Kelli C. Shultz v. Kilolo Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 KELLI C. S.,1 ) Case No. 2:22-cv-03626-JDE ) 12 Plaintiff, ) ) MEMORANDUM OPINION AND 13 v. ) ORDER ) 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of Social Security, ) ) ) [16] Defendant. ) [17] 18 Kelli C. S. (“Plaintiff”) filed a Complaint on May 26, 2022, seeking 19 review of the Commissioner’s denial of her application for disability insurance 20 benefits (“DIB”).2 The parties filed a Joint Submission (“Jt. Stip.”) regarding 21 the issues in dispute on April 7, 2023. The matter now is ready for decision. [22] 23 1 Plaintiff’s name has been partially redacted in accordance with Fed. R. Civ. 24 P. 5 .2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. [25] 2 Plaintiff also requested review of the Commissioner’s denial of her [26] application for supplemental security income (“SSI”) (Complaint ¶ 1), but the 27 administrative record does not reflect Plaintiff submitted an SSI application. See Administrative Record (“AR”) 15, 3564. [28] 1 I. 2 BACKGROUND 3 Plaintiff filed her application for DIB on January 12, 2015, alleging 4 disability starting on January 9, 2014. AR 46, 152-57. After her application was 5 denied initially and on reconsideration (AR 58, 73), an administrative hearing 6 was held regarding Plaintiff’s claim on October 23, 2017. AR 31-45. Plaintiff, 7 represented by counsel, testified before an Administrative Law Judge (“ALJ”), 8 as did a vocational expert (“VE”). Id. On November 9, 2017, the ALJ issued a 9 written decision finding Plaintiff was not disabled. AR 15-25. 10 After the Appeals Council denied a request for review (AR 1-6), Plaintiff 11 appealed to this Court. On March 25, 2019, the undersigned concluded that the 12 ALJ improperly discounted the third-party function report completed by 13 Plaintiff’s ex-husband. Kelli C. S. v. Berryhill, 2019 WL 1330890 (C.D. Cal. 14 Mar. 25 , 2019); AR 3556-59. The Court remanded the matter for further 15 proceedings, instructing the ALJ to “reassess the third-party function [report] 16 and Plaintiff’s subjective complaints in conjunction with the medical evidence, 17 and then reassess Plaintiff’s [residual functional capacity (“RFC”)] in light of 18 that analysis, and thereafter proceed through the remaining steps of the 19 disability analysis to determine what work, if any, Plaintiff is capable of 20 performing that exists in significant numbers in the national or regional 21 economy.” AR 3559-61. 22 On April 12, 2019, the Appeals Council vacated the Commissioner’s 23 prior decision, consolidated the case with a duplicate claim for DIB 24 subsequently filed by Plaintiff, and remanded to an ALJ for further proceedings 25 consistent with this Court’s order. AR 3562-67. On remand, a different ALJ 26 held a new hearing on November 13, 2019, during which Plaintiff, represented 27 by counsel, testified before an ALJ, as did a VE. AR 3500-41. On November 28 14, 2019, Plaintiff amended her alleged onset date to July 24, 2018. AR 3668. 1 On December 13, 2019, the ALJ issued a written decision finding 2 Plaintiff was not disabled. AR 3482-95. The ALJ found Plaintiff last met the 3 insured status requirements on December 31, 2018. AR 3485. The ALJ found 4 Plaintiff did not engage in substantial gainful activity from her amended alleged 5 onset date through her date last insured. Id. The ALJ concluded Plaintiff had 6 the following severe impairments: degenerative disc disease of the lumbar 7 spine, obesity, bipolar disorder, post-traumatic stress disorder, and personality 8 disorder. Id. The ALJ also found Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled a listed impairment 10 (id.), and she had the RFC to perform light work3 except as follows (AR 3487): 11 [Plaintiff] could no more than frequently push and/or pull. She 12 could never climb ladders, ropes, or scaffolds, and could no more 13 than occasionally perform all other postural activities. She could 14 no more than frequently reach and frequently walk on uneven 15 terrain. In addition, she was limited to simple, routine tasks with 16 no more than occasional interaction with supervisors and 17 incidental contact with coworkers and the public. 