Alec T. Simental v. Andrew M. Saul

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 ALEC S., ) Case No. ED CV 18-2189-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) ) [18] 19 I. 20 INTRODUCTION 21 On October 15, 2018, plaintiff Alec S. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of disabled child’s insurance benefits (“DCIB”) for an 24 adult disabled since childhood, as well as review of denial of supplemental security 25 income (“SSI”). The parties have fully briefed the matters in dispute, and the court 26 deems the matter suitable for adjudication without oral argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the [28] 1 Administrative Law Judge (“ALJ”) properly considered the opinion of the treating 2 physician; and (2) whether the ALJ properly considered the opinion of the 3 examining physician. Memorandum in Support of Plaintiff’s Complaint (“P. 4 Mem.”) at 2-12; see Defendant’s Memorandum in Support of Answer (“D. Mem.”) 5 at 1-7. 6 Having carefully studied the parties’ memoranda, the Administrative Record 7 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 8 the ALJ properly considered the opinions of the treating and examining physicians. 9 Consequently, the court affirms the decision of the Commissioner denying 10 benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was 14 years old on the alleged disability onset date, is a high 14 school graduate. AR at 39, 55. He has no past relevant work. Id. at 51. 15 On October 29, 2014, plaintiff filed applications for DCIB and SSI, due to 16 anxiety, insomnia, attention deficit hyperactivity disorder (“ADHD”), and 17 paranoia. Id. at 55, 64. The applications were denied initially and upon 18 reconsideration, after which plaintiff filed a request for a hearing. Id. at 112-25, 19 129-30. 20 On July 24, 2017, the ALJ held a hearing. Id. at 32-54. Plaintiff, 21 represented by counsel, appeared and testified at the hearing. Id. The ALJ also 22 heard testimony from Antoinette S., plaintiff’s mother, and Aida Worthington, a 23 vocational expert. See id. at 43-52. On November 6, 2017, the ALJ denied 24 plaintiff’s claims for benefits. Id. at 17-27. 25 In order for a claimant 18 years of age or older to qualify for disabled child’s 26 insurance benefits, he or she must demonstrate he or she had a disability that began 27 before turning 22 years of age. 20 C.F.R. § 404.350 (a)(5). Here, before applying [28] 1 the well-known five-step sequential evaluation process, the ALJ determined 2 plaintiff had not attained the age of 22 as of the alleged onset date. AR at 19. 3 The ALJ then found, at step one, that plaintiff had not engaged in substantial 4 gainful activity since September 7, 2006, the alleged onset date. Id. 5 At step two, the ALJ found plaintiff suffered from the following severe 6 mental impairments variously diagnosed to include major depressive disorder, 7 bipolar disorder, anxiety disorder, obsessive compulsive disorder, and ADHD. Id. 8 at 20. 9 At step three, the ALJ found plaintiff’s impairments, whether individually or 10 in combination, did not meet or medically equal one of the listed impairments set 11 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. 12 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 13 determined plaintiff had the RFC to perform a full range of work at all exertional 14 levels, but with the nonexertional limitations that plaintiff could: understand, carry 15 out, and remember simple instructions and make commensurate work related 16 decisions; respond appropriately to supervision, coworkers, and work situations; 17 deal with routine changes in work setting; maintain concentration, persistence, and 18 pace for up to and including two hours at a time with normal breaks throughout the 19 workday; and be around coworkers throughout the day so long as he was required 20 to have only occasional interaction with them. Id. at 21-22 . The ALJ found 21 plaintiff should have a job requiring no interaction with the public. Id. at 22 . 22 The ALJ found, at step four, that plaintiff had no past relevant work. Id. at [24] 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152 , 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the [27] claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149 , 1151 28 n.2 (9th Cir. 2007). 1 26. 2 At step five, the ALJ found there were jobs that existed in significant 3 numbers in the national economy that plaintiff could perform, including marker, 4 linen room attendant, and hand packager. Id. at 26-27. Consequently, regarding 5 the DCIB application, the ALJ concluded plaintiff was not disabled as defined by 6 the Social Security Act prior to attaining age 22. Id. at 27. Regarding the SSI 7 application, the ALJ likewise concluded plaintiff did not suffer from a disability as 8 defined by the Social Security Act. Id. 9 Plaintiff filed a timely request for review of the ALJ’s decision, but the 10 Appeals Council denied the request for review. Id. at 1-3. The ALJ’s decision 11 stands as the final decision of the Commissioner. 12 III. 13 STANDARD OF REVIEW 14 This court is empowered to review decisions by the Commissioner to deny 15 benefits. 42 U.S.C. § 405 (g). The findings and decision of the Social Security 16 Administration must be upheld if they are free of legal error and supported by 17 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 18 (as amended). But if the court determines the ALJ’s findings are based on legal 19 error or are not supported by substantial evidence in the record, the court may 20 reject the findings and set aside the decision to deny benefits. Aukland v. 21 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 22 1144, 1147 (9th Cir. 2001). 23 “Substantial evidence is more than a mere scintilla, but less than a 24 preponderance.” Aukland, 257 F.3d at 1035 . Substantial evidence is such 25 “relevant evidence which a reasonable person might accept as adequate to support 26 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 27 F.3d at 459. To determine whether substantial evidence supports the ALJ’s [28] 1 finding, the reviewing court must review the administrative record as a whole, 2 “weighing both the evidence that supports and the evidence that detracts from the 3 ALJ’s conclusion.” Mayes, 276 F.3d at 459 . The ALJ’s decision “‘cannot be 4 affirmed simply by isolating a specific quantum of supporting evidence.’” 5 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 6 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 7 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 8 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 9 1992)). 10 IV. 11 DISCUSSION 12 Plaintiff argues the ALJ failed to properly consider the opinions of treating 13 physician Dr. Salvador E. Lasala and examining physician Dr. Clifford Taylor. P. 14 Mem. at 2-12. Specifically, plaintiff contends the ALJ did not cite specific and 15 legitimate reasons supported by substantial evidence for discounting these 16 opinions. Id. 17 In determining whether a claimant has a medically determinable impairment, 18 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 19 §§ 404.1527(b), 416.927(b).2 In evaluating medical opinions, the regulations 20 distinguish among three types of physicians: (1) treating physicians; (2) examining 21 physicians; and (3) non-examining physicians. 20 C.F.R. 22 §§ 404.1527(c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 23 1996) (as amended). “Generally, a treating physician’s opinion carries more 24 weight than an examining physician’s, and an examining physician’s opinion 25 carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246 [27] 2 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 1 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527 (c)(1)-(2), 416.927(c)(1)- 2 (2). The opinion of the treating physician is generally given the greatest weight 3 because the treating physician is employed to cure and has a greater opportunity to 4 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 5 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 6 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 7 Smolen, 80 F.3d at 1285 . If a treating physician’s opinion is uncontradicted, the 8 ALJ must provide clear and convincing reasons for giving it less weight. Lester, [9] 81 F.3d at 830 . If the treating physician’s opinion is contradicted by other 10 opinions, the ALJ must provide specific and legitimate reasons supported by 11 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 12 and legitimate reasons supported by substantial evidence in rejecting the 13 contradicted opinions of examining physicians. Id. at 830-31 . The opinion of a 14 non-examining physician, standing alone, cannot constitute substantial evidence. 15 Widmark v. Barnhart, 454 F.3d 1063 , 1066 n.2 (9th Cir. 2006); Morgan v. 16 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 17 813 , 818 n.7 (9th Cir. 1993). 18 A. The Medical Evidence and ALJ’s Findings 19 1. Dr. Oscar Estrada 20 Dr. Estrada, a psychiatrist, treated plaintiff sporadically from sometime prior 21 to February 2009 through July 2011. See id. at 293, 306. During this time, 22 although plaintiff was being treated for depression and anxiety, his chief complaint 23 was insomnia. See id. at 286, 294. Plaintiff also complained of excessive worry, 24 feeling on the edge, and difficulty concentrating. Id. Dr. Estrada observed 25 plaintiff was irritable and anxious on occasion but had otherwise normal findings. 26 See, e.g., id. at 287, 294, 307, 315. Dr. Estrada noted plaintiff was not compliant 27 with his treatment plan, both not taking some medications while taking too much [28] 1 of another. See id. at 294, 307, 315. 2 2. Dr. Ochuko G. Diamreyan 3 Dr. Diamreyan, a psychiatrist, examined plaintiff on two occasions in 4 October 2014. Id. at 391-92. Plaintiff reported he suffered from insomnia, 5 headaches, anxiety, claustrophobia, nervousness, ADHD, and depression. See id. 6 at 391. At the first examination, plaintiff told Dr. Diamreyan he wanted to get 7 back on his medications and obtain SSI. See id. At the second examination, 8 plaintiff told Dr. Diamreyan he wanted more Ambien, did not like Buspar, and 9 only liked Ativan. See id. at 392. Dr. Diamreyan observed plaintiff had poor 10 concentration and an anxious mood, but otherwise normal clinical findings. See id. 11 Dr. Diamreyan noted plaintiff believed he suffered from bipolar disorder, was 12 non-compliant with his medications, and disagreed with him about the treatment 13 plan. See id. Based on the examinations and history, Dr. Diamreyan diagnosed 14 plaintiff with anxiety disorder, not otherwise specified, depressive disorder, not 15 otherwise specified, and ADHD by history. Id. at 391. Dr. Diamreyan referred 16 plaintiff to Dr. Salvador Lasala. See id. at 392. 17 3. Dr. Clifford Taylor 18 On January 29, 2015, Dr. Taylor, a psychologist, examined plaintiff, 19 reviewed Dr. Diamreyan’s initial examination treatment note, and administered 20 some tests. Id. at 362-69. Plaintiff reported to Dr. Taylor that he suffered from 21 anxiety, agoraphobia, claustrophobia, difficulty being around others, a strong 22 desire to leave situations, difficulty dealing with stress, paranoia, and aggression 23 toward others. Id. at 363. In a separate form, plaintiff indicated he suffered from 24 panic attacks, heard voices, had unexplained fits of anger, had memory problems, 25 and had ADHD. See id. Although plaintiff claimed to have auditory 26 hallucinations and paranoia, he was unwilling to discuss either. See id. at 363, 365. 27 Plaintiff also reported he had a long history of psychiatric treatment, had three [28] 1 psychiatric hospitalizations, and was currently on Ambien, Zoloft, and Ativan. See 2 id. at 363, 368. Plaintiff denied current or past abuse of alcohol or illicit drugs. 3 See id. at 364. 4 Dr. Taylor observed plaintiff, among other things, was highly anxious, had 5 poor eye contact, was some somewhat secretive and evasive, was easily distracted, 6 had normal speech, was able to follow directions, had a depressed and irritable 7 mood, and had a linear and logical thought process. See id. at 365. Dr. Taylor also 8 observed plaintiff did not appear to responding to internal stimuli. See id. 9 Based on the history, examination, one treatment note, and testing, Dr. 10 Taylor diagnosed plaintiff with major depressive disorder, severe, with psychotic 11 features (consider bipolar disorder) and unspecified anxiety disorder. Id. at 368. 12 Dr. Taylor opined plaintiff had a mild impairment in his ability to understand, 13 carry out, and remember simple instructions and moderate impairments in his 14 ability to perform typical daily activities and maintain concentration, persistence, 15 and pace. Id. Dr. Taylor further opined plaintiff had marked impairments in his 16 ability to: function in work settings due to repeated episodes of emotional 17 deterioration; respond appropriately to family, co-workers, supervisors, and the 18 public; and respond appropriately to usual work situations and deal with changes in 19 a routine work setting. Id. at 368-69. 20 4. Dr. Salvador Lasala 21 Dr. Lasala, a psychiatrist, treated plaintiff for an unspecified period. At his 22 first examination in February 2015, Dr. Lasala observed plaintiff had a depressed 23 mood, poor insight and judgment, poor concentration, and otherwise normal 24 findings. Id. at 379. Dr. Lasala diagnosed plaintiff with bipolar I disorder, most 25 recent episode mixed, and switched him from Clonazepam to Seroquel. Id. at 37926 80. Dr. Lasala also recorded similar observations – guarded behavior, blunted 27 affect, anxious and depressed mood, and poor insight and judgment – at the March [28] 1 2015 mental status examination. Id. at 381. Plaintiff told Dr. Lasala he felt 2 helpless and unmotivated, and he had stopped taking Seroquel because it made him 3 oversedated. Id. At his fifth and last documented examination in June 2015, 4 plaintiff reported having obsessions and compulsions, fair sleep, and less 5 irritability. Id. at 374. Dr Lasala observed plaintiff had an anxious mood and poor 6 insight and judgment, but otherwise normal findings. Id. 7 Dr. Lasala completed a form Medical Opinion Ability to Do Work Related 8 Activities (Mental), dated August 24, 2017. Id. at 389-90. In his opinion, Dr. 9 Lasala checked plaintiff’s mental abilities were “seriously limited but not 10 precluded” in most areas, including understanding and remembering short and 11 simple instructions, maintaining attention for two-hour segments, and performing 12 at a consistent pace without an unreasonable number and length of rest periods. Id. 13 Dr. Lasala opined plaintiff’s mental capabilities left him “unable to meet 14 competitive standards” in the following areas: accept instructions and respond 15 appropriately to criticism from supervisors; get along with co-workers or peers 16 without unduly distracting them or exhibiting behavioral extremes; understand, 17 remember, and carry out detailed instructions; and deal with the stress of 18 semiskilled and skilled work. Id. Dr. Lasala also opined plaintiff’s impairments 19 would cause him to be absent from work more than three times a month. Id. at 20 390. 21 5. State Agency Physicians 22 Dr. H. Amado and Dr. Tawnya Brode, State Agency physicians, reviewed 23 plaintiff’s medical records. Dr. Amado reviewed two of Dr. Estrada’s treatment 24 notes from September 2010 and July 2011, one of Dr. Diamreyan’s treatment 25 notes, Dr. Taylor’s opinion, and plaintiff’s school assessment. See id. at 58-60. 26 Dr. Brode reviewed the same records, as well as three of Dr. Lasala’s treatment 27 notes. See id. at 84. [28] 1 Based on his review of the medical records, Dr. Amado opined that from 2 July 2, 2010 through July 2, 2014, plaintiff had severe affective and anxiety 3 disorders. Id. at 69. Dr. Amado further opined plaintiff had moderate limitations 4 in his ability to: understand, remember, and carry out detailed instructions; 5 maintain attention and concentration for extended periods; perform activities 6 within a schedule, maintain regular attendance, and be punctual within customary 7 tolerances; complete a normal workday and workweek without interruptions from 8 psychologically based symptoms and to perform at a consistent pace without an 9 unreasonable number and length of rest periods; interact appropriately with the 10 general public; and respond appropriately to change in the work setting. Id. at 7211 73. Dr. Amado determined there was not enough longitudinal documentation of a 12 disabling impairment and the records indicated plaintiff’s conditions were 13 potentially treatment responsive. See id. at 70. 14 Likewise, Dr. Brode determined petitioner suffered from severe affective 15 and anxiety disorders from July 2, 2010 through July 2, 2014, but the evidence did 16 not support the presence of a disabling impairment for twelve continuous months. 17 See id. at 85. For the period from October 1, 2014 through October 1, 2015, Dr. 18 Brode opined the same non-exertional limitations as Dr. Amado. See id. at 86-89. 19 Dr. Brode also opined plaintiff would be capable of work within one year of 20 psychiatric treatment. Id. at 89. 21 6. The ALJ’s Findings 22 In reaching his RFC determination, the ALJ afforded significant weight to 23 Dr. Amado’s and Dr. Brode’s opinions, some weight to Dr. Taylor’s opinion, and 24 little weight to Dr. Lasala’s opinion. Id. at 24-25. The ALJ gave Dr. Amado’s and 25 Dr. Brode’s opinions the greatest weight because they were consistent with the 26 record as a whole. See id. at 25. The ALJ gave some weight to Dr. Taylor’s 27 opinion to the extent it was consistent with the ALJ’s findings and specifically [28] 1 rejected Dr. Taylor’s marked limitations. See id. at 24. Finally, the ALJ gave little 2 weight to Dr. Lasala’s opinion because it was inconsistent with the record as a 3 whole, there were few treatment records, and plaintiff’s symptoms improved in the 4 homeschool setting. See id. at 25. 5 B. The ALJ Properly Considered Dr. Lasala’s Opinion 6 One reason the ALJ cited for giving little weight to Dr. Lasala’s opinion was 7 the brevity of the treatment records. AR at 25. Plaintiff testified that he was still 8 undergoing treatment with Dr. Lasala at the time of the hearing, but only submitted 9 treatment notes from five sessions between February and July 2015, which 10 documented improved objective findings as treatment progressed. See id. at 40, 11 374-83. There was no evidence of treatment outside of those four months. 12 Moreover, the limited treatment notes provided little insight into plaintiff’s 13 psychological functioning. Given the dearth of treatment records, the ALJ 14 correctly questioned the basis of Dr. Lasala’s August 2017 opinion. 