(SS) Gomez v. Commissioner of Social Security
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SILHOUETTE GOMEZ, No. 1:18-cv-00881-GSA 11 Plaintiff, 12 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF 13 ANDREW SAUL,1 Commissioner of COMMISSIONER OF SOCIAL SECURITY Social Security, AND AGAINST PLAINTIFF 14
15 Defendant.
17 I. Introduction 18 Plaintiff Silhouette Gomez (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 20 disability insurance benefits pursuant to Title II and supplemental security income pursuant to 21 Title XVI of the Social Security Act. The matter is currently before the Court on the parties’ 22 briefs which were submitted without oral argument to the Honorable Gary S. Austin, United 23 States Magistrate Judge.2 See Docs. 21 and 22. Having reviewed the record as a whole, the 24 Court finds that the ALJ’s decision is supported by substantial evidence and applicable law. 25 Accordingly, Plaintiff’s appeal is denied. 26 1 Commissioner of Social Security Andrew Saul is substituted as Defendant pursuant to Fed. R. Civ. P. 25(d). See 27 also Section 205(g) of the Social Security Act, 42 USC 405(g) (action survives regardless of any change in the person occupying the office of Commissioner of Social Security). 28 2 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 7 and 8. 1 II. Procedural Background 2 On January 19, 2013, Plaintiff filed applications for disability insurance benefits and 3 supplemental security income alleging disability beginning December 31, 2012. AR 123, 134, 4 175. The Commissioner denied the applications initially on May 23, 2013, and upon 5 reconsideration on November 26, 2013. AR 133, 144, 157, 168. On November 30, 2013, 6 Plaintiff filed a request for a hearing before an Administrative Law Judge. AR 175. 7 Administrative Law Judge Cynthia Floyd presided over an administrative hearing on July 8 29, 2015. AR 68-122. Plaintiff appeared and was represented by an attorney. AR 68. Impartial 9 vocational expert Robin Genereax also testified. AR 68. 10 On September 10, 2015, ALJ Floyd granted Plaintiff’s application. AR 175-82. Because 11 Plaintiff was undergoing treatment and her condition was expected to improve, ALJ Floyd 12 recommended a continuing disability review in twelve months. AR 182. 13 On November 5, 2015, the Appeals Council notified the parties of its intent to review the 14 hearing decision. AR 282-89. On February 19, 2016, the Appeals Council vacated the hearing 15 decision and remanded the case for further proceedings. AR 185-91. 16 On October 31, 2017, ALJ Joyce Frost-Wolf presided over the administrative hearing of 17 the remand. AR 38-67. Plaintiff appeared and was represented by an attorney. AR 38. Impartial 18 vocational expert Stephen B. Schmidt also testified. AR 38. 19 On December 6, 2017, ALJ Frost-Wolf issued a hearing decision denying Plaintiff’s 20 applications. AR 15-28. The Appeals Council denied review on April 23, 2018. AR 1-4. On 21 June 27, 2018, Plaintiff filed a complaint in this Court. Doc. 1. 22 III. Factual Background 23 A. Plaintiff’s Testimony 24 1. July 2015 25 At the first agency hearing on July 29, 2015, Plaintiff (born October 28, 1976) was living 26 27 28 1 with her partner3 and her sons aged 3, 4, 8 and 17 years.4 AR 72. Although Plaintiff had a 2 driver’s license, driving made her anxious and she preferred to have her partner or her teen-aged 3 son drive her or run errands for her. AR 75-76. 4 Plaintiff was approximately five foot, three inches tall and weighed 230 pounds. AR 73. 5 Although her weight had fallen from 267 pounds following lap band surgery, Plaintiff was still 6 obese and still had type 2 diabetes and high cholesterol. AR 73-74. She experienced chronic 7 migraines that lasted for two or three days, and occurred three to five times per month. AR 90. 8 On three occasions, Plaintiff sought emergency room treatment for her migraines receiving 9 morphine shots before returning home to rest in a dark room. AR 93. Plaintiff also had chronic 10 back problems and sciatica that shot pain down her right leg and sometimes made her unable to 11 walk. AR 90. Her right arm tingled. AR 90. She had high blood pressure, severe depression, 12 asthma and anxiety. AR 91, 95-96, 104. Plaintiff reported suicidal ideation and multiple suicide 13 attempts, which she attributed to her life experiences which included being sexually assaulted as a 14 child. AR 104-05. 15 Plaintiff drank from four to eight glasses of wine daily to “make [her] body feel a little 16 loose.” AR 109-10. She did not know if her drinking affected her mentally. AR 110. Plaintiff 17 had received no treatment for her alcohol use. AR 110. Plaintiff thought that if she stopped 18 drinking she would be tense and in pain. AR 111. She stated, “I don’t see myself stopping 19 drinking.” AR 111. 20 For about three months in 2013, Plaintiff did office work and fundraising for her mother’s 21 business, Emmanuel Outreach Ministries. AR 79-80. Plaintiff’s mother, who owned the church 22 and was its pastor, permitted Plaintiff to work flexible hours when she felt well. AR 79-80. 23 Plaintiff reported self-employment wages received from the church for many years. AR 82, 88. 24 Before becoming ill in 2012, Plaintiff worked for Merced Community College doing 25 filing and data entry in the billing department. AR 81-82. For approximately five years she 26 3 On various occasions, Plaintiff referred to the man with whom she lived as her partner, boyfriend and husband, and 27 referred to herself as single or married. There is no apparent pattern to her characterization of her relationship status nor can the Court be certain that all such references concern the same individual. 28 4 Plaintiff had a fifth son who was not living at home on the hearing date. See AR 368, 700, 746. 1 provided IHSS in-home care for her mother, who was then seriously ill. AR 82-83. She also 2 worked for recruitment services companies and sold tickets for the ferry from Long Beach to 3 Catalina Island. AR 83-84. 4 Plaintiff testified that she had attended special education classes throughout school due to 5 a learning disability (catatonia). AR 77. She had a business degree from Merced Community 6 College. AR 77. Plaintiff had difficulty concentrating, reading and doing math. AR 77-78. 7 2. October 2017 8 Plaintiff’s testimony at the October 2017 remand hearing was generally consistent with 9 her testimony in July 2015. Plaintiff’s attorney emphasized that Plaintiff’s condition had 10 worsened in the interim. AR 42-43. Specifically, Plaintiff’s physicians had prescribed lithium, 11 identified mild degenerative changes of Plaintiff’s spine and referred her for pain management. 12 AR 42-43. Plaintiff needed a cane or a walker to get around. AR 54. She wore a back brace and 13 used a TENS unit daily. AR 55. Cortisone shots relieved but did not eliminate her back pain. 14 AR 55-56. Her medications caused memory loss. AR 53-54. 15 With the help of her cane, Plaintiff could stand in one place for five minutes. AR 59. She 16 could sit comfortably for about 30 minutes. AR 60. Although Plaintiff could not walk a block, 17 she testified that she needed always to be in motion. AR 60-61. 18 Plaintiff’s debilitating migraines continued. AR 62. She needed to lie down when she 19 took her medications. AR 62. Her depression caused a “breakdown” at least once a week. AR 20 61. When Plaintiff experienced a breakdown she isolated herself, cried, began suicidal ideation 21 and needed to call her therapist or the suicide prevention hotline. AR 61. 22 Plaintiff testified that because of her migraines and intense pain she was no longer able to 23 work at Emmanuel Outreach Ministries. or to perform any household chores. AR 49, 51.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SILHOUETTE GOMEZ, No. 1:18-cv-00881-GSA 11 Plaintiff, 12 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF 13 ANDREW SAUL,1 Commissioner of COMMISSIONER OF SOCIAL SECURITY Social Security, AND AGAINST PLAINTIFF 14
