1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 RAMONA R.,1 Case No. 19-cv-02003-TSH
9 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT
11 COMMISSIONER OF SOCIAL Re: Dkt. Nos. 19, 25 SECURITY, 12 Defendant. 13 14 I. INTRODUCTION 15 Plaintiff Ramona R. brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial 16 review of a final decision of Defendant Commissioner of Social Security that denied Plaintiff’s 17 claim for disability benefits. Pending before the Court are the parties’ cross-motions for summary 18 judgment. ECF Nos. 19 (Pl.’s Mot.), 25 (Def.’s Mot.). Pursuant to Civil Local Rule 16-5, the 19 motions have been submitted on the papers without oral argument. Having reviewed the parties’ 20 positions, the Administrative Record (“AR”), and relevant legal authority, the Court hereby 21 DENIES Plaintiff’s motion and GRANTS Defendant’s cross-motion for the following reasons. 22 II. BACKGROUND 23 A. Age, Education and Work Experience 24 Plaintiff is 55 years old. AR 73. She attended the 12th grade but did not graduate from 25 high school. AR 43. She stopped working in 2013. AR 406. Her date of last insured was March 26
27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 1 31, 2016. AR 73. 2 B. Medical Evidence 3 1. Consultative Psychiatric Evaluation by Dr. Larson 4 On February 21, 2015, J. Larson, Psy. D., completed a comprehensive psychiatric 5 evaluation of Plaintiff. AR 405-10. Plaintiff reported medical issues including a recent 6 concussion, broken nose, memory issues, sinus problems, and chronic pain. AR 406. She 7 reported symptoms of depression and grief, including sadness, tearfulness, feeling overwhelmed, 8 having lethargy, and social anxiety. Id. She reported that she stayed in her home throughout most 9 of the day as she was embarrassed that someone might see her if she went out. AR 407. Dr. 10 Larson observed that Plaintiff’s overall stated mood was depressed. Id. Plaintiff denied ever 11 being hospitalized for psychiatric reasons or ever obtaining outpatient psychiatric services. AR 12 406. 13 Dr. Larson noted that Plaintiff could identify the president and vice president but could not 14 name or even guess any states bordering California. AR 408. Dr. Larson noted that Plaintiff’s 15 concentration was moderately to severely impaired. Id. When asked to count by threes, Plaintiff 16 laughed uncomfortably, tried but failed to do so, tried to correct, and then became distressed 17 before Dr. Larson discontinued the exercise. Id. Dr. Larson noted that Plaintiff “[d]id not 18 necessarily give up easily, but did become frustrated and overwhelmed” and had “no real 19 recognition or response to failure once she was quite overwhelmed.” Id. 20 Dr. Larson concluded that that Plaintiff’s remote memory was moderately impaired, and 21 that her fund of knowledge was moderately impaired. Id. Dr. Larson opined that Plaintiff’s 22 delayed recall was severely impaired as she could not recall any of three objects after a short 23 delay. Id. Dr. Larson opined that Plaintiff’s immediate recall was moderately impaired. Id. Dr. 24 Larson diagnosed Plaintiff with major depressive disorder with recurrent, severe depression. AR 25 409. Dr. Larson provided a “Functional Assessment/Medical Source Statement” on Plaintiff. Dr. 26 Larson assessed that Plaintiff followed instructions, but that her ability to follow through with 27 certain instructions for more complex tasks required some redirection or assistance. Id.. Dr. 1 impaired, and that her ability to perform detailed and complex tasks was moderately to markedly 2 impaired; that Plaintiff’s ability to accept instructions from supervisors was unimpaired, but that 3 her ability to interact with coworkers and the public was markedly impaired; that, based on 4 difficulties in the evaluation, she appeared to struggle even with short interactions; that her ability 5 to perform work activities on a consistent basis without special or additional instruction was 6 markedly impaired; that her ability to maintain regular attendance in the workplace was markedly 7 impaired; that her ability to complete a normal workday or workweek without interruptions from a 8 psychiatric condition was moderately impaired; and that her “ability to deal with the usual 9 stressors encountered in the workplace [was] markedly impaired as evidenced by her relatively 10 rapid deterioration and decompensation during the course of this evaluation.” AR 409-10. Dr. 11 Larson opined, however, that it was “unclear somewhat about [Plaintiff’s] ability to function 12 overall. Again, additional information would assist with this.” AR 409-10. 13 2. Critical Care Consultation by Dr. Rothenberg 14 On April 15, 2015, Peter Rothenberg, M.D., completed a Critical Care Consultation on 15 Plaintiff at Petaluma Valley Hospital, after Plaintiff awakened that morning vomiting blood and 16 was admitted for an upper gastrointestinal bleed. AR 469-71. Plaintiff reported to Dr. Rothenberg 17 that she drank four to five beers daily, but that her last drink was two weeks prior to the 18 consultation. AR 469. Dr. Rothenberg noted Plaintiff had a past medical history of hepatitis C 19 from IV drug use, but did not see any previous admissions for alcohol excess. Id. Plaintiff denied 20 use of any regular medications. Id. A laboratory report from that date noted that Plaintiff suffered 21 from advanced liver fibrosis. AR 440. Plaintiff was administered Protonix, a proton pump 22 inhibitor (antacid)2, and a single dose of octreotide. AR 471. 