1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JACQUE M., ) No. CV 19-2269-PLA ) 13 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, COMMISSIONER ) OF SOCIAL SECURITY ) 16 ADMINISTRATION, ) ) 17 Defendant. ) ) 18 19 I. 20 PROCEEDINGS 21 Jacque M.1 (“plaintiff”) filed this action on March 26, 2019, seeking review of the 22 Commissioner’s2 denial of his application for Supplemental Security Income (“SSI”) payments. 23 The parties filed Consents to proceed before a Magistrate Judge on April 16, 2019, and April 17, 24 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses 25 plaintiff’s (1) first name and last initial, and (2) year of birth in lieu of a complete birth date. See 26 Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, the newly-appointed Commissioner of the Social Security Administration, is hereby substituted as the 28 1 2019. Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on 2 December 11, 2019, that addresses their positions concerning the disputed issue in the case. The 3 Court has taken the Joint Submission under submission without oral argument. 4 5 II. 6 BACKGROUND 7 Plaintiff was born in 1971. [Administrative Record (“AR”) at 26, 332.] He has no past 8 relevant work experience. [Id. at 26.] 9 On December 31, 2012, plaintiff filed an application for SSI payments, alleging that he has 10 been unable to work since March 1, 2004. [Id. at 15; see also id. at 332-53.] After his application 11 was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before 12 an Administrative Law Judge (“ALJ”). [Id. at 168-70.] A hearing was held on November 5, 2014, 13 at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [Id. 14 at 42-68.] A vocational expert (“VE”) also testified. [Id. at 65-68.] On November 21, 2014, the 15 ALJ issued a decision concluding that plaintiff was not under a disability since December 31, 2012, 16 the date the application was filed. [Id. at 131-41.] Plaintiff requested review of the ALJ’s decision 17 by the Appeals Council, which was granted on April 11, 2016. [Id. at 147-48.] The Appeals 18 Council ordered the ALJ on remand to obtain additional evidence concerning plaintiff’s 2014 19 complex elbow fracture and resulting surgery in March and June 2014. [Id. at 147.] On March 5, 20 2018, a remand hearing was held before the same ALJ, at which time plaintiff again appeared 21 represented by an attorney and testified on his own behalf. [Id. at 69-97.] A medical expert (“ME”) 22 and a different VE also testified. [Id. at 74-80, 86-97.] On March 23, 2018, the ALJ issued a 23 decision again concluding that plaintiff was not under a disability since December 31, 2012, the 24 date the application was filed. [Id. at 15-27.] On February 7, 2019, the Appeals Council denied 25 plantiff’s request for review. [Id. at 1-5.] At that time, the ALJ’s decision became the final decision 26 of the Commissioner. 20 C.F.R. § 404.984. This action followed. 27 / 28 / 1 III. 2 STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 4 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 5 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 6 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 7 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 8 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 10 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 11 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 12 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 13 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 14 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 15 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 16 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 17 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 18 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 19 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 20 be judged are those upon which the record discloses that its action was based.”). 21 22 IV. 23 THE EVALUATION OF DISABILITY 24 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 25 to engage in any substantial gainful activity owing to a physical or mental impairment that is 26 expected to result in death or which has lasted or is expected to last for a continuous period of at 27 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 28 42 U.S.C. § 423(d)(1)(A)). 