18 The ALJ found Plaintiff was unable to perform her past relevant work as 19 a licensed practical nurse (Dictionary of Occupational Titles [“DOT”] 079.37420 014) or medical assistant (DOT 079.362-010). AR 3493. The ALJ also found [22] 3 “Light work” is defined as 23 lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight [24] lifted may be very little, a job is in this category when it requires a good 25 deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered 26 capable of performing a full or wide range of light work, [a claimant] 27 must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567 (b); see also Aide R. v. Saul, 2020 WL 7773896 , at *2 n.6 (C.D. 28 Cal. Dec. 30, 2020). 1 that Plaintiff was closely approaching advanced age, had at least a high school 2 education, and could communicate in English. Id. Finally, the ALJ found that, 3 considering Plaintiff’s age, education, work experience, RFC, and the VE’s 4 testimony, there were other jobs that existed in significant numbers in the 5 national economy that she could have performed, including the representative 6 occupations of hand packager (DOT 559.687-074), small products assembler I 7 (DOT 706.684-022), and electronics worker (DOT 726.687-010). AR 3493-94. 8 Thus, the ALJ concluded Plaintiff has not been under a “disability,” as defined 9 in the SSA, from the alleged onset date4 through the date last insured. AR 3494. 10 The Appeals Council found Plaintiff’s written exceptions did not provide a 11 basis for changing the ALJ’s decision, making the ALJ’s remand decision the 12 agency’s final decision. AR 3467-73. 13 II. 14 LEGAL STANDARDS 15 A. Standard of Review 16 Under 42 U.S.C. § 405 (g), this Court may review a decision to deny 17 benefits. The ALJ’s findings and decision should be upheld if they are free 18 from legal error and supported by substantial evidence based on the record as a 19 whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as 20 amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 21 evidence means such relevant evidence as a reasonable person might accept as 22 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028 , 1035 23 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id. 24 To assess whether substantial evidence supports a finding, the court 25 “must review the administrative record as a whole, weighing both the evidence 26 that supports and the evidence that detracts from the Commissioner’s [27] 4 The ALJ referred to the original alleged onset date. [28] 1 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the 2 evidence can reasonably support either affirming or reversing,” the reviewing 3 court “may not substitute its judgment” for that of the Commissioner. Id. at 4 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even 5 when the evidence is susceptible to more than one rational interpretation, [the 6 court] must uphold the ALJ’s findings if they are supported by inferences 7 reasonably drawn from the record.”), superseded by regulation on other 8 grounds as stated in Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). 9 Lastly, even if an ALJ errs, the decision will be affirmed if the error is harmless 10 (Molina, 674 F.3d at 1115 ), that is, if it is “inconsequential to the ultimate 11 nondisability determination,” or if “the agency’s path may reasonably be 12 discerned, even if the agency explains its decision with less than ideal clarity.” 13 Brown-Hunter, 806 F.3d at 492 (citation omitted); Smith, 14 F.4th at 1111 14 (even where the “modest burden” of the substantial evidence standard is not 15 met, “we will not reverse an ALJ’s decision where the error was harmless”). 16 B. The Five-Step Sequential Evaluation 17 When a claim reaches an ALJ, the ALJ conducts a five-step sequential 18 evaluation to determine at each step if the claimant is disabled. See Ford v. 19 Saul, 950 F.3d 1141, 1148-49 (9th Cir. 2020); Molina, 674 F.3d at 1110 . 