(SS) Sheehy v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 LORI SHEEHY, Case No. 1:21-cv-01541-BAM 12 Plaintiff, ORDER REGARDING PLAINTIFF’S 13 v. SOCIAL SECURITY COMPLAINT [14] KILOKO KIJAKAZI, Acting Commissioner (Docs. 17, 18) [15] of Social Security,1 16 Defendant. [17] 18 INTRODUCTION 19 Plaintiff Lori Sheehy (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance 21 benefits under Title II of the Social Security Act and supplemental security income under Title XVI of 22 the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were 23 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.2 [25] 26 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this 27 suit. 2 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, 28 including entry of final judgment, pursuant to 28 U.S.C. § 636 (c). (Docs. 8, 9, 10.) 1 Having considered the briefing and record in this matter, the Court finds that the decision of 2 the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, this Court will deny Plaintiff’s appeal and affirm 4 the agency’s determination to deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed applications for disability insurance benefits and for supplemental security 7 income on March 25, 2019. AR 197-98, 199-207.3 Plaintiff alleged that she became disabled on 8 March 31, 2004, due to post-traumatic stress disorder (“PTSD”), anxiety, depression, and headaches. 9 AR 222. Plaintiff’s applications were denied initially and on reconsideration. AR 124-28, 120-33, 10 137-42. Subsequently, Plaintiff requested a hearing before an ALJ. Following a hearing, ALJ Jane 11 Maccione issued an unfavorable decision on March 2, 2021. AR 12-27, 32-61. Thereafter, Plaintiff 12 sought review of the decision, which the Appeals Counsel denied, making the ALJ’s decision the 13 Commissioner’s final decision. AR 1-5. This appeal followed. 14 Hearing Testimony 15 On December 9, 2020, ALJ Maccione held a telephonic hearing. Plaintiff appeared with her 16 attorney, Jeffrey Milam. Victoria Rei, an impartial vocational expert, also appeared and testified. AR 17 34-35. 18 In response to questions from the ALJ, Plaintiff testified about certain of her past relevant 19 work, including as a sales representative at a retail store and a scanning job. AR 39-44. Plaintiff also 20 testified about her inability to work due to anxiety, explaining that it was to the point that she does not 21 want to leave her house. AR 45. She has been taking Xanax for about 13 or 14 years. She does not 22 take it every day, but will take it if she starts to feel that she is getting an anxiety attack, and it takes it 23 away. She receives 30 Xanax in a month and will have 8 or 10 left at the end of the month. AR 4624 47. Plaintiff also testified that she did not graduate high school, which stands in the way of her being 25 able to work. AR 47-48. [27] 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page 28 number. 1 Plaintiff further testified that she has two children, a seven-year-old and an 18-year-old. With 2 COVID, her seven-year-old, who has ADHD, is at home all the time. Her mom helps her take care of 3 the seven-year-old a couple of times a week when she is not working. AR 48-49. 4 When asked about her anxiety symptoms, Plaintiff testified that she cannot breathe, her chest 5 feels really tight, and the palms of her hands get sweaty. She has to sit down. She starts stuttering and 6 cannot talk. Her head gets dizzy. In addition to taking Xanax for her anxiety, she uses other 7 techniques, like taking a bath, getting fresh air in the backyard, or being alone, like in the bathroom. 8 AR 49-50. She has been in counseling on and off her whole life, but it hurts to be in counseling. AR 9 52. 10 In response to questions from her attorney, Plaintiff testified that when she is in her emotional 11 situations, she has trouble doing things that take concentration or focus. Her family will tell her to 12 slow down when talking. If a supervisor gave her instructions, he would have to repeat himself. 13 Sometimes she is distracted when doing things around the house. Plaintiff reported that her anxiety 14 has worsened, and she does not event want to do things that she enjoys. AR 52-56. 