1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EDWARDO E.C.1 ) Case No. EDCV 19-1575-JPR 10 ) Plaintiff, ) 11 ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER 12 ) ANDREW SAUL, Commissioner ) 13 of Social Security, ) ) 14 Defendant. ) ) 15 ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying his application for Social Security supplemental security 20 income benefits (“SSI”). The parties consented to the 21 jurisdiction of the undersigned under 28 U.S.C. § 636(c). The 22 matter is before the Court on the parties’ Joint Stipulation, 23 filed June 29, 2020, which the Court has taken under submission 24 without oral argument. For the reasons stated below, the 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 Commissioner’s decision is affirmed. 2 II. BACKGROUND 3 Plaintiff was born in 1976. (Administrative Record (“AR”) 4 169.) He completed 12th grade and between 1995 and 2011 worked 5 in demolition, selling gym memberships, stocking fresh produce, 6 and in a warehouse. (AR 198.) 7 On January 14, 2016, Plaintiff applied for SSI, alleging 8 that he had been unable to work since July 7, 2015, because of 9 “[a]nger problem, depression, mentally slow, schizophrenia,” and 10 “bipolar.” (AR 169, 196-97.) He had applied for and been denied 11 disability benefits four times prior. (AR 65.) After his 12 application was denied initially, he requested a hearing before 13 an Administrative Law Judge. (See AR 64-76, 78-90, 92, 99-101.) 14 A hearing was held on August 16, 2018, at which Plaintiff, who 15 was represented by counsel, testified, as did a vocational 16 expert. (See AR 43-63.) In a written decision issued September 17 5, 2018, the ALJ found Plaintiff not disabled because he could 18 perform his past relevant work or other work existing in 19 significant numbers in the national economy. (AR 25-27.) He 20 requested review from the Appeals Council, which denied it on 21 June 28, 2019. (AR 1-7.) This action followed. 22 III. STANDARD OF REVIEW 23 Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner’s decision to deny benefits. The ALJ’s findings and 25 decision should be upheld if they are free of legal error and 26 supported by substantial evidence based on the record as a whole. 27 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 28 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 2 1 means such evidence as a reasonable person might accept as 2 adequate to support a conclusion. Richardson, 402 U.S. at 401; 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 4 is “more than a mere scintilla but less than a preponderance.” 5 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 7 meaning of ‘substantial’ in other contexts, the threshold for 8 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 9 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 10 evidence supports a finding, the reviewing court “must review the 11 administrative record as a whole, weighing both the evidence that 12 supports and the evidence that detracts from the Commissioner’s 13 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 14 1998). “If the evidence can reasonably support either affirming 15 or reversing,” the reviewing court “may not substitute its 16 judgment” for the Commissioner’s. Id. at 720-21. 17 IV. THE EVALUATION OF DISABILITY 18 People are “disabled” for Social Security purposes if they 19 are unable to engage in any substantial gainful activity owing to 20 a physical or mental impairment that is expected to result in 21 death or has lasted, or is expected to last, for a continuous 22 period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin 23 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 24 A. The Five-Step Evaluation Process 25 An ALJ follows a five-step sequential evaluation process to 26 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 28 amended Apr. 9, 1996). In the first step, the Commissioner must 3 1 determine whether the claimant is currently engaged in 2 substantial gainful activity; if so, the claimant is not disabled 3 and the claim must be denied. § 416.920(a)(4)(i). 4 If the claimant is not engaged in substantial gainful 5 activity, the second step requires the Commissioner to determine 6 whether the claimant has a “severe” impairment or combination of 7 impairments significantly limiting his ability to do basic work 8 activities; if not, a finding of not disabled is made and the 9 claim must be denied. § 416.920(a)(4)(ii) & (c). 10 If the claimant has a “severe” impairment or combination of 11 impairments, the third step requires the Commissioner to 12 determine whether the impairment or combination of impairments 13 meets or equals an impairment in the Listing of Impairments 14 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 15 1; if so, disability is conclusively presumed and benefits are 16 awarded. § 416.920(a)(4)(iii) & (d). 17 Before proceeding to step four, the ALJ must determine the 18 claimant’s residual functional capacity (“RFC”).2 § 416.920(e); 19 see also Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 20 2017) (ALJ assesses claimant’s RFC between steps three and four). 21 The fourth step requires that the ALJ determine whether the 22 claimant’s RFC is sufficient to perform past relevant work. 23 § 416.920(a)(4)(iv). When the claimant has no past relevant 24 work, the Commissioner then bears the burden of establishing that 25 he is not disabled because he can perform other substantial 26 27 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945(a)(1); see Cooper v. 28 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 gainful work in the national economy, the fifth and final step of 2 the analysis. §§ 416.920(a)(4)(v), 416.960(c)(2); Drouin, 966 3 F.2d at 1257. 4 B. The ALJ’s Application of the Five-Step Process 5 At step one, the ALJ found that Plaintiff had not engaged in 6 substantial gainful activity since November 30, 2015. (AR 20.) 7 At step two, she concluded that he had the severe impairment of 8 “schizophrenia.” (Id.) At step three, she determined that his 9 impairments did not meet or equal a Listing. (Id.) 10 Before reaching step four, the ALJ found that Plaintiff had 11 the RFC to perform 12 a full range of work at all exertional levels but with 13 the following nonexertional limitations: the claimant is 14 limited to performing simple, routine, repetitive tasks 15 with no high production quotas nor in a fast-paced work 16 environment, interaction with people should be no more 17 than superficial, any interaction with the public should 18 be no more than occasional, and he would be most 19 successful working with objects rather than people. 20 (AR 22.) 21 At step four, she found him “capable of performing past 22 relevant work as a construction worker II and warehouse worker.” 23 (AR 25.) Alternatively and in light of the VE’s testimony, at 24 step five she concluded that Plaintiff could successfully adjust 25 to other work, such as sugar-mold feeder, laundry checker, and 26 hand packer. (AR 27.) Accordingly, she found him not disabled. 27 (Id.) 28 5 1 V. DISCUSSION 2 Plaintiff alleges that the ALJ improperly rejected treating- 3 physician evidence from psychiatrist Inderjit Seehrai and his own 4 subjective symptom testimony. (See J. Stip. at 5-11, 17-26.) 