1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ALLEN STROSKI, No. 2:18-cv-0526-KJN 12 Plaintiff, ORDER ON PARTIES’ CROSS MOTIONS

FOR SUMMARY JUDGMENT

13 v. (ECF Nos. 16, 22) 14 COMMISSIONER OF SOCIAL

SECURITY,

15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Disability Insurance Benefits under Title II of the Social Security 19 Act.1 In his summary judgment motion, Plaintiff contends the Administrative Law Judge erred in 20 failing to articulate (A) specific and legitimate reasons for discrediting “persuasive opinion 21 evidence” regarding Plaintiff’s mental limitations; and (B) clear and convincing reasons for 22 discrediting Plaintiff’s own statements of these limitations. The Commissioner opposed, and 23 filed a cross–motion for summary judgment. 24 After considering the parties’ written briefing, the record, and the applicable law, the 25 Court DENIES Plaintiff’s motion for summary judgment, GRANTS the Commissioner’s cross- 26 motion for summary judgment, and AFFIRMS the final decision of the Commissioner. 27 1 This action was referred to the undersigned pursuant to L.R. 302(c)(15), and both parties 28 consented to proceed before a United States Magistrate Judge for all purposes. (ECF Nos. 7, 8.) 1 I. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS2

2 Plaintiff was 50 years old when in early 2012 he stopped working various labor jobs.

3 (Administrative Transcri p t (“AT”) 24, 48–51.) On November 18, 2013, Plaintiff applied for

4 Disability Insurance Benefits (“DIB”), contending he was disabled due to his anxiety, depression,

5 and a general inability to work on a schedule or maintain regular attendance. (AT 84.) Plaintiff’s

6 application was denied initially and again upon reconsideration. (AT 79–118.) Plaintiff, aided by

7 an attorney, sought review of those denials with an Administrative Law Judge (“ALJ”). (AT 8 133.) At an August 9, 2016 hearing, Plaintiff testified about his condition, and the ALJ heard 9 testimony from a vocational expert (“VE”) regarding Plaintiff’s ability to perform various 10 occupations. (AT 43–77.) 11 On September 26, 2016, the ALJ issued a decision determining that Plaintiff was not 12 disabled from his onset date through his date last insured. (AT 26.) As an initial matter, the ALJ 13 determined that Plaintiff met the insured status requirements of the Act for purposes of DIB for 14 the relevant period. (AT 26.) At step one, the ALJ concluded that Plaintiff had not engaged in 15 substantial gainful activity. (Id.) At step two, the ALJ determined Plaintiff had the following 16 impairments: paroxysmal atrial fibrillation, hypothyroidism, symptoms consistent with

17 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to 18 engage in any substantial gainful activity” due to “a medically determinable physical or mental 19 impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571—76; Bowen v. Yuckert, 482 U.S. 20 137, 140—42 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the 21 claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step 22 three. If not, then a finding of not disabled is appropriate. 23 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the 24 claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing past relevant work? If so, the 25 claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any 26 other work? If so, the claimant is not disabled. If not, the claimant is disabled. 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The 28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 1 fibromyalgia, depression and anxiety. (AT 26.) However, the ALJ determined at step three that

2 these impairments did not meet or medically equal the severity of an impairment listed in

3 Appendix 1. (AT 26–27 ) (citing 20 C.F.R. Part 404, Subpart P, Appendix 1). Based on this

4 information, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform light

5 work, within certain parameters. (AT 29.) Specifically regarding Plaintiff’s mental impairments

6 (relevant to these cross–motions), the RFC limited him as follows:

7 He is able to perform simple , repetitive, one to two step job instructions. He is 8 able to perform technical, complex job instructions but with supervision. He is able to maintain attention, concentration as it pertains to the simple, one to two– 9 step job instructions and to the technical job instructions with supervision. He should avoid dealing with a lot of changes in the routine work setting. He is 10 limited to occasional interaction with the public and coworkers, but on a frequent basis with supervisors. He should avoid an environment that is very noisy. 11