15 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE 16 characterized Plaintiff’s past work as retail sales and office helper. AR 57-58. The ALJ also asked the 17 VE hypothetical questions. For the first hypothetical, the ALJ asked the VE to assume a hypothetical 18 individual of Plaintiff’s age, education, and vocational background with no exertional limitations. She 19 could have occasional interaction with supervisors and co-workers and only brief and superficial 20 interaction with the public. She also would require a workplace with no more than occasional changes 21 to the setting and routine. The VE testified that such an individual could perform Plaintiff’s past work 22 as an office helper. AR 58-59. 23 For the second hypothetical, the ALJ asked the VE to consider an individual who was 24 anticipated to have one partial or full day absent per month for her conditions. The VE testified that 25 this would eliminate all unskilled work. AR 59. 26 For the third hypothetical, the ALJ asked the VE to consider an individual that would be off 27 task greater than 10% of the workday. The VE testified that such an individual would not be able to 28 maintain competitive employment and it would eliminate all jobs. AR 59-60. 1 Relevant Allegations and Non-Medical Evidence 2 On April 16, 2019, Plaintiff completed a function report. In the report, Plaintiff stated that she 3 gets bad panic attacks. She cannot function when it happens and her PTSD kicks in. AR 232. She 4 takes care of her two sons, taking them to and from school, and she also takes care of her pets or other 5 animals. Her mother will come help her. She has no problems with her personal care, but she puts 6 notes on her fridge for all of her toiletries. She prepares meals and makes dinner at least four times a 7 week. She also does laundry, dishes, vacuums, and mows the lawn. She drives, but cannot go out 8 alone. She shops in stores for food and clothes. She can pay bills and count change. She spends time 9 with others, watching movies with her sons and hanging with her mom. She needs to be reminded to 10 go places and needs someone to accompany her. She has problems getting along with others because 11 she does not like to be around rude people who make fun of her anxiety. Plaintiff indicated that her 12 condition affects her memory, completing tasks, concentration, understanding, following instructions, 13 and getting along with others. She can pay attention for just a couple of seconds and does not finish 14 what she starts. She does not handle stress or changes in routine well. She worries people are going to 15 hurt her and her kids. Plaintiff explained that she was kidnapped and raped when she was 17, and ever 16 since she lives in fear, depression, and anxiety. Plaintiff reiterated that she lives in panic and constant 17 fear. AR 232-39. 18 Plaintiff’s mother also completed a Function Report, which detailed similar allegations 19 regarding Plaintiff’s functioning. AR 244-51. 20 Medical Record 21 The relevant medical record was reviewed by the Court and will be referenced below as 22 necessary to this Court’s decision. 23 The ALJ’s Decision 24 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 25 determined that Plaintiff was not disabled under the Social Security Act. AR 15-27. Specifically, the 26 ALJ found that Plaintiff had not engaged in substantial gainful activity since March 25, 2019, the 27 application date. AR 18. The ALJ identified the following severe impairments: post-traumatic stress 28 disorder, anxiety, and depression. AR 18-19. The ALJ determined that Plaintiff did not have an 1 impairment or combination of impairments that met or medically equaled any of the listed 2 impairments. AR 19-23. 3 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 4 functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the 5 following nonexertional limitations: she is able to have occasional interaction with supervisors and 6 co-workers, only brief and superficial interaction with the public, and she requires a workplace with 7 no more than occasional changes to the setting and routine. AR 23-26. The ALJ found that with this 8 RFC, Plaintiff could perform her past relevant work as an office helper. AR 26-27. The ALJ 9 therefore concluded that Plaintiff had not been under a disability from March 25, 2019, through the 10 date of the decision. AR 27. 