23 On June 21, 2015, Plaintiff was again evaluated at Petaluma Valley Hospital after feeling 24 very weak and arriving to the emergency room. AR 530. The evaluation noted that Plaintiff was 25 hospitalized on April 15, 2015 due to upper gastrointestinal bleeding secondary to acute alcoholic 26 gastritis. AR 530. It noted that after the April 15, 2015 admission, Plaintiff was advised to pursue 27 1 alcohol cessation, but that Plaintiff admitted she had resumed drinking four to five beers daily. Id. 2 Dr. Rothenberg assessed that Plaintiff had an upper gastrointestinal bleed, anemia due to blood 3 loss, and thrombocytopenia (low platelet count3). AR 591-96. 4 3. Verification of Physical/Mental Incapacity by Dr. Licht 5 On August 28, 2015, N. Licht, M.D., completed a Verification of Physical/Mental 6 Incapacity concerning Plaintiff. AR 601. Licht stated that Plaintiff was unemployable as of May 7 16, 2015. Id. For an impairment, Licht stated that, “alcoholism has led to cirrhosis (liver failure) 8 with resulting disability.” Id. On August 11, 2017, Dr. Licht prepared a letter stating his opinion 9 that, “[d]ue to liver failure with cirrhosis, ascites, and encephalopathy, I do not believe [Plaintiff] 10 is employable.” AR 900. 11 III. SOCIAL SECURITY ADMINISTRATION PROCEEDINGS 12 On October 8, 2014, Plaintiff protectively filed a claim for Disability Insurance Benefits 13 (“DIB”), and on December 1, 2017 protectively filed a Title XVI application for supplemental 14 security income (“SSI”). AR 12, 195, 200. In both applications, Plaintiff alleged disability 15 beginning on July 4, 2014. AR 12, 243. On June 10, 2015, the agency denied Plaintiff’s claims, 16 finding Plaintiff did not qualify for disability benefits. AR 12, 195. Plaintiff subsequently filed a 17 request for reconsideration, which was denied on November 2, 2015. AR 12, 109, 110-15. On 18 November 22, 2015, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 19 AR 116-17. ALJ Serena S. Hong conducted a hearing on September 14, 2017. AR 12. Plaintiff 20 testified in person at the hearing and was represented by D. McCaskell, a non-attorney 21 representative. The ALJ also heard testimony from Vocational Expert V. Rei. 22 A. Plaintiff’s Testimony 23 Plaintiff testified at her administrative hearing that she had problems walking and with her 24 legs. AR 55. She testified that the most she could walk at once was “maybe to my mailbox and 25 back,” “like 60 steps.” AR 55-56. She testified that she could be up standing and walking for 26 “about maybe 20 minutes” before having to lie down. AR 57. She testified that she would 27 1 experience leg swelling, cramps, and spasms. AR 59. And she described her pain level as 10 2 when experiencing leg spasms. Id. 3 B. ALJ’s Decision and Plaintiff’s Appeal 4 On February 22, 2018, the ALJ issued a partially favorable decision finding: Plaintiff was 5 not disabled for DIB through June 30, 2016, the date Plaintiff was last insured, AR 22; but 6 Plaintiff was disabled as of February 13, 2017—but not before that date—for purposes of SSI, AR 7 22-23. This decision became final when the Appeals Council declined to review it. AR 1-4.4 Having exhausted all administrative remedies, Plaintiff commenced this action for judicial review 8 pursuant to 42 U.S.C. § 405(g). On August 30, 2019, Plaintiff filed the present Motion for 9 Summary Judgment. On October 22, 2019, the Commissioner filed a Cross-Motion for Summary 10 Judgment. 11 12 IV. STANDARD OF REVIEW 13 This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 14 U.S.C. § 405(g). An ALJ’s decision to deny benefits must be set aside only when it is “based on 15 legal error or not supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 16 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). Substantial evidence is “such 17 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek 18 v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation and quotation marks omitted). It requires 19 “more than a mere scintilla,” but “less than a preponderance” of the evidence. Id.; Trevizo, 871 20 F.3d at 674. 21 The court “must consider the entire record as a whole, weighing both the evidence that 22 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm 23 simply by isolating a specific quantum of supporting evidence.” Trevizo, 871 F.3d at 675 (citation 24 and quotation marks omitted). However, “[w]here evidence is susceptible to more than one 25 rational interpretation, the ALJ’s decision should be upheld.” Id. (citation and quotation marks 26 omitted). “The ALJ is responsible for determining credibility, resolving conflicts in medical 27 1 testimony, and for resolving ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 2 (citation and quotation marks omitted). 3 V. DISCUSSION 4 A. Framework for Determining Whether a Claimant Is Disabled 5 A claimant is considered “disabled” under the Social Security Act if two requirements are 6 met. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the 7 claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of 8 any medically determinable physical or mental impairment which can be expected to result in 9 death or which has lasted or can be expected to last for a continuous period of not less than 12 10 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe 11 enough that the claimant is unable to perform previous work and cannot, based on age, education, 12 and work experience “engage in any other kind of substantial gainful work which exists in the 13 national economy.” Id. § 423(d)(2)(A). 14 The regulations promulgated by the Commissioner of Social Security provide for a five- 15 step sequential analysis to determine whether a Social Security claimant is disabled.5 20 C.F.R. § 16 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or 17 negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer 18 v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential 19 inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r 20 Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the 21 Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. 22 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 23 The ALJ must first determine whether the claimant is performing “substantial gainful 24 activity,” which would mandate that the claimant be found not disabled regardless of medical 25 condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ 26
27 5 Disability is “the inability to engage in any substantial gainful activity” because of a medical 1 determined Plaintiff had not performed substantial gainful activity since the alleged onset date 2 (“AOD”), July 4, 2014. AR 15. 3 At step two, the ALJ must determine, based on medical findings, whether the claimant has 4 a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 5 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 6 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe impairments 7 since the AOD: kidney disease; alcoholism; hepatitis C; and depression. AR 15. The ALJ 8 determined an established onset date (“EOD”) of February 13, 2017, and found that since the 9 EOD, Plaintiff had the following severe impairments: chronic liver disease; chronic kidney 10 disease; alcoholism; hepatitis C; depression; and encephalopathy. AR 15. 11 If the ALJ determines that the claimant has a severe impairment, she proceeds to the third 12 step and must determine whether the claimant has an impairment or combination of impairments 13 that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the “Listing of 14 Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s impairment either meets the listed 15 criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is 16 conclusively presumed to be disabled, without considering age, education and work experience. 17 Id. § 404.1520(d). Here, the ALJ determined that at the AOD, Plaintiff did not have an 18 impairment or combination of impairments that met any listing. AR 15-17. 19 Before proceeding to step four, an ALJ must determine the claimant’s Residual Function 20 Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work 21 setting, despite mental or physical limitations caused by impairments or related symptoms. Id. § 22 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all the claimant’s 23 medically determinable impairments, including the medically determinable impairments that are 24 non-severe. Id. § 404.1545(e). 25 In the RFC assessment, the ALJ assesses the claimant’s physical and mental abilities, as 26 well as other abilities affected by the claimant’s impairments. Id. §§ 404.1545(b)-(d), 416.945(b)- 27 (d). With respect to a claimant’s physical abilities, “[a] limited ability to perform certain physical 1 other physical functions (including manipulative or postural functions, such as reaching, handling, 2 stooping or crouching), may reduce [a claimant’s] ability to do past work and other work.” Id. §§ 3 404.1545(b), 416.945(b). With respect to a claimant’s mental abilities, “[a] limited ability to carry 4 out certain mental activities, such as limitations in understanding, remembering, and carrying out 5 instructions, and in responding appropriately to supervision, coworkers, and work pressures in a 6 work setting, may reduce [the claimant’s] ability to do past work and other work.” Id. §§ 7 404.1545(c), 416.945(c). 8 Here, the ALJ determined that at the AOD, Plaintiff had the RFC to perform light work as 9 defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that Plaintiff could not climb ladders, 10 ropes, and scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; and had to avoid 11 concentrated exposure to hazards such as unprotected heights and moving machinery. AR 17. 12 The ALJ found that Plaintiff was limited to simple, routine tasks, and that she was limited to 13 occasional public contact and superficial interaction with co-workers and supervisors. AR 17. 