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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

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GARY ALLEN T.,1 ) NO. EDCV 19-1066-KS

11 Plaintiff, )

12 v. )

) 13 ) MEMORANDUM OPINION AND ORDER ANDREW M. SAUL, Commissioner 14 ) of Social Security, ) 15 Defendant. ) 16 _________________________________ )

17 18 INTRODUCTION 19 20 Plaintiff filed a Complaint on June 11, 2019, seeking review of the denial of his 21 application for Supplemental Security Income (“SSI”) pursuant to Title XVI of the Social 22 Security Act. (Dkt. No. 1.) On May 22, 2020, the parties filed a Joint Stipulation. (Dkt. No. 23 17 (“Joint Stip.”).) Plaintiff seeks an order reversing the Commissioner’s decision with an 24 award of disability benefits or with a remand for further proceedings. (Joint Stip. at 39.) The 25 26 27 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the 28 Judicial Conference of the United States. 1 Commissioner requests that the ALJ’s decision be affirmed or, in the alternative, that the 2 matter be remanded for further administrative proceedings. (Id. at 39-40.) 3 4 On June 22, 2020, United States Magistrate Judge Karen L. Stevenson issued a Report 5 and Recommendation (Dkt. No. 19), findings and analysis of which are set forth below in the 6 body of this Memorandum Opinion and Order. On June 25, 2020, the parties consented, 7 pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate 8 Judge. (Dkt. Nos. 8, 20, 21.) In light of the parties’ consent, IT IS HEREBY ORDERED that 9 the Court’s June 22, 2020 Report and Recommendation is VACATED and the following 10 Memorandum Opinion and Order reflects the judgment of the Court. 11 12 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 13 14 On April 13, 2017, Plaintiff filed an application for SSI. (Administrative Record (“AR”) 15 18, 225-33.) Plaintiff alleged disability beginning on April 1, 2017 because of attention 16 deficient disorder, a mental impairment, dyslexia, and hernia repair surgery. (AR 106-07, 115- 17 16.)2 After the Commissioner denied Plaintiff’s application initially (AR 114) and on 18 reconsideration (AR 127), Plaintiff requested a hearing (AR 139-41). 19 20 At a hearing held on February 27, 2018, at which Plaintiff waived his right to counsel, 21 an Administrative Law Judge (“ALJ”) heard testimony from Plaintiff and a vocational expert 22 (“VE”). (AR 45-65.) At a supplemental hearing held on January 11, 2019, at which Plaintiff 23 appeared with counsel, the ALJ heard testimony from Plaintiff and a VE. (AR 66-105.) On 24 February 19, 2019, the ALJ issued an unfavorable decision denying Plaintiff’s application for 25 26 27 2 Plaintiff was 54 years old on his alleged disability onset date (AR 32) and thus met the agency’s 28 definition of a person closely approaching advanced age. See 20 C.F.R. § 416.963(d). 1 SSI. (AR 18-33.) On April 11, 2019, the Appeals Council denied Plaintiff’s request for 2 review. (AR 1-6.) 3 4 SUMMARY OF ADMINISTRATIVE DECISION 5 6 Applying the five-step sequential evaluation process, the ALJ made the following 7 findings. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 8 activity since his application date of April 13, 2017. (AR 20.) At step two, the ALJ found that 9 Plaintiff had the following severe impairments: “history of hernia repair; attention deficient 10 hyperactivity disorder (ADHD); borderline intellectual functioning (BIF); depressive disorder, 11 stimulant use disorder in remission and history of polysubstance abuse dependence.” (Id.) At 12 step three, the ALJ found that Plaintiff did not have an impairment or combination of 13 impairments that met or medically equaled the severity of any impairments listed in 20 C.F.R. 14 part 404, subpart P, appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (AR 21.) 15 The ALJ then determined that Plaintiff had the residual functional capacity to perform 16 “medium work” except with a limitation to “simple routine tasks” and with the possibility that 17 he “may experience off task behavior less than 10% of an 8-hour workday.” (AR 22.) At step 18 four, the ALJ found that Plaintiff had no past relevant work. (AR 32.) At step five, the ALJ 19 relied on the VE’s testimony to find that Plaintiff could perform other work in the national 20 economy, in the occupations of hospital cleaner, laundry laborer, and industrial cleaner. (AR 21 33.) Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the 22 Social Security Act. (Id.) 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to determine 27 whether it is free from legal error and supported by substantial evidence in the record as a 28 whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than 1 a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 2 might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of Soc. Sec., 740 3 F.3d 519, 522-23 (9th Cir. 2014) (citations omitted). “Even when the evidence is susceptible 4 to more than one rational interpretation, we must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012) (citation omitted). 