15 Defendant.
17 I. Introduction 18 Plaintiff Silhouette Gomez (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 20 disability insurance benefits pursuant to Title II and supplemental security income pursuant to 21 Title XVI of the Social Security Act. The matter is currently before the Court on the parties’ 22 briefs which were submitted without oral argument to the Honorable Gary S. Austin, United 23 States Magistrate Judge.2 See Docs. 21 and 22. Having reviewed the record as a whole, the 24 Court finds that the ALJ’s decision is supported by substantial evidence and applicable law. 25 Accordingly, Plaintiff’s appeal is denied. 26 1 Commissioner of Social Security Andrew Saul is substituted as Defendant pursuant to Fed. R. Civ. P. 25(d). See 27 also Section 205(g) of the Social Security Act, 42 USC 405(g) (action survives regardless of any change in the person occupying the office of Commissioner of Social Security). 28 2 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 7 and 8. 1 II. Procedural Background 2 On January 19, 2013, Plaintiff filed applications for disability insurance benefits and 3 supplemental security income alleging disability beginning December 31, 2012. AR 123, 134, 4 175. The Commissioner denied the applications initially on May 23, 2013, and upon 5 reconsideration on November 26, 2013. AR 133, 144, 157, 168. On November 30, 2013, 6 Plaintiff filed a request for a hearing before an Administrative Law Judge. AR 175. 7 Administrative Law Judge Cynthia Floyd presided over an administrative hearing on July 8 29, 2015. AR 68-122. Plaintiff appeared and was represented by an attorney. AR 68. Impartial 9 vocational expert Robin Genereax also testified. AR 68. 10 On September 10, 2015, ALJ Floyd granted Plaintiff’s application. AR 175-82. Because 11 Plaintiff was undergoing treatment and her condition was expected to improve, ALJ Floyd 12 recommended a continuing disability review in twelve months. AR 182. 13 On November 5, 2015, the Appeals Council notified the parties of its intent to review the 14 hearing decision. AR 282-89. On February 19, 2016, the Appeals Council vacated the hearing 15 decision and remanded the case for further proceedings. AR 185-91. 16 On October 31, 2017, ALJ Joyce Frost-Wolf presided over the administrative hearing of 17 the remand. AR 38-67. Plaintiff appeared and was represented by an attorney. AR 38. Impartial 18 vocational expert Stephen B. Schmidt also testified. AR 38. 19 On December 6, 2017, ALJ Frost-Wolf issued a hearing decision denying Plaintiff’s 20 applications. AR 15-28. The Appeals Council denied review on April 23, 2018. AR 1-4. On 21 June 27, 2018, Plaintiff filed a complaint in this Court. Doc. 1. 22 III. Factual Background 23 A. Plaintiff’s Testimony 24 1. July 2015 25 At the first agency hearing on July 29, 2015, Plaintiff (born October 28, 1976) was living 26 27 28 1 with her partner3 and her sons aged 3, 4, 8 and 17 years.4 AR 72. Although Plaintiff had a 2 driver’s license, driving made her anxious and she preferred to have her partner or her teen-aged 3 son drive her or run errands for her. AR 75-76. 4 Plaintiff was approximately five foot, three inches tall and weighed 230 pounds. AR 73. 5 Although her weight had fallen from 267 pounds following lap band surgery, Plaintiff was still 6 obese and still had type 2 diabetes and high cholesterol. AR 73-74. She experienced chronic 7 migraines that lasted for two or three days, and occurred three to five times per month. AR 90. 8 On three occasions, Plaintiff sought emergency room treatment for her migraines receiving 9 morphine shots before returning home to rest in a dark room. AR 93. Plaintiff also had chronic 10 back problems and sciatica that shot pain down her right leg and sometimes made her unable to 11 walk. AR 90. Her right arm tingled. AR 90. She had high blood pressure, severe depression, 12 asthma and anxiety. AR 91, 95-96, 104. Plaintiff reported suicidal ideation and multiple suicide 13 attempts, which she attributed to her life experiences which included being sexually assaulted as a 14 child. AR 104-05. 15 Plaintiff drank from four to eight glasses of wine daily to “make [her] body feel a little 16 loose.” AR 109-10. She did not know if her drinking affected her mentally. AR 110. Plaintiff 17 had received no treatment for her alcohol use. AR 110. Plaintiff thought that if she stopped 18 drinking she would be tense and in pain. AR 111. She stated, “I don’t see myself stopping 19 drinking.” AR 111. 20 For about three months in 2013, Plaintiff did office work and fundraising for her mother’s 21 business, Emmanuel Outreach Ministries. AR 79-80. Plaintiff’s mother, who owned the church 22 and was its pastor, permitted Plaintiff to work flexible hours when she felt well. AR 79-80. 23 Plaintiff reported self-employment wages received from the church for many years. AR 82, 88. 24 Before becoming ill in 2012, Plaintiff worked for Merced Community College doing 25 filing and data entry in the billing department. AR 81-82. For approximately five years she 26 3 On various occasions, Plaintiff referred to the man with whom she lived as her partner, boyfriend and husband, and 27 referred to herself as single or married. There is no apparent pattern to her characterization of her relationship status nor can the Court be certain that all such references concern the same individual. 28 4 Plaintiff had a fifth son who was not living at home on the hearing date. See AR 368, 700, 746. 1 provided IHSS in-home care for her mother, who was then seriously ill. AR 82-83. She also 2 worked for recruitment services companies and sold tickets for the ferry from Long Beach to 3 Catalina Island. AR 83-84. 4 Plaintiff testified that she had attended special education classes throughout school due to 5 a learning disability (catatonia). AR 77. She had a business degree from Merced Community 6 College. AR 77. Plaintiff had difficulty concentrating, reading and doing math. AR 77-78. 7 2. October 2017 8 Plaintiff’s testimony at the October 2017 remand hearing was generally consistent with 9 her testimony in July 2015. Plaintiff’s attorney emphasized that Plaintiff’s condition had 10 worsened in the interim. AR 42-43. Specifically, Plaintiff’s physicians had prescribed lithium, 11 identified mild degenerative changes of Plaintiff’s spine and referred her for pain management. 12 AR 42-43. Plaintiff needed a cane or a walker to get around. AR 54. She wore a back brace and 13 used a TENS unit daily. AR 55. Cortisone shots relieved but did not eliminate her back pain. 14 AR 55-56. Her medications caused memory loss. AR 53-54. 15 With the help of her cane, Plaintiff could stand in one place for five minutes. AR 59. She 16 could sit comfortably for about 30 minutes. AR 60. Although Plaintiff could not walk a block, 17 she testified that she needed always to be in motion. AR 60-61. 18 Plaintiff’s debilitating migraines continued. AR 62. She needed to lie down when she 19 took her medications. AR 62. Her depression caused a “breakdown” at least once a week. AR 20 61. When Plaintiff experienced a breakdown she isolated herself, cried, began suicidal ideation 21 and needed to call her therapist or the suicide prevention hotline. AR 61. 22 Plaintiff testified that because of her migraines and intense pain she was no longer able to 23 work at Emmanuel Outreach Ministries. or to perform any household chores. AR 49, 51. She 24 experienced back spasms that caused her to fall in stores. AR 52. 25 Her partner was home during the day and able to help her care for the children. AR 53. 26 Plaintiff was able to sit on the bed with her younger children (aged 5, 6 and 10), snuggling, 27 reading, watching television and playing games. AR 45, 53. 28 /// 1 B. Plaintiff’s Adult Function Reports 2 In an adult function report dated April 3, 2013, Plaintiff claimed she experienced cervical 3 cancer, respiratory illnesses (asthma), vision loss, mental disorders (depression and anxiety), 4 diabetes, regular severe migraine headaches, “pass[ing] out,” hair loss, disorientation and high 5 blood pressure. AR 489. Her impairments affected lifting, bending, walking, sitting, stair- 6 climbing, seeing, remembering, completing tasks, concentrating, understanding, following 7 instructions and getting along with others. AR 494. She had no trouble dealing with authority 8 figures or co-workers. AR 495. Her medications were Topiramate,5 Paroxetine,6 Sumatriptan,7 9 and propranolol.8 AR 496. 10 On a typical day, Plaintiff cared for her children and prepared meals. AR 490. She had no 11 problem with personal care. AR 490. She regularly did laundry but needed help lifting and 12 carrying. AR 491. Plaintiff tried to go outside each day but had to be careful because she 13 sometimes “black[ed] out.” AR 492. She shopped for three hours at a time about four times 14 monthly, and could manage her own finances. AR 492. Plaintiff had no time to socialize and 15 was too sick to enjoy her former hobbies of hiking, running, playing ball, reading and watching 16 television. AR 493. 17 In an undated report prepared after January 25, 2013, Plaintiff reported severe migraine 18 headaches, frequent loss of vision, depression, anxiety and isolation. AR 560. She had recently 19 been diagnosed with fibromyalgia but had not taken the medication prescribed for it. AR 560. 20 Plaintiff was seeing a counselor to address her depression and bipolar disorder. AR 560. She 21 /// 22 5 Topiramate (Topamax) is an anticonvulsive used to treat certain types of seizures and migraine headaches. 23 www.medlineplus.gov/druginfo/meds/a697012.html (accessed October 8, 2019),
24 6 Paroxetine is a selective serotonin-reuptake inhibitor prescribed to treat depression, panic disorder, social anxiety disorder and other psychological symptoms. www.medlineplus.gov/druginfo/meds/a698032.html (accessed October 25 8, 2019).
7 Sumatriptan is a selective serotonin receptor agonist prescribed to alleviate the symptoms of migraine headaches. . 26 www.medlineplus.gov/druginfo/meds/a601116.html (accessed October 8, 2019).
27 8 Propranolol is prescribed for various purposes including high blood pressure and migraine headaches. . www.medlineplus.gov/druginfo/meds/a682607.html (accessed October 8, 2019). 28 1 added that she was diagnosed ADD/ADHD and learning disabled (dyslexia). AR 561. She read 2 below the sixth-grade level. AR 561. 3 In an undated report prepared after June 24, 2013, Plaintiff reported that her condition 4 continued to deteriorate. AR 550. She was experiencing visual hallucinations and had become 5 isolated. AR 550. She had neck tension and a pinched nerve in her back. AR 550. Because 6 sunlight triggered her migraines, Plaintiff was staying inside. AR 550. She continued to lose her 7 hair and black out. AR 551. She was in severe pain and sick with asthma. AR 550. Her 8 prescription medications were Vitamin D, Paroxetine, Topiramate, Abilify9 and Gabapentin.10 9 AR 550. Plaintiff was having trouble sleeping. AR 557. She struggled with personal care, 10 cooked infrequently and no longer did the laundry. AR 557. 11 In or about April 2015, Plaintiff’s prescription medications included Clonazepam,11 12 Abilify, Paroxetine, Propranolol, Topiramate, Gabapentin, Metformin,12 Vitamin D, Ventolin 13 HFA,13 QVAR14 and Tylenol Extra Strength.15 AR 585. 14 In August 2017, Plaintiff reported that her prescription medications included Vitamin D-3, 15 16 17
18 9 Abilify (Aripiprazole) is an atypical antipsychotic prescribed to treat symptoms of schizophrenia, mania or mixed episodes, bipolar disorder and depression. www.medlineplus.gov/druginfo/meds/a603012.html (accessed October 8, 19 2019).
20 10 Gabapentin is an anticonvulsant prescribed to control certain types of epileptic seizures and to relieve the pain of postherpetic neuralgia (shingles). www.medlineplus.gov/druginfo/meds/a694007.html (accessed October 8, 2019). 21 11 Clonazepam is a benzodiazepine prescribed to control certain types of seizures and to relieve panic attacks. . 22 www.medlineplus.gov/druginfo/meds/a682279.html (accessed October 8, 2019).
23 12 Metformin is a biguanide prescribed to treat Type 2 diabetes. . www.medlineplus.gov/druginfo/meds/a696005.html (accessed October 8, 2019). 24 13 Ventolin is an albuterol inhaler prescribed to treat symptoms of asthma. 25 www.medlineplus.gov/druginfo/meds/a682145.html (accessed October 8, 2019).