5 For the reasons discussed below, the ALJ did not err. 6 A. The ALJ Properly Evaluated the Doctors’ Opinions 7 1. Applicable law 8 Three types of physicians may offer opinions in Social 9 Security cases: those who directly treated the plaintiff, those 10 who examined but did not treat the plaintiff, and those who did 11 neither. Lester, 81 F.3d at 830. A treating physician’s opinion 12 is generally entitled to more weight than an examining 13 physician’s, and an examining physician’s opinion is generally 14 entitled to more weight than a nonexamining physician’s. Id.; 15 see § 416.927(c)(2).3 This is so because treating physicians are 16 employed to cure and have a greater opportunity to know and 17 observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th 18 Cir. 1996). But “the findings of a nontreating, nonexamining 19 physician can amount to substantial evidence, so long as other 20 21 3 For claims filed on or after March 27, 2017, the rules in 22 § 416.920c (not § 416.927) apply. See § 416.920c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). 23 The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary 24 weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from 25 your medical sources.” § 416.920c(a). Thus, the new regulations 26 eliminate the term “treating source” as well as what is customarily known as the treating-source or treating-physician 27 rule. See §§ 416.920c, 416.927(a), (c). Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it 28 under the treating-source rule in § 416.927. 6 1 evidence in the record supports those findings.” Saelee v. 2 Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as 3 amended). 4 The ALJ may disregard a physician’s opinion regardless of 5 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 6 751 (9th Cir. 1989); see Carmickle v. Comm’r Soc. Sec. Admin., 7 533 F.3d 1155, 1164 (9th Cir. 2008). When a doctor’s opinion is 8 not contradicted by other medical-opinion evidence, however, it 9 may be rejected only for a “clear and convincing” reason. 10 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 11 Lester, 81 F.3d at 830–31). When it is contradicted, the ALJ 12 must provide only a “specific and legitimate reason” for 13 discounting it. Carmickle, 533 F.3d at 1164 (citing Lester, 81 14 F.3d at 830–31). The weight given a treating or examining 15 physician’s opinion, moreover, depends on whether it is 16 consistent with the record and accompanied by adequate 17 explanation, among other things. § 416.927(c)(1)–(6). Those 18 factors also determine the weight afforded the opinions of 19 nonexamining physicians. § 416.927(f)(1). The ALJ considers 20 findings by state-agency medical consultants and experts as 21 opinion evidence. § 416.927(e). 22 Furthermore, “[t]he ALJ need not accept the opinion of any 23 physician . . . if that opinion is brief, conclusory, and 24 inadequately supported by clinical findings.” Thomas v. 25 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 26 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 27 An ALJ need not recite “magic words” to reject a physician’s 28 opinion or a portion of it; the court may draw “specific and 7 1 legitimate inferences” from the ALJ’s opinion. Magallanes, 881 2 F.2d at 755. “[I]n interpreting the evidence and developing the 3 record, the ALJ does not need to ‘discuss every piece of 4 evidence.’” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 5 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 386 6 (8th Cir. 1998)). 7 The Court must consider the ALJ’s decision in the context of 8 “the entire record as a whole,” and if the “‘evidence is 9 susceptible to more than one rational interpretation,’ the ALJ’s 10 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 11 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 12 2. Relevant background 13 a. Examining Psychologists 14 On February 18, 2011, clinical psychologist Clifford Taylor 15 examined Plaintiff for a prior benefits application, noting that 16 “[h]is effort level appeared suspect and the test results [we]re 17 considered to be of questionable validity.” (AR 279.) Plaintiff 18 complained of forgetfulness, anger problems, depression, 19 confusion, “fatigue, problems with concentration and attention, 20 learning problems, alcohol problems, and speech and language 21 problems.” (AR 280.) He was not taking psychotropic medications 22 and denied “any past or current mental health treatment services 23 or psychiatric hospitalizations.” (Id.) After conducting a 24 complete psychological evaluation and administering various 25 tests, Dr. Taylor diagnosed an unspecified learning disorder, 26 27 28 8 1 noting an IQ of 57 and a GAF score of 654 (AR 282), but observed: 2 The attained IQ and memory test scores [we]re considered 3 invalid. There [wa]s no credible evidence of mental 4 retardation based on his presentation and verbal 5 comprehension. He performed below normal on the Test of 6 Memory Malingering. He completed a four page history 7 questionnaire form, dr[ove] himself as needed, worked in 8 a warehouse and graduated from high school. His work and 9 education history and his overall presentation [were] 10 inconsistent with a Full Scale IQ score 57. [¶] His 11 ability to maintain concentration and persistence and 12 pace and adapt to work and job duties [wa]s mildly 13 impaired. His ability to relate to coworkers, public and 14 management [wa]s mildly impaired. [¶] The claimant 15 would be unable to manage his own benefits based on his 16 17 4 A GAF score of 65 indicates that Plaintiff had some mild 18 symptoms or some difficulty in social, occupational, or school functioning but was “generally functioning pretty well” and had 19 “some meaningful interpersonal relationships.” See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 20 2000). The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and 21 Traumatic Brain Injury, 65 Fed. Reg. 50764–65 (Aug. 21, 2000) 22 (codified at 20 C.F.R. pt. 404) (GAF score “does not have a direct correlation to the severity requirements in our mental 23 disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity 24 and questionable psychological measurements in practice, DSM 16 (5th ed. 2013). Because GAF scores continue to be included in 25 medical records, however, the Social Security Administration has 26 clarified that they are “medical opinion evidence . . . if they come from an acceptable medical source.” Wellington v. 27 Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017) (citation omitted). 28 9 1 presentation. 2 (AR 282-83.) 3 Psychologist Margaret Donohue evaluated Plaintiff on 4 December 19, 2014, for a prior benefits application, about half a 5 year before the alleged onset date here. (AR 287-91.) He 6 complained of memory problems and bipolar disorder, “diagnosed at 7 age 19.” (AR 287.) His primary-care physician had prescribed 8 Abilify, citalopram, hydroxyzine, and Seroquel.5 (AR 288.) He 9 had never been seen by a psychiatrist but had “counseling because 10 of bipolar disorder and because he s[aw] shadows and hear[d] 11 voices.” (Id.) He reported a suicide attempt with no associated 12 medical treatment; anxiety, nervousness, and nightmares; 13 occupation by a demon; and auditory hallucinations. (Id.) He 14 described “being in Special Day Classes from 6th to 12th grade” 15 and failing grades but that was “not . . . reflected” in the 16 5 Abilify is the brand name for aripiprazole and “is 17 indicated for manic and mixed episodes associated with bipolar I 18 disorder, irritability associated with autism spectrum disorder, . . . and as an adjunctive treatment of major depressive 19 disorder.” Aripiprazole, U.S. Nat’l Libr. of Med., https:// pubchem.ncbi.nlm.nih.gov/compound/60795#section=Drug-Indication 20 (last visited Jan. 25, 2021). 