7 8 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 9 nonetheless must review the record as a whole, “weighing both the evidence that supports and 10 the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter v. Astrue, 504 11 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted); Desrosiers v. Sec’y of Health & Human 12 Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). “The ALJ is responsible for 13 determining credibility, resolving conflicts in medical testimony, and for resolving 14 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citation omitted). 15 16 The Court will uphold the Commissioner’s decision when the evidence is susceptible to 17 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 18 (citation omitted). However, the Court may review only the reasons stated by the ALJ in his 19 decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d 20 at 630 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). The Court will not 21 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error 22 is “‘inconsequential to the ultimate nondisability determination,’ or that, despite the legal error, 23 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 24 492 (9th Cir. 2015) (citations omitted). 25 \\\ 26 \\\ 27 \\ 28 \\\ 1 DISCUSSION 2 3 The parties raise three disputed issues: (1) whether the ALJ properly evaluated the 4 medical opinion evidence in determining Plaintiff’s residual functional capacity (“RFC”); (2) 5 whether the ALJ properly evaluated Plaintiff’s subjective statements and allegations; and 6 (3) whether the ALJ relied on a flawed hypothetical question to the vocational expert. (Joint 7 Stip. at 3.) 8 9 I. The ALJ’s Evaluation Of The Medical Opinion Evidence (Issue One). 10 11 In Issue One, Plaintiff claims that the ALJ failed to properly evaluate the medical 12 opinions or prior administrative findings of three physicians in assessing Plaintiff’s residual 13 functional capacity. (Joint Stip. at 3-12.) 14 15 A. Legal Standard. 16 17 “The ALJ is responsible for translating and incorporating clinical findings into a 18 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In 19 doing so, the ALJ must articulate a “substantive basis” for rejecting a medical opinion or 20 crediting one medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 21 2014); see also Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ cannot in 22 its decision totally ignore a treating doctor and his or her notes, without even mentioning 23 them”). 24 25 The Ninth Circuit previously has required that, in order to reject an uncontradicted 26 opinion of a treating or examining physician, the ALJ must provide “clear and convincing 27 reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 28 (9th Cir. 2017); Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014). Alternatively, 1 “[i]f a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an 2 ALJ may only reject it by providing specific and legitimate reasons that are supported by 3 substantial evidence.” Trevizo, 871 F.3d at 675 (emphasis added). The Ninth Circuit held that 4 an ALJ “can meet this burden by setting out a detailed and thorough summary of the facts and 5 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. 6 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 7 8 However, for disability applications filed on or after March 27, 2017, the Commissioner 9 revised the rules for the evaluation of medical evidence at the administrative level. See 10 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg 5844-01 (Jan. 11 18, 2017). Because Plaintiff filed his SSI application on April 13, 2017 (AR 18, 225-33), it is 12 subject to the revised rules. It remains to be seen whether the new regulations will 13 meaningfully change how the Ninth Circuit determines the adequacy of the an ALJ’s reasoning 14 and whether the Ninth Circuit will continue to require that an ALJ provide “clear and 15 convincing” or “specific and legitimate reasons” in the analysis of medical opinions, or some 16 variation of those standards. See Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, 17 at *3 (W.D. Wash. Apr. 9, 2020). Nevertheless, the Court is mindful that it must defer to the 18 new regulations, even where they conflict with prior judicial precedent, unless the prior 19 judicial construction “follows from the unambiguous terms of the statute and thus leaves no 20 room for agency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services, 21 545 U.S. 967, 981-82 (2005); see, e.g., Schisler v. Sullivan, 3 F.3d 563, 567-58 (2d Cir. 1993) 22 (“New regulations at variance with prior judicial precedents are upheld unless ‘they exceeded 23 the Secretary’s authority [or] are arbitrary and capricious.’”). 