14 The ALJ determined that at the EOD, Plaintiff had the RFC to perform sedentary work as defined 15 in 20 C.F.R. § 404.1567(a) and 416.967(a), except that Plaintiff could not climb ladders, ropes, 16 and scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; and had to avoid 17 concentrated exposure to hazards such as unprotected heights and moving machinery. The ALJ 18 found that Plaintiff was limited to simple, routine tasks, and that she was limited to occasional 19 public contact and superficial interaction with co-workers and supervisors. AR 20. 20 Once the ALJ has determined a claimant’s RFC, the fourth step of the evaluation process 21 requires that the ALJ determine whether the RFC is sufficient to perform past relevant work. 20 22 C.F.R. § 404.1520(a)(4)(iv), (f). Past relevant work is work performed within the past 15 years 23 that was substantial gainful activity, and that lasted long enough for the claimant to learn to do it. 24 Id. § 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not 25 disabled. Id. § 404.1520(a)(4)(iv). Here, the ALJ determined that prior to the EOD, Plaintiff 26 could perform past relevant work as a production worker, Dictionary of Occupation Titles 27 706.687-010, light, Specific Vocation Preparation 2. AR 21. The ALJ found that work did not 1 found that beginning on the EOD, Plaintiff’s RFC prevented Plaintiff from being able to perform 2 past relevant work. Id. The ALJ found that Plaintiff did not have work skills that were 3 transferrable to other occupations within her RFC. Id. 4 Based on her findings, the ALJ found that Plaintiff was not disabled under §§ 216(i) and 5 223(d) (DIB) through June 30, 2016, the date last insured, but that Plaintiff had been disabled 6 under § 1614(a)(3)(A) (SSI) since the EOD. AR 22. 7 B. Plaintiff’s Arguments 8 Plaintiff argues that the ALJ failed to properly evaluate her mental impairment as required 9 by 20 C.F.R. § 404.1520. Plaintiff also argues that the ALJ’s decision was ambiguous, 10 contradictory and therefore unreviewable. More specifically, Plaintiff argues that the ALJ does 11 not explain how she found Plaintiff could perform light work prior to February 13, 2017 (the 12 EOD) but be limited to sedentary work after, and she takes issue with the ALJ having given both 13 great weight and little weight to Dr. Licht’s opinions. 14 1. Plaintiff’s Mental Impairment 15 Plaintiff maintains that the ALJ failed to properly evaluate Plaintiff’s mental impairment. 16 Plaintiff argues that the ALJ independently determined Plaintiff’s mental health and that her 17 determination that Plaintiff suffered from no disabling mental health limitations was not supported 18 by substantial evidence. In support of this argument, Plaintiff points to Dr. Larson’s findings that 19 Plaintiff suffered from marked impairment in multiple areas of mental functioning, and points to 20 evidence that Dr. Licht treated Plaintiff for depression and that Plaintiff was prescribed citalopram 21 (an anti-depressant6) in 2011. See AR 365-67. 22 a. Legal Standard 23 At step three in the sequential process, an ALJ must consider whether a claimant’s 24 conditions meet or equal any of the impairments outlined in the Listing of Impairments. 20 C.F.R. 25 § 404.1520(a)(4)(iii). The listing describes impairments that “would prevent an adult, regardless 26 of his age, education, or work experience, from performing any gainful activity, not just 27 1 ‘substantial gainful activity.’” Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (emphasis in original). 2 If a claimant’s “impairment meets or equals one of the listed impairments, the claimant is 3 conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987); see also 20 4 C.F.R. § 404.1520(d). The claimant bears the burden of establishing a prima facie case of 5 disability under the listings. See Thomas, 278 F.3d at 955; 20 C.F.R. § 404.1520(a)(4)(iii). 6 An impairment meets a listing when all the medical criteria required of that listing are 7 satisfied. 20 C.F.R. § 404.1525(c)(3); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (“To 8 meet a listed impairment, a claimant must establish that he or she meets each characteristic of a 9 listed impairment relevant to his or her claim.”); Sullivan, 493 U.S. at 530 (“For a claimant to 10 show that his impairment matches a listing, it must meet all of the specified medical criteria. An 11 impairment that manifests only some of those criteria, no matter how severely, does not qualify.”). 12 “To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings 13 ‘at least equal in severity and duration’ to the characteristics of a relevant listed impairment. . . .” 14 Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526(a)). 15 When determining whether a claimant is disabled, the ALJ must consider each medical 16 opinion in the record together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); 17 Algazzali v. Colvin, 2016 WL 394009, at *6 (N.D. Cal. Feb. 1, 2016). In deciding how much 18 weight to give to any medical opinion, the ALJ considers the length of the treatment relationship 19 and the frequency of examination. 