15 Plaintiff argues that the ALJ had a duty to develop the record since plaintiff 16 testified Dr. Lasala was still treating him. See P. Mem. at 8-9. But the ALJ 17 afforded plaintiff the chance to do so. At the hearing, the ALJ granted plaintiff’s 18 request for two weeks to obtain medical records and told him to submit a written 19 request should he require additional time. AR at 35. Despite the additional time, 20 plaintiff only submitted Dr. Diamreyan’s treatment notes and Dr. Lasala’s post21 hearing opinion. See id. at 389-92. Although plaintiff claims Dr. Lasala did not 22 respond to his requests for records, the fact he was able to obtain an opinion after 23 the hearing calls that claim into question. In short, the ALJ gave plaintiff the 24 opportunity to further develop the record and did not err because plaintiff failed to 25 gather all the records he might have. See Bowen v. Yuckert, 482 U.S. 137 , 146 n.5, [26] 107 S. Ct. 2287 , 96 L. Ed. 2d 119 (1987) (“It is not unreasonable to require the 27 claimant, who is in a better position to provide information about his own medical [28] 1 condition, to do so.”). 2 The ALJ additionally rejected Dr. Lasala’s opinion because it was 3 inconsistent with the record as a whole. AR at 25; see Batson v. Comm’r, 359 F.3d 4 1190, 1195 (9th Cir. 2004) (holding that an ALJ may discredit physicians’ 5 opinions that are “unsupported by the record as a whole . . . or by objective 6 medical findings”). The record reflects plaintiff sought psychiatric treatment 7 periodically from February 2009 through June 2015. AR at 306, 374. Plaintiff 8 complained of, among other things, anxiety, insomnia, depression, and paranoia, 9 and his mental status exams reflected he was anxious and, at times, depressed and 10 irritable. See, e.g., id. at 286-87, 294, 379, 381 . But his physicians consistently 11 noted plaintiff: had a logical, coherent, and linear thought process; had normal 12 speech; was alert and oriented; and had mostly normal findings. See, e.g., id. In 13 addition, the treatment notes showed plaintiff only sought periodic treatment and 14 was frequently non-compliant. See id. at 294, 307, 315, 281, 391-92 . Although a 15 small sample size, plaintiff’s objective symptoms appeared to improve somewhat 16 during Dr. Lasala’s treatment, as well as when earlier provided accommodations as 17 discussed below. See id. at 374-77 ; Crosby v. Comm’r, 489 Fed. Appx. 166 , 18 168-69 (9th Cir. 2012) (finding that a physician’s opinion that was inconsistent 19 with his treatment notes, which indicated claimant improved with treatment, was a 20 specific and legitimate basis to discount physician’s opinion); see also Warre v. 21 Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 22 effectively with medication are not disabling for purposes of determining 23 eligibility for SSI benefits.”). 24 The ALJ’s third reason for discounting Dr. Lasala’s opinion – the records 25 reflected plaintiff was successful in a one-on-one homeschool setting – correlates 26 with his finding that the opinion was inconsistent with the record as a whole. Id. at 27 25. Plaintiff’s ability to succeed in an individualized setting with less public [28] 1 contact demonstrated plaintiff could function successfully within structured 2 environments, particularly before he turned 22 years of age. See id. at 25; see also 3 Jose M. v. Comm’r, 2018 WL 4179104 , at *7 (E.D. Wash. Jul. 30, 2018) (ALJ’s 4 finding that plaintiff had less than marked impairments in acquiring and using 5 information was supported by plaintiff’s academic success in an alternative 6 school). Arguably, plaintiff’s performance in the homeschool program may not 7 translate into a work environment, but it can reasonably support the ALJ’s 8 decision. In the context of the overall record documenting mostly normal findings 9 and a lack of compliance, plaintiff’s homeschool performance supported the ALJ’s 10 finding that plaintiff was capable of improvement and functioning successfully. 11 See Mead v. Astrue, 330 Fed. Appx. 646, 648 (9th Cir. 2009) (evidence showing 12 that a plaintiff’s condition improved with treatment may be a clear and convincing 13 reason for an adverse credibility finding). 14 Finally, without expressly citing it as a basis for rejecting the opinion, the 15 ALJ also noted Dr. Lasala’s opinion was on a check-box form with no explanations 16 to support the opined limitations. AR at 25; see Magallanes, 882 F.2d at 755 (an 17 ALJ need not recite “magic words,” a reviewing court may draw inferences from 18 an opinion). It was proper for the ALJ to reject a conclusory opinion. Crane v. 19 Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (check off reports may be rejected for 20 lack of explanation of the bases for their conclusions). 