21 Citalopram is used to treat depression. Citalopram, 22 MedlinePlus, https://medlineplus.gov/druginfo/meds/ a699001.html (last visited Jan. 25, 2021). 23 Hydroxyzine is used to relieve anxiety and tension. See 24 Hydroxyzine, MedlinePlus, https://medlineplus.gov/druginfo/meds/ a682866.html (last visited Jan. 25, 2021). 25 26 Seroquel is used to treat certain mental or mood conditions, such as schizophrenia and bipolar disorder, as well as sudden 27 episodes of mania or depression associated with bipolar disorder. See Seroquel, WebMD, https://www.webmd.com/drugs/2/drug-4718/ 28 seroquel-oral/details (last visited Jan. 25, 2021). 10 1 records.6 (Id.) He had last worked as a stock clerk in a 2 supermarket and reported that he could not remember the 3 instructions he was given and quit. (AR 289.) He told Dr. 4 Donohue that he had never been arrested or convicted of any 5 crimes (id.), but in 2011 he had acknowledged to Dr. Taylor an 6 assault-with-a-deadly-weapon conviction and two other arrests (AR 7 280), and at the hearing he mentioned a DUI (AR 48). Dr. Donohue 8 noted that his “[m]otor activity show[ed] intentional motor 9 slowing,” his “[i]nterview behavior show[ed] obvious signs of 10 malingering,” and “[b]ehavioral disturbance [wa]s the degree of 11 malingering.” (AR 289.) She diagnosed malingering and “[a]t 12 [l]east [b]orderline [i]ntellect” and stated: 13 If this claimant is currently receiving benefits, the 14 fraud unit needs to be contacted. [¶] Based on today’s 15 assessment, the claimant would be able to understand, 16 remember and carry out short, simplistic instructions 17 with no difficulty if he was adequately motivated. He 18 should have no difficulty to make simplistic work-related 19 decisions without special supervision. He would have 20 mild difficulty to make complex decisions because he 21 forgets what he has stated previously. He would have no 22 difficulty to comply with job rules such as safety and 23 attendance. He should have no difficulty to respond to 24 change in a normal workplace setting. This examiner 25 [wa]s not able to assess his ability to maintain 26 persistence and pace in a normal workplace setting 27 6 Indeed, in a Disability Report, Plaintiff apparently 28 denied having been in special-education classes. (See AR 198.) 11 1 because of intentional motor slowing. [¶] The claimant 2 present[ed] with no known history of interpersonal 3 difficulties. He malingered throughout the evaluation 4 with this examiner. This examiner [wa]s not able to 5 assess his ability to interact appropriately with 6 supervisors, coworkers and peers on a consistent basis. 7 The claimant is not able to manage finances on his own 8 behalf. 9 (AR 291 (emphasis in original).) 10 On September 14, 2016, clinical psychologist Julie Myers 11 provided a medical-source statement,7 noting unspecified psychosis 12 “not due to a substance or known physiological condition” and 13 symptoms “stable” with “Risperidone” and “Coge[n]tin.”8 (AR 363.) 14 His prognosis was “guarded, condition chronic.” (Id.) She noted 15 “mumbling to self; slow cognitive processing; poor immediate 16 17 7 It is not clear what Dr. Myers’s relationship with Plaintiff was. She crossed out the word “your” from the phrase 18 “your patient” on the medical-source form in numerous places, suggesting that he was not her patient. (AR 364-65, 367.) She 19 also wrote that she completed the statement “following review of records and consultation with medical staff,” noting that the 20 “client also completed a clinical interview with psychologist.” 21 (AR 363.) Thus, it is not clear that Dr. Myers even examined Plaintiff, but the Court assumes she did. 22 8 Risperidone treats “schizophrenia,” “acute manic or mixed 23 episodes associated with Bipolar I Disorder,” and “irritability associated with autistic disorder.” Risperidone, U.S. Nat’l 24 Libr. of Med., https://pubchem.ncbi.nlm.nih.gov/compound/ 25 5073#section=Drug-and-Medication-Information (last visited Jan. 25, 2021). 26 Congentin is the name-brand version of benztropine and is 27 used to treat involuntary movements caused by certain psychiatric drugs. Congentin Tablet, WebMD, https://www.webmd.com/drugs/2/ 28 drug-13533/cogentin-oral/details (last visited Jan. 25, 2021). 12 1 recall of three words . . . poor delayed 5 minute recall . . . 2 fixed stare; motor retardation; poor concentration . . . ; mental 3 confusion; disorganized thoughts; alogia;9 no understanding of 4 metaphore [sic] . . . ; easily frustrated; no friends; socially 5 detached; hostility towards others; h[istory] of auditory and 6 visual hallucinations.” (Id.) Evaluating his functional 7 limitations, she found “[e]xtreme” “[d]ifficulties in maintaining 8 social functioning” and “[m]arked” “[r]estriction of activities 9 of daily living” and “[d]ifficulties in maintaining 10 concentration, persistence or pace.” (AR 367.) 11 b. Treating Physician 12 Plaintiff was treated by Dr. Seehrai from March 30, 2015, to 13 June 27, 2018. (AR 369.) He complained of hallucinations and 14 paranoia, reported being molested once by a neighbor as a seven- 15 year-old, and was diagnosed with psychotic disorder and paranoid 16 schizophrenia. (AR 303-04, 306, 314, 322.) Starting at age 19, 17 he felt a negative “spirit come into . . . his body,” heard 18 voices calling his name, and saw shadows and demons. (AR 314.) 19 He reported five to six hours of sleep a night “disrupted” by 20 nightmares; changing moods; and feelings of hopelessness, 21 irritability, and anger. (Id.) Abilify was not helping, and Dr. 22 Seehrai increased his dosage of Zyprexa.10 (AR 304, 306.) On 23 24 9 Alogia is poverty of speech often associated with schizophrenia. Medical Definition of Alogia, MedicineNet, 25 https://www.medicinenet.com/alogia/definition.htm (last visited Jan. 25, 2021). 26 27 10 Zyprexa is the name-brand version of olanzapine, an antipsychotic used to treat the symptoms of schizophrenia and 28 bipolar disorder. See Olanzapine, MedlinePlus, (continued...) 13 1 September 15, 2015, Plaintiff continued to report auditory 2 hallucinations, and Dr. Seehrai prescribed Risperidone (AR 326), 3 which appears to have been his only medication from February 2017 4 to at least August 2018 (see AR 373-86). 5 On April 12, 2016, Plaintiff reported that he had stopped 6 taking diphenhydramine11 because he was sleeping okay without it. 7 (AR 343.) He continued to have “low eye contact” and 8 “disorganized thoughts.” (Id.) On June 27, 2016, Dr. Seehrai 9 described his mood as “ok,” with “fair eye contact” and 10 “spontaneous” speech. (AR 360.) On February 10, 2017, Plaintiff 11 reported that he was “doing alright” (AR 397), and at four 12 appointments from April 27 through November 28, 2017, he reported 13 that he felt “better” (AR 392-94, 396). At his November 2017 14 appointment, he denied depression and anxiety, audio or visual 15 hallucinations for the past month, paranoia, and anger or mood 16 swings. (AR 392.) From January 16 to May 16, 2018, Dr. Seehrai 17 reported that Plaintiff denied hallucinations and paranoia; was 18 “doing fine now” with his medication; denied mood swings; had a 19 “mellow” mood; kept his hallucinations “under control”; and had a 20 good appetite and was sleeping. (AR 388-91.) Throughout Dr. 21 Seehrai’s treatment, nearly all of Plaintiff’s mental-status 22 examinations were almost entirely within normal limits, reflected 23 24 10 (...continued) 25 https://medlineplus.gov/druginfo/meds/a601213.html (last visited Jan. 25, 2021). 