20 First, the ALJ considers if the claimant works at a job that meets the 21 criteria for “substantial gainful activity.” Molina, 674 F.3d at 1110 . If not, the 22 ALJ proceeds to a second step to assess whether the claimant has a “severe” 23 medically determinable physical or mental impairment or combination of 24 impairments that has lasted for more than twelve months. Id. If so, the ALJ 25 proceeds to a third step to assess whether the impairments meet or equal any of 26 the listed impairments in the Social Security Regulations at 20 C.F.R. Part 404, 27 Subpart P, Appendix 1, rendering the claimant disabled. See Rounds v. 28 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015) (as amended). If 1 the impairments do not meet or equal a listed impairment, before moving to the 2 fourth step the ALJ assesses the claimant’s RFC, that is, what the claimant can 3 do on a sustained basis despite the limitations from her impairments. See 20 4 C.F.R. § 404.1520 (a)(4); Social Security Ruling 96-8p, 1996 WL 374184 (July 5 2, 1996). After assessing the RFC, the ALJ proceeds to the fourth step to 6 determine if, in light of the RFC, the claimant can perform past relevant work 7 as actually or generally performed. See Stacy v. Colvin, 825 F.3d 563, 569 (9th 8 Cir. 2016). If the claimant cannot perform her past relevant work, the ALJ 9 proceeds to a fifth and final step to determine whether there is any other work, 10 in light of the claimant’s RFC, age, education, and work experience, that the 11 claimant can perform and that exists in “significant numbers” in either the 12 national or regional economies. See Tackett v. Apfel, 180 F.3d 1094 , 1100-01 13 (9th Cir. 1999); 20 C.F.R. § 404.1566 (a). If the claimant can do other work, she 14 is not disabled; but if the claimant cannot do other work and meets the duration 15 requirement, the claimant is disabled. See Tackett, 180 F.3d at 1099 ; see also 16 Woods v. Kijakazi, 32 F.4th 785 , 787 n.1 (9th Cir. 2022) (summarizing the 17 steps and noting that “[t]he recent [2017] changes to the Social Security 18 regulations did not affect the familiar ‘five-step sequential evaluation 19 process.’”). 20 The claimant generally bears the burden at steps one through four to 21 show she is disabled or meets the requirements to proceed to the next step and 22 bears the ultimate burden to show she is disabled. See, e.g., Ford, 950 F.3d at 23 1148; Molina, 674 F.3d at 1110 ; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 24 Cir. 1995). However, at Step Five, the ALJ has a limited burden of production 25 to identify representative jobs that the claimant can perform and that exist in 26 “significant” numbers in the economy. See Hill v. Astrue, 698 F.3d 1153 , 1161 27 (9th Cir. 2012); Tackett, 180 F.3d at 1100 . 28 / / / 1 III. 2 DISCUSSION 3 The parties present one disputed issue: whether the ALJ’s RFC 4 determination is the product of legal error where the ALJ failed to properly 5 evaluate the opinions of treating physician, Phillip Kay, M.D.5 and psychiatric 6 consultative examiner, Jeriel Lorca, M.D. Jt. Stip. at 14. 7 A. Applicable Law 8 In determining a claimant’s RFC, an ALJ must consider all relevant 9 evidence in the record, including medical records, lay evidence, and “the 10 effects of symptoms, including pain, that are reasonably attributed to a 11 medically determinable impairment.” Robbins v. Soc. Sec. Admin., 466 F.3d 12 880, 883 (9th Cir. 2006) (citation omitted). 13 In evaluating physicians’ opinions,6 the case law and regulations under 14 which this case must proceed distinguish among three types of physicians: (1) 15 treating physicians; (2) examining physicians; and (3) non-examining 16 physicians. See Farlow v. Kijakazi, 53 F.4th 485 , 488 (9th Cir. 2022); see also [17] 18 5 Plaintiff contends that the ALJ incorrectly referred to this physician as Dr. Kay, rather than Dr. Hay (Jt. Stip. at 17 n.3), but per the medical records, the name of [19] this physician appears to be Phillip Kwang Pyo Kay. See, e.g., AR 280, 678-79; see 20 also AR 3535. 21 6 The Court notes that although new regulations have been adopted that 22 change the framework for how an ALJ must evaluate medical opinion evidence, these new regulations only apply to claims filed on or after March 27, 2017. Revisions to 23 Rules Regarding Evaluation of Medical Evidence, 2017 WL 168819 , 82 Fed. Reg. 5844 -01 (Jan. 18, 2017); 20 C.F.R. § 404 .1520c. The new regulations provide the ALJ [24] will no longer “give any specific evidentiary weight, including controlling weight, to 25 any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant’s] medical sources.” Revisions to Rules, 2017 WL 168819 , 82 Fed. 26 Reg. 5844-01, at 5867-68; see also 20 C.F.R. § 404 .1520c(a). Instead, an ALJ must 27 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical findings. 20 C.F.R. § 404 .1520c(b). [1] 20 C.F.R. § 404.1527 . As a general rule, a treating physician’s opinion should 2 carry more weight than an examining physician’s opinion, and an examining 3 physician’s opinion should be given more weight than that of a non-examining 4 physician. Farlow, 53 F.4th at 488. “[T]he ALJ may only reject a treating or 5 examining physician’s uncontradicted medical opinion based on ‘clear and 6 convincing reasons’” supported by substantial evidence in the record. 7 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 8 (citation omitted); see also Farlow, 53 F.4d at 488. “Where such an opinion is 9 contradicted, however, it may be rejected for ‘specific and legitimate reasons 10 that are supported by substantial evidence in the record.’” Carmickle, 533 F.3d 11 at 1164 (citation omitted). 12 B. Analysis 13 1. Dr. Kay 14 On January 6, 2016, Dr. Kay completed a three-page physical residual 15 functional capacity questionnaire. AR 931-34. Dr. Kay diagnosed Plaintiff 16 with lumbar disc protrusion, LSS (lumbar spinal stenosis), and coccydynia, 17 and indicated Plaintiff experienced low back pain radiating down left leg and 18 tailbone pain. AR 931. As to clinical findings and objective signs, Dr. Kay 19 wrote “tender left lower lumbar [and] coccyx” and otherwise indicated 20 Plaintiff exhibited normal motor strength, normal sensory, negative straight leg 21 raise, and symmetric reflexes. Id. Dr. Kay opined that Plaintiff could stand 22 and/or walk less than two hours in an eight-hour workday; sit less than six 23 hours in an eight-hour workday; occasionally lift and/or carry 20 pounds; 24 occasionally bend, crouch, and balance, but never climb, kneel, or crawl; 25 occasionally reach, handle, and finger; limited in pushing and/or pulling in 26 both the upper and lower extremities; would need to take unscheduled breaks 27 during an eight-hour workday; and would be absent from work more than 28 three times a month. AR 932-33. 1 The ALJ accorded “little weight” to Dr. Kay’s assessment because: (1) it 2 was based on evidence predating the amended alleged onset date; (2) it was 3 brief and conclusory in form, “with little in the way of clinical findings to 4 support its conclusion”; and (3) the severity of the assessment was not 5 supported by Dr. Kay’s treating records, which showed intermittent and 6 conservative care. AR 3492. Instead, the ALJ afforded great weight to the less 7 restrictive opinion of the consultative internist. AR 3491. 8 First, contrary to Plaintiff’s assertion, the ALJ did not discredit the 9 opinion of Dr. Kay “based on its mere formatting.” Jt. Stip. at 18. The ALJ 10 found that Dr. Kay’s January 2016 assessment was not probative as it was 11 based on evidence significantly predating the amended alleged onset date of 12 July 24, 2018. AR 3492. Plaintiff does not address this finding in the Joint 13 Stipulation or set forth any basis on which to conclude the finding is improper. 14 An ALJ may properly note that medical opinions predating the relevant period 15 are of limited relevance. Ahearn v. Saul, 988 F.3d 1111, 1118 (9th Cir. 2021) 16 (“Medical opinions that predate the alleged onset of disability are of limited 17 relevance.” (quoting Carmickle, 533 F.3d at 1165 )); Gunderson v. Astrue, 371 18 F. App’x 807, 809 (9th Cir. 2010). Here, Dr. Kay’s January 2016 opinion was 19 rendered more than two years prior to the amended alleged onset date. The 20 ALJ properly discounted Dr. Kay’s opinion on that basis. 21 Second, the ALJ appropriately concluded that Dr. Kay’s assessment was 22 brief and conclusory, “with little in the way of clinical findings to support its 23 conclusion.” AR 3492. The extreme restrictions assessment by Dr. Kay was 24 not supported by objective clinical findings. The only “clinical findings and 25 objective signs” Dr. Kay identified to support his assessment was tenderness in 26 the left lower lumbar and coccyx. The other clinical findings cited were all 27 normal. AR 931. Although Plaintiff refers to several medical records that she 28 believes support Dr. Kay’s findings (Jt. Stip. at 19), none of these records were 1 referenced by Dr. Kay in support of his conclusions or attached, even though 2 such records were available. The ALJ properly relied on this deficiency in 3 assessing the opinion. 