1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kristina L. Larson, No. CV-21-02164-PHX-SPL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Kristina Larson’s Application for Social Security 17 Insurance Benefits (“SSI”) by the Social Security Administration (“SSA”) under Title II of 18 the Social Security Act (“the Act”). Plaintiff filed a Complaint with this Court seeking 19 review of that denial. (Doc. 1) The Court has reviewed now addresses Plaintiff’s Opening 20 Brief (“OB”), Defendant Social Security Administration Commissioner’s Answering Brief 21 (“AN”), Plaintiff’s Reply, and the administrative record (“AR”). The Court finds the 22 administrative law judge’s (“ALJ”) decision is supported by substantial evidence and now 23 affirms. (AR 17–34). 24 I. BACKGROUND 25 Plaintiff filed the present application for Title II disability on April 20, 2018 alleging 26 disability beginning May 1, 2013. (AR 17, 131). The SSA denied her claims at the initial 27 and reconsideration stages of administrative review. (AR 156, 164). Plaintiff then 28 requested a hearing before an ALJ. (AR 169). On August 20, 2020, the ALJ heard 1 testimony from Plaintiff and an independent Vocational Expert (“VE”). (AR 43–44). Then, 2 on March 9, 2021, the ALJ held a supplemental hearing at which Plaintiff, a VE, and two 3 medical experts testified. (AR 77–79). The ALJ found Plaintiff not disabled1 in a decision 4 issued April 5, 2021. (AR 14). 5 In her report, the ALJ found Plaintiff had the severe2 impairments of lumbosacral 6 spondylosis, chronic pain syndrome, neuritis and radiculitis, fibromyalgia, and chronic 7 fatigue syndrome. (AR 20). However, the ALJ found Plaintiff’s chronic obstructive 8 pulmonary disease (“COPD”) and gastroesophageal reflux disease (“GERD”) caused “no 9 more than a minimal limitation of [Plaintiff’s] physical or mental ability to do basic work 10 activities” and were therefore not severe. (AR 20). 11 Similarly, the ALJ found Plaintiff’s mental health impairments not severe. (AR 20). 12 The ALJ found that when considered singly and in combination, Plaintiff’s substance 13 dependence, anxiety, major depressive disorder (“MDD” or “depression”), and post- 14 traumatic stress disorder (“PTSD”) caused “no more than a minimal limitation in her ability 15 to perform basic mental work activities.” (AR 20). In reaching this determination, the ALJ 16 considered Plaintiff’s functional limitations in the following categories, together knowns 17 as the paragraph B categories: (1) understanding, remembering, and applying information; 18 (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) 19 adapting or managing oneself. 20 C.F.R. § 404.1520a (c)(3). (AR 20–21). The ALJ 20 determined Plaintiff had no more than mild limitations in any of the paragraph B categories. 21 (AR 21) 22 Despite her impairments, the ALJ determined Plaintiff retained the residual 23 functional capacity (“RFC”) to perform light work as defined by 20 CFR 404.1567(b) with 24 the following exceptions:
25 1 For the purposes of social security disability insurance benefits, “disability” is defined as “the inability to engage in any substantial gainful activity by reason of any medically 26 determinable physical or mental impairment which can be expected to result in death or which has lasted for a continuous period of not less than 12 months.” 42 U.S.C. § 423 27 (d)(1)(A). 2 “[A]ny impairment or combination of impairments which significantly limits [a person’s] 28 physical or mental ability to do basic work activities” is considered “severe.” 20 C.F.R. § 404.1520 (c) 1 in an 8-hour day with normal breaks, she can occasionally lift and/or carry up to 20 pounds and frequently up to 10 pounds; 2 stand and/or walk for about 6 hours total and sit for about 6 hours total. She can occasionally climb stairs, but never 3 scaffolding or ropes. She can occasionally balance, stoop, kneel, crouch, or crawl. (AR 22) 4 5 Based on the above and testimony from neutral vocational experts, the ALJ 6 determined Plaintiff would be able to perform her past relevant work as a mortgage 7 assistant and is therefore not disabled. (AR 34). The Appeals Council denied review and 8 the ALJ’s decision became final. (AR 1). Plaintiff appeals. (Doc. 1). 9 II. THE SEQUENTIAL EVALUATION PROCCESS 10 In determining whether a claimant is disabled for the purposes of the Act, the ALJ 11 must follow a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a)(4). The 12 claimant bears the burden of proof at the first four steps, but that burden shifts to the 13 Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step 14 one, the ALJ determines whether the claimant is presently engaging in substantial gainful 15 activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry 16 ends. Id. At step two, the ALJ determines whether the claimant has a severe medically 17 determinable impairment. 