Khamis v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 29, 2020
• Docket: 2:19-cv-05385
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ahmed Khamis, No. CV-19-05385-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the Commissioner of Social Security Administration’s 16 (“Commissioner”) denial of Plaintiff’s application for supplemental security income under 17 Title XVI of the Social Security Act (“Act”). Plaintiff filed a Complaint (Doc. 1) seeking 18 judicial review. The Court now considers Plaintiff’s Opening Brief (Doc. 16, “Pl. Br.”), 19 the Defendant’s Response (Doc. 17, “Def. Br.”), and Plaintiff’s Reply (Doc. 18, “Reply”). 20 The Court has reviewed the briefs and Administrative Record (Doc. 11, “R.”). For the 21 following reasons, the decision is affirmed. 22 I. BACKGROUND1 23 Plaintiff filed his application for benefits on August 21, 2015, alleging disability as 24 of that same day due to various mental impairments and a heart condition.2 (R. at 22, 28,

25 1 The Court has reviewed the entirety of the medical evidence. In lieu of providing a 26 detailed summary of it here, the Court will reference and incorporate particular evidence as appropriate in its analysis. 27

28 2 This appeal is limited to the ALJ’s consideration of Plaintiff’s mental impairments. (Pl. Br. at 8 n.4.) 1 248.) The application was denied at the initial and reconsideration levels, and a hearing 2 before an administrative law judge (“ALJ”) followed. (Id. at 22, 76–101.) The ALJ again 3 denied Plaintiff’s application, finding him not disabled on August 1, 2018. (Id. at 22–35.) 4 Therein, the ALJ found Plaintiff had “severe”3 impairments of schizoaffective disorder, 5 post-traumatic stress disorder, and generalized anxiety disorder. (Id. at 24.) Despite these 6 impairments, the ALJ found that Plaintiff had the residual functional capacity (“RFC”)4 to 7 perform work at all exertional levels but with non-exertional limitations to unskilled work 8 involving simple instructions, occasional contact with co-workers, no teamwork, and no 9 contact with the public. (Id. at 28.) Based on this RFC assessment; Plaintiff’s age, 10 education, and work experience; and the testimony of a vocational expert (“VE”), the ALJ 11 found that Plaintiff could perform work as a janitorial worker and housekeeper and was 12 therefore not disabled. (Id. at 34–35.) Afterward, the Appeals Council denied review and 13 the decision became final. (Id. at 1–4.) 14 II. LEGAL STANDARD 15 In reviewing a decision of the Commissioner, the Court only reviews issues raised 16 by the party challenging the decision. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 17 1155, 1161 n.2 (9th Cir. 2008); see also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) 18 (“[The Court] will not ordinarily consider matters on appeal that are not specifically and 19 distinctly argued in appellant’s opening brief.”). The Court may affirm, modify, or reverse 20 the decision, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). The 21 Court may set aside the decision only when it is not supported by “substantial evidence” 22 or is based on legal error. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 23 “Substantial evidence means more than a mere scintilla, but less than a preponderance. It 24 means such relevant evidence as a reasonable mind might accept as adequate to support a 25

26 3 An “impairment or combination of impairments” is “severe” if it “significantly limits [the] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). 27

28 4 “[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.” 20 C.F.R. § 416.945(a)(1). 1 conclusion.” Id. “Where evidence is susceptible to more than one rational interpretation, 2 the ALJ’s decision should be upheld.” Id. at 674–75; see also Jamerson v. Chater, 112 F.3d 3 1064, 1067 (9th Cir. 1997) (“[T]he key question is not whether there is substantial evidence 4 that could support a finding of disability, but whether there is substantial evidence to 5 support the Commissioner’s actual finding that claimant is not disabled.”). “Yet [the Court] 6 must consider the entire record as a whole, weighing both the evidence that supports and 7 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply 8 by isolating a specific quantum of supporting evidence.” Trevizo, 871 F.3d at 675. “[The 9 Court] review[s] only the reasons provided by the ALJ in the disability determination and 10 may not affirm the ALJ on a ground upon which he [or she] did not rely.” Id. “Even when 11 the ALJ commits legal error, [the Court] uphold[s] the decision where that error is 12 harmless.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014). “An 13 error is harmless if it is inconsequential to the ultimate nondisability determination, or if 14 the agency’s path may reasonably be discerned, even if the agency explains its decision 15 with less than ideal clarity.” Id. (citations and internal quotation marks omitted). 16 To determine whether a claimant is disabled under the Act, the ALJ engages in a 17 five-step sequential analysis. 