Tahir v. Berryhill

• Court: District Court, N.D. California
• Decided: August 14, 2020
• Docket: 4:18-cv-03675
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYED ABU TAHIR, Case No. 18-cv-03675-HSG

8 Plaintiff, ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY 9 v. JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR 10 NANCY A. BERRYHILL, SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 23, 24, 25

12 13 The former Acting Commissioner of the Social Security Administration (“SSA”), Nancy 14 A. Berryhill (“Defendant”), acting in her official capacity, denied Plaintiff Syed Abu Tahir’s 15 (“Plaintiff”) application for Period of Disability and Disability Insurance Benefits (“DIB”) under 16 Title II of the Social Security Act (“Act”). See 42 U.S.C § 423(d)(1)(A); Dkt. No. 1. Plaintiff 17 seeks judicial review of that decision. See Dkt. No. 1. On February 2, 2019, Defendant filed a 18 transcript of the administrative record with the Court. See Dkt. No. 17 (“AR”). Plaintiff filed his 19 motion for summary judgment on June 10, 2019. See Dkt. No. 23 (“Pl. Mot.”). Andrew Saul, the 20 Acting Commissioner of the SSA, responded with a cross-motion for summary judgment on July 21 8, 2019. See Dkt. No. 24 (“Def. Mot.”). Plaintiff subsequently filed a reply brief on July 22, 22 2019. See Dkt. No. 25 (“Rep.”). For the reasons set forth below, the Court DENIES Plaintiff’s 23 motion for summary judgment, and GRANTS Defendant’s motion for summary judgment.1 24 I. BACKGROUND 25 A. Factual Background 26 Plaintiff was born on December 1, 1970. AR 28. He completed medical school in 27 1 Pakistan and attended one year of residency for internal medicine in Boston, but did not complete 2 his residency. AR 17. He has prior relevant work experience as a biochemist tech, research 3 assistant, public health consultant, and salesclerk. AR 28. 4 Plaintiff was diagnosed as HIV positive in 2008, which led to recurring depressive 5 symptoms. AR 17. He testified that his last job was at Genentech in November 2013, but he quit 6 after a depressive episode. Id. He reported being generally happy at his job until he was 7 reassigned to another group (leaving him stressed and depressed). Id. Plaintiff then quit in search 8 of a new job, but quitting left him feeling depressed, “worthless, defeated, [and] lost.” AR 51-52. 9 1. Plaintiff’s Medical Condition 10 Plaintiff alleges that he has severe impairments and suffers from HIV, mild degenerative 11 joint disease, type II diabetes, high blood pressure, and depression. AR 12. He testified that he 12 struggles with a “really debilitating depression” that affects his short term memory, ability to 13 concentrate and complete tasks, get out of bed, shower, pay bills on time, and interact with people, 14 and generally inhibits him from completing various other daily tasks. AR 49-59. Plaintiff 15 testified that he used to be a lively person, but that he now has no friends and gets anxiety when he 16 is around others or leaves the house for more than “10 or 15 minutes.” AR 57. To treat his 17 various health conditions, Plaintiff sees a psychiatrist (who has prescribed various different 18 medicines to help his mental conditions), goes to therapy weekly, and regularly sees his treating 19 physicians (who have prescribed drugs to combat his HIV and diabetes). AR 53-59. 20 Physically, Plaintiff claims that he has uncontrolled diabetes. AR 53. Plaintiff takes 21 medications for HIV, but those medications allegedly cause joint pain, skin infections, and 22 stomach issues. AR 53-54. Additionally, Plaintiff contends he has severe fatigue and an inability 23 to sleep through the night that subsequently interferes with his ability to perform daily tasks. AR 24 54-55. Plaintiff states that his appearance has changed and that he has lost “significant weight” 25 because of his constant fatigue and lack of energy. AR 56. 26 2. Plaintiff’s Physicians and Experts 27 a. Dr. Dan Wlodarczyk, M.D. and Nurse Practitioner John Friend 1 Friend (“NP Friend”), completed a medical report on May 26, 2015. AR 669-71. As a result of 2 his HIV diagnosis, Plaintiff has allegedly suffered from chronic fatigue and severe depression 3 which have led to difficulties in social functioning, completing tasks in a timely manner, and 4 engaging in daily living activities. Id. The medical report noted that Plaintiff’s depression 5 appeared to be disabling. Id. On October 5, 2015, Dr. Wlodarczyk found that Plaintiff could 6 occasionally lift/carry 20 pounds and sit without limit. AR 717-19. On July 6, 2015, Dr. 7 Wlodarczyk also wrote that Plaintiff described a severely depressed mood, anxiety, and social 8 isolation. AR 719. 9 b. Dr. Dan Karasic, M.D. 10 Dr. Dan Karasic, M.D. is a member of the Positive Health Practice Ward at San Francisco 11 General Hospital. AR 678-95; 728-29; 801-02. He saw Plaintiff at least four times since Plaintiff 12 began receiving treatment there in April 2015. AR 678-96, 721-33. Dr. Karasic performed a 13 psychiatric evaluation of Plaintiff on March 15, 2016. AR 735. Dr. Karasic wrote that Plaintiff 14 had expressed that he was constantly depressed, had low energy, poor appetite, fatigue, and 15 hopelessness. AR 735. He noted that Plaintiff was depressed since leaving his job in 2013. Id. 16 Dr. Karasic also found that Plaintiff’s demeanor was calm, but that he was persistently depressed, 17 had poor concentration, and was forgetful. AR 737. 18 Additionally, Dr. Karasic found that Plaintiff was markedly impaired with daily activities 19 (showering, cleaning, cooking, eating, and paying bills), and in social functioning. AR 737. Dr. 20 Karasic wrote that Plaintiff had low energy and difficulty managing stressful situations, and is 21 forgetful with scheduling. Id. He diagnosed Plaintiff with Major Depressive Disorder, recurrent 22 and severe, and HIV. However, his treatment notes generally show some improvements in regard 23 to Plaintiff’s depressive symptoms, although these do not appear to be permanent changes. AR 24 678, 728, 802, 801. 