11 SCOPE OF REVIEW 12 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 13 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 14 Court must determine whether the decision of the Commissioner is supported by substantial evidence. [15] 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, [16] 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112 , 17 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion.” Richardson, 402 U.S. at 401 . The record as a whole must be 19 considered, weighing both the evidence that supports and the evidence that detracts from the 20 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 21 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 22 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 23 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 24 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 25 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 26 REVIEW 27 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 28 substantial gainful activity due to a medically determinable physical or mental impairment which has 1 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 2 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 3 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 4 her age, education, and work experience, engage in any other kind of substantial gainful work which 5 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 6 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 7 1990). 8 DISCUSSION4 9 Plaintiff contends that the ALJ erred in the evaluation of her subjective testimony and in 10 assessing the medical opinions of Dr. Charles DeBattista and Dr. Sneha Raghunath. Plaintiff also 11 appears to contend that the ALJ erred by denying Plaintiff’s request to subpoena her treatment records 12 pursuant to the Victim Witness Program. 13 A. Subjective Testimony and Reports 14 Plaintiff first argues that the ALJ erroneously rejected her subjective testimony. (Doc. 17 at p. 15 11.) In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a two16 step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. Sec. 17 Admin., 359 F.3d 1190, 1196 (9th Cir. 2004); SSR 16-3p. First, the claimant must produce objective 18 medical evidence of her impairment that could reasonably be expected to produce some degree of the 19 symptom or pain alleged. Garrison, 759 F.3d at 1014 . If the claimant satisfies the first step and there is 20 no evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of her 21 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015 . 22 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 23 expected to cause some of the alleged symptoms, but discounted her statements concerning the 24 intensity, persistence and limiting effects of those symptoms. AR 24. The ALJ was therefore required 25 to provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. [26] 27 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 The Court finds that the ALJ provided specific, clear and convincing reasons to discount 2 Plaintiff’s subjective complaints. First, the ALJ determined that the degree of mental limitation 3 alleged by Plaintiff was not entirely consistent with the longitudinal treatment evidence. AR 24. 4 Although lack of supporting medical evidence cannot form the sole basis for discounting testimony, it 5 is a factor that the ALJ can consider. See Burch, 400 F.3d at 681. Here, the ALJ considered that 6 Plaintiff’s treatment record included numerous observations of normal attention and concentration, 7 normal insight and judgment, and normal orientation. The ALJ recognized that Plaintiff had some 8 limitations due to her mental impairments, limiting her to only occasional interaction with supervisors 9 and co-workers and only brief and superficial interaction with the public in light of her difficulties 10 with social interaction and requiring a workplace with no more than occasional changes to the setting 11 and routine. However, the ALJ found that further mental restrictions were not supported. AR 24. 12 With regard to concentration, the ALJ noted that there were numerous observations by treating 13 providers that Plaintiff had normal concentration, suggesting that “she retained more ability to 14 remember, concentrate, persist, keep pace, understand and engage in other mental activity than 15 alleged.” AR 24. The ALJ expressly cited examinations by Plaintiff’s own providers that noted 16 normal memory, appropriate mood and affect, normal insight, normal judgment, mental alertness, 17 normal attention span, and normal concentration. AR 24, citing AR 372 (“Alert and oriented to 18 person, place, and time; Mood and affect appropriate for situation; Judgment and insight normal; 19 Normal attention span and concentration.”), 383 (“Cooperative; Judgment and insight normal;” “Alert 20 and oriented to person, place, and time; Mood and affect appropriate