20 C.F.R. § 404.1520(a)(4)(ii) If not, the claimant is not disabled 18 and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 19 impairment or combination of impairments meets or is medically equivalent to an 20 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. § 404.1520(a)(4)(iii) (“the 21 Listings”). If so, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the 22 analysis proceeds to step four where the ALJ assesses the claimant’s RFC and determines 23 whether the claimant is still capable of performing her past relevant work. 20 C.F.R. 24 § 404.1520(a)(4)(iv). If the claimant can perform her past relevant work, she is not 25 disabled. Id. If she cannot, the analysis proceeds to the fifth and final step, where the ALJ 26 determines if the claimant can perform any other work in the national economy based on 27 her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the 28 claimant cannot, she is disabled. Id. 1 III. LEGAL STANDARD 2 When determining whether to reverse the Commissioner’s decision, this Court only 3 reviews issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 4 503, 517 n.13 (9th Cir. 2001). The Court will affirm the Commissioner’s final ruling unless 5 it is based on legal error or lacks the support of substantial evidence. Orn v. Astrue, 495 6 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is “more than a mere scintilla but less 7 than a preponderance. It is such relevant evidence as a reasonable mind might accept as 8 adequate to support a conclusion.” Id. (internal quotation marks and citations omitted). 9 Though the Court must consider the record as a whole, “the key question is not whether 10 there is substantial evidence that could support a finding of disability, but whether there is 11 substantial evidence to support the Commissioner’s actual finding that claimant is not 12 disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). “Where the evidence 13 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 14 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 15 (9th Cir. 2002). 16 IV. DISCUSSION 17 Plaintiff argues the Commissioner improperly addressed multiple medical opinions 18 and in doing so, failed to find her mental impairments severe at step two of the sequential 19 evaluation process. (OB p.1). The Court will address these issues in turn. 20 A. THE ALJ PROPERLY ADDRESSED MEDICAL OPINIONS. 21 Under the former SSA regulatory scheme, ALJs gave a treating physician’s opinion 22 “‘substantial weight’ and could only reject such opinion by providing ‘clear and convincing 23 reasons,’ if the opinion is uncontradicted by other evidence, or ‘specific and legitimate 24 reasons’ otherwise.” Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). In 2017, the 25 SSA revised its regulations regarding the evaluation of medical evidence. See Revisions to 26 Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 27 2017). As Plaintiff filed her case after 2017, it is governed by the new regulations. (AR 28 17). The ALJ was therefore not required to adhere to a hierarchy of medical opinions. 20 1 C.F.R. §§404.1520c(a)–(b). Rather, the ALJ meets her burden by articulating the 2 persuasiveness of each opinion using factors set forth in the regulations. Id. Supportability 3 and consistency are the most important of these factors but ALJs may also consider the 4 nature of the treatment relationship, the medical source’s specialization, and “other factors 5 that tend to support or contradict a medical opinion.” 20 C.F.R. §§404.1520c(a)(c). 6 Here, the ALJ found the opinions of the third-party medical expert (“ME”) Dr. 7 Peterson, and the psychological examiner, Dr. Abreu, persuasive. (AR 30–31). Doctors 8 Peterson and Abreu opined that Plaintiff experienced no more than mild limitations in the 9 paragraph B categories. (AR 94–96, 621). Plaintiff takes issue with the ALJ’s reliance on 10 Dr. Peterson and Dr. Abreu’s opinions as Dr. Abreu examined Plaintiff only once and Dr. 11 Peterson did not examine her at all. (OB 7–8). In contrast, Dr. Schilling, who’s opinion 12 the ALJ did not find persuasive, treated Plaintiff for five years. (OB p. 10). Defendant 13 argues that the ALJ properly addressed the medical opinions in accordance with the new 14 SSA regulations. (AN 13). The Court agrees. 