Lisa Kirzner v. Andrew Saul

Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 1 of 32 Page ID #:3675 [8] 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA [11] LISA K.1 ) NO. CV 21-3325-KS [12] Plaintiff, ) 13 v. ) MEMORANDUM OPINION AND ORDER ) [14] ) KILOLO KIJAKAZI,2 Acting 15 ) Commissioner of Social Security, ) 16 Defendant. ) 17 ) [18] 19 INTRODUCTION [20] 21 Lisa K. (“Plaintiff”) filed a Complaint on April 18, 2021, seeking review of the denial 22 of her applications for a period of disability, disability insurance benefits (“DIB”), and 23 Supplemental Security Income (“SSI”). (Dkt. No. 1.) On May 23, 2022, the parties consented, [24] 25 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. [26] 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Therefore, pursuant to [27] Federal Rule of Civil Procedure Rule 25(d), Kilolo Kijakazi should be substituted for her predecessors as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social [28] Security Act, 42 U.S.C. § 405 (g). [1] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 2 of 32 Page ID #:3676 1 pursuant to 28 U.S.C. § 636 (c), to proceed before the undersigned United States Magistrate 2 Judge. (Dkt. Nos. 10, 23-24.) On May 3, 2022, the parties filed a Joint Stipulation (“Joint 3 Stip.”) addressing two alleged errors by the Administrative Law Judge (“ALJ”) in assessing 4 Plaintiff’s claim on remand. (Dkt. No. 22.) Plaintiff seeks an order reversing the 5 Commissioner’s decision and ordering the payment of benefits. (Joint Stip. at 39.) In the 6 alternative, Plaintiff seeks a remand for a new hearing. (Id.) The Commissioner requests that 7 the ALJ’s decision be affirmed. (Id. at 40.) The Court has taken the matter under submission 8 without oral argument. [9] 10 SUMMARY OF ADMINISTRATIVE PROCEEDINGS [11] 12 On September 29, 2015, Plaintiff filed a claim for a period of DIB and SSI alleging 13 disability commencing September 1, 2013 (AR 179, 180, 258-59, 260-65) due to 14 endometriosis; mixed mold toxicity causing dermatitis, headaches, hair loss, and shortness of 15 breath; head, neck, and back pain; major depression; anxiety; attention deficit disorder; post16 concussion syndrome due to traumatic brain injury; and insomnia (AR 287, 297). Plaintiff, 17 who was born on December 2, 1972, was 40 years of age on the date of alleged onset.3 (AR 18 935, 956.) Her claim was denied on initial determination on March 1, 2016 (AR 183-89), and 19 she requested a hearing before an ALJ on April 28, 2016 (AR 190-192).4 On February 8, 2018, 20 Plaintiff appeared and testified at a hearing before ALJ Michael D. Radensky. (AR 131-60.) 21 ALJ Radensky issued an unfavorable decision on April 3, 2018 denying Plaintiff’s disability 22 claim. (AR 18-35.) [23] 24 / / [26] 3 At the age of disability onset, Plaintiff was considered a “younger person” under Agency guidelines. See 20 C.F.R. §§ 404.1563 (c), 416.963(c). [27] 4 Plaintiff’s case skipped the reconsideration level of appeal because it was designated a “prototype case.” (Joint [28] Stip. at 1; AR 179, 180.) [2] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 3 of 32 Page ID #:3677 1 On December 11, 2018, the Appeals Council denied Plaintiff’s request for review of 2 ALJ Radensky’s decision. (AR 3-9, 256-57.) Plaintiff then commenced a civil action in this 3 Court on February 7, 2019 (AR 990-91 (No. CV 19-951-KS)), which was remanded on 4 December 23, 2019 pursuant to the parties’ Stipulation for Voluntary Remand (see AR 9965 98). [6] 7 Following remand, a hearing before a different ALJ, ALJ Lisa Martin (“ALJ Martin” or 8 “the ALJ”), was held by telephone on November 12, 2020. (AR 944-84.) Plaintiff, 9 represented by counsel, appeared and testified, as did Vocational Expert Marcos Molinar (the 10 “VE”). (AR 944-84.) The ALJ issued an unfavorable decision dated January 26, 2021. (AR 11 923-43.) This timely appeal followed on April 18, 2021. [12] 13 SUMMARY OF ADMINISTRATIVE DECISION [14] 15 Pursuant to the District Court’s remand order, the Appeals Council directed the ALJ to 16 do the following: [17] (1) Further consider the opinion of Suzanne Schultz, M.S.W. . . . pursuant to [18] Social Security Ruling 16-3p. 19 (2) As necessary, consider [Plaintiff]’s maximum residual functional capacity during the entire period at issue and provide rationale with specific references [20] to evidence of record in support of assessed limitations (Social Security 21 Ruling 96-8p). In so doing, evaluate the treating and nontreating source opinions pursuant to . . . 20 CFR 404.1527 and 416.927 and nonexamining [22] source opinions in accordance with . . . 20 CFR 404.1527 and 416.927, and 23 explain the weight given to such opinion evidence. (3) Further evaluate [Plaintiff]’s alleged symptoms and provide rationale in [24] accordance with []20 CFR 404.1529 and 416.929[]. 25 (4) If warranted by the expanded record, obtain evidence from a [VE] to clarify the effect of the assessed limitations on [Plaintiff]’s occupational base (Social [26] Security Rulings 83-12, 83-14, 85-15 and 96-9p). The hypothetical questions 27 should reflect the specific capacity/limitations established by the record as a whole. The [ALJ] will ask the [VE] to identify examples of appropriate jobs [3] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 4 of 32 Page ID #:3678 and to state the incidence of such jobs in the national economy (20 CFR [1] 404.1566 and 416.966). Further, before relying on the [VE] evidence the 2 [ALJ] will identify and resolve any conflicts between the occupational evidence provided by the [VE] and information in the [DOT] and its [3] companion publication, the Selected Characteristics of Occupations (Social 4 Security Ruling 00-4p). [5] 6 (AR 987-88.) With these specific instructions, the ALJ then applied the five-step sequential 7 evaluation process the Social Security Administration has established for determining whether 8 an individual is disabled. (See AR 926-28 (citing AR 985-89).) [9] 10 After determining that Plaintiff last met the insured status requirements of the Social 11 Security Act through December 31, 2018, at step one, the ALJ found that Plaintiff had not 12 engaged in substantial gainful activity since September 1, 2013, the alleged onset date. (AR 13 929.) At step two, the ALJ determined that Plaintiff had the following severe medically 14 determinable impairments: left-knee disorder with surgery; endometriosis, traumatic brain 15 injury (“TBI”) and post-concussion syndrome; migraine headaches; tinnitus; depression; 16 anxiety; post-traumatic stress disorder (“PTSD”); and attention deficit hyperactivity disorder 17 (“ADHD”). (AR 929.) The ALJ also considered Plaintiff’s medically determinable 18 impairment of de Quervain’s syndrome, but concluded that this impairment did not 19 significantly limit Plaintiff’s ability to perform basic work-related activities, and, therefore, 20 was non-severe. (AR 929.) [21] 22 At step three, the ALJ determined that Plaintiff did not have an impairment or 23 combination of impairments that met or medically equaled the severity of one of the listed 24 impairments in 20 C.F.R. § Part 404, Subpart P, Appendix 1. (AR 929.) The ALJ next 25 concluded that Plaintiff had the residual functional capacity (“RFC”) to perform a full range 26 of light work, except as follows: [27] 28 / / [4] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 5 of 32 Page ID #:3679 [Plaintiff] is precluded from all work involving climbing of ladders, ropes, and [1] scaffolds, all exposure to dangerous work hazards (unprotected heights and 2 exposed moving machinery), and all exposure to concentrated pulmonary irritants. [Plaintiff] is limited to moderate noise work environments. [3] Additionally, [Plaintiff] is limited to detailed, but not complex, work tasks, work 4 not requiring a fast assembly quota pace as defined at the hearing, work not involving more than occasional multitask work duties, and work allowing for [5] some off task behavior up to 3% of the workday due to momentary symptom 6 distractions. [7] 8 (AR 930.) [9] 10 At step four, the ALJ determined that Plaintiff was unable to perform her past relevant 11 work as a medical secretary, and that transferability of job skills was not an issue in the case. 12 (AR 935.) However, after considering Plaintiff’s age, education, work experience, and RFC, 13 the ALJ determined that there were jobs that existed in significant numbers in the national 14 economy that Plaintiff could perform, including: storage facility rental clerk; and router. (AR 15 936.) Accordingly, the ALJ determined that Plaintiff had not been under a disability, as 16 defined in the Social Security Act, from the onset date of September 1, 2013, through the date 17 of the ALJ’s decision. (AR 936.) [18] 19 STANDARD OF REVIEW [20] 21 Under 42 U.S.C. § 405 (g), this Court reviews the Commissioner’s decision to determine 22 whether it is free from legal error and supported by substantial evidence in the record as a 23 whole. Ahearn v. Saul, 988 F.3d 1111, 1115-16 (9th Cir. 2021); Orn v. Astrue, 495 F.3d 625 , 24 630 (9th Cir. 2007). Substantial evidence is “more than a mere scintilla,” but less than a 25 preponderance: it is “such relevant evidence as a reasonable mind might accept as adequate to 26 support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal quotation 27 marks omitted); see also Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 28 2014). “Even when the evidence is susceptible to more than one rational interpretation, [5] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 6 of 32 Page ID #:3680 1 [courts] must uphold the ALJ’s findings if they are supported by inferences reasonably drawn 2 from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded by 3 regulation on other grounds. [4] 5 Although this Court cannot substitute its judgment for the Commissioner’s, the Court 6 nonetheless “must assess the entire record, weighing the evidence both supporting and 7 detracting from the agency’s conclusion.” Ahearn, 988 F.3d at 1115 ; Lingenfelter v. Astrue, [8] 504 F.3d 1028, 1035 (9th Cir. 2007). “The ALJ is responsible for determining credibility, 9 resolving conflicts in medical testimony, and for resolving ambiguities.” Ahearn, 988 F.3d at 10 1115 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). [11] 12 The Court must uphold the Commissioner’s decision when the evidence is susceptible 13 to more than one rational interpretation. Ahearn, 988 F.3d at 1115-16 ; Burch v. Barnhart, 400 14 F.3d 676 , 679 (9th Cir. 2005). However, the Court may only review the reasons asserted by 15 the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” 16 Orn, 495 F.3d at 630 ; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“[W]e 17 cannot rely on independent findings of the district court. We are constrained to review the 18 reasons the ALJ asserts.”). Finally, the Court will not reverse the Commissioner’s decision if 19 it is based on harmless error, which exists if the error is “inconsequential to the ultimate 20 nondisability determination, or [if], despite the legal error, the agency’s path may reasonably 21 be discerned.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation 22 marks omitted). [23] 24 DISPUTED ISSUES [25] 26 Plaintiff presents two disputed issues: [27] 28 (1) Whether the ALJ properly evaluated the opinion evidence of record; and [6] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 7 of 32 Page ID #:3681 1 (2) Whether the ALJ properly assessed Plaintiff’s subjective complaints. [2] 3 (Joint Stip. at 2.) [4] 5 DISCUSSION [6] 7 I. The ALJ Properly Evaluated the Opinion Evidence of Record [8] 9 A. Legal Standard for Evaluating Medical Source Opinions [10] 11 “[T]he ALJ is responsible for translating and incorporating clinical findings into a 12 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). 13 “The ALJ is [also] responsible for resolving conflicts in the medical record, including conflicts 14 among physicians’ opinions.” David D. v. Saul, 405 F. Supp. 3d 868 , 877 (D. Or. 2019) (citing 15 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)). In January 16 2017, the Social Security Administration published revisions to its final rules regarding the 17 evaluation of medical evidence. See 82 Fed. Reg. 5844 (2017). Before the 2017 revisions, 18 the “treating physician rule” provided that the opinion of a treating physician should be given 19 “controlling weight,” if it “is well-supported by medically acceptable clinical and laboratory 20 diagnostic techniques and is not inconsistent with the other substantial evidence in the 21 [claimant’s] case record.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). For cases 22 filed on or after March 27, 2017, the revised rules provide that “[w]e will not defer or give any 23 specific evidentiary weight, including controlling weight, to any medical opinions, or prior 24 administrative medical findings(s), including those from your medical sources.” 20 C.F.R. § 25 404.1520c. [26] 27 Here, because Plaintiff’s claim was filed before March 27, 2017, the ALJ’s assessment 28 of the medical source opinions is analyzed under the pre-2017 standards. In doing so, the ALJ [7] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 8 of 32 Page ID #:3682 1 must articulate a “substantive basis” for rejecting a medical opinion or crediting one medical 2 opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Accordingly, 3 an ALJ errs if she discounts a treating or examining physician’s medical opinion, or a portion 4 thereof, “while doing nothing more than ignoring it, asserting without explanation that another 5 medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer 6 a substantive basis for his conclusion.” Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 7 1462, 1464 (9th Cir. 1996)). However, the law reserves the ultimate disability determination 8 to the Commissioner, and, therefore, the ALJ generally is not required to articulate a rationale 9 for rejecting a medical professional’s conclusion about a claimant’s ability to work. See 10 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). [11] 12 Under the rules applicable here, generally, the opinion of a treating source is entitled to 13 greater weight than the opinion of doctors who do not treat the claimant because treating 14 sources are “most able to provide a detailed, longitudinal picture” of a claimant’s medical 15 impairments and bring a perspective to the medical evidence that cannot be obtained from 16 objective medical findings alone. See 20 C.F.R. § 404.1527 (c)(2) (governing claims filed 17 before March 27, 2017). Accordingly, to reject an uncontradicted opinion of a treating or 18 examining physician, the ALJ must provide “clear and convincing reasons that are supported 19 by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (internal 20 quotation marks omitted). Alternatively, “[i]f a treating or examining doctor’s opinion is 21 contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and 22 legitimate reasons that are supported by substantial evidence.” Id. at 675 (internal quotation 23 marks omitted). “The ALJ can meet this burden by setting out a detailed and thorough 24 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and 25 making findings.” Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 26 Thus, an ALJ does not commit legal error per se solely by giving greater weight to the opinion 27 of a nonexamining state agency physician than to the contradictory opinion of a treating 28 physician. See Morgan v. Comm’r of. Soc. Sec. Admin., 169 F.3d 595 , 600-03 (9th Cir. 1999). [8] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 9 of 32 Page ID #:3683 1 Further, an ALJ may properly reject a treating physician’s conclusions that do not 2 “mesh” with the treating physician’s objective data or history. See Tommasetti v. Astrue, 533 3 F.3d 1035, 1041 (9th Cir. 2008); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 4 However, the ALJ may not arbitrarily substitute his own judgment for competent medical 5 opinion, make his own independent medical findings, or assess an RFC that is not supported 6 by the medical evidence. Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006); see 7 also Burgess v. Astrue, 537 F.3d 117, 131 (2d Cir. 2008) (“Neither a reviewing judge nor the 8 Commissioner is permitted to substitute his own expertise or view of the medical proof for the 9 treating physician’s opinion, or indeed for any competent medical opinion.” (internal quotation 10 marks and citation omitted)); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (As a lay 11 person, an ALJ is “not at liberty to ignore medical evidence or substitute his own views for 12 uncontroverted medical opinion[;]” he is “simply not qualified to interpret raw medical data 13 in functional terms.”). [14] 15 B. Plaintiff’s Physical Impairments [16] 17 i. The Opinion Evidence [18] 19 1. Dr. Payam Vahedifar, M.D. [20] 21 Plaintiff’s treating pain management physician, Dr. Vahedifar, submitted several 22 opinions regarding Plaintiff’s conditions. On October 13, 2020, Dr. Vahedifar authored a 23 Physical Medical Source Statement noting that he treated Plaintiff on a monthly basis and that 24 Plaintiff had the following diagnoses: endometriosis, TBI, and chronic pain. (AR 1535.) He 25 noted that Plaintiff’s symptoms included pelvic pain, abdominal pain, and fatigue. (AR 1535.) 26 The pain was described as: constant and severe enough to interfere with attention and 27 concentration needed to perform even simple work tasks; lasting three to four weeks a month; [9] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 10 of 32 Page ID #:3684 1 and worse during menstrual cycles. (AR 1535-36.) He opined that Plaintiff’s impairments 2 were expected to last at least twelve months and Plaintiff was not a malingerer. (AR 1535.) [3] 4 Dr. Vahedifar opined that Plaintiff was incapable of tolerating even “low stress” jobs, 5 and could: sit fifteen minutes up to an hour at a time and, aggregately, about two hours in an 6 eight hour day; and stand ten minutes to an hour at a time and, aggregately, stand and walk 7 less than two hours in an eight hour day. (AR 1536.) He opined that she would need to walk 8 around every fifteen minutes for five minutes at a time and would need a job that permitted 9 shifting positions at will. (AR 1536-37.) He further opined that Plaintiff could: never lift and 10 carry in a competitive work situation; rarely look down or up, turn her head right or left, and 11 hold her head in a static position; rarely twist and climb ladders or stairs; and never stoop or 12 crouch. (AR 1537.) He denied any significant limitations with reaching, handling, or 13 fingering. (AR 1537.) Due to Plaintiff’s impairments or treatment, Dr. Vahedifar opined that 14 she would likely be absent from work more than four days per month and would likely be off 15 task more than 25% of time in a typical eight hour work day. (AR 1538.) He noted that 16 Plaintiff has had some pain relief one week per month, but she was “completely incapable of 17 functioning, due to pain, even in a normal work environment” three weeks per month. (AR 18 1538.) Finally, he opined that Plaintiff’s limitations would have begun in June 2015. (AR 19 1538.) [20] 21 The record also included progress notes from Dr. Vahedifar ranging from February 13, 22 2020 to October 14, 2020. (AR 1638-47.) His notes indicated that he first began treating 23 Plaintiff on February 13, 2020. (AR 1638.) He prescribed Plaintiff Bultrans patches for her 24 endometriosis and pelvic pain, increased the dosage, and indicated that her medication regimen 25 was managing her chronic pain well. (AR 1638-39, 1640, 1642, 1644, 1646-47.) [26] 27 / / 28 / / [10] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 11 of 32 Page ID #:3685 1 2. Dr. Zinovy Lekht, M.D. [2] 3 On January 7, 2016, treating provider Dr. Lekht checked a box on the “Functional 4 Impairment” section of a form, indicating that Plaintiff could not perform full-time sedentary 5 work. (AR 689.) [6] 7 3. Dr. Helen Rostamloo, M.D. [8] 9 Consultative examiner Dr. Rostamloo, a board certified internist, performed an internal 10 medicine consultation and authored a summary report dated January 7, 2016. (AR 477-83.) 11 Dr. Rostamloo noted that Plaintiff had a history of ADHD, anxiety, and TBI in 2015. (AR 12 479.) Plaintiff was taking Adderall for her ADHD, Clonazepam for her anxiety, and Tylenol 13 and Dilantin as needed. (AR 479, 482.) Dr. Rostamloo also noted that Plaintiff became 14 sensitive to noise after her 2015 TBI, and that Plaintiff had laparoscopic surgery twenty years 15 prior for endometriosis. (AR 479.) Plaintiff was able to generate seventy pounds of force with 16 her right hand and forty pounds of force with her left hand. (AR 480.) Plaintiff ambulated 17 with a normal gait and balance, and her neck range of motion was grossly within normal limits. 18 (AR 480.) Dr. Rostamloo noted that Plaintiff’s lungs were bilaterally clear to auscultation and 19 percussion, and that Plaintiff did not have pain on motion. (AR 481.) She further noted that 20 Plaintiff’s upper and lower extremities were grossly within normal limits. (AR 481.) 21 Additionally, Dr. Rostamloo indicated that she reviewed Plaintiff’s medical records, covering: 22 regular physical exams, a mammogram, breast ultrasound, and blood tests. (AR 482.) Her 23 impressions included: ADHD and anxiety and history of TBI. (AR 482.) Ultimately, Dr. 24 Rostamloo opined that Plaintiff would have no physical limitations. (AR 482.) [25] 26 / / 27 / / 28 / / [11] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 12 of 32 Page ID #:3686 1 ii. Analysis [2] 3 Plaintiff argues that the ALJ did not provide any explanation of the weight she assigned 4 to the treating or other medical source opinions and, therefore, she did not properly evaluate 5 the opinion evidence. (Joint Stip. at 7.) More specifically, Plaintiff argues that the ALJ: did 6 not precisely state what was inconsistent with Dr. Vahedifar’s opinion or explain why the 7 treatment records did not support Dr. Vahedifar’s opinion (id. at 8); failed to weigh the length 8 and frequency of Dr. Vahedifar’s treatment (id.); and failed to consider the doctors’ specialties 9 (id. at 10).5 [10] 11 As an initial matter, because the ALJ’s assessment of the medical source opinions is 12 examined under the pre-2017 standards (AR 179, 180), and the ALJ determined that Dr. 13 Vahedifar’s opinion was contradicted (AR 932), the ALJ needed to provide specific and 14 legitimate reasons, supported by substantial evidence, to reject Dr. Vahedifar’s opinion. See 15 Trevizo, 871 F.3d at 675 . The Court finds that the ALJ provided specific and legitimate 16 reasons, and articulated a “substantive basis” for giving Dr. Vahedifar’s opinion little weight. 17 Garrison, 759 F.3d at 1012 . [18] 19 The ALJ set out a thorough summary of Plaintiff’s treatment history, diagnoses, and 20 alleged limitations, and determined that Dr. Vahedifar’s opinion was inconsistent with other 21 opinions and unsupported by Dr. Vahedifar’s actual treating records. (AR 931-32; see 22 Garrison, 759 F.3d at 1012 .) On October 13, 2020, Dr. Vahedifar opined that Plaintiff was 23 incapable of tolerating even “low stress” jobs, and was limited to less than a full range of 24 sedentary work due to endometriosis, TBI, and chronic pain. (See AR 1535-38.) He opined [25] 5 Plaintiff appears to complain that the ALJ relied upon the decision of a single decision maker, and asserts that the [26] “ALJ is not permitted to give any weight to the fact that a claimant was found not disabled at the initial and/or reconsideration levels, precisely because the claimant has a statutory right to a de novo hearing.” (Joint Stip. at 10-11.) [27] However, Plaintiff failed to provide adequate supporting authority or argument other than bare assertions. (See id.) As such, the Court may not review this issue. See Carmickle, 533 F.3d at 1161 n.2 (noting that courts will not consider matters [28] on appeal that are not specifically and distinctly argued in briefing). [12] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 13 of 32 Page ID #:3687 1 that Plaintiff could: sit for about two hours in an eight hour day; stand and walk less than two 2 hours in an eight hour day; and never lift and carry more than ten pounds. (AR 1536.) Dr. 3 Vahedifar further opined that Plaintiff would likely be absent from work more than four days 4 a month and would likely be off task more than 25% of a typical work day. (AR 1538.) [5] 6 The ALJ began her analysis by stating that she considered the opinion evidence in 7 accordance with 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.927 , proceeded to discuss the 8 opinion evidence, and then assessed Dr. Vahedifar’s opinion. (AR 930-32.) The ALJ 9 acknowledged that Dr. Vahedifar limited Plaintiff to less than a full range of sedentary work 10 due to her diagnoses which included: endometriosis, TBI, and chronic abdominal/pelvic pain 11 with fatigue. (AR 932.) Immediately after this, the ALJ cited to Dr. Rostamloo’s January 7, 12 2016 evaluation in which she found that Plaintiff did not have any medically determinable 13 physical limitations or restrictions. (AR 932 (citing AR 477-83).) Though the ALJ may not 14 have been as explicit as Plaintiff would have liked, in stating that Dr. Vahedifar’s opinion was 15 inconsistent with the other medical opinions in the record, the omission of an explicit 16 “inconsistency” statement is not necessarily fatal where the import of the opinion to the ALJ 17 can be discerned by her decision. Cf. Dixon v. Saul, 411 F. Supp. 3d 837 , 848 n.3 (N.D. Cal. 18 2019) (“The ALJ did not specifically assign weight to [the doctor]’s medical opinion, though 19 his heavy reliance on that opinion suggests great weight was assigned it.”). Here, the ALJ 20 stated Dr. Vahedifar’s opinion, stated Dr. Rostamloo’s contrasting opinion, and immediately 21 thereafter stated that she gave Plaintiff’s largely subjective complaints the greatest benefit of 22 doubt to assess an RFC limited to less than a full range of light exertion. (AR 932.) Thus, it 23 is readily apparent that the ALJ gave Dr. Vahedifar’s opinion lesser weight than the opinion 24 of Dr. Rostamloo. [25] 26 The ALJ’s reliance on Dr. Rostamloo’s opinion satisfies the substantial evidence 27 standard. Biestek, 139 S. Ct. at 1154 . Dr. Rostamloo, a board certified internist, performed 28 an internal medicine consultation three months after Plaintiff filed her claim, detailed [13] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 14 of 32 Page ID #:3688 1 Plaintiff’s history of ADHD, anxiety, and TBI, and acknowledged Plaintiff’s endometriosis 2 and noise sensitivity complaints. (AR 477-83.) She reported that Plaintiff was able to generate 3 seventy pounds of force with her right hand and forty pounds of force with her left hand, and 4 ambulated with a normal gait and balance. (AR 480.) She further reported that Plaintiff’s 5 neck range of motion was grossly within normal limits, and that Plaintiff did not have pain on 6 motion. (AR 480-81.) Dr. Rostamloo further noted that the range of motion in Plaintiff’s 7 upper and lower extremities was grossly within normal limits. (AR 481.) Finally, Dr. 8 Rostamloo indicated that she reviewed Plaintiff’s medical records, covering: regular physical 9 exams, a mammogram, breast ultrasound, and blood tests. (AR 482.) Based on the above, Dr. 10 Rostamloo opined that Plaintiff would have no physical limitations. (AR 482.) The Court 11 finds that crediting Dr. Rostamloo’s opinion was a legitimate basis for finding that Dr. 12 Vahedifar’s opinion was inconsistent with the overall record. Garrison, 759 F.3d at 1012 . [13] 14 The ALJ proceeded to discuss the supportability of Dr. Vahedifar’s opinion by noting 15 that his own treating records did not support his assessed level of dysfunction. (AR 932.) She 16 cited to a June 30, 2020 progress note in which Dr. Vahedifar stated that Plaintiff was 17 managing her pain well with medication. (AR 932 (citing AR 1642 (“The patient will need to 18 continue the current medication regimen since this is managing the chronic pain well.”)).) This 19 was a specific and legitimate reason for finding that Dr. Vahedifar’s opinion was unsupported. 20 Indeed, Dr. Vahedifar simply adjusted Plaintiff’s medication and repeatedly reported that 21 Plaintiff was “managing” the chronic pain well. (See AR 1640, 1642, 1644, 1646.) Therefore, 22 the ALJ properly rejected Dr. Vahedifar’s opinion because it contradicted his own treating 23 records. Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (finding that the contradiction 24 of a doctor’s opinion with his own findings was a sufficient basis for rejecting the doctor’s 25 opinion). [26] 27 The Court finds no reversible error based on Plaintiff’s argument that the ALJ failed to 28 expressly consider the length and frequency of Dr. Vahedifar’s treatment and the doctors’ [14] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 15 of 32 Page ID #:3689 1 specialties. (Joint Stip. at 8, 10). The Ninth Circuit has not compelled the exacting analysis 2 that Plaintiff demands. Kovach v. Berryhill, No. CV 18-1848-GPC (MSB), 2019 WL 3 2995824, at *12 (S.D. Cal. July 9, 2019) (“Trevizo[, 871 F.3d 664 ] does not demand a full4 blown written analysis of all the regulatory factors; it merely requires some indication that the 5 ALJ considered them.” (internal quotation marks omitted)), report and recommendation 6 adopted, 2019 WL 4745036 (S.D. Cal. Sept. 30, 2019). As such, an “ALJ’s failure to spell 7 out his regulatory-factor rationale [i]s not fatal [if] the record sufficiently shows he considered 8 the necessary elements.” Hoffman v. Berryhill, No. CV 16-1976-JM (AGS), 2017 WL 9 3641881, at *4 (S.D. Cal. Aug. 24, 2017), report and recommendation adopted, 2017 WL 10 4844545 (S.D. Cal. Sept. 14, 2017). Here, it is apparent that the ALJ considered specialization 11 as he noted that Dr. Vahedifar was treating Plaintiff for pain management. (AR 932.) The 12 ALJ also considered the length and frequency of the treatment relationship as he specifically 13 identified different reports that Dr. Vahedifar issued while treating Plaintiff between February 14 2020 and October 2020. (AR 932.) Moreover, the ALJ cited to the entirety of Dr. Vahedifar’s 15 treatment records which comprised of ten pages, and the ALJ specifically stated that his “actual 16 treating records . . . do not support this level of dysfunction.” (AR 932 (emphasis added).) [17] 18 Finally, Plaintiff argues that the ALJ erred in not providing an assessment of Dr. Lekht. 19 (Joint Stip. at 15.) On January 7, 2016, Dr. Lekht checked a box on the “Functional 20 Impairment” section of a form to indicate that Plaintiff could not perform full-time sedentary 21 work. (AR 689.) The ALJ was not required to weigh Dr. Lekht’s one-page form which 22 amounted to a finding that Plaintiff was disabled. (See AR 689; see also 20 C.F.R. § 23 404.1527(d) (“Opinions that you are disabled” are “reserved to the Commissioner.”); Pruitt v. 24 Comm'r of Soc. Sec., 612 F. App'x 891, 894 (9th Cir. 2015) (An opinion on a claimant’s 25 “disability status is a legal conclusion, not a medical one.”).) [26] 27 Nevertheless, even if the ALJ erred as Plaintiff fleetingly contends here, and elsewhere, 28 any error was harmless. Brown-Hunter, 806 F.3d at 492 . An error is harmless if, in light of [15] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 16 of 32 Page ID #:3690 1 the other reasons supporting the ALJ’s ultimate conclusion, it can be concluded that the error 2 did not “affect[] the ALJ’s conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190 , 3 1197 (9th Cir. 2004). Additionally, Plaintiff’s alternative reading of the evidence, as to the 4 medical opinions and Plaintiff’s subjective complaints, is insufficient to undermine the ALJ’s 5 findings. Molina, 674 F.3d at 1111 . As discussed above, and further below, the inconsistency 6 between the overall medical record and the opinions of record and Plaintiff’s subjective 7 complaints, was the primary basis for the ALJ’s determination. Consequently, a more 8 exhausting discussion of the 20 C.F.R. § 404.1527 (c) factors would not have altered the ALJ’s 9 ultimate disability determination. [10] 11 Accordingly, the ALJ’s evaluation of the opinion evidence concerning Plaintiff’s 12 physical impairments is free of legal error and, on that basis, is affirmed. [13] 14 C. Plaintiff’s Mental Impairments [15] 16 i. The Opinion Evidence [17] 18 1. Dr. Ziva Nagar, Ph.D., R.N., ABPP [19] 20 On October 29, 2020, treating psychologist, Dr. Nagar, provided a mental medical 21 source statement. (AR 1658-61.) She reported seeing Plaintiff on a weekly basis since March 22 2020, and noted that Plaintiff was taking medication for depression, anxiety, and ADHD. (AR 23 1658.) Dr. Nagar opined that Plaintiff would be unable to meet competitive standards, which 24 was defined as the “patient cannot satisfactorily perform this activity independently, 25 appropriately, effectively and on a sustained basis in a regular work setting,” in the following 26 areas: remember work-like procedures; maintain attention for two-hour segment; sustain an 27 ordinary routine without special supervision; complete a normal workday and workweek 28 without interruptions from psychologically based symptoms; understand and remember [16] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 17 of 32 Page ID #:3691 1 detailed instructions; carry out detailed instructions; set realistic goals or make plans 2 independently of others; and travel in an unfamiliar place. (AR 1659-60.) She further opined 3 that Plaintiff would be seriously limited, but not precluded, in her ability to: understand and 4 remember very short and simple instructions; carry out very short and simple instructions; 5 make simple work-related decisions; perform at a consistent pace without an unreasonable 6 number and length of rest periods; respond appropriately to changes in a routine work setting; 7 deal with normal work stress; deal with stress of semiskilled and skilled work; interreact 8 appropriately with the general public; and maintain socially appropriate behavior. (AR 16599 60.) [10] 11 Dr. Nagar noted that varying stress levels usually exacerbate Plaintiff’s level of pain, 12 depression, anxiety, and ability to function overall. (AR 1661.) She also opined that: 13 Plaintiff’s limitations would, on average, cause her to be off task at least 50% of an eight-hour 14 workday; Plaintiff’s impairments or treatment would cause her to be absent more than four 15 days per month; and escape routes would be necessary to avoid migraines because she is highly 16 sensitive to noise and light, and is easily overwhelmed by busy environments with multiple 17 people. (AR 1661.) Finally, Dr. Nagar opined that Plaintiff’s tinnitus interferes with her 18 concentration and ability to focus, and that Plaintiff is unable to function at all while 19 experiencing physical symptoms. (AR 1661.) Dr. Nagar noted that Plaintiff’s mental 20 limitations began after her June 2015 head trauma. (AR 1661.) [21] 22 On November 2, 2020, Dr. Nagar completed a report noting that Plaintiff had been under 23 her care since March 2020 for her depressive and anxiety symptoms. (AR 1663-71.) She 24 stated that Plaintiff often suffered from migraine headaches, “cannot tolerate anything, [] is 25 not able to speak well, and cannot articulate herself well.” (AR 1663.) Dr. Nagar indicated 26 that Plaintiff continued to experience severe symptoms despite treatment and medications. 27 (AR 1664, 1666, 1670.) She opined that Plaintiff “should be placed on permanent disability.” 28 (AR 1671.) [17] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 18 of 32 Page ID #:3692 1 2. Dr. Jennifer Watson, Ph.D. [2] 3 On May 9, 2019, Dr. Watson performed a neuropsychological evaluation, and indicated 4 Plaintiff had a history of: concussions; depression; and attention concerns. (AR 1146.) She 5 noted that: Plaintiff’s ability to sustain attention, concentrate, and exert mental control was in 6 the average range; Plaintiff was able to learn and recall new information; Plaintiff was able to 7 detail information from autobiographical memory; verbalized judgment and reasoning were 8 intact; and Plaintiff was socially pleasant and self-reflective. (AR 1156-57.) Dr. Watson 9 opined that psychological/emotional factors were likely contributing to Plaintiff’s cognitive 10 difficulties. (AR 1157.) She further opined that fatigue and decreased attention and 11 concentration impacted Plaintiff’s functioning; and that there was evidence of significant 12 depression, anxiety, mood shifts, and symptoms suggestive of PTSD. (AR 1157.) [13] 14 3. Suzanne Schultz, MSW [15] 16 On February 7, 2018, Suzanne Schultz, MSW, Plaintiff’s treating social worker, 17 authored a one-page letter stating that Plaintiff: was limited in her tolerance for activity; has 18 photosensitivity; has difficulty concentrating; gets overwhelmed when overstimulated; and has 19 poor organizational abilities. (AR 914.) She noted that Plaintiff had been participating in a 20 Brain Injury Support Group since early 2016, and stated that, “she continues to be disabled by 21 her brain injury.” (AR 914.) [22] 23 4. Dr. Marcia Daniels, M.D. [24] 25 On November 23, 2015, Plaintiff’s treating psychiatrist, Dr. Daniels, authored a social 26 security disability narrative report. (AR 917-22.) She noted Plaintiff’s treatment history, and 27 stated that Plaintiff’s health had not improved and that she was now “totally disabled.” (AR 28 919-20.) She also noted that Plaintiff: was intermittently suicidal (without a plan); was [18] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 19 of 32 Page ID #:3693 1 agitated; arrived late to her appointment; and was living out of her car. (AR 920-21.) Dr. 2 Daniels opined that Plaintiff’s current level of functioning included impaired social 3 functioning and poor pace and concentration. (AR 921.) She further opined that Plaintiff 4 showed significant signs of easily decompensating or deteriorating under stress, as well as 5 marked restriction in activities of daily living. (AR 921-22.) However, she noted that Plaintiff 6 did not meet the criteria for an involuntary psychiatric hold. (AR 922.) [7] 8 5. Dr. Thaworn Rathana-Nakintara, M.D. [9] 10 On January 6, 2016, consultative examiner Dr. Rathana-Nakintara performed a complete 11 psychiatric evaluation and authored a summary report. (AR 470-76.) Plaintiff: arrived on 12 time; was engaged and cooperative; and was considered an adequate historian. (AR 472, 474.) 13 No medical records were available for Dr. Rathana-Nakintara to review. (AR 472.) He 14 indicated that Plaintiff’s past medical history included endometriosis, head trauma, and mold 15 exposure. (AR 473.) Plaintiff reported being depressed and anxious due to pain, indicated she 16 had endometriosis practically all her life, and noted that she had been seeing a psychiatrist for 17 more than ten years but stopped in December 2015 because she no longer had medical 18 insurance. (AR 472.) She also reported that: she was living with friends at the time; she had 19 adequate self-care skills; she was able to do household chores, run errands, shop, and cook 20 with difficulty; her hobbies or pastimes included dancing, reading, swimming and 21 concerts/music; and she managed her own money. (AR 473-74.) Plaintiff: laughed and smiled 22 appropriately and readily; denied suicidal ideations; did not want to bother trying to recall 23 missed items; and completed serial seven and three subtractions without issue. (AR 474.) Dr. 24 Rathana-Nakintara noted that Plaintiff exhibited no difficulty: interacting with others; 25 maintaining even temperament or social functioning; and focusing and maintaining attention. 26 (AR 476.) He further noted that Plaintiff was intellectually and psychologically capable of 27 performing activities of daily living. (AR 476.) Dr. Rathana-Nakintara ultimately opined that 28 Plaintiff would have no mental limitations. (AR 476.) [19] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 20 of 32 Page ID #:3694 1 6. Dr. Uwe Jacobs, Ph.D. [2] 3 On March 1, 2016, Dr. Jacobs, a State Agency psychologist, opined that Plaintiff’s 4 condition resulted in mild limitations at best, and that Plaintiff did not have a severe 5 impairment. (AR 167-69.) Accordingly, Dr. Jacobs concluded that Plaintiff was not disabled. 6 (AR 168-69.) [7] 8 7. Dr. Daljit Mac, M.D. [9] 10 Psychiatrist Dr. Mac also treated Plaintiff for mental health issues. (AR 36-82, 178511 1831.) Dr. Mac noted that Plaintiff: had sleep issues; showed signs of moderate depression; 12 was easily distracted; and had poor attention. (AR 1787, 1789, 1795, 1819.) He further noted 13 that Plaintiff reported experiencing crying spells, and that she experienced angry outbursts. 14 (AR 1792, 1825.) Finally, Dr. Mac reported that Prozac was helping Plaintiff. (AR 1816, 15 1819.) [16] 17 8. Dr. Donald Eknoyan, M.D. [18] 19 On November 2, 2020, Plaintiff’s treating psychiatrist, from Kaiser, Dr. Eknoyan 20 authored a one-page letter concerning Plaintiff’s mental health. (AR 1662.) He noted that he 21 had been treating Plaintiff since February 2019 for major depressive disorder and anxiety, and 22 that her symptoms fluctuated from moderate to severe. (AR 1662.) He further noted that 23 Plaintiff reported ongoing physical symptoms and cognitive problems which worsened after a 24 concussion from a car accident in 2015. (AR 1662.) Dr. Eknoyan opined that Plaintiff’s 25 symptoms appeared to impact her ability to work. (AR 1662.) However, he did not assess 26 specific limitations. (AR 1662.) [27] 28 / / [20] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 21 of 32 Page ID #:3695 1 ii. Analysis [2] 3 With regard to mental limitations, Plaintiff also argues that the ALJ did not specify the 4 weight she assigned to any of the medical opinions, and failed to properly weigh the evidence 5 under 20 C.F.R. § 404.1527 . (Joint Stip. at 11.) In particular, Plaintiff argues that the ALJ 6 erred in finding that Dr. Nagar’s opinion was unsupported (id. at 11-12), and the ALJ failed to 7 discuss the consistency of Dr. Nagar’s opinion with other record evidence (id. at 14). [8] 9 As with Plaintiff’s physical impairments, because the ALJ’s assessment of the medical 10 source opinions is examined under the pre-2017 standards (AR 179, 180), and the ALJ 11 determined that Dr. Nagar’s opinion was inconsistent (AR 934), the ALJ needed to provide 12 specific and legitimate reasons, supported by substantial evidence, to reject Dr. Nagar’s 13 opinion. See Trevizo, 871 F.3d at 675 . The Court finds that the ALJ provided specific and 14 legitimate reasons, and articulated a “substantive basis” for giving Dr. Nagar’s opinion less 15 weight. Garrison, 759 F.3d at 1012 . [16] 17 In assessing Plaintiff’s mental impairments, the ALJ first thoroughly summarized the 18 opinion evidence, and stated that the mental opinions varied and ranged from mild to moderate 19 limitations to marked limitations, and diagnoses also ranged from milder to moderate-severe. 20 (AR 933, 934.) She stated that the opinions noting the inability to sustain work generally were 21 not considered persuasive or specifically helpful in determining Plaintiff’s functional abilities. 22 (AR 934.) More specifically, the ALJ determined that Dr. Nagar’s opinion was unsupported 23 by sufficient treating records and inconsistent with other opinions. (AR 934; see Garrison, [24] 759 F.3d at 1012 .) On October 29, 2020, Dr. Nagar opined that Plaintiff’s symptoms were 25 severe so as to seriously limit, but not preclude, her ability to mentally function in numerous 26 areas, and that, in other areas, she was unable to meet competitive standards and had no useful 27 ability to function. (AR 1659-60.) Subsequently on November 2, 2020, Dr. Nagar opined that 28 Plaintiff “should be placed on permanent disability.” (AR 1671.) [21] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 22 of 32 Page ID #:3696 1 The ALJ adequately considered all of the opinions and reasonably gave less weight to 2 the opinions of Dr. Nagar, and some to Dr. Eknoyan and Dr. Watson as reflected in the RFC. 3 First, the ALJ found that the limitations Dr. Nagar assessed were not well supported because 4 they were not accompanied by any objective findings, treating records or progress notes, other 5 than the summaries and reports submitted by Dr. Nagar. (AR 934.) By contrast, the ALJ noted 6 that Dr. Eknoyan’s opinion garnered some weight because there were progress notes from 7 Kaiser which showed mental health care. (AR 934 (citing AR 3224-3529).) The ALJ’s 8 assessment of Dr. Watson’s opinion is reflected in limits to multitasking, pace, and detailed 9 but not complex work tasks. (AR 930, 933-34.) An ALJ may appropriately discredit a treating 10 psychologist’s opinion when it is unsupported by the record as a whole or by objective medical 11 findings. See Batson, 359 F.3d at 1195 ; see also 20 C.F.R. § 404.1527 (c)(3) (“The more a 12 medical source presents relevant evidence to support a medical opinion, particularly medical 13 signs and laboratory findings, the more weight we will give that medical opinion.”). [14] 15 Second, the ALJ determined that Dr. Nagar’s opinions were inconsistent with the overall 16 medical record, and with Plaintiff’s ability to maintain basic activities of daily living. (AR 17 934.) The ALJ pointed to Plaintiff’s ability to engage appropriately with medical professionals 18 and follow prescribed treatment, to find that she was not as limited as alleged and not unable 19 to perform routine simple tasks or sufficiently engage with others. (AR 934.) The ALJ 20 discussed Dr. Rathana-Nakintara’s consultative psychiatric evaluation which took place one 21 month after Dr. Daniels opined that Plaintiff was “totally disabled” and showed signs of 22 marked restriction in activities of daily living. (AR 919-22.) She noted that Dr. Rathana23 Nakintara’s evaluation showed that Plaintiff: had adequate self-care skills; was able to do 24 household chores, run errands, go shopping, and cook with difficulty; had hobbies of dancing, 25 reading, swimming, and attending concerts; and could manage her own money. (AR 933.) 26 This is a specific and legitimate reason, supported by substantial evidence, for giving Dr. 27 Nadar’s opinion little weight. Garrison, 759 F.3d at 1012 . [22] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 23 of 32 Page ID #:3697 1 Although Plaintiff reported being depressed and anxious due to pain, Dr. Rathana2 Nakintara noted that Plaintiff was an adequate historian; was living with friends; had adequate 3 self-care skills; was able to do household chores, run errands, shop, and cook with difficulty; 4 hobbies or pastimes included dancing, reading, swimming and concerts/music; and managed 5 her own money. (AR 472-74.) Though Plaintiff did not want to bother trying to recall missed 6 items, she: laughed and smiled appropriately and readily; denied suicidal ideations; and 7 completed serial seven and three subtractions without issue. (AR 474.) In particular, Plaintiff 8 exhibited no difficulty interacting with Dr. Rathana-Nakintara or his staff. (AR 476.) Finally, 9 the ALJ’s citation and discussion to records from 2012 show that she considered all the 10 evidence in her decision, and illustrates that psychiatric medications provided some stability 11 despite side effects. (AR 932, 933.) An ALJ may appropriately discount opinion evidence 12 when a psychologist assesses limitations that appear to be inconsistent with a claimant’s level 13 of activity. See Rollins, 261 F.3d at 856 ; see also 20 C.F.R. § 404.1527 (“Generally, the more 14 consistent a medical opinion is with the record as a whole, the more weight we will give to 15 that medical opinion.”). [16] 17 For the same reasons, the Court finds that the ALJ appropriately gave Ms. Schultz’s 18 February 7, 2018 opinion less weight. (AR 934.) In a one-page letter, Ms. Schultz stated that 19 Plaintiff: was limited in her tolerance for activity; has photosensitivity; has difficulty 20 concentrating; gets overwhelmed when overstimulated; and has poor organizational abilities. 21 (AR 914.) She further stated that, Plaintiff “continues to be disabled by her brain injury.” (AR 22 914.) The ALJ gave her opinion less weight because her letter was not accompanied by any 23 supporting treating records, progress notes, or any objective findings. (AR 933.) She also 24 assessed less weight to her opinion due to inconsistency with the medical record because 25 imaging studies did not highlight ongoing brain abnormalities. (AR 933; see also AR 429-30, 26 494.) [27] 28 / / [23] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 24 of 32 Page ID #:3698 1 Accordingly, the ALJ’s evaluation of the opinion evidence concerning Plaintiff’s mental 2 impairments is affirmed. [3] 4 II. The ALJ Properly Assessed Plaintiff’s Subjective Complaints [5] 6 Plaintiff argues that the ALJ failed to articulate legitimate, and clear and convincing, 7 reasons for discounting her subjective complaints. (Joint Stip. at 30.) She specifically argues 8 that the ALJ’s assessment of her subjective complaints is flawed because the ALJ failed to 9 point to any prescribed treatment that Plaintiff did not pursue (id. at 28); erred in concluding 10 that her daily activities were inconsistent with her subjective complaints (id. at 28-29); and 11 erred in finding that the objective medical evidence did not support her allegations (id. at 29). 12 The Court disagrees. [13] 14 A. Legal Standard [15] 16 Before an ALJ rejects a claimant’s statements regarding the severity and persistence of 17 her symptoms, the ALJ must engage in a two-step analysis. See Christine G. v. Saul, 402 F. 18 Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting Trevizo, 871 F.3d at 678 ). In step one, the ALJ 19 must determine whether the claimant has produced objective medical evidence of an 20 underlying impairment that “could reasonably be expected to produce the pain or other 21 symptoms alleged.” Trevizo, 871 F.3d at 678 (internal quotation marks omitted). “Second, if 22 the claimant has produced that evidence, and the ALJ has not determined that the claimant is 23 malingering, the ALJ must provide ‘specific, clear and convincing reasons for’ rejecting the 24 claimant’s testimony regarding the severity of the claimant’s symptoms” and those reasons 25 must be supported by substantial evidence in the record. Treichler v. Comm'r of Soc. Sec. 26 Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273 , 1281 27 (9th Cir. 1996)); see also Marsh v. Colvin, 792 F.3d 1170 , 1173 n.2 (9th Cir. 2015); Carmickle, [28] 533 F.3d at 1161 . When rejecting testimony, the ALJ must specifically identify which [24] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 25 of 32 Page ID #:3699 1 “testimony is not credible and what evidence undermines the claimant’s complaints.” Parra 2 v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 3 Cir. 1995)). [4] 5 In March 2016, the Commissioner promulgated Social Security Ruling 16-3p (“SSR 166 3p”), 2017 WL 5180304 , which “makes clear what [Ninth Circuit] precedent already required: 7 that assessments of an individual’s testimony by an ALJ are designed to evaluate the intensity 8 and persistence of symptoms . . . and not to delve into wide-ranging scrutiny of the claimant’s 9 character and apparent truthfulness.” Trevizo, 871 F.3d at 678 n.5 (internal quotation marks 10 omitted). Under SSR 16-3p, the ALJ shall determine whether to credit a claimant’s statements 11 about her pain and limitations by referring to the factors listed in 20 C.F.R. § 404.1529 (c)(3), 12 which include: the claimant’s daily activities; the location, duration, frequency, and intensity 13 of the claimant’s symptoms; the factors that precipitate and aggravate the symptoms; the type, 14 dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; the 15 claimant’s treatment, other than medication, for the symptoms; any other measure that the 16 claimant uses to relieve the symptoms; and any other factors concerning the claimant’s 17 functional limitations and restrictions due to the symptoms. See SSR 16-3p. [18] 19 However, the lack of objective medical evidence supporting a claimant’s allegations 20 cannot be the sole basis for rejecting the claimant’s statements about the severity of her 21 symptoms and limitations. Id.; see also Trevizo, 871 F.3d at 679 ; 20 C.F.R. § 404.1529 (c)(2) 22 (“[W]e will not reject your statements about the intensity and persistence of your pain or other 23 symptoms or about the effect your symptoms have on your ability to work solely because the 24 available objective medical evidence does not substantiate your statements.”). [25] 26 / / 27 / / 28 / / [25] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 26 of 32 Page ID #:3700 1 B. Plaintiff’s Subjective Complaints [2] 3 Plaintiff testified at two hearings, one on February 8, 2018 and another on November 4 12, 2020. (AR 131-60, 944-84, 1054-83.) [5] 6 At the February 2018 hearing, which was before a different ALJ, Plaintiff testified that 7 the main thing that kept her from working was a third concussion that she sustained in 2015. 8 (AR 137.) She noted that her brain has not been working well since then, and that she could 9 not function at all until 2017. (AR 137.) Plaintiff testified that she had improved slightly but 10 she was still having daily migraines, and was extremely sensitive to noise and light, which 11 made it difficult for her to be out in public. (AR 137.) She also testified that she was easily 12 overwhelmed and became exhausted from simple tasks. (AR 137, 139.) Plaintiff reported 13 that she battled with endometriosis before her 2015 concussion, and that it interfered with her 14 ability to work. (AR 141.) She experiences physical pain and menstrual cramps from 15 endometriosis. (AR 141.) Plaintiff indicated that she was diagnosed with toxicity due to mold. 16 (AR 143-44.) She testified she had issues with short term and long term memory. (AR 14417 45.) Moreover, she noted having left-knee surgery in 2017 due to a torn anterior cruciate 18 ligament (“ACL”). (AR 145.) She was still having issues with walking and balancing. (AR 19 145, 147.) Furthermore, she testified that she was definitely depressed. (AR 142.) [20] 21 Following voluntary remand, Plaintiff testified before the ALJ on November 12, 2020. 22 (AR 944-84.) At that time, Plaintiff testified that she was still having chronic neck and 23 shoulder pain from car accidents. (AR 958.) Her treatment included: block injections; 24 acupuncture; and chiropractic therapy. (AR 958.) She most recently had a block injection in 25 her cervical spine during summer 2019. (AR 958.) Her primary care physician was Dr. 26 Gregory Rubin, M.D. who she had been unable to see recently due to COVD. (AR 959.) 27 Plaintiff stated she began seeing Dr. Nagar in March 2020, and she was having weekly 28 psychotherapy through Zoom from Dr. Nagar. (AR 960.) She recently started Prozac for [26] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 27 of 32 Page ID #:3701 1 depression, and was taking Clonazepam for anxiety and Adderall for ADHD. (AR 960.) She 2 started taking Prozac a few weeks prior because Fetzima was causing blurred vision. (AR 3 960.) Plaintiff noted she had been taking Clonazepam for a few months and Adderall on and 4 off for years. (AR 961.) She testified that the medications were helping her, and that she took 5 Bupranolol for pain and used Bultrans patches as well. (AR 961.) Plaintiff denied taking any 6 medications for her headaches because a lot of medications aggravate her tinnitus. (AR 961.) [7] 8 When questioned by her counsel, Plaintiff testified that she had been taking depression 9 and anxiety medication for years, but she has “tried and failed on almost every antidepressant 10 that’s on the market.” (AR 962-63.) She stated she was very sensitive to side effects. (AR 11 963.) She started taking antidepressants after her first serious car accident in or around 1990. 12 (AR 963.) Plaintiff testified that she had migraine headaches once a week to every two weeks, 13 lasting about a day. (AR 963-64.) [14] 15 She reported having memory and focusing problems due to post-concussion syndrome. 16 (AR 964.) The post-concussion syndrome also causes her to get easily overwhelmed when 17 around crowds. (AR 964.) She avoids people, crowds, and places with loud noises, which 18 also aggravate her tinnitus. (AR 964-65.) She takes daily naps lasting twenty to thirty minutes, 19 and has to take constant breaks. (AR 965.) Her breaks last anywhere from five to thirty 20 minutes. (AR 967.) As to her pelvic pain, Plaintiff testified that she has severe menstrual pain 21 and cramping, and only has one good week a month between ovulation and her period. (AR 22 968-70.) She reported scheduling things during that one week period. (AR 969.) [23] 24 Plaintiff also reported being able to sit for fifteen to twenty minutes without difficulties. 25 (AR 970.) She stated she has difficulties lifting more than five pounds. (AR 972.) She 26 received transcranial magnetic stimulation (“TMS”) for her anxiety and depression in 2019. 27 (AR 972.) Plaintiff responded favorably to TMJ, and to neurofeedback which was not covered 28 by her insurance. (AR 972-73.) She “did not have a working brain” from 2015 to 2016. (AR [27] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 28 of 32 Page ID #:3702 1 973.) Plaintiff also attended dialectical behavioral therapy through Kaiser which was helpful. 2 (AR 973-74.) She stated she used a transcutaneous electrical nerve stimulation (“TENS”) unit 3 for her cramps, and reported doing research to find other pain solutions. (AR 974.) Plaintiff 4 noted that she still had pain despite taking “pretty strong medicine.” (AR 974.) [5] 6 C. Analysis [7] 8 In step one, the ALJ determined that Plaintiff’s medically determinable impairments 9 could reasonably be expected to cause her alleged symptoms. (AR 931.) However, in step 10 two, the ALJ discounted Plaintiff’s subjective complaints about the severity of her 11 impairments and the limiting effects of those impairments. (AR 931.) The ALJ stated that 12 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of [her] 13 symptoms [we]re not entirely consistent with the medical evidence and other evidence in the 14 record for the reasons explained in this decision.” (AR 931.) Because the ALJ made no 15 determination as to whether Plaintiff was malingering, the ALJ had to provide specific, clear 16 and convincing reasons for discounting Plaintiff’s subjective complaints, and those reasons 17 must be supported by substantial evidence in the record. Treichler, 775 F.3d at 1102 . [18] 19 The ALJ provided three reasons for discounting Plaintiff’s subjective complaints: (1) 20 Plaintiff’s complaints were inconsistent with the objective medical evidence; (2) Plaintiff’s 21 conservative treatment; and (3) Plaintiff’s activities of daily living. (See AR 931-34.) [22] 23 1. Objective Medical Evidence [24] 25 First, the ALJ discounted Plaintiff’s subjective statements because they were not 26 consistent with the objective medical evidence in the record. Although the ALJ may not reject 27 Plaintiff’s subjective complaints solely based on a lack of medical evidence, the ALJ may 28 consider this as a factor when discrediting Plaintiff’s complaints. Burch, 400 F.3d at 680. [28] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 29 of 32 Page ID #:3703 1 Here, the ALJ cited evidence from Plaintiff’s medical record that provided specific, clear and 2 convincing reasons to support a finding that Plaintiff’s statements of pain and limitations were 3 not as severe as claimed. Parra, 481 F.3d at 750-51 (noting the “inconsistencies” between the 4 claimant’s subjective symptom statements and the objective medical evidence in the record as 5 a “significant and substantial reason” to reject the claimant’s statements). The ALJ noted that 6 Plaintiff had an extensive history of treatment for endometriosis, spinal pain, left wrist and 7 hand pain, migraine headaches, photosensitivity, chronic post-traumatic headaches, neck pain 8 with cervical muscle spasms, segmental and somatic dysfunction of the cervical and thoracic 9 regions, uterine bleeding with abdominal cramping, cervicalgia, occipital neuralgia, trapezius 10 muscle strains, tenderness and a limited range of motion in the affected areas, post-concussion 11 syndrome, knee pain, hip pain, low back pain, hypertension, chronic fatigue, shortness of 12 breath, and multiple chemical sensitivity. (AR 932.) In the face of this exhaustive list of 13 complaints, the ALJ pointed to reports showing: the absence of specific physical complaints 14 (AR 932 (citing AR 1735)); and normal and mild CT findings (AR 932 (discussing AR 42915 30 and citing AR 497, 501-02)). The ALJ further pointed to Dr. Rostamloo’s report in which 16 she found that Plaintiff did not have any medically determinable physical limitations or 17 restrictions. (AR 932 (citing AR 477-83).) Additionally, the ALJ pointed to medical evidence 18 showing the inconsistency in the severity of Plaintiff’s mental impairments. (AR 933-34.) 19 Despite Plaintiff’s complaints of low energy, social anxiety, memory loss, and ability to focus 20 and adapt, medical evidence showed that Plaintiff had: maintained basic activities of daily 21 living; engaged appropriately with medical professionals; continued to seek and followed 22 prescribed treatment; and avoided triggers. (AR 934.) [23] 24 2. Conservative Treatment [25] 26 Second, the ALJ properly discounted Plaintiff’s subjective complaints because her 27 overall conservative treatment was inconsistent with her alleged symptoms. See Astrue, 481 28 F.3d at 750-51 (ALJ can rely on conservative treatment to discount claimant’s statements); [29] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 30 of 32 Page ID #:3704 1 and see Johnson, 60 F.3d at 1434 (noting that evidence of “conservative treatment” is a 2 sufficient ground to discount a claimant’s testimony regarding the severity of an impairment). 3 The ALJ noted that, as to Plaintiff’s physical condition, the progress notes and reports from 4 various medical sources demonstrated that Plaintiff largely received conservative outpatient 5 care for her symptoms and conditions. (AR 932 (citing AR 322-42; 343-469; 484-502; 5036 16; 520-731; 732-62; 763-896; 915-16; 1162-1534; 1539-1630; 1631-37; 1638-47; 1648-57; 7 1734-81).) [8] 9 As discussed above, Dr. Vahedifar stated that Plaintiff was managing her pain well with 10 medication (AR 932 (citing AR 1642 (“The patient will need to continue the current 11 medication regimen since this is managing the chronic pain well.”))), and repeatedly reported 12 that Plaintiff was “managing” her chronic pain well (see AR 1640, 1642, 1644, 1646). 13 Moreover, Plaintiff reported doing well with psychiatric medications, and was attending 14 psychotherapy. (AR 931, 933.) The Court finds no legal error in the ALJ’s consideration of 15 Plaintiff’s overall conservative treatment. See, e.g., 20 C.F.R. § 404.1529 (c)(3)(iv) (ALJ may 16 consider type, dosage, and effectiveness of medications); Randall v. Saul, 845 F. App'x 521 , 17 523 (9th Cir. 2021) (conservative treatment measures include medication); Tommasetti, 533 18 F.3d at 1039-40 (“The record reflects that Tommasetti responded favorably to conservative 19 treatment including physical therapy and the use of anti-inflammatory medication, a 20 transcutaneous electrical nerve stimulation unit, and a lumbosacral corset.”); Warre v. Comm'r 21 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 22 effectively with medication are not disabling for the purpose of determining eligibility for 23 [disability] benefits.”). [24] 25 3. Activities of Daily Living [26] 27 Third, the ALJ determined that Plaintiff’s reported daily activities were inconsistent 28 with her subjective complaints of pain, social anxiety, memory loss, and ability to focus and [30] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 31 of 32 Page ID #:3705 1 adapt. Despite complaints of hip pain, Plaintiff was still able to drive. (AR 932 (citing AR 2 1163).) Additionally, Dr. Rathana-Nakintara’s January 6, 2016 summary report indicates that 3 Plaintiff had adequate self-care skills, was able to do household chores, run errands, go 4 shopping, and cook with difficulty; had hobbies of dancing, reading, swimming, and attending 5 concerts; and could manage her own money. (AR 473-74.) The ALJ found that Plaintiff’s 6 ability to maintain basic activities of daily living, engage appropriately with medical 7 professionals, and follow prescribed treatment suggested that she was not seriously limited, or 8 unable to perform routine simple tasks, follow 1-2 step instructions, engage sufficiently with 9 others to learn and complete tasks, and maintain a reduced, but sustained, pace to complete 10 activities. (AR 934.) The ALJ further found that Plaintiff’s ability to continue to seek and 11 follow medical advice, take medications, remember and avoid triggers suggested no 12 significant limitations in adapting and managing herself. (AR 934.) Based on the specific 13 activities that the ALJ cited, the ALJ “was permitted to consider daily living activities in h[er] 14 credibility analysis.” Burch, 400 F.3d at 681; see also Molina, 674 F.3d at 1112-13 (“While 15 a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may 16 discredit a claimant’s testimony when the claimant reports participation in everyday activities 17 indicating capacities that are transferable to a work setting.” (internal quotation marks and 18 citations omitted)); 20 C.F.R. § 404.1529 (c)(3)(i). [19] 20 Thus, the Court finds that the ALJ provided specific, clear and convincing reasons, 21 supported by substantial record evidence, to discount Plaintiff’s subjective complaints. 22 Accordingly, the Court finds no legal error in the ALJ’s assessment of Plaintiff’s subjective 23 complaints. [24] 25 / / 26 / / 27 / / 28 / / [31] Case 2:21-cv-03325-KS Document 25 Filed 08/31/22 Page 32 of 32 Page ID #:3706 l CONCLUSION 3 For the reasons stated above, the Court finds that the ALJ articulated legally sufficient 4 || reasons for denying disability benefits; reasons that are supported by substantial evidence in 5 || the record. See Lingenfelter, 504 F.3d at 1035 . Accordingly, IT IS ORDERED that Judgment 6 |) shall be entered affirming the decision of the Commissioner of the Social Security 7 || Administration. 9 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 10 |) Memorandum Opinion and Order and the Judgment on counsel for Plaintiff and for Defendant. [11] 12 LET JUDGMENT BE ENTERED ACCORDINGLY. [13] 14 |) DATE: August 31, 2022 15 Faun / . Hs tusin 16 KAREN L. STEVENSON a UNITED STATES MAGISTRATE JUDGE