Keller v. Kijakazi

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 MATTHEW KELLER, Case No.: 3:22-CV-707-WVG 12 Plaintiff, ORDER ON JOINT MOTION FOR 13 v. JUDICIAL REVIEW 14 KILOLO KIJAKAZI, Acting Commissioner of the Social Security — 15 — Administration, — 16 — Defendant. — 17 — — 18 — 19 I. INTRODUCTION 20 This action arises from the Commissioner of Social Security’s (“Commissioner” or 21 Defendant”) denial of Matthew Keller’s (“Plaintiff”) application for Supplemental Security 22 Income (“SSI”) benefits under Title XVI of the Social Security Act (“Title XVI” or the 23 “Act”). (Doc. No. 1.) On February 28, 2023, the Parties filed a Joint Motion for Judicial 24 Review of the Final Decision of the Commissioner of Social Security (“Joint Motion”) 25 pursuant to the Court’s October 27, 2022 Scheduling Order. (Doc. No. 16.) The Joint 26 Motion addresses four issues: whether Administrative Law Judge (“ALJ”) Charles Woode 27 (“ALJ Woode”) erred in (1) analyzing the paragraph C criteria of the Act’s Listings 12.03 28 and 12.04; (2) assessing the medical opinions of Dr. Bohn and Dr. Giglio; (3) formulating 1 Plaintiff’s residual functional capacity (“RFC”); and (4) evaluating Plaintiff’s 2 noncompliance with medication. See Doc. No. 16. Having reviewed and considered the 3 Parties’ submissions, the Court DENIES Plaintiff’s Motion for Summary Judgment and 4 GRANTS Defendant’s Motion for Summary Judgment. 5 II. PROCEDURAL HISTORY 6 On July 25, 2019, Plaintiff applied for SSI benefits under Title XVI. (AR 312-18.) 7 Plaintiff’s application was twice denied, initially on September 6, 2019, and upon 8 reconsideration on March 23, 2020. (AR 131-35; 146-50.) On April 23, 2020, ALJ Woode 9 received Plaintiff’s written request for a hearing. (AR 151-54.) On December 3, 2020, 10 Plaintiff telephonically appeared before ALJ Woode and requested legal representation, 11 which ALJ Woode granted. (AR 37-45). On April 19, 2021, Plaintiff appeared and 12 testified at the telephonic administrative hearing, pursuant to his agreement to appear 13 telephonically. (AR 46-72, 245, 289-93.) 14 On May 10, 2021, ALJ Woode convened a supplemental hearing to obtain the 15 testimony of impartial vocational expert Esperanza DiStefano. (AR 15, 73-83.) Plaintiff 16 and Plaintiff’s counsel attended this hearing telephonically. (Id.) 17 On May 19, 2021, ALJ Woode issued an unfavorable decision on Plaintiff’s 18 Application for SSI benefits. (AR 12-28.) On April 27, 2022, the Appeals Council denied 19 Plaintiff’s Request for Review, finalizing ALJ Woode’s decision on Plaintiff’s application 20 for benefits. (AR 1-6.) On May 17, 2022, Plaintiff filed this instant action seeking judicial 21 review of ALJ Woode’s Decision. (Doc. No. 1.) 22 III. FACTUAL BACKGROUND 23 a. Plaintiff’s Medical History and Allegations 24 Plaintiff is twenty-two years old and alleges he is unable to work due to mental 25 impairments. (AR 247-48; 305; 561.) Plaintiff alleges a disability onset date of January 26 7, 2019. (AR 312-18.) Plaintiff has a high school education and no past relevant work. 27 (AR 27.) In addition to Plaintiff’s alleged mental impairments, Plaintiff has a mild 28 intellectual disability and fetal alcohol syndrome. (AR 343-51; 488-89, 491; 662; 727-30; 1 734-36, 741.) With respect to Plaintiff’s mental impairments, Plaintiff contends he suffers 2 from schizoaffective disorder (depressive type), paranoia, delusions, psychosis, major 3 depressive disorder, intellectual disability, memory issues, headaches, and intramuscular 4 disorder causing collapse. (AR 483.) Plaintiff’s medical records reflect a history of 5 suicidal ideations and attempted suicides. (AR 347; 488-89, AR 491; 589.) 6 b. Early Treatment and Diagnosis 7 January 2019 was the first time Plaintiff received medical attention for his mental 8 impairments. (AR 491; 583; 658.) Between January 2019 and June 2019, Plaintiff was 9 brought to the emergency department three times for psychiatric evaluation under 10 California Welfare and Institutions Code Section 5150 (“5150 hold”) due to command 11 auditory hallucinations, which directed Plaintiff to engage in self-harm and suicidal acts, 12 and stress associated with his home and work life. (AR 488-91; 570-72; 583-86.) Plaintiff 13 also reported struggling with sleep. (AR 251; 334, 341-42, 348, 350-51; 380, 399.) During 14 each discharge, Plaintiff seemed willing to engage in daily living tasks and comply with 15 his treatment regime and had decreased thoughts about suicide and self-harm. (AR 508; 16 571-72, 598-99.) 17 On January 7, 2019, Plaintiff was admitted to Aurora Behavioral Health Care under 18 a 5150 hold. (AR 570-78, 583-593.) Ryan Wilke, D.O., (“Dr. Wilke”) treated Plaintiff 19 during his admittance at Aurora Behavioral Health Care. (Id.) Plaintiff reported he told his 20 parents he was depressed but “they don’t listen”. (AR 583.) Plaintiff reported he was not 21 taking any medications at admittance and during the course of treatment, with adjustments 22 to Lexapro and Seroquel, one-on-one psychotherapy sessions, escalation of privileges and 23 responsibilities (allowed to go to the gym, alone time at staff discretion and to the cafeteria 24 for meals), and family counseling sessions, “his depression improved and suicidality 25 completed resolved.” (AR 854.) At discharge, Plaintiff was future-oriented with improved 26 mood and insight, consistently denied passive or active suicidal or violent ideations, and 27 was noted to be capable of understanding the risk of nonadherence to his medications 28 prescribed. (Id.) 1 On May 29, 2019, Plaintiff presented before Dr. Wilke with suicidal ideations and 2 “auditory hallucinations telling him to kill himself” and reported his job at a waterpark was 3 “too stressful”. (AR 570, 573, 575.) However, Dr. Wilke noted Plaintiff “contract[ed] for 4 safety in the hospital” and displayed calm and cooperative behaviors regarding his 5 medication and intensive treatment programs while he was admitted. (AR 571-72, 5756 76.) Plaintiff contended his outpatient program was “not working.” (AR 570, 575.) 7 Plaintiff contended he did not feel Lexapro and Risperdal were helping him. (AR 658.) 8 Upon discharge on June 3, 2019, Plaintiff seemed “stabilized and improving” and “denie[d] 9 any intent to harm himself . . . in treatment at the hospital and denie[d] any passive or active 10 homicidal or violent ideation, intent, or plan.” (AR 570-71.) At discharge, Dr. Wilke noted 11 Plaintiff was denying any passive or active suicidal, homicidal or violent ideations, and 12 demonstrated agreeableness regarding active engagement in those treatment plans 13 addressing his “acute symptomology causing complete functional impairment.” (AR 57014 71.) 15 c. Dr. Bohn’s Assessment of Plaintiff 16 On June 25, 2019, and June 27, 2019, Sara A. Bohn, Ph.D. (“Dr. Bohn”) conducted 17 neuropsychological assessments of Plaintiff. (AR 658-662.) Dr. Bohn conducted a clinical 18 interview, the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV) Test, the 19 Wechsler Memory Scale – Fourth Edition (WMS-IV), the Conners Continuous 20 Performance Test – Third Edition (CPT-3), the Woodcock-Johnson Tests of Achievement 21 IV, the Wisconsin Card Sort Test, and the Personality Assessment Inventory (PAI). (AR 22 660.) 23 Plaintiff’s performance on the WAIS-IV placed him in the “low average to 24 borderline ranges of cognitive skill.” (AR 660; 673.) Additionally, Plaintiff performed in 25 the “low average to extremely low ranges of memory functioning when compared to same 26 aged peers” on the WMS-IV. (AR 660-61.) Dr. Bohn determined the WMS-IV revealed 27 Plaintiff “will struggle with most aspects of memory.” (AR 661.) The CPT-3 test showed 28 that Plaintiff would have a “moderate likelihood of having a formal attention deficit 1 disorder” and likely struggle with inattention and problem-solving even with help from 2 others. (Id.) Further, Plaintiff performed within the first percentile on the Woodcock3 Johnson Tests of Achievement IV. (Id.) Dr. Bohn determined Plaintiff could not complete 4 “simple reading comprehension” tasks like reading the word “bird.” (Id.) Lastly, the 5 Personality Assessment Inventory revealed that Plaintiff would struggle with agitation, 6 hopelessness, hostility, mistrust toward others, low energy, mood swings, suicidal ideation, 7 and unhappiness. (AR 662, 671.) 