25 c. Marriage and Family Therapist Michael Ahern, M.F.T. 26 Marriage and family therapist Michael Ahern, M.F.T. (“Therapist Ahern”) wrote on 27 October 31, 2017, that Plaintiff’s depressive symptoms have been present for about five years. 1 wrote that Plaintiff’s affect and demeanor were consistent with someone with severely depressed 2 mood, and noted that Plaintiff occasionally missed appointments (about one in four) by not 3 showing up and failing to notify him in advance. AR 852-54. In terms of working, he estimated 4 that Plaintiff would be absent from work approximately four or more days per month as a result of 5 his impairment, and that he was likely not prepared to return to work in any manner for the next 6 year because he would not be able to perform any job due to his impairments. AR 856. 7 However, Therapist Ahern saw signs of improvement due to treatment. AR 854-56. On 8 January 11, 2017, he noted that Plaintiff reported that his depression was lessening and that he was 9 seeing progress because of therapy, but that the severity of his depression still remained strong. 10 AR 755. On February 16, 2017, Therapist Ahern described Plaintiff as feeling less depressed, that 11 his depression was improving, and that he was well medicated, but that improvement was slowed. 12 AR 762. On March 1, 2017 Therapist Ahern also noted that Plaintiff was exercising more and 13 engaging with people, but still reported that he felt like he had not made improvements. AR 764. 14 3. State-Agency Consultative Examining Physician 15 a. Dr. Faith Tobias, PhD 16 When Plaintiff was tested by Dr. Tobias, he was found to be markedly impaired in 17 psychomotor speed, visual scanning, and sequencing per Part A and Part B of the Trail Making 18 Test. AR 705. When Plaintiff took the WAIS-IV sub-tests on Digital Span, Symbol Search, and 19 Coding, he was in the borderline level of ability in attention and concentration (Digital Span), the 20 borderline ability as to processing speed, visuomotor coordination, cognitive flexibility, and 21 concentration (Symbol Search), and an extremely low level of ability in the Coding sub-test. AR 22 705-06. Dr. Tobias also noted that Plaintiff put forth a decreased effort and had a lack of 23 motivation due to depression during the testing, which showed generally lower results than 24 someone of his education and work history. Id. 25 Dr. Tobias opined on September 21, 2015 that Plaintiff had (1) no impairment in his ability 26 to follow or remember simple and complex instructions; (2) none to a mild impairment in his 27 ability to perform simple routine tasks and interact with others; (3) a mild impairment in his ability 1 and persistence when performing complex tasks; and (5) a moderate impairment in his ability to 2 maintain emotional stability when handling the stress of a routine workday. AR 85. 3 b. Dr. Catherine Blusiewicz, M.D. 4 State agency medical consultant Dr. Catherine Blusiewicz, M.D. saw Plaintiff and opined 5 on October 20, 2015, that he (1) could “understand and recall simple instructions;” (2) could 6 “sustain concentration for 2+ hours, and would perform simple instructions with appropriate 7 sustained concentration, persistence, and pace;” (3) had adequate interpersonal skills that would 8 enable him to communicate and interact with others in a satisfactory way for basic work functions, 9 but that he occasionally would have difficulty interacting with the public and co-workers; and (4) 10 had “adaptive functional ability and could respond…appropriately to changes in a routine work 11 setting.” AR 77. Additionally, Dr. Blusiewicz wrote that the opinion by Dr. Wlodarczyk and NP 12 Friend was less persuasive because it relied heavily on subjective reports and symptoms (which 13 the totality of evidence did not support). Id. In conclusion, Dr. Blusiewicz found that Plaintiff 14 was not disabled. AR 79. 15 c. Dr. Kim Morris, PsyD 16 Dr. Kim Morris, PsyD, performed a Mental Residual Functional Capacity Assessment and 17 opined on June 22, 2016 that Plaintiff (1) had the ability to sufficiently remember and understand 18 both simple and detailed instructions; (2) had the ability to sufficiently complete simple and 19 detailed instructions while maintaining “adequate attention, concentration, [and] persistence as 20 needed to complete a full work day/work week;” (3) had the ability to sufficiently maintain 21 appropriate behavior with limited peer and public contact; and (4) is sufficiently aware of ordinary 22 work hazards, can make simple decisions, and is able to cope with the demands of a routine work- 23 life environment. AR 94-96. Dr. Morris also wrote that Dr. Wlodarczyk and NP Friend’s opinion 24 relied heavily on subjective reports and symptoms, and thus was less persuasive. AR 97. 25 d. Dr. Bradus, M.D. 26 Dr. Bradus performed a Physical Residual Functional Capacity Assessment of Plaintiff and 27 opined on June 9, 2016 that Plaintiff could occasionally lift or carry up to 20 pounds, frequently 1 workday. AR 93-94. He found that because of Plaintiff’s HIV, mild degenerative joint disease, 2 and side effects of medications, it would be reasonable to limit Plaintiff to light work. AR 94. In 3 conclusion, Dr. Bradus found that Plaintiff was limited to unskilled work because of his 4 impairments, but that he was not disabled and his condition was not severe enough to keep him 5 from working. AR 98-99. 