20 C.F.R. § 416.927(c)(2). “Generally, the longer a treating 20 source has treated you and the more times you have been seen by a treating source, the more 21 weight we will give to the source’s medical opinion.” Id. The ALJ considers also the extent to 22 which the medical source presents relevant evidence to support a medical opinion. Id. § 23 416.927(c)(3). Generally, more weight will be given to an opinion that is supported by medical 24 signs and laboratory findings, and the degree to which the opinion provides supporting 25 explanations and is consistent with the whole record. Id. § 416.927(c)(3)-(4). 26 Lastly, in conjunction with the relevant regulations, the Ninth Circuit “developed standards 27 that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. 1 among the opinions of three types of physicians: (1) those who treat the claimant (treating 2 physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) 3 those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 4 81 F.3d 821, 830 (9th Cir. 1995). Where an examining doctor’s opinion is contradicted by another 5 opinion, an ALJ may reject it by providing specific and legitimate reasons that are supported by 6 substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “[W]hen 7 evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that 8 opinion is brief, conclusory, and inadequately supported by clinical findings.” Id. While a 9 physician’s opinion is afforded weight, it is “not binding on an ALJ with respect to the existence 10 of an impairment or the ultimate determination of disability.” McLeod v. Astrue, 640 F.3d 881, 11 884–85 (9th Cir. 2011). 12 b. Analysis 13 Plaintiff argues that she meets Adult Listing 12.04 for depression (A) and (B) and that the 14 ALJ erred in finding that the record did not support disabling mental health limitations. The ALJ 15 found that the severity of Plaintiff’s mental impairments, considered singly and in combination, 16 did not meet or medically equal the criteria of listing 12.04—depressive, bipolar or related 17 disorders. AR 16. 18 Concerning Dr. Larson’s evaluation, Plaintiff points only to Dr. Larson’s conclusions that 19 Plaintiff had impairment in broad areas of mental functioning. AR 409-410. She does not point to 20 any evidence in the evaluation or the record more broadly to support those conclusions. 21 In her decision, the ALJ addressed Dr. Larson’s evaluation and opinions, but found that the 22 body of evidence supported a finding of no more than moderate or mild limitations in broad areas 23 of mental functioning. She noted that although Dr. Larson observed that Plaintiff had a depressed 24 mood and affect, and impaired concentration, Dr. Larson also noted Plaintiff’s symptoms appeared 25 treatable with intervention. AR 18 (citing AR 407-09). She noted that nonetheless Plaintiff was 26 not under the care of a mental health provider and was not prescribed medication to manage her 27 mood. AR 18. The ALJ noted also that treatment records overall did not note inappropriate 1 influence of alcohol, she was noted to be pleasant and cooperative. AR 19 (citing AR 929 2 (“[Plaintiff] had obvious alcohol on her breath but was alert and cooperative when I examined 3 her.”). 4 The ALJ noted Dr. Larson’s opinion that Plaintiff’s “ability to persist even at simple and 5 repetitive tasks is moderately impaired,” and Dr. Larson’s observation that Plaintiff’s ability to 6 interact with others was markedly impaired. Id. However, she gave only partial weight to that 7 opinion. Id. She noted that Plaintiff had not required impatient care and was not under the care of 8 a mental health professional. AR 16, 19. She noted that Dr. Larson’s opinion was based on a one- 9 time examination of Plaintiff and based on largely on Plaintiff’s presentation on that day and time, 10 and she opined that Dr. Larson’s opinion was not necessarily reflective of Plaintiff’s mental health 11 overall. AR 19-20. And indeed, Dr. Larson opined that it was “unclear somewhat about 12 [Plaintiff’s] ability to function overall. Again, additional information would assist with this.” AR 13 409-10. The ALJ noted that although Dr. Larson found that Plaintiff’s fund of knowledge was 14 moderately to severely impaired, Plaintiff was able during the consultation to recall her medical 15 and work history and answer questions appropriately. AR 16. Finally, the ALJ noted that Dr. 16 Larson found that Plaintiff had difficulty with concentration and memory tasks during the 17 consultation, and that Dr. Larson described Plaintiff’s concentration as moderately to severely 18 impaired and that Plaintiff became frustrated and overwhelmed with tasks, but she noted that 19 Plaintiff was able to follow along during the administrative hearing and recall medical and work 20 history. AR 16-17. The ALJ also concluded that none of Plaintiff’s medical records reported 21 treatment consistent with the degree of limitation provided in Dr. Larson’s opinion, AR 19; 22 Plaintiff has not pointed to any that do. 23 Finally, the ALJ accorded great weight to state agency psychological consultants’ 24 opinions, AR 20, one signed March 7, 2015 by S. Sen, M.D., and another signed November 1, 25 2015 by P. Hawkins, Ph.D., AR 79, 95. Those opinions found that Plaintiff had only moderate 26 restriction of activities of daily living, and moderate difficulties in maintaining social functioning 