24 25 The revised rules provide that adjudicators for the Social Security Administration, 26 including ALJs, evaluate medical opinions according to the following factors: supportability; 27 consistency; relationship with the claimant; specialization; and other factors such as the 28 medical source’s familiarity with other evidence in the record or with disability program 1 requirements. 20 C.F.R. § 416.920c(c)(1)-(5). The most important of these factors are 2 supportability and consistency. 20 C.F.R. § 416.920c(b)(2). Supportability is the extent to 3 which an opinion or finding is supported by relevant objective medical evidence and the 4 medical source’s supporting explanations. 20 C.F.R. § 416.920c(c)(1). Consistency is the 5 extent to which an opinion or finding is consistent with evidence from other medical sources 6 and non-medical sources, including the claimants themselves. 20 C.F.R. §§ 416.920c(c)(2), 7 416.902(j)(1). The ALJ will articulate how she considered the most important factors of 8 supportability and consistency, but an explanation for the remaining factors is not required 9 except when deciding among differing yet equally persuasive opinions or findings on the same 10 issue. 20 C.F.R. § 416.920c(b). When a single medical source provides multiple opinions and 11 findings, the ALJ must articulate how they were considered in a single analysis. 20 C.F.R. 12 § 416.920c(b)(1). 13 14 B. Dr. Pequeno. 15 16 Dr. Pequeno, a psychiatrist, began treating Plaintiff in August 2017. (AR 554.) In July 17 2018, Dr. Pequeno completed a questionnaire assessing Plaintiff’s mental functioning based 18 on a diagnosis of major depression, recurrent and severe. (AR 554-58.) In pertinent part, Dr. 19 Pequeno wrote that Plaintiff: displayed several mental symptoms (AR 555); would have 20 several “marked” limitations in mental functioning in a full-time work environment (AR 557); 21 and would be absent from work more than three times per month because of his impairments 22 or treatment (AR 558). 23 24 The ALJ stated that Dr. Pequeno’s opinion was “not supported or consistent with the 25 medical evidence of record or [Plaintiff’s] reported activities of daily living” and “unsupported 26 by [Dr. Pequeno’s] own treatment notes.” (AR 31.) As examples, the ALJ cited evidence of 27 multiple examinations in which Plaintiff reported “feeling alright” or “feeling pretty good”; 28 multiple examinations that were “essentially within normal limits after [Plaintiff] was 1 prescribed proper medications”; and the absence of “independent observations or notes that 2 would support this extremely limiting opinion.” (Id.) Thus, the ALJ found Dr. Pequeno’s 3 opinion to be “less persuasive” than other opinions in the record. (Id.) 4 5 The ALJ’s evaluation of Dr. Pequeno’s opinion was free of legal error. The ALJ applied 6 the appropriate legal standard, as set out in 20 C.F.R. § 416.920c, by considering Dr. 7 Pequeno’s opinion under the listed factors and articulating the most important factors of 8 supportability and consistency. (AR 31.) Although Plaintiff contends that the ALJ’s 9 articulation was insufficient (Joint Stip. at 10), the Court disagrees. The ALJ’s reasoning was 10 traceable to the ALJ’s explicit discussion of the factors of supportability and consistency of 11 Dr. Pequeno’s opinion. (AR 31.) Further, although Plaintiff contends that the ALJ should 12 have accounted for other factors such as Dr. Pequeno’s treatment relationship and 13 specialization (Joint Stip. at 11), the revised rules required that the ALJ only consider those 14 factors, not articulate her rationale concerning them. See 20 C.F.R. § 416.920c(b)(2); see also 15 82 Fed. Reg. 5844-01, 5855 (“[T]he use of the term ‘consider’ is consistent with our current 16 rules, and it is easily distinguishable from the articulation requirements.”) (footnote omitted). 17 Thus, the ALJ’s articulation of her consideration of Dr. Pequeno’s opinion was not erroneous. 18 19 The ALJ’s evaluation of Dr. Pequeno’s opinion also was supported by substantial 20 evidence. As the ALJ found (AR 31), the record demonstrated that Plaintiff had a somewhat 21 normal level of activity (AR 248-50); that he stated he was “feeling alright” or “feeling pretty 22 good” (AR 509-10); that mental status examinations were within normal limits (AR 560-64, 23 568); and that treatment records contained no independent observations or notes that would 24 support Dr. Pequeno’s extremely limiting opinion. 25 26 Plaintiff’s challenges to evidence for each of these findings do not warrant a different 27 result. Although Plaintiff contends that evidence of his activities and own statements did not 28 undermine Dr. Pequeno’s opinion (Joint Stip. at 8, 9), the ALJ reasonably found that they did: 1 under the revised rules, Plaintiff’s activities (AR 248-50) and statements about feeling 2 “alright” or “pretty good” (AR 509-10) were evidence from a non-medical source (i.e., 3 Plaintiff himself) that was inconsistent with Dr. Pequeno’s opinion that Plaintiff frequently 4 experienced a low mood, anhedonia, poor concentration, and feelings of isolation (AR 556). 