6 B. Legal Framework of the Social Security Act 7 To qualify for DIB, the claimant must be “disabled” as defined by the Act. Both benefit 8 programs define disability as an individual’s inability “to engage in any substantial gainful activity 9 by reason of any medically determinable physical or mental impairment which can be expected to 10 result in death or which has lasted or can be expected to last for a continuous period of not less 11 than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505; 12 id. § 416.905. The SSA deems a person disabled only if: 13 [H]is physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering 14 his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or 16 whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with 17 respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region 18 where such individual lives or in several regions of the country. 19 42 U.S.C. § 423(d)(2)(A); id. § 1382c(a)(3)(B). 20 1. Five-Step Process for Evaluating Claimant’s Disability Claim 21 When the claimant is dissatisfied with the initial and reconsidered decisions by the SSA, 22 the claimant may request a hearing in front of an administrative law judge (“ALJ”). 20 C.F.R. 23 §§ 404.929, 416.1429. The ALJ will issue a new decision based on the preponderance of the 24 evidence developed in the hearing record and in the file. Id. §§ 404.929, 416.1429. To determine 25 whether the claimant qualifies for disability benefits under Social Security law, the ALJ utilizes a 26 five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 27 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 1 a. Step One: Substantial Gainful Work Activity 2 At step one, the ALJ determines whether the claimant is currently engaged in work activity 3 that is substantial and gainful. Id. § 404.1520(a)(4)(i), (b); id. § 416.920(a)(4)(i), (b). Substantial 4 work activity “involves doing significant physical or mental activities . . . even if it is done on a 5 part-time basis” or requires “do[ing] less, get[ting] paid less, or hav[ing] less responsibility than 6 when [the claimant] worked before.” Id. §§ 404.1572(a), 416.972(a). “Gainful work activity is 7 work activity that [the claimant] do[es] for pay or profit . . . whether or not a profit is realized.” 8 Id. §§ 404.1572(b), 416.972(b). If the claimant is not presently working in substantial gainful 9 activity, step two is analyzed. However, if the claimant is engaged in substantial gainful activity, 10 the claimant is not disabled (regardless of any medical condition or the claimant’s age, education, 11 or work experience). Id. § 404.1520(a)(4)(i), (b); id. § 416.920(a)(4)(i), (b). 12 b. Step Two: Medical Severity of Impairment 13 If the claimant is not presently engaged in substantial gainful activity, the ALJ determines 14 whether the claimant’s alleged impairments are medically severe. Id. § 404.1520(a)(4)(ii), (c); id. 15 § 416.920(a)(4)(ii), (c). If the claimant lacks “any impairment or combination of impairments 16 which significantly limits [the claimant’s] physical or mental ability to do basic work activities,” 17 then the impairments are not severe. Id. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a). 18 “Basic work activities” are “the abilities and aptitudes necessary to do most jobs,” including 19 physical functioning, sensory capacity, following instructions, use of judgment, and responding 20 appropriately to routine work situations (including supervision and interactions with co-workers), 21 and dealing with changes to work routines. Id. §§ 404.1521(b), 416.921(b). Additionally, 22 “[u]nless [the claimant’s] impairment is expected to result in death, it must have lasted or must be 23 expected to last for a continuous period of at least 12 months.” Id. §§ 404.1509, 24 404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). If the claimant does not meet these requirements, 25 then he is not disabled (regardless of any medical condition or the claimant’s age, education, or 26 work experience. Id. § 404.1520(a)(4)(ii), (c); id. § 416.920(a)(4)(ii), (c). Step three is analyzed if 27 the claimant’s impairments are severe. Id. 1 c. Step Three: Listed Impairment 2 If the claimant has a severe impairment, the ALJ determines whether the claimant’s 3 impairment, or combination of impairments, medically “meets or equals” an impairment listed in 4 20 C.F.R., pt. 404, subpt. P, app. 1. Id. § 404.1520(a)(4)(iii), (d); id. § 416.920(a)(4)(iii), (d); see 5 also id. §§ 404.1525, 416.925 (describing Appendix 1’s purpose, organization, and use). A 6 claimant’s impairment is medically equivalent to a listed impairment if it is “at least equal in 7 severity and duration to the criteria of any listed impairment.” Id. §§ 404.1526(a), 416.926(a). If 8 the claimant’s impairment meets or exceeds the requirements of a listed impairment, the claimant 9 is disabled (regardless of age, education, and work experience). Id. § 404.1520(a)(4)(iii), (d); id. § 10 416.920(a)(4)(iii), (d). If the claimant’s impairments do not meet or exceed the requirements of a 11 listed impairment, step four is analyzed. Id. 12 d. Step Four: Residual Functioning Capacity and Past Relevant Work 13 If the claimant does not have a listed impairment, the ALJ assesses the claimant’s residual 14 functional capacity (“RFC”) and ability to perform past relevant work. 20 C.F.R. § 15 404.1520(a)(4)(iv), (e); id. § 416.920(a)(4)(iv), (e). The ALJ first assesses all the relevant medical 16 and other evidence in the record to determine the claimant’s RFC. Id. §§ 404.1520(e), 416.920(e). 17 The claimant’s RFC gauges the most the claimant can do despite the claimant’s limitations. Id. §§ 18 404.1545(a)(1), 416.945(a)(1). Before making a determination, the SSA is responsible for 19 developing the claimant’s complete medical history. Id. §§ 404.1545(a)(3), 416.945(a)(3). 20 In the RFC assessment, the ALJ assesses the claimant’s physical and mental symptoms and 21 abilities, as well as other abilities affected by the claimant’s impairments. Id. §§ 404.1545(b)–(d), 22 416.945(b)–(d). With respect to a claimant’s physical abilities, “[a] limited ability to perform 23 certain physical demands of work activity, such as sitting, standing, walking, lifting, carrying, 24 pushing, pulling, or other physical functions (including manipulative or postural functions, such as 25 reaching, handling, stooping or crouching), may reduce [a claimant’s] ability to do past work and 26 other work.” Id. §§ 404.1545(b), 416.945(b). 