8 Dr. Bohn’s diagnostic impression of Plaintiff was that he had schizoaffective 9 disorder, depressive type, and a mild intellectual disability. (AR 662, 671.) Dr. Bohn 10 determined Plaintiff would struggle in education and work settings and was at risk of self11 harm and acting impulsively, however stated Plaintiff’s parents should research whether 12 Plaintiff would be considered for programs other than SSDI due to his limited skills for 13 productive work and severe mental health conditions. (Id.) 14 d. Dr. Giglio’s Assessment of Plaintiff 15 On May 9, 2019, Plaintiff began treatment with clinical psychologist John Giglio, 16 Ph.D. (“Dr. Giglio”). (AR 555.) Dr. Giglio saw Plaintiff bimonthly. (Id.) On July 10, 17 2019, Dr. Giglio conducted an assessment of Plaintiff’s mental status. (Id.) Dr. Giglio 18 concluded Plaintiff was “well-groomed” and “cooperative” but had “agitated motor 19 activity,” slow and delayed speech, apathy, and thought-blocking tendencies. (Id.) During 20 the sensorium and cognitive functioning part of the examination, Dr. Giglio concluded 21 Plaintiff was oriented (i.e., person, place, time, situation) but had mildly impaired 22 concentration, moderately impaired memory for recent and remote memories, and 23 borderline intelligence. (Id.) Regarding Plaintiff’s mood and affect, Plaintiff demonstrated 24 a depressed mood and a blunted affect. (AR 556.) On the perception section of the 25 examination, Plaintiff displayed auditory hallucinations and misidentification delusions. 26 (Id.) Dr. Giglio noted Plaintiff believed his perception issues stemmed from “chaos at 27 home.” (Id.) Regarding Plaintiff’s thought process, Plaintiff had loose associations and 28 moderately impaired judgments (i.e., “poor decision making”). (Id.) His content delusions 1 were about persecution, and his content preoccupations covered depersonalization. (Id.) 2 Dr. Giglio found Plaintiff was poor (i.e., “evidence supports the conclusion that the 3 individual cannot usefully perform or sustain the activity”) in the following areas: 4 (1) “Understand, remember, and carry out complex instructions; 5 (2) Maintain concentration, attention, and persistence; 6 (3) Complete a normal workday and workweek without interruptions from 7 psychologically based symptoms; 8 (4) Respond appropriately to changes in a work setting.” (AR 557.) 9 Dr. Giglio found Plaintiff was fair (i.e., “the evidence supports the conclusion that 10 the individual’s capacity to perform the activity is impaired, but the degree/extent of the 11 impairment needs to be further described”) in the following areas: 12 (1) “Understand, remember, and carry out simple instructions; 13 (2) Perform activities within a schedule and maintain regular attendance; 14 (3) Interact appropriately with the public; 15 (4) Interact appropriately with supervisors; and 16 (5) Interact appropriately with co-workers.” (Id.) 17 e. Plaintiff’s Other Health Assessments 18 On August 1, 2019, Plaintiff presented to Dennis Ordas, M.D. for a mental status 19 exam. (AR 343.) He reported Zyprexa helped with his sleep, and Risperdal helped mitigate 20 his hallucinations and suicidal ideations. (Id.) He reported anxiety and hallucination but 21 denied suicidal thoughts. Dr. Ordas diagnosed Plaintiff as having mild intellectual 22 disability and schizoaffective disorder, depressive type, and noted a reasonable expectation 23 of improvement for Plaintiff. (Id.) 24 On September 3, 2019, T. Dupont, M.D., (“Dr. Dupont”), reported that Plaintiff’s 25 alleged physical impairments were not severe, and he could adjust to doing other work. 26 (AR 105, 108.) Additionally, on September 3, 2019, Maurice Rudmann, Ph.D., (“Dr. 27 Rudmann”) conveyed Plaintiff “does not need any assistance with personal care,” however 28 Plaintiff may need reminders. (AR 108.) Dr. Rudmann also noted Plaintiff could care for 1 his pet, shop in stores, count change, and socialize with friends at social outings such as 2 the beach and movie theaters. (Id.) However, Dr. Rudmann reported Plaintiff does not go 3 out alone. (Id.) 4 On November 26, 2019, and January 7, 2020, Plaintiff presented to Michael Frost, 5 F.N.P., (“Nurse Frost”) treated Plaintiff. (AR 716-25.) Nurse Frost observed Plaintiff had 6 a “subtle memory impairment” but denied needing help cooking, communicating, finances, 7 housework, traveling, walking, dressing, bathing, eating, and using the bathroom. (AR 8 722.) Nurse Frost reported Plaintiff self-discontinued Lexapro, which was prescribed to 9 reduce hallucinations and improve mood, and began to cut Zyprexa into small chunks 10 because the full medication “sedated” him. (AR 734, 737-38, 741.) 11 On March 11, 2020, K. Sin, M.D., (“Dr. Sin”) contended Plaintiff’s physical 12 impairments were non-severe. (AR 121.) Regarding Plaintiff’s residual functional 13 capacity, on March 21, 2020, Pamela Hawkins, Ph.D., (“Dr. Hawkins”) concluded Plaintiff 14 could interact with co-workers, adapt to changes in work environments, and understand 15 and execute simple instructions at work. (AR 125-27.) 16 Between September 25, 2020, and September 29, 2020, Plaintiff was treated at the 17 West Yavapai Guidance Clinic, where he presented with symptoms of anxiety, depression, 18 and suicidal ideation. (AR 987-92.) On September 25, 2020, Plaintiff seemed “sedated and 19 disheveled with a flat, odd affect, and depressed.” (AR 1017, 1041, 1065, 1089, 1113.) 20 Plaintiff expressed his stressors included issues at home with his grandmother. (AR 989; 21 1213.) On September 27, 2020, Erin Ortega, BS, BHT (“Ms. Ortega”) from the West 22 Yavapai Guidance Clinic, reported Plaintiff did not want to return home because of his 23 abuse from his grandmother and uncles. (AR 1233.) Ms. Ortega contended Plaintiff was 24 “alert and oriented” and “talkative when prompted.” (Id.) However, Plaintiff expressed he 25 was suicidal and his suicidal ideations “w[ould] increase upon [discharge] and with his 26 return to his living situation.” (Id.) Upon being discharged from the West Yavapai 27 Guidance Clinic on September 29, 2020, Plaintiff exhibited an “improved mood with 28 medication stabilization and denied” having suicidal ideations. (AR 992.) Plaintiff also 1 seemed “bright and engaging” and was “future planning and made good eye contact.” (Id.) 2 Plaintiff also reported “his plan is to get a job and look for alternate housing”. (Id.) 3 On March 24, 2021, general practitioner Franklin Galef, M.D., (“Dr. Galef”) treated 4 Plaintiff. (AR 975.) Dr. Galef noted that Plaintiff was depressed and had gone up to two 5 days without sleeping, which resulted in hallucinations. (AR 975-76.) Plaintiff denied 6 having suicidal ideations and auditory and visual hallucinations. (AR 975.) However, Dr. 7 Galef was unsure whether Plaintiff had ADHD or undifferentiated schizophrenia. (AR 8 976.) Plaintiff told Dr. Galef “he did well on fluoxetine and bupropion,” to which Dr. 9 Galef had Plaintiff “restart the combination.” (Id.) 10 f. Vocational Expert Testimony 11 On May 10, 2021, impartial vocational expert, Esperanza DiStefano testified at the 12 telephonic supplemental administrative hearing regarding Plaintiff’s disability benefits. 13 (AR 73-83.) Ms. DiStefano testified that based on Plaintiff’s age, education, work 14 experience, and residual functional capacity Plaintiff would be able to perform occupations 15 such as sweepers, icers, and markers. (AR 77-79.) 