Jesse P. Solomon v. Kilolo Kijakazi

Opinion

Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 1 of 12 Page ID #:1680

JESSE S., ) Case No. 2:21-cv-04620-SP ) Plaintiff, ) ) v. ) MEMORANDUM OPINION AND ) ORDER ) KILOLO KIJAKAZI, Acting ) Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) I. On June 4, 2021, plaintiff Jesse S. filed a complaint against defendant, the Commissioner of the Social Security Administration (“Commissioner”), seeking a review of a denial of supplemental security income (“SSI”). The parties have fully briefed the issue in dispute, and the court deems the matter suitable for adjudication without oral argument. Plaintiff presents one disputed issues for decision, whether the Administrative Law Judge (“ALJ”) properly considered the opinions of 1 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 2 of 12 Page ID #:1681

consultative examiner Edward Ritvo, M.D. in making his residual functional capacity (“RFC”) determination. Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 3-8; see Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-10. Having carefully studied the parties’ memoranda, the Administrative Record (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ properly considered Dr. Ritvo’s opinions. Consequently, the court affirms the decision of the Commissioner denying benefits. II. Plaintiff, who was 21 years old on the alleged disability onset date, has a high school education. AR at 70, 209. Plaintiff has no past relevant work. Id. at 63. On July 10, 2018, plaintiff applied for supplemental security income alleging disability since July 1, 2017. AR at 70-71. The application was denied initially, and on reconsideration. AR at 107-12, 117-21. On September 14, 2020, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. AR at 37-69. The ALJ also heard testimony from Rebecca Williams, a vocational expert. AR at 62-69. On September 25, 2020, the ALJ issued a decision denying plaintiff’s claim. AR at 15-32. Applying the well-known five-step sequential evaluation process, the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since July 10, 2018, the application date. AR at 17. At step two, the ALJ found plaintiff suffered from the severe impairments of major depressive disorder, generalized anxiety disorder, obsessive compulsive disorder, and polysubstance abuse. AR at 18. At step three, the ALJ found plaintiff’s impairments, whether individually or 2 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 3 of 12 Page ID #:1682

in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. The ALJ then assessed plaintiff’s RFC,1 and determined that based on all of the impairments, including the substance use disorder, plaintiff had the RFC to perform a full range of work at all exertional levels, but had nonexertional limitations such that plaintiff: was limited to simple, repetitive tasks; was limited to not more than occasional interactions with co-workers, the general public, and supervisors; and would also be absent from the workplace one day per week. AR at 20. The ALJ found at step four that plaintiff had no past relevant work. AR at 25. At step five, considering plaintiff’s age, education, work experience, and RFC, including his substance abuse disorder, the ALJ determined there were no jobs that existed in significant numbers in the national economy that plaintiff could perform. AR at 26. The ALJ concluded that a finding of “disabled” would therefore be appropriate. Id. The ALJ then considered plaintiff’s substance use and sobriety and found that if plaintiff stopped the substance use, the remaining limitations would cause more than a minimal impact on his ability to perform basic work activities, but he would not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.994(b)(5)(I)). AR at 26-27. The ALJ 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 56 n.5-7 (9th Cir. 1989). “Between steps 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, 1151 n.2 (9th Cir. 2007). 3 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 4 of 12 Page ID #:1683

next found that if plaintiff stopped the substance use, he would have the same RFC, except that he would no longer be absent from the workplace one day a week. AR at 28. Returning to step five, the ALJ determined that, if plaintiff stopped the substance use, there were jobs that exist in significant numbers in the national economy that plaintiff could perform, including church janitor, conveyor feeder- offbearer, and machine feeder. AR at 31. The ALJ therefore concluded that plaintiff’s substance use disorder was a contributing factor material to the determination of disability because plaintiff would not be disabled if he stopped substance use. AR at 32. Consequently, the ALJ concluded plaintiff did not suffer from a disability as defined by the Social Security Act. Id. Plaintiff filed a timely request for review of the ALJ’s decision, which the Appeals Council denied. Id. at 1-4. The ALJ’s decision stands as the final decision of the Commissioner. This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). “Substantial evidence is more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 4 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 5 of 12 Page ID #:1684

“relevant evidence which a reasonable person might accept as adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ’s finding, the reviewing court must review the administrative record as a whole, “weighing both the evidence that supports and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be affirmed simply by isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). IV. Plaintiff challenges the ALJ’s determination that plaintiff was not disabled because if he stopped the substance use, he would have the RFC to perform work at all exertional levels limited to simple, repetitive tasks and occasional social interactions. P. Mem. at 3-8. Specifically, plaintiff argues the ALJ improperly evaluated Dr. Ritvo’s findings of marked limitations. RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). Among the evidence an ALJ relies on in an RFC assessment is medical evidence and opinions. 20 C.F.R. § 404.1545(a)(3). For claims filed before March 27, 2017, the opinion of a treating physician was given more weight then an examining physician’s opinion, which was given more weight than a reviewing physician’s opinion. See Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). Under this previous hierarchy of medical opinions framework, the Ninth Circuit required an ALJ to provide clear and 5 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 6 of 12 Page ID #:1685