26 27 11 Diphenhydramine, also known as Benadryl, is an antihistamine sometimes used to treat insomnia. Diphenhydramine, 28 MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a682539.html (last visited Jan. 25, 2021.) 14 1 “fair” insight, and found him oriented in all categories. (See 2 AR 304, 360, 387-99, 401; but see AR 317 (social worker 3 describing Plaintiff’s insight and judgment as “poor,” his mood 4 as “angry and depressed,” and his affect as “irritable” and 5 finding him not oriented to “time” or “situation” on Mar. 12, 6 2015), 319-20 (Dr. Seehrai describing his behavior as 7 “aggressive/agitated” on May 12, 2015).) 8 A medical-source statement dated June 27, 2018, and signed 9 by Dr. Seehrai appears to have been at least partially completed 10 in Plaintiff’s handwriting.12 (See AR 369; compare AR 231-38.) 11 It reflected a “guarded” diagnosis and extreme or marked 12 impairment in all areas. (AR 369-71.) It stated that Plaintiff 13 was not a malingerer and that alcohol or substance abuse 14 contributed to his limitations. (AR 371.) 15 Another medical-source statement from Dr. Seehrai dated 16 August 18, 2018, reported a “guarded” diagnosis and “marked” 17 limitations in all areas except neatness and cleanliness, in 18 which his limitations were none or mild. (AR 403-05.) This 19 report claimed no alcohol or substance abuse and stated that 20 Plaintiff would miss “[a]bout three days per month” of work. (AR 21 405.) 22 c. Consulting Reviewers 23 Psychologist Helen C. Patterson13 reviewed Plaintiff’s 24 25 12 In one spot the author wrote, in answer to a question about side effects, “all are possible but I do not experience 26 any” and then crossed out the word “I.” (AR 369.) 27 13 Dr. Patterson specializes in psychology. (See AR 74 28 (showing signature code 38)); Program Operations Manual System (continued...) 15 1 records from February 2011 through April 2016, including those 2 from his treating physician, and noted that he had the severe 3 impairments of schizophrenia and other psychotic disorders. (AR 4 69-70.) In her assessment dated April 23, 2016, she referred 5 “[a]ny reader to this record as a whole,” noting that his 6 primary-care physician observed that “cl[aimant] over time 7 present[ed] w[ith] requests for notes from MD saying he ha[d] 8 this and that problem.” (AR 71.) Further, “inconsistencies 9 [we]re demonstrated,” and there was “no h[istory] of psychiatric 10 admissions.” (Id.) She found his symptom statements “not 11 consistent” based on “[s]everal reports of malingering,” 12 “h[istory] of substance abuse,” “[l]ack of objective evidence 13 that signs of psychosis ha[d] been observed,” and “[l]ack of any 14 h[istory] of inpatient admissions.” (AR 72.) 15 As to his RFC, she found that he “retain[ed] adequate 16 capacity to complete tasks, follow instructions,” and “maintain 17 adequate attention, concentration, persistence and pace, as 18 needed to sustain a normal workday and workweek.” (AR 73.) She 19 found his ability to interact with the general public “markedly 20 limited” (id.), but he “retain[ed] adequate capacity for 21 appropriate social interaction, as required in a normal work 22 environment to respond appropriately to supervisor feedback and 23 interact appropriately with co-workers” (AR 74). 24 In his June 27, 2016 assessment, state-agency physician P.M. 25 26 27 13 (...continued) (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), 28 https://secure.ssa.gov/apps10/ poms.nsf/lnx/0424501004 (signature code 38 indicates psychology). 16 1 Balson14 noted schizophrenia and other psychotic disorders but 2 found Plaintiff’s statements about the “intensity, persistence, 3 and functionally limiting effects of the symptoms” not 4 “substantiated by the objective medical evidence alone.” (AR 84- 5 85.) Dr. Balson cited “[s]everal reports of malingering,” a 6 history “of substance abuse,” “[l]ack of objective evidence that 7 signs of psychosis ha[d] been observed,” and “[l]ack of any 8 inpatient admissions.” (AR 86.) Regarding RFC, the doctor found 9 only moderate limitation in Plaintiff’s ability to complete a 10 normal workday and workweek without psychologically based 11 interruptions, but he was “markedly limited” in his ability to 12 interact with the general public. (AR 87.) As such, Dr. Balson 13 found that he “retain[ed] adequate capacity for appropriate 14 social interaction, as required in a normal work environment, to 15 respond appropriately to supervisor feedback and interact 16 appropriately with co-workers.” (AR 88.) 17 3. The ALJ’s decision 18 The ALJ recounted Plaintiff’s statements that he “did not 19 spent [sic] time with others, ha[d] problems getting along with 20 others and ha[d] gotten into fights with friends and neighbors, 21 d[id] not like authority figures, and ha[d] difficulty handling 22 stress.” (AR 21.) She observed that he claimed a limited 23 attention span and said he had stopped working at the supermarket 24 “because he began having problems with people there.” (Id.) He 25 said his driver’s license had been taken away because of 26 27 14 Because there is no specialty code next to Dr. Balson’s 28 signature, his or her medical specialty is not clear. (See AR 88.) 17 1 schizophrenia, and he relied on his father or his bicycle for 2 transportation. (Id.) 3 She noted that he said he had begun seeing Dr. Seehrai 4 because “he was hearing voices, seeing shadows, and had anxiety 5 issues.” (AR 22-23.) He testified to “some improvement” but 6 would still see shadows and hear voices that encouraged self-harm 7 two or three times a week. (AR 23; see also AR 52.) He would 8 “lock himself in his room for the whole day whenever he 9 experienced these hallucinations” and often felt as if “people 10 were talking about him”; he was “unable to focus, and would 11 quickly forget” “names and directions.” (AR 23; see also AR 53.) 12 He also reported depression and anxiety, which “caused him to not 13 want to talk or interact with people.” (AR 23; see also AR 53- 14 55.) 15 He reported that he could perform personal care but 16 “lack[ed] motivation to do so, prepare[d] simple meals . . . , 17 occasionally fe[d] his dog as a chore, . . . shop[ped] for simple 18 items, watche[d] television, and d[id] not spent [sic] time with 19 others.” (AR 23; see also AR 231-37.) 