for situation”), 385 (same), 396 21 (“Alert and oriented to person, place, and time; Mood and affect appropriate for situation; Judgment 22 and insight normal; Normal attention span and concentration”), 402 (denied anxiety, nervousness, 23 depression, sadness, stress), 405, 407, 410 (“Alert and oriented; Mood and affect appropriate for 24 situation; Judgment and insight normal; Normal attention span and concentration”); see also AR 403 25 (“Alert and oriented to person, place, and time; Mood and affect appropriate for situation; Judgment 26 and insight normal; Normal attention span and concentration”), 406 (“Cooperative; Judgment and 27 insight normal;” “Alert and oriented; Mood and affect appropriate for situation”), 408. The ALJ [28] 1 reasoned that this evidence suggested that even though Plaintiff experienced symptoms due to her 2 mental disorders, they did not limit her to the extent alleged. AR 24-25. 3 Plaintiff contends that there is evidence in the record from Plaintiff’s treatment providers that 4 do not support the ALJ’s findings, such as PA Yeh Ning Johnson’s observation in 2019 that Plaintiff’s 5 behavior was compulsive and she appeared anxious, and Dr. Raghunath’s observation in April 2020 6 that Plaintiff’s thought process was circumstantial, her affect was depressed, and her mood was 7 anxious. (Doc. 19 at p. 3, citing AR 747, 780.) Plaintiff appears to overlook the ALJ’s recognition 8 that when the longitudinal record showed abnormal findings on examination, they were mostly 9 transitory. AR 25. The ALJ’s determination appears consistent with the numerous observations by 10 treatment providers of normal findings regarding memory, concentration, attention, mood, affect, 11 insight and judgment. 12 Second, the ALJ determined that despite Plaintiff’s mental impairments, she was able to 13 engage in various daily activities that suggested she was not as limited as alleged. AR 24. “While a 14 claimant need not vegetate in a dark room in order to be eligible for benefits,” the ALJ may discount 15 evidence of disability “when the claimant reports participation in everyday activities indicating 16 capacities that are transferable to a work setting.” Molina v. Astrue, 674 F.3d 1104 , 1112–13 (9th Cir. 17 2012) (emphasis added) (internal quotations and citations omitted). Here, the ALJ considered 18 evidence that Plaintiff was able to feed her dog and other pets, perform self-care, take her children to 19 and from school, prepare meals, clean the dishes, do laundry, vacuum, drive, shop, handle her 20 finances, mow her lawn, and visit her friend’s house once a month. AR 24, 232-39, 245-48. 21 Plaintiff argues that the activities identified by the ALJ are consistent with her allegations that 22 her PTSD and anxiety caused her to avoid social contact, public places, and going out alone because 23 they were performed in her home. (Doc. 17 at p. 11.) Although certain of Plaintiff’s activities were 24 solitary activities performed in the home, the ALJ could reasonably conclude that certain other of her 25 activities, such as taking her children to and from school, driving, shopping, and visiting her friend’s 26 house, undermined her claims regarding social contact and public places. Id. at 1113 (determining 27 ALJ “could reasonably conclude that [claimant’s activities, including walking her two grandchildren 28 to and from school, attending church, shopping, and taking walks, undermined her claims that she was 1 incapable of being around people without suffering from debilitating panic attacks”). Even where a 2 claimant’s activities suggest some difficulty functioning, they may be grounds for discrediting the 3 claimant’s testimony to the extent that they contradict claims of a totally debilitating impairment. Id. 4 Moreover, the ALJ did not entirely reject Plaintiff’s subjective claims related to difficulties with social 5 contact and accounted for a degree of difficulty by limiting Plaintiff to only occasional interaction 6 with supervisors and co-workers and only brief and superficial interaction with the public in light of 7 her difficulties with social interaction and requiring a workplace with no more than occasional changes 8 to the setting and routine. AR 24. 