15 Dr. Schilling’s Opinion 16 Dr. Schilling, Plaintiff’s treating psychologist, opined that Plaintiff suffered marked 17 or extreme limitations in each of the paragraph B categories. (AR 1079). She also 18 determined that Plaintiff displayed a “minimal capacity to adapt to changes in the 19 environment or to demands that are not already a part of daily life.” (AR 1079). Following 20 the supplemental hearing, Dr. Schilling submitted a letter to the Appeals Council 21 expressing her disagreement with Dr. Peterson and the ALJ’s opinions. (AR 42). In this 22 letter, Dr. Schilling clarified that she had determined Plaintiff experienced limitations in 23 each of the paragraph B categories “based on generalized observations of how [Plaintiff’s] 24 diagnoses impact functioning in each area when depressive episodes or PTSD symptoms 25 are present.” (AR 42). 26 In finding Plaintiff’s mental health impairments not severe, the ALJ rejected Dr. 27 Schilling’s medical opinion. (AR 33). The ALJ found Dr. Schilling’s opinions 28 unpersuasive as they were not supported by detailed rationale, were inconsistent with the 1 findings of other providers, dismissed Plaintiff’s use of cigarettes as a “coping 2 mechanism,” and were inconsistent with her own treatment notes. (AR 33). 3 1. Dr. Schilling Did Not Dismiss Plaintiff’s Use of Cigarettes. 4 The ALJ found Dr. Schilling’s opinion unpersuasive in part because she “dismissed 5 [Plaintiff] smoking cigarettes as a coping mechanism.” (AR 33). In contrast, Dr. Peterson 6 found Plaintiff’s smoking might exacerbate her COPD symptoms and have a “tremendous 7 impact” on Plaintiff’s anxiety. (AR 33, AR 88). Plaintiff argues the ALJ erred in finding 8 Dr. Schilling ignored the possibility that smoking exacerbated Plaintiff’s symptoms. (OB 9 12–13). In her letter to the Appeals Council, Dr. Schilling denied justifying Plaintiff’s 10 cigarette use and claimed eliminating smoking was a “future therapeutic goal.” (AR 42). 11 She also acknowledged that smoking could exacerbate anxiety. (AR 42). However, Dr. 12 Schilling concluded that Plaintiff’s smoking was unlikely to be a predominant cause of her 13 anxiety as the course of Plaintiff’s symptomology had “no direct relation to smoking.” (AR 14 42). 15 The ALJ’s assertion that Dr. Schilling failed to consider the negative effects of 16 smoking misrepresents her opinion. However, the Court finds this error harmless as it is 17 unlikely to change the outcome of the disability determination. Tommasetti v. Astrue, 533 18 F.3d 1035, 1038 (9th Cir. 2008) (“[T]he court will not reverse the decision of the ALJ’s 19 decision for harmless error, which exists when it is clear from the record that the ALJ’s 20 error was inconsequential to the ultimate nondisability determination.” (Internal quotation 21 marks and citation omitted)). 22 2. Dr. Schilling Contradicts Other Medical Opinions. 23 The ALJ found Dr. Schilling’s opinion unpersuasive because it is inconsistent with 24 the observations of Plaintiff’s other medical providers. (AR 33). Dr. Abreu found Plaintiff 25 suffered no limitations in any of the paragraph B categories and opined that Plaintiff may 26 have embellished her symptoms. (AR 619–21). Following clinical testing, Dr. Jain 27 concluded Plaintiff’s results were “suggestive of average cognitive functioning” despite 28 1 Plaintiff’s dysthymia.3 Dr. Peterson opined that Plaintiff suffered no more than mild 2 limitations in any of the paragraph B categories. (AR 94–95). 3 Plaintiff directs the Court to the opinions of medical providers who, like Dr. 4 Shilling, found Plaintiff’s mental health impairments lead to serious functional limitations. 5 (OB 13). However, the ALJ properly discounted these opinions by analyzing their 6 persuasiveness using the factors set forth in 20 C.F.R. § 404.1520c. 7 Jennifer Burns determined Plaintiff had “debilitating PTSD” to the point where she 8 could not work. (AR 734). But determining whether a claimant is capable of working is 9 solely within the Commissioner’s purview. 20 C.F.R. §§404.1520b(c)(3). An opinion that 10 merely states an individual is unable to work is inherently unpersuasive. Id. 11 Plaintiff also notes that nurse practitioner Karen Campbell opined Plaintiff should 12 only work part time, should not be in stressful situations, and should work from home 13 whenever possible to avoid commuting. (OB 14, AR 500). The ALJ found Campbell’s 14 opinion unpersuasive in part because it was made prior to the alleged onset date (“AOD”). 