12 (Id.) In reaching this conclusion, the ALJ considered those of Plaintiff’s intense, persistent, and 13 limiting symptoms that were consistent with the medical evidence and opinions of Plaintiff’s 14 physicians. (Id.) This evidence included the reports and opinions of treating physicians Dr. Kline 15 and Dr. Nguyen, as well as the opinions and records from multiple examining and non–examining 16 physicians. (AT 29–35.) In so synthesizing the RFC, the ALJ (1) discounted Dr. Kline’s 17 assessment that Plaintiff’s ability to maintain a schedule and work attendance was “poor”; (2) 18 appeared to discount Dr. Nyugen’s assessment that Plaintiff’s “anxiety would impair [his] 19 concentration”; (3) discounted one of Plaintiff’s Wechsler Memory Scale–IV tests, scoring 20 Plaintiff memory as “extremely low,” as conducted by an examining physician (Dr. Bowerman); 21 and (4) discounted certain RFC findings from two agency–consultative physicians (Drs. Barron 22 and Covey). (Id.) The ALJ also discounted Plaintiff’s testimony as to his symptoms. (Id.) The 23 ALJ concluded at step four that Plaintiff was unable to perform his past work, but had acquired 24 skills from past jobs that allowed him to perform many other occupations in the national economy 25 (at step five). (AT 35–36.) Thus, the Commissioner determined that Plaintiff was not disabled. 26 (Id.) 27 On January 5, 2018, the Appeals Council denied Plaintiff’s request for review. (AT 1–6.) 28 Plaintiff then timely filed this action requesting judicial review of the Commissioner’s final 1 decision; the parties filed cross–motions for summary judgment. (ECF Nos. 1, 16, 22.)

2 II. LEGAL STANDARD

3 The Court review s the Commissioner’s decision de novo, and should reverse “only if the

4 ALJ's decision was not supported by substantial evidence in the record as a whole or if the ALJ

5 applied the wrong legal standard.” Buck v. Berryhill, 869 F. 3d 1040, 1048 (9th Cir. 2017).

6 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such

7 relevant evidence as a reasonable m ind might accept as adequate to support a conclusion.” 8 Edlund v. Massanari, 253 F. 3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for 9 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. 10 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one 11 rational interpretation.” Tommasetti v. Astrue, 533 F. 3d 1035, 1038 (9th Cir. 2008). Further, the 12 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F. 3d at 1048. 13 III. ISSUES PRESENTED 14 Plaintiff contends the ALJ’s decision, as detailed above, is not supported by substantial 15 evidence. Plaintiff argues the ALJ erred in failing to articulate (A) specific and legitimate reasons 16 for discrediting “persuasive opinion evidence” regarding Plaintiff’s functional limitations––as 17 multiple physicians at all levels identified more–severe mental impairments ignored by the ALJ 18 upon synthesis of Plaintiff’s RFC; and (B) clear and convincing reasons for discrediting 19 Plaintiff’s own statements––as his testimony supported the fact that his mental impairments are 20 more severe than the ALJ credited. (ECF No. 16–1 at p. 17–32.) Plaintiff seeks a remand for 21 benefits or for further proceedings. (Id. at p. 32.) 22 The Commissioner disagrees, arguing that in light of the medical evidence and opinions of 23 other examining psychologists, the ALJ sufficiently detailed why he (properly) did not include 24 the more severe restrictions in the RFC, as well as why he (properly) found Plaintiff able to work 25 under the identified mental work restrictions. (ECF No. 22.) Thus, the Commissioner contends 26 the RFC (and decision as a whole) is supported by substantial evidence, which should result in the 27 ALJ’s opinion being affirmed. (Id.) 28 //// 1 IV. DISCUSSION

2 The weight given to medical opinions depends in part on whether they are proffered by

3 treating, examining, or n o n-examining professionals. Holohan v. Massanari, 246 F. 3d 1195,

4 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F. 3d 821, 830 (9th Cir. 1995). Generally speaking,

5 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an

6 examining physician’s opinion carries more weight than a non-examining physician’s opinion.

7 Holohan, 246 F. 3d at 1202. 8 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 9 considering its source, the Court considers whether (1) contradictory opinions are in the record; 10 and (2) clinical findings support the opinions. Lester, 81 F. 3d at 831. An ALJ may reject an 11 uncontradicted opinion of a treating or examining medical professional only for “clear and 12 convincing” reasons. Id. at 830. A contradicted opinion of a treating or examining professional 13 may be rejected for “specific and legitimate” reasons. Id. An ALJ provides specific and 14 legitimate reasons by “setting out a detailed and thorough summary of the facts and conflicting 15 clinical evidence, stating [an] interpretation thereof, and making findings.” Magallanes v. 16 Bowen, 881 F. 2d 747, 751 (9th Cir. 1989) (citation omitted).

