Tyi Rai Francis v. Martin O'Malley

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION [10] 11 TYI RAI F.,1 Case No. CV 23-07594-AS 12 Plaintiff, MEMORANDUM OPINION 13 v. 14 MARTIN O’MALLEY, Commissioner of Social Security, [15] Defendant. [18] 19 For the reasons discussed below, IT IS HEREBY ORDERED that, 20 pursuant to Sentence Four of 42 U.S.C. § 405 (g), the Commissioner’s 21 decision is affirmed. [26] 1 Plaintiff’s name is partly redacted in accordance with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of 28 the Judicial Conference of the United States. 1 PROCEEDINGS [2] 3 On September 12, 2023, Plaintiff filed a Complaint seeking 4 review of the Commissioner’s denial of Plaintiff’s application for 5 supplemental security income under Title XVI of the Social Security 6 Act. (Dkt. No. 1). On November 13, 2023, Defendant filed an Answer 7 consisting of the Administrative Record (“AR”). (Dkt. No. 11). The 8 parties subsequently filed opposing briefs setting forth their 9 respective positions regarding Plaintiff’s claims (“Pl. Brief” and 10 “Def. Brief”), followed by a reply brief from Plaintiff (“Pl. 11 Reply”). (Dkt Nos. 17, 20-21). The parties have consented to 12 proceed before a United States Magistrate Judge. (Dkt. Nos. 10, 13 14). [14] 15 The Court has taken this matter under submission without oral 16 argument. See C.D. Cal. C. R. 7-15. [17] 18 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION [19] 20 On May 18, 2018, Plaintiff protectively filed an application 21 for supplemental security income alleging a disability onset date 22 of February 9, 2013. (AR 10, 240-70). Plaintiff alleged disability 23 based on, inter alia, diabetes, neuropathy, gastroparesis, 24 rheumatoid arthritis, irritable bowel syndrome, bipolar disorder, 25 post traumatic stress disorder (“PTSD”), agoraphobia, attention 26 deficit hyperactivity disorder (“ADHD”), schizoaffective disorder, 27 cirrhosis of the liver, anxiety, and addiction. (AR 293, 303, 310, 28 341-52). Plaintiff had previously applied for and been denied 1 disability benefits through March 16, 2017, by Administrative Law 2 Judge (“ALJ”) Steven A. De Monbreum. See AR 72-84 (Judge De 3 Monbreum’s decision); see also AR 98, 306 (summaries of prior 4 claims). Plaintiff subsequently amended her alleged disability 5 onset date for her current claim to May 1, 2018. (AR 33-34). [6] 7 The Administration denied Plaintiff’s current claim initially 8 on August 24, 2018, and upon reconsideration on May 2, 2019. (AR 9 97-140). On August 25, 2022, ALJ Laura Fernandez heard testimony 10 from Plaintiff (who was represented by counsel) and vocational 11 expert (“VE”) Lawrence Haney. (AR 26-61). On October 11, 2022, ALJ 12 Fernandez issued a decision denying Plaintiff’s application. (AR 13 10-20). [14] 15 The ALJ applied the requisite five-step process to evaluate 16 Plaintiff’s case. See AR 10-19 (noting that the presumption of 17 continuing non-disability under Chavez v. Bowen, 844 F.2d 691 (9th 18 Cir. 1988), did not apply). At step one, the ALJ found that 19 Plaintiff had not engaged in substantial gainful activity since 20 the May 8, 2018 application date. (AR 12). At step two, the ALJ 21 found that Plaintiff has the following severe impairments: PTSD, 22 borderline personality disorder, and amphetamine use disorder in 23 reported remission. See AR 13 (discussing Plaintiff’s obesity and 24 diabetes and noting that the ALJ had considered all of Plaintiff’s 25 medically determinable impairments, including those that were not 26 severe, in assessing Plaintiff’s residual functional capacity). At 27 step three, the ALJ determined that Plaintiff’s impairments did 28 not meet or equal a listing found in 20 C.F.R. Part 404, Subpart 1 P, Appendix 1 (the “Listings”). (AR 13-16 (finding Plaintiff’s 2 mental impairments caused “moderate” limitation in all four 3 “Paragraph B” criteria of psychological functioning for Listings 4 12.00, 12.08, and 12.15). [5] 6 Next the ALJ found that Plaintiff has a residual functional 7 capacity (“RFC”)2 for light work as defined in 20 C.F.R. § 8 416.967(b), limited to: (1) occasional postural activities; (2) no 9 concentrated exposure to vibrations, unprotected heights, and 10 dangerous machinery; and (3) understanding, remembering, and 11 carrying out simple instructions with no public contact. See AR 12 14-18 (finding “persuasive” and “partially persuasive” the 13 available medical opinion evidence). [14] 15 At step four, the ALJ found that Plaintiff was unable to 16 perform her past relevant work. (AR 18). At step five, based on 17 Plaintiff’s age, education, work experience, RFC, and the VE’s 18 testimony, the ALJ determined that there are jobs that exist in 19 significant numbers in the national economy that Plaintiff can 20 perform, i.e., “marker,” “router,” and “housekeeping cleaner.” (AR 21 19). The ALJ concluded that Plaintiff had not been disabled since 22 the May 8, 2018 application date. (AR 19-20). [23] 24 On July 5, 2023, the Appeals Council denied Plaintiff’s 25 request to review the ALJ’s decision. (AR 1-5). Plaintiff now seeks [26] 27 2 A residual functional capacity is what a claimant can still do despite existing exertional and nonexertional limitations. 28 See 20 C.F.R. § 416.945 (a)(1). 1 judicial review of the ALJ’s decision, which stands as the final 2 decision of the Commissioner. See 42 U.S.C. § 405 (g). [3] 4 STANDARD OF REVIEW [5] 6 This Court reviews the Commissioner’s decision to determine 7 if it is free of legal error and supported by substantial evidence. 