21 Accordingly, the ALJ properly considered Dr. Lasala’s opinion and cited 22 specific and legitimate reasons supported by substantial evidence for rejecting the 23 opinion. 24 C. The ALJ Properly Considered Dr. Taylor’s Opinion 25 Plaintiff contends the ALJ similarly failed to provide specific and legitimate 26 reasons for giving less weight to Dr. Taylor’s opinion. P. Mem. at 9-12. 27 In reaching his RFC determination, the ALJ gave Dr. Taylor’s opinion some [28] 1 weight to the extent it was consistent with his decision. AR at 24. Specifically, the 2 ALJ accepted Dr. Taylor’s mild and moderate findings but rejected his opinion that 3 plaintiff had marked impairments in his ability to: function in work settings due to 4 repeated episodes of emotional deterioration; respond appropriately to family, co5 workers, supervisors, and the public; and respond appropriately to usual work 6 situations and deal with changes in a routine work setting. Id. at 368-69 . 7 The first reason the ALJ cited for discounting Dr. Taylor’s opinion was that 8 he only reviewed one treatment note, Dr. Dimereyan’s initial psychiatric 9 evaluation. Id. at 24; see id. at 363. To the extent the ALJ rejected Dr. Taylor’s 10 opinion on this basis, it was not a specific and legitimate reason. The regulations 11 clearly state that an ALJ must consider the opinions of examining physicians. See [12] 20 C.F.R. §§ 404.1527 (c), 416.927(c). Thus, the ALJ must consider Dr. Taylor’s 13 opinion even if he had not reviewed any medical records at all. Nonetheless, the 14 fact that Dr. Taylor only reviewed one of plaintiff’s treatment records may be a 15 factor in assigning the opinion less weight. 16 The second reason the ALJ cited for rejecting portions of Dr. Taylor’s 17 marked limitations was that it was inconsistent with the record as a whole. AR at 18 24; see Batson, 359 F.3d at 1195; Magallanes, 881 F.2d at 751-54 (affirming 19 rejection of physician’s opinion because it was inconsistent other medical 20 evidence). Specifically, the ALJ noted plaintiff did well in one-on-one situations 21 and he obtained good grades in the homeschool program. See AR at 24. As 22 discussed above, plaintiff’s performance in the homeschool program indicated 23 plaintiff was able to function successfully within certain parameters. Plaintiff 24 could maintain concentration and attention, as well as work with a teacher, when 25 he had less public contact. See id. Given plaintiff’s ability to improve 26 functionally, as well as mostly normal objective findings and his non-compliance 27 with treatment as discussed above, there was substantial evidence to support the [28] 1 ALJ’s finding that Dr. Taylor’s opined marked impairments were inconsistent with 2 the record as a whole. 3 The ALJ also suggested he gave less weight to Dr. Taylor’s opinion because 4 the subjective complaints and history plaintiff related to Dr. Taylor were 5 inconsistent with the record. See AR at 24, 25. An ALJ may reject medical 6 opinions based on a claimant’s subjective complaints where his testimony has been 7 properly discounted, as plaintiff’s was here. See AR at 23-26; Morgan, 169 F.3d at 8 602 (“A physician’s opinion of disability premised to a large extent upon the 9 claimant’s own accounts of his symptoms and limitations may be disregarded 10 where those complaints have been properly discounted.”) (internal quotation marks 11 and citation omitted). Here, the ALJ correctly identified three statements that were 12 inconsistent with the record. First, plaintiff denied any prior drug abuse, but Dr. 13 Estrada diagnosed him with a history of polysubstance abuse in 2009 and noted 14 plaintiff was abusing Temazepam. See AR at 24, 25, 307, 315, 364. Plaintiff’s 15 mother also told Dr. Lasala plaintiff abused drugs in the past. See id. at 379. 16 Second, plaintiff told Dr. Taylor he had three psychiatric hospitalizations but the 17 administrative record does not contain any records of the hospitalizations. See id. 18 at 24, 25, 363. And third, plaintiff claimed to hear voices but all of his treatment 19 notes indicated he did not have auditory hallucinations. See id. at 24, 25, 363, 365; 20 see also, e.g., id. at 287, 294, 307, 391. Plaintiff was also unable to explain the 21 nature of his hallucinations and did not appear to be responding to internal stimuli. 22 Id. at 24, 365. 23 Accordingly, the ALJ provided sufficient specific and legitimate reasons 24 supported by substantial evidence for giving Dr. Taylor’s opinion only some 25 weight. [28] 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 5 the complaint with prejudice. [6] 7 Dated: March 23, 2020 [8] SHERI PYM 9 United States Magistrate Judge