5 See 20 C.F.R. §§ 416.902(j)(1), 416.920c(c)(2). 6 7 Moreover, although Plaintiff disputes the ALJ’s finding that his examinations were 8 within normal limits, the evidence from the treatment record that Plaintiff cites for 9 abnormalities (Joint Stip. at 6 [citing AR 335, 425, 429, 507]) either pre-dated or coincided 10 with the beginning of Dr. Pequeno’s treatment, which was effective. After regular treatment 11 and medication, Plaintiff’s examinations repeatedly were within normal limits, consistent with 12 the ALJ’s finding. (AR 560-64, 568.) 13 14 Finally, although Plaintiff disputes the ALJ’s finding that Dr. Pequeno failed to make 15 independent observations, by arguing that psychiatric impairments are not readily amenable 16 to objective testing (Joint Stip. at 7), this argument does not properly account for the 17 Commissioner’s rules. The revised rules emphasize the need for “objective medical evidence” 18 of a mental impairment, such as signs of “psychological abnormalities that can be observed, 19 apart from [the claimant’s] statements.” 20 C.F.R. § 416.902(l); see also 82 Fed. Reg. 5844- 20 01, 5848 (mental impairments must be substantiated by objective medical evidence consisting 21 of signs or psychological test results). Dr. Pequeno’s own treatment records substantially 22 supported the ALJ’s finding that Plaintiff, with regular treatment and medication, displayed 23 almost no objective signs of observable psychological abnormalities. (AR 560-64, 568.) In 24 sum, reversal is not warranted based on the ALJ’s evaluation of Dr. Pequeno’s opinion. 25 26 C. Dr. Nash. 27 28 Dr. Nash, a psychologist, examined Plaintiff twice. (AR 361-68, 513-21.) In the first 1 examination, in March 2016, Dr. Nash diagnosed a history of attention deficit hyperactivity 2 disorder, substance abuse/dependence, learning issues, and a history of antisocial behavior. 3 (AR 365.) Dr. Nash stated that Plaintiff was likely or possibly impaired in areas of mental 4 functioning such as understanding, attention, concentration, carrying out simple and complex 5 instructions, and interacting with others. (AR 366.) In the second examination, in April 2018, 6 Dr. Nash diagnosed a history of attention deficit hyperactivity disorder, dyslexia, and 7 substance abuse/dependence. (AR 518.) Dr. Nash stated that Plaintiff was impaired in areas 8 of mental functioning such as understanding, attention, concentration, as evidenced by 9 psychometric testing. (AR 518-19.) 10 11 After summarizing Dr. Nash’s opinions in detail (AR 29-30), the ALJ articulated her 12 findings in a single analysis: 13 14 The undersigned has considered the opinions of Dr. Nash and finds that they are 15 consistent with the above residual functional capacity above. Dr. Nash’s opinion 16 is consistent with other medical evidence of record, [Plaintiff’s] reported activities 17 of daily living and supported by psychometric testing. As a specialist for the 18 Social Security Administration, Dr. Nash is well-versed in the assessment of 19 functionality as it pertains to the disability provisions of the Social Security Act, 20 as amended. 21 22 (AR 30.) The ALJ also found that Dr. Nash’s opinions were more persuasive than Dr. 23 Pequeno’s opinion. (AR 31.) 24 25 Plaintiff contends that the ALJ erred in her evaluation of Dr. Nash’s opinions for 26 multiple reasons. First, Plaintiff contends that the ALJ failed to articulate how persuasive Dr. 27 Nash’s opinions were. (Joint Stip. at 11.) To the contrary, it is evident from the ALJ’s 28 discussion that the ALJ found Dr. Nash’s opinions to be persuasive: the ALJ summarized Dr. 1 Nash’s opinions in extensive detail (AR 29-30); explained how the opinions were with 2 consistent with and supported by the record (AR 30); and explained that Dr. Nash’s opinions 3 were more persuasive than Dr. Pequeno’s opinion (AR 31). 4 5 Second, Plaintiff contends that the ALJ failed to articulate the most important factors of 6 consistency and supportability. (Joint Stip. at 11.) To the contrary, the ALJ considered and 7 articulated both factors. For consistency (i.e., the extent to which the opinions were consistent 8 with evidence from other medical sources and nonmedical sources), the ALJ explained that 9 Dr. Nash’s opinions were consistent with other medical evidence of record and Plaintiff’s 10 activities of daily living. (AR 30; see also AR 514, 560-64, 568.) For supportability (i.e., the 11 extent to which the opinions were supported by relevant objective medical evidence and the 12 source’s supporting explanation), the ALJ explained that Dr. Nash’s opinions were supported 13 by objective medical evidence from psychometric testing. (AR 30; see also AR 517-18.) The 14 ALJ’s consideration and articulation of these two factors was not erroneous. 