9 Third, the ALJ considered Plaintiff’s own testimony that when she has a panic attack, she takes 10 Xanax, which alleviates her symptoms. AR 24, 46. The effectiveness of medication or treatment is a 11 relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 404.1529 (c)(3); 12 416.929(c)(3); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical 13 treatment successfully relieving symptoms can undermine a claim of disability.”); Warre v. Comm’r of 14 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be effectively controlled 15 with medication are not disabling for the purpose of determining eligibility for SSI benefits.”). 16 Plaintiff argues that the ALJ’s finding is error for two reasons: (1) panic disorder is only one of her 17 impairments and is unrelated to her PTSD; and (2) for her Xanax to work, she would have to 18 recognize that she was about to have a panic attack and take it before the attack started. (Doc. 17 at p. 19 12.) This argument is not wholly persuasive because there is no dispute Plaintiff testified that Xanax 20 helped with her anxiety attacks, (AR 46), and the record includes evidence intimating that not only 21 was her panic disorder an independent disorder, but it also was related to her PTSD. (AR 719). 22 Finally, the ALJ discounted Plaintiff’s subjective complaints because she had not been 23 psychiatrically hospitalized. AR 24. The Court does not find this to be a clear and convincing reason, 24 standing alone, to discount Plaintiff’s subjective complaints. “A claimant may suffer from mental 25 health impairments that prevent him from working but do not require psychiatric hospitalization.” 26 Morales v. Berryhill, 239 F. Supp. 3d 1211, 1216 (E.D. Cal. 2017). The Ninth Circuit has held that 27 “[h]ospitalization is not required to show that mental health conditions such as PTSD, OCD, and 28 anxiety are disabling from employment.” Schiaffino v. Saul, 799 F. App’x. 473, 476 (9th Cir. Jan. 9, 1 2020). However, even if this reason for discounting Plaintiff’s subjective complaints was invalid, any 2 such error is harmless because the ALJ provided other valid reasons for discounting Plaintiff’s 3 subjective testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161-63 (9th Cir. 4 2008) (finding that two invalid reasons to reject a claimant’s testimony were harmless error where the 5 ALJ articulated two other reasons supported by substantial evidence in the record); Molina, 674 F.3d 6 at 1115 (“several of our cases have held that an ALJ’s error was harmless where the ALJ provided one 7 or more invalid reasons for disbelieving a claimant’s testimony, but also provided valid reasons that 8 were supported by the record”). 9 For the reasons stated, the Court finds that the ALJ did not commit reversible error in 10 evaluating Plaintiff’s subjective complaints. 11 B. Evaluation of Medical Opinions 12 Plaintiff contends that the ALJ erred when assessing the medical opinions of Dr. Charles 13 DeBattista and Dr. Sneha Raghunath. (Doc. 17 at p. 13.) 14 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 15 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. §§ 16 404.1520c and 416.920c. Under the new regulations, the Commissioner does “not defer or give any 17 specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior 18 administrative medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. §§ 19 404.1520c(a) and 416.920c(a). The Commissioner evaluates the persuasiveness of the medical 20 opinions based on the following factors: (1) supportability; (2) consistency; (3) relationship with the 21 claimant; (4) specialization; and (5) other factors, such as “evidence showing a medical source has 22 familiarity with the other evidence in the claim or an understanding of our disability program’s 23 policies and evidentiary requirements.” 20 C.F.R. §§ 404 .1520c(c)(1)-(5) and 416.920c(c)(1)-(5). 24 Supportability and consistency are the most important factors. 20 C.F.R. §§ 404 .1520c(b)(2) and 25 416.920c(b)(2). Supportability means the extent to which a medical source supports the medical 26 opinion by explaining the “relevant ... objective medical evidence.” 20 C.F.R. §§ 404 .1520c(c)(1) and 27 416.920c(c)(1); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Consistency means the 28 extent to which a medical opinion is “consistent ... with the evidence from other medical sources and 1 nonmedical sources in the claim.” 20 C.F.R. §§ 404 .1520c(c)(2) and 416.920c(c)(2); Woods, 32 F.4th 2 at 792. The Ninth Circuit has clarified that “under the new regulations, an ALJ cannot reject an 3 examining or treating doctor’s opinion as unsupported or inconsistent without providing an 4 explanation supported by substantial evidence.” Woods, 32 F.4th at 792 “The agency must 5 ‘articulate ... how persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, . . 