14 QVAR (Beclomethasone) is an aerosol inhaler prescribed to control symptoms of asthma. . 26 www.medlineplus.gov/druginfo/meds/a681050.html (accessed October 8, 2019).
27 15 Tylenol (Acetaminophen) is an analgesic prescribed to relieve mild to moderate pain. . www.medlineplus.gov/druginfo/meds/a681004.html (accessed October 8, 2019). 28 1 Topamax, Tramadol,16 Lyrica,17 Propranolol, Abilify, Lithium,18 Paroxetine, Temazepam,19 2 Sumatriptan, Clonazepam, and Lidocaine patches.20 AR 617. 3 C. Third-Party Adult Function Reports 4 On April 4, 2013, Plaintiff’s sister, Charlotte Lee Dee, completed a third-party adult 5 function report. AR 475-83. Although Ms. Dee lived in Las Vegas, Nevada, she reported that 6 she spent one week each month with Plaintiff and her family. AR 475, 483. On each visit, Ms. 7 Dee saw Plaintiff in “excruciating pain to where she’s in tears, unfocused to the point of passing 8 out.” AR 475. Plaintiff performed her own personal care and prepared food for her children but 9 otherwise remained in her bed. AR 476. Plaintiff was able to cook, straighten up and do laundry. 10 AR 477. Plaintiff could handle money and shopped about once weekly for food and clothing. 11 AR 478. Plaintiff had difficulty lifting, bending, talking, hearing, seeing, completing tasks, 12 concentrating, understanding, following instructions and getting along with others. AR 480. 13 Plaintiff got along well with authority figures and co-workers and was able to adapt to changes in 14 routine. AR 481. She did not handle stress well. AR 481. 15 In an unsigned letter dated September 1, 2017, “Emmanuel Outreach Ministries” reported 16 that in 2016 Plaintiff performed light volunteer services including filing papers, preparing 17 sandwiches, organizing extravaganzas for the holidays and as her health permitted, visiting hotels 18 and motels to discuss with management Emmanuel’s goals and services for homeless persons 19 housed there. AR 625. 20
21 16 Tramadol is an opiate (narcotic) analgesic prescribed to relieve moderate to moderately sever pain in patients expected to need pain relief around the clock. www.medlineplus.gov/druginfo/meds/a695011.html (accessed 22 October 8, 2019).
23 17 Lyrica (Pregabalin) is an anticonvulsant prescribed to relieve neuropathic pain. . 5www.medlineplus.gov/druginfo/meds/a604045.html (accessed October 8, 2019). 24 18 Lithium is an antimanic agent prescribed to prevent episodes of mania in persons with bipolar disorder. . 25 www.medlineplus.gov/druginfo/meds/a681039.html (accessed October 8, 2019).
19 Temazepam is a benzodiazepine prescribed on a short-term basis to treat insomnia. . 26 www.medlineplus.gov/druginfo/meds/a684003.html (accessed October 8, 2019).
27 20 Lidocaine is a local anesthetic prescribed to relieve the pain of post-herpetic neuralgia. . www.medlineplus.gov/druginfo/meds/a603026.html (accessed October 8, 2019). 28 1 Plaintiff’s friends Trini Brookins, Reyna Gomez and Shelly Jane McLaughlin wrote 2 letters on Plaintiff’s behalf attesting to Plaintiff’s good character and medical symptoms. AR 3 627-29, 631-33,635-36 4 D. Medical Records 5 On March 26, 2012, Plaintiff ‘s youngest son was delivered by Caesarian section. AR 6 649. Although Plaintiff had experienced gestational diabetes, her blood glucose was in the 7 normal range at her son’s birth. AR 649. Other than Plaintiff’s self-report of a Metformin 8 prescription, no evidence of treatment for diabetes appears within the record for the time period 9 relevant to Plaintiff’s disability applications. Testing results of Plaintiff blood glucose and 10 hemoglobin A1c were consistently within the normal range.21 See AR 1059 (A1c = 6.0), 1062 11 (blood glucose = 88), 1105 (blood glucose=82), 1423 (A1c = 5.7), 1424 (blood glucose = 95). 12 Nearly all of Plaintiff’s medical care was provided by Golden Valley Health Centers, 13 Merced, California. During an office visit in October 2012, Plaintiff reported that she 14 experienced migraines following meningitis at age 12, but had been migraine-free for many years 15 until the migraines resumed after a 2006 motor vehicle accident. AR 675. Plaintiff received no 16 medical care following the accident. AR 675. Plaintiff reported no depression, anxiety or pain. 17 AR 676. Plaintiff’s gait and range of motion were normal, and the examination revealed no joint 18 swelling or muscle weakness. AR 676. Prescription medications were naproxen and propranolol. 19 AR 678. 20 On November 29, 2012, Dinesh Chhaganlal, M.D., noted that Plaintiff’s migraine 21 headaches had resumed when she began taking propranolol. AR 684. The doctor diagnosed 22 “common migraine without mention of intractable pain.” AR 684. 23 /// 24 /// 25
21 Normal blood glucose levels (fingerstick testing) range from 65 mg/dl (low) to 99 mg/dl (high). AR 1062. 26 Hemoglobin A1c is a blood test for type 2 diabetes and prediabetes. Because the test measures the patient’s average blood glucose level over the past three months, it indicates how well the patient is managing his or her diabetes. The 27 A1C level is a percentage. Normal readings are 5.7 percent or below. Prediabetes is 5.7 to 6.4 percent. Type 2 diabetes is above 6.5 percent. The goal for diabetic patients is to maintain an A1C percentage below 7 percent. 28 www.medlineplus.gov/a1c.html (accessed September 11, 2019). 1 In January 2013, Eduardo Villarama, M.D., noted moderately severe migraine headaches 2 with pain rated 2/10. AR 688. Dr. Villarama added prescriptions for Topamax, midodrine and 3 Paxil. AR 691. 4 In May 2013, Plaintiff saw therapist Rosalba Serrano, L.C.S.W., and reported a diagnosis 5 of bipolar disorder and depression. AR 719-20. Plaintiff denied current thoughts of death or 6 suicide but reported that she had attempted suicide in 2002. AR 719. 7 In June 2013, Plaintiff saw Walter Kip Johnson, M.D., and asked him to increase her Paxil 8 prescription. AR 725. Plaintiff “also requested Lyrica for self-diagnosed fibromyalgia.” AR 9 725. Following discussion, Dr. Johnson increased Plaintiff’s Paxil dosage but left all other 10 medications unchanged. AR 725. In a follow-up appointment with Mayla T. Carlos, P.A., about 11 a week later, Plaintiff reported that the new Paxil dosage had helped Plaintiff’s anxiety. AR 729. 12 Plaintiff continued half-hour therapy sessions with Ms. Serrano from May 22, 2013 13 through January 22, 2015. AR 733-34, 739-40, 746-47, 753-54, 755-56, 886-89, 895-96, 904-05, 14 921-22, 926-27, 941-42, 950-51, 956-59, 964-67. Plaintiff reported a history of anger, rages and 15 black-outs and complained of increased anxiety, fatigue, hypersomnia, crying, irritability, mood 16 swings and visual hallucinations. AR 739-40. She spoke of marital problems and her children’s 17 misbehavior. AR 733-34, 739-40, 746-47, 753-54, 755-56. Plaintiff acknowledged that taking 18 walks and keeping busy helped her mood. AR 904. 19 In July 2013, Plaintiff asked Dr. Villarama to evaluate her for fibromyalgia. AR 741. In 20 August 2013, Plaintiff told Dr. Villarama that her migraines had worsened in the warm weather 21 but that she had not visited the emergency room. AR 748. Dr. Villarama increased Plaintiff’s 22 prescriptions for Topamax and Gabapentin. AR 751. 23 On January 7, 2014, Plaintiff saw Amy Dieu, R.D., for a lap band nutrition evaluation. 24 AR 947-49. Plaintiff weighted 232.5 pounds. AR 948. Ms. Dieu recommended bariatric surgery 25 with ongoing nutrition support and counseling. AR 948. 26 On February 14, 2014, Plaintiff told Christopher Barrett, P.A., that her migraines had 27 worsened, with pain at 6/10. AR 943. The headaches were associated with stress and were 28 /// 1 relieved by prescription medications. AR 943. Mr. Barrett noted inappropriate mood and affect. 2 AR 945. 3 On March 14, 2014, Plaintiff told Ms. Serrano of increased depression, anxiety and urges 4 to cut herself. AR 941. She was hearing “inner voices.” AR 941. 5 On March 24, 2014, Mr. Barrett noted that because Plaintiff was not complying with the 6 prescribed diet, she continued to gain weight. AR 936. Plaintiff wanted to pursue bariatric 7 surgery. AR 936. She complained of continued migraine headaches. AR 936. 8 At a psychiatric intake interview on March 26, 2014, psychiatrist Cynthia Hunt, M.D., 9 noted Plaintiff’s primary care physician and therapist had referred Plaintiff for treatment of 10 anxiety and depression. AR 932. Plaintiff recounted a 10-year history of anxiety and depression 11 with no obvious cause. AR 932. Plaintiff also complained of sleep difficulties, excess energy, 12 mood swings and auditory and visual hallucinations. AR 932. Plaintiff recounted a prior 13 diagnosis of bipolar disorder, three previous suicide attempts, trials of many medications, a 14 history of cutting and self-injury, severe domestic abuse by a prior husband, and multiple rapes 15 during her childhood. AR 932-33. Plaintiff had served two prison terms, both of which she 16 blamed on the behavior of others. AR 933. Dr. Hunt diagnosed bipolar disorder. AR 934. 17 On April 1, 2014, Plaintiff told Mr. Barrett that she was experiencing auditory and visual 18 hallucinations despite taking Abilify. AR 928. Mr. Barrett increased Plaintiff’s Abilify dosage 19 from 10 mg to 15 mg daily. AR 930. 20 On April 4, 2014, Plaintiff told Ms. Serrano that despite the recent change in the dosage of 21 Abilify, Plaintiff was experiencing depressed mood, lack of interest in performing daily activities, 22 difficulty with personal care, poor concentration, forgetfulness, fatigue and agitation. AR 926. 23 Visual hallucinations were gone; auditory hallucinations (voices) had decreased. AR 926. 24 On April 2014, Dr. Hunt noted that the increased dosage of Abilify had reduced Plaintiff’s 25 visual and auditory hallucinations, but her fatigue and sleep difficulties continued. AR 923. 26 In May 2014, Mr. Barrett noted that Plaintiff’s headaches and anxiety were both well 27 controlled. AR 909. 28 /// 1 In July 2014, Plaintiff told Mr. Barrett that her headaches had worsened with pain rated at 2 6/10. AR 890. Plaintiff had stopped exercising and was sleeping from 10:00 p.m. to 10:30 a.m. 3 the following morning. AR 890. 4 Plaintiff was in a good mood when she saw psychiatrist R. David Simenson, M.D., in 5 October 2014. AR 861. Her son’s military station had changed from Georgia to California, and 6 Plaintiff took a three-day trip to a friend’s wedding. AR 861. Plaintiff reported sleeping well but 7 feeling tired. AR 861. . 8 After observing Plaintiff’s increased symptoms in November 2014, Dr. Hunt suspected 9 schizoaffective disorder and increased Plaintiff’s Abilify dosage. AR 853. On January 9, 2015, 10 Dr. Hunt noted that although Plaintiff continued to wake during the night, Abilify had reduced 11 Plaintiff’s anxiety. AR 845. Dr. Hunt observed that Plaintiff was verbal and cooperative with 12 improved mood and affect. AR 845. 