27 With respect to a claimant’s mental abilities, “[a] limited ability to carry out certain mental 1 responding appropriately to supervision, coworkers, and work pressures in a work setting, may 2 reduce [the claimant’s] ability to do past work and other work.” Id. §§ 404.1545(c), 416.945(c). 3 Additionally, “[s]ome medically determinable impairment(s), such as skin impairment(s), 4 epilepsy, impairment(s) of vision, hearing or other senses, and impairment(s) which impose 5 environmental restrictions, may cause limitations and restrictions which affect other work-related 6 abilities.” Id. §§ 404.1545(d), 416.945(d). Any physical or mental impairments must be 7 established by objective medical evidence from an acceptable medical source. Id. § 404.1521. 8 Next, the ALJ will compare the claimant’s RFC with the physical and mental demands of 9 the claimant’s past relevant work. Id. §§ 404.1520(f), 416.920(f). If the ALJ determines that the 10 claimant can still perform the past relevant work, then the claimant is not disabled. Id. 11 §§ 404.1520(f), 416.920(f). “Past relevant work” is work that the claimant has done in the past 15 12 years, that qualifies as substantial gainful activity, and that has “lasted long enough for [the 13 claimant] to learn to do it.” Id. §§ 404.1560(b)(1), 416.960(b)(1). The ALJ will determine 14 whether the claimant can do her past relevant work by evaluating the claimant’s testimony on 15 work performed in the past. Id. §§ 404.1560(b)(2), 416.960(b)(2). In addition, the ALJ may 16 evaluate the testimony of other people familiar with the claimant’s past work, the opinions of a 17 vocational expert (“VE”), or other resources, such as the Department of Labor’s Dictionary of 18 Occupational Titles. Id. §§ 404.1560(b)(2), 416.960(b)(2). 19 If the claimant is found not capable of performing past relevant work at Step Four, then the 20 burden of proof shifts to the Commissioner to prove at Step Five that the claimant is not disabled 21 and can adjust to other work. See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 22 e. Step Five: Adjustment to Other Work 23 If the claimant cannot perform past relevant work, the ALJ determines whether the 24 claimant can adjust to other work based on the claimant’s age, education, work experience, and 25 RFC. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is unable to do any other 26 work based on their age, education, work experience, and RFC, they are disabled. Id. The ALJ 27 uses the RFC assessment from Step Four to determine whether the claimant can adjust to other 1 significant numbers in the national economy that [the claimant] can do,” then the ALJ will find 2 that the claimant is not disabled. Id. §§ 404.1560(c)(2), 416.920(c)(2). The ALJ may meet the 3 Step Five burden in two ways: “(1) the testimony of a VE or (2) by reference to the Medical– 4 Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” See Osenbrock v. Apfel, 240 F.3d 5 1157, 1161 (9th Cir. 2001). 6 C. Procedural History 7 1. SSA Decision 8 On June 26, 2015, Plaintiff filed his DIB application, alleging that he was unable to 9 function or work since November 16, 2013 as result of HIV, type II diabetes, and depression. AR 10 81-83. The SSA denied the application both initially and upon reconsideration. AR 102-06; 110- 11 13. At Plaintiff’s request, Administrative Law Judge Nancy Lisewski held a hearing on 12 November 13, 2017. AR 43-63. Plaintiff, his attorney, and Nancy Rynd (an impartial Vocational 13 Expert) testified at the November hearing. Id. 14 On February 13, 2018, the ALJ issued an opinion finding that Plaintiff met the insured 15 status requirements of the Act, but was not disabled under the Act, and ultimately denied 16 Plaintiff’s DIB application. AR 7-29. Plaintiff subsequently requested a review of the ALJ 17 decision, but the Appeals Council denied Plaintiff’s request for review on May 2, 2018. AR 1-3. 18 The ALJ used the traditional five-step inquiry to evaluate Plaintiff’s claim. AR 11-12. 19 At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity 20 since the alleged disability onset date (November 16, 2013). See 20 C.F.R. § 404.1571 et seq; AR 21 12. At Step Two, the ALJ determined that Plaintiff had the following severe medical 22 impairments: HIV, mild degenerative joint disease, type II diabetes, high blood pressure, and 23 depression. See 20 C.F.R. § 404.1520(c); AR 12. The ALJ also found that these impairments 24 “significantly limit the ability to perform basic work activities as required by SSR 85-28.” AR 12- 25 13. The ALJ noted that Plaintiff was treated for skin lesions, but that the impairment was non- 26 severe and did not meet the 12-month durational requirement. See 20 C.F.R. § 404.1509; AR 13. 27 At Step Three, the ALJ noted that Plaintiff “does not have an impairment or combination 1 C.F.R Part 404, Subpart P, Appendix 1.” See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526; AR 2 13. The ALJ considered all of the Plaintiff’s impairments individually and together, but found that 3 there was no evidence the impairments met or equaled the criteria for a listed impairment, so 4 disability could not be established solely on medical facts. Id. Plaintiff’s mental impairments did 5 not meet or equal the criteria for a listed impairment because his alleged mental impairments did 6 not result in one extreme or two marked limitations. AR 13. 