17 A. The ALJ’s RFC determination is supported by substantial evidence, and the ALJ 18 provided specific and legitimate reasons for discounting evidence cited by Plaintiff. 19 Plaintiff contends the ALJ should have incorporated into the RFC certain mental 20 impairments, as discussed by four of Plaintiff’s physicians and shown by medical evidence. It is 21 for the ALJ to assess a claimant’s RFC. See 20 C.F.R. § 404.1546(c). 22 1. Dr Kline’s February 2014 Treating Opinion 23 Dr. Kline’s evaluation form indicated Plaintiff had depression and intense anxiety. (AT 24 436.) The Dr. checked “fair” for most medical source statements (understand, remember, and 25 carry out complex [and] simple instructions; maintain concentration, attention, and persistence; 26 complete a normal workday and workweek without interruption from psychologically based 27 symptoms; interact appropriately with public, supervisors, and co–workers; respond appropriately 28 to changes in work setting). (AT 438.) However, he checked “poor” for Plaintiff’s “ability to 1 perform activities within a schedule and maintain regular attendance.” (Id.) Dr. Kline’s opinion

2 was given “significant weight” by the ALJ, save for the one “poor” rating. (AT 33.)

3 Plaintiff argues th e ALJ is required to give weight to the subjective judgments of treating

4 physicians, and so rejected Dr. Kline’s “poor” finding erroneously. See Lester v. Chater, 81 F.3d

5 821, 828 (9th Cir. 1995); Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988) (The subjective

6 judgments of treating physicians are important, and properly play a part in their medical

7 evaluations). However, the ALJ ca n (and in fact must) resolve ambiguities in medical evidence, 8 so long as he provides specific and legitimate reasons for rejecting any portions. Tommasetti v. 9 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ stated he rejected this “poor” rating 10 because it was unsupported by Dr. Kline’s other findings, including that Plaintiff had “only 11 slightly distracted concentration but otherwise [had] unremarkable sensorium and cognitive 12 functioning.” (AT 33.) The ALJ’s decision was specific as to his reasoning, and was a legitimate 13 exercise of his duties to resolve ambiguities. Bray v. Comm'r., 554 F.3d 1219, 1228 (9th Cir. 14 2009) (“The ALJ need not accept the opinion of any physician, including a treating physician, if 15 that opinion is brief, conclusory, and inadequately supported by clinical findings.”). 16 2. Dr. Nguyen’s June 2016 Treating Evaluation 17 Dr. Nguyen’s evaluation form indicated Plaintiff’s “emotional factors” contributed to the 18 severity of his symptoms and functional limitations. (AT 982.) Dr. Nguyen further found 19 Plaintiff’s anxiety would impair his concentration and affect his ability to work at a regular job on 20 a sustained basis. (AT 985.) The ALJ accorded “partial weight” to Dr. Nguyen’s assessment, 21 and appears to have mainly concentrated on the physical impairment findings in doing so. (AT 22 33.) Plaintiff maintains (in a footnote) that the ALJ thus failed to offer specific and legitimate 23 reasons for leaving this portion of Dr. Nguyen’s opinion out of Plaintiff’s RFC. However, the 24 Court notes that the ALJ dedicated significant space in the decision to Plaintiff’s failure to follow 25 through with mental health treatment. (See AT 29–32.) To quote:

26 Turning to [Plaintiff’s] alleged mental impairments, he has not generally received 27 the type of treatment one would expect, given his allegations of disabling anxiety and depression. A review of the medical records revealed no actual formal mental 28 health treatment. 1 (AT 32.) The ALJ then compared specific reports where Plaintiff exhibited some symptoms to

2 other contradictory reports, tests, exams, and opinions. (See Id., citing AT 342, 344, 346, 349,

3 353, 435–37, 668.) Spec i fically for Dr. Nguyen, ALJ stated that the objective evidence “as

4 discussed above” did not support Dr. Nguyen’s opinion that absences from work were likely.

5 (Id.) This evidence is specific, and a legitimate exercise of authority. Bray, 554 F.3d at 1228.