1 A. THE FIVE-STEP EVALUATION PROCESS 2 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 3 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 4 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 5 In the first step, the Commissioner must determine whether the claimant is currently engaged in 6 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 7 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 8 second step requires the Commissioner to determine whether the claimant has a “severe” 9 impairment or combination of impairments significantly limiting his ability to do basic work 10 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 11 a “severe” impairment or combination of impairments, the third step requires the Commissioner 12 to determine whether the impairment or combination of impairments meets or equals an 13 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 14 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 15 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 16 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 17 “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the 18 claim is denied. Id. The claimant has the burden of proving that he is unable to perform past 19 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 20 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 21 the burden of establishing that the claimant is not disabled because there is other work existing 22 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 23 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 24 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 25 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 26 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 27 / 28 / 1 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 2 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 3 December 31, 2012, the application date. [AR at 18.] At step two, the ALJ concluded that plaintiff 4 has the severe impairments of lumbar spine degenerative disc disease; history of asthma; right 5 humerus fracture (status post-open reduction and internal fixation); depression; and anti-social 6 personality disorder. [Id.] At step three, the ALJ determined that plaintiff does not have an 7 impairment or a combination of impairments that meets or medically equals any of the impairments 8 in the Listing. [Id. at 21.] The ALJ further found that plaintiff retained the residual functional 9 capacity (“RFC”)3 to perform a range of light work as defined in 20 C.F.R. § 416.967(b),4 as 10 follows: 11 [F]requent postural movements, occasional reaching/handling with his dominant right upper extremity, unrestricted fingering/feeling, performance of simple, repetitive 12 tasks in non-public work setting, occasional interactions with co-workers and supervisors, and avoiding concentrate exposure to respiratory irritants (e.g. dust, 13 fumes, chemicals, etc.). 14 [Id. at 22.] At step four, the ALJ concluded that plaintiff has no past relevant work. [Id. at 26.] At 15 step five, based on plaintiff’s RFC, vocational factors, and the VE’s testimony, the ALJ found that 16 there are jobs existing in significant numbers in the national economy that plaintiff can perform, 17 including work as an “office helper” (Dictionary of Occupational Titles (“DOT”) No. 239.567-010), 18 as a “mail clerk” (DOT No. 209.687-026), and as a “sales attendant” (DOT No. 299.677-010). [AR 19 at 26-27.] Accordingly, the ALJ determined that plaintiff was not disabled at any time since 20 3 RFC is what a claimant can still do despite existing exertional and nonexertional 21 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps 22 three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 23 1151 n.2 (9th Cir. 2007) (citation omitted). 24 4 “Light” work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this 25 category when it requires a good deal of walking or standing, or when it involves sitting most of the 26 time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 27 If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 28 1 December 31, 2012, the date the application was filed. [Id. at 27.] 2 3 V. 4 THE ALJ’S DECISION 5 Plaintiff contends that the ALJ erred when she evaluated the April 26, 2013, opinion of the 6 psychiatric consultative examiner Nina Kapitanski, M.D. [JS at 5.] As set forth below, the Court 7 respectfully disagrees with plaintiff and affirms the decision of the ALJ. 8 9 A. LEGAL STANDARD 10 “There are three types of medical opinions in social security cases: those from treating 11 physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec. 12 Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527.5 The Ninth 13 Circuit has recently reaffirmed that “[t]he medical opinion of a claimant’s treating physician is given 14 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory 15 diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] 16 case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 17 404.1527(c)(2)) (second alteration in original). Thus, “[a]s a general rule, more weight should be 18 given to the opinion of a treating source than to the opinion of doctors who do not treat the 19 claimant.” Lester, 81 F.3d at 830; Garrison, 759 F.3d at 1012 (citing Bray v. Comm’r Soc. Sec. 20 Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)); Turner v. Comm’r of Soc. Sec., 613 F.3d 21 1217, 1222 (9th Cir. 2010). “The opinion of an examining physician is, in turn, entitled to greater 22 23 5 The Court notes that for all claims filed on or after March 27, 2017, the Rules in 20 C.F.R. § 404.1520c (not § 404.1527) shall apply. The new regulations provide that the Social Security 24 Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your 25 medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating 26 source,” as well as what is customarily known as the treating source or treating physician rule. See 20 C.F.R. § 404.1520c; see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). However, 27 the claim in the present case was filed before March 27, 2017, and the Court therefore analyzed plaintiff’s claim pursuant to the treating source rule set out herein. See also 20 C.F.R. § 404.1527 28 1 weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan v. Comm’r 2 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 3 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical 4 opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d 5 at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific and 6 legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan, 528 7 F.3d at 1198). When a treating physician’s opinion is not controlling, the ALJ should weigh it 8 according to factors such as the nature, extent, and length of the physician-patient working 9 relationship, the frequency of examinations, whether the physician’s opinion is supported by and 10 consistent with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see 11 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standard 12 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 13 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th 14 Cir. 1998). The ALJ “must set forth his own interpretations and explain why they, rather than the 15 [treating or examining] doctors’, are correct.” Id. 16 Although the opinion of a non-examining physician “cannot by itself constitute substantial 17 evidence that justifies the rejection of the opinion of either an examining physician or a treating 18 physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians, 19 psychologists, and other medical specialists who are also experts in Social Security disability 20 evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray, 554 21 F.3d at 1221, 1227 (the ALJ properly relied “in large part on the DDS physician’s assessment” in 22 determining the claimant’s RFC and in rejecting the treating doctor’s testimony regarding the 23 claimant’s functional limitations). Reports of non-examining medical experts “may serve as 24 substantial evidence when they are supported by other evidence in the record and are consistent 25 with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 26 27 B. DR. KAPITANSKI’S OPINION 28 On April 26, 2013, Dr. Kapitanski, a Board Certified Psychiatrist, issued a summary report 1 of her complete psychiatric evaluation of plaintiff. [AR at 465-69.] As part of her evaluation, Dr. 2 Kapitanski obtained a mental treatment history from plaintiff, whom she considered to be an 3 adequate historian. [Id. at 465.] She had no medical records available for her review. [Id.] Dr. 4 Kapitanski noted that plaintiff was then in psychiatric treatment at the Parole Outpatient Clinic, 5 where he saw a psychiatrist monthly. [Id.] At that time he was taking Remeron, Risperdal, and 6 Benadryl, and reported that he had been on those medications for four years, and on psychotropic 7 medications generally since 2004. [Id.] He also reported that he felt that the medications were 8 helping him. [Id.] He stated that his mood was “a little depressed,” and is low five days a week. 9 [Id.] He indicated that he “is isolative with limited social interactions,” and he does “not want to be 10 bothered.” [Id. at 465-66.] He reported decreased concentration, forgetfulness, and some 11 paranoid ideations, but denied auditory or visual hallucinations, ideas of reference, mania, and 12 hypomania. [Id. at 467.] Plaintiff also stated that he had been arrested “20 times and was in 13 prison for four times,” and was last released in 2010. [Id. at 466.] At the time of Dr. Kapitanski’s 14 evaluation, plaintiff was on parole. [Id.] 15 Dr. Kapitanski conducted a mental status examination and found the following: plaintiff was 16 cooperative and maintained good eye contact; he was able to establish rapport with Dr. 17 Kapitanski; there was no evidence of involuntary movements; his speech was fluent; his affect was 18 flat; his mood was described as depressed; his thought processes were linear and goal-directed; 19 he exhibited no evidence of hallucinations, delusions, or illusions and reported no obsessions or 20 compulsions; he had mild paranoia; he was able to do serial sevens with errors, and serial threes; 21 his abstract thinking was good; he responded appropriately to imaginary situations requiring social 22 judgment and knowledge of the norms; and he had common sense understandings. [Id. at 467- 23 68.] 