20 Recognizing that Dr. Donohue had examined Plaintiff in 21 December 2014, shortly before the period at issue, the ALJ noted 22 that he complained to her of bipolar disorder and memory problems 23 and had been prescribed psychotropic medications by his primary- 24 care provider but had “never been seen by [a] psychiatrist, and 25 had never been psychiatrically hospitalized.” (AR 23.) She 26 noted the doctor’s comment that although he reported receiving 27 mostly failing grades in school and being in special classes, 28 that was “not . . . reflected” in his records. (Id.) She 18 1 recounted that Dr. Donohue had remarked that he “showed 2 intentional motor slowing” and “obvious signs of malingering in 3 his interview behavior and behavioral disturbance.” (Id.) She 4 further reported the doctor’s observations that he had poor 5 recall, “claimed to not know the date,” was unable to follow a 6 three-part instruction, and “demonstrated a preoccupation with 7 ‘how mentally ill he [wa]s.’” (Id.) The ALJ noted that the 8 doctor’s chief diagnosis was “malingering.” (Id.) 9 She reviewed treatment notes from Dr. Seehrai, reflecting 10 that Plaintiff heard voices more at night, didn’t get along with 11 anybody, and had some trouble remembering to take his 12 medications. (Id.) A medical-source examination by Dr. Seehrai 13 on February 16, 2016, showed that he was “alert and oriented, had 14 low eye contact, no motor retardation or agitation, with 15 dysphoric mood and restricted affect, but . . . denied any 16 current hallucinations.” (AR 23-24; see also AR 344.) She noted 17 that records from June 2016 through 2018 indicated improvement, 18 including that “hallucinations had waned”; he was “doing alright” 19 “on one medication now”; he was “feel[ing] better”; he had a 20 “mellow mood”; and he “denied any depression or anxiety,” 21 “paranoia,” “hallucinations,” “anger,” or “mood swings.” (AR 22 24.) 23 The ALJ found that Plaintiff’s “statements concerning the 24 intensity, persistence and limiting effects of [his] symptoms 25 [we]re not entirely consistent with the medical evidence and 26 other evidence in the record.” (Id.) In support, she noted that 27 his daily activities were not as limited as one would expect 28 given the “complaints of disabling symptoms and limitations.” 19 1 (Id.) He could care for personal needs, prepare simple meals, 2 feed his dog, go shopping, and watch television. (Id.) He also 3 had some limited work activity after the alleged onset date. 4 (Id.) Further, she cited “statements by doctors suggesting the 5 claimant was engaging in possible malingering or 6 misrepresentation,” which, combined with a lack of compliance in 7 taking medications, “suggest[ed] that the symptoms may not have 8 been as limiting as the claimant has alleged.” (Id.) 9 Additionally, he had not “received the type of medical 10 treatment one would expect for a totally disabled individual,” 11 getting psychotropic medications through his primary-care 12 provider and never having been “psychiatrically hospitalized.” 13 (AR 24-25.) Treatment received had been “essentially routine 14 and/or conservative in nature, consisting primarily of 15 medications.” (AR 25.) She further noted that the record 16 reflected that “medications ha[d] been relatively effective in 17 controlling [his] symptoms, with . . . his hallucinations, 18 paranoia, and anger . . . all under control.” (Id.) 19 The ALJ gave “great weight” to the opinions of the state- 20 agency psychological consultants and Dr. Donohue because they 21 were “internally consistent” and “consistent with the record as a 22 whole.” (Id.) She also gave weight to the opinion of Dr. Taylor 23 “to the extent that it [wa]s consistent with the opinions of Dr. 24 Donohue and the State agency psychological consultants,” noting, 25 however, that it was “given well before the period at issue” and 26 did not “consider the claimant’s subsequent medical records.” 27 (Id.) She gave “only some weight” to the opinions of Drs. 28 20 1 Seehrai and Myers,15 “who both opined that [his] symptoms were in 2 the marked to extreme range of functional limitations, and that 3 he was largely unable to meet competitive standards regarding his 4 abilities to do unskilled work.” (Id.) She found the foregoing 5 opinions “inconsistent with Dr. Seehrai’s own treatment notes, 6 which reflect[ed] medication compliance issues, but also 7 improvement with medications to the point of resolution of [his] 8 reported hallucinations and anger, and largely mild” examination 9 findings. (Id.) 10 Based on the VE’s testimony and Plaintiff’s work history, 11 the ALJ found that he could perform his past work as a 12 “construction worker II and warehouse worker, as generally and 13 actually performed.” (AR 25-26.) She further found that he was 14 capable of performing such alternative jobs as sugar-mold feeder, 15 laundry checker, and hand packer. (AR 26-27.) 16 4. Analysis 17 Unlike Drs. Donohue, Patterson, Balson, and Taylor, Dr. 18 Seehrai found a “marked to extreme range of functional 19 limitation” for Plaintiff in all areas. (AR 25.) Because Dr. 20 Seehrai’s opinions were contradicted by those of other 21 physicians, the ALJ needed to provide only a “specific and 22 legitimate reason” for discounting them. See Carmickle, 533 F.3d 23 at 1164 (citing Lester, 81 F.3d at 830-31). As explained below, 24 she did so, and remand is not warranted on this basis. 25 Inconsistency with the medical evidence, including a 26 doctor’s own treatment notes, is a specific and legitimate reason 27 28 15 Plaintiff does not appear to challenge the ALJ’s assessment of Dr. Myers’s opinion. (See J. Stip. at 5.) 21 1 to discount a treating physician’s opinion. See Tommasetti v. 2 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Connett v. Barnhart, 3 340 F.3d 871, 875 (9th Cir. 2003) (physician’s opinion was 4 properly rejected when his own treatment notes “provide[d] no 5 basis for the functional restrictions he opined should be 6 imposed”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 7 2001) (ALJ permissibly rejected physician’s opinion when it was 8 “implausible” and “not supported by any findings made by any 9 doctor,” including her own); see also Ford v. Saul, 950 F.3d 10 1141, 1155 (9th Cir. 2020) (“An ALJ is not required to take 11 medical opinions at face value, but may take into account the 12 quality of the explanation when determining how much weight to 13 give a medical opinion.”). 14 Dr. Seehrai’s clinical records indicated a trend of 15 improvement over nearly 20 visits spanning a 26-month period 16 starting in April 2016, when Plaintiff reported sleeping better 17 without Benadryl and, despite some medication-compliance issues, 18 had fewer hallucinations and no paranoia or mood swings. (See AR 19 23-24 (citing AR 342-45, 372-402).) As the ALJ pointed out, the 20 “medications ha[d] been relatively effective in controlling 21 [Plaintiff’s] symptoms” and he “report[ed] that his 22 hallucinations, paranoia, and anger were all under control.” (AR 23 25 (citing 372-402).) Thus, she appropriately discounted Dr. 24 Seehrai’s June and August 2018 opinions as inconsistent with his 25 own notes reflecting “improvement with medications to the point 26 of resolution” of Plaintiff’s “hallucinations and anger, and 27 28 22 1 largely mild MSE findings.”16 (AR 25.) See Connett, 340 F.3d at 2 875; Rollins, 261 F.3d at 856. Indeed, Dr. Myers is the only 3 other doctor who assessed marked mental limitations, and she 4 specifically noted that Plaintiff was not her patient; she worked 5 in the same office as Dr. Seehrai and only reviewed his records, 6 possibly interviewing Plaintiff once. (See AR 363-68.) 7 Plaintiff claims it was error to credit Dr. Donohue’s “stale 8 one-shot examining opinion” from 2014 over those of his treating 9 psychiatrist of several years. (J. Stip. at 9-10.) He further 10 argues that nonexamining Drs. Patterson and Balson shouldn’t be 11 credited because they relied only on Dr. Donohue’s opinion. 12 (Id.) But those arguments fail because their opinions, along 13 with Dr. Donohue’s, were “internally consistent” and “consistent 14 with the record as a whole” (AR 25), and Dr. Seehrai’s was not. 15 See Thomas, 278 F.3d at 957 (finding that opinions of nontreating 16 or nonexamining physicians provide substantial evidence when 17 consistent with independent clinical findings or other record 18 evidence); Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 19 2001) (finding that examining physician’s opinion alone 20 constituted substantial evidence because it relied on independent 21 16 As one example of the mild mental-status-exam results and 22 how they did not support the limitations Dr. Seehrai assessed, 23 Plaintiff apparently showed up for every appointment on time (see