7 The ALJ found that Plaintiff had: (1) a mild limitation in understanding, remembering, or 8 applying information; (2) a mild limitation adapting or managing oneself; (3) a moderate 9 limitation interacting with others; and (4) a mild limitation concentrating, persisting, or 10 maintaining pace. Id. Therefore, there was insufficient evidence for the ALJ to find that 11 Plaintiff’s mental disability was serious and persistent, that Plaintiff had a minimal capacity to 12 adjust or “adapt to changes in his environment, or to demands that were not already part of the 13 claimant’s daily life.” AR 13-14. Additionally, the evidence did not show that changes in 14 demands would increase Plaintiff’s symptoms. AR 14. 15 At Step Four, the ALJ found that Plaintiff had the RFC to “perform light work as defined 16 in 20 C.F.R. § 404.1567(b), except he could perform simple and detailed but not complex work 17 with occasional social interaction with co-workers and the public.” AR 14. The ALJ followed the 18 mandatory two-step analysis in considering the Plaintiff’s symptoms (considering first, whether 19 Plaintiff had an underlying medically determinable physical or mental impairment or impairments 20 that could be shown by medically acceptable diagnostic techniques; and if so, the extent to which 21 the intensity, persistence, and limiting effects of Plaintiff’s pain or other symptoms limited his 22 functioning). Id. To determine plaintiff’s ability to do work related activities, the ALJ must 23 consider other evidence in the record if the Plaintiff’s claims cannot be substantiated by objective 24 medical evidence. Id. 25 With respect to the first inquiry, the ALJ found that Plaintiff’s medically determinable 26 mental and physical impairments “could reasonably be expected to cause the alleged symptoms.” 27 AR 16. At the second stage of the inquiry, the ALJ found that Plaintiff’s “statements about the 1 Based on all of the medical evidence in the record, the ALJ found that Plaintiff was unable 2 to perform any of his past relevant work because the demands of that past relevant work exceeded 3 his RFC. 20 C.F.R. § 404.1565; AR 27-28. For example, Plaintiff had prior work experience as a 4 biochemist tech (DOT: 078.261-010, light exertion, SVP 7), research assistant (DOT: 199.267- 5 034, sedentary exertion, SVP 6), public health consultant (DOT: 070.101-046, light exertion, SVP 6 8), and salesclerk. (290.477-014, light exertion, SVP 3). AR 28. The ALJ found that even though 7 Plaintiff could not perform any past relevant work, he had the RFC to perform simple and detailed 8 tasks with some social limitations and light exertional work. AR 22. 9 The ALJ noted that while there were some abnormal findings in the record, the majority of 10 evidence pointed to Plaintiff being able to perform light exertional work. AR 22-23. For 11 example, (1) in 2015, the consultative psychologist noted that Plaintiff was moderately depressed 12 and reported suicidal ideation; (2) Plaintiff’s testing performance revealed low average to average 13 range in cognitive functioning with mildly to moderately decreased attention, concentration, and 14 pace; and (3) Plaintiff scored in the markedly impaired range on parts A and B of the Trail Making 15 Test. AR 22. However, the ALJ found that these abnormal findings generally occurred when 16 Plaintiff was noncompliant with medication or after he switched care to a medical doctor on the 17 advice of his attorney. Id. The ALJ also found that the record revealed that it was claimant’s 18 objective to obtain DIB, and that Plaintiff’s worsening symptoms tended to coincide with the 19 progress of his DIB claim. AR 23. The ALJ relied upon Dr. Tobias’s note that Plaintiff’s effort 20 was decreased during testing and that his lower scores on the Trail-Making Test appeared to 21 reflect a decrease in motivation and not a cognitive deficit. AR 22. . 22 Because the ALJ determined that Plaintiff would be unable to perform past relevant work, 23 the ALJ looked to see if Plaintiff could perform other work based on the claimant’s age, education, 24 work experience, RFC, and the Medical Vocational Guidelines. 20 C.F.R. §§ 404.1520(a)(4)(v), 25 416.920(a)(4)(v); AR 28. The ALJ determined that there were a significant number of jobs in the 26 national economy that Plaintiff could perform. AR 28. This finding was based on the testimony 27 from the impartial vocational expert Nancy Rynd. AR 28-29. The vocational expert testified that 1 SVP 2, approximately 4,000 jobs nationally), Photocopy Machine Operator (DOT: 207.685-014, 2 light exertion, SVP 2, over 18,000 jobs nationally) or Marker (DOT: 920.687-126, light exertion, 3 SVP 2, over 26,000 jobs nationally). Id. Based on this testimony and her finding that Plaintiff is 4 able to make a successful adjustment to other work that exists in significant numbers based on his 5 age, education, work experience, and RFC, the ALJ found that Plaintiff is not disabled and thus 6 not entitled to the disability benefits for which he applied. Id. 7 On May 2, 2018, the Appeals Council denied Plaintiff’s request for a review of the ALJ’s 8 decision. AR 1. Thus, the ALJ’s decision became the Commissioner’s final decision regarding 9 Plaintiff’s application. Id. 10 2. Judicial Appeal 11 On June 20, 2018, Plaintiff filed this appeal challenging Defendant’s final decision and 12 denial of disability benefits. See Dkt. No. 1; Pl. Mot. at 1. The Magistrate Judge issued a Report 13 and Recommendation recommending dismissal for failure to state a claim upon which relief could 14 be granted. See Dkt. No. 5 at 3. The Court rejected the Report and Recommendation and found 15 that Plaintiff’s initial complaint was sufficient because it established a facially plausible claim. 16 See Dkt. No. 10 at 2. 17 Plaintiff’s primary arguments on appeal are that the ALJ did not properly weigh the 18 evidence in the record and that rejecting the treating physicians’ opinions was legal error. See Pl. 19 Mot. at 1-2. Defendant responds that the ALJ fairly and accurately summarized the evidence of 20 record and properly evaluated all of the opinion evidence. See Def. Mot. at 4. 