27 and concentration, persistence or pace. AR 79. The ALJ found those determinations to be 1 non-examining medical professional when that evidence is consistent with the record. Whitten v. 2 Colvin, 642 Fed. Appx. 710, 711-12 (9th Cir. 2016) (ALJ reasonably determined that opinions by 3 examining psychologists as to severity of mental health limitations were contradicted by 4 longitudinal treatment records, claimant’s responses on his mental status examinations, his 5 activities of daily living, and opinion of state agency non-examining psychologist, whose 6 conclusion was consistent with other evidence in the record) (citing Tommasetti v. Astrue, 533 7 F.3d 1035, 1041 (9th Cir. 2008) (noting that an “incongruity” between a doctor’s opinion and 8 medical records may suffice as a specific and legitimate reason for rejecting that doctor’s 9 opinion)); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (a contrary opinion of a non- 10 examining medical expert may constitute substantial evidence when it is consistent with other 11 independent evidence in the record). The ALJ found that the record did not support disabling 12 mental health impairments. AR 19. 13 The Court finds that it was not error for the ALJ to discount Dr. Larson’s findings that 14 Plaintiff suffered from marked impairment in broad areas of mental functioning. The ALJ found 15 that Dr. Larson’s findings were not supported by evidence in the evaluation itself, and the ALJ 16 pointed to specific evidence in the evaluation that she opined contradicted Dr. Larson’s findings. 17 The ALJ pointed to other evidence in the record, opinions by state agency psychological 18 consultants that Plaintiff suffered from only moderate limitations. The ALJ found those opinions 19 were consistent with the broader record. Plaintiff, for her part, points to no specific evidence in 20 the record supporting Dr. Larson’s conclusions that she was markedly impaired in areas of mental 21 functioning. An ALJ need not accept a medical opinion that is brief, conclusory, and inadequately 22 supported by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Finally, 23 the ALJ also noted the length of the relationship between Dr. Larson and Plaintiff, and the fact that 24 Dr. Larson’s opinion was based on one examination of Plaintiff on one day. A physician’s 25 opinion may be discounted where it is based on only a single visit with the claimant. Acord v. 26 Colvin, 571 Fed. Appx. 522, 522 (9th Cir. 2014). Substantial evidence supports the ALJ’s 27 discounting Dr. Larson’s opinion that Plaintiff suffered from severe or marked impairment. 1 impairment, Plaintiff asserts that Dr. Licht treats her depression and that she is prescribed 2 citalopram, an anti-depressant. Firstly, the ALJ did not discount that Plaintiff had depression (she 3 noted that Plaintiff “endorsed symptoms of depression,” AR 18), but rather found that her 4 depression did not meet the severity to qualify as disabled. Regarding the citalopram, Plaintiff 5 points to progress notes from Petaluma Health Center from 2011. See AR 365-67. The notes 6 reflect that Plaintiff was prescribed citalopram hydrobromide in August 2011 for some duration of 7 time. AR 367. However, more recent notes and other evidence does not show Plaintiff prescribed 8 that medication. E.g., AR 363 (note from March 13, 2012), AR 361 (note from March 21, 2012), 9 AR 359 (note from May 25, 2012), AR 347 (note from July 18, 2014), AR 936 (Emergency 10 Department Report from May 31, 2016). And notes from 2012 reflect that Plaintiff did not report 11 feeling depressed or hopeless, or a loss of “interest or pleasure in doing things.” E.g., AR 361, 12 363. Similarly, although the progress note Plaintiff references shows that she was assessed with 13 depression by Dr. Licht in September 2011, more recent notes by Petaluma Health Center, 14 including notes completed by Dr. Licht, indicate only intermittent assessments of depression. 15 E.g., AR 363 (March 13, 2012 note by Dr. Licht, no depression); AR 359 (May 25, 2012 note by 16 Dr. Licht, no depression); AR 356 (July 6, 2012 note by Dr. Licht, no depression); AR 353 17 (October 18, 2012 note by Dr. Maria G. Ochoa, no depression); AR 351 (April 18, 2014 note by 18 Dr. Joseph Eichenseher, no depression); AR 347 (July 18, 2014 note by Dr. Licht, depression). 19 Also, Petaluma Valley Hospital medical records from July 2017, the most recent in the record, do 20 not show Plaintiff actively prescribed any anti-depressant medications, which prescriptions would 21 be consistent with treatment for depression. E.g., AR 789 (July 19, 2017 ED Summary Report); 22 AR 798 (July 19, 2017 EDM Patient Record); AR 817 (July 7, 2017 Emergency Department 23 Report). And lastly, while Plaintiff asserts that Dr. Licht treats her for depression, his August 11, 24 2017 letter opining that she is disabled asserts that she suffers from liver failure, ascites, and 25 encephalopathy, but does not indicate depression. AR 900. Thus, while Plaintiff may have been 26 prescribed medication for treating depression at some point in the past, she has pointed to no 27 concrete evidence that she continues to be under the care of a mental health provider, including 1 not suffer from disabling mental health limitations. 