AR 325, 326, 327, 343, 344, 360, 387, 388, 389, 390, 391, 392,

24 393, 394, 395, 396, 397, 398, 399, 400, 401) and yet Dr. Seehrai found a “marked” limitation in his ability to “be punctual within 25 customary full-time work tolerances” (AR 370). Similarly, the doctor assessed a “marked” limitation in Plaintiff’s ability to 26 “adhere to basic standards of neatness and cleanliness” (id.) and 27 yet all of the treatment notes show Plaintiff to be appropriately groomed (see AR 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 28 397, 398, 399, 400, 401). 23 1 examination of claimant). And it’s clear that Drs. Patterson and 2 Balson both reviewed the entire record, including Dr. Seehrai’s 3 treatment notes, up to the dates of their assessments. (See AR 4 69, 72, 84, 86.) 5 Moreover, the ALJ was required to consider all record 6 evidence, including the reports from before the application date. 7 See Tommasetti, 533 F.3d at 1041 (holding that “ALJ must consider 8 all medical opinion evidence”); § 416.927(c) (“[W]e will evaluate 9 every medical opinion we receive.”); see also Williams v. Astrue, 10 493 F. App’x 866, 868 (9th Cir. 2012) (holding that ALJ erred in 11 failing to consider medical opinions that predated alleged 12 disability-onset date by several years but concluding that error 13 was harmless) (citing Tommasetti, 533 F.3d at 1041). Further, 14 Dr. Donohue’s report was made just a few months before the 15 alleged onset date, and that date was chosen only because 16 Plaintiff’s prior applications alleging the same impairments for 17 a number of years had been denied. (See AR 65 (showing 18 penultimate denial as occurring on July 3, 2015, four days before 19 claimed onset date here).) 20 Indeed, Dr. Donohue’s opinion was particularly relevant in 21 light of her strong findings of malingering. For example, in 22 December 2014, Plaintiff complained to her of bipolar disorder 23 and memory problems and reported that he was taking psychotropic 24 medications, but those medications “had been prescribed by his 25 primary care physician, . . . he [had] never been seen by [a] 26 psychiatrist, and had never been psychiatrically hospitalized.” 27 (See AR 23 (citing AR 286-91).) Dr. Donohue further observed 28 that “although [he] reported receiving mostly failing grades in 24 1 school, as well as being in special classes,” that was not 2 reflected in his school records. (AR 23 (citing AR 288).) His 3 “motor activity” showed “intentional slowing.” (AR 289.) Her 4 primary diagnosis was “malingering.” (AR 290.) In her medical- 5 source statement, she assessed that he would have little or no 6 difficulty following instructions, making simple decisions, 7 complying with workplace rules, and responding to changes, all 8 consistent with Plaintiff’s RFC. (See AR 82, 291.) 9 Similarly, Dr. Patterson noted “contradictions” in the 10 record, “requests for notes from MD saying he ha[d] this and that 11 problem,” no history “of psychiatric admissions,” and a high- 12 school “transcript showing C+ GPA” and not the failing grades 13 Plaintiff claimed, and she indicated that he had “the mental 14 capacity to sustain work-like activities in a non-public work 15 setting.” (AR 70-71.) Likewise, Dr. Balson’s review assessed 16 inconsistencies between Plaintiff’s allegations and the medical- 17 opinion evidence, several reports of malingering, and a lack of 18 objective signs of psychosis or inpatient admissions. (AR 86.) 19 The inconsistencies between the foregoing evidence and Dr. 20 Seehrai’s conclusory 2018 opinions of extreme or marked 21 functional limitations provided specific and legitimate reasons 22 for discounting those opinions.17 See Maestas v. Berryhill, 692 23 F. App’x 868, 869 (9th Cir. 2017) (finding that doctor’s opinion 24 assessing functional limitations inconsistent with treatment 25 notes and objective findings that were within normal limits was 26 27 17 Dr. Seehrai’s extreme assessed limitations were also inconsistent with his finding at every appointment that Plaintiff 28 was able to handle his own medications. (See, e.g., AR 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401.) 25 1 entitled to “little weight”); Baker v. Colvin, No. 16-cv-01048- 2 CAB (JMA), 2017 WL 2889302, at *11 (S.D. Cal. July 7, 2017) (ALJ 3 properly discounted treating psychiatrist’s opinion as 4 inconsistent with clinical findings by examining psychiatrist, 5 who found no significant cognitive defects), accepted by 2017 WL 6 3457189 (S.D. Cal. Aug. 11, 2017). 7 Plaintiff further contends that the ALJ improperly cherry- 8 picked notes from Dr. Seehrai showing his improvement, ignoring 9 other evidence demonstrating that his condition had at times 10 deteriorated. (J. Stip. at 7-8.) He is correct that an ALJ must 11 “review the administrative record as a whole, weighing both the 12 evidence that supports and the evidence that detracts from the 13 Commissioner’s conclusion.” Reddick, 157 F.3d at 720. But the 14 ALJ did so here. She gave a detailed recitation of the mental- 15 health evidence, which was fairly limited, and carefully 16 considered all of it. (See AR 22-25.) 17 And contrary to Plaintiff’s allegations, Dr. Seehrai’s 18 treatment notes demonstrate a steady trend of improvement in his 19 sleep, agitation level, eye contact, and mood and the waning of 20 hallucinations. For instance, he reported sleep disturbances in 21 March and August 2015 (AR 316, 327), but in February 2016 22 reported that he “sle[pt] a lot” (AR 344); stopped taking 23 Benadryl in April 2016 because he was “sleeping ok w[ithout] it” 24 (AR 343); had “ok” sleep and appetite in August and October 2016, 25 February 2017, and April and June 2018 (AR 387, 389, 397, 399, 26 400) and “good” sleep and appetite in April, June, August, 27 October 2017, and May 2018 (AR 388, 393, 394, 395, 396); there 28 was only one report of “not sleep[ing]” in January 2018 (AR 391). 26 1 Similarly, he “presented as agitated, defensive and intimidating” 2 in March 2015 (AR 314) and reported audio and visual 3 hallucinations in March, May, August, and September 2015 and at 4 all appointments in 2016 (AR 314, 319-20, 326, 327, 344, 360, 5 398, 399, 400), but then he reported “less” audio and visual 6 hallucinations in February 2017 (AR 397); felt “better” and no 7 longer believed “that somebody was touching” him in April 2017 8 (AR 396); reported no audio or visual hallucinations in June, 9 August, and November 2017 and January through June 2018 (AR 387, 10 388, 389, 390, 391, 392, 394, 395), and with audio and visual 11 hallucinations and paranoia described as “under control” in 12 October 2017 and June 2018 (AR 387, 393). 