21 II. STANDARD OF REVIEW 22 The Court has jurisdiction to review final decisions of the Commissioner. See 42 U.S.C. § 23 405(g) (“The [district] court shall have power to enter, upon the pleadings and transcript of the 24 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 25 Security, with or without remanding the cause for a rehearing.”). The Court may disturb the 26 Commissioner’s decision to deny benefits only if the decision is either not supported by 27 substantial evidence or is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 1 1991). “Substantial evidence means such relevant evidence as a reasonable mind might accept as 2 adequate to support a conclusion. The evidence must be more than a mere scintilla, but may be 3 less than a preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110–11 (9th Cir. 2012) (internal 4 quotation marks and citations omitted). This standard of review is “highly deferential.” Valentine 5 v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009). “Where the evidence is susceptible to more than one 6 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 7 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); see also Mayes v. Massanari, 8 276 F.3d 453, 459 (9th Cir. 2001). 9 The Court must consider the administrative record as a whole, weighing both the evidence 10 that supports and the evidence that detracts from the ALJ’s conclusion. McAllister v. Sullivan, 11 888 F.2d 599, 602 (9th Cir. 1989). The ALJ is responsible for making determinations of 12 credibility and for resolving evidentiary ambiguities, including conflicting medical testimony. 13 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Additionally, the Court “may not 14 reverse an ALJ’s decision on account of an error that is harmless. The burden of showing that an 15 error is harmful normally falls upon the party attacking the agency’s determination.” Molina, 674 16 F.3d at 1111 (internal quotation marks, brackets, and citations omitted). 17 III. DISCUSSION 18 The Court addresses both Plaintiff and Defendant’s contentions regarding the ALJ’s 19 finding of non-disability, specifically the ALJ’s evaluation of medical opinion evidence. 20 A. Evaluation of Opinion Evidence 21 Plaintiff contends that the ALJ failed to properly weigh the opinions of Plaintiff’s treating 22 physician (Dr. Wlodarczyk), his treating nurse (NP Friend), Dr. Karasic, and his therapist 23 (Therapist Ahern). See Pl. Mot. at 6-10. The ALJ gave little weight to their opinions because (1) 24 they were heavily dependent on Plaintiff’s subjective report of his symptoms; (2) they were not 25 supported by the overall medical record; (3) they were inconsistent with Plaintiff’s previous 26 statements, assessments, and treatment records; and (4) the examination findings were generally 27 mild. AR 26; Pl. Mot. at 10. Specifically, Plaintiff contends that the ALJ’s reasons for rejecting 1 contends that the ALJ incorrectly gave great weight to the contradictory opinions of Drs. Tobias, 2 Blusiewicz, and Morris. Id. at 10-11. 3 When determining whether Plaintiff has a medically determinable impairment, the ALJ 4 must consider medical opinions and the relevant evidence. See 20 C.F.R. § 404.1527(b). The 5 impairment must be established by objective medical evidence from an acceptable medical source 6 (such as a licensed physician). See 20 C.F.R. § 404.1521. There are “three types of physicians: 7 (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the 8 claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non- 9 examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Drs. Wlodarczyk and 10 Karasic are treating physicians. See Def. Mot. at 4; Rep. at 1. 11 As a general rule, more weight is generally given to the treating physician’s opinion, but it 12 “is not . . . necessarily conclusive as to either a physical condition or the ultimate issue of 13 disability.” Magallanes, 881 F.2d at 751. If the treating physician’s opinion is contradicted by 14 other opinions, then the ALJ must provide “specific and legitimate reasons supported by 15 substantial evidence in the record” for rejecting the treating physician’s opinion. Lester, 81 F.3d 16 at 830 (quotations omitted). The ALJ can do this by examining the evidence in the record and 17 offering interpretations of it, but the ALJ must do more than just state conclusions. See Reddick v. 18 Chater, 157 F.3d, 715, 725 (9th Cir. 1998). The ALJ is allowed to evaluate medical opinions 19 based on their consistency with the overall record as a whole. See 20 C.F.R § 404.1527(c)(4); Orn 20 v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 21 NP Friend and Therapist Ahern are not acceptable medical sources, and are instead 22 classified as “other sources.” See 20 C.F.R § 404.1502(a); Pl. Mot. at 6. Advanced registered 23 nurses are only acceptable sources for claims filed after March 27, 2017 (which does not apply 24 here). Id. Plaintiff concedes that neither NP Friend nor Therapist Ahern is an acceptable medical 25 source. See 20 C.F.R § 404.1502(a); Revels v. Berryhill, 874 F.3d 648, 665 (9th Cir. 2017) 26 (finding that nurse practitioners are considered other sources and are not acceptable medical 27 sources); Castaneda v. Astrue, 344 F. App'x 396, 399 (9th Cir. 2009) (holding that a nurse 1 practitioner’s report little weight);2 Michalski v. Colvin, No. 15-CV-04483-EMC, 2016 WL 2 4585770 at *4-5 (N.D. Cal. Sept. 2, 2016) (holding that therapist opinions may be afforded less 3 weight because they are viewed as an “other source” and are not an acceptable medical source); 4 Pl. Mot. at 6. Because these witnesses are not acceptable medical sources, the ALJ needed only to 5 provide a germane reason for discounting them. Molina, 674 at 1111. 