15 16 Finally, Plaintiff contends that the ALJ erred by failing to account for Dr. Nash’s first 17 opinion from March 2016. (Joint Stip. at 11-12.) At that time, Dr. Nash found that Plaintiff 18 was impaired in carrying out simple instructions. (AR 366.) The ALJ, however, found no 19 such impairment in assessing Plaintiff’s residual functional capacity. (AR 22.) Contrary to 20 Plaintiff’s contention, the ALJ did not err by failing to explain why she did not incorporate Dr. 21 Nash’s March 2016 finding. Dr. Nash’s finding had limited relevance because it was from 22 March 2016 (AR 366), more than one year before Plaintiff’s alleged disability onset date of 23 disability of April 1, 2017 (AR 225). See Carmickle v. Commissioner, Social Sec. Admin., 533 24 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that predate the alleged onset of disability 25 are of limited relevance.”) (citing Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989)). 26 Moreover, the ALJ articulated her consideration of Dr. Nash’s March 2016 and April 2018 27 opinions collectively in a single analysis, which was permitted by the revised rules. See 20 28 C.F.R. § 416.920c(b)(1). Given the scope of the ALJ’s articulation duty under the revised 1 rules, the ALJ did not err in failing to single out and articulate an analysis of a minimally 2 relevant statement by Dr. Nash from March 2016 about Plaintiff’s ability to carry out simple 3 instructions. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 4 (“[T]he ALJ is not required to discuss evidence that is neither significant nor probative[.]”) 5 (citing Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)); see also 82 Fed. Reg. 6 5844-01, 5858 (“We consider all evidence we receive, but we have a reasonable articulation 7 standard for determination and decisions that does not require written analysis about how we 8 considered each piece of evidence.”). In sum, reversal is not warranted based on the ALJ’s 9 allegedly erroneous analysis of Dr. Nash’s opinions. 10 11 D. Dr. Flocks. 12 13 Dr. Flocks, a state agency physician, reviewed Plaintiff’s medical record and concluded 14 that Plaintiff’s mental impairment, if any, was “non-severe.” (AR 122-23.) The ALJ stated 15 that this opinion was “persuasive,” with little further analysis, other than an acknowledgment 16 that Dr. Flocks was well-versed in Social Security standards. (AR 31.) However, the ALJ 17 ultimately found that Plaintiff had mental limitations (AR 22), while Dr. Flocks found none. 18 19 Plaintiff contends that the ALJ erred by failing to explain why her opinion about 20 Plaintiff’s mental limitations differed from that of Dr. Flocks. (Joint Stip. at 12.) However, 21 Plaintiff has not shown how he was prejudiced by the brief analysis the ALJ in fact provided. 22 The ALJ’s eventual residual functional capacity assessment was more generous than Dr. 23 Flocks’s opinion, so that any further analysis of Dr. Flocks’s opinion could not have altered 24 the ALJ’s RFC assessment in Plaintiff’s favor. Thus, any legal error in the ALJ’s analysis 25 would have been “inconsequential to the ultimate nondisability determination,” and, therefore, 26 harmless. See Brown-Hunter, 806 F.3d at 492. Accordingly, reversal is not warranted because 27 of the ALJ’s allegedly erroneous analysis of Dr. Flocks’s statement. 28 1 II. The ALJ’s Assessment of Plaintiff’s Subjective Complaints (Issue Two). 2 3 In Issue Two, Plaintiff claims that the ALJ did not properly assess his subjective 4 statements and allegations. (Joint Stip. at 30-32.) 5 6 A. Legal Standard. 7 8 An ALJ must make two findings in assessing a claimant’s pain or symptom allegations. 9 Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). “First, 10 the ALJ must determine whether the claimant has presented objective medical evidence of an 11 underlying impairment which could reasonably be expected to produce the pain or other 12 symptoms alleged.” Treichler, 775 F.3d at 1102 (citation omitted). “Second, if the claimant 13 has produced that evidence, and the ALJ has not determined that the claimant is malingering, 14 the ALJ must provide specific, clear and convincing reasons for rejecting the claimant’s 15 testimony regarding the severity of the claimant’s symptoms” and those reasons must be 16 supported by substantial evidence in the record. Id.; see also Marsh v. Colvin, 792 F.3d 1170, 17 1174 n.2 (9th Cir. 2015). 18 19 “A finding that a claimant’s testimony is not credible ‘must be sufficiently specific to 20 allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on 21 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.’” 22 Brown-Hunter, 806 F.3d at 493 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 23 1991) (en banc)). 