20 C.F.R. § 404.1527 (c)(3); Thomas v. Barnhart, 278 4 F.3d 947 , 957 (9th Cir. 2002) (“The ALJ need not accept the opinion of any 5 physician, including a treating physician, if that opinion is brief, conclusory, 6 and inadequately supported by clinical findings.”). 7 Finally, the ALJ found the severity of Dr. Kay’s assessment was not 8 supported by his treating records, which showed intermittent and conservative 9 care. AR 3492. Plaintiff also does not discuss this finding in the Joint 10 Stipulation. “A conflict between treatment notes and a treating provider’s 11 opinions may constitute an adequate reason to discredit the opinions of a 12 treating physician or another treating provider.” Ghanim v. Colvin, 763 F.3d 13 1154, 1161 (9th Cir. 2014). Here, although the ALJ did not cite any specific 14 medical records in support of this finding, she did explain the basis for her 15 conclusion that Dr. Kay’s opinion was inconsistent with his treating records. 16 Elsewhere in her opinion, the ALJ found that medical records showed large, 17 unexplained gaps in treatment, noting that there were very few treatment 18 records from July 2017 until May 2018. AR 3490. However, it does not appear 19 that Dr. Kay was treating Plaintiff at that time; rather, it appears Plaintiff was 20 being treated by Dr. Shaaron E. Zaghi. See, e.g., AR 4960, 4968-69; see also 21 AR 3535. The ALJ also noted that Plaintiff received multiple lumbar epidural 22 steroid injections, which provided relief, and continued with “conservative 23 measures to relieve pain.” AR 3490. Aspects of Plaintiff’s treatment were 24 certainly conservative, such as physical therapy (see, e.g., AR 599, 611, 623, 25 1197) and recommendation for weight management (AR 1308), but it is 26 unclear whether other aspects of Plaintiff’s treatment, namely, the epidural and 27 sacrococcygeal injections (see, e.g., AR 283, 678, 1135), were conservative. It 28 is doubtful that epidural steroid injections qualify as conservative medical 1 treatment in this context. See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2 2017) (noting it had previously “doubt[ed] that epidural steroid shots to the 3 neck and lower back qualify as ‘conservative’ medical treatment” (alteration in 4 original) (quoting Garrison v. Colvin, 759 F.3d 995 , 1015 n.20 (9th Cir. 5 2014))); Michael W. v. Kijakazi, 2023 WL 2761120 , at *7 (C.D. Cal. Apr. 3, 6 2023) (finding epidural steroid injections are not conservative treatment). The 7 Court need not determine whether this last reason for discounting Dr. Kay’s 8 opinion was valid as other legally sufficient reasons supported by substantial 9 evidence were provided for discounting his opinion. See Schalk v. Berryhill, [10] 734 F. App’x 475 , 479 (9th Cir. 2018) (it was harmless error to discount 11 opinion on erroneous basis where two other proper reasons were given (citing 12 Molina, 674 F.3d at 1122 )); Donathan v. Astrue, 264 F. App’x 556, 559 (9th 13 Cir. 2008) (ALJ’s erroneous characterization of treating physicians’ opinions 14 was harmless “because the ALJ provided proper, independent reasons for 15 rejecting these opinions”); Riad v. Colvin, 2014 WL 2938512 , at *3 (C.D. Cal. 16 June 30, 2014) (“although the ALJ proffered one legally insufficient reason for 17 according less weight to [treating physician’s] opinion, the error was harmless 18 because the ALJ also proffered two independent, legally sufficient reasons 19 supported by substantial evidence”). 20 Accordingly, Plaintiff has not shown that the ALJ erred in assessing the 21 persuasiveness of Dr. Kay’s opinion. 22 2. Dr. Lorca 23 On June 22, 2018,7 Dr. Lorca performed a psychiatric consultative 24 examination. AR 4945-50. Dr. Lorca diagnosed Plaintiff with bipolar disorder 25 most recent episode depressed, and noted that on mental status exam, Plaintiff [26] 27 7 The ALJ mistakenly refers to this consultative examination as taking place in May 2018. AR 3486. [28] 1 was “somewhat related,” but her affect was dysthymic, tearful, and anxious. 