15 (AR 32). Campbell examined Plaintiff in March of 2013, one month before Plaintiff’s 16 AOD. (AR 17, 498). Her opinion is less persuasive as it does not address Plaintiff’s 17 condition during the relevant time frame. 20 C.F.R. § 404.1520c(c)(1). (“The more relevant 18 the objective medical evidence and supporting explanations presented by a medical source 19 are to support his or her medical opinion(s) . . . the more persuasive the medical opinions. 20 . . will be.”). The ALJ did not err in rejecting her medical opinion. 21 Finally, Plaintiff notes that the state’s consultive psychologist, Dr. Mark Berkowitz, 22 opined that Plaintiff experienced moderate limitations in two of the paragraph B categories. 23 (OB 14). Dr. Berkowitz examined Plaintiff in April 2019 and opined that she experienced 24 moderate limitations in interacting with others and in concentrating, persisting, or 25 maintaining pace. (AR 146, 152). The ALJ determined Dr. Berkowitz’s opinion was not 26 persuasive because it was not consistent with the record as a whole and conflicted with the 27 3 Dysthmia is a mood disorder characterized by chronic mildly depressed or irritable mood 28 often accompanied by other symptoms (such as eating and sleeping disturbances, fatigue, and poor self-esteem). 1 findings of the medical experts who reviewed the entire record. (AR 33). 2 The ALJ correctly notes that Dr. Berkowitz’s opinion is inconsistent with Dr. 3 Peterson’s opinion. (AR 33). Dr. Peterson reviewed the entire record and concluded 4 Plaintiff had no more than mild limitations in any of the paragraph B categories. (AR 93– 5 96). The ALJ also determined Dr. Berkowitz’s opinion was inconsistent with Plaintiff’s 6 “objective mental status exam findings during the relevant time period, her ability to travel 7 during the relevant time period without noted difficulty, and the efficacy of some treatment 8 modalities.” (AR 33). Dr. Schilling notes that Plaintiff’s condition improved with 9 psychotherapy in February and November 2018. (AR 592, 691). Plaintiff travelled to 10 Colorado without much difficulty in 2018 and 2019. (AR 613-14, 975). Plaintiff’s Mental 11 Status Evaluations (“MSEs”) note normal cognition. (AR 537–94; 616–20; 784–9). 12 Substantial evidence supports the ALJ’s conclusion. 13 3. Dr. Schilling’s Treatment Notes Support Her Opinion. 14 The ALJ determined Dr. Schilling’s opinions were not supported by her own 15 treatment notes, “particularly over the relevant time period which shows intact functional 16 status and improvement with treatment.” (AR 33). Dr. Schilling’s notes document 17 Plaintiff’s treatments for depression, anxiety, and PTSD. Plaintiff’s mental status 18 evaluations (“MSEs”) from May to July of 2020 are largely unremarkable. (AR 1192–93, 19 1244–47, 1255–83). During this period, Dr. Schilling observed that even when Plaintiff 20 appeared with severely depressed mood, her cognitive functions remained intact. (AR 957– 21 1069). However, Schilling’s records from August to November 2020 note Plaintiff’s 22 deficient concentration and tangential cognitive functioning. (AR 1444–93). The ALJ 23 failed to address records from this period in her decision. (AR17–34). 24 Then, beginning in December 2020, Plaintiff’s mood, affect, memory, and 25 judgement returned to normal though her thought process remained “tangential.” (AR 26 1499–1515). Beginning December 23, 2020, Dr. Schilling had “no concerns” about 27 Plaintiff’s thought process. (AR 1518–19). From then forward, Schilling’s notes describe 28 Plaintiff as alert and having normal mood, affect, thought content, and judgement. (AR 1 1382–1411). 2 Plaintiff argues that the recurrent nature of her mental health impairments supports 3 Dr. Schilling’s opinion. (OB 10). The Court agrees. In Garrison v. Colvin, the Ninth Circuit 4 acknowledged that when addressing mental health impairments, “[c]ycles of improvement 5 and debilitating symptoms are a common occurrence . . . .” 759 F.3d 995, 1017 (9th Cir. 6 2014). The court found the ALJ erred in rejecting Garrison’s testimony simply because her 7 symptoms waxed and waned throughout the course of treatment. Id. 8 In her letter to the Appeals Council, Dr. Schilling opined that despite improvements 9 to Plaintiff’s emotional well-being, “primary concerns relate to inconsistency with 10 engagement in activities due to the cyclical nature of [Plaintiff’s] Major Depressive 11 Disorder and emotional dysregulation . . . .” (AR 42). Dr. Schilling went on to opine that 12 Plaintiff experienced “extreme limitations” in certain functional areas “when depressive 13 episodes or PTSD symptoms are present.” (AR 42). Like the plaintiff in Garrison, 14 Plaintiff’s diagnoses remained constant even as her symptoms waxed and waned. (AR 15 1420–1519). Id. at 1018. 