24 25 Beginning on March 28, 2016, SSR 16-3P rescinded and superseded the 26 Commissioner’s prior rulings as to how the Commissioner will evaluate a claimant’s 27 statements regarding the intensity, persistence, and limiting effects of symptoms in disability 28 claims. See SSR 16-3P, 2017 WL 5180304, at *1. Because the ALJ’s decision in this case 1 was issued on February 19, 2019, it is governed by SSR 16-3P. See id. at *13 and n.27. In 2 pertinent part, SSR 16-3P eliminated the use of the term “credibility” and clarified that the 3 Commissioner’s subjective symptom evaluation “is not an examination of an individual’s 4 character.” SSR 16-3P, 2017 WL 5180304, at *2; see also Trevizo v. Berryhill, 871 F.3d 664, 5 678 n.5 (9th Cir. 2017). These changes are largely stylistic and are consistent in substance 6 with Ninth Circuit precedent that existed before the effective date of SSR16-3P. See Trevizo, 7 871 F.3d at 678 n.5. 8 9 B. Background. 10 11 During the administrative hearings, Plaintiff testified as follows about his mental 12 condition. He cannot work because he “can’t keep focused on anything,” his spelling and 13 math are poor, and he’s “basically dyslexic.” (AR 57, 80.) His reading comprehension also 14 is poor. (AR 80.) He has “constant racing” of thoughts. (Id.) Maintaining focus and 15 concentration is a constant struggle. (AR 80-81.) It is difficult for him to stay off Ritalin, but 16 Wellbutrin helps with his depression to some degree. (AR 79.) Although he has a history of 17 homelessness, he lives at a Christian ministry facility. (AR 53, 83-84.) He has remained sober 18 while living there and needs the facility to structure his time and activities. (AR 85.) 19 20 Plaintiff also testified about physical problems. He cannot work because the center of 21 his back is “messed up.” (AR 58.) He used to lift up to 150 pounds at work. (AR 57.) Now, 22 he can lift 50 to 60 pounds. (AR 91.) He also has chronic obstructive pulmonary disease, but 23 he is not alleging it as a severe impairment. (AR 92.) 24 25 In addition to testifying at the hearing, Plaintiff completed a written function report 26 describing his abilities and activities. (AR 246-53.) In pertinent part, Plaintiff wrote that he 27 participates in daily church activities (AR 247); has no apparent problems with personal care 28 except for the need for reminders (AR 247-28); can go out by himself (AR 249); and can shop 1 and handle money (id.) His hobbies include base-jumping, painting, and drawing. (AR 250.) 2 With medication, his mental symptoms become “much better.” (AR 251.) 3 4 C. Analysis. 5 6 The ALJ initially found that Plaintiff’s medically determinable impairments could 7 reasonably be expected to cause the alleged symptoms. (AR 22.) However, the ALJ next 8 found that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of 9 these symptoms were not entirely consistent with the medical evidence and other evidence in 10 the record. (AR 22-23.) As support, the ALJ stated two reasons. (AR 23-24, 29.) 11 12 1. Daily Activities. 13 14 The ALJ first found that Plaintiff “has described daily activities that are inconsistent 15 with his allegations of disabling symptoms and limitations, which weakens his reliability.” 16 (AR 23-24; see also AR 29.) It is well-settled that an ALJ may find that a claimant’s 17 allegations about the severity of his symptoms is undermined by evidence of activities 18 demonstrating greater functional ability than the claimant alleged. See, e.g., Berry v. Astrue, 19 622 F.3d 1228, 1234-35 (9th Cir. 2010); Molina, 674 F.3d at 1113; Valentine, 574 F.3d at 693; 20 Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Orn v. 21 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 22 23 Here, the ALJ discussed Plaintiff’s activities, as taken from his written function report, 24 in extensive detail as follows. (AR 29; see also AR 246-53.) Plaintiff “is able to ‘pray, go to 25 church, help people, eat, and bathe at the river or the church.’” (AR 29; see also AR 247.) He 26 is able to “take care of his personal needs” and “prepare his own meals.” (AR 29; see also AR 27 247-48.) Although he was homeless at the time of his report, he “was able to travel by walking 28 or riding a bicycle,” was able to “drive and go out alone,” and was able to “shop in stores and 1 pay bills.” (AR 29; see also AR 249.) His ability to handle money had not changed since his 2 illnesses, injuries, or conditions began. (AR 29; see also AR 249.) He was able to participate 3 in hobbies such as base-jumping (“parachute in your hands and jump off a cliff”) and painting. 4 (AR 29; see also AR 250.) Finally, he admitted that “when he is on the right medication, his 5 memory, concentration, understanding and ability to follow instructions were much better.” 6 (AR 29; see also AR 251.) Based on this evidence, the ALJ concluded that Plaintiff had 7 “maintained a somewhat normal level of activity and interaction” and that his activities were 8 “consistent with a significant degree of overall functioning.” (AR 29.) 