8 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 9 “Substantial evidence” is more than a mere scintilla, but less than 10 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 11 2014). “It means such relevant evidence as a reasonable mind might 12 accept as adequate to support a conclusion.” Revels v. Berryhill, [13] 874 F.3d 648, 654 (9th Cir. 2017) (citation and internal quotation 14 omitted). [15] 16 To determine whether substantial evidence supports a finding, 17 “a court must consider the record as a whole, weighing both evidence 18 that supports and evidence that detracts from the [Commissioner’s] 19 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 20 2001) (internal quotation omitted). As a result, “[i]f the evidence 21 can support either affirming or reversing the ALJ’s conclusion, [a 22 court] may not substitute [its] judgment for that of the ALJ.” 23 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). [24] 25 DISCUSSION [26] 27 Plaintiff contends that the ALJ erred by: (1) providing 28 reasons for not fully crediting psychological consultative examiner 1 Dr. Lindsay Hailston’s opinion that are not supported by 2 substantial evidence; (2) adopting a mental RFC that is not 3 supported by substantial evidence; and (3) failing to properly 4 evaluate Plaintiff’s subjective complaints. See Pl. Brief at 9-22; 5 Pl. Reply at 1-9. After consideration of the record as a whole, 6 the Court finds that the Commissioner’s findings are supported by 7 substantial evidence and are free from material legal error.3 [8] 9 A. Summary of the Medical Record [10] 11 Since Plaintiff’s claims primarily concern the ALJ’s 12 consideration of her mental impairments, the Court will set forth 13 those portions of the medical record concerning her mental 14 impairments in more detail. The medical record reflects several 15 treatment visits for diabetes, diabetic gastroparesis with 16 abdominal pain, obesity, hepatitis C, and joint pain from a 17 popliteal cyst in the knee (treated with a steroid injection, home 18 exercises, and a short course of anti-inflammatories), and some 19 single visits for dizziness/migraines, arthritis, a skin abscess, 20 constipation related to methamphetamine use, nonspecific chest pain 21 and nausea, diabetic neuropathy, a broken toe, and left arm pain 22 associated with cervical radiculopathy (which was followed up with 23 some physical therapy). (AR 540-43, 545-73, 619-78, 679-778, 94024 44, 954-69, 1142-49, 1180-95, 1196-1219, 1238-1301, 1358, 1360-74, [25] 3 The harmless error rule applies to the review of [26] administrative decisions regarding disability. See McLeod v. 27 Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (An ALJ’s decision will not be 28 reversed for errors that are harmless). 1 1448-59, 1493-97, 1727-28, 1729-41). Despite complaints of joint 2 pain during a visit on January 17, 2018, (see AR 550), Plaintiff 3 reportedly had normal gait and range of motion at that visit and 4 subsequent visits in September, October, and November. 2018. (AR 5 550, 1181, 1183, 1198, 1275, 1303). [6] 7 The medical record also reflects treatment for mental 8 impairments including PTSD, amphetamine use disorder, opioid use 9 disorder (mild), schizoaffective disorder, bipolar disorder, 10 borderline personality disorder, and major depressive disorder (AR 11 496, 615, 916, 1312, 1447), with reports that Plaintiff was and 12 had been using methamphetamine for the past 20 years. See, e.g., 13 AR 435, 438, 448, 454, 546, 552, 566, 572, 581, 588, 594, 597, 600, 14 601, 603, 607, 796, 804). [15] 16 Plaintiff was hospitalized for a psychiatric hold from June 17 12 to 28, 2017, following a suicide attempt, reporting that she 18 had last used methamphetamine on the morning of her emergency room 19 visit and had not been leaving the house except to get 20 methamphetamine. (AR 435, 438-536, 508). Plaintiff presented as 21 disheveled, angry, distressed, appeared paranoid, and stated that 22 she wanted to leave the hospital to kill herself. (AR 524-25). By 23 June 26, 2017, Plaintiff reported that she was feeling better but 24 did not know what she would do if she was out in the community 25 again. (AR 492). She had no hallucinations or delusions, was 26 sleeping and eating okay, and had no behavioral issues. Id. At the 27 time of her discharge, Plaintiff was calm, cooperative, less 28 depressed, alert and oriented, had fair insight and judgment and 1 was in no apparent distress. (AR 484, 486-87). Plaintiff no longer 2 posed a risk to herself or others, but substance abuse was noted 3 as a “modifiable” risk factor and she was advised not to use. (AR 4 484, 488). [5] 6 Plaintiff transferred to residential psychiatric treatment 7 where she stayed until July 5, 2017, and maintained her sobriety. 8 (AR 864-902). Her mental status examination noted that she had 9 normal appearance, behavior, speech, thought content, insight, 10 judgment, attention, concentration, memory, and cognition, made 11 good eye contact and was cooperative and pleasant. (AR 864). She 12 was encouraged not to use and to attend psychotherapy. (AR 867). [13] 14 Plaintiff attended outpatient behavior health treatment from 15 July 2017 through January 2018. (AR 580-616). Plaintiff reported 16 that she was “not okay” when she is sober and admitted that she 17 was using methamphetamine daily. (AR 597, 600, 604, 607). Records 18 from this time period also reflect continued methamphetamine use. 19 In November 2017, Plaintiff reported that she had only used 20 methamphetamine five times since her visit the previous month. (AR 21 594). On November 17, 2017, her psychiatrist noted that she may 22 continue to deteriorate with daily methamphetamine use and assessed 23 “other psychotic disorder: most likely due to chronic meth use.” 24 (AR 598, 603). In December of 2017, Plaintiff reported sobriety, 25 (AR 592) but also admitted during another visit earlier that month 26 that had used methamphetamine the night before (AR 566). In January 27 2018, Plaintiff reported that she was depressed and having 28 hallucinations, and admitted to using methamphetamine daily but 1 not for the past two weeks. (AR 588-89; but see AR 572 (Plaintiff 2 admitting at another visit on the same day that she continued to 3 use methamphetamine but was cutting back).4 [4] 5 In April and May 2018, Plaintiff returned to residential 6 psychiatric treatment, (AR 785-859), reporting, at the time of her 7 admission on April 27, 2018, that she had been clean for 19 days 8 (AR 850).5 When she was discharged on May 9, 2018, Plaintiff was 9 “calm and fine,” cooperative, appropriate, responsive, well 10 groomed, made eye contact, had normal speech, and had been 11 compliant with treatment by taking medication, attending therapy, 12 completing activities of daily living, and participating in the 13 program. (AR 789). [14] 15 In June 2018, Plaintiff started another residential drug 16 treatment program but was discharged in August 2018 after she 17 relapsed. (AR 908-28, 981). Plaintiff had another psychiatric hold 18 from August 17 to 23, 2018, after another suicide attempt. (AR 98119 1000, 1340-51, 1460-85). Plaintiff then transferred to residential 20 psychiatric treatment where she stayed until at least August 25, 21 2018. (AR 1115-35). [23] 24 4 During visits for other conditions in January and March 2018, Plaintiff denied substance abuse and reportedly had normal 25 mood and affect. (AR 662-63, 739-40). [26] 5 Earlier in April 2018, Plaintiff had been brought to the 27 emergency room by her husband, after she reportedly overdosed on insulin at home, and she was diagnosed with amphetamine 28 intoxication. (AR 1498-1514). 1 In September 2018, Plaintiff presented to the emergency room 2 for seizure like activity, chest pain, and altered mental status. 3 (AR 1442-47). Plaintiff admitted using methamphetamine but denied 4 feeling suicidal and wanted to be home to visit with her daughter. 5 (AR 1447). [6] 7 In October 2018, Plaintiff presented to the emergency room 8 complaining of chest pain, hearing voices, hypothermia, and 9 hypoglycemia. (AR 1196-1224). She admitted using methamphetamine 10 and tested positive for such use. (AR 1197, 1203, 1210, 1217, 11 1226). When she was discharged, she was noted to be in fair/improved 12 condition and instructed to follow up with mental health. (AR 13 1199). [14] 15 Plaintiff had another psychiatric hold from November 19 to 16 27, 2018, after another suspected suicide attempt. (AR 1153-79, 17 1311-39). Her toxicology screens at the time were negative for 18 amphetamines, (AR 1172), but earlier that month, Plaintiff’s drug 19 screen was positive for methamphetamine. (AR 1360). On November 20 27, 2024, Plaintiff left the facility against her doctor’s advice. 21 (AR 1328). [22] 23 There are no mental health treatment records from December 24 2018 to June of 2022, when Plaintiff presented in Oregon for 25 outpatient counseling for PTSD, borderline personality disorder, [28] 1 and stimulant dependence in remission. (AR 1754-69).6 Plaintiff 2 reported that she last attempted suicide the Sunday before, when 3 she tried to cut her wrist and throat. (AR 1755). She was living 4 in a shelter. (AR 1755). During subsequent visits, Plaintiff said 5 that she “accidently” learned where to purchase heroin but had so 6 far avoided that environment and was not using. (AR 1756, 17597 60). [8] 9 In early July 2022, Plaintiff had acquired a studio apartment 10 and it was noted that she was making progress. (AR 1761). On July 11 7, 2022, she reported that she had attempted to overdose on insulin 12 the week before following an altercation with her ex-husband over 13 money and was trying to get home health care. (AR 1762). On July8, 14 2022, Plaintiff reported dissociative states where she “checks 15 out,” and denied substance abuse, but admitted to spending time 16 with people using drugs and said it was possible that a neighbor 17 had drugged her. (AR 1763). A rapid urine methamphetamine test 18 showed a faint line. Id. [19] 20 On July 21, 2022, Plaintiff reported that she had obtained 21 work from family members and was able to purchase a new computer 22 with her earnings. (AR 1766). On July 25, 2022, Plaintiff reported 23 that she was able to take a bus to her daughter’s house in another 24 town, was helping her sister move after a divorce, had been asked [26] 27 6 Plaintiff had moved to Oregon after filing her application and reportedly had been sober since May 2022. (AR 4728 51). 1 to provide additional office work, had “discovered cooking” for 2 healthier living and was taking daily beach walks. (AR 1767). [3] 4 On August 4, 2022, Plaintiff reported that her new computer 5 would help her “generate better workflow,” and while she was making 6 progress and feeling value in herself, she was still having 7 depression and dysregulated emotions. (AR 1768). At her last 8 reported appointment, on August 11, 2022, Plaintiff said her 9 emotional state was more “even,” and she had fought off a craving 10 to use the week before with the help of her sponsor. (AR 1769). [11] 12 The Opinion Evidence [13] 14 Consultative examining clinical psychologist, Dr. Lindsey 15 Hailston, provided a Psychological Assessment Report dated April 16 19, 2019. (AR 1720-23). Dr. Hailston reviewed some medical records 17 from 2018 for an emergency room visit and hospital stay for drug 18 overdose suicide attempts. (AR 1720). Plaintiff complained of 19 several conditions including PTSD, ADHD, panic disorder with 20 agoraphobia, anxiety, addiction, and bipolar disorder. (AR 1720). 21 Plaintiff said it was very hard for her to get out of her house 22 because she has difficulty going out in public, her depressive 23 episodes had gotten worse, and she currently was abusing 24 methamphetamine. (AR 1721). Plaintiff reported a history of 25 psychiatric hospitalizations a few times a year since 2010 for 26 suicidal ideation, attempts, and homicidal attempts. (AR 1721). 27 Plaintiff said therapy does not help her. (AR 1721). [28] 1 On mental status examination, Plaintiff was disheveled, 2 overweight, had cuts on her arms, was anxious and tearful with 3 pressured speech, had difficulty with attention and concentration, 4 was hypervigilant about being around people, and reported auditory 5 and visual hallucinations although she was not observed to be 6 having any hallucinations at the time. (AR 1721-22). Plaintiff 7 admitted abusing methamphetamine for 20 years. (AR 1722). Regarding 8 her activities of daily living, Plaintiff reported she knew how to 9 use appliances but was unable to do so because of her functioning 10 and lack of motivation. (AR 1722). She reported that her boyfriend 11 helped her get dressed her because of her fear in leaving the 12 house. (AR 1722). [13] 14 Dr. Hailston noted that Plaintiff had “a lengthy history of 15 psychiatric symptoms that include mood disorder, suicide attempts, 16 self-harm, assaultive behavior, and methamphetamine abuse for 20 17 years,” and indicated that it was “unclear whether her mood related 18 symptoms [were] induced from significant methamphetamine abuse for 19 several years.” (AR 1722). Dr. Hailston diagnosed borderline 20 personality disorder, stimulant use disorder (amphetamine-type 21 substance, severe), and “R/O” (rule out) substance/medication22 induced bipolar and related disorder. (AR 1722). [23] 24 Dr. Hailston opined that Plaintiff would have: (1) no 25 impairment in understanding, remembering, and carrying out simple 26 instructions; (2) mild impairment with complex instructions; (3) 27 moderate impairment in maintaining attention, concentration, pace, 28 and persistence; and (4) severe impairment in enduring stress, 1 adapting to change in routine work settings (due to daily 2 methamphetamine abuse and personality disorder), interacting with 3 supervisors and coworkers (due to daily methamphetamine abuse), 4 interacting with the public (due to a legal history of assault), 5 and maintaining emotional regulations (due to daily methamphetamine 6 abuse). (AR 1723). Dr. Hailston noted that it was possible 7 Plaintiff’s condition would improve with appropriate treatment 8 and/or services. Id. [9] 10 State agency reviewers considered the record initially in 11 August 2018, and made the following findings: (1) Plaintiff would 12 be capable of light work with some postural and environmental 13 limitations mostly consistent with the physical RFC the ALJ adopted 14 (which Plaintiff does not challenge) (AR 97-116); (2) Plaintiff 15 would have moderate limitations in several areas of functioning 16 (i.e., understanding, remembering, and carrying out detailed 17 instructions, maintaining attention and concentration for extended 18 periods, completing a normal workday or workweek without 19 interruption from psychologically-based symptoms, performing at a 20 consistent pace without an unreasonable number and length of rest 21 periods, interacting appropriately with the general public, and 22 setting realistic goals or making plans independently of others). 23 (AR 111-12); and (3) Plaintiff would be “capable of sustained 24 simple nonpublic task work activities.” (AR 112). In reaching this 25 determination, the reviewing psychologist noted that Plaintiff’s 26 symptoms were reasonably attributable to her mental medically 27 determinable impairments, which were characterized as “ depressive, 28 bipolar and related disorders.” (AR 106-07). 1 On reconsideration, in April 2019, state agency reviewers 2 considered the updated record, which included Dr. Hailston’s 3 opinion, and agreed with the initial RFC determination. (AR 1174 40). Plaintiff had reported that she was experiencing worsening 5 mental health symptoms and had a recent psychiatric hold. (AR 365, 6 375). It was noted that Plaintiff was using methamphetamine at the 7 time of Dr. Hailston’s evaluation, and the severe limits found by 8 Dr. Hailston were attributed to Plaintiff’s daily methamphetamine 9 abuse. (AR 129). Plaintiff’s substance abuse was determined to be 10 material to Plaintiff’s claim because “it clearly exacerbates the 11 severity of symptoms that are attributable to psych impairments” 12 and Plaintiff’s worsening condition - by the time of 13 reconsideration - was “linked to active substance use.” Id. The 14 review concluded that a mental RFC for “SRT/NP” [simple repetitive 15 tasks with no public contact] “while in treatment and abstaining 16 from substance use would reasonably apply.” (AR 129; compare AR 17 138 (general statement that there was no evidence of substance use 18 disorder which is contrary to the detailed Findings of Fact and 19 Analysis of Evidence). [20] 21 B. Plaintiff Has Not Shown Material Error in the ALJ’s Mental 22 RFC Assessment. [23] 24 Plaintiff contends that the ALJ’s reasons for discounting Dr. 25 Hailston’s opinion in determining Plaintiff’s mental RFC isa not 26 supported by substantial evidence, and that Plaintiff’s mental RFC 27 is otherwise not supported by substantial evidence because it did 28 not account for some of Plaintiff’s “moderate” mental limitations. 1 (Pl. Brief at 9-19; Pl. Reply at 1-7). As set forth below, the ALJ 2 provided reasons, supported by substantial evidence, for finding 3 Dr. Hailston’s opinion “partially persuasive,” and the ALJ’s mental 4 RFC determination is supported by substantial evidence. [5] 6 1. Applicable Law [7] 8 For claims filed after March 27, 2017, such as Plaintiff’s 9 claim, new regulations govern the evaluation of medical opinion 10 evidence. Under these regulations, ALJs no longer “weigh” medical 11 opinions; rather, ALJs determine which opinions are the most 12 “persuasive” by focusing on several factors: (1) supportability; 13 (2) consistency; (3) relationship with the claimant (including the 14 length of treatment, frequency of examinations, purpose of 15 treatment, extent of treatment, whether the medical source examined 16 the claimant); (4) the medical source's specialty; and (5) “other” 17 factors. See 20 C.F.R. § 416 .920c(c)(1)-(5). The two most important 18 factors in determining the persuasiveness of medical opinions are 19 supportability and consistency with the evidence. See 20 C.F.R. § 20 416.920c(a). ALJs must explain how they considered the factors of 21 supportability and consistency, but need not explain how they 22 considered any other factor. See 20 C.F.R. § 416 .920c(b). [23] 24 Supportability means the extent to which a medical source 25 supports the medical opinion by explaining the “relevant 26 . . . objective medical evidence.” Consistency means the 27 extent to which a medical opinion is “consistent. . . [28] 1 with the evidence from other medical sources and 2 nonmedical sources in the claim.” [3] 4 Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (internal 5 citations omitted; citing 20 C.F.R. § 416 .920c(c)(1), (2)).7 [6] 7 2. Analysis [8] 9 The ALJ followed the new regulations in making the required 10 findings based on the available record. The ALJ detailed Dr. 11 Hailston’s examination and opinion that Plaintiff would have some 12 moderate and severe mental impairments. (AR 14-15). The ALJ found 13 Dr. Hailston’s opinion “partially persuasive,” reasoning that Dr. 14 Hailston’s observations were “consistent with and supported by the 15 longitudinal evidence of record” and “provide further support” for 16 Plaintiff’s “moderate limitation in her activities of daily living 17 due to her psychiatric conditions.” (AR 15). The ALJ noted that 18 Dr. Hailston found severe limitations attributed, in part, to 19 Plaintiff’s methamphetamine abuse. (AR 15). The ALJ found that - [20] 7 The new regulations also eliminated the term “treating 21 source,” as well as the rule previously known as the treating source rule or treating physician rule, which formerly required [22] special deference to the opinions of treating sources. See 20 23 C.F.R. § 416 .920c; Woods v. Kijakazi, 32 F.4th at 792 (“The revised social security regulations are clearly irreconcilable with our 24 caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the 25 claimant.”); see also 81 Fed. Reg. 62560 , at 62573-74 (Sept. 9, 2016). Even so, in evaluating medical opinion evidence “under the [26] new regulations, an ALJ cannot reject an examining or treating 27 doctor’ opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods v. 28 Kijakazi, 32 F.4th at 792 . 1 other than her methamphetamine use – there was insufficient 2 evidence to support severe impairments based on Plaintiff’s 3 psychiatric condition because the record reflected improvement in 4 Plaintiff’s psychiatric condition and limited mental health 5 treatment during periods of sobriety. (AR 15). [6] 7 Substantial evidence supports these findings. As detailed 8 above, and as the ALJ summarized (see AR 14), the treatment record 9 reflected methamphetamine use throughout, including at the time of 10 Dr. Hailston’s evaluation, with mental health treatment mostly 11 centered around times when Plaintiff was using methamphetamine. 12 Plaintiff’s providers reported improvement in her symptoms during 13 periods of inpatient treatment for substance abuse when Plaintiff 14 was not using. See, e.g., AR 484, 486-87, 492, 789, 864, 1153, 15 1311-13). Plaintiff’s most recent treatment records (July and 16 August 2022) note Plaintiff’s improvement with sobriety to the 17 point where she was able to find her own housing, travel to visit 18 her daughter, and work for a family member. (AR 1761, 1766-69). [19] 20 The ALJ also found “persuasive” the opinions of the state 21 agency reviewers, which had expressly considered Dr. Hailston’s 22 opinion on reconsideration, and found that, absent substance use, 23 Plaintiff would be capable of simple repetitive tasks with no 24 public contact consistent with the mental RFC adopted by the ALJ. 25 (AR 17). The ALJ reasoned that these opinions were consistent with, 26 and supported by, the longitudinal evidence of record which 27 reflected that Plaintiff was medication compliant and had limited 28 complaints or treatment for any mental conditions since 2018. (AR 1 17). These opinions are substantial evidence to support the ALJ’s 2 mental RFC assessment. See Tonapetyan v. Halter, 242 F.3d 1144 , 3 1149 (9th Cir. 2001) (opinion of non-examining physician “may 4 constitute substantial evidence when it is consistent with other 5 independent evidence in the record”); Andrews v. Shalala, 53 F.3d 6 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining 7 physicians do not contradict “all other evidence in the record,” 8 such opinions may furnish substantial evidence). [9] 10 Plaintiff faults the ALJ’s findings as internally inconsistent 11 because the ALJ discounted Dr. Hailston’s opinion about Plaintiff’s 12 “severe” limitations after finding that the evidence was 13 insufficient to show they were due to psychiatric conditions (as 14 opposed to substance use), but also found “persuasive” the state 15 agency psychological reviewers’ opinions that assertedly found 16 Plaintiff’s drug use “not material” to her claim. See Pl. Brief at 17 11-14; Pl. Reply at 3 (citing AR 114, 138 (the general statements 18 that there was no evidence of any substance abuse disorder or “DAA” 19 (drug abuse or alcoholism) issue)). The record does not support 20 Plaintiff’s assertion. As set forth above, the state agency 21 reviewers found, on reconsideration, that Plaintiff’s substance 22 use was material to her claim and that, absent substance use, she 23 would have a capacity consistent with the mental RFC the ALJ 24 adopted. (AR 129). The Court finds no internal inconsistency in 25 the ALJ’s reasoning. [26] 27 Plaintiff also faults the ALJ for failing to follow the rules 28 for considering the effect of substance use under Social Security 1 Ruling (“SSR”) 13-2p. (Pl. Brief at 11-14; Pl. Reply at 3). Where, 2 as here, a claimant has a substance use disorder, SSR 13-2p requires 3 ALJs to apply the five-step sequential evaluation process twice if 4 the record suggests disability. See SSR 13-2p, 2013 WL 621536 , at 5 *6. First, “the ALJ must conduct the five-step inquiry without 6 separating out the impact of alcoholism or drug addiction,” to 7 determine whether a claimant is disabled. Bustamante v. Massanari, [8] 262 F.3d 949, 955 (9th Cir. 2001). If the ALJ finds the claimant 9 disabled, the ALJ must proceed to the second five-step 10 consideration to determine whether alcoholism or drug addiction is 11 “material” to the finding that a claimant is disabled (i.e., would 12 the individual still be found disabled if he or she stopped using 13 drugs or alcohol). See SSR 13-2p, 2013 WL 621536 , at *4, 6; see 14 also 20 C.F.R. 416.935(b). A claimant will not be found disabled 15 where alcoholism or drug addiction is a contributing factor 16 material to disability. See 42 U.S.C. § 423 (d)(2)(C) (“An 17 individual shall not be considered disabled. . . if alcoholism or 18 drug addiction would . . . be a contributing factor material to 19 the Commissioner’s determination that the individual is 20 disabled.”). An ALJ’s failure to perform the foregoing analysis is 21 harmless if the ALJ found that abstinence from drugs and/or alcohol 22 would have cured the claimant’s disability. Parra v. Astrue, 481 23 F.3d 742, 747 (9th Cir. 2007). [24] 25 The Court discerns no material error. The ALJ did not 26 expressly mention or follow the process outlined in SSR 13-2p. (AR 27 12-19). The ALJ found Plaintiff was not disabled considering her 28 drug use (which the ALJ found was in remission). (Id.). The ALJ 1 would not have been required to factor out Plaintiff’s drug 2 addiction if the record otherwise did not establish Plaintiff was 3 disabled. Bustamante, 262 F.3d at 955 . By finding that Plaintiff’s 4 drug use was in remission, where the record suggests that 5 Plaintiff’s drug use was not in remission until, at the earliest, 6 May 2022 (see AR 50-51), the ALJ effectively proceeded directly to 7 the second five-step inquiry. [8] 9 If the ALJ had followed the process outlined in SSR 13-2p, 10 the ALJ ultimately would have found Plaintiff not disabled because 11 there is substantial evidence that Plaintiff’s substance use was 12 material to her claim. See AR 129 (materiality finding). 13 Accordingly, the Court discerns no material error from the ALJ’s 14 failure to follow the process outlined in SSR 13-2p. [15] 16 Finally, Plaintiff asserts that the ALJ’s mental RFC 17 assessment does not adequately account for the “moderate” 18 limitations the ALJ found at step three in certain areas of 19 functioning (i.e., in interacting with others and maintaining 20 concentration, persistence, or pace). (Pl. Brief at 14-19; Pl. 21 Reply at 4-7). Contrary to Plaintiff’s assertion, the ALJ 22 adequately accounted for her findings by relying on the opinions 23 of the state agency reviewers in determining Plaintiff’s mental 24 RFC. (AR 17). The state agency reviewers found “moderate” 25 limitations in these areas of functioning (see AR 107, 130), but 26 also found Plaintiff capable of performing simple nonpublic tasks 27 (see AR 112, 136) consistent with the mental RFC adopted by the 28 ALJ. The ALJ was not required to do more. 1 C. The ALJ Did Not Err in Assessing Plaintiff’s Testimony and 2 Statements [3] 4 Plaintiff contends that the ALJ’s reasoning was inadequate 5 for discounting her statements and testimony suggesting greater 6 limitations than the ALJ found to exist. See Pl. Brief at 19-22; 7 Pl. Reply at 7-9. [8] 9 1. Applicable Law [10] 11 When assessing a claimant’s credibility regarding subjective 12 pain or intensity of symptoms, the ALJ must engage in a two-step 13 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 14 First, the ALJ must determine if there is medical evidence of an 15 impairment that could reasonably produce the symptoms alleged. 16 Garrison, 759 F.3d at 1014 . “In this analysis, the claimant is not 17 required to show that her impairment could reasonably be expected 18 to cause the severity of the symptom she has alleged; she need only 19 show that it could reasonably have caused some degree of the 20 symptom.” Id. (emphasis in original) (citation omitted). “Nor must 21 a claimant produce objective medical evidence of the pain or 22 fatigue itself, or the severity thereof.” Id. (citation omitted). [23] 24 If the claimant satisfies this first step, and there is no 25 evidence of malingering, the ALJ must provide specific, clear and 26 convincing reasons for rejecting the claimant’s testimony about 27 the symptom severity. Id. at 1014-15 ; see also Robbins, 466 F.3d 28 at 883 (“[U]nless an ALJ makes a finding of malingering based on 1 affirmative evidence thereof, he or she may only find an applicant 2 not credible by making specific findings as to credibility and 3 stating clear and convincing reasons for each.”). “This is not an 4 easy requirement to meet: The clear and convincing standard is the 5 most demanding required in Social Security cases.” Garrison, 759 6 F.3d at 1015 (citation omitted). The ALJ must evaluate “the 7 intensity and persistence of those symptoms to determine the extent 8 to which the symptoms limit [the claimant’s] ability to perform 9 work-related activities for an adult.” SSR 16-3p, 2017 WL 5180304 , 10 at *3. [11] 12 While the ALJ cannot “delve into wide-ranging scrutiny of the 13 claimant’s character and apparent truthfulness,” Trevizo, 871 F.3d 14 at 678 n.5, the ALJ may consider “prior inconsistent statements 15 concerning the symptoms, and other testimony by the claimant that 16 appears less than candid; unexplained or inadequately explained 17 failure to seek treatment or to follow a prescribed course of 18 treatment; and the claimant’s daily activities.” Ghanim v. Colvin, [19] 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). 20 Inconsistencies between a claimant’s testimony and conduct, or 21 internal contradictions in the claimant’s testimony, also may be 22 relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). 23 In addition, the ALJ may consider the observations of treating and 24 examining physicians regarding, among other matters, the functional 25 restrictions caused by the claimant’s symptoms. Smolen v. Chater, [26] 80 F.3d 1273, 1284 (9th Cir. 1996); accord Burrell, 775 F.3d at 27 1137. However, it is improper for an ALJ to reject subjective 28 testimony based “solely on a lack of objective medical evidence to 1 fully corroborate the claimant’s allegations.” Bray v. Comm’r of 2 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation 3 omitted); see also Smartt v. Kijakazi, 53 F.4th 489 , 498 (9th Cir. 4 2022) (reaffirming same but observing that inconsistency with the 5 medical evidence is a factor that can be considered; “When 6 objective medical evidence in the record is inconsistent with the 7 claimant’s subjective testimony, the ALJ may indeed weigh it as 8 undercutting such testimony.”); SSR 16-3p, 2017 WL 5180304 , at *5 9 (“Objective medical evidence is a useful indicator to help make 10 reasonable conclusions about the intensity and persistence of 11 symptoms, including the effects those symptoms may have on the 12 ability to perform work-related activities. . .”). [13] 14 The ALJ must make a credibility determination with findings 15 that are “sufficiently specific to permit the court to conclude 16 that the ALJ did not arbitrarily discredit claimant’s testimony.” 17 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation 18 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 19 2015) (“A finding that a claimant’s testimony is not credible must 20 be sufficiently specific to allow a reviewing court to conclude 21 the adjudicator rejected the claimant’s testimony on permissible 22 grounds and did not arbitrarily discredit a claimant’s testimony 23 regarding pain.” (citation omitted)). Although an ALJ’s 24 interpretation of a claimant’s testimony may not be the only 25 reasonable one, if it is supported by substantial evidence, “it is 26 not [the court’s] role to second-guess it.” Rollins v. Massanari, [27] 261 F.3d 853, 857 (9th Cir. 2001). [28] 1 2. Plaintiff’s Statements [2] 3 Plaintiff testified that she has daily migraines and hurts 4 all the time from neuropathy and arthritis which affect her ability 5 to stand for more than five or six minutes at a time without having 6 to sit, as well as her ability to use her hands. (AR 35-41). 7 Plaintiff was walking with a walker at the time of the hearing and 8 said she used it most of the time. (AR 40; but see AR 1767 (July, 9 2022 therapy note reporting that Plaintiff was exercising by 10 walking the beach daily)). [11] 12 Plaintiff testified that she has constant intrusive thoughts, 13 there are times when she feels okay and that she can do something, 14 but then she “can’t.” (AR 42, 44). She explained that she gets 15 depressed, and it causes her to feel like she cannot do things. 16 (AR 42). She also has PTSD which makes her terrified to sleep. (AR 17 44-45). She wakes every two hours and never wakes refreshed. (AR 18 45). She said it is difficult for her to concentrate to complete 19 tasks, she is easily distracted, and things do not get done. (AR 20 42-44). She also has to stop “a lot” and take breaks due to pain. 21 (AR 43-44). She had “very little” contact with others – she only 22 left her place to go to doctors and to therapy. (AR 45). She usually 23 ordered food in. (AR 45-46). She did not like to go to grocery 24 stores because she felt like people are looking at her and it made 25 her nervous. (AR 46). She gets nervous around people, isolates, 26 and does not handle stress well. (AR 46, 49). [28] 1 Plaintiff admitted to substance abuse and said the longest 2 period she had been sober was for a little over a year sometime in 3 2009, 2010, or 2011. (AR 50). She had been clean most recently 4 since May – for about four months – and she hoped to be clean for 5 the next 50 years. (AR 50-51). She had moved to Oregon near her 6 family, was living alone, and only took provided transportation to 7 medical services and a 12-step recovery program. (AR 49, 51-52). 8 She did not drive. (AR 51). She could walk using her walker a block 9 and a half to a store when she needed to, but it took her quite a 10 while to get there and she did not do it often. (AR 52). She was 11 in the process of applying for in-home health care. (AR 53). [12] 13 Plaintiff’s then-fiancé provided a Function Report – Third 14 Party form dated July 30, 2018 – when Plaintiff was in residential 15 drug treatment (see AR 908-28) – which did not mention Plaintiff’s 16 long history of drug use. (AR 322-29).8 He stated that if Plaintiff 17 did not have doctor’s appointments she spent her days trying not 18 to move too much due to pain. (AR 322-29). Plaintiff needed help 19 in and out of the shower, had trouble holding a hairbrush or razor, 20 sometimes needed assistance to and from the toilet, had major 21 distress from choosing an outfit to wear or what to eat, and her [22] 23 8 Plaintiff’s fiancé provided another Function Report dated January 1, 2019, stating that Plaintiff’s mental conditions 24 interrupt every facet of her life, and limit her from contact with others causing Plaintiff to isolate in her room. (AR 377-86). When 25 she is manic, she acts inappropriately, is rude, condescending, and combative (AR 382), she was reportedly using a wheelchair (AR [26] 383), she relapsed with methamphetamine use even though she had 27 remained clean for “long periods” of time and does 12 step programs, and she seemed “calmer and more focused” when she uses 28 methamphetamine. (AR 384). 1 mental condition (depression) otherwise limited almost every aspect 2 of her being. (AR 323). She could make her own meals of cereal or 3 sandwiches, do laundry on her own time, but had too much pain and 4 mental anguish for other types of housework. (AR 324-25). She 5 almost never went outside due to pain and fear of people, she did 6 not drive, but she could shop for clothes or groceries in stores 7 and by computer once a week. (AR 325, 327). She spent most of her 8 time watching television and reading. (AR 326). He estimated that 9 Plaintiff could not walk more than 100 feet before needing to rest, 10 could pay attention “not long,” and could understand and follow 11 directions but does not finish what she starts. (AR 327). Plaintiff 12 held onto walls and surfaces for balance. (AR 328). [13] 14 Plaintiff also provided her own Function Report dated July 15 31, 2018, (AR 331-54), reporting similar limitations. She reported 16 that she could not concentrate, has a hard time understanding what 17 she reads, feels like people are looking at her, has hand cramps 18 that prevent her from holding a pencil or using a keyboard for 19 longer than five or 10 minutes, and cannot sit or stand or walk 20 without pain. (AR 331). She had a hard time getting along with 21 people. (AR 337). Plaintiff admitted that she has addiction which 22 impacts her ability to function until she uses again and, after 23 using, causes her physical and mental problems to become worse. 24 (AR 349-50). [28] 1 3. Analysis [2] 3 The ALJ found that Plaintiff’s “medically determinable 4 impairments could reasonably be expected to cause the alleged 5 symptoms,” but her “statements concerning the intensity, 6 persistence and limiting effects of these symptoms” were “not 7 entirely consistent with the medical evidence and other evidence 8 in the record.” (AR 17). The ALJ based this finding on the objective 9 medical record and Plaintiff’s activities of daily living. (AR 1710 18). As set forth below, the Court finds that the ALJ provided 11 clear and convincing reasons, supported by substantial evidence in 12 the record, for her finding. [13] 14 The ALJ found Plaintiff’s asserted limitations were 15 inconsistent with the objective medical evidence. Plaintiff 16 testified that she is disabled due to severe pain in her body, but 17 her medical records did not contain objective findings to support 18 those allegations. (AR 17). Plaintiff’s medical examinations did 19 not support an inability to carry out basic work activities. (AR 20 18). While Plaintiff complained of mental health issues and 21 symptoms, the record reflected that Plaintiff had significant 22 improvement in her condition during periods of sobriety. (AR 17). [23] 24 A lack of corroborating objective medical evidence is relevant 25 to an ALJ’s evaluation of a claimant’s statements, so long as the 26 ALJ does not reject statements solely on that basis. See Bunnell 27 v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) (where 28 “the claimant produces objective medical evidence of an underlying 1 impairment, an adjudicator may not reject a claimant’s subjective 2 complaints based solely on a lack of objective medical evidence to 3 fully corroborate the alleged severity of pain”) (citing Cotton v. 4 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)); see also Smartt v. 5 Kijakazi, 53 F.4th at 498 (reaffirming same); Bray v. Comm’r of 6 Soc. Sec. Admin., 554 F.3d at 1227 . Here, the ALJ’s reliance on 7 the lack of supporting medical evidence in this case was not the 8 sole basis for rejecting Plaintiff’s symptom statements and 9 testimony. The limited record of treatment for Plaintiff’s physical 10 complaints, which did not include any significant objective 11 findings, supports the ALJ’s reasoning that the record did not 12 support Plaintiff’s claims regarding her asserted physical 13 limitations. The ALJ reasonably concluded that Plaintiff’s alleged 14 limitations from pain were not reflected in her treatment record. [15] 16 The ALJ also found that Plaintiff’s statements were 17 inconsistent with her ability to perform activities of daily living 18 independently. (AR 17-18). The ALJ observed that Plaintiff was able 19 to live alone, cook, clean, and walk to a nearby store to shop for 20 necessities. (AR 17). The ALJ also noted that since May 2022, when 21 Plaintiff reported sobriety, she admittedly was able to work for a 22 family member. (AR 17). [23] 24 An ALJ may rely on a claimant’s daily activities in 25 discounting symptom testimony. See Orn v. Astrue, 496 F.3d 625 , 26 639 (9th Cir. 2007) (daily activities may be used to discount 27 subjective complaints where the daily activities “contradict [her] 28 other testimony” or “meet the threshold for transferrable work 1 skills”); see also Ghanim v. Coleman, 753 F.3d at 1165 (“Engaging 2 in daily activities that are incompatible with the severity of 3 symptoms alleged can support an adverse credibility 4 determination.”); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 5 19998) (daily activities have bearing on a claimant’s credibility 6 where the “level of activity [is] inconsistent with the Claimant’s 7 claimed limitations”). The ALJ observed that Plaintiff was living 8 on her own and was able to care for her basic needs including 9 cooking, cleaning, shopping for necessities, going to appointments, 10 and was working for her family members, and found these activities 11 to be “inconsistent with the activities of a person who is 12 completely disabled.” (AR 17-18). While evidence of Plaintiff’s 13 activities is not, by itself, compelling evidence of her ability 14 to engage in sustained work activity, in the context of the record 15 in this case which included complaints of constant pain severely 16 limiting Plaintiff’s ability to walk, sit or stand (see AR 35-41, 17 331), the ALJ properly found that Plaintiff’s ability to engage in 18 the daily activities she admitted suggests that she is more capable 19 than the severe symptoms and limitations which she claimed prevent 20 her from working. Accordingly, the ALJ properly discounted 21 Plaintiff’s subjective statements and testimony based on her 22 admitted daily activities. [23] 24 D. Conclusion [25] 26 Plaintiff’s claims essentially request that this Court reweigh 27 the evidence that was before the ALJ. “Where evidence is 28 susceptible to more than one rational interpretation, it is the 1 ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 2 676, 679 (9th Cir. 2005); see also Brown-Hunter v. Colvin, 806 F.3d 3 487, 492 (9th Cir. 2015) (“[W]e leave it to the ALJ to determine 4 credibility, resolve conflicts in the testimony, and resolve 5 ambiguities in the record.”) (citation and internal quotation marks 6 omitted). The Court will uphold the ALJ’s rational interpretation 7 of the evidence in this case. [8] 9 ORDER [10] 11 For the foregoing reasons, the decision of the Commissioner 12 is AFFIRMED. [13] LET JUDGMENT BE ENTERED ACCORDINGLY. [15] 16 Dated: August 23, 2024 [17] 18 ______________/s/ ____________ ALKA SAGAR 19 UNITED STATES MAGISTRATE JUDGE