16 g. ALJ Woode’s May 19, 2021 Decision 17 On May 19, 2021, ALJ Woode issued his Notice of Decision, finding Plaintiff is not 18 disabled under section 1614(a)(3)(A) of the Social Security Act based on the application 19 for supplemental security income filed on July 25, 2019. (AR 28.) ALJ Woode made ten 20 findings of fact and conclusions of law in his Notice of Decision: 21 (1) The claimant has not engaged in substantial gainful activity since July 25, 22 2019, the application date (20 CFR 416.971 et seq.); (AR 17.) 23 (2) The claimant has the following severe impairments: schizoaffective disorder, 24 major depressive disorder, and mild intellectual disability (20 CFR 416.920(c)). (Id.) 25 (3) The claimant does not have an impairment or combination of impairments that 26 meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, 27 Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). (AR 18.) 28 (4) [T]he claimant has the residual functional capacity to perform a full range of 1 work at all exertional levels but with the following non-exertional limitations: The claimant 2 can understand, remember, and carry out simple, routine, and repetitive one-to-two step 3 tasks in low-stress work environments without fast pace or high production quotas, where 4 “low-stress” is defined as those jobs having only occasional decision-making and 5 occasional changes in work setting. The claimant can perform jobs which can be learned 6 by demonstration. The claimant can have occasional contact with co-workers and 7 supervisors, but should not perform team or tandem work, and cannot have contact with 8 the public. (AR 21.) 9 (5) The claimant has no past relevant work (20 CFR 416.965). (AR 27.) 10 (6) The claimant was born on April 14, 1999, and was 20 years old, which is defined 11 as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963). 12 (Id.) 13 (7) The claimant has at least a high school education (20 CFR 416.964). (Id.) 14 (8) Transferability of job skills is not an issue because the claimant does not have 15 past relevant work (20 CFR 416.968). (Id.) 16 (9) Considering the claimant’s age, education, work experience, and residual 17 functional capacity, there are jobs that exist in significant numbers in the national economy 18 that the claimant can perform (20 CFR 416.969 and 416.969(a)); and (Id.) 19 (10) The claimant has not been under a disability, as defined in the Social Security 20 Act, since July 25, 2019, the date the application was filed (20 CFR 416.920(g)). (AR 28.) 21 ALJ Woode accepted the vocational expert’s testimony holding Plaintiff’s 22 limitations permitted him to work as sweeper, icer, and marker. (Id.) In doing so, ALJ 23 Woode, found the vocational expert’s testimony consistent with the Dictionary of 24 Occupational Titles (“DOT”) and that any testimony on limits not contemplated by the 25 DOT was based on the vocational expert’s professional knowledge and experience. (AR 26 28; 474-76.) 27 / / / 28 / / / 1 IV. LEGAL STANDARD 2 a. Title XVI Analysis 3 Title XVI of the Social Security Act provides for Supplemental Security Income to 4 claimants who can establish (1) the inability to engage in any substantial gainful activity 5 by reason of any medically determinable physical or mental impairment; or (2) a 6 combination of impairments that can be expected to result in death or that has lasted or can 7 be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 8 1382c(a)(3)(A). An individual seeking social security benefits bears the initial burden of 9 establishing that they have a disability. 20 C.F.R. § 416.912 ; Ukolov v. Barnhart, 420 F.3d 10 1002, 1004 (9th Cir. 2005); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 11 Therefore, if the individual fails to prove they have a disability, their application for 12 benefits can be denied. See Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). Where a 13 claimant makes this showing, the burden shifts to the Commissioner to prove the claimant 14 can still work and that work is available for him. Valentine v. Comm’r SSA, 574 F.3d 685 15 (9th Cir. 2009); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); Tackett v. Apfel, 180 16 F.3d 1094 , 1098 (9th Cir. 1999). 17 To evaluate whether a claimant is qualified under the Act, the Court undertakes a 18 five-step inquiry analyzing whether (1) the claimant is presently working and has 19 substantially gainful activity; (2) the medical severity of claimant’s impairment(s); (3) the 20 impairment(s) “meets or equals” one of the impairment listings itemized in the Social 21 Security Regulations; (4) the claimant is able to perform any work that he has not 22 previously performed; and (5) the claimant is able to perform any other work, where, if so, 23 the Commissioner bears the burden of proving “that there are a significant number of jobs 24 in the national economy that the [applicant] can do.” 20 C.F.R. § 416.920 (2012). The 25 court’s inquiry ends when a claimant is found to be “disabled” or “not disabled” at any step 26 in the analysis. Id. 27 / / / 28 / / / 1 b. Judicial Review of Administrative Decision on Title XVI Applications 2 Section 405(g) of the SSA authorizes unsuccessful claimants to seek judicial review 3 of the Commissioner’s final administrative decision. 42 U.S.C. § 405 (g). The scope of 4 judicial review is limited, as the Commissioner’s denial of benefits “will be disturbed only 5 if it is not supported by substantial evidence or is based on legal error.” Andrews v. Shalala, — 6 — 53 F.3d 1035, 1039 (9th Cir. 1995); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) 7 (“substantial evidence is more than a mere scintilla but less than a preponderance”); Biestek 8 v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“[W]hatever the meaning of ‘substantial’ in 9 other contexts, the threshold for such evidentiary sufficiency [in judicial review of social 10 security decisions] is not high”). The court must consider the record in its totality, weighing 11 evidence that both supports and undercuts the Commissioner’s conclusions. Desrosiers v. 12 Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); Flaten v. Sec’y of 13 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Concurrently, the court must 14 uphold the ALJ’s decision where the evidence supports more than one rational 15 interpretation. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); see also Rounds v. 16 Comm’r SSA, 807 F.3d 996, 1002 (9th Cir. 2015). Under such circumstances, high 17 deference is mandated. Rounds, 807 F.3d at 1002 ; Valentine, 574 F.3d at 690 . 18 V. DISCUSSION 19 a. ALJ Woode’s Discussion of Paragraph C Criteria of Listings 12.03 20 and 12.04 21 The first issue Plaintiff raises contends that ALJ Woode inadequately analyzed 22 Plaintiff’s impairments in relation to the Paragraph C criteria of Social Security 23 Regulations Listings §§ 12.03 and 12.04 (“Paragraph C criteria”). (Doc. No. 16 at 7-9, 1424 16.) Plaintiff argues ALJ Woode erred because his analysis of the Paragraph C criteria was 25 boilerplate and the Administrative Record clearly demonstrates that Plaintiff meets the 26 Paragraph C criteria due to Plaintiff’s mental impairments existing for more than two years, 27 Plaintiff’s history of attempted suicide and deterioration resulting in admittance to inpatient 28 programs, and Plaintiff’s minimal capacity to adapt to changes in his environment, which 1 both contribute to Plaintiff’s inability to sustain work. Id. at 9:4-17, 9:19-27, 15:6-11. In 2 turn, the Commissioner argues the burden falls on Plaintiff at the step-three analysis to 3 demonstrate that his impairments met all the Paragraph C criteria and ALJ Woode 4 adequately addressed the Paragraph C criteria even if it was not entirely discussed under 5 the relevant section of the Notice of Decision so long as it was discussed in another section. 6 Id. at 10:1-12, 11-12. The Commissioner also argues that even if ALJ Woode erred in his 7 analysis of the Paragraph C criteria, the error was harmless due to Plaintiff’s failure to meet 8 the requirements of Listings §§ 12.03(C) and 12.04(C). Id. at 12-14. 