13 The same improvement pattern is reflected in notes regarding 14 his eye contact and tendency to become agitated, with “poor eye 15 contact” noted from March through September 2015 (AR 317, 326) 16 and “low eye contact” noted in February, April, and August 2016 17 (AR 327, 343, 344, 400), but then “fair” eye contact and behavior 18 “within normal limits” noted in October 2015, June 2016, and at 19 all appointments from October 2016 through November 2017 (AR 325, 20 360, 392-99). Indeed, “appearance/hygiene,” “behavior,” 21 “mood/affect,” “perceptual process,” “thought process,” “thought 22 content,” and “memory” were all “within normal limits” and 23 insight and judgment were “fair” at every appointment from 24 November 2017 through June 2018. (AR 387-92.) 25 The ALJ did not err in partially rejecting Dr. Seehai’s 26 opinions. Remand is not warranted. 27 28 27 1 B. The ALJ Properly Evaluated Plaintiff’s Subjective 2 Symptom Statements 3 Plaintiff asserts that the ALJ failed to properly evaluate 4 his subjective symptom statements. (J. Stip. at 17-26.) For the 5 reasons discussed below, the ALJ did not err. 6 1. Applicable law 7 An ALJ’s assessment of a claimant’s allegations concerning 8 the severity of his symptoms is entitled to “great weight.” 9 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 10 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 11 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to 12 believe every allegation of disabling pain, or else disability 13 benefits would be available for the asking, a result plainly 14 contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 674 15 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 16 597, 603 (9th Cir. 1989)). 17 In evaluating a claimant’s subjective symptom testimony, the 18 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 19 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 20 2016). “First, the ALJ must determine whether the claimant has 21 presented objective medical evidence of an underlying impairment 22 ‘which could reasonably be expected to produce the pain or other 23 symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (citation 24 omitted). If such objective medical evidence exists, the ALJ may 25 not reject a claimant’s testimony “simply because there is no 26 showing that the impairment can reasonably produce the degree of 27 symptom alleged.” Id. (citation omitted; emphasis in original). 28 If the claimant meets the first test, the ALJ may discount the 28 1 claimant’s subjective symptom testimony only if she makes 2 specific findings that support the conclusion. See Berry v. 3 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or 4 affirmative evidence of malingering, the ALJ must provide a 5 “clear and convincing” reason for rejecting the claimant’s 6 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 7 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 8 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 9 Cir. 2014). The ALJ may consider, among other factors, the 10 claimant’s (1) reputation for truthfulness, prior inconsistent 11 statements, and other testimony that appears less than candid; 12 (2) unexplained or inadequately explained failure to seek 13 treatment or to follow a prescribed course of treatment; (3) 14 daily activities; (4) work record; and (5) physicians’ and third 15 parties’ statements. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 16 996, 1006 (9th Cir. 2015) (as amended); Thomas, 278 F.3d at 958- 17 59 (citation omitted). If the ALJ’s evaluation of a plaintiff’s 18 alleged symptoms is supported by substantial evidence in the 19 record, the reviewing court “may not engage in second-guessing.” 20 Thomas, 278 F.3d at 959. 21 2. Relevant background 22 In his February 2, 2016 function report, Plaintiff stated 23 that he became paranoid around people, felt that they laughed and 24 stared at him, and sometimes wanted to fight them. (AR 231.) He 25 also had memory difficulties and trouble sleeping. (Id.) His 26 daily activities were watching television, going outside and 27 watching the cars pass, taking his pills, sometimes fighting with 28 his parents, and sleeping. (AR 232.) He reported nightmares as 29 1 well as spirits and black shadows that would come into his room 2 and laugh and point at him. (Id.) He fought with family and a 3 neighbor and lost all of his friends. (AR 236.) He had 4 difficulty concentrating and remembering things and didn’t like 5 authority figures. (AR 236-37.) 6 At his hearing, he testified that he lived with his parents 7 and last worked regularly in 2011. (AR 47-48.) In 2016 and 8 2017, he participated in clinical trials for compensation and 9 earned about $5000 each year. (AR 49-50; see also AR 187 10 (showing wages in 2016 of $5227 and in 2017 of $4852).) He 11 couldn’t look for other work because the DMV had taken his 12 driver’s license away on account of his schizophrenia. (AR 51.)18 13 He started seeing Dr. Seehrai because he “was hearing voices and 14 seeing shadows, and had anxiety problems.” (AR 52.) He reported 15 that although there was “a little bit” of improvement with 16 treatment, two or three times a week he still saw two shadows “in 17 particular” and heard “voices that cuss[ed him] out and t[old] 18 him . . . to kill [him]self.” (Id.) That made him “nervous and 19 scared,” and he would lock himself in his room for the whole day. 20 (AR 53.) This affected his ability to get along with his family, 21 and he had no friends. (Id.) He also reported poor memory and 22 focus as well as depression and suicidal thoughts weekly. (Id.) 23 He sometimes would forget to take his medications, but his mother 24 would remind him to do so. (AR 54.) He testified that he had 25 26 27 28 18 In February 2016, Plaintiff reported that he didn’t drive because his “car brok[e] down.” (AR 234.) 30 1 been in special-education classes from sixth to 12th grade.19 (AR 2 55.) He read slowly and couldn’t remember things or concentrate. 3 (AR 56.) 4 3. Analysis 5 Plaintiff asserts that the ALJ “must consider all relevant 6 evidence in the record” (J. Stip. at 17 (emphasis in original)) 7 and that the “absence of sufficient articulated rationale is 8 itself legal error warranting remand” (id. at 18). But he can’t 9 have it both ways; consideration of all record evidence must 10 include the evidence of malingering, which he doesn’t mention 11 anywhere in his portion of the Joint Stipulation; his daily 12 activities; and his improvement with treatment. On those 13 grounds, his subjective symptom testimony was properly 14 discounted. 15 a. Malingering 16 As an initial matter, Plaintiff has not discussed or 17 contested the ALJ’s reliance on the evidence of malingering, 18 which, as explained below, fully supports her discounting of his 19 subjective symptom statements. By failing to do so, he 20 implicitly concedes its legitimacy. See Arlene R.M. v. Comm’r of 21 Soc. Sec., No. 17-CV-370-FVS, 2019 WL 267912, at *5 (E.D. Wash. 22 Jan. 18, 2019) (rejecting plaintiff’s argument that her 23 “credibility” was “bolstered” by certain evidence when she 24 “fail[ed] to address the reasons cited by the ALJ or demonstrate 25 any error”). For that reason alone, remand is not warranted on 26 27 19 As noted, in his Disability Report, Plaintiff apparently 28 denied having been enrolled in special-education classes. (See

AR 198.)

