416.927(d)(2) (“Although we consider 10 || opinions from medical sources on issues such as .. . your residual functional capacity . . . the final 11 responsibility for deciding these issues is reserved to the Commissioner”); Vertigan, 260 F.3d at 12 1049 (“[i]t is clear that it is the responsibility of the ALJ, not the claimant’s physician, to 13 determine residual functional capacity”). The ALJ is responsible for assessing a claimant’s RFC 14 based on the record as a whole. See 20 C.F.R. § 416.945(a). 15 Accordingly, the ALJ’s decision must be affirmed. 16 VI. CONCLUSION 17 For the reasons stated above, the Court DENIES Plaintiff? motion and GRANTS S 18 Defendant’s cross-motion. The Court shall enter a separate judgment, after which the Clerk of 19 |) Court shall terminate the case. 20 IT IS SO ORDERED. 21 22 Dated: June 12, 2020 23 7 LU \ - Lj-~— THOMAS S. HIXSON 24 United States Magistrate Judge 25 26 27 28