24 Dr. Kapitanski diagnosed plaintiff with major depression with psychotic features, in partial 25 remission, and a “Learning Disorder, NOS (per [plaintiff’s] history).” [Id. at 468.] She noted that 26 he reported resolution of psychotic symptoms but experienced ongoing depressive symptoms, and 27 that his mental status evaluation reflected mild impairment with arithmetic, but “no[] other notable 28 impairment on examination.” [Id.] She also opined that his “prognosis is poor given his history 1 of multiple incarceration, inability to get along with others and ongoing mood symptoms.”6 [Id.] 2 Dr. Kapitanski observed that plaintiff had no difficulty interacting with either her staff or herself, no 3 difficulty maintaining his composure and even temperament, and “mild difficulties in maintaining 4 social functioning because he is isolative.” [Id.] She determined that he had “no difficulties in 5 concentration, persistence and pace,” an “adequate” level of personal independence, and is 6 “intellectually and psychologically capable of performing activities of daily living (ADLs).” [Id.] 7 Based on her objective findings during the interview, Dr. Kapitanski opined the following: 8 [Plaintiff] would have no limitations performing simple and repetitive tasks and mild limitations performing detailed and complex tasks. [He] would have no difficulties 9 to be able to perform work activities on a consistent basis without special or additional supervision. [He] would have moderate limitations completing a normal 10 workday or work week due to his mental condition. [He] would have mild limitations accepting instructions from supervisors and interacting with coworkers and with the 11 public. He would have moderate difficulties to be able to handle the usual stresses, changes and demands of gainful employment. 12 13 [Id.] She also found that plaintiff “is adhering and responding well to treatment,” but that from a 14 “psychiatric standpoint,” his “prognosis is poor given chronicity of symptoms.” [Id. at 468-69.] 15 In the ALJ’s discussion leading up to her conclusion that plaintiff has the severe impairment 16 of depression, the ALJ stated the following: 17 [Plaintiff] received some intermittent mental health treatment during his incarceration. [He] reportedly took psychiatric medications including Remeron and 18 Risperdal for depression and psychosis. However, as of an August 2009 report, [he] reported doing well and getting good relief from the medications, denying any 19 psychiatric symptoms at the time. [He] continued to deny any particular symptoms as of February 2010, in advance of his anticipated parole, and reported being 20 compliant with his medication. [He] also performed normally upon mental status testing and denied any psychotic symptoms. 21 Upon his release, [he] continued to receive treatment at the parole outpatient clinic. 22 As of February 2011, [he] denied any alcohol use and, apart from an irritable and angry affect, [he] generally performed normally upon mental status testing, showing 23 no signs of psychosis or cognitive deficits. As such, he was diagnosed at the time with mood and anti-social personality disorders. As of June 2012, [he] reported 24 25 6 Plaintiff told Dr. Kapitanski that he had been arrested 20 times and incarcerated four times 26 [AR at 20]; he testified at the hearing that since 2004 he had been in and out of jail approximately four times on DUI convictions, and that each time he was incarcerated it was for about 32 months. 27 [AR at 81-82.] He also testified that throughout his lifetime he had been incarcerated for a total of “[m]aybe 12 years,” and that he had been released most recently in 2010. [Id. at 82.] Plaintiff 28 1 being asymptomatic. 2 . . . . [summarizing Dr. Kapitanski’s findings] 3 Later [after Dr. Kapitanski’s evaluation], on the basis of a review of the evidence available as of September 2013, the State Agency non-examining medical 4 evaluator, Dr. Chahal, assessed [plaintiff] as having moderate deficits in his ability to perform detailed tasks, maintain prolonged attention and concentration, maintain 5 a consistent work pace, and interact appropriately with the general public. 