6 3. Dr. Bowerman’s May 2014 Examination

7 Dr. Bowerman reported afte r her psychological evaluation of Plaintiff that Plaintiff was 8 moderately impaired in multiple functional abilities due to his “mood, anxiety, and amnestic 9 disorders.” (AT 513.) Relevant here, Dr. Bowerman reported that Plaintiff’s immediate, delayed, 10 and auditory memory scored “extremely low” on the Wechsler Memory Scale IV. (Id.) The ALJ 11 gave Dr. Bowerman’s opinion “significant weight,” save for the “little weight” given to her 12 assessment the WSM IV score. (AT 34–35.) The ALJ discounted Dr. Bowerman’s WSM–IV 13 findings because of its limited “snapshot” value. Plaintiff asserts this was error, as these scores 14 are generated in controlled settings, and Plaintiff’s score (an “extremely low” 47) would logically 15 be higher than if it were assessed in the work environment. However, the ALJ specifically cited 16 to another physician’s opinion where Plaintiff scored much higher on the same test (AT 445), and 17 both tests were given little weight due to their limited value. Case law is clear that the ALJ may 18 discount such tests, and the ALJ properly considered this test against the backdrop of the 19 remaining medical evidence. Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998) (a GAF 20 score is merely a rough estimate of an individual’s psychological, social, or occupational 21 functioning used to reflect an individual’s need for treatment.”). 22 4. The Reports of Two Agency Consultative Physicians in Plaintiff’s DIB Determination 23 Dr. Barrons examined Plaintiff in connection with his initial application for DIB. The 24 report found Plaintiff to be moderately limited in multiple mental categories (understand, 25 remember, and carry-out detailed instructions; maintain attention and concentration for extended 26 periods; perform activities within a schedule; maintain regular attendance, and be punctual within 27 customary tolerances; work in coordination with or in proximity to others without being 28 distracted by them; complete a normal work day and workweek without interruption from 1 psychologically based symptoms and to perform at a consistent pace without an unreasonable

2 number and length of rest periods; interact appropriately with the general public; accept

3 instructions and respond a ppropriately to criticism from supervisors; get along with coworkers or

4 peers without distracting them or exhibiting behavioral extremes; and respond appropriately to

5 changes in the work setting). (AT 93–94.) These findings were confirmed by Dr. Covey upon

6 the Commissioner’s reconsideration. (AT 113–14.)

7 The ALJ gave “some but no t great weight” to these findings, slightly discounting the 8 mental assessments when synthesizing Plaintiff’s RFC. (AT 33.) Notably, the ALJ actually 9 afforded Plaintiff more leeway than these two physicians allowed for –– because they did not take 10 his subjective complaints into account. (AT 33) Plaintiff argues that despite the ALJ’s statement 11 of greater leeway, the RFC “failed to reflect the specific work related limitations” (though 12 Plaintiff fails to specify which specific limitations he disagrees with). (See ECF No. 16 at p. 25– 13 26.) A review of the ALJ’s RFC indicates he adequately synthesized those limitations supported 14 by the medical evidence, and appropriately discounted the unsupported limitations. See Batson v. 15 Comm'r., 359 F.3d 1190, 1197 (9th Cir. 2004) (allowing for an ALJ to discount unsupported 16 opinions in formulating an RFC). 17 5. Plaintiff’s Miscellaneous Assertions 18 Finally, Plaintiff asserts throughout his brief that his anxiety, panic attacks, and depression 19 were generally more severe than the ALJ credited. For example, at one point Plaintiff details 20 thirty–four separate documents in the medical record where those issues arose. (See ECF No. 16 21 at pp. 18–24, citing to AT 338–39, 340–42, 342–44, 345–46, 348–50, 351–53, 354–55, 356–57, 22 368, 369–70, 372, 395–96, 399–400, 450, 451, 453–54, 457, 522, 591, 679, 703, 798, 801–02, 23 805, 851, 853-54, 864, 866, 868, 873, 880, 883–84, 898, 901, 952, and 963–64.) However, the 24 ALJ properly parsed Plaintiff’s claims, “generously” accounted for his subjective complaints in 25 formulating the RFC, and supported this synthesis by citing to a substantial number of medical 26 records and opinions in support. (See AT 29–35.) Thus, to the extent Plaintiff takes issue with 27 any other portion of the ALJ’s decision, the Court finds it supported by substantial evidence, and 28 defers to the ALJ’s resolution of the conflicts. Batson, 359 F.3d at 1198. 1 B. The ALJ properly compared Plaintiff’s subjective complaints with the evidence.