31 1 this claim. In any event, as discussed later, the other reasons 2 the ALJ gave for discounting Plaintiff’s statements were clear 3 and convincing and fully supported by the record. 4 The ALJ permissibly discounted Plaintiff’s symptom 5 statements based on affirmative evidence of malingering. Indeed, 6 after administering a variety of tests, including some designed 7 specifically to assess malingering, Dr. Donohue made a primary 8 diagnosis of malingering. (See AR 291 (“If this claimant is 9 currently receiving benefits, the fraud unit needs to be 10 contacted.”)); cf. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 11 685, 693 (9th Cir. 2009) (requiring only “affirmative evidence” 12 of malingering (citation omitted)); Flores v. Comm’r of Soc. 13 Sec., 237 F. App’x 251, 252–53 (9th Cir. 2007) (same). That Dr. 14 Donohue’s assessment was shortly before the relevant time period 15 doesn’t matter because it plainly demonstrates a pattern and 16 history of malingering concerning the same symptoms he alleges 17 now. See John B. v. Saul, No. 4:19-CV-05126-JTR, 2020 WL 18 5745818, at *8 (E.D. Wash. Aug. 5, 2020) (rejecting plaintiff’s 19 objection to assessments predating relevant time period and 20 finding pattern of exaggerating symptoms established by 21 substantial evidence). 22 In addition, Drs. Patterson, Balson, Donohue, and Taylor 23 noted “requests for notes from MD saying he has this and that 24 problem” (AR 71, 84); inconsistencies between his statements and 25 treatment records (AR 71, 84, 86); inconsistencies between his 26 statements and school records (AR 71, 85); no history of 27 psychiatric admissions (AR 71, 84, 280, 288); and below normal 28 32 1 scores of 22 and 25 on the Test of Memory Malingering20 (AR 281- 2 83). As the foregoing constitutes affirmative evidence of 3 malingering, the ALJ was entitled to reject Plaintiff’s testimony 4 on that basis alone. See Valentine, 574 F.3d at 693; Flores, 237 5 F. App’x at 252-53; see also Tonapetyan, 242 F.3d at 1148 6 (finding that symptom exaggeration is valid basis for discounting 7 symptom testimony). 8 b. Daily Activities 9 An ALJ also may properly discount a plaintiff’s subjective 10 symptom statements when they are inconsistent with his daily 11 activities. See Molina, 674 F.3d at 1112. “Even where those 12 [daily] activities suggest some difficulty functioning, they may 13 be grounds for discrediting the claimant’s testimony to the 14 extent that they contradict claims of a totally debilitating 15 impairment.” Id. at 1113. The ALJ here noted that Plaintiff 16 “c[ould] care for personal care needs, prepare[d] simple meals, . 17 . . fe[d] his dog, [went] shopping for simple items, and 18 watche[d] television” — and performed “work activity” during the 19 clinical trials in which he participated — suggesting that his 20 “daily activities ha[d], at least at times, been somewhat greater 21 than [he] ha[d] reported.” (AR 24); see Reddick, 157 F.3d at 722 22 (ALJ may discount subjective symptom statements when “level of 23 24 20 This is a visual-recognition test designed to help 25 mental-health practitioners distinguish between true and feigned memory impairments. See Test of Memory Malingering (TOMM), 26 Criminal Justice, http://criminal-justice.iresearchnet.com/ 27 forensic-psychology/test-of-memory-malingering-tomm/ (last visited Jan. 25, 2021). “[A]ny score lower than 45 should raise 28 concern that an individual is not putting forth the maximum effort and is likely malingering.” Id. 33 1 activity [is] inconsistent with Claimant’s claimed limitations”). 2 Her reliance on this evidence was proper. See Bray v. Comm’r of 3 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (affirming 4 ALJ’s rejection of symptom allegations as inconsistent with 5 claimant’s recent work and search for other employment); Fair, 6 885 F.2d at 604 (finding that ALJ properly relied on daily- 7 activity testimony that plaintiff “remain[ed] capable of caring 8 for all his own personal needs, the performance of his own 9 routine household maintenance and shopping chores, riding public 10 transportation, and driving his own automobile”). 11 c. Objective Medical Evidence 12 Contradiction with evidence in the medical record is a 13 “sufficient basis” for rejecting a claimant’s subjective symptom 14 testimony. Carmickle, 533 F.3d at 1161; see Morgan v. Comm’r of 15 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (upholding 16 “conflict between [plaintiff’s] testimony of subjective 17 complaints and the objective medical evidence in the record” as 18 “specific and substantial” reason undermining credibility). 19 Although a lack of medical evidence “cannot form the sole basis 20 for discounting pain testimony, it is a factor that the ALJ can 21 consider in his credibility analysis.” Burch v. Barnhart, 400 22 F.3d 676, 681 (9th Cir. 2005). 23 As discussed above, the objective medical evidence showed a 24 trend of improvement over time with treatment and the 25 normalization of Plaintiff’s medication regimen. (See AR 373- 26 401); see also § 416.929(c)(3) (stating that claimant’s 27 medications and treatment are relevant to assessing symptom 28 allegations). And as the ALJ noted (AR 25), Plaintiff’s periods 34 1 of improvement coincided with his medication compliance. See 2 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 3 Cir. 2006) (“Impairments that can be controlled effectively with 4 medication are not disabling for the purpose of determining 5 eligibility for SSI benefits.”).21 The most recent of Dr. 6 Seehrai’s treatment notes, for 2017 and 2018, showed that 7 Plaintiff’s condition had stabilized such that his mental-status 8 exams were consistently within normal limits, with fair insight 9 and judgment and full orientation. (See AR 387-97.) 10 As required, the ALJ identified which of Plaintiff’s 11 statements were inconsistent with cited record evidence 12 undermining his symptom complaints. Brown-Hunter, 806 F.3d at 13 493; Reddick, 157 F.3d at 722. She did not err in discounting 14 Plaintiff’s subjective symptom statements. 15 VI. CONCLUSION 16 Consistent with the foregoing and under sentence four of 42 17 U.S.C. § 405(g),22 IT IS ORDERED that judgment be entered 18 19 21 The ALJ may have erred in finding Plaintiff’s treatment 20 with antipsychotic medication to be “routine and/or conservative in nature.” (AR 24-25.) But even if she was wrong, see, e.g., 21 Childress v. Colvin, No. EDCV 14-0009-MAN., 2015 WL 2380872, at 22 *14 (C.D. Cal. May 18, 2015) (finding treatment of prescription antidepressants and antipsychotics and talk therapy not properly 23 characterized as conservative), she did not err in concluding that it was largely effective. Moreover, as discussed above, the 24 ALJ gave other legally sufficient reasons for partially discounting Plaintiff’s credibility. 25 26 22 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, 27 a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the 28 cause for a rehearing.” 35 1 JAFFIRMING the Commissioner’s decision and DENYING Plaintiff's 2 |lrequest for remand. 3 Att 4 "DATED: January 26, 2021 {

JEAN ROSENBLUTH

5 U.S. Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36