convincing reasons supported by substantial evidence to reject an uncontradicted opinion of a treating or examining physician, or specific and legitimate reasons supported by substantial evidence to reject a contradicted opinion of a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (as amended). Under the revised regulations, for cases filed on or after March 27, 2017, an ALJ will no longer defer or give specific evidentiary weight to any medical opinions. 20 C.F.R. § 404.1520c(a). For claims subject to the new regulations, the former hierarchy of medical opinions – in which we assign presumptive weight based on the extent of the doctor’s relationship with the claimant – no longer applies. Now, an ALJ’s decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence. Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). As such, the previous requirement that an ALJ provide “specific and legitimate” reasons to reject a treating or examining physician’s opinion “is clearly irreconcilable” with the new regulations. Id. at 790. An ALJ now will consider the persuasiveness of the medical opinions and findings based on five factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. § 404.1520c(a), (c). The most important of these factors are supportability and consistency. 20 C.F.R. § 404.1520c(a), (b)(2). The ALJ “must ‘articulate . . . how persuasive’ [he or she] finds ‘all of the medical opinions’ from each doctor or other source . . . and ‘explain how [he or she] considered the supportability and consistency factors’ in reaching these findings.” Woods, 32 F.4th at 792 (quoting 20 C.F.R. § 404.1520c(b), (b)(2)). The 6 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 7 of 12 Page ID #:1686

ALJ may, but is not required to, explain how he or she considered the other three factors. 20 C.F.R. § 404.1520c(b)(2). But when two or more medical opinions “about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same,” the ALJ is then required to explain how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. § 404.1520c(b)(3). With respect to supportability, the regulations state: “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). Regarding consistency, the regulations state: “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). Relevant Medical Opinions On November 20, 2018, Dr. Edward Ritvo, a psychiatrist, examined plaintiff and reviewed his medical records. AR at 411-18. During the mental status examination Dr. Ritvo observed plaintiff was nervous, “shaking with gross body tremors and shaking of his arms.” AR at 414. Plaintiff’s chief complaint was that he had “anxieties all the time and can’t concentrate. AR at 412. Plaintiff reported to have never held a job because of his anxiety and difficulties in interpersonal situations. AR at 414 He described himself as being socially isolated, with no friends or social activities. Id. Although plaintiff described himself as having “difficulty following our conversation,” Dr. Ritvo noted that plaintiff was “able to volunteer information spontaneously” and that there was “no obvious psychomotor agitation or retardation.” Id. at 414-15. Dr. Ritvo also observed that plaintiff was 7 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 8 of 12 Page ID #:1687

“coherent and organized” and that he did not exhibit “tangentiality or loosening of associations.” AR at 415. Although plaintiff described his inability to concentrate, including intrusive OCD thoughts, Dr. Ritvo noted that plaintiff was “relevant and non-delusional,” and did not exhibit “bizzare or psychotic thought content,” or “suicidal, homicidal, or paranoid ideation.” Id. Dr. Ritvo further observed plaintiff was “alert and oriented in all spheres,” appeared “to be of at least average intelligence,” and was able to follow their conversation “well.” Id. Dr. Ritvo also noted that plaintiff’s insight and judgment appeared to be intact. AR at 416. Dr. Ritvo stated it was possible plaintiff had “an underlying psychotic process such as schizoaffective disorder with a history of auditory hallucinations in the past of a paranoid nature,” and that he was “quite impaired” at the time of the examination. Id. Based on the history, examination, and tests administered, Dr. Ritvo opined plaintiff had: no impairment in ability to understand, remember, or complete simple commands; a marked impairment in ability to understand, remember, or complete complex commands; a marked impairment in ability to interact appropriately with supervisors, coworkers or the public; a marked impairment in ability to comply with job rules such as safety and attendance; a marked impairment in ability to respond to the change in the normal workplace setting; and a marked impairment in ability to maintain persistence and pace in a normal workplace setting. Id. at 417. On February 28, 2019, State Agency psychologist Dr. Sergiy Barsukov reviewed plaintiff’s medical records and the consultative examiner’s opinion. AR at 91-102. Dr. Barsukov noted it appeared the consultative examiner “relied too heavily” on plaintiff’s report. AR at 95, 97. Dr. Barsukov indicated plaintiff’s mental status examination was normal (AR at 95), and that he “is capable of simple and routine tasks” although with limited social contact. AR at 97-99. Dr. 8 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 9 of 12 Page ID #:1688