2 The Court finds substantial evidence supporting the ALJ’s findings regarding Plaintiff’s 3 mental impairment. 4 2. The Consistency of the Findings 5 a. The Consistency of the ALJ’s RFC Findings 6 Plaintiff argues that the ALJ does not explain her findings that Plaintiff could perform light 7 work prior to 2017 but be limited to sedentary work after February 13, 2017. The ALJ’s decision 8 reveals otherwise. 9 In explaining her finding that Plaintiff had the RFC to perform light work before the EOD, 10 the ALJ noted Plaintiff’s testimony that she had difficulty walking due to problems with her legs, 11 and that she experienced pain and swelling and had to elevate her legs during the day. AR 17-18. 12 However, the ALJ found that the evidence did not support Plaintiff’s statements about the 13 intensity, persistence, or limiting effects of symptoms. AR 18. The ALJ noted that Plaintiff had 14 had a series of emergency room visits and hospitalizations due to flank pain and hematemesis, but 15 also that the record reflected that Plaintiff’s gastrointestinal problems were attributed to ongoing 16 use of alcohol. AR 18. She noted that Plaintiff continued to drink alcohol. AR 18 (citing AR 17 347, 467, 472). The ALJ noted that physical examinations showed no swelling in Plaintiff’s 18 extremities. Id. (citing AR 368). She noted that a medical consultative examination in May 2015 19 reflected findings within normal limits, and that an examination of Plaintiff’s abdomen produced 20 normal results. Id. (citing AR 416). She noted that there was no evidence of swelling or effusion 21 in Plaintiff’s extremities, and that Plaintiff had full motor strength in upper and lower extremities. 22 Id. 18 (citing AR 416-18); see also AR 926 (Emergency Department Report from November 18, 23 2016 noting: “Extremities: full range of motion, normal appearance, no tenderness”). She noted 24 treatment records from July 2015 which stated that if Plaintiff maintained sobriety, she would 25 qualify for hepatitis C treatment, see AR 608, but that Plaintiff testified that she had not received 26 any treatment. AR 18; see AR 63. 27 In explaining her conclusion that Plaintiff had the RFC to perform only sedentary work as 1 altered mental status and was diagnosed with encephalopathy.” AR 20 (citing AR 625, 900). The 2 ALJ noted that Dr. Licht provided an August 11, 2017 opinion that Plaintiff was unemployable 3 due to complications from liver failure with cirrhosis, ascites, and encephalopathy. AR 21 (citing 4 AR 900). The ALJ gave great weight to this opinion, noting that encephalopathy had not been 5 documented in the period prior to February 13, 2017, and finding that the opinion was thus 6 consistent with a worsening of Plaintiff’s conditions around that time. Id. The ALJ also 7 referenced an Emergency Department Report from Petaluma Valley Hospital on May 5, 2017, 8 which noted that Plaintiff had end stage liver disease. AR 20; see AR 849-50. That report reflects 9 also that Plaintiff was hospitalized from February 15 to 17, 2017 for “weakness and functional 10 decline related to chronic liver failure.” AR 849. It also reflects, and the ALJ noted, that Plaintiff 11 was discharged to rehabilitation services for continued rehabilitation. AR 849, 20. The ALJ 12 further noted that in February 2017, Plaintiff also had ascites which required paracentesis, and 13 portal venous hypertension. AR 20 (citing AR 652, 1059). 14 Plaintiff counters that she had kidney disease in 2015 as well as at the EOD. She points to 15 a laboratory report from September 13, 2015. However, that laboratory report is consistent with 16 the ALJ’s finding. See AR 435. It suggested only “normal to mildly reduced kidney function.” 17 Also—like with Plaintiff’s depression—the ALJ did not find that Plaintiff did not have kidney 18 disease before February 13, 2017; she found Plaintiff had chronic liver and kidney disease since at 19 least July 4, 2014. Yet she found the impairments did not meet or medically equal a severity to 20 warrant a finding of disability. More precisely, she found that “[n]o treating or examining 21 physician has mentioned findings equivalent in severity to the criteria of any listed physical 22 impairment, nor does the evidence show medical findings that are the same or equivalent to those 23 of any listed impairment of the Listing of Impairments, particularly listings 5.02-gastrointenstial 24 hemorrhaging from any cause, requiring blood transfusion, 5.05-chronic liver disease, 6.05- 25 chronic kidney disease, with impairment of kidney function.” AR 15-16. As evidence she noted 26 that, concerning 5.02, Plaintiff had not required three blood transfusions. She noted that, 27 concerning 5.05, Plaintiff’s bleeding had been attributed to alcohol gastritis, that Plaintiff had no 1 not had chronic liver disease scores of 22 or greater, and that Plaintiff’s kidney disease had not 2 resulted in reduced glomerular filtration on at least two occasions 90 days apart during a 3 consecutive 12-month period. 