6 Thereafter, in February 2014, [plaintiff] presented to the Los Angeles County Department of Mental Health with complaints of depression, auditory hallucinations, 7 and mood instability, and seeking medication refills. [He] again generally performed well upon mental status testing and showed no overt signs of psychosis. As such, 8 [he] was diagnosed with psychotic disorder, not otherwise specified, and prescribed new medications including Risperdone and Mirtazapine. As of a May 2014 follow-up 9 visit, [he] reported getting good results with his medications and showed no abnormalities upon mental status testing. 10 Thereafter, [he] continued to treat intermittently at the county mental health 11 department. As of July 2014, [he] had no complaints, continued to report medication compliance and denied any problems with depression or psychosis. He again 12 reported feeling stable with no psychiatric complaints as of March 2015. [He] continued to deny any psychiatric complaints or issues remaining compliant with his 13 medications during the remainder of 2015 and through 2016 and 2017. 14 [Id. at 19-21.] 15 In support of her RFC determination, the ALJ generally summarized the mental health 16 evidence as follows: 17 [Plaintiff] received some intermittent mental health treatment during his incarceration, largely consisting of medications. When compliant with his prescribed 18 medications, [he] generally reported feeling well with no depressive or psychotic complaints. In addition, post-incarceration parole outpatient records show no 19 deterioration of [his] mental state and he generally reported being asymptomatic. [He] also generally performed well during Dr. Kapitanski’s examination, showing 20 some depressive signs, but no indication of psychosis or significant cognitive deficits. [He] also performed well during subsequent visits to the county mental 21 health department, where he received medication refills. Moreover, as noted above, in the last 2-3 years, [plaintiff] has largely presented to the county mental health 22 department with no psychiatric complaints. There is no indication [he] has required any inpatient psychiatric hospitalizations or ongoing, intensive outpatient therapy. 23 Although the county mental health department assigned [plaintiff] a low Global Assessment Functioning (GAF) score of 45, the undersigned finds this score is 24 inconsistent with [his] performance upon mental status testing, and the other evidence of record. Moreover, no treating or examining medical source has 25 assessed [him] as wholly incapable of sustaining work activity secondary to mental health issues. As such, the available medical evidence fails to support the degree 26 of mental . . . limitation [plaintiff] alleges. 27 [Id. at 24-25.] After her “thorough evaluation of the evidence,” the ALJ determined that plaintiff’s 28 mental impairments have caused only mild deficits in understanding, remembering, or applying 1 information; “moderate deficits interacting with others (giving [plaintiff] the benefit of the doubt that 2 he has anger management and personality issues)”; “moderate deficits in the area of 3 concentrating, persisting, or maintaining pace (giving [him] the benefit of the doubt that his mental 4 impairments, level of schooling [11th grade education], and lack of work history affects his ability 5 to sustain attention to complex or detailed work tasks)”; and mild deficits adapting or managing 6 himself. [Id. at 25.] As such, the ALJ determined that the RFC determination was “consistent with 7 the available medical evidence, the degree of treatment, the gaps in treatment, [plaintiff’s] good 8 recovery following his arm surgery, the assessments and findings of the examining, testifying and 9 consultative medical sources, [plaintiff’s] repeated denials of mental health problems to the county 10 mental health department, and his descriptions of his daily activities.” [Id. at 26.] 11 12 C. THE PARTIES’ CONTENTIONS 13 Plaintiff argues that the ALJ erred because she did not assess any weight to Dr. 14 Kapitanski’s opinion. [JS at 7.] He notes that the ALJ summarized Dr. Kapitanski’s opinion at step 15 two of the sequential analysis, in connection with her determination that plaintiff’s depression was 16 a severe impairment, and submits that the ALJ otherwise only addressed the fact that Dr. 17 Kapitanski’s mental examination showed some depressive signs but no indication of psychosis 18 or cognitive defect “when addressing that the medical evidence fails to support the degree of 19 mental limitations alleged by plaintiff.” [Id. (citing AR at 134-35, 138).] He argues that the ALJ 20 failed to articulate “specific and legitimate reasons, let alone a single reason,” for rejecting Dr. 21 Kapitanski’s opinions that plaintiff had “moderate limitations in completing a normal workday or 22 work week due to mental conditions; and handling the usual stresses, changes, and demands of 23 gainful employment.” [Id. at 7-8 (citing AR at 135, 138-39, 469).] According to plaintiff, the ALJ 24 instead focused on whether Dr. Kapitanski’s mental status evaluation supported plaintiff’s 25 subjective symptom allegations. [Id.] He argues that the ALJ did not explain how Dr. Kapitanski’s 26 assessed moderate limitations in plaintiff’s ability to handle the usual stresses, changes and 27 demands of gainful employment, or completing a normal workday or work week 28 “translates/incorporates to the mental limitations assessed in [plaintiff’s] residual functional 1 capacity of performing simple repetitive tasks, performing tasks requiring more than occasional 2 contact with the public, [and] performing tasks requiring more than occasional contact with co- 3 workers and/or supervisors.” [Id. at 8 (citing AR at 136-37).] Finally, plaintiff argues that the only 4 other mental health opinions in the record are those of the non-examining state agency opinions 5 at the initial and reconsideration level, which, as reports of non-examining physicians, do not 6 constitute substantial evidence and, therefore, “do not provide refuge for the ALJ’s analysis.” [Id. 7 (citing AR at 98-112, 114-126).] 8 Defendant notes that plaintiff’s arguments address the ALJ’s 2014 decision rather than the 9 subject 2018 decision, which he terms a “gross deficiency.” [Id. at 10.] Defendant states that if 10 the Court nevertheless overlooks this “flagrant deficiency” and considers plaintiff’s arguments in 11 light of the current decision, plaintiff’s arguments fail. [Id.] Defendant argues that the ALJ’s RFC 12 limitation to simple, repetitive tasks in a non-public work setting, with only occasional interactions 13 with co-workers and supervisors, accommodated Dr. Kapitanski’s assessed moderate limitations 14 in completing a normal workday or work week and handling the usual stresses, changes, and 15 demands of gainful employment. [Id. (citing AR at 22).] Defendant asserts that plaintiff “did well” 16 during Dr. Kapitanski’s mental status examination and that nothing in Dr. Kapitanski’s findings 17 indicates that plaintiff “would be unable to perform simple, repetitive tasks in a non-public work 18 setting and with only occasional interactions with co-workers and supervisors during a normal 19 workday or work week and handle the usual stresses, changes, and demands of simple, repetitive 20 work.” [Id. at 12 (emphasis in original) (citations omitted).] Defendant also notes that the ALJ’s 21 review of the medical record through 2017 reflected only intermittent mental health treatment, 22 largely consisting of medications; plaintiff reported doing well on his medications; and plaintiff 23 performed well on mental status examinations. [Id. at 13 (citing AR at 19-21 [which refers to id. 24 at 815-820, 822, 824-31, 834-36, 838, 840, 842, 846, 848, 850-51], 120-21).] 25 26 D. ANALYSIS 27 First, in support of his arguments, plaintiff does indeed cite to the ALJ’s November 21, 28 2014, decision [AR at 131-41], which was vacated by the Appeals Council [see id. at 147] and not 1 to the ALJ’s current decision.7 The Court will not address arguments that are not relevant to the 2 ALJ’s March 23, 2018, decision, the only decision at issue herein. However, in order to fairly 3 assess plaintiff’s appeal of the ALJ’s March 23, 2018, decision, the Court will consider plaintiff’s 4 arguments to the extent they are also applicable to the 2018 decision. 5 Next, plaintiff’s arguments fail on the merits. Plaintiff argues that the ALJ failed to 6 “translate” Dr. Kapitanski’s assessed moderate limitations in plaintiff’s ability to handle the usual 7 stresses, changes and demands of gainful employment, or completing a normal workday or work 8 week, into the ALJ’s RFC determination that plaintiff could perform simple repetitive tasks, 9 “perform[] tasks requiring more than occasional contact with the public, [and] perform[] tasks 10 requiring more than occasional contact with co-workers and/or supervisors.” [JS at 8.] The ALJ, 11 however (neither in the 2014 decision nor in the 2018 decision), did not find that plaintiff could 12 perform tasks requiring “more than occasional contact with the public” -- she limited plaintiff (in 13 both decisions) to a “non-public work setting.” [Id. at 22, 136 (plaintiff is able to perform medium 14 work “not involving . . . performing tasks requiring any contact with the public”).] She also did not 15 find that plaintiff could have more than occasional contact with co-workers and supervisors -- she 16 limited plaintiff to occasional contact with co-workers and supervisors. [Id. at 22, 136-37 (plaintiff 17 is able to perform medium work “not involving . . . performing any tasks requiring more than 18 occasional contacts with co-workers and supervisors”).] 