13 On January 23, 2015, Antonio Coirin, M.D., performed laparoscopic bariatric surgery to 14 place an adjustable gastric band (lap band). AR 790-92. On the date of surgery, Plaintiff 15 weighed 255 pounds. AR 793. 16 On February 11, 2015, Plaintiff reported seeing shadows in her peripheral vision. AR 17 837. Dr. Simenson observed anhedonia, anxiety and hopelessness, and noted that Plaintiff 18 reported depression but smiled. AR 840. 19 On February 20, 2015, Mr. Barrett noted that Plaintiff’s migraines were mild with pain 20 rated 3/10. AR 831. Mr. Barrett reduced Plaintiff’s Propranolol prescription and encouraged her 21 to exercise 30 to 60 minutes five to six days weekly. AR 834. 22 On June 19, 2015, Plaintiff was treated in Golden Valley’s Urgent Care center for a severe 23 migraine (10/10) that affected her vertex, frontal and temporal lobes and caused blurred vision, 24 dizziness, nausea and vomiting. AR 1414. Bounlath Souksavong, P.A., administered Toradol 25 and an injection of Keterolac.22 AR 1416. On June 23, 2015, Plaintiff saw Mr. Barrett to report 26 /// 27 22 Keterolac is a nonsteroidal anti-inflammatory drug used for short-term relief of moderately severe pain. 28 www.medlineplus.gov/druginfo/meds/a693001.html (accessed October 23, 2019). 1 that her headaches had worsened in the past five days. AR 1409. Mr. Barrett adjusted dosages of 2 Plaintiff’s prescriptions. AR 1412-13 3 When Plaintiff saw psychiatrist R. David Simenson, M.D., on July 31, 2015, she reported 4 that she was being treated by a new therapist at CalWorks.23 AR 1399. Having to explain her 5 past traumas resulted in anxiety attacks, paranoia, mood swings, poor concentration and thoughts 6 of violent and sexual images but no audio or visual hallucinations. AR 1399. In September 2015, 7 Plaintiff told Dr. Simenson that she was having good days and some bad days. AR 1394. 8 In September 2015, Plaintiff had an initial evaluation for physical therapy. AR 1008-12. 9 Therapy was planned to occur twice weekly for six weeks and to include progressive stretching 10 and strengthening, home exercise, progressive gait training, balance training, modalities for pain 11 control, education and manual therapies. AR 1009. In December 2015, Plaintiff was discharged 12 from therapy having attended only the initial evaluation and one therapy session. AR 1006. 13 In December 2015, Dr. Simenson noted that Plaintiff had not increased her dose of lithium 14 since her insurance would not cover the increased dosage. AR 1025. Plaintiff reported 15 experiencing agoraphobia and panic attacks in stores. AR 1025. She was experiencing auditory 16 and visual hallucinations and violent and sexual nightmares. AR 1025. 17 Plaintiff again complained of anxiety in January 2016 and asked Dr. Simenson to increase 18 her dosage of clonazepam. AR 1031. Plaintiff reported “drinking a lot of energy drinks.” AR 19 1031. Plaintiff reported an incident of anger in a shopping mall in which she contemplated using 20 a box cutter to attack an individual who irritated her. AR 1031. Her last depressive episode was 21 for two weeks in November. AR 1031. As to manic episodes she had talked “real fast’ the prior 22 day, had a spending binge in December, and spent money whenever her mother had money in her 23 account. AR 1031. Plaintiff was seeing a CalWorks counselor weekly. AR 1032. 24 In February 2016, Abhilasha Sharma, M.D., noted that Plaintiff’s migraines had 25 worsened. AR 1036. 26 /// 27 23 Other than the assessment of Jeremy Brownstein, ACSW, at AR 1082, the record includes no treatment notes from 28 any CalWorks counselor. 1 In March 2016, chiropractor Marcus R. Bernardi, D.C., noted that Plaintiff’s back pain 2 had worsened and was rated 6/10. AR 1042. Plaintiff told Dr. Bernardi that she had experienced 3 back pain since undergoing a spinal tap as a child and that the pain had worsened after the 2006 4 motor vehicle accident. AR 1042. Bending, changing position, daily activities and sitting 5 aggravated the pain, and nothing, including medication, relieved it. AR 1042. On April 6, 2016, 6 Plaintiff asked Dr. Sharma for a referral to a back specialist for cortisone shots because 7 chiropractic treatment was not helping her back pain. AR 1047. Dr. Sharma recommended that 8 Plaintiff use a heating pad or hot shower to relax her muscles and referred Plaintiff for pain 9 management. AR 1050. On April 7, 2016, Plaintiff told Dr. Bernardi that her back pain was 10 moderate but improving. AR 1052. Dr. Bernardi recommended heat therapy, lower back 11 stretching exercises and short walks daily. AR 1054-55. 12 On April 26, 2016, radiologist Duane Richey, M.D., reviewed x-rays of Plaintiff’s spine. 13 Dr. Richey diagnosed “[s]table mild diffuse degenerative changes.” AR 1057. 14 On May 11, 2016, Plaintiff told Dr. Simenson that she was “OK, pretty much,” outlining 15 several relationship and parenting problems. AR 1347. 16 Beginning May 14, 2016, Plaintiff received pain management from Hai Duong, M.D., at 17 Valley Center for Pain Medicine, Merced, California. At her intake appointment, Plaintiff 18 described constant hot-burning, shooting, stabbing and tingling pain in her lower lumbar region, 19 radiating up her back and down her legs to her toes. AR 1069. Plaintiff’s pain was greater on the 20 right side than on the left. AR 1069. Plaintiff said that the pain dated to spinal tap administered 21 when Plaintiff was twelve and worsened after a 2006 motor vehicle accident which left Plaintiff 22 in a coma for a “couple of days.” AR 1069. Movement and prolonged standing aggravated the 23 pain. AR 1069. Plaintiff had discontinued taking the Lyrica and Gabapentin prescribed for her 24 because “it was not helping with the pain.” AR 1069. Physical therapy had not helped either. 25 AR 1069. Plaintiff also reported migraine headaches, neck pain, shoulder pain, back pain, and 26 chest pain. AR 1069. Although Dr. Duong’s examination revealed tender spots, he observed full 27 motor strength and no spinal or muscular abnormalities. AR 1070-71. The doctor recommended 28 physical therapy, a TENS unit and Lyrica. AR 1071. X-rays indicated mild multilevel 1 degenerative changes of the cervical spine most prominent at C5-6 without focal disc protrusion 2 or spinal/neural foraminal stenosis. AR 1074. Lumbar magnetic resonance imaging indicated 3 moderate multilevel facet arthropathy with no evidence of disc protrusion or significant 4 encroachment on the spinal canal or neural fora mina. AR 1075-76. 5 Plaintiff continued to receive chiropractic care from Dr. Bernardi. AR 1133-37, 1145-49, 6 1168-77, 1209-18,1248-52, 1263-67, 1274-78, 1285-94, 1301-05, 1314-18, 1337-46. In May 7 2016, Plaintiff reported increased pain after falling on her wet kitchen floor while getting off the 8 treadmill. AR 1342. 9 In June 2016, Plaintiff told Dr. Simenson that she was under a lot of stress: recovering 10 from a strep throat, arguing with her mother and her partner, and dealing with large “mutant rats” 11 that had moved into her house. AR 1325. Plaintiff again reported shadow-like visual 12 hallucinations. AR 1326. 13 After prescribing lithium, Dr. Simenson monitored Plaintiff’s blood levels of lithium. In 14 his July 13, 2016 notes, the doctor included a comment from Dr. Edwards, who questioned 15 whether the startling variation in Plaintiff’s blood lithium levels indicated lack of compliance 16 with her medication. AR 1306. Dr. Edwards added that if Plaintiff’s lithium levels were within 17 the therapeutic range, the lithium was not adequately addressing Plaintiff’s manic and psychotic 18 levels. AR 1306. If lithium was ineffective, switching to another antipsychotic medication might 19 be advisable. AR 1306. 20 In July 2016, Plaintiff told Dr. Duong that her pain had increased to 10/10. AR 1120. In 21 September 2016, Plaintiff denied experiencing joint pain but complained that she had rheumatoid 22 arthritis. AR 1118. 23 At an appointment with Cynthia Chan, P.A., on July 20, 2016, Plaintiff complained of 24 joint pain, numbness, weakness, wrist locking and wrist tenderness and requested a referral for 25 treatment of carpal tunnel syndrome. AR 1295. 26 On August 30, 2016, Plaintiff told Dr. Simenson that she had a hallucination of a woman 27 walking about Plaintiff’s house with a knife. AR 1279. Plaintiff stated that she was drinking one 28 glass of wine daily and using no other substances. AR 1280. 1 On November 1 and 2, 2016,24 Plaintiff had an initial behavioral health appointment with 2 Howie Friedman, P.A. AR 1236-47. Plaintiff was experiencing anxiety as a result of chronic 3 pain and had recently been contemplating suicide. AR 1237, 1243. She felt irritable and reported 4 conflict with her husband and children. AR 1243. She had recently resumed smoking. AR 1243. 5 Because her insurer had not approved the increased lithium dosage, Plaintiff was not taking the 6 full amount prescribed. AR 1237, 1243. On November 14, 2016, Plaintiff admitted having 7 missed several lithium doses since she last saw Mr. Friedman. AR 1231. 8 On November 29, 2016, Plaintiff asked Dr. Sharma for a prescription for a cane and a 9 handicapped parking card. AR 1225. Despite Dr. Sharma’s attempts to convince Plaintiff that a 10 pap test was the appropriate method of cervical cancer screening, Plaintiff insisted upon a referral 11 to an oncologist for a biopsy. AR 1225. 12 On December 8, 2016, Plaintiff told Mr. Friedman that she had weaned herself off her 13 medications to have three days without medications “for school purposes.” AR 1219. While not 14 taking the medications, Plaintiff craved them but controlled her hallucinations by focusing on her 15 project. AR 1220. Her symptoms severely intensified when she resumed normal dosage after the 16 three days had passed. AR 1220. 17 When Plaintiff saw Mr. Friedman on January 10, 2017, she and her family were living in a 18 hotel pending repairs to their home after a major plumbing failure. AR 1203. Despite the 19 resulting anxiety, Plaintiff reported feeling stable and less depressed. AR 1204. When Plaintiff 20 was done “handling business,” she visited a girlfriend to “break down” and play games. AR 21 1204. Plaintiff had set a goal to lose 50-55 pounds. AR 1204. Mr. Friedman changed the dosage 22 of several of Plaintiff’s medications. AR 1204. On that same day, Plaintiff had an intake 23 interview for counseling at GVHC Senior Health and Wellness25 with Sandra Perez, LCSW. AR 24 1196-1202. Plaintiff reported a recent increase in depressive symptoms and an impulsive [sic] 25 gambling problem. AR 1197. Ms. Perez wrote: 26 ///