Barsukov stated he did not see a marked impairment in plaintiff’s understanding and remembering, and determined plaintiff performed all tasks adequately at the examination but would likely struggle with complex tasks. AR at 95. Dr. Barsukov further noted that plaintiff’s statement regarding social isolation conflicts with his statement that he stays on a couch at a friend’s house, which “would not be considered marked or extreme limit on social.” Id. Ultimately, Dr. Barsukov found no marked limitations, but opined plaintiff was moderately limited in his ability to carry out detailed instructions, maintain attention and concentration for extended periods, and interact appropriately with the general public. AR at 98-99. He found plaintiff was not able to perform complex tasks and should have only rare contact with the general public. AR at 99. The ALJ’s Findings In assessing plaintiff’s RFC, the ALJ found Dr. Ritvo’s opinions to be “not entirely persuasive.” AR at 24. The ALJ discounted Dr. Ritvo’s opinion that plaintiff had marked limitations because it was not supported by the medical evidence in the record, including being at odds with Dr. Ritvo’s own clinical observations. Id. As the ALJ noted, Dr. Ritvo’s own observations showed normal findings that could reasonably appear inconsistent with the degree of limitations he opined. AR at 24 (citing AR at 415). For example, records cited by the ALJ reveal findings of plaintiff being “coherent and organized,” having “no tangentiality or loosening of associations,” being “oriented in all spheres,” and being “of at least average intelligence.” AR at 415. The ALJ recognized that Dr. Ritvo’s opinions could be supported by plaintiff’s self-reported symptoms, such as “having difficulty following a conversation, and nervous appearance with ‘gross body tremors and shaking of his arms.’” AR at 24. But despite plaintiff’s account of his inability to concentrate and loss of focus due to his OCD, Dr. Ritvo noted that plaintiff was “able to follow [their] conversation well” and “able to perform 9 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 10 of 12 Page ID #:1689

memory and concentration tasks on evaluation.” Id. The ALJ’s also recognized that other medical opinions found plaintiff’s limitations were not as great as what Dr. Ritvo suggested. See AR at 23-24. The ALJ particularly cited and found persuasive the prior administrative medical findings of Dr. Barsukov that plaintiff was “capable of simple and routine tasks with limited social contact.” AR at 23 (citing AR at 97). The ALJ reasoned that Dr. Barsukov’s findings were supported by analysis of the record, noting no marked limitations in social functioning or adaptation. AR at 23 (citing AR at 95- 96). Dr. Barsukov additionally found that descriptions of plaintiff as a recluse and staying on his friend’s couch would not be considered marked social limitations. Id. The ALJ determined Dr. Barsukov’s findings were also consistent with the medical records documenting that prescription medication helped stabilize plaintiff’s mood and mental status, although without plaintiff’s disclosure to his doctor of marijuana and prescription drug use. AR at 23 (citing AR at 95, 332, 359, 394, 405, 424-25, 436, 445). While rejecting Dr. Ritvo’s findings of marked limitations in many areas, the ALJ found persuasive Dr. Ritvo’s opinion that plaintiff had “no impairment in his ability to understand, remember, or complete simple commands.” AR at 24. The ALJ noted that the findings of no impairment were supported by plaintiff’s report of being able to take care of his personal needs and to go out alone. AR at 24 (citing AR at 381, 383, 384, 398). Additionally, the ALJ determined the record as a whole documented minimal abnormal mental status examination findings during the relevant period. Id. Finally with respect to Dr. Ritvo’s opinions, the ALJ stated that plaintiff’s “report of cessation of drug use and failure to disclose his abuse of marijuana and prescription drugs reduce[d] the reliability of the opinions and any greater degree of restriction may be due to [plaintiff’s] polysubstance abuse, rather than his 10 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 11 of 12 Page ID #:1690

mental medically determinable impairments.” AR at 24. Plaintiff takes issue with this, maintaining that plaintiff was truthful as to his drug use at the time of his November 20, 2018 examination by Dr. Ritvo. P. Mem. at 7-8. Yet the ALJ cited records reflecting plaintiff’s steady marijuana and prescription drug use for years, apparently including the time of his examination by Dr. Ritvo. See AR at 24, 28, 467, 475, 638, 674. Plaintiff advances a number of other arguments for why the ALJ did not properly consider Dr. Ritvo’s opinions. P. Mem. at 6-8. These were addressed above, are no longer applicable under the new regulations, or are inapposite. In sum, the ALJ here adequately considered the persuasiveness of the medical opinions, particularly as to supportability and consistency, and sufficiently explained why Dr. Ritvo’s opinions were not entirely persuasive. Substantial evidence in the record supports the ALJ’s evaluation. The ALJ cited to Dr. Ritvo’s own clinical findings, plaintiff’s medical records, and to Dr. Barsukov’s prior administrative findings, explaining why those were inconsistent with Dr. Ritvo’s finding of marked limitations. Nothing requires the ALJ to discuss every piece of evidence so long as the decision does not broadly reject evidence in a way that prevents meaningful judicial review. See 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). The court finds that the ALJ fully and adequately addressed the basis for his finding that some of Dr. Ritvo’s opinions were unpersuasive. // // 11 Case 2:21-cv-04620-SP Document 23 Filed 07/05/22 Page 12o0f12 Page ID #:1691

V. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. g | DATED: July 5, 2022 RP Nee United States Magistrate Judge 12