6 The Court finds that the ALJ gave specific and legitimate reasons supported by substantial 7 evidence for giving little weight to the opinions of Drs. Wlodarczyk and Dr. Karasic, discounting 8 the opinions of NP Friend and Therapist Ahern, and giving greater weight to the opinions of Drs. 9 Tobias, Blusiewicz, and Morris. See Lester, 81 at 830. For example, the ALJ noted that Dr. 10 Wlodarczyk and NP Friend assessed marked limitations in both social functioning and cognitive 11 functioning, AR 20, 24, but many physicians (including Plaintiff’s) described him as “groomed,” 12 “polite,” “cooperative,” and “pleasant,” with good eye contact and normal speech. AR 20, 24; see 13 e.g., id. 583, 585, 587, 589, 704, 754, 836. Additionally, in regard to Plaintiff’s cognitive 14 functioning, the ALJ noted that a number of physicians found that Plaintiff had intact memory, 15 normal speech, and linear, coherent, and logical thought processes. AR 20, 24; see e.g., id. 583, 16 585, 587, 589, 704, 754, 836. Plaintiff also stated multiple times that that he felt less depressed 17 after taking medications and that he was sleeping better. AR 18. These comments by him, Dr. 18 Wlodarcyzk, and NP Friend support the ALJ’s conclusion that Plaintiff is able to perform 19 unskilled work with occasional social contact. AR 14, 20, 24; see e.g., id. 565, 588, 589, 583, 20 585, 587, 589, 704, 754, 836; 20 C.F.R § 404.1527(c)(3). 21 The ALJ gave little weight to the opinions of Dr. Wlodarczyk and NP Friend because those 22 opinions were inconsistent with the overall record. AR 26. For example, Dr. Wlodarczyk and NP 23 Friend submitted medical statements on May 29, 2015, detailing that HIV contributed to 24 Plaintiff’s depression and chronic fatigue. Id. Although Plaintiff alleged that his HIV medication 25 upset his stomach and caused bloating, diarrhea, and joint paint, the ALJ noted that Plaintiff also 26 told his treatment advisors that he tolerated his medication well, and treatment providers assessed 27 1 on multiple occasions that his HIV has been well controlled since taking the medications. AR 15- 2 16. 3 The Court finds that the ALJ’s reasons for discounting the opinions of Dr. Wlodarczyk and 4 NP Friend, combined with the ALJ’s interpretation of conflicting medical evidence, constitute 5 specific and legitimate reasons supported by the record. See Thomas, 278 at 957 (holding that the 6 ALJ “gave specific [and] legitimate reasons for discrediting particular opinions”).3 The ALJ 7 found that (1) the opinions were “overly dependent on the claimant’s subjective symptoms;” (2) 8 “the findings on examination were generally mild;” (3) the opinions were “inconsistent with the 9 claimant’s statements, other assessments, and subsequent treatment records;” and (4) these 10 individuals are not mental health specialists. AR 26; see also 20 C.F.R § 404.1527(c)(3) (giving 11 less weight to medical opinions from non-specialists). The ALJ—with extensive citations to the 12 record—concluded that the results of Dr. Wlodarczyk and NP Friend’s mental status examinations 13 were mild and that there was no evidence of depression, anxiety, or other agitation. AR 20. The 14 ALJ found Plaintiff to be physically able to work because the results of his physical examinations 15 were generally mild, as Plaintiff was never in acute distress, was able to get on and off the exam 16 table without any issues despite allegations of severe fatigue, and was able to exercise. AR 20-21. 17 Plaintiff also consistently reported a pain score of zero (1-10 scale) when he sought treatment. AR 18 15-16. 19 The Court also finds that the ALJ properly rejected treating physician Dr. Karasic’s 20 opinion because it was heavily based on Plaintiff’s subjective reports, was not supported by the 21 overall record, and was inconsistent Plaintiff’s previous statements, assessments, and treatment 22 records. AR 26; see 20 C.F.R § 404.1527 (c)(4) (“Generally, the more consistent an opinion is 23 with the record as a whole, the more weight we will give to that opinion”); Tommasetti v. Astrue, 24 533 F.3d 1035, 1041 (9th Cir. 2008) (explaining that a finding that medical opinions are heavily 25 based on subjective opinions which are inconsistent with the medical record as a whole is a 26

27 3 Additionally, since NP Friend is not an acceptable medical source, his opinion may be given less 1 specific and legitimate reason for discounting those opinions). 2 Dr. Karasic diagnosed Plaintiff with major depressive disorder, recurrent and severe, and 3 HIV, AR 738, and opined that Plaintiff was markedly impaired with activities of daily living, 4 concentration and task completion, and adapting to work-like situations, and had a marked 5 limitation in regard to social functioning. AR 24. Dr. Karasic also noted that Plaintiff’s 6 symptoms were depression, low energy, insomnia, poor appetite, and fleeting suicidal ideation. 7 AR 25-26. He also noted that Plaintiff had been treated for major depression in the past and 8 continued to be treated for it at the present, but the current depression had not remitted even with 9 medication. AR 26. Additionally, “the mental status exam revealed that [Plaintiff] was 10 persistently depressed, calm, and pleasant, except when recounting treatment at his last job.” AR 11 26. Dr. Karasic found that Plaintiff had a marked impairment in regard to social functioning 12 because he did not have social interactions with others and did not like to leave his apartment. AR 13 736. 14 The ALJ discounted Dr. Karasic’s opinion because the evidence in the record and in the 15 HIV questionnaire showed that Plaintiff could complete household chores, prepare his own meals, 16 complete his own shopping, manage his finances, and generally manage daily living activities. 