4 Finally, Plaintiff points to a January 1, 2016 observation report completed by Dr. Victor 5 Sanders as evidence that she had ascites at that time. However, that report does not note ascites. 6 AR 597-99. It does however note, “abdomen: soft, nondistended, nontender, with normoactive 7 bowel sounds. Negative for peritoneal signs,” and, “pulmonary: clear to [sic] auscultation 8 bilaterally. Negative for rales, rhonchi, or wheezing.” AR 598. 9 The Court finds that the ALJ sufficiently explained her reasons for finding Plaintiff could 10 perform light work prior to the EOD but only sedentary work after, and that the ALJ’s findings are 11 supported by substantial evidence. 12 b. The ALJ’s Treatment of Dr. Licht’s Medical Opinions 13 Plaintiff also takes issue with the fact that the ALJ gave great weight to Dr. Licht’s opinion 14 in 2017, but only little weight to Dr. Light’s opinion in 2015. Dr. Light opined that Plaintiff was 15 unemployable as of May 16, 2015, due to cirrhosis brought on by alcoholism. The ALJ gave this 16 opinion little weight. Plaintiff argues that the ALJ did not provide clear and convincing reasoning 17 for why she then gave great weight to Dr. Licht’s 2017 opinion that Plaintiff is unemployable. 18 As a preliminary point, the ALJ was not required to provide clear and convincing 19 reasoning for why she declined to accept Dr. Licht’s opinions as to Plaintiff’s disability status. A 20 “finding of disability [is] an issue properly reserved to the ALJ.” Sarkiss v. Colvin, 623 Fed. 21 Appx. 329, 330 (9th Cir. 2015) (citing 20 C.F.R. § 404.1527(d)(1) (“We are responsible for 22 making the determination or decision about whether you meet the statutory definition of 23 disability.”)); 20 C.F.R. § 404.1527(d) (“Opinions on some issues, such as [an opinion as to 24 disability], are not medical opinions . . . but are, instead, opinions on issues reserved to the 25 Commissioner because they are administrative findings that are dispositive of a case; i.e., that 26 would direct the determination or decision of disability.”); SSR 96-5p, 1996 WL 374183 (July 2, 27 1996) (medical source opinion about whether an individual is unable to work, even when offered 1 Colvin, 2016 WL 164956, at *15 (E.D. Cal. Jan 14, 2016) (ALJ properly gave “minimal weight” 2 to treating physician’s opinion that claimant was unemployable; determination of whether a 3 claimant is disabled is reserved for Commissioner); see Johnson v. Shalala, 60 F.3d 1428, 1432 4 (9th Cir. 1995) (affirming ALJ’s decision to reject treating physician’s assessment when it was 5 conclusory and included no assessment of the claimant's functional capacity). A statement by a 6 medical source, such as a treating physician, that a claimant is “disabled” or “unable to work” does 7 not mean that the ALJ must or will determine the claimant is disabled. The ALJ was not required 8 to accept Dr. Licht’s opinion in 2015 that Plaintiff was unemployable; the ALJ was tasked with 9 making that decision on behalf of the Commissioner. 10 Plaintiff does not suggest that the ALJ discounted Dr. Licht’s medical opinion, i.e., Dr. 11 Licht’s opinion about Plaintiff’s impairments. Generally, an ALJ gives more weight to medical 12 opinions of a claimant’s treating physician; and if an ALJ finds that a treating source’s medical 13 opinion is well-supported and not inconsistent with other substantial evidence, the ALJ will give it 14 controlling weight. 20 C.F.R. § 404.1527(c)(2). Here the ALJ’s findings are consistent with the 15 Dr. Licht’s opinions to the extent they were medical opinions (as opposed to opinions on disability 16 status). Dr. Licht opined on August 28, 2015 that Plaintiff suffered from cirrhosis due to 17 alcoholism, AR 601, and the ALJ found that Plaintiff suffered from chronic liver disease. The 18 ALJ found, however, that before the EOD Plaintiff’s physical impairments, including her liver 19 disease, did not meet any listing of Appendix 1. AR 16. She determined that Plaintiff was not 20 disabled based on her chronic liver disease. Similarly, the ALJ gave full weight to Dr. Licht’s 21 August 11, 2017 medical opinion that Plaintiff had liver failure with cirrhosis, ascites, and 22 encephalopathy. AR 21; see AR 900. The ALJ committed no reversable error vis-à-vis Dr. 23 Licht’s opinions. 24 Moreover, substantial evidence supports the ALJ’s finding of February 13, 2017 as an 25 EOD. The evidence reflects that as of that date, Plaintiff had end stage renal disease and ascites, 26 and received an IR paracentesis. AR 625-31. She had been hospitalized for functional decline 27 related to chronic liver failure, and was subsequently discharged to a care facility for continued 1 substantial evidence supporting the ALJ’s finding of a worsening of Plaintiff conditions, along 2 || with altered mental status, sufficient to support a changed status. 3 VI. CONCLUSION 4 For the reasons stated above, the Court DENIES Plaintiff’s motion and GRANTS 5 Defendant’s cross-motion. The Court shall enter a separate judgment, after which the Clerk of 6 || Court shall terminate the case. 7 IT IS SO ORDERED. 8 9 Dated: January 7, 2020 10 LU \ - THOMAS S. HIXSON United States Magistrate Judge 12
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