9 10 The ALJ reasonably concluded that evidence of Plaintiff’s ability to engage in these 11 activities were inconsistent his allegation of disabling symptoms. The scope of the activities 12 — various church activities, shopping, managing money, and painting (AR 246, 249-50) — 13 was inconsistent with Plaintiff’s allegation that maintaining focus and concentration was a 14 constant struggle (AR 80-81). Likewise, evidence of Plaintiff’s hobbies such as base-jumping 15 (AR 250) was inconsistent with his allegation of a significant back problem (AR 58). 16 Moreover, Plaintiff admitted that his mental symptoms, the most significant source of his 17 disability claim, were much better with medication. (AR 251.) Although Plaintiff contends 18 that these activities did not clearly show his ability to work full-time (Joint Stip. at 32), this 19 was not the basis for the ALJ’s finding. Rather, the ALJ found that evidence of Plaintiff’s 20 activities undermined “his allegations of disabling symptoms and limitations, which weakens 21 his reliability.” (AR 24.) This was a permissible inference from the evidence of Plaintiff’s 22 daily activities. See Molina, 674 F.3d at 1113 (“Even where those activities suggest some 23 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the 24 extent they contradict claims of a totally debilitating impairment.”) (citing Valentine, 574 F.3d 25 at 693). In sum, the ALJ’s reason was a clear and convincing reason based on substantial 26 evidence. 27 \\ 28 \\ 1 2. Effectiveness of Treatment. 2 3 The ALJ next found that Plaintiff’s treatment for his mental impairments and hernia 4 were generally successful and effective. (AR 24, 29.) An ALJ may find that a claimant’s 5 subjective symptom allegations are undermined by evidence of treatment that has been 6 effective. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding that an ALJ 7 reasonably pointed to the claimant’s admission that his diabetes was controlled by 8 medication); Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (the ALJ “reasonably noted 9 that the underlying complaints upon which [the claimant’s] reports of pain were predicated 10 had come under control”); see also Warre v. Commissioner of Social Sec. Admin., 439 F.3d 11 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication 12 are not disabling for the purpose of determining eligibility for SSI benefits.”) (citing Odle v. 13 Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming a denial of benefits and noting that the 14 claimant’s impairments were responsive to medication)). 15 16 Here, the ALJ again found that, according to Plaintiff’s own written report, “when he is 17 on the right medication, his memory concentration, understanding and ability to follow 18 instructions were much better.” (AR 24, 29; see also AR 251.) Relatedly, the ALJ stated that 19 “surgery was generally successful in relieving the symptoms” from Plaintiff’s hernia. (AR 24, 20 29; see also AR 378.) 21 22 The ALJ’s findings were based on permissible inferences from evidence of Plaintiff’s 23 treatment. As for Plaintiff’s mental impairments, the ALJ reasonably found that Plaintiff 24 admitted his symptoms were much better with medication. (AR 251.) Although Plaintiff 25 contends that his response to treatment was “modest” (Joint Stip. at 32), substantial evidence 26 in the record demonstrated it was more than modest. The record consistently showed that, 27 with sobriety and regular use of medication, Plaintiff’s mental status examinations repeatedly 28 were within normal limits. (AR 560-64, 568.) And as for Plaintiff’s physical impairment, the 1 record showed that Plaintiff underwent a right inguinal hernia repair with an unremarkable 2 hospital stay (AR 378) and showed no evidence of further symptoms. In sum, the ALJ 3 provided a clear and convincing reason based on substantial evidence to discount Plaintiff’s 4 allegations about his mental and physical symptoms. 5 6 III. The ALJ’s Formulation of the Hypothetical Question (Issue Three). 7 8 In Issue Three, Plaintiff claims that the ALJ erred in formulating a hypothetical question 9 to the vocational expert. (Joint Stip. at 35-37.) 10 11 A. Legal Standard. 12 13 “Once a claimant shows that [he] cannot perform past relevant work, the burden shifts 14 to the [Commissioner] to show that the claimant can engage in other substantial activity.” 15 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (citation omitted). “The [Commissioner] 16 can meet this burden by propounding to a vocational expert a hypothetical that reflects all the 17 claimant’s limitations.” Id. (citing Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989)). 