9 At step-three of the five-step inquiry the ALJ is required to determine whether a 10 claimant’s medical impairment “meets or equals” one of the impairments listings 11 (“Listings”) itemized in Appendix 1 to subpart P of Part 404 of the Social Security 12 Regulations and meets the durational requirements to qualify as a disability. 20 C.F.R. § 13 416.920(a)(4)(iii). Listings 12.03 and 12.04 require satisfaction of Paragraphs A and B, or 14 A and C, to meet or equal an impairment of schizophrenia spectrum and other psychotic 15 disorders or depressive, bipolar and related disorders. See 20 C.F.R. Pt. 404, Subpt. P, 16 App. 1 §§ 12 .00(A)(2), 12.03, 12.04. 17 In pertinent part, Paragraph C criteria of Listings 12.03 and 12.04 both require a 18 claimant to have a “serious and persistent mental disorder”, meaning a “medically 19 documented history of the existence of [a] [mental] disorder over a period of at least two 20 years” and evidence of both (1) “medical treatment, mental health therapy, psychosocial 21 support(s) or a highly structured setting(s) that is ongoing and diminishes the symptoms 22 and signs for [the claimant’s] mental disorder,” and marginal adjustment which is “minimal 23 capacity to adapt to changes in [the claimant’s] environment or to demands that are not 24 already part of [the claimant’s] daily life.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 25 12.00(A)(2)(c), 12.03(C), 12.04(C). 26 At step-three, the claimant bears the initial burden of establishing the existence of a 27 severe impairment and, ultimately, disability. See Artis v. Barnhart, 97 F.App’x 740, 741 28 (9th Cir. 2004) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998)); Ukolov, 420 1 F.3d at 1004. Plaintiff must show that his impairment meets all the specified medical 2 criteria to qualify as disabled. See 20 C.F.R. § 416.920 (a)(4)(iii). If the ALJ determines a 3 claimant’s impairment does not satisfy a listing, the ALJ must provide adequate support 4 for the finding in his decision. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001); Marcia 5 v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). When supporting his step-three 6 determinations, the ALJ must discuss and evaluate evidence supporting the decision, 7 however, the ALJ is not required to discuss evidence under any particular heading. 8 Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013); Lewis, 236 F.3d at 513 . 9 Although ALJ Woode’s analysis of the Paragraph C criteria of Listings 12.03 and 10 12.04 were not elaborately discussed under the step-three section of the Notice of Decision, 11 the Court finds that ALJ Wood did not err in his analysis of the Paragraph C criteria because 12 ALJ Woode provided adequate support and discussed Plaintiff’s impairments in another 13 section. See Connors v. Colvin, 656 F.App’x 808 (9th Cir. 2016) (“The ALJ did not include 14 a discussion of the relevant rheumatoid arthritis evidence in the section of his opinion 15 dedicated to the listing analysis, but he did include a discussion of the relevant evidence 16 later in his opinion. Therefore, his analysis was procedurally proper.”); see also Lewis, 236 17 F.3d at 513; Ozolins v. Saul, 849 F.App’x 682, 683 (9th Cir. 2021) (“Although the ALJ’s 18 explanation might have been more robust, her lengthy evaluation of the evidence elsewhere 19 ‘is an adequate statement of the foundations on which the ultimately factual conclusions 20 are based.’”), citing Gonzales v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). “An ALJ’s 21 lack of formal analysis and findings at Step Three, however, will not constitute reversible 22 error when: the ALJ's subsequent discussion of the relevant medical evidence supports a 23 conclusory finding; and with respect to equivalency, plaintiff fails to proffer a theory or 24 evidence showing that his combined impairments equal a Listing.” Guerra v. Astrue, No. 25 EDCV 09-02274-MAN, 2010 WL 5088774 , at *6 (C.D. Cal. Dec. 7, 2010) (citing to Lewis, — 26 — 236 F.3d at 513-14 .) Furthermore, even if an ALJ erred, the error is harmless if it is 27 “inconsequential to the ultimate non-disability determination.” Stout v. Comm'r, Soc. Sec. 28 Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). 1 Here, ALJ Woode’s analysis and the foundations that formed the basis of his factual 2 conclusions about whether Plaintiff’s mental impairments were serious and persistent over 3 a period of two years can be found in ALJ Woode’s fourth finding of fact. See AR 21-27. 4 Specifically, ALJ Woode discussed Plaintiff’s treatment history and pointed to multiple 5 instances where Plaintiff’s records suggested the claimant’s family or home life was a 6 primary source of Plaintiff’s depression and suicidality not his mental impairments. (AR 7 23, 24, 25.) ALJ Woode specifically noted Plaintiff admitted to Dr. Bohn that his anxiety 8 and suicidal ideations stemmed from issues at home. (AR 24.) ALJ Woode discussed 9 Plaintiff’s visit with Nurse Frost where Plaintiff denied needing assistance with shopping, 10 cooking, housework, or transportation and admitted his mental impairments were due to 11 issues at home. (Id.) ALJ Woode also considered Plaintiff’s admittance at West Yavapai 12 Guidance Clinic in September 2020 where Plaintiff endorsed suicidality due to his primary 13 life stressors involving residing with an emotionally abusive grandmother, distance from 14 his dog and only friend, history of childhood and verbal abuse, and unsupportive family 15 system preventing him from obtaining a job. (AR 24.) ALJ Woode also cited to Plaintiff’s 16 exhibited history of suicidal statements in response to tense volatile familial interactions. 17 (AR 25.) 18 Additionally, ALJ Woode also discussed and considered Plaintiff’s inconsistent 19 history of medical treatment and mental health therapy which directly relates to the 20 Paragraph C criteria. ALJ Woode’s fourth finding of fact recounted Plaintiff’s consistent 21 history of ceasing to take his prescribed medications and failure to appear at routine mental 22 health appointments after each of Plaintiff’s hospital discharges. (AR 25.) Specifically, 23 ALJ Woode noted Plaintiff’s records suggest Plaintiff discontinued all mental health 24 interventions and prescribed psychotropic medications after his discharge from the hospital 25 in April of 2019. (AR 22.) ALJ Woode cited to Dr. Galef’s March 24, 2021 observation 26 that Plaintiff had not required acute psychiatric care since September of 2020 and had not 27 participated in outpatient care since August 2019. (AR 24-25.) Further, ALJ Woode 28 specifically noted “It appears that the claimant was lost to regular follow up with mental 1 health services between August 8, 2019 and November of 2019.” (AR 24.) ALJ Woode 2 also noted that during an internal medicine visit in March of 2021, Plaintiff self-reported 3 he had stopped taking his medications for symptom controls at his own initiative. (AR 25.) 4 The Court further finds that ALJ Woode did not err in addressing whether Plaintiff 5 satisfied the requirement of “marginal adjustment” set forth in the Paragraph C criteria. 