16 ALJ’s must consider a treating physician’s opinion “in the context of the overall 17 diagnostic picture” she draws. Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). 18 Here, the ALJ failed to acknowledge the many MSEs that documented Plaintiff’s 19 functional limitations during her major depressive episodes. (AR 957–1069, 1192–93, 20 1244-47. 1255–83, 1444–1515). Dr. Schilling’s treatment notes depict a cycle of 21 impairment and recovery. (AR 42, 957–1069, 1192–93, 1244–47, 1255–83, 1420–1519). 22 On this record, the Court cannot say Dr. Schilling’s treatment notes contradict her medical 23 opinion. 24 4. Dr. Schilling’s Opinion is Vague. 25 However, the ALJ is correct that Dr. Schilling’s report is vague and “not well 26 supported by detailed rationale.” (AR 33). In January 2019, Plaintiff’s attorney asked Dr. 27 Schilling to complete a questionnaire regarding Plaintiff’s mental health. (AR 722–23). Dr. 28 Schilling stated that she would be unable to evaluate Plaintiff’s Mental Residual Capacity 1 (“MRC”) and that Plaintiff would need to be assessed by a forensic or neuropsychologist. 2 (AR 730). She therefore left the MRC evaluation form blank and only completed portions 3 of the questionnaire related to listing 12.04. (728–29). But both the MRC and the listing 4 questionnaire asked Dr. Schilling to opine on Plaintiff’s functional limitations in the 5 paragraph B categories. (724–32). The Listing Questionnaire asked Dr. Schilling whether 6 Plaintiff had marked or extreme limitations in any of the paragraph B categories. (AR 729). 7 Dr. Schilling marked “yes,” but did not specify the extent of Plaintiff’s limitations in any 8 of the Paragraph B categories. (AR 729). It is therefore unclear whether she believes 9 Plaintiff experiences mild, moderate, or severe limitations in each category. The MRC 10 asked more specific questions regarding Plaintiff’s limitations in each of the paragraph B 11 categories. (AR 730–32). Dr. Schilling did not answer these questions and instead wrote 12 that Plaintiff would need to be seen by a specialist. (AR 730). 13 Additionally, Dr. Schilling’s opinion is in the form of a checklist and does not 14 reference medical evidence. (1077–79). In Batson, the Ninth Circuit upheld the ALJ’s 15 rejection of a treating physician’s medical opinion because “it was in the form of a 16 checklist, did not have supportive objective evidence, was contradicted by other statements 17 and assessments of Batson’s medical condition and was based on Batson’s subjective 18 descriptions of pain.” 359 F.3d 1190, 1195 (9th Cir. 2004). Such is the case here. Dr. 19 Schilling’s checklist opinion did not include references to the record nor her treating notes. 20 (AR 1077–79). Dr. Peterson and Dr. Abreu disagreed with Schilling’s opinion that Plaintiff 21 experienced severe limitations in the four functional areas. (AR 94-96, 621). Plaintiff 22 scored in the average or slightly below average range on formal mental status assessments. 23 (AR 530–31, 616–20). 24 Following the ALJ’s determination, Dr. Schilling submitted a letter to the Appeals 25 Council detailing her disagreement with the ALJ’s characterization of her testimony and 26 clarifying her opinion. (AR 42). But this letter—which focused primarily on Plaintiff’s 27 cigarette and cannabis use— also fails to cite to any medical evidence and is therefore left 28 vague. (AR 42). 1 The ALJ’s conclusion that Dr. Schilling’s notes did not support her opinion is 2 incorrect. However, substantial evidence supports the ALJ’s determination that Dr. 3 Schilling’s opinion is not persuasive due to its vagueness. ALJ’s must assign more weight 4 to medical opinions that are well supported4 and consistent5 with the record as a whole. 20 5 C.F.R. § 404.1520c(c). Dr. Schilling’s opinion is incomplete and internally inconsistent. 6 (AR 724–32). It does not cite to Plaintiff’s medical record and is not consistent with Dr. 7 Peterson or Dr. Abreu’s determinations. (AR 530–31, 616–20, 724–32, 1077–79). Dr. 8 Schilling claimed Plaintiff would need to be examined by a neuropsychiatrist to determine 9 her mental residual capacity but failed to acknowledge Plaintiff’s performance on formal 10 mental evaluations. (AR 730). She did not specify Plaintiff’s level of impairment in any of 11 the paragraph B categories. (AR 729). The Court finds the ALJ did not err in rejecting Dr. 12 Schilling’s opinion. 