18 Like the RFC assessment, the ALJ’s hypothetical question must accurately reflect all of the 19 claimant’s limitations. See Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (“However, 20 if an ALJ’s hypothetical is based on a residual functional capacity assessment that does not 21 include some of the claimant’s limitations, the vocational expert’s testimony ‘has no 22 evidentiary value.’”) (quoting Carmickle, 533 F.3d at 1166). Where the hypothetical posed to 23 the VE about the claimant’s RFC does not include all of the claimant’s limitations that are 24 supported by substantial evidence in the record, the VE’s testimony cannot constitute 25 substantial evidence to support the ALJ’s findings regarding the claimant’s ability to work. 26 See Taylor v. Commissioner, 659 F.3d 1228, 1235 (9th Cir. 2011); Palomares v. Astrue, 887 27 F. Supp.2d 906, 919 (N.D. Cal. 2012); Brinks v. Comm’r SSA, 343 Fed. Appx. 211, 212 (9th 28 Cir. 2009). 1 B. Analysis. 2 3 Both the ALJ’s hypothetical question to the vocational expert and the RFC assessment 4 contemplated a person who is limited to “simple routine tasks” and who “may experience off 5 task behavior less than 10% of an 8-hour workday.” (AR 22, 92-93.) The hypothetical 6 question and RFC assessment did not incorporate an earlier finding by the ALJ, at step three 7 of the five-step evaluation, that Plaintiff had a “moderate” limitation in “understanding, 8 remembering, or applying information.” (AR 21.) The ALJ made this finding under the 9 “paragraph B” criteria for determining, at step three, that Plaintiff’s mental impairments did 10 not meet or equal the requirements of a listed mental impairment and based that opinion on 11 Dr. Nash’s opinion that Plaintiff “had moderate limitations in the ability to understand complex 12 instructions, carry out complex instructions, and moderately limited in the ability to make 13 judgments on complex work-related decisions.” (AR 21) (emphasis added). Plaintiff claims 14 that the ALJ’s omission of this “moderate” finding from the subsequent hypothetical question 15 to the vocational expert was erroneous. (Joint Stip. at 36-37.)3 16 17 The ALJ did not err in formulating a hypothetical question that omitted the ALJ’s earlier 18 finding about Plaintiff’s moderate limitation in understanding, remembering, or applying 19 information. The ALJ’s assessment of moderate limitations in understanding, remembering, 20 or applying information was, by its own terms, an assessment of a limitation on Plaintiff’s 21 ability to carry out certain complex tasks, not a limitation on Plaintiff’s ability to perform 22 “simple routine tasks.” Therefore the assessment of a moderate limitation on understanding, 23 remembering, or applying information at step three is consistent, as opposed to in conflict, 24 25

26 3 Plaintiff points to an additional finding of limitation, in the area of concentration, persistence, or pace 27 (Joint Stip. at 36), but misstates the ALJ’s finding as “moderate” when in fact it was “mild.” (AR 21.) The Court’s conclusion that the ALJ complied with her duty to analyze a “moderate” limitation applies just as well 28 to a “mild” limitation. 1 with the ALJ’s hypothetical and RFC determination, both of which limited Plaintiff to “simple 2 routine tasks.” 3 4 Further, the ALJ expressly acknowledged that this finding was limited to steps two and 5 three of the five-step evaluation. (AR 22.) This was consistent with the Commissioner’s own 6 rulings. See Social Security Ruling (“SSR”) 96-8P, 1996 WL 374184, at *4 (“The adjudicator 7 must remember that the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria 8 are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 9 and 3 of the sequential evaluation process.”). Thus, the ALJ was not required to carry over 10 her own finding from steps two and three to the hypothetical question for steps four and five. 11 See Israel v. Astrue, 494 F. App’x 794, 796 (9th Cir. 2012) (holding that an ALJ was not 12 required to include his own step three finding about a moderate difficulty in concentration, 13 persistence, or pace in the vocational hypothetical at steps four and five). 14 15 In sum, Plaintiff has not shown that, in limiting Plaintiff to “simple routine tasks,” the 16 ALJ omitted her earlier assessment of moderate limitations in Plaintiff’s ability to perform 17 certain complex tasks. Plaintiff has also not established that, if the ALJ did omit her earlier 18 assessment of moderate limitations from the hypothetical and ultimate RFC determination, the 19 omission would constitute prejudicial error given the assessment of a limitation to “simple 20 routine tasks.” Accordingly, reversal is not warranted on this basis. 21 22 CONCLUSION 23 24 For the reasons stated above, the Court finds that the Commissioner’s decision is 25 supported by substantial evidence and free from material legal error. Neither reversal of the 26 ALJ’s decision nor remand is warranted. 27 28 Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of 1 || the Commissioner of the Social Security Administration. 2 3 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 4 || Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 || DATE: June 29, 2020

10 KAREN L. STEVENSON

UNITED STATES MAGISTRATE JUDGE

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