19 The Court acknowledges that the ALJ did not specifically state the weight given to Dr. 20 Kapitanski’s 2013 opinions regarding plaintiff’s moderate limitations in completing a normal 21 workday or work week due to mental conditions, and handling the usual stresses, changes, and 22 demands of gainful employment. However, after reviewing the record, the Court finds that the ALJ 23 reasonably determined that the objective medical evidence does not reflect a more restricted RFC 24 than determined by the ALJ and that sufficient evidence supported that determination. 25 In addition to finding that plaintiff had “moderate limitations in completing a normal workday 26 27 7 In his portion of the JS, defendant pointed out that plaintiff addressed the 2014 decision. 28 1 or work week due to mental conditions; and handling the usual stresses, changes, and demands 2 of gainful employment,” Dr. Kapitanski noted that plaintiff had “no difficulties focusing and 3 maintaining attention,” in concentration, persistence and pace, and in “maintaining composure and 4 even temperament.” [Id. at 468.] She further noted that he had no limitations “performing simple 5 and repetitive tasks” and “would have no difficulties to be able to perform work activities on a 6 consistent basis without special or additional supervision.” [Id.] There is no evidence in the record 7 to suggest that Dr. Kapitanski or any other treating, consulting, or reviewing source considered 8 plaintiff to be wholly unable to complete a workday or work week, particularly if he was limited to 9 performing simple and repetitive tasks, no contact with the public, and limited contact with 10 supervisors and co-workers -- limitations included in the ALJ’s RFC determination. [Id. at 22.] See 11 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (noting that the ALJ’s 12 limitation to simple work sufficiently accommodated the examining and reviewing physicians’ 13 findings that the claimant had “several moderate limitations in other mental areas”). Indeed, taken 14 as a whole, Dr. Kapitanski’s opinions do not preclude plaintiff from performing unskilled simple and 15 repetitive work on a sustained basis, but suggest that he would have more difficulty if the work was 16 complex or if interaction with others was more than occasional. As in Stubbs-Danielson, the ALJ 17 here “translated [plaintiff’s] condition, including the . . . mental limitations, into the only concrete 18 restrictions available to [her] -- Dr. [Kapitanski’s] recommended restriction to ‘simple [repetitive] 19 tasks’” and to no more than occasional interaction with supervisors, co-workers, and the public. 20 Stubbs-Danielson, 539 F.3d at 1174. The ALJ’s RFC determination is also consistent with the 21 September 13, 2013, findings of the State agency reviewing psychiatrist Raman Gill Chahal, M.D., 22 that plaintiff “may have difficulties in interaction with the general public,” can handle limited public 23 contact, and “can maintain superficial work related interaction with co-workers and supervisors,” 24 as well as with Dr. Chahal’s conclusion that plaintiff “is capable of maintaining [concentration, 25 persistence, and pace] on simple tasks to complete a workday/wk on a sustained basis.” [AR at 26 123.] 27 Moreover, Dr. Kapitanski did not have an opportunity to review plaintiff’s medical history 28 prior to her examination in April 2013, relying instead on plaintiff’s recounting of his history and her 1 || one-time mental status evaluation. Indeed, the Court’s review of the record through 2017 -- as 2 || also thoroughly reviewed and summarized by the ALJ -- reflects little more than intermittent mental health treatment (primarily for medication refills); positive signs, symptoms, and reports; no issues 4] with medications, which were “working well’; and no evidence that the ALJ’s RFC determination 5 || was inconsistent with Dr. Kapitanski’s 2013 findings of moderate limitations in certain work-related areas or with the overall mental health opinions or evidence of record. Plaintiff points to no affirmative evidence, and the Court has not found any such evidence in the record, demonstrating that plaintiff is unable to perform the requirements of the occupations determined by the ALJ to 9|| be consistent with plaintiff's RFC. 10 The ALJ’s RFC determination was based on substantial evidence of record and remand is not warranted. 12 13 Vi. 14 CONCLUSION 15 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is denied; and (2) the 16 decision of the Commissioner is affirmed. 17 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 19 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. a Cale □□ Meant 22 || DATED: December 18, 2019 PAUL L. ABRAMS 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 AR