2 AR 4950. He also noted that she made various errors on the tasks of memory, 3 attention, and concentration. For instance, Plaintiff’s forward memory recall 4 was accurate, but backward recall was not. AR 4949. She could recall three out 5 of three items immediately, but only two out of three items after five minutes 6 AR 4949. Dr. Lorca found that Plaintiff was mildly limited in her ability to: 7 perform simple and repetitive tasks; maintain regular attendance; perform 8 work activities without additional or special supervision; and accept 9 instructions from supervisors. Dr. Lorca further found that she was moderately 10 limited in her ability to perform detailed and complex tasks, perform work 11 activities on a consistent basis, and to interact with coworkers and the public; 12 and she was markedly limited in her ability to complete a normal workday or 13 work week without interruptions resulting from any psychiatric conditions and 14 to deal with the usual stresses encountered in competitive work. AR 4950. Dr. 15 Lorca opined that Plaintiff’s condition was expected to improve in the next 12 16 months with active treatment and she was capable of handling funds. Id. 17 The ALJ gave partial weight to Dr. Lorca’s opinion that Plaintiff was 18 moderately limited in her ability to perform detailed and complex tasks, 19 perform work activities on a consistent basis, and interact with coworkers and 20 the public, noting that Dr. Lorca examined Plaintiff personally during the 21 same year as the period under consideration and his assessment was largely 22 supported by his findings on examination. AR 3486. However, the ALJ gave 23 less weight to Dr. Lorca’s assessment that Plaintiff was markedly limited in her 24 ability to complete a normal workday or work week without interruptions 25 resulting from any psychiatric conditions, and deal with the usual stresses 26 encountered in competitive work for three reasons. First, the ALJ found the 27 extent of these limitations was not substantiated by Dr. Lorca’s findings on 28 examination, which were “largely unremarkable except for some errors on the 1 tasks of memory, attention[,] and concentration.” Id. The ALJ also noted that 2 Plaintiff told Dr. Lorca and acknowledged at the administrative hearing that 3 she was more depressed at the time of the examination due to a recent finding 4 of a tumor, which was later determined to be a benign perianal abscess. 5 Finally, the ALJ found that subsequent mental status examinations were 6 within normal limits. Id. 7 The ALJ conducted a proper assessment of Dr. Lorca’s opinion. 8 Preliminarily, the Court notes that the ALJ did not reject the opinion in its 9 entirety. By assigning it “partial” weight, the ALJ necessarily gave 10 consideration and credited aspects of the opinion. AR 3486. Indeed, the ALJ’s 11 RFC assessment limited Plaintiff “to simple, routine tasks with no more than 12 occasional interaction with supervisors and incidental contact with coworkers 13 and the public,” (AR 3487), restrictions reflected in Dr. Lorca’s opinion. 14 To the extent the ALJ did not accept the more-restrictive mental 15 limitations in the opinion, she gave proper reasons for doing so. First, the ALJ 16 noted that Dr. Lorca’s findings were largely unremarkable except for some 17 errors on the tasks of memory, attention, and concentration. AR 3486. Plaintiff 18 contends that the ALJ cherry-picked largely normal examination findings, but 19 failed to properly consider the “numerous” abnormal findings. Jt. Stip. at 20. 20 Despite Plaintiff’s depressed mood and dysthymic, tearful, and anxious 21 affect, her thought processes were coherent and organized; her thought content 22 was relevant and non-delusional; her speech was normal and clearly 23 articulated without stammering, dysarthria, or neologisms; she correctly 24 answered simple math questions; and she was alert and oriented to time, place, 25 person, and purpose. AR 4948. Only her insight and judgment “appear[ed] to 26 be impaired regarding her current situation,” and she responded appropriately 27 to Dr. Lorca’s question, “What would you do if you were in a big store like 28 Wal-Mart and a little child came up to you crying and said he/she was lost?” 1 Plaintiff responded that she would “take her to the front and try and find her 2 mom.” AR 4949. Otherwise, as the ALJ reasonably found, the examination 3 was largely unremarkable, except for a few errors on the tasks of memory, 4 attention, and concentration. AR 3486, 4948-49. Plaintiff knew the current 5 president, but when asked for the capital of the United States, she said, 6 “Sacramento.” After she was told that was the capital of California, she then 7 realized that the capital of the United States was Washington, DC. AR 4948. 