6 . and ‘explain how [it] considered the supportability and consistency factors’ in reaching these 7 findings.” Id. (internal citations omitted). 8 Dr. DeBattista 9 On June 28, 2019, Dr. DeBattista completed a consultative psychiatric examination. AR 71710 19. On mental status examination, Plaintiff made good eye contract, but was tearful at times when 11 talking about anxiety and past trauma. Her thought process was linear and goal directed, but her 12 thought content was notable for intrusive traumatic ideation. Her mood was depressed and anxious 13 and her affect was tearful at times, but was otherwise full range and appropriate to the content of her 14 speech. Plaintiff was alert and oriented and her insight and judgment were intact. Dr. DeBattista 15 diagnosed PTSD and panic disorder, explaining that Plaintiff’s history was consistent with PTSD and 16 that the “panic disorder appears however to be not just related to the PTSD but is independent.” AR 17 719. Plaintiff’s prognosis was fair, and she would be expected to improve within 6-12 months with 18 active treatment. Dr. DeBattista identified only mild to moderate impairment in Plaintiff’s ability to 19 relate and interact with coworker and the public, moderate impairment in her ability to associate with 20 day-to-day work activity, including attendance and safety, and mild to moderate impairment in her 21 ability to accept instructions from supervisors. AR 719. 22 The ALJ found Dr. DeBattista’s opinion “only partially persuasive,” reasoning as follows: 23 He rates social interactions with supervisors, coworkers and the public as "mildly to moderately" limited, which is useless because it means that it either has little impact or 24 enough impact to warrant work-place restrictions. Furthermore, he does not explain the reasoning for concluding that she is "mildly to moderately" limited. His finding of [25] moderate impairment in the "ability to associate with day-to-day work activity, including 26 attendance and safety” is not explained at all, especially in light of his somewhat inconsistent opinion that her ability to work a full work day/week is not impaired. Moderate 27 impairment in the ability to associate with day-today work activity also is not consistent with the claimant’s reported activities of daily living in which she carries out daily tasks of [28] 1 taking her children to school, cooking for them, taking care of a dog, driving, manages finances, and cleaning. [2] 3 AR 25-26. 4 The Court finds that the ALJ properly considered the factors of supportability and consistency 5 when evaluating the persuasiveness of Dr. DeBattista’s opinion. First, the ALJ found the opinion that 6 Plaintiff had mild to moderate impairment interactions not persuasive because Dr. DeBattista failed to 7 explain his reasons for this conclusion. AR 25, 719. The ALJ further noted that a mild to moderate 8 impairment meant either it had little impact or enough to warrant workplace limitations, but this was 9 not instructive. AR 25. The ALJ’s reasoning properly invokes the supportability factor. 20 C.F.R. §§ 10 404.1520c(c)(1), 416.920c(c)(1) (supportability means the extent to which a medical source supports 11 the medical opinion by explaining the “relevant ... objective medical evidence.”). 12 Second, the ALJ found that Dr. DeBattista failed to explain the moderate impairment in the 13 ability to associate with day-to-day work activity, including attendance and safety. AR 25. This, too, 14 invokes the supportability factor. The ALJ additionally found the limitation somewhat inconsistent 15 with Dr. DeBattista’s further opinion that Plaintiff’s ability to work a full work day/week was not 16 impaired. AR 25, 719. 17 Finally, the ALJ found Dr. DeBattista’s moderate impairment limitation in the ability to 18 associate with day-to day work activity inconsistent with Plaintiff’s reported activities of daily living, 19 including daily tasks of taking her children to school, cooking for them, taking care of a dog, driving, 20 managing finances, and cleaning. AR 25. This reasoning properly invokes the consistency factor. 20 21 C.F.R. §§ 404 .1520c(c)(2) and 416.920c(c)(2) (consistency means extent to which a medical opinion 22 is “consistent ... with the evidence from other medical sources and nonmedical sources in the claim”). 