13 Dr. Peterson’s Opinion 14 The ALJ called Dr. David Peterson, a psychologist, to testify as a medical expert at 15 the supplemental hearing on March 9, 2021. (AR 78). Dr. Peterson opined that Plaintiff’s 16 impairments met the paragraph A criteria for Listing 12.04 but supported no more than 17 mild functional limitations in the Paragraph B categories. (AR 30, 94–96). Plaintiff argues 18 the ALJ erred in relying on Dr. Peterson’s opinion. (OB 7–8). Defendant contends that the 19 ALJ “properly assessed the supportability and consistency of Dr. Peterson’s opinion and 20 reasonably found the opinion to be persuasive based on those factors.” (AN 14). The Court 21 agrees. 22 The ALJ found Dr. Peterson’s opinion persuasive because he reviewed the entire 23 record, had the opportunity to interview Plaintiff at the hearing, was familiar with the 24 SSA’s rules and regulations, thoroughly explained his findings, and supported his opinion 25 with multiple citations to the record. (AR 30). Substantial evidence supports this finding.
26 4 “Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . 27 . the more persuasive the medical opinion . . . will be.” 20 C.F.R. § 404.1520c(c)(1) 5 “Consistency. The more consistent a medical opinion . . . is with the evidence from other 28 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion . . . will be.” 20 C.F.R. § 404.1520c(c)(2). 1 Dr. Peterson asked Plaintiff clarifying questions during the hearing and made numerous 2 citations to the record when explaining his opinion. (AR 30, 90–96). Furthermore, Dr. 3 Peterson’s opinion that Plaintiff suffered no more than mild limitations is consistent with 4 Plaintiff’s formal test results and many unremarkable MSEs. In 2013, Dr. Jain found 5 Plaintiff’s concentration was only slightly below average. (AR 30–31 (citing AR 529–31)). 6 Five years later, Plaintiff achieved a perfect score on the Mini Mental Status Evaluation. 7 (AR 616–20). Additionally, many of Plaintiff’s MSEs note her normal affect, judgement, 8 and concentration. (AR 30–31 (citing AR 495-97, 504, 529-33, 535-38, 544, 556, 559, 562, 9 565, 578, 616-22, 623-47, 681-716, 782-84, 1192-1285)). 10 In her decision, the ALJ noted Dr. Peterson’s opinion that the relationship between 11 cannabis, anxiety, and depression is complex. (AR 30). Dr. Peterson testified that he was 12 “not able to rule out the influence of daily cannabis use from [Plaintiff’s] reported 13 symptoms because of that complexity.” (AR 89). Plaintiff directs the court to Dr. 14 Schilling’s assertion that there is no literature suggesting a causal relationship between 15 cannabis, general anxiety disorder, and major depressive disorder. (OB 10–11, 14; AR 42). 16 As it is the ALJ’s role to resolve conflicting medical evidence, the Court defers to her 17 judgement. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 18 Dr. Peterson also opined that Plaintiff’s malaise may be a side effect of her daily 19 cannabis use. (AR 103). Plaintiff attributed her malaise to her ketamine treatments and 20 argues that Dr. Peterson had “never prescribed ketamine as a treatment and [had] not read 21 any studies regarding whether fatigue was an expected side effect of the medication.” (OB 22 14 (citing AR 90-98)). This is a misrepresentation of Dr. Peterson’s testimony. In response 23 to Plaintiff’s counsel asking if he had ever prescribed ketamine treatment, Dr. Peterson 24 clarified that as a psychologist, he does not prescribe medications. (AR 100). However, Dr. 25 Peterson teaches psychopharmacology to grad students and had therefore been “keeping 26 track of the objective evidence of [ketamine treatment’s] success.” (AR 101). Dr. Peterson 27 also testified that he had reviewed materials related to ketamine treatment side effects but 28 had not come across any studies describing the type of lingering tiredness Plaintiff 1 described. (AR 92, 101). The ALJ did not err in determining Dr. Peterson thoroughly 2 explained his findings. 3 B. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S DETERMINATION 4 THAT PLAINTIFF EXPERIENCED MILD LIMITATIONS IN THE 5 PARAGRAPH B CATEGORIES. 6 At step two of the sequential evaluation process, the ALJ must determine whether 7 Plaintiff suffers from a severe impairment or combination of impairments. Smolen v. 8 Chater, 80 F.3d 1273, 1290–91 (9th Cir. 1996). This is a de minimis screening instrument 9 used to dispose of meritless claims. Id. at 1291. “An impairment or combination of 10 impairments may be found not severe only if the evidence establishes a slight abnormality 11 that has no more than a minimal effect on an individual's ability to work.” Webb 12 v.Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal quotation marks omitted); see 20 13 C.F.R. § 404.1520(c). 14 ALJs evaluate the severity of mental impairments using a two-step process. 20 15 C.F.R. § 404.1520a (b). First, the ALJ must determine if the claimant has a medically 16 determinable mental impairment. C.F.R. § 404.1520a (b)(1). (AR 20). Here, the ALJ found 17 Plaintiff had the medically determinable impairments of major depressive disorder, 18 anxiety, PTSD, and substance (cannabis) dependence. (AR 20). Next, the ALJ must rate 19 the claimant’s degree of functional limitation in each of the paragraph B categories.6 C.F.R. 20 § 404.1520a (b)(2). Here, the ALJ determined Plaintiff had no more than mild limitations 21 in any of the paragraph B categories. (AR 21). 22 The ALJ ultimately found Plaintiff’s mental impairments nonsevere as they “did not 23 cause more than mild limitations in [Plaintiff’s] ability to perform basic mental work 24 activities . . . .” (AR 20). Plaintiff alleges the ALJ’s findings are not supported by 25 substantial evidence. (OB 15). Defendant argues that the ALJ properly addressed the 26 paragraph B criteria and that the record as a whole supports the ALJ’s conclusion. (AN 27 6 The broad functional areas of mental functioning (aka the paragraph B criteria) are set 28 out in the disability regulations for evaluating mental disorders and in the listings of impairments. 20 CFR, Part 404, Subpart P, Appendix 1. 1 p.7). The Court agrees. 2 1. Understanding, Remembering, and Applying Information. 3 The ALJ determined Plaintiff had only mild limitations in understanding, 4 remembering, or applying information. (AR 20) In support of this assertion, the ALJ cites 5 Plaintiff’s “essentially benign” mental status evaluations (“MSEs”) which demonstrated 6 “intact memory and average cognitive ability, even on formal testing.” (AR 20). The 7 Defendant asserts that the ALJ’s decision is supported by substantial evidence and 8 identifies several confirmative MSEs and medical opinions. (AN 7–8). 9 Plaintiff alleges that records from her treating providers demonstrate her need for 10 and engagement with “seriously intensive treating modalities for her depression and PTSD, 11 including EDMR, Ketamine treatment, and TMS.” (OB p.9 citing AR 623-47; 761-74; 815- 12 908; 938-54; 955-1070; 1136-91; 1192-1285; 1286-1302; 1313-72; 1382-1419). But the 13 fact that Plaintiff required intensive treatment for her mental impairments does not show 14 that the impairments affect her ability to understand, remember, and apply information. 15 Plaintiff also argues that the Commissioner improperly cherrypicked “the milder 16 medical findings in order to support the ALJ’s conclusion rather than a sampling of the 17 findings present in the record as a whole.” (Reply 2). The record contains conflicting 18 evidence regarding Plaintiff’s ability to understand, remember, and apply information. 19 Plaintiff has periodically reported cognitive difficulties to her health care providers since 20 2013. (AR 457, 459, 467, 498, 519, 529, 689,695, 778,1112, 1199, 1224, 1252–53). Dr. 21 Schilling’s clinical notes from August to December 2020 note Plaintiff’s deficient 22 concentration and tangential cognitive functioning. (AR 1444–1497). However, Plaintiff’s 23 objective test results demonstrate intact cognition. 24 In October 2013, Dr. Jain found that Plaintiff’s results on the K-BIT-2 test were 25 “indicative of average cognitive functioning”. (AR 530). In September 2018, Plaintiff 26 scored a 30 out of 30 on the mini mental status examination (“MMSE”). (AR 618–20). 27 After administering the MMSE, Dr. Abreu opined that Plaintiff’s memory seemed fine and 28 that she “demonstrated the ability to understand simple instructions during the evaluation.” 1 (AR 621). Dr. Abreu found no issues with Plaintiff’s attention or concentration and opined 2 that Plaintiff’s symptoms “seem mild” despite her subjective complaints. (AR 619–20). Dr. 3 Abreu also opined that it was possible Plaintiff “may be embellishing symptoms.” (AR 4 620). 5 Additionally, Dr. Peterson opined Plaintiff had no or mild limitations in the 6 Paragraph B criteria. (AR 94–96, 621). Dr. Schilling may have opined that Plaintiff had 7 marked limitations in the Paragraph B categories, but the ALJ properly rejected her 8 opinion. The ALJ’s determination that Plaintiff had only mild limitations in this category 9 is supported by substantial evidence. 10 2. Interacting with Others. 