6 Marginal adjustment is defined as: 7 [y]our adaptation to the requirements of daily life is fragile; that is, you have minimal capacity to adapt to changes in your environment or to demands that — 8 — are not already part of your daily life. We will consider that you have achieved 9 only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your symptoms and signs and to — 10 — deterioration in your functioning; for example, you have become unable to 11 function outside of your home or a more restrictive setting, without substantial psychosocial supports (see 12.00D). Such deterioration may have necessitated — 12 — a significant change in medication or other treatment. Similarly, because of 13 the nature of your mental disorder, evidence may document episodes of deterioration that have required you to be hospitalized or absent from work, — 14 — making it difficult for you to sustain work activity over time. — 15 — 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00G(2)(c) — 16 — ALJ Woode’s Notice of Decision considered Plaintiff’s medical records, Plaintiff’s — 17 — own testimony and medical expert opinions to determine that the record did not establish — 18 — that Plaintiff achieved only marginal adjustment. Specifically, ALJ Woode found that — 19 — Plaintiff’s functional abilities and range of daily living activities were inconsistent with — 20 — disabling symptoms that were work preclusive. See AR 18-25. For example, ALJ Woode — 21 — found that after the alleged onset of disability, Plaintiff advocated for himself during — 22 — psychological treatment; was cooperative and interacted well at examinations and — 23 — appointments; cared for his personal needs; performed light chores; enjoyed leisure — 24 — activities; socialized; and sought and obtained employment (AR 18-19, 21-22, 25). ALJ — 25 — Woode also found that records indicated Plaintiff’s only job may have ceased for reasons — 26 — unrelated to his reported impairments. (AR 25-26). ALJ Woode also found to be generally — 27 — persuasive the state agency medical consultants who rated Plaintiff’s limitations in the four — 28 — 1 paragraph B domains as mild or moderate at most and found that the medical evidence did 2 not establish the presence of the Paragraph C criteria. (AR 26-27, 107, 123). Based upon 3 the foregoing, Plaintiff’s contention that ALJ Woode’s Notice of Decision did not 4 adequately address the paragraph C criteria of Listings 12.03 and 12.04 is unsupported. 5 Finally, with respect to Plaintiff’s argument that ALJ Woode completely failed to 6 address any of the Paragraph A criteria required by Listings §§ 12.03 and 12.04 (Doc. No. 7 16 at 14:25-15:5), the Court finds the ALJ’s failure to address Paragraph A criteria to 8 constitute nothing more than harmless error as Listings §§ 12.03 and 12.04 requires 9 satisfaction of Paragraphs A and B, or Paragraphs A and C, and ALJ Woode’s Notice of 10 Decision thoroughly analyzed and concluded Plaintiff did not sufficiently meet Paragraphs 11 B1 and C. Thus, even if Plaintiff did sufficiently meet Paragraph A criteria, Plaintiff’s 12 failure to satisfy Paragraphs B and C criteria renders the same result of a non-disability 13 determination. 14 The Court finds that ALJ Woode did not inadequately address Plaintiff’s 15 impairments in relation to the Paragraph C criteria of Listings 12.03 and 12.04 and finds 16 no valid grounds to vacate ALJ Woode’s ruling on this issue. 17 b. ALJ Woode’s Assessment of Drs. Bohn and Giglio’s Medical Opinions 18 Plaintiff next contends ALJ Woode erred because ALJ Woode failed to address Dr. Bohn’s 19 opinion and improperly rejected Dr. Giglio’s opinion. (Doc. No. 16 at 16-22, 31-33.) 20 / / / 21 / / / — 22 — — 23 — 24 1 Although ALJ Woode’s Notice of Decision states he considered the Paragraph B criteria 25 of Listing 12.05 in his finding at step-three (AR 18-19), it appears ALJ Woode was actually analyzing the Paragraph B criteria of Listings 12.03 and 12.04 (one “extreme limitation” — 26 — or two “marked limitations” in a claimant’s functional ability to: (1) understand, remember, 27 or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself) based upon the Court’s comparison of Listing 12.03, — 28 — 1 i. Dr. Bohn 2 Plaintiff contends ALJ Woode failed to address Dr. Bohn’s opinion, rendering ALJ 3 Woode’s ultimate decision unsupported by substantial evidence. (Doc. No. 16 at 17-19, 4 31-32.) The Commissioner argues that Plaintiff ignores the new regulation’s requirement 5 that a medical opinion must describe what the claimant can still do despite their 6 impairments and Dr. Bohn’s report did not qualify as a medical opinion. Id. at 23-24. 7 A medical opinion is “a statement from a medical source about what [a claimant] 8 can still do despite [his] impairments and whether [he has] one or more impairment-related 9 limitations or restrictions” in his ability to perform physical or mental work activities. 20 10 C.F.R. § 416.913 (a)(2). To reject the un-contradicted opinion of an examining physician, 11 the ALJ must provide “clear and convincing reasons that are supported by substantial 12 evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). 13 Although an ALJ is not required to discuss every piece of evidence or address every issue, 14 he must explain why significant probative evidence has been rejected. Vincent v. Heckler, — 15 — 739 F.2d 1393 , 1394–95 (9th Cir. 1984). 16 Here, the Court’s review of Dr. Bohn’s evaluation and report reveals Dr. Bohn did 17 make statements about what Plaintiff could do in light of his impairments and whether 18 Plaintiff had an impairment-related limitation in his ability to perform work activities. See 19 AR 661-662. Specifically, Dr. Bohn’s report opined that “When considering the data, it 20 can be seen that Matthew will have great difficulty with any kind of education or work 21 opportunities.” (AR 662.) In addressing Plaintiff’s executive function and attention, Dr. 22 Bohn’s report also stated “Thus, it seems likely to conclude that [Plaintiff] will have 23 notable difficulty with problem solving in his daily life, even with others helping him.” 24 (AR 661.) In addition to summarizing Plaintiff’s test results, Dr. Bohn’s report also 25 recommended Plaintiff’s parents research whether Plaintiff would be considered for 26 programs such as “The Regional Center”, which provides support for persons with 27 developmental disabilities. Id. Dr. Bohn’s report also recommended that Plaintiff’s 28 parents should pursue SSDI if Plaintiff was aged out of support programs, due to Plaintiff 1 having “limited skills for productive work and severe mental health conditions.” Id. 2 Despite the Commissioner’s characterization that Dr. Bohn’s report was not a medical 3 opinion, a conservative review of Dr. Bohn’s report demonstrates it would qualify within 4 the definition of a medical opinion. Thus, ALJ Woode failed to address the persuasiveness 5 of Dr. Bohn’s opinion. 6 However, even though ALJ Woode failed to address the persuasiveness of Dr. 7 Bohn’s medical opinion, considering the record as a whole, ALJ Woode’s error was 8 harmless because ALJ Woode did cite to and address the substance of Dr. Bohn’s 9 evaluation and medical opinion multiple times when determining Plaintiff’s RFC. See AR 10 18-24. If the ALJ ignores a medical opinion, we review that omission for harmless error. 11 Nadon v. Saul, 851 F. App'x 24 , 26 (9th Cir. 2021) citing to Marsh v. Colvin, 792 F.3d 12 1170 , 1172–73 (9th Cir. 2015); see also Burch, 400 F.3d at 679 (holding that the agency’s 13 conclusion will not be reversed for errors that are harmless). An error is harmless if it “was 14 clear from the record that an ALJ’s error was inconsequential to the ultimate non-disability 15 determination.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1169 (9th Cir. 16 2008). “In reviewing the agency’s determination, a reviewing court considers the evidence 17 in its entirety, weighing both the evidence that supports and that detracts from the ALJ’s 18 conclusion.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (citation omitted). 19 Specifically, ALJ Woode cited Plaintiff’s results on the Wechsler Adult Intelligence 20 Scale, 4th edition, which determined that Plaintiff had average verbal comprehension, 21 processing speed, perceptual reasoning, borderline working memory, and an IQ of seventy22 five. (AR 23.) ALJ Woode also cited Plaintiff’s performance on the Wechsler Memory 23 Scale, 4th edition, where Plaintiff performed poorly on memory tests and demonstrated 24 poor visual working memory abilities. (Id.) ALJ Woode referenced the Woodcock-Johnson 25 Tests of Achievement 4th edition, where Plaintiff showed “extremely limited ability to 26 solve academic problems and quickly perform simple reading, math, and writing tasks.” 