23 Plaintiff faults the ALJ for failing to articulate why Dr. DeBattista’s opinion was not consistent 24 with other medical evidence in the record, such as the opinion of Dr. Raghunath and certain treatment 25 notes from Plaintiff’s providers. (Doc. 17 at p. 14.) Plaintiff’s argument is not persuasive. It is 26 evident from the record that the ALJ also considered Dr. Raghunath’s opinion, but as discussed below, 27 found it unpersuasive for multiple reasons. AR 26. Further, Plaintiff cites nothing that requires the [28] 1 ALJ to compare the medical opinion of Dr. DeBattista with every other piece of evidence to avoid 2 error. 3 Dr. Raghunath 4 On December 22, 2020, Dr. Sneha Raghunath completed a Medical Source Statement, 5 Psychiatric form. AR 792. Dr. Raghunath opined that Plaintiff appeared to maintain concentration 6 and attention for simple tasks, but complex tasks. She has panic attacks when she leaves her house 7 and was “[u]nlikely to withstand stress [and] pressure.” AR 792. Plaintiff appeared able to 8 understand, remember, and carry out simple one-or-two job instructions, but was “[u]nlikely” to be 9 able to understand, remember and carry out an extensive variety of technical and/or complex job 10 instructions. She also was “[u]nlikely” to be able to deal with the public. AR 792. Dr. Raghunath 11 further indicated “unsure” with regard to Plaintiff’s ability to receive and carry out instructions from 12 supervisors and her ability to relate and interact with co-workers. Dr. Raghunath opined that Plaintiff 13 was likely to miss more than 2-3 weeks per month due to mental issues. AR 792. 14 In evaluating the persuasiveness of Dr. Raghunath’s opinion, the ALJ reasoned as follows: 15 This opinion is not persuasive. Dr. Raghunath is a physician licensed in California, but located in Charleston, West Virginia (Exhibit 8D, page 16). The medical evidence shows 16 that she has met with the claimant by telehealth over the telephone three times – in April 2020, May 2020, and October 2020 – for a total of forty-six minutes (Exhibit 8F, pages 5, [17] 10-13, 16-19). The American Board of Psychiatry and Neurology does not list Dr. 18 Raghanath as board-certified, and the American Board of Internal Medicine does not list her as board-certified. The opinion is stated in terms of what the claimant is "likely" to do 19 and is "unsure" on several questions. There is very little explanation and it is not consistent with the medical evidence of record. All three chart notes from Dr. Raghunath record intact [20] attention (Exhibit 8F, pages 1-16), and “unremarkable” concentration and memory. Her 21 comment that she “has panic attacks when she leaves her house” is not entirely accurate, as her own chart notes from May 12, 2020 indicate she reported only four panic attacks 22 over the past month, and the claimant testified that medication alleviates them. 23 AR 26. 24 The Court finds that the ALJ properly considered the factors of supportability and consistency 25 when evaluating the persuasiveness of Dr. Raghunath. As to supportability, the ALJ correctly noted 26 that Dr. Raghunath expressed the opinion in terms of what Plaintiff was likely to do, answered 27 “unsure” on several questions, and provided very little explanation. AR 26. The ALJ’s reasoning [28] 1 properly invokes the supportability factor. 20 C.F.R. §§ 404 .1520c(c)(1), 416.920c(c)(1) 2 (supportability means the extent to which a medical source supports the medical opinion by 3 explaining the “relevant ... objective medical evidence” ). 4 As to consistency, the ALJ noted that the opinion was not consistent with the medical 5 evidence of record. AR 26. To support this determination, the ALJ indicated that all three chart 6 notes from Dr. Raghunath recorded intact attention, and “unremarkable” concentration and memory. 7 AR 25, 764-68, 773-77, 779-82. The ALJ also considered that Dr. Raghunath’s comment that 8 Plaintiff “has panic attacks when she leaves her house” was not entirely accurate, as her own chart 9 notes from May 12, 2020 indicated that Plaintiff reported only four panic attacks over the past month. 10 AR 26, 774. The ALJ’s determination appears to conflate the consistency factor with the 11 supportability factor. With consistency, the ALJ considers the extent which a medical opinion is 12 consistent with the evidence from other medical sources and nomedical sources. 20 C.F.R. §§ 13 404.1520c(c)(2), 416.920c(c)(2) (emphasis added). Whereas, with supportability, the ALJ considers 14 the extent to which a medical source supports his or her own opinion, and explains the objective 15 medical evidence. 