20 C.F.R. § 416.920(a). The burden of proof is on the 18 claimant for the first four steps but shifts to the ALJ at step five. Ford v. Saul, 950 F.3d 19 1141, 1148–49 (9th Cir. 2020). “Throughout the five-step evaluation, the ALJ is 20 responsible for determining credibility, resolving conflicts in medical testimony, and for 21 resolving ambiguities.” Id. at 1149 (citation and internal quotation marks omitted). At step 22 one, the ALJ determines whether the claimant is presently engaging in substantial gainful 23 activity. 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant is not disabled, and the inquiry 24 ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically 25 determinable physical or mental impairment. Id. § 416.920(a)(4)(ii). If not, the claimant is 26 not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the 27 claimant’s impairment or combination of impairments meets or medically equals an 28 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. 1 § 416.920(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ proceeds to step four. 2 Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the claimant 3 can perform past relevant work. Id. § 416.920(a)(4)(iv). If so, the claimant is not disabled, 4 and the inquiry ends. Id. If not, the ALJ proceeds to step five and determines whether the 5 claimant can perform other work existing in significant numbers in the national economy 6 based on the claimant’s RFC, age, education, and work experience. Id. § 416.920(a)(4)(v). 7 If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id. 8 III. ANALYSIS 9 Plaintiff raises two issues for the Court’s consideration. First, Plaintiff argues that 10 the ALJ improperly dismissed Plaintiff’s symptom testimony, which was also supported 11 by the record. (Pl. Br. at 21.) Second, Plaintiff challenges the ALJ’s evaluation of the 12 medical opinion evidence. (Id. at 13, 19.) The Court will address each argument in turn. 13 A. Plaintiff’s Subjective Allegations 14 Plaintiff’s first assignment of error is that the ALJ improperly rejected his subjective 15 allegations regarding the severity of his impairments. (Pl. Br. at 21–24; see R. at 28–30.) 16 As noted by the ALJ, Plaintiff alleged he cannot work because he is “unable to focus.” (R. 17 at 28, 257.) Plaintiff alleged and testified to issues with ADHD, memory, concentration, 18 schizophrenia, daily auditory/visual hallucinations, paranoia, frequent nightmares, 19 depression, anxiety, and frequent panic attacks. (Id. at 28, 93–98, 304.) The ALJ found the 20 alleged severity of Plaintiff’s impairments “not entirely consistent with the medical 21 evidence and other evidence.” (Id. at 28–30.) 22 In assessing a claimant’s RFC, the ALJ considers a claimant’s subjective allegations 23 and first “determine[s] the extent to which [any] alleged functional limitations and 24 restrictions due to pain or other symptoms can reasonably be accepted as consistent with 25 the medical signs and laboratory findings and other evidence to decide how [the] symptoms 26 affect [the claimant’s] ability to work.” 20 C.F.R. § 416.929(a); see 20 C.F.R. 27 § 416.929(c)(2). Absent a finding of malingering, the ALJ must provide “specific, clear 28 and convincing reasons” for rejecting a claimant’s allegations. Treichler, 775 F.3d at 1102. 1 General findings are not sufficient. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2 2001). Rather, “the ALJ must specifically identify the testimony she or he finds not to be 3 credible and must explain what evidence undermines the testimony.” Id. “Although the 4 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 5 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 6 substantial evidence.” Treichler, 775 F.3d at 1099. The ALJ may consider “whether the 7 claimant takes medication or undergoes other treatment for the symptoms.” Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); see Warre v. Comm’r of Soc. Sec. Admin., 9 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with 10 medication are not disabling.”). The ALJ may also consider “whether the alleged 11 symptoms are consistent with the medical evidence.”5 Lingenfelter, 504 F.3d at 1040. 12 “[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical 13 evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 14 Here, Plaintiff’s allegations of disabling mental symptoms were properly discounted 15 for specific, clear, and convincing reasons supported by substantial evidence. First, the ALJ 16 found the allegations were not consistent with notations of Plaintiff’s behavioral health 17 providers, which included his treating psychiatrist, Dr. Corey Yilmaz; nurses; and 18 behavioral health technicians. (Id. at 29–30.) Specifically, the ALJ noted that mental status 19 examinations conducted by Dr. Yilmaz and various nurses and/or nurse practitioners 20 indicated that Plaintiff “maintained fair fund of knowledge, memory, insight, judgment[,] 21 and concentration.” (Id. at 30 (citing records6).) Additionally, the ALJ noted notations of 22 23 5 “[H]owever, an ALJ cannot reject a claimant’s subjective pain or symptom testimony simply because the alleged severity of the pain or symptoms is not supported by 24 objective medical evidence.” Lingenfelter, 504 F.3d at 1040 n.11.

25 6 R. at 30 (citing R. at 584 [nurse practitioner note, 01/11/16], 1071 [psychiatrist note, 26 12/10/15], 1132 [psychiatrist note, 09/29/2016], 1135 [psychiatrist note, 08/24/16], 1138 [psychiatrist note, 08/03/16], 1141 [psychiatrist note, 06/09/2016], 1307 [psychiatrist note, 27 07/06/17], 1315 [psychiatrist note, 06/13/17], 1328 [psychiatrist note, 05/03/2017], 1351 28 [psychiatrist note, 03/29/17], 1380 [psychiatrist note, 01/11/2017], 1397 [psychiatrist note, 11/23/16], 1410 [psychiatrist note, 11/03/16], 1526 [RN note, 12/27/17], 1558 [psychiatrist 1 “good eye contact, concentration, and intact memory” as well as “a euthymic mood and 2 appropriate affect.” (Id. (citing id. at 924).) Therefore, the ALJ did not err in discounting 3 Plaintiff’s allegations on account of a lack of corroboration from the objective medical 4 evidence, particularly, his providers’ consistent findings of “fair” mental functioning. See 5 Lingenfelter, 504 F.3d at 1040. 6 Next, the ALJ properly discounted Plaintiff’s allegations on account of the reported 7 effectiveness of medication in reducing or eliminating his symptoms. (Id. at 30.) The ALJ 8 noted Plaintiff’s report that his “audio and visual hallucinations are improved with 9 medications.” (Id. (citing id. at 1020).) The record states that Plaintiff “endorse[d] audio 10 and visual hallucinations daily with or without medica[ti]ons but state[d] that the 11 hallucinations both visual and auditory are improved with the medications and are 12 tolerable.” (Id. at 1020.) However, the ALJ also noted Plaintiff’s report to the consultative 13 examining psychologist that his hallucinations stopped when he started taking olanzapine. 14 (Id. at 30 (citing id. at 536).) And, at the hearing, when the ALJ specifically asked Plaintiff, 15 “Do you hear voices even with the medication that you’re taking? Do you still hear them?” 16 he responded, “No.” (Id. at 94.) Thus, Plaintiff’s allegations were properly discounted on 17 account of the reported effectiveness of medication in controlling his symptoms. See 18 Warre, 439 F.3d at 1006. 19 Lastly, the ALJ provided other reasons for discounting Plaintiff’s allegations, such 20 as his engagement in certain daily activities. (See id. at 29–30.) Because the Court has 21 found at least two legally valid reasons supported by substantial evidence for the discount 22 of Plaintiff’s allegations as explained above, it need not determine the validity of the ALJ’s 23 other reasons. Even if the Court were to find error in one or more of these remaining 24 reasons, it would not change the outcome of the case. See Bray v. Comm’r of Soc. Sec. 25 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding ALJ’s reliance on an invalid reason 26 to discount claimant’s allegations was “harmless error” where ALJ had also relied on 27

28 note, 12/11/17], 1600 [psychiatrist note, 11/15/17], 1628 [registered nurse note, 10/30/17], 1638 [psychiatrist note, 09/25/17]). 1 reasons found valid). 2 In dispute of the ALJ’s findings, Plaintiff argues that “notes of stability and/or 3 improvement[] do not negate [his] reports of ongoing symptoms despite multiple 4 medication trials.” (Pl. Br. at 23.) He further argues that “Dr. Yilmaz would not have 5 needed to continuously discontinue, add, and increase [his] multiple psychotropic 6 medications if [he] was stable or improved enough to allow for competitive 7 employment.”(Id.) However, the ALJ did not rely solely on “notes of stability and/or 8 improvement.” As discussed, the ALJ relied on objective findings made by Plaintiff’s 9 providers as well as Plaintiff’s own reports that medications were beneficial to him. 10 Moreover, Plaintiff’s contention that he was not actually “stable” is directly belied by his 11 providers’ consistent notations to the contrary. (See, e.g., R. at 586, 934, 1072, 1142.) 12 Therefore, Plaintiff’s arguments fail to persuade.7 13 B. Medical Opinion Evidence 14 Plaintiff’s second assignment of error is that the ALJ improperly rejected the 15 opinions of his treating psychiatrist, Dr. Corey Yilmaz, and the agency’s consultative

16 7 Plaintiff also argues that the ALJ was not permitted to consider whether medical 17 evidence supported the alleged severity of his impairments. (Pl. Br. at 22.) This argument is without merit as the regulations plainly state that the ALJ must “determine the extent to 18 which [a claimant’s] alleged functional limitations and restrictions due to pain or other 19 symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how [his] symptoms affect [his] ability to work.” 20 20 C.F.R. § 404.1529(a) (emphasis added). The ALJ, however, may not “reject [a claimant’s] 21 statements . . . solely because the available objective medical evidence does not substantiate [them].” Id. § 404.1529(c)(2) (emphasis added). Therefore, if the ALJ 22 articulates other valid reasons for discounting the claimant’s allegations–as he did here–it 23 is not improper to base the discount, in part, on a lack of support from the objective medical evidence. See Lingenfelter, 504 F.3d at 1040; Schott v. Comm’r of Soc. Sec. Admin., No. 24 CV-19-00389-PHX-JJT, 2019 WL 5782324, at *5 (D. Ariz. Nov. 6, 2019).

25 Additionally, Plaintiff argues that the ALJ erred by not “t[ying]-in the 26 characterization of the medical record with any particular symptom testimony.” (Id. at 22– 23.) The Court finds no error. Given that the ALJ identified Plaintiff’s allegations (R. at 27 28) and evidence undermining those allegations (id. at 29–30), the Court can reasonably 28 discern the ALJ’s path and meaningfully determine that the ALJ’s conclusions are supported by substantial evidence. See Treichler, 775 F.3d at 1099. 1 examining psychologist, Dr. Brent Geary. (Pl. Br. at 13–21; see R. at 31–33.) He also 2 argues that the ALJ could not rely on the opinions of non-examining sources who reviewed 3 his application at the initial and reconsideration levels. (Pl. Br. at 18–19; see R. at 33.) 4 In assessing a claimant’s RFC, the ALJ considers “all of the relevant medical and 5 other evidence,” including medical opinion evidence. 20 C.F.R. § 416.945(a)(3); see 20 6 C.F.R. § 416.927. “[P]hysicians may render medical, clinical opinions, or they may render 7 opinions on the ultimate issue of disability–the claimant’s ability to perform work.” 8 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). In general, medical opinions of 9 treating sources are entitled to the greatest weight; opinions of examining, non-treating 10 sources are entitled to lesser weight; and opinions of non-examining, non-treating sources 11 are entitled to the least weight. Id. “If a treating or examining doctor’s opinion is 12 contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific 13 and legitimate reasons that are supported by substantial evidence.” Id. An ALJ satisfies the 14 substantial evidence requirement by “setting out a detailed and thorough summary of the 15 facts and conflicting evidence, stating his [or her] interpretation thereof, and making 16 findings.” Id. “The opinions of non-treating or non-examining physicians may also serve 17 as substantial evidence when the opinions are consistent with independent clinical findings 18 or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 19 In evaluating any medical opinion, the ALJ may consider: (1) whether the source examined 20 the claimant; (2) the length, frequency, nature, and extent of any treatment relationship; 21 (3) the degree of support the opinion has, particularly from objective medical evidence; 22 (4) the consistency of the opinion with the record as a whole; (5) the source’s 23 specialization; and (6) “other factors.” 20 C.F.R. §§ 416.927(c)(1)–(6); Trevizo, 871 F.3d 24 at 675. 25 1. Dr. Yilmaz’s Opinions 26 First, the ALJ considered medical assessments from Dr. Yilmaz, Plaintiff’s treating 27 psychiatrist. (R. at 31; see R. at 541–42, 1157–58, 1443–44, 1847–48.) Dr. Yilmaz opined 28 that Plaintiff had “moderately severe” to “severe” limitations in various areas of mental 1 functioning, including his abilities to relate to other people; respond appropriately to co- 2 workers and customary work pressures; and understand, remember, and carry out 3 instructions. (See id. at 541, 1157.) The ALJ assigned “little weight” to Dr. Yilmaz’s 4 assessments and noted: 5 While [Dr. Yilmaz’s] medical assessments are fairly consistent, they are very different and inconsistent with 6 treatment notes from his own facility. A mental status exam 7 dated April 11, 2016 reveals [Plaintiff] had good eye contact, concentration, and intact memory. [He] had a euthymic mood 8 and appropriate affect. [He] had logical thought process, 9 appropriate content, no hallucinations and good judgment, impulse control and insight. As discussed, mental status exams 10 generally reveal [Plaintiff] maintained fair fund of knowledge, 11 memory, insight, judgment and concentration. Further, progress notes dated October 16, 2015 to January 5, 2018 12 consistently indicate that [Plaintiff] has been stable. 13 [Plaintiff’s] mood was generally neutral or otherwise euthymic. In addition, progress notes dated February 19, 2019 14 and January 5, 2018 generally indicate that [Plaintiff] reported doing well or otherwise improved with his medication. 15 (Id. at 31.) 16 The Court finds no error. A lack of support from objective medical evidence and 17 inconsistency with other evidence are legitimate bases upon which a treating source’s 18 opinion can be discounted or rejected. See 20 C.F.R. §§ 416.927(c)(3)–(4)8; Batson v. 19 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (stating that the ALJ 20 may permissibly reject medical opinions that are “conclusory, brief, and unsupported by 21 the record as a whole or by objective medical findings”). As previously discussed, Dr. 22 Yilmaz made findings which were inconsistent with Plaintiff’s allegations of disability. 23 Those same findings noted by the ALJ here likewise fail to support Dr. Yilmaz’s opinions 24 of the same. Accordingly, the ALJ’s assignment of “little weight” to them is supported by 25

26 8 “The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give 27 that medical opinion.” 20 C.F.R. § 416.927(c)(3). “Generally, the more consistent a 28 medical opinion is with the record as a whole, the more weight we will give to that medical opinion.” Id. § 416.927(c)(4). 1 substantial evidence. 2 2. Dr. Geary’s Opinion 3 Next, the ALJ considered the opinion of the agency’s consultative examining 4 psychologist, Dr. Geary, who opined to various mental limitations. (R. at 32–33; see R. at 5 534–40.) The ALJ assigned Dr. Geary’s opinion “minimal weight,” noting: 6 While Dr. Geary made some general observations concerning [Plaintiff’s] ability in the work environment, he did not frame 7 his observations in specific work[-]related terms, mild, 8 moderate, marked or extreme. For instance, he noted that [Plaintiff] would require extra explanation of and reminders of 9 work details but did not specify if this would limit his ability 10 to perform simple unskilled work, if at all. Further, he noted that [Plaintiff] has trouble with prolonged focus and his ability 11 to maintain regular attendance at president is “highly 12 questionable” but failed to provide a specific opinion as to how this affects [Plaintiff’s] ability to sustain concentration and 13 persistence for simple unskilled work or otherwise how it 14 affects the claimant’s ability to perform skilled work. The term, highly questionable[,] is vague and does not provide any 15 specific insight into [Plaintiff’s] ability to sustain concentration and persistence. 16 (Id. at 33.) 17 The Court finds legal error, but, as explained below, Plaintiff fails to show that the 18 error is harmful and that reversal on its account is therefore warranted. As noted by the 19 Commissioner, 20 C.F.R. § 416.927(c)(3)9 permits an ALJ to consider the quality of 20 explanation a source provides in determining how much weight to give the source’s 21 opinion. (Def. Br. at 15.) However, what the Court is unaware of–and the Commissioner 22 fails to cite–any law that expressly requires a source to utilize specific words in rendering 23 his or her opinion. Here, Dr. Geary’s opinion was given lesser weight because he did not 24 use the terms, “mild, moderate, marked[,] or extreme,” yet, as noted by Plaintiff, nothing 25 on the form that the agency provided him indicated that he had to use these words. (Pl. Br. 26 27

28 9 “The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.” 20 C.F.R. § 416.927(c)(3). 1 at 20; see R. at 539.) Rather, the form simply stated: 2 Please give us a statement of your medical opinion, based on your substantiated medical findings about what the individual 3 can still do despite his or her impairment(s). Please do not 4 indicate what the individual states he/she can do, but what YOU, in your best judgment, feel he/she can do. 5 (R. at 539.) It is improper for the Commissioner to reject an examiner’s opinion because 6 the examiner did not comply with the use of specific terms.10 Also, the ALJ relied on and 7 cited evidence that likewise did not contain express notations of “mild” or “moderate” 8 limitations in support of his own findings of “mild” and “moderate” limitations in various 9 areas of Plaintiff’s mental functioning. (See id. at 27.) Thus, it is not clear that Dr. Geary’s 10 opinion needed to include these specific terms for the ALJ to extrapolate specific degrees 11 of limitation (e.g., “mild,” “moderate,” etc.) from it. If it is the policy and/or intent of the 12 Commissioner to discount otherwise adequately explained medical opinions of 13 consultative examiners on the basis that they do not include specific words, then a 14 requirement or instruction to use such words should be made express to the examiners on 15 the forms provided to them. 16 Although the Court finds error in the rejection of Dr. Geary’s opinion, it will not 17 reverse the decision on account of this error because Plaintiff fails to show that the error is 18 harmful, i.e., consequential to the overall nondisability determination. See Treichler, 775 19 F.3d at 1099; Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“‘[T]he burden of 20 showing that an error is harmful normally falls upon the party attacking the agency’s 21 determination.’”) (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)), superseded by 22 regulation on other grounds. Plaintiff asserts that “[t]he limitations assessed by Dr. Geary 23 would make it impossible to perform any sustained work.” (Pl. Br. at 19.) However, 24 Plaintiff cites no evidence–VE testimony or otherwise–to support this assertion. And 25 26 10 The Commissioner’s citation to Ford v. Saul, 950 F.3d 1141, 1155–56 (9th Cir. 27 2020) is unpersuasive. (Def. Br. at 15.) The ALJ in Ford rejecting an examining source’s 28 opinion for failing to provide “useful statements.” Id. at 1156. Here, the ALJ rejected Dr. Geary’s statement because he failed to use specific words. 1 Plaintiff is not qualified, as a lay individual, to provide an independent analysis of Dr. 2 Geary’s medical opinion, that is, decide on his own that the opined-to limitations would 3 result in disability. Plaintiff, who was represented by counsel at his hearing, was given an 4 opportunity to question the VE at the hearing and could have asked the VE whether Dr. 5 Geary’s opined-to limitations, in his expert opinion, precluded all gainful activity; 6 however, he did not. (See R. at 100.) Thus, the rejection of Dr. Geary’s opinion is harmless 7 because it is inconsequential to the overall nondisability determination since nothing in the 8 record establishes that his opined-to limitations preclude all gainful activity. See Treichler, 9 775 F.3d at 1099. 10 3. Non-examining Reviewers 11 Lastly, Plaintiff argues that the ALJ could not rely on the opinions of the non- 12 examining psychologist and psychiatrist who reviewed his application at the initial and 13 reconsideration levels, respectively, in finding him not disabled. (Pl. Br. at 18–19; see R. 14 at 33, 108–22 [initial level], 123–40 [reconsideration level].) Plaintiff’s argument is 15 without merit as the Ninth Circuit has specifically held that “[t]he opinions of non-treating 16 or non-examining physicians may . . . serve as substantial evidence when the opinions are 17 consistent with independent clinical findings or other evidence in the record.” Thomas, 278 18 F.3d at 957. Because their opinions were consistent with other evidence in the record noted 19 by the ALJ (R. at 33), they could constitute substantial evidence supportive of the ALJ’s 20 nondisability finding. As such, the Court finds no error here. 21 IV. CONCLUSION 22 The ALJ provided sufficient reasons supported by substantial evidence for rejecting 23 the opinions of Plaintiff’s medical evidence and symptom testimony. The Court affirms 24 the ALJ’s nondisability determination. 25 Accordingly, 26 / / 27 / / 28 / / 1 IT IS ORDERED, affirming the August 1, 2018 decision of the ALJ (R. at 19-35), 2|| as upheld by the Appeals Council (R. at 1-3). 3 IT IS FURTHER ORDERED, directing the Clerk of Court to enter judgment and 4|| terminate this case. 5 Dated this 29th day of September, 2020. 6 ’ Wichal T. Hburde 8 Michael T. Liburdi 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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