2 Under 20 C.F.R. 404.1529, subjective statements from a claimant must be consistent with

3 the medical and other ev i d ence in the record. The ALJ considers a claimant’s subjective

4 symptoms by first determining “whether the claimant has presented objective medical evidence of

5 an underlying impairment which could reasonably be expected to produce the pain or other

6 symptoms alleged.” Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017). Then the ALJ

7 evaluates “the intensity and persiste nce of symptoms.” Trevizo v. Berryhill, 871 F.3d 664, 679 8 at fn.5 (9th Cir. 2017). 9 Here, Plaintiff testified at the hearing:

10 It's a total package, sir. . . . I've got numerous mental issues, things going on . . . . 11 Okay, so and I'm convinced I'm over medicated and who knows what side effects that's creating. Dizzy for sure . . . . I've got the classic depression. Well who 12 wouldn't be. Scared, bored, nervous, anxiety, all those in a nice little package for you . . . . There's a lot, oh yeah, and then, and then I've also got one little other 13 problem, just a little mental problems, I'm having a hard time talking, so bear with me here. So, when I'm feeling really crappy, I'm super hypersensitivity, the doctor 14 called it, to noises like dogs barking, ringers, cars the buzzer, people talking too 15 loud, too many people talking, so yeah, so, you know, I can't go to restaurants, can't be in public places, can't go to family functions, I can't, I was starting to 16 wear ear plugs because it drives me crazy . . . . I think that's about it. 17 (AT 58–60; see also AT 65 (testifying that he had “constant” depression and anxiety, that he 18 “virtually can do nothing, almost nothing.”) The ALJ considered Plaintiff’s testimony, found his 19 impairments could “reasonably be expected to cause the alleged symptoms,” but found his 20 statements regarding the “intensity, persistence and limiting effects” of the symptoms out of line 21 with the medical and other evidence in the record. (AT 31.) Accepting that Traviso requires an 22 ALJ to state “specific, clear and convincing reasons” to reject a claimant’s testimony, 871 F.3d at 23 678, the undersigned finds this standard to be met. Rollins v. Massanari, 261 F.3d 853, 857 (9th 24 Cir. 2001) (while a claimant’s subjective statements about symptoms “cannot be rejected on the 25 sole ground that it is not fully corroborated by objective medical evidence, the medical evidence 26 is still a relevant factor”). As indicated in Section A above, the ALJ provided an extensive 27 analysis of the medical evidence regarding Plaintiff’s mental impairments, which the Court will 28 not repeat here. (See AT 32–34.) Further, the ALJ documented other reasons why the RFC 1 | should not include more severe restrictions, including the fact that Plaintiff often failed to comply 2 | with his physicians’ mental health treatment and failed to continue with other formal mental 3 | health treatment. See SSR 16-3P (S.S.A. Mar. 16, 2016) (“Medical sources may offer diagnoses, 4 | prognoses, and opinions as well as statements and medical reports about an individual's history, 5 || treatment, responses to treatment, prior work record, efforts to work, daily activities, and other 6 | information concerning the intensity, persistence, and limiting effects of an individual's 7 | symptoms.”). While Plaintiff points to other reasons why he ceased with these treatments, it is 8 | again for the ALJ to resolve such ambiguities in the record. See Lester, 81 F. 3d at 834 (clear and 9 | convincing evidence requires the ALJ to determine “what testimony is not credible and what 10 || evidence undermines the claimant's complaints.”). 11 | V. CONCLUSION 12 In sum, the Court finds that the ALJ’s decision was free from prejudicial legal error and 13 | supported by substantial evidence in the record as a whole. Accordingly, IT IS HEREBY 14 | ORDERED that: 15 1. Plaintiff's motion for summary judgment (ECF No. 16) is DENIED; 16 2. The Commissioner’s cross-motion for summary judgment (ECF No. 22) is 17 GRANTED; 18 3. The final decision of the Commissioner is AFFIRMED, and judgment is entered 19 for the Commissioner; and 20 4. The Clerk of Court shall close this case. 21 IT IS SO ORDERED. 22 | Dated: September 26, 2019 3 Aectl Aharon 24 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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