20 C.F.R. §§ 404 .1520c(c)(1), 416.920c(c)(1). The evidence from Dr. 16 Raghunath’s own treatment records speaks to the supportability of the associated medical opinion 17 from Dr. Raghunath, not the consistency of that opinion with evidence from other medical or 18 nonmedical sources. Nevertheless, the ALJ also considered that Dr. Raghunath’s opinion was not 19 consistent with Plaintiff’s report that her panic attacks were alleviated with medication. AR 26. This 20 portion of the ALJ’s evaluation properly invokes the consistency factor, i.e., the extent to which the 21 opinion is consistent with the evidence from nonmedical sources. 20 C.F.R. §§ 404 .1520c(c)(2), 22 416.920c(c)(2) (emphasis added). While consideration of the consistency factor was minimal, it is 23 apparent from the decision that the ALJ considered that supportability was the critical factor and 24 lacking from Dr. Raghunath’s opinion. 25 Furthermore, in addition to consideration of the consistency and supportability factors, the 26 ALJ considered the relationship with the claimant factor, which includes consideration of the length 27 of the treatment relationship, the frequency of examinations, and the extent of the treatment 28 relationship. AR 26; 20 C.F.R. §§ 404 .1520c(c)(3), 416.920c(c)(3). The ALJ expressly noted that 1 Dr. Raghunath only met with Plaintiff by telehealth (over the telephone) three times for a total of 2 forty-six minutes. AR 26, citing AR 777 (Encounter Duration: 10 minutes), 773-75 (Encounter 3 Duration: 8.8 minutes), 779-81 (Encounter Duration: 28 minutes). 4 Additionally, the ALJ considered whether Dr. Raghunath was a specialist. AR 26. An ALJ is 5 permitted to consider the specialization of a medical source when evaluating the persuasiveness of the 6 opinion. See 20 C.F.R. §§ 404 .1520c(c)(4), 416.920c(c)(4) (“The medical opinion or prior 7 administrative medical finding of a medical source who has received advanced education and training 8 to become a specialist may be more persuasive about medical issues related to his or her area of 9 specialty than the medical opinion or prior administrative medical finding of a medical source who is 10 not a specialist in the relevant area of specialty.”) In this instance, the ALJ considered that Dr. 11 Raghunath was not listed as board-certified by the American Board of Psychiatry and Neurology or 12 the American Board of Internal Medicine. AR 26. 13 Based on the above, the Court finds that the ALJ properly evaluated the opinions of Dr. 14 DeBattista and Dr. Raghunath and the evaluation was supported by substantial evidence. 15 C. Subpoena of Records 16 Plaintiff suggests that the ALJ’s error in denying Plaintiff’s hearing request to subpoena her 17 treatment records pursuant to the Victim Witness Program can be corrected on remand. (Doc. 17 at p. 18 15.) 19 According to the hearing transcript, the ALJ acknowledged Plaintiff’s request for a subpoena 20 for victim witness records, but denied the request at that point. AR 36-37. In so doing, the ALJ 21 indicated that the requested records were usually confidential and not discoverable. The ALJ then 22 queried Plaintiff’s counsel as to whether they were protected from disclosure. AR 36. Because 23 Plaintiff’s counsel was not certain, the ALJ invited Plaintiff’s counsel to brief the issue of whether the 24 records were protected from disclosure. AR 36. There is no indication in the record that Plaintiff’s 25 counsel submitted any such briefing in support of the subpoena request. The ALJ also indicated that 26 she was denying the request at that point because it appeared that the psych records at issue would like 27 with the provider, not the Victim Witness Program. AR 37. Given that Plaintiff’s counsel did not [28] 1 submit the invited briefing, nor provide any indication that the requested records were unavailable 2 from a source other than the Victim Witness Program, the Court does not find error. 3 CONCLUSION AND ORDER 4 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 5 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 6 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security 7 and AFFIRMS the agency’s determination to deny benefits. The Clerk of this Court is DIRECTED to 8 enter judgment in favor of Defendant Commissioner of Social Security and against Plaintiff Lori 9 Sheehy. 10 IT IS SO ORDERED. 11 Dated: August 4, 2023 /s/ Barbara A. McAuliffe _ 12 UNITED STATES MAGISTRATE JUDGE