27 (Id.) Additionally, ALJ Woode acknowledged Dr. Bohn’s determination that Plaintiff had 28 a schizoaffective disorder and mild intellectual disability in his evaluation of Plaintiff’s 1 RFC. (AR 23-24.) Not only did ALJ Woode cite to Dr. Bohn’s evaluation, but ALJ Woode 2 also accommodated Plaintiff’s cognitive and mental capabilities in the residual functional 3 capacity. (AR 25.) ALJ Woode’s RFC assessment limiting Plaintiff to simple and routine 4 tasks in low-stress environments accounted for Dr. Bohn’s findings articulating Plaintiff 5 has “borderline working memory and full-scale IQ scores, with a full-scale IQ score of 6 seventy-five.” (AR 23; 728-29.) ALJ Woode further addressed Dr. Bohn’s evaluation by 7 stating, “[n]otably, secondary to available neuropsychological testing indicative of 8 memory and cognitive deficits, I have further limited the claimant to one-to-two step tasks 9 which can be taught by demonstration.” (AR 27.) 10 Based upon the above, the Court finds that ALJ Woode’s failure to address the 11 persuasiveness of Dr. Bohn’s evaluation did not amount to more than harmless error and 12 the Court may not reverse an ALJ’s decision on account of a harmless error. Stout, 454 13 F.3d at 1055-56. Accordingly, the Court finds no valid ground to vacate ALJ Woode’s 14 ruling on this issue. 15 ii. Dr. Giglio 16 Plaintiff next contends that the ALJ improperly rejected Dr. Giglio’s opinion even 17 though Dr. Giglio’s opinion was well-supported and consistent with the record. (Doc. No. 18 16, 26-31, 32-33.) The Commissioner contends ALJ Woode properly found Dr. Giglio’s 19 opinion to be unpersuasive because it was unsupported and not consistent with the 20 longitudinal record. Id. at 26-31. 21 The applicable regulations provide that an ALJ need “not defer or give any specific 22 evidentiary weight, including controlling weight to any medical opinions, or prior 23 administrative finding(s), including those from your medical sources.” 20 C.F.R. § 24 404.1520c(a). Instead, the ALJ must evaluate medical opinions based on their 25 persuasiveness. Id. To determine a medical opinion’s persuasiveness, an ALJ must 26 consider the following factors: “supportability, consistency, treatment relationship, 27 specialization, and ‘other factors’” §§ 404.1520c(b), (c)(1)-(5); 416.920c(b), (c)(1)-(5). 28 The ALJ’s duty to explain his findings varies based on each factor. §§ 404.1520c(a)-(b); 1 416.920c(a)-(b). Importantly, the ALJ must explain how he considered the most important 2 factors of supportability and consistency. § 404.920c(b)(2)-(3). Supportability is the 3 “extent to which a medical source supports the medical opinion by explaining the ‘relevant 4 . . . objective medical evidence.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) 5 (citing § 404.1520c(c)(1)). Consistency is the “extent to which a medical opinion is 6 ‘consistent . . . with the evidence from other medical sources and nonmedical sources in 7 the claim.’” Id. (citing § 404.1520c(c)(2)). 8 Further, “the findings of the Commissioner of Social Security as to any fact, if 9 supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405 (g); Thomas v. 10 Barnhart, 278 F.3d 948 , 954 (9th Cir. 2002) (“Substantial evidence is relevant evidence 11 which, considering the record as a whole, a reasonable person might accept as adequate to 12 support a conclusion”). 13 Here, the Court finds ALJ Woode properly rejected Dr. Giglio’s opinion because 14 ALJ Woode assessed the supportability and consistency of Dr. Giglio’s medical opinion. 15 See Valentine, 574 F.3d at 692 ; see also Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 16 2015). Importantly, in the context of social security appeals cases, substantial equates to a 17 “more than a mere scintilla but less than a preponderance.” See Sandgathe, 108 F.3d at 18 980. “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such 19 evidentiary sufficiency [in judicial review of social security decisions] is not high”. 20 Biestek, 139 S.Ct. at 1154 . 21 Regarding supportability, ALJ Woode concluded Dr. Giglio’s opinion was 22 unsupported by the record, including Dr. Giglio’s own opinions. (AR 26.) Specifically, 23 ALJ Woode addressed the deficiencies between Dr. Giglio’s evaluation of Plaintiff on July 24 10, 2019 and his conclusion that Plaintiff had “fair to poor” ability to function in all areas 25 of work. (AR 26.) ALJ Woode pointed to the fact that Dr. Giglio’s opinion stated Plaintiff 26 exhibited “mildly impaired concentration, moderately impaired recent and remote 27 memory, and borderline intelligence” yet concluded that Plaintiff had “fair to poor” 28 function. (Id.) ALJ Woode noted that Dr. Giglio’s “fair to poor” conclusion was 1 unsupported by the “mild to moderate mental status finding summary” included in the 2 medical statement itself. (Id.) ALJ Woode also noted that Dr. Giglio’s opinion was drafted 3 just six months after the claimant first sought mental health treatment and might not 4 accurately reflect Plaintiff’s current functioning as Dr. Giglio had opined. (AR 26.) 5 Finally, ALJ Woode also noted that Dr. Rudmann addressed Dr. Giglio’s medical 6 statements and stated Dr. Giglio’s opinions were unpersuasive due to lack of corroborating 7 records. (AR 26-27.) Therefore, ALJ Woode properly rejected Dr. Giglio’s opinion under 8 the supportability factor. 9 Regarding consistency, ALJ Woode expressly identified inconsistencies between 10 Dr. Giglio’s ultimate conclusions on Plaintiff’s health and the objective medical records 11 informing Dr. Giglio’s findings. (AR 26.) Most notably, Dr. Giglio’s assessment that 12 Plaintiff “had fair to poor ability to function in all areas of work, including simple and 13 complex task completion and dealing with others” did not align with Dr. Giglio’s mild to 14 moderate impairments with concentration and memory, respectively. (AR 26; 555, 557.) 15 Further, Dr. Giglio’s opinion was inconsistent with the record because Plaintiff’s medical 16 history in the record included “significant improvement with medication and 17 psychotherapy.” (AR 26; 535, 583); See also Allen v. Kijakazi, No. 22-35056, 2023 U.S. 18 App. LEXIS 7670, at *2 (9th Cir. Mar. 31, 2023) (holding that an ALJ can deem medical 19 opinions unpersuasive if they are “not consistent with the longitudinal evidence of record”). 20 Furthermore, ALJ Woode also considered Plaintiff’s daily living routines, such as meal 21 preparation and socialization, and concluded Plaintiff’s “activities inconsistent with 22 disabling symptoms. (AR 25; 380-81, 383-84, 576.) ALJ Woode also considered opinions 23 from Drs. Rudmann and Hawkins who found Plaintiff could still perform simple and 24 routine tasks in non-public settings. (Id.) 25 ALJ Woode properly discounted Dr. Giglio’s ultimate conclusions because he went 26 through the record and considered the opinions of Drs. Giglio, Rudmann, Hawkins, and 27 Plaintiff’s daily activities. See Ferreira v. Kijakazi, No. 22-15906, 2023 U.S. App. LEXIS 28 7822, at *1 (9th Cir. Apr. 3, 2023) (holding that an ALJ’s rejection of a treating physician’s 1 testimony was supported by substantial evidence because the ALJ “went through the 2 entirety of the record and identified inconsistencies not just between the treating 3 [physician’s] medical opinion and [plaintiff’s] daily activities, but also in various medical 4 opinions presented to the ALJ”); see also Burch, 400 F.3d at 679 (“[w]here evidence is 5 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 6 upheld”). 7 Given the above, the Court concludes ALJ Woode properly considered and rejected 8 Dr. Giglio’s opinion. The Court finds no valid grounds to overturn ALJ Woode’s ruling 9 on this issue. 10 c. ALJ Woode’s RFC Assessment 11 Plaintiff next alleges ALJ Woode’s RFC finding does not adequately account for 12 Plaintiff’s intellectual disability. (Doc. No. 16, 33-34, 36.) When considering a claimant’s 13 RFC, an ALJ must consider “all medically determinable impairments including [] 14 medically determinable impairments that are not ‘severe.’” 