11 Citing medical opinions, Plaintiff’s activities, and the record as a whole, the ALJ 12 found Plaintiff had mild limitations in her ability to interact with others. (AR 20). Plaintiff 13 argues that the cyclical nature of her impairments makes it so she can perform certain 14 activities on some days but not others. (OB 10; Reply p.5). In support of this assertion, 15 Plaintiff points to Dr. Schilling’s letter to the Appeals Council. (OB p.10; Reply p.5). 16 Defendant contends that the record supports the ALJ’s conclusion. (AN 8). The Court 17 agrees. In her decision, the ALJ cites Plaintiff’s ability to live and go grocery shopping 18 with her husband. (AR 20). She also notes that Plaintiff travelled during the relevant time 19 period and that some MSEs describe Plaintiff as “pleasant and cooperative with normal 20 speech.” (AR 20). Furthermore, the consultive examiner and medical expert did not opine 21 that Plaintiff suffered moderate limitations in this area. (AR 20). Substantial evidence 22 supports the ALJ’s decision. 23 3. Concentrating, Persisting, and Managing Pace. 24 The ALJ found Plaintiff had no more than mild limitations in concentrating, 25 persisting, and managing pace. (AR 21 citing AR 323-31). Defendant asserts the ALJ’s 26 determination was supported by substantial evidence and cites MSEs noting Plaintiff’s 27 normal memory. (AN 8) Plaintiff argues Defendant cherrypicked from the milder MSEs to 28 support the ALJ’s findings. (Reply 2). 1 Though Dr. Schilling’s treatment notes contain many references to Plaintiff’s poor 2 concentration and tangential cognitive functioning, (AR 1382–1490) the record also 3 contains many unremarkable MSEs. (AR 323-31, 495-97, 500-23, 529-96, 616-47, 680- 4 716, 761-94, 815-908, 938-1076, 1112-1135, 1192-1372, 1382-1419). Dr. Schilling opined 5 this was due to the recurrent nature of Plaintiff’s impairments, but other medical sources 6 opined that Plaintiff’s functional limitations were simply mild. (AR 42, 94–96, 616–20). It 7 is the ALJ’s duty to resolve conflicts in the medical evidence and the court will not 8 substitute her judgement with its own. Reddick, 157 F.3d at 722. 9 Additional evidence supports the ALJ’s determination that Plaintiff experienced 10 mild limitations relating to her concentration. The ALJ correctly observed that Plaintiff’s 11 formal examination results and doctor’s opinions suggest intact concentration. (AR 21). 12 Dr. Abreu observed “no problems with [Plaintiff’s] attention or concentration” and opined 13 that Plaintiff may be embellishing her symptoms. (AR 619–20). Moreover, Dr. Abreu and 14 Dr. Peterson agreed that Plaintiff experienced no more than mild limitations in her 15 concentration. (AR 94–96, 616–20). As the ALJ’s conclusion represents a rational 16 interpretation of the evidence, the Court will not disturb her finding. Thomas, 278 F.3d at 17 954. 18 4. Adapting and Managing Oneself. 19 The ALJ found Plaintiff had only mild limitations in adapting and managing herself 20 as she maintained normal grooming, presented with normal judgement, often had normal 21 mood and affect, drove, prepared simple meals, and performed the activities of daily living. 22 (AR 21). The record supports this finding. Clinical notes show that Plaintiff arrived at her 23 appointments well-groomed and presented in an age-appropriate manner. (AR 495–96, 24 530, 536–38, 618). In her function report, Plaintiff stated she was able to drive a car, 25 prepare simple meals, and perform household chores. (AR 325-27). Dr. Abreu determined 26 Plaintiff would be able to manage funds should she be granted benefits. (AR 621). 27 Furthermore, many of Plaintiff’s MSE’s note her normal affect and intact judgement, even 28 whilst experiencing severe depression. (AR 323-31, 495-97, 500-23, 529-96, 616-47, 680- 1|| 716, 761-94, 815-908, 938-1076, 1112-1135, 1192-1372, 1382-1419). The Court finds no 2|| error. 3 V. CONCLUSION 4 Substantial evidence supports the ALJ’s nondisability determination. The ALJ 5 || evaluated the severity of Plaintiff's mental impairments in accordance with 20 C.F.R. § 6|| 404.1520(a)(4)Gi). Furthermore, substantial evidence supports the ALJ’s evaluation of the || medical opinions of record. 8 IT IS THEREFORE ORDERED affirming the November 15, 2018 decision of 9|| the Administrative Law Judge (AR 25-47), as upheld by the Appeals Council on 10 || November 23, 2021. (AR 1). 11 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || accordingly and terminate this case. 13 Dated this 19th day of December, 2022. 14 15 LG 16 17 18 19 20 21 22 23 24 25 26 27 28
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