8 After noting that Plaintiff incorrectly stated that 85 cents would be received 9 from a dollar if two bananas were bought at 15 cents each, but answered 10 correctly when she was reminded there were two bananas, Dr. Lorca observed 11 that Plaintiff had “some difficulty” following the conversation well. AR 4949. 12 Plaintiff spelled “world” forwards correctly, but not backwards, and had 13 difficulty with the serial sevens. Plaintiff’s forward memory recall was 14 accurate, but backward recall was not. Id. She could recall three out of three 15 items immediately, but only two out of three items after five minutes. Id. 16 Plaintiff argues these errors supported the marked limitations assessed by 17 Dr. Lorca. Jt. Stip. at 21. But, where, as here, the evidence is “susceptible to 18 more than one rational interpretation,” the Court may not substitute its 19 judgment for that of the ALJ. See Burch v. Barnhart, 400 F.3d 676, 679 (9th 20 Cir. 2005) (“Where evidence is susceptible to more than one rational 21 interpretation, it is the ALJ’s conclusion that must be upheld”); McGee v. 22 Kijakazi, 2021 WL 5860899 , at *1 (9th Cir. Dec. 10, 2021). The ALJ 23 reasonably found that Dr. Lorca’s more-restrictive limitations were 24 inconsistent and not supported by his findings on examination. 25 Second, the ALJ discounted Dr. Lorca’s more-restrictive mental 26 limitations based on the situational nature of Plaintiff’s depression. The ALJ 27 noted that Plaintiff relayed to Dr. Lorca, and acknowledged at the hearing, 28 that she was more depressed at the time of the examination due to a recent 1 finding of a tumor, which was later determined to be a benign perianal abscess. 2 AR 3486. Among other things, Plaintiff reported to Dr. Lorca that she usually 3 has depression, which “has been worse since a tumor was found[.]” She also 4 indicated she had a panic attack a couple weeks before the examination “for 5 the first time in 6 months.” AR 4945; see also AR 3528-29. From a psychiatric 6 standpoint, Dr. Lorca found that Plaintiff’s condition was expected to improve 7 in the next 12 months with active treatment. AR 4950. The ALJ reasonably 8 discounted Dr. Lorca’s opinion based on the situational nature of Plaintiff’s 9 depression. See Lareina N. v. Comm’r of Soc. Sec., 2019 WL 2616620 , at *2 10 (W.D. Wash. June 26, 2019) (ALJ reasonably discounted opinion of 11 examining physician because it was based in part on plaintiff’s complaints of 12 physical problems found to be not severe and situational stressors deemed to be 13 transient). 14 The ALJ’s conclusion is reinforced by Plaintiff’s subsequent mental 15 status examinations, which as the ALJ found, were within normal limits. AR 16 3486 (citing AR 4207). Plaintiff contends the ALJ “ignored numerous 17 abnormal subsequent mental status examinations[.]” Jt. Stip. at 22. While 18 Plaintiff cites three medical records reflecting that she continued to suffer 19 mental health issues after Dr. Lorca’s examination, as the Commissioner 20 notes, she does not cite a single abnormal mental status examination. Rather, 21 as the ALJ reasonably found, Plaintiff’s subsequent mental status 22 examinations were within normal limits. See AR 4074, 4207, 4335. Indeed, in 23 February 2019, Plaintiff requested and was provided a note stating she was 24 able to go back to work without restrictions. AR 4313, 4315. The ALJ properly 25 relied on the inconsistency between Dr. Lorca’s opinion and the subsequent 26 mental status examinations. 27 The Court finds the ALJ did not error in her assessment of Dr. Lorca’s 28 opinion. Reversal is not warranted. 1 IV. 2 ORDER 3 IT THEREFORE IS ORDERED that Judgment be entered affirming 4 ||the decision of the Commissioner and dismissing this action with prejudice. [5] 6 DATED: April 28, 2023 8 N D. EARLY 9 nited States Magistrate Judge