20 C.F.R. § 404.1545 (a)(2). A 15 condition is not considered severe if “it does not significantly limit [a claimant’s] physical 16 or mental ability to do basic work activities.” 20 C.F.R. § 404.1522 . When considering a 17 claimant’s mental abilities, an ALJ must also account for a claimant’s limitations in 18 “understanding, remembering, and carrying out instructions” that “may reduce [one’s] 19 ability to do past work.” 20 C.F.R. § 404.1545 (c). Concurrently, an ALJ is not obligated 20 to include mild mental limitations in the RFC determination. See Woods, 32 F.4th at 794 21 (affirming ALJ’s decision where ALJ found mild limitations in the claimant’s mental 22 abilities and excluded reduced mental abilities in the claimant’s RFC assessment). 23 Moreover, between steps three and four of the ALJ’s analysis of the claimant’s 24 medical impairments, the ALJ must determine the claimant’s residual functional capacity 25 (“RFC”). 20 C.F.R. § 416.920 (a)(4). At step four, the RFC is used to determine whether 26 a person can complete relevant past work. Id. § 416.920(a)(4)(iv). However, if the 27 claimant cannot do relevant past work, the RFC is used again at step five—along with the 28 claimant’s age, education, and work experience—to determine whether the claimant “can 1 make an adjustment to other work.” Id. § 416.920(a)(4)(iv)-(v). If the claimant can do 2 other work, the claimant is found to be not disabled. See id. § 416.920(a)(v). Throughout 3 this sequence, the ALJ must assess a claimant’s RFC “based on all the relevant evidence 4 in [the] case record.” Id. § 416.945(a)(1). 5 Further, the ALJ must consider both the medical evidence and “descriptions and 6 observations of [the claimant’s] limitations from [the claimant’s] impairment(s), including 7 limitations that result from [the claimant’s] symptoms, such as pain, provided by” the 8 claimant, family, friends, and other people. Id. § 416.945(a)(3); see also Garrison v. 9 Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (holding the ALJ must take the claimant’s 10 subjective experiences of pain” into account when determining the RFC). However, the 11 ALJ, rather than the Plaintiff’s treating physician, “is considered the final arbiter in 12 resolving ambiguities in the medical evidence; thus, his conclusions are subject to 13 substantial deference.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Batson 14 v. Commissioner of Social Security, 359 F.3d 1190, 1193 (9th Cir. 2004); see also Andrews, — 15 — 53 F.3d at 1039-40 (holding “even if the evidence reasonably could be construed in a 16 manner more favorable to [Plaintiff], the ALJ’s interpretation is rational and must be 17 upheld”). 18 The Court finds ALJ Woode adequately accounted for Plaintiff’s intellectual 19 disability. Here, ALJ Woode considered Plaintiff’s severe impairments of schizoaffective 20 disorder, major depressive disorder, mild intellectual disability. (AR 17.) ALJ Woode 21 accounted for Plaintiff’s cognitive difficulties by citing Plaintiff’s standardized test scores 22 and visits to medical providers such as Drs. Bohn and Giglio. (AR 18-26.) 23 At step four of the analysis, ALJ Woode concluded Plaintiff did not have past 24 relevant work, therefore, it was proper for ALJ Woode to move to step five in determining 25 Plaintiff’s RFC. (AR 27.) The record supported this conclusion, which showed Plaintiff 26 worked as a waterpark attendant for about two months. (AR 355.) 27 At step five of the analysis, ALJ Woode evaluated Plaintiff’s “age, education, and 28 work experience in conjunction with Plaintiff’s RFC. (AR 27-28.) Here, Dr. Bohn’s 1 intellectual functioning assessment conveyed Plaintiff’s “notable difficulty with problem2 solving in his daily life, even with others helping him.” (AR 674.) Concurrently, ALJ 3 Woode considered Plaintiff’s ability to independently engage in personal tasks such as 4 “grooming and simple household tasks” and leisure activities such as “playing video 5 games” and attending church, which may require decision-making in public settings. (AR 6 20; 380-85, 535, 575.) ALJ Woode also relied on the opinions of Drs. Rudmann and 7 Hawkins which concluded Plaintiff “remained capable of performing simple routine tasks 8 in non-public settings. (AR 26.) ALJ Woode’s RFC accommodated Dr. Bohn’s opinion by 9 limiting Plaintiff to “simple routine tasks in low-stress work environments without set 10 production standards and with limited interpersonal interactions, including no public 11 contact.” (AR 27.) ALJ Woode’s RFC assessment limiting Plaintiff to simple and routine 12 tasks in low-stress environments accounted for Dr. Bohn’s findings articulating Plaintiff 13 has “borderline working memory and full-scale IQ scores, with a full-scale IQ score of 14 seventy-five.” (AR 23; 728-29.) See Andrade v. Comm’r of Soc. Sec., 474 F. App’x 642 15 (9th Cir. 2012) (holding that an ALJ may translate a conclusion that a Plaintiff has a 16 borderline range of intellectual functioning into a restriction of simple and routine work); 17 see also Vasquez v. Astrue, No. CV 08-5305-OP, 2009 WL 3672519 , at *2 (C.D. Cal. Oct. 18 30, 2009). 19 Given the above, the Court finds that ALJ Woode’s RFC assessment of Plaintiff 20 adequately accounted for Plaintiff’s intellectual disability and is supported by substantial 21 evidence from the record. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) 22 (commenting “it is clear that it is the responsibility of the ALJ, not the claimant’s physician, 23 to determine residual functional capacity”). The Court does not find a valid ground to 24 overturn ALJ Woode’s ruling on this issue. 25 d. ALJ Woode’s Assessment of Plaintiff’s Noncompliance 26 Lastly, Plaintiff argues ALJ Woode improperly found instances of noncompliance 27 against Plaintiff without considering whether the noncompliance was a symptom of 28 Plaintiff’s mental impairments. (Doc. No. 16, 37-40, 42-43.) Notably, courts “will not 1 find an individual’s symptoms inconsistent with the evidence in the record on this basis 2 without considering possible reasons he or she may not comply with treatment or seek 3 treatment consistent with the degree of his or her complaints.” SSR 16-3p. When evaluating 4 a claimant’s subjective symptoms, courts, “[i]n addition to using all of the evidence to 5 evaluate the intensity, persistence, and limiting effects of an individual’s symptoms, 6 [courts] will also use the factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3).” — 7 — Id. These factors include daily activities, intensity of pain and the location of pain, factors 8 contributing to the symptoms, effectiveness and side effects of medications, non9 medication treatments, steps the individual has taken to mitigate pain, and any other factors 10 concerning an individual’s functional limitations and restrictions due to pain or other 11 symptoms. See id. Further, where noncompliance seems to be at issue in the record, Courts 12 will not “find an individual’s symptoms inconsistent with the evidence in the record on this 13 basis without considering possible reasons he or she may not comply with treatment or 14 seek treatment consistent with the degree of his or her complaints.” Id. An individual may 15 have structured his or her activities to minimize symptoms to a tolerable level by avoiding 16 physical activities or mental stressors that aggravate his or her symptoms. 