27 24 Plaintiff cut short her November 1 appointment to take her son to DMV and returned the following day. AR 1236. 25 GVHC Senior Health and Wellness appears to be a separate division of Golden Valley Health than the behavioral 28 health area in which Mr. Friedman worked. 1 [Patient] has been seen by psychiatry here, off and on for years. She has been seen previously for counseling with BHC who is no longer 2 here. She stopped counseling when her former counselor and psychiatrist left, feeling like she was stable. Now she feels that some 3 of her past depressive symptoms and anxious thoughts are returning. 4 AR 1197. 5 When Plaintiff saw Mr. Friedman on January 24, 2017, she had “forgotten” to change her 6 medications to the new dosages. AR 1190. Plaintiff reported feeling more in control, less angry 7 and more stabilized than in recent times. AR 1191. Mr. Friedman again adjusted Plaintiff’s 8 medications on February 6, 2017. AR 1184. On March 21, 2017, Plaintiff’s symptoms were 9 exacerbated by a move from the hotel to a temporary rental home. AR 1178. On March 31 and 10 April 12, 2017, Plaintiff continued to report exacerbated symptoms. AR 1156, 1162. 11 On February 23, 2017, Plaintiff saw oncologist Imtiaz Malik, M.D., who opined that 12 Plaintiff had been free of cervical cancer since surgery to remove early stage cancer in 1999. AR 13 1436. Dr. Malik wrote, “I do not see any benefit of her getting followed by me.” AR 1436. 14 On July 24, 2017, Plaintiff reported feeling better. AR 1150. She had filed for separation 15 from her husband and was sharing her home with a woman and her son. AR 1150. Plaintiff told 16 Mr. Friedman that she sometimes saw visons of blood and wanted to stab something or cut 17 herself. AR 1150. She also told Mr. Friedman that as a result of her childhood rape, she had 18 three separate personalities. AR 1151. 19 On August 23, 2017, Plaintiff saw Ramaa Maruthachalam, M.D., for severe migraine. AR 20 1138. 21 IV. Standard of Review 22 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 23 Commissioner denying a claimant disability benefits. “This court may set aside the 24 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 25 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 26 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 27 within the record that could lead a reasonable mind to accept a conclusion regarding disability 28 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 1 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 2 omitted). When performing this analysis, the court must “consider the entire record as a whole 3 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 4 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 5 omitted). 6 If the evidence reasonably could support two conclusions, the court “may not substitute its 7 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 8 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 9 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 10 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 11 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 12 V. The Disability Standard 13 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 14 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 15 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 16 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 17 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 18 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 19 him, or whether he would be hired if he applied for work. 20 42 U.S.C. §1382c(a)(3)(B). 21 To achieve uniformity in the decision-making process, the Commissioner has established 22 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 23 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 24 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 25 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 26 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 27 medically determinable “severe impairments,” (3) whether these impairments meet or are 28 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 1 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 2 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 3 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 4 VI. Summary of the ALJ’s Decision 5 Administrative Law Judge Frost-Wolf found that Plaintiff had not engaged in substantial 6 gainful activity since the alleged onset date of December 31, 2012. AR 18. Her severe 7 impairments included: migraine headaches, obesity status post gastric band, diabetes mellitus, 8 neuropathy, asthma, degenerative disc disease and bipolar disorder. AR 18. None of the severe 9 impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 10 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). AR 19. 11 The ALJ concluded that Plaintiff had the residual functional capacity to perform light 12 work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c), except that she was limited to non- 13 complex routine tasks. AR 21. Plaintiff needed to avoid more than occasional exposure to 14 extreme heat or cold, humidity, vibration and pulmonary irritants such as fumes, odors, dust, 15 gases and other respiratory irritants. AR 21. 16 Plaintiff was able to perform her past relevant work as a fundraiser. AR 25. In the 17 alternative, she was able to perform other jobs in the national economy. AR 26. Accordingly, the 18 ALJ found that Plaintiff was not disabled from December 31, 2012, through December 6, 2017 19 (the date of the hearing decision). AR 27-28. 20 VII. Reliability of Plaintiff’s Testimony 21 Plaintiff contends that the ALJ erred in concluding that her testimony was inconsistent 22 with objective medical evidence in the record. The Commissioner’s response emphasizes that 23 under the amended procedure set forth in S.S.R. 16-3p, the ALJ no longer considers whether a 24 claimant’s testimony is credible, but whether the claimant’s subjective allegations are consistent 25 with the objective evidence in the record. As a result, Commissioner contends that the ALJ 26 appropriately focused her analysis on the objective medical evidence and not on Plaintiff’s 27 subjective allegations of other criteria that are not relevant to the amended procedure. Having 28 /// 1 reviewed the record as a whole, the Court agrees that Plaintiff’s account of disabling pain and 2 other symptoms was inconsistent with the objective evidence of her symptoms and treatment. 3 An ALJ is responsible for determining credibility, resolving conflicts in medical 4 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 5 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v. 6 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 7 To determine whether the ALJ’s findings are supported by sufficient evidence a court 8 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 9 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 10 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown- 11 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized 12 determinations like a claimant’s entitlement to disability benefits, Congress places a premium 13 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the 14 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting 15 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. 16 Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts 17 should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, 18 and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 19 F.3d at 1098). 20 A claimant’s statement of pain or other symptoms is not conclusive evidence of a physical 21 or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. “An ALJ 22 cannot be required to believe every allegation of [disability], or else disability benefits would be 23 available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. Bowen, 24 885 F.2d 597, 603 (9th Cir. 1989). 25 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 26 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 27 subjective symptom evaluation is not “an examination of an individual’s character” but an 28 /// 1 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 2 16-3p at 1-2. 3 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 4 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 5 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the 6 claimant must produce objective medical evidence of an impairment that could reasonably be 7 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; 8 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that 9 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the 10 alleged symptoms.” AR 22. The ALJ did not find Plaintiff to be malingering. 11 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ 12 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent 13 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 14 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by 15 symptoms to a greater or lesser extent than other individuals with the same medical impairments, 16 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In 17 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical 18 evidence; the claimant’s representations of the intensity, persistence and limiting effects of her 19 symptoms; statements and other information from medical providers and other third parties; and, 20 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 21 “The determination or decision must contain specific reasons for the weight given to the 22 individual’s symptoms, be consistent with and supported by the evidence, and be clearly 23 articulated so the individual and any subsequent reviewer can assess how the adjudicator 24 evaluated the individual’s symptoms.” SSR 16-3p at *10. 25 Because a “claimant’s subjective statements may tell of greater limitations than can 26 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 27 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter, 28 242 F.3d 1144, 1147-48 (2001) (quoting Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989)). See 1 also Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of 2 an underlying medical impairment, the ALJ may not discredit the claimant’s testimony regarding 3 the severity of his symptoms solely because they are unsupported by medical evidence). 4 “Congress clearly meant that so long as the pain is associated with a clinically demonstrated 5 impairment, credible pain testimony should contribute to a determination of disability.” Id. 6 (internal quotation marks and citations omitted). 7 However, the law does not require an ALJ simply to ignore inconsistencies between 8 objective medical evidence and a claimant’s testimony. “While subjective pain testimony cannot 9 be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 10 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 11 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 12 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly 13 considers whether the objective medical evidence supports or is consistent with a claimant’s pain 14 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to 15 diminish residual functional capacity only to the extent that the alleged functional limitations and 16 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 17 other evidence”). The ALJ did so here, finding that Plaintiff’s “statements concerning the 18 intensity, persistence and limiting effects of these symptoms are not entirely consistent with 19 medical evidence and other evidence in the record for the reasons explained in this decision.” AR 20 22. 21 “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions 22 about the intensity and persistence of symptoms, including the effects those symptoms may have 23 on the ability to perform work-related activities.” S.S.R. 16-3p at 6. Because objective medical 24 evidence may reveal the intensity, persistence and limiting effects of a claimant’s symptoms, an 25 ALJ must consider whether the symptoms reported by a claimant are consistent with medical 26 signs and laboratory findings of record. Id. For example, “reduced joint motion, muscle spasm, 27 sensory deficit, and motor disruption illustrate findings that may result from, or be associated 28 with, pain.” Id. Conversely, records indicating that a claimant has no muscle wasting bely a 1 claimant’s representation that he or she has been unable to walk no more than a few steps per day. 2 Id. 3 The ALJ began her analysis with Plaintiff’s allegations of repeated falls in stores, noting 4 that the record did not document recurring falls. AR 21. Instead, the record revealed only 5 Plaintiff’s March 2017 representation to Dr. Duong of many recent falls (AR 1110), and a May 6 2016 report to Dr. Bernardi that her back pain had increased following a fall on a wet kitchen 7 floor when she got off the treadmill (AR 1342). AR 21. At a September 2015 follow-up to her 8 lap band surgery, Plaintiff reported no falls in the prior six months. AR 1010. (The ALJ did not 9 note that although Plaintiff testified that store personnel repeatedly called EMS following her falls 10 (AR 52-53), the record includes no evidence that Plaintiff was ever transported by ambulance to 11 an emergency treatment facility following a fall.) 12 The ALJ also contrasted Plaintiff’s subjective account with the June 2016 MRI indicating 13 moderate multilevel arthropathy without disc protrusion or significant encroachment of the spinal 14 canal or neural foramina (AR 1075); Mr. Barrett’s report noting no back pain or myalgia (AR 15 819); Dr. Malik’s assessment of “normal muscle tone/bulk, no deformities, normal range of 16 motion, normal spine alignment” (AR 1436); and, Dr. Maruthachalam’s assessment of normal 17 cranial nerves, balance and gait (AR 1142). AR 22. In summary, the ALJ concluded that 18 Plaintiff’s back pain was not as severe as Plaintiff contended. AR 22-23. 19 The ALJ carefully summarized evidence undermining multiple alleged impairments. AR 20 21-22. Although Plaintiff’s medical records refer to a chronic problem of neuropathy, the ALJ 21 found that specific records belied that diagnosis reporting no cold intolerance (AR 828), and 22 examination revealed a firm grasp, full strength in her lower extremities and deep tendon reflexes 23 (AR 1124). The ALJ also found that although Plaintiff had experienced gestational diabetes 24 during her most recent pregnancy, she required no medication thereafter and no consequential 25 organ damage was noted. AR 22. Plaintiff had a history of asthma, but took no medication and 26 had no observable symptoms (AR 649, 1435). The Court notes that the record includes no 27 evidence that Plaintiff received continuing treatment for neuropathy, diabetes or asthma during 28 the period relevant to the application for benefits. 1 Finally, the ALJ noted the record’s documentation of alcohol abuse in remission, 2 borderline intellectual functioning, diagnosis of bipolar disorder, depression and difficulty 3 concentrating and concluded that Plaintiff’s mental impairments were adequately addressed by 4 the limitations included in the residual functional capacity determination. AR 22. 5 As the ALJ found in this case, Plaintiff’s claims of disabling impairments were 6 inconsistent with medical records showing mild to moderate physical impairments . The ALJ’s 7 determination was further supported by Plaintiff’s failure to comply with medical treatment and 8 recommendations, and evidence of her ability to provide her own personal care and engage in a 9 wide range of activities. See S.S.R. 16-3p at 7-9. The ALJ elected not to discuss the 10 inconsistencies in the symptoms Plaintiff reported to various physicians, sometimes on the same 11 day. 12 As is always the case in an appeal of the Commissioner’s denial of disability benefits, 13 Plaintiff would construe the evidence differently than the ALJ. Nonetheless, the hearing decision 14 sets forth sufficient evidence in the record to support the ALJ’s determination that Plaintiff’s 15 representations to the agency were not fully consistent with the medical evidence of record. The 16 Court therefore will not second guess the ALJ’s assessment of Plaintiff’s credibility. 17 VIII. Assessment of Third-Party Lay Opinion 18 As noted above, the record includes a Third-Party Adult Function Report completed by 19 Plaintiff’s sister and three supportive letters from Plaintiff’s personal friends. The ALJ gave 20 limited weight to the lay opinions “because of their high degree of subjectivity and their lack of 21 medically acceptable standards.” AR 24. Plaintiff contends that the ALJ erred in “disregarding” 22 the lay opinions without a germane reason. Doc. 21 at 48-49. The Commissioner responds that 23 the ALJ appropriately considered the lay opinions. 24 “[F]riends and family members in a position to observe a claimant’s symptoms and daily 25 activities are competent to testify to her condition.” Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th 26 Cir. 1993). Disregarding lay evidence without comment violates the regulatory provision that the 27 Commissioner will evaluate evidence from nonmedical sources. 20 C.F.R. §§ 404.1513(a)(4), 28 416.913(a)(4). However, “[a]n ALJ need only give germane reasons for discrediting the 1 testimony of lay witnesses.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 2 Inconsistency with medical evidence is a germane reason. Id. An ALJ also provides germane 3 reasons for rejecting testimony when the lay witness’s testimony is substantively similar to other 4 subjective testimony that has already been validly rejected. Valentine v. Comm’r Soc. Sec. 5 Admin., 574 F.3d 685, 694 (9th Cir. 2009). For example, an ALJ appropriately discredited a lay 6 opinion by explaining that it relied ‘far too much” on Plaintiff’s own allegations and was 7 contradicted by the record as a whole. Bennett v. Colvin, 202 F.Supp.3d 1119, 1135 (N.D.Cal. 8 2016). 9 In this case, the ALJ examined each report from a friend or family member and 10 summarized its relevant information concerning Plaintiff’s symptoms and function.26 AR 24. 11 The ALJ then explained her reasoning for giving each lay opinion little weight: 12 [B]ecause these other sources have no medical training to make exacting observations as to dates, frequencies, types and degrees of 13 medical signs and symptoms, or the frequency or intensity of unusual moods or mannerisms, the accuracy of the information provided is 14 questionable. Moreover, by virtue of the relationship with the claimant, I cannot consider these other sources disinterested third 15 party witnesses. However, I have considered these opinions in terms of helping to understand the severity of the claimant’s various 16 symptoms over time as explained in SSR 06-03p (also see 20 CFR 404.1512 and 416.912). Even so, these reports from the claimant’s 17 relatives and acquaintances do not establish that she is disabled, and cannot carry the claimant’s burden of proof. Therefore, I give only 18 limited weight to these other sources assessing the claimant’s current functional limitations because of their high degree of subjectivity and 19 their lack of medically acceptable standards. 20 AR 24. 21 The ALJ was not required to do more. 22 IX. Analysis of Expert Medical Opinion 23 In Section C of her opening brief, Plaintiff challenges the ALJ’s determination of her 24 residual functional capacity, contending that the ALJ erred in rejecting the opinions of treating 25 psychiatrist Dr. Simenson. The Commissioner disagrees, contending that the ALJ properly 26 rejected Dr. Simenson’s opinion since the check-box opinions were unsupported and inconsistent 27 26 The ALJ’s analysis also considered the letter from Emmanuel Ministries concerning Plaintiff’s volunteer work. 28 Plaintiff does not include that letter among the lay opinions that she contends the ALJ disregarded. AR 24. 1 with the evidence as a whole. For the reasons discussed below, the Court agrees that the ALJ did 2 not err in refusing to adopt Dr. Simenson’s opinion. 3 In Section E, Plaintiff further contends that even though Mr. Barrett was not an acceptable 4 medical source for her case (see 20 C.F.R. §§ 404.1502(a)(8), 416.902(a)(8)), the ALJ erred in 5 giving little weight to Mr. Barrett’s opinion that Plaintiff would be off task 25 percent of the 6 workday and absent at least three days monthly. The Commissioner responds that the ALJ did 7 not err in giving little weight to the subjective opinion of one who is not an acceptable medical 8 source, particularly since the objective record did not support Mr. Barrett’s opinion. The Court 9 agrees. 10 A. Applicable Law 11 The opinions of treating physicians, examining physicians, and non-examining physicians 12 are entitled to varying weight in disability determinations. Lester v. Chater, 81 F.3d 821, 830 (9th 13 Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 14 greater opportunity to know and observe the patient as an individual. Id.; Smolen, 80 F.3d at 15 1285. The opinion of an examining physician is, in turn, entitled to greater weight than the 16 opinion of a non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An 17 ALJ may reject an uncontradicted opinion of a treating or examining medical professional only 18 for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of 19 a treating professional may be rejected for “specific and legitimate” reasons. Id. at 830. 20 However, the opinions of a treating or examining physician are “not necessarily conclusive as to 21 either the physical condition or the ultimate issue of disability.” Morgan v. Comm'r of Soc. Sec. 22 Admin., 169 F.3d 595, 600 (9th Cir. 1999). 23 Physician assistants such as Mr. Barrett are not evaluated as if they were physicians. A 24 physician assistant is not considered an acceptable medical source under 20 C.F.R. § 416.913.27 25 Instead, physician assistants are considered to be “other sources.” 20 C.F.R. § 416.913(d)(1)
26 27 The Social Security Administration has recently adopted new rules applicable to claims filed after March 27, 2017, which expand the category of acceptable medical providers to include, among others, nurse practitioners. 20 C.F.R. 27 §§ 404.1502(a)(6), (7), (8); 416.902(a)(6), (7), (8) (2017); Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). The revisions do not apply to Plaintiff’s claim, which was filed 28 January 19, 2013. 1 (listing medical sources that are considered other sources, including nurse practitioners, physician 2 assistants, naturopaths, chiropractors, audiologists, and therapists). Unlike the opinions of 3 physicians, the opinions of physician assistants are not entitled to special weight. An ALJ may 4 reject the opinions of other sources by giving “reasons germane to each witness for doing so.” 5 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Turner v. Comm’r of Soc. Sec. Admin., 613 6 F.3d 1217, 1224 (9th Cir. 2010). Factors used to evaluate a physician assistant’s opinion include: 7 (1) examining relationship; (2) length of treatment relationship and frequency of examination; (3) 8 supportability of opinion; (4) consistency with the record; (5) specialization; and (6) other factors 9 supporting or contradicting the opinion. 20 C.F.R. § 416.927 (c) and (f)(1). 10 B. Medical Opinions 11 The administrative record includes numerous medical opinions of Plaintiff’s mental and 12 physical impairments and their effect on her residual functional capacity. 13 1. Agency Physicians 14 On initial review in May 2013, psychiatrist K. Loomis, D.O.,28 agreed with the agency’s 15 recommendation and the consultative examiner’s opinion that Plaintiff had minimal mental health 16 impairment. AR 128. Dr. Loomis identified no restrictions of daily living, no difficulties in 17 maintaining social functioning or concentration, persistence and pace, and not repeated episodes 18 of decompensation of extended duration. AR 130. On reconsideration, F.M. Balson, M.D., 19 agreed that Plaintiff had no severe mental health impairment. AR 154, 155. 20 Similarly, J. Bonner, M.D., concluded that Plaintiff had no severe physical impairments. 21 AR 129. Dr. Bonner opined that Plaintiff’s residual functional capacity was unlimited except for 22 environmental limitations to be observed as asthma precautions. AR 131. 23 2. Consultative Examination—Internal Medicine 24 On April 27, 2013, Roger Wagner, M.D., performed a consultative medical examination. 25 AR 699-703. Plaintiff’s chief complaints were asthma, thoracolumbar back pain and diabetes 26 mellitus, type 2. AR 699. Plaintiff told Dr. Wagner that she had received no treatment or x-rays 27 28 In different references, the record identifies Dr. Loomis as an osteopath (D.O.) and a medical doctor (M.D.). AR 28 128, 132. 1 for back pain, could easily walk one-half mile and could sit for an hour. AR 700. Bending and 2 lifting exacerbated her back pain. AR 700. The doctor observed that Plaintiff could easily get up 3 from the waiting room chair and walk briskly, get on and off the examination table without 4 assistance, easily bend at the waist to remove and put on socks and shoes, and could pick up a 5 shoe on the floor from a standing position without bending her knees. AR 700. The examination 6 revealed ability to walk on toes and heels, negative Romberg and straight leg tests and normal 7 range of motion, sensation, gait, station and “finger-nose.” AR 701-02. 8 Dr. Wagner opined that Plaintiff was able to lift and carry 50 pounds occasionally and 25 9 pounds frequently. AR 703. Sitting, standing, walking and manipulative activities were not 10 limited. AR 703. Plaintiff should stoop no more than frequently and because of her history of 11 asthma, should avoid prolonged exposure to concentrated chemicals, dust, fumes or gases. AR 12 703. 13 3. Agency-Ordered Spinal X-Rays 14 Because Plaintiff had no prior spinal imaging, the state agency ordered x-rays of her 15 lower back. AR 700. Radiologist David Siffring, M.D., interpreted the x-rays and opined that 16 Plaintiff’s lumbar spine was normal. AR 704. 17 4. Psychological Assessment 18 Clinical psychologist Steven C. Swanson, Ph.D., performed a psychological assessment of 19 Plaintiff on May 8, 2013. AR 705-11. Plaintiff told Dr. Swanson that she was a slow learner and 20 received special education services. AR 706. She had a history of juvenile and adult 21 imprisonment. AR 706. Although Plaintiff was currently unemployed, she had previously 22 worked as a firefighter, salon assistant, exotic dancer, in-home caregiver and manager of a Taco 23 Bell. AR 706. She had also worked for Emmanuel Outreach, Knotts Berry Farm, Bally Fitness, 24 an employment recruiting office and the accounting office of Merced College. AR 706. She was 25 independently able to perform all activities of daily living. AR 707. 26 Plaintiff had never received psychiatric care. AR 707. Previously, she smoked and 27 consumed alcohol heavily. AR 707. Medical issues included high blood pressure, asthma, 28 migraine headaches and back pain. AR 707. She was successfully treated for cervical cancer in 1 1999 without recurrence. AR 707. Medications included Paxil, Propranolol, Imitrex, Topamax, 2 QVAR and Ventolin. AR 707. 3 Plaintiff was well groomed, pleasant, engaging, friendly and cooperative. AR 707. She 4 was well oriented and displayed a full range of affect. AR 707. Form and content of thought 5 were within normal limits. AR 707. Plaintiff displayed no evidence of delusion, perceptual 6 disorder or psychosis. AR 707. Dr. Swanson observed no suicidal or homicidal ideation, and 7 vegetative signs of depression were mostly absent. AR 708. Plaintiff displayed satisfactory 8 concentration and attention. AR 708. 9 Dr. Swanson administered the Wechsler Adult Intelligence Scale-4th Ed. (WAIS-IV). AR 10 708. Plaintiff achieved a full-scale IQ of 82, placing her in the borderline range of intellectual 11 functioning. AR 702. Memory scale scores were consistent with the intelligence test results. AR 12 709. Dr. Swanson diagnosed: 13 Axis 1 305.00 Alcohol abuse, in remission 14 305.10 Nicotine dependence, in remission 15 Axis II V62.89 Borderline Intellectual Functioning 16 Axis III Obesity 17 Asthma Hypertension 18 Headaches/Back Pain 19 Axis IV Unemployment 20 Raising Five Children
21 Axis V GAF = 66 (current)
22 AR 710.29 23 /// 24 25
29 The Global Assessment of Functioning (GAF) scale is a rating from 0 to 100 and considers psychological, social, 26 and occupational functioning on a hypothetical continuum of mental health and illness. Diagnostic and Statistical Manual of Mental Disorders, 32-35 (4th ed. American Psychiatric Association 1994). A score of 66 falls within the 27 61-70 range, which indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally 28 functioning pretty well, has some meaningful interpersonal relationships. Id. at 34. 1 Dr. Swanson found no evidence of psychotic symptomology or gross psychopathological 2 disturbance. AR 710. He opined that “[Plaintiff’s] mental and emotional functioning appears to 3 fall within normal limits.” Dr. Swanson summarized: 4 5 [Plaintiff] is judged able to maintain concentration and relate appropriately to others in a job setting. She would be able to handle 6 funds in her own best interests. She is expected to understand, carry out, and remember simple instructions. She is judged able to respond 7 appropriately to usual work situations, such as attendance, safety, and the like. Changes in routine would not be very problematic for 8 her. AR 710. There do not appear to be substantial restrictions in daily activities. Difficulties in maintaining social relationships do 9 not appear to be present. 10 AR 710. 11 5. Mental Residual Functional Capacity Assessments by Other Sources 12 On June 9, 2014, Ms. Serrano opined that Plaintiff had marked limitation of her ability to 13 remember locations and work-like procedures; to understand and remember very short and simple 14 instructions; to understand, remember and carry out detailed instructions to maintain attention and 15 concentration for extended periods; to perform activities within a schedule, maintain regular 16 attendance and be punctual within customary tolerances; to work in coordination with or 17 proximity to others without being distracted by them; to make simple work-related decisions; to 18 complete a normal workday and workweek without interruptions from psychologically based 19 symptoms and to perform at a consistent pace without an unreasonable number and length of rest 20 periods; to interact appropriately with the general public; to accept instructions and to respond 21 appropriately to criticism from supervisors; to get along with coworkers or peers without 22 distracting them or exhibiting behavioral extremes; to maintain socially appropriate behavior and 23 to adhere to basic standards of neatness and cleanliness; to respond appropriately to changes in 24 the work setting; to travel in unfamiliar places or use public transportation; and, to set realistic 25 goals or make plans independently of others. AR 984-85. Plaintiff had moderate limitation of 26 her ability to carry out very short and simple instructions; to sustain an ordinary routine without 27 special supervision; to ask simple questions or request assistance; and, to be aware of normal 28 1 hazards and take appropriate precautions. AR 984-85. Ms. Serrano added that Plaintiff’s bipolar 2 disorder and anxiety impaired her social, occupational and inter-personal functioning. AR 986. 3 Plaintiff’s prognosis was poor to fair. AR 986. 4 On August 7, 2015, CalWorks counselor Jeremy Brownstein, ACSW, opined that Plaintiff 5 lacked the tools and wellness to participate in activities and work. AR 1082. Plaintiff struggled 6 engaging socially and in groups, was unable to perform various activities identified as “task 7 completion,” and lacked sufficient skills to handle stress and work independently. AR 1082. 8 On December 23, 2015, Dr. Simenson added his signature to Ms. Serrano’s opinion. AR 9 997-99, 1083-85. 10 6. Medical Source Statement: Physician Assistant 11 On July 1, 2015, Mr. Barrett completed a physical medical source statement. AR 980-83. 12 Plaintiff was diagnosed with bipolar disorder and migraine headaches with good prognosis. AR 13 980. Psychological factors contributed to the severity of Plaintiff’s symptoms of headache and 14 fluctuating mood. AR 980. 15 In Mr. Barrett’s opinion, Plaintiff could walk six to ten blocks without rest, and sit for at 16 least 6 hours and stand for about four hours in an 8-hour workday. AR 980-81. She did not need 17 to elevate her legs when sitting, or use an assistive device when walking. AR 981. Plaintiff could 18 lift twenty pounds occasionally and ten pounds frequently. AR 981. She could frequently twist 19 and stoop, occasionally crouch, squat and climb stairs and rarely climb ladders. AR 981. She had 20 no significant limitations of reaching, handling or fingering. AR 981. Plaintiff was capable of 21 low stress work and would likely need one or two unscheduled breaks daily and be absent about 22 three days per month. AR 982. 23 C. The ALJ’s Analysis 24 Because Dr. Bonner’s opinion was offered in the initial review of Plaintiff’s application 25 for benefits and did not take into account Plaintiff’s pain and later evidence, the ALJ gave partial 26 weight to the doctor’s opinion that Plaintiff had no exertional limitations, but should avoid 27 concentrated exposure to pulmonary irritants. AR 23. The ALJ similarly gave little weight to Dr. 28 Balson’s opinion on reconsideration and partial weight to Dr. Wagner’s consultative opinion, 1 finding that neither of those opinions adequately acknowledged later medical records establishing 2 the severity of Plaintiff’s back pain and headaches. AR 23. 3 Acknowledging that a reasonable argument could be made to limit Plaintiff to light work, 4 the ALJ gave partial weight to Mr. Barrett’s opinion to the extent that it supported the residual 5 functional capacity that the ALJ determined. AR 23. However, the ALJ gave little weight to Mr. 6 Barrett’s opinion that Plaintiff would be off task during workdays and excessively absent, finding 7 no support in the record for those portions of Mr. Barrett’s opinion. AR 23. 8 The ALJ gave great weight to Dr. Swanson’s opinion that Plaintiff’s level of functioning 9 would be limited by her borderline intellectual functioning but that she could understand, carry 10 out and remember simple instructions. AR 23. The ALJ found Dr. Swanson’s opinion to be 11 internally consistent and consistent with the evidence as a whole and supported by specific 12 references to medical evidence. AR 23. However, the ALJ gave little weight to Dr. Swanson’s 13 determination that Plaintiff’s GAF was 66. AR 24-25. 14 The ALJ gave little weight to Dr. Simenson’s opinion, expressed identically on three 15 different occasions. AR 23-24. She wrote: 16 All these forms appear to be the same. He stated that the claimant experiences poor concentration and poor memory, sleep disturbance, 17 fatigued [sic], depressed mood, and psychomotor agitation; and that she also experiences high anxiety, constant worry, racing thoughts, 18 and panic attack-like symptoms. However, his own treatment record from February 2015 noted that the claimant’s psychiatric 19 examination was normal with her being oriented to time, place, person and situation with no agitation, appropriate mood and affect, 20 no increased activity, no mood swings, not paranoid, normal insight, normal attention span and concentration, no pressured speech and no 21 suicidal ideation. His most recent treatment records from December 2015 and August 2016 had similar findings. Therefore, Dr. 22 Simenson’s opinion of Plaintiff’s limitations is inconsistent with his own treatment record. 23 AR 23-24 (references to administrative record omitted). 24 D. The ALJ Appropriately Analyzed Mr. Barrett’s Opinion 25 Pointing to Mr. Barrett’s having treated Plaintiff for migraine headaches, obesity, poor 26 mobility, bipolar disorder and anxiety, Plaintiff contends that the ALJ erred in giving little weight 27 to Mr. Barrett’s opinion that Plaintiff would be off task 25 percent of the work day and would 28 1 miss about three work days each month. Characterizing the disputed portion of Mr. Barrett’s 2 opinion as totally subjective and unable to be determined based on objective clinical findings, the 3 Commissioner counters that the ALJ properly rejected that portion of the opinion since only an 4 acceptable medical source could render an opinion without support in the treatment record. 5 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 6 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 7 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4), 8 416.927(c)(4) (“the more consistent an opinion is with the record as a whole, the more weight we 9 will give to that opinion”). An ALJ may reject the opinion of any physician, including a treating 10 physician, if the opinion is not adequately supported by the physician’s own treatment notes and 11 the record as a whole. See Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012); Lusardi v. 12 Astrue, 350 Fed.Appx. 169, 172 (9th Cir. 2009). 13 Under the regulations applicable to Plaintiff’s case, “[o]nly physicians and certain other 14 qualified specialists are considered ‘acceptable medical sources.’” Ghanim v. Colvin, 763 F.3d 15 1154, 1161 (9th Cir. 2014). Physician assistants are considered ‘other sources,’ and the ALJ may 16 discount their testimony so long as the ALJ gives germane reasons for doing so. Id. Because 17 conflict between treatment records and medical opinions, such as the ALJ’s finding that Mr. 18 Barrett’s records provided no support for his opinion, is a legitimate basis for rejecting an opinion 19 of an acceptable medical source, such conflict must also be an acceptable reason for an ALJ’s 20 rejection of opinions from other sources such as physician assistants. 21 Plaintiff appears to contend that support for Mr. Barrett’s opinion may be drawn from the 22 ailments for which Mr. Barrett treated Plaintiff: migraine headaches, obesity, poor mobility, 23 bipolar disorder and anxiety. Even in combination, however, Plaintiff’s impairments do not, of 24 themselves, necessarily lead to excessive absence or inability to focus on work responsibilities, 25 particularly since Plaintiff received medication and other therapy to ameliorate the effect of these 26 impairments. The Court declines to second guess the ALJ’s determination that the record did 27 support Mr. Barrett’s opinion that Plaintiff would be unable to concentrate for a full workday or 28 avoid excessive absences. 1 E. Dr. Simenson Did Not Prepare the Three Opinions Attributed to Him 2 After finding that Dr. Simenson apparently rendered the same opinion on three separate 3 occasions, the ALJ discounted Dr. Simenson’s opinion as inconsistent with his treatment records. 4 The Commissioner counters that the ALJ properly discounted Dr. Simenson’s opinion since the 5 regulations permit the ALJ to give less than controlling weight to an opinion of a treating 6 physician that is not well supported and consistent with other substantial evidence in the record. 7 The Court agrees that Dr. Simenson’s treatment records did not support the check-box opinions 8 attributed to him. Because the ALJ overlooked the factual background of the three apparently 9 similar opinions, the ALJ failed to recognize that Dr. Simenson had not even prepared the 10 opinions in question. 11 1. Factual Background 12 The ALJ identified three form opinions (Ex. 16F (AR 984-86), Ex. 19F (AR 997-99) and 13 Ex. 26F (AR 1083-85)) as being the opinions of Dr. Simenson. AR 23-24. However, the first 14 opinion (AR 984-86), dated June 9, 2014, was prepared by and signed only by social worker 15 Rosalba Serrano. AR 986. On May 22, 2014, Ms. Serrano had noted that she needed to complete 16 SSI paperwork on Plaintiff’s behalf. AR 905. In the first hearing decision, dated September 10, 17 2015, original ALJ Cynthia Floyd discounted Ms. Serrano’s opinion: 18 On June 9, 2014, Rosalba Serrano, LCSW[,] completed a Mental 19 Residual Functional Capacity Assessment (Exhibit 16F), which the undersigned gives no weight because it is in check box form and she 20 does not provide adequate objective evidence such as mental status examination findings to support it. Furthermore, Ms. Serrano is not 21 an acceptable source. 22 AR 180. 23 Despite her rejection of Ms. Serrano’s opinion, ALJ Floyd found Plaintiff to be under a disability 24 as defined by the Social Security Act. AR 182. In November 2015, the Appeals Council notified 25 the parties of its intent to review the hearing decision. AR 282-89. 26 In his notes for Plaintiff’s December 23, 2015, appointment, Dr. Simenson noted, “applied 27 for disability about 4x, appealed the denial 3-4x, needs forms completed. Has form completed by 28 1 LCSW that requires MD signature.” AR 1025. Accordingly, Dr. Simenson added his signature 2 to Ms. Serrano’s opinion but made no changes to Ms. Serrano’s opinion. AR 999, 1085. The 3 same countersigned form appears as both Exhibit 19F and 26F. 4 2. The ALJ Erred in Attributing the Opinions to Dr. Simenson 5 Understanding the opinions’ origin clarifies the lack of evidentiary support in Dr. 6 Simenson’s treatment records. Even if the Court were to excuse the ALJ’s oversight in light of 7 the complexity of the extensive medical records in this case, the ALJ should have reviewed three 8 opinions that “appear[ed] to be the same” (AR 24) in sufficient detail to recognize that Dr. 9 Simenson did not prepare the opinions and did not sign the copy at AR 984-86. Simply put, the 10 ALJ’s inadequate review of the administrative record resulted in her erroneously attributing the 11 opinions to Dr. Simenson.30 12 3. The ALJ’s Error Was Harmless 13 An ALJ's error is harmless where it is “inconsequential to the ultimate nondisability 14 determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 15 Although the ALJ failed to recognize the true nature of Dr. Simenson’s purported opinions, she 16 gave the opinions little weight since they were inconsistent with Dr. Simenson’s records of 17 treating Plaintiff. Because the ALJ gave little weight to the opinions, the result was substantially 18 the same as it would have been had she rejected the opinions because Dr. Simenson not render 19 them. A “court will not reverse an ALJ’s decision for harmless error, which exists when it is 20 clear from the record that the ALJ’s error was inconsequential to the ultimate nondisability 21 determination.” Tommasetti, 533 F.3d at 1038 (citations and internal quotation marks omitted). 22 In this case, the ALJ’s giving little weight to the purported opinion had the same effect on the 23 ultimate disposition of Plaintiff’s disability applications as would have resulted from accurately 24 recognizing that Dr. Simenson did not prepare the opinions. 25 /// 26 ///
27 30 Having obtained Dr. Simenson’s signature on Ms. Serrano’s opinion, Plaintiff has to have known that Dr. Simenson did not prepare the three opinions in question. Nonetheless, she contends that the ALJ erred in failing to 28 give controlling weight to opinions prepared by a treating physician. 1 2 3 4 5 6 7 X. Conclusion and Order 8 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 9 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 10 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of 11 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of 12 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Silhouette 13 Gomez. 14 IT IS SO ORDERED. 15
16 Dated: November 4, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17
18 19 20 21 22 23 24 25 26 27 28
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