17 AR 19. The ALJ determined that the intensity, persistence, and limited effects of his reported 18 symptoms were inconsistent with the record as a whole. AR 18. For example, after being 19 prescribed medication, Plaintiff reported that he was less anxious, less depressed, and that he was 20 overall feeling better. Id. The ALJ also found that the evidence showed that Plaintiff was more 21 socially engaged with others by greeting people and performing charitable acts. AR 20. The 22 Court finds that these are specific and legitimate reasons supported by the record for discounting 23 Dr. Karasic’s opinion. 24 The ALJ also properly gave little weight to Therapist Ahern because his assessment was 25 not supported by the treatment records that he authored, and Therapist Ahern is not an acceptable 26 medical source. AR 26; Michalski, at *4-5; Pls. Mot. at 6. Therapist Ahern claimed that Plaintiff 27 missed a quarter of his appointments, his depressive symptoms occurred most days of the week, he 1 appetite which resulted in weight loss. AR 24-25. Therapist Ahern also noted that Plaintiff’s 2 mental examinations showed someone who was in a severely depressed mood. AR 25. He opined 3 that Plaintiff was markedly limited in interacting with others and adapting or managing oneself, 4 and markedly impaired in regard to concentrating, persistence, and pace because of a lack of 5 energy. Id. Additionally, Therapist Ahern believed that Plaintiff would be unlikely to get a job in 6 his current condition, would not be able to return to work for at least a year, and could not perform 7 a job of any description because of his impairments and symptoms. Id. 8 However, despite Plaintiff’s contentions that he was not improving, treatment notes in the 9 record by Therapist Ahern showed that Plaintiff was improving with treatment. AR 762, 854-56. 10 The ALJ found that this evidence in the record showed an improvement in Plaintiff’s overall 11 mentality, and helped him feel less depressed, more hopeful, less stressed, and more engaged with 12 society. AR 18-19. In April 2017, Therapist Ahern noted that Plaintiff reported that he was doing 13 “ok” with his depression, and in May 2017, he noted that Plaintiff looked healthier and less 14 depressed. AR 18. Plaintiff also showed a desire to work again and engage in life. Id. These 15 improvements by Plaintiff support the ALJ’s decision to discount Therapist Ahern’s opinions. See 16 Delegans v. Colvin, 584 F. App'x 328, 333 (9th Cir. 2014) (evidence of improvement and opinion 17 inconsistent with the majority of treatment notes are germane reasons for discounting evidence 18 from a treatment provider who is not an acceptable medical source). 19 In contrast, the ALJ gave great weight to SSA consultants Drs. Tobias, Bradus, 20 Blusiewicz, and Morris because they assessed that Plaintiff had no to moderate limitations, which 21 was consistent with Plaintiff’s RFC and the weight of the record. See 20 C.F.R § 404.1527(b); AR 22 23-27. Additionally, the ALJ gave great weight to the GAF scores assessed by treating physician 23 Dr. James Bourgeois. AR 24; see e.g., 565, 583, 585, 588, 589. Dr. Bourgeois assessed Plaintiff’s 24 GAF scores to be in the 60-70 range, indicating only mild to moderate symptoms. AR 24. 25 When Dr. Tobias tested Plaintiff, he wrote that the results were likely due to a lack of 26 motivation and effort by Plaintiff, and that the results likely underestimated his actual cognitive 27 ability. AR 22, 704. Dr. Tobias opined that Plaintiff had: (1) no limitation in regard to following 1 adequate pace or persistence performing repetitive tasks; (3) no to a mild limitation interacting 2 with other people on a regular basis; (4) a mild impairment adapting to a change in job routine; (5) 3 a mild limitation maintaining attention or concentration, pace, or persistence when performing 4 complex tasks; and (6) a moderate limitation to withstand the stress of a workday and maintain 5 emotional stability. AR 24. 6 Dr. Bradus opined that Plaintiff was limited to light exertional work, and the two state 7 agency medical consultants (Drs. Blusiewicz and Morris) opined that Plaintiff “could understand, 8 recall, and carry out simple instructions [but] would episodically have difficulty interacting with 9 the public and co-workers.” AR 23-24. 10 The Court finds that the ALJ provided specific and legitimate reasons for giving the 11 assessments of Drs. Tobias, Bradus, Blusiewicz, and Morris’s significant weight, and for 12 discounting the opinions of Plaintiff’s treating physicians. See Magallanes, 881 at 753 (“setting 13 out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 14 interpretation thereof, and making findings” is sufficient for an ALJ to discount contradictory 15 opinions) (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).4 Given the substantial 16 evidence in the record supporting the ALJ’s determination, the Court finds that the ALJ did not err 17 in affording the opinions of Plaintiff’s treating physicians, NP Friend and Therapist Ahern little or 18 no weight and affording the opinions of the SSA physicians significant weight.

19 // 20 // 21 // 22 // 23

24 // 25 4 Similarly, the ALJ noted that state agency consultant Dr. Blusiewicz found that Plaintiff could 26 understand, recall, and carry out simple instructions, but had difficulty interacting and communicating with others. AR 24. State agency mental consultant Dr. Morris also affirmed 27 these findings on June 22, 2016. Id. The ALJ gave the doctor’s opinions significant weight since 1 IV. CONCLUSION 2 For the foregoing reasons, the Court DENIES Plaintiff's motion for summary judgment 3 and GRANTS Defendant’s motion for summary judgment. The ALJ’s decision is affirmed. The 4 || Clerk is directed to enter judgment in favor of Defendant and close the case. 5 IT IS SO ORDERED. 6 || Dated: 8/14/2020

non S. GILLIAM, JR. I 8 United States District Judge 9 10 11 a 12

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