17 Statutory considerations for non-compliance include (1) a claimant receiving 18 “periodic treatment or evaluation” due to their symptoms plateauing; (2) the treatment’s 19 side effects are worse than the symptoms; (3) inaccessible or unaffordable treatments; (4) 20 no further treatments seem to benefit the claimant; (5) the claimant has symptoms that are 21 not severe enough or can be remedied with non-prescription medications; (6) the claimant’s 22 religious beliefs conflict with following a treatment plan; (7) the claimant lacks 23 understanding of “appropriate treatment for” or consistently following a treatment; (8) the 24 claimant, due to their mental impairment, lacks awareness of the presence of a disorder; 25 and (9) the claimant, who is a child, feels the medication interferes with their activities 26 typical of other children their age. Id. 27 However, if none of the statutory reasons for noncompliance apply, courts “will 28 review the case record to determine whether there are explanations for inconsistencies in 1 the individual’s statements about symptoms and their effects and whether the evidence of 2 record supports any of the individual’s statements at the time he or she made them.” Id; 3 see also Winter v. Berryhill, 711 F. App'x 847, 851 (9th Cir. 2017) (noting that 4 noncompliance with medication will not undermine a Plaintiff’s claim of disability if the 5 noncompliance is consistent with the Plaintiff’s disability and the Plaintiff consistently 6 took medications and sought mental health treatments for their disorders). 7 The Court finds ALJ Woode properly assessed Plaintiff’s noncompliance with his 8 medication. Regarding the statutory factors, the first factor does not apply, because ALJ 9 Woode explicitly noted in his Notice of Decision that Plaintiff “acknowledged that 10 previous medication had worked well for symptom control,” but, Plaintiff “stopped taking 11 these medications at his own initiative.” (AR 22-23, 25.) The record supports ALJ Woode’s 12 finding. (AR 508; 571-72, 583, 598-99.) The second factor does not apply because ALJ 13 Woode mentioned Plaintiff’s improvement over time, a conclusion supported by the 14 record. (Id.) Although the record supports the medication “sedat[ing]” Plaintiff, it also 15 supports Zyprexa improving his sleep and Risperdal mitigating his hallucinations and 16 suicidal ideations, therefore, the alleged side effects do not seem worse than the alleged 17 symptoms faced. (AR 22; 343; 535, 583.) The third factor does not apply because ALJ 18 Woode and the record illustrate Plaintiff’s frequent visits to treatment facilities and access 19 to medication. (AR 21-26; 555, 570-76, 660-62.) The fourth factor does not apply because 20 Plaintiff benefited from the treatment, which ALJ Woode recognized and the record 21 supports. (Id.) The fifth factor does not apply because both the record and ALJ reported 22 Plaintiff’s severe impairments. (AR 17-18; 570-78.) The sixth factor is not at issue, because 23 neither the record nor ALJ Woode’s Notice of Decision references Plaintiff’s religious 24 beliefs. The seventh and eighth factors do not apply because the record reflects that Plaintiff 25 seemed to understand the treatment’s benefits and that he had a disorder. (AR 23-25; 48826 492, 570-78.) Lastly, the ninth factor does not apply because Plaintiff is twenty-two years 27 old. (AR 247-48.) Therefore, the statutory factors did not apply, and the Court will look to 28 other reasons explaining inconsistencies in Plaintiff’s statements about his symptoms and 1 the effects. 2 Because the statutory factors do not apply, the Court will review the record to 3 determine potential explanations for inconsistencies in Plaintiff’s statements about his 4 symptoms and side effects and whether the record supports Plaintiff’s statements. See SSR 5 16-3p. Importantly, Plaintiff’s noncompliance must be attributable to Plaintiff’s medical 6 ailment and not preference. See Molina, 674 F.3d at 1114; see also Bunnell v. Sullivan, 947 7 F.2d 341 , 346-47 (9th Cir. 1991) (holding “unexplained, or inadequately explained, failure 8 to seek treatment or follow a prescribed course of treatment” is a clear and convincing 9 reason to undermine a plaintiff’s reported subjective symptoms). Here, ALJ Woode’s 10 Notice of Decision and the record support the conclusion that Plaintiff consistently ceased 11 taking his medications “at his own initiative.” (AR 25; 725, 735, 738, 741.) The Court 12 finds Plaintiff’s reason for ceasing beneficial treatment uncompelling, because the record 13 supports Plaintiff’s ability to comply with and want treatment. (AR 249, 342,351, 488.) 14 ALJ Woode also noted this conclusion in his decision. (AR 25.) 15 However, the Court recognizes the record also supports Plaintiff’s noncompliance 16 being attributable to Plaintiff’s subjective claim that the medications “sedated him” and 17 Plaintiff being unsure the medication helped. (AR 249, 601, 725, 735, 738, 741.) 18 Conversely, Plaintiff reported he “completely stopped h[e]aring these voices after starting 19 Risperdal,” and being “able to concentrate at work,” Plaintiff’s subjective comments seem 20 to indicate he benefited from the medication. (AR 535, 537.) Plaintiff also “respond[ed] 21 well to Risperdal and Lithium” and said Lithium “helps with SI [Suicidal Ideation] and 22 feelings of depression.” (AR 537.) In his Notice of Decision, ALJ Woode recognized 23 Plaintiff’s derived benefit from the medication. (AR 23, 25.) Because Plaintiff derived 24 benefits from the medication that helped him return to stabilized levels, in the context of 25 social security benefits, Plaintiff does not possess disabling symptoms. See Warre v. 26 Comm’r of the SSA, 439 F.3d 1001, 1006 (9th Cir. 2006) (noting impairments that can be 27 controlled effectively with medication are not disabling to determine eligibility for SSI 28 benefits); see also 20 C.F.R. §§ 404 .1520a(c)(1), 416.920a(c)(1) (evidence of a medical 1 treatment helping a Plaintiff return to their level of functioning before developing 2 symptoms can undermine a claim of disability). 3 Further, Defendant contended Plaintiff failed to demonstrate the causal relationship 4 between Plaintiff’s noncompliance with treatment and medication and Plaintiff’s 5 underlying mental impairment. (Doc. No. 16, 41.) The Court finds this argument 6 persuasive, because Plaintiff failed to cite medical evidence in the record demonstrating 7 Plaintiff’s noncompliance with medication was directly attributable to Plaintiff’s mental 8 impairments, and not Plaintiff’s personal preferences. See Molina, 674 F.3d at 1114 9 (holding that the Plaintiff must provide medical evidence showing that noncompliance was 10 attributable to her mental impairment); see also Presley-Carrillo v. Berryhill, 692 F.App’x. 11 941, 945 (9th Cir. 2017). 12 Moreover, Plaintiff erroneously cited two cases unrelated to Plaintiff’s current 13 situation. In particular, Plaintiff cited Conkling v. Berryhill, 2017 U.S. Dist. LEXIS 14 132741, at *35 (C.D. Cal. Aug. 17, 2017) and Edmond v. Berryhill, No. CV 15-8256-KK, — 15 — 2017 U.S. Dist. LEXIS 104470 , at 20 (C.D. Cal. July 6, 2017). (Doc. No. 16, 39.) The 16 cases Plaintiff cited are not analogous to Plaintiff’s situation here, because, in those cases, 17 the plaintiffs offered compelling reasons for noncompliance, like scheduling conflicts and 18 lack of insurance, respectively, which align with statutory reason three (i.e., inaccessible 19 or unaffordable treatments) of SSR 16-3p. Here, Plaintiff ceased medication on his own 20 initiative and did not provide any other compelling reasons. (AR 25.) 21 The Court finds ALJ Woode properly assessed Plaintiff’s noncompliance with 22 medication. Plaintiff failed to offer specific medical evidence showing the casual 23 relationship between his mental impairments and noncompliance with medication. See 24 Molina, 674 F.3d at 1114. ALJ Woode properly analyzed Plaintiff’s propensity for ceasing 25 beneficial medications that reduced symptoms. Accordingly, the Court finds no valid 26 grounds to disturb ALJ Woode’s ruling as to this issue. 27 / / / 28 / / / l VI. CONCLUSION 2 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the 3 Parties’ Joint Motion for Judicial Review. Specifically, the Court DENIES □□□□□□□□□□□ 4 ||Motion for Summary Judgment and GRANTS Defendant’s Motion for Summary 5 || Judgment. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant 6 || and close this case accordingly. 7 IT IS SO ORDERED. 8 || DATED: September 19, 2023 LM 10 Hon. William V. Gallo United States Magistrate Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —