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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 LARRY OUNKHAM, Case No. 1:20-cv-01371-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL (ECF Nos. 1, 15).

SECURITY,

16 Defendant. 17 18 19 This matter is before the Court on Plaintiff’s complaint for judicial review of an 20 unfavorable decision by the Commissioner of the Social Security Administration regarding his 21 application for disability benefits. The parties have consented to entry of final judgment by the 22 United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal to the 23 Court of Appeals for the Ninth Circuit. (ECF No. 21). 24 Plaintiff presents the following issues for decision: “1) Whether The ALJ Failed to 25 provide any evidence to support the Residual Function Capacity [(RFC)]; 2) Whether These 26 Failures Were Harmful; and 3) Whether this case should be remanded for payment of benefits or 27 further proceedings.” (ECF No. 15, p. 7). 28 2 applicable law, the Court finds as follows: 3 I. ANALYSIS 4 Plaintiff argues that the ALJ’s RFC assessment regarding Plaintiff’s mental impairments2 5 is unsupported by substantial evidence because the ALJ failed to accept any of the medical 6 opinions in the record on this issue and instead relied on the ALJ’s own interpretation of the 7 medical evidence. (ECF No. 15, pp. 7-12). And without any medical opinion to rely on, Plaintiff 8 argues that the ALJ subsequently failed to develop the record regarding Plaintiff’s mental 9 impairments by obtaining a consultative exam. (Id. at 12). 10 A claimant’s RFC is “the most [a claimant] can still do despite [his] limitations.” 20 11 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 12 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 13 capacity for sustained performance of the physical-mental requirements of jobs”). In formulating 14 the RFC, the ALJ weighs medical and other source opinions and the record as a whole. See, e.g., 15 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009); Morgan v. Comm’r of 16 Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (holding that ALJ was “responsible for 17 resolving conflicts” and “internal inconsistencies” within doctor’s reports); Tommasetti v. Astrue, 18 533 F.3d 1035, 1041-1042 (9th Cir. 2008) (“[T]he ALJ is the final arbiter with respect to 19 resolving ambiguities in the medical evidence.”); Smith v. Saul, No. 1:18-CV-01614-GSA, 2020 20 WL 2611680, at *5 (E.D. Cal. May 22, 2020) (rejecting “the residual functional capacity 21 determination for lack of compliance with applicable law and insufficient support from the record 22 as a whole”). 23 In reviewing findings of fact with respect to such determinations, this Court determines 24 whether the Commissioner’s decision is supported by substantial evidence. 42 U.S.C. § 405(g). 25 Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 26

27 1 Plaintiff filed an opening brief on December 1, 2021, and the Commissioner responded on January 24, 2022. (ECF Nos. 15, 18). Plaintiff did not file a reply. 28 2 Plaintiff does not challenge the ALJ’s RFC assessment regarding Plaintiff’s physical impairments. 2 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion.” Richardson, 402 U.S. at 401. Lastly, an ALJ has a duty to develop the 4 record “only when there is ambiguous evidence or when the record is inadequate to allow for 5 proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). 6 Here, the ALJ gave the following reasons in support of Plaintiff’s RFC assessment: 7 I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he can lift and 8 carry 50 pounds occasionally and 25 pounds frequently; stand, walk, and sit six hours each in an eight-hour workday; frequently climb ramps and stairs, stoop, and 9 kneel; and occasionally climb ladders and scaffolds, crouch, and crawl. Mentally, 10 the claimant can perform simple routine tasks and perform routine work-related decisions making. He can tolerate occasional contact with supervisors and 11 coworkers, but no contact with the general public. He cannot work at a production 12 rate pace and he needs a 10-minute break every two hours. . . . . 13 The treatment record indicates a history of trauma and abuse with mental symptoms including flashbacks, hallucinations, nightmares, depression, and 14 anxiety (Exhibits D1F, pp. 4, 20, 25, 29, 45). However, the claimant’s mental 15 symptoms have improved with medication (Exhibit D1F, pp. 4, 6, 34, 38). In May 2014, a provider opined a GAF of 50; however, his provider was still working on 16 the right medication regiment at that time (Exhibit D1F, pp. 61). By June 2015, he reported feeling better with fluoxetine and having no nightmares on Abilify 17 (Exhibit D1F, p. 4). He was cooperative, alert, had normal speech, organized 18 thoughts, and was of average intelligence, but had impaired insight and judgement (Exhibits D1F, pp. 4, 6, 8, 10, 12, 14, 16, 18). In 2015, the claimant was coping 19 with his mental symptoms by attending church and he was on a waiting list for government housing (Exhibit D5F, pp. 14, 20). He reported situational stressors in 20 his life at this time (Exhibit D5F, pp. 12, 13, 14, 17, 20). He had not had any more 21 nightmares and he was doing well overall in January 2016 (Exhibit D5F, pp. 5, 6). In April 2016, the claimant told his providers that he had been hearing voices since 22 adolescents and he was hearing voices when he was depressed (Exhibit D8F, p. 26). He requested an increase in Prozac, and his provider prescribed Benadryl 23 (Exhibit D8F, p. 29). The following month, he reported improved motivation and 24 depression, less auditory hallucinations, and only rare psychosis (Exhibit D8F, p. 23). He reported a period of increased symptom[s] when his young daughter was 25 out of the country, but he was feeling better in April 2017 and he was doing well in June 2017 (Exhibit D8F, pp. 8, 10). In October 2017, the claimant was doing 26 very well and was stable on his medications (Exhibit D8F, p. 2). The undersigned 27 notes that throughout 2017 and 2016, the claimant was typically noted to be well groomed, cooperative, alert, with normal cognition and speech, had organized 28 10, 12, 14, 18, 20, 22, 29). He has continued to do well in 2018 and 2019 with 2 regard to his mental symptoms (Exhibit D14F, pp. 4, 7, 10, 12, 10, 22, 26). He reported that his medication was working well (Exhibit D14F, p. 8). 3 . . . . Christine M. Sanchez, LMFT completed a verification of incapacity for eligibility 4 for general relief (Exhibit D6F, pp. 1-2). She indicated that the claimant was 5 permanently unable to work with an onset date in 2014 due to PTSD, depression, and psychosis (Exhibit D6F, p. 1). This opinion is given little to no weight. The 6 treatment record indicates the claimant’s mental symptoms are stable with treatment, and his opinion invades on an opinion reserved to the Commissioner of 7 the Social Security Administration. Further, it is not helpful in determining the 8 claimant’s specific functional ability.

9 Nurse Practitioner Theresa Vincent, NP completed a mental disorder questionnaire 10 dated September 2017 (Exhibit D7F, pp. 1-2). It was unknown whether the claimant needed assistance to keep appointments (Exhibit D7E, p. 1). She noted 11 the claimant was from a war torn country and had a very traumatic past with a significant history of flashbacks, nightmares, depression, anxiety, and psychosis 12 (Exhibit D7F, p. 1). She also indicated that hallucinations and mood swings would 13 impair the claimant’s ability to perform full time work (Exhibit D7F, p. 1). She had first examined the claimant in February 2016 seeing him every eight weeks 14 (Exhibit D7F, p. 2). This opinion is given limited weight. As discussed above, the claimant has done fairly well with treatment. I also note that the claimant was able 15 to work for many years after leaving his war torn country of origin. I find that the 16 overall record does support limits on complex work and contact with others, as well as production pace work; but it does not appear to cause an overall preclusion 17 on full time work. I also note that it does not appear that providers have actually witnessed hallucinations. 18 . . . . 19 State agency psychological consultants A. Garcia, MD and Jenaan Khaleeli, PsyD concluded the claimant’s affective and anxiety disorders caused a mild limitation 20 in activities of daily living, social functioning and concentration, persistence, and pace; and were not severe (Exhibits D3A, p. 9; D8A, p. 9). I give these opinions 21 limited weight. Although the claimant appears to be fairly stable with treatment, 22 his overall symptoms appear to cause some restriction on his ability to perform complex tasks and interact with others. 23 . . . . The claimant’s therapist Pukan Phaoudom completed a third party function report 24 dated June 2015 (Exhibit D7E). She indicated that the claimant struggled with 25 concentration, was not able to follow instructions, was forgetful, crying and tearful at times, and he was fearful of people due to past trauma (Exhibit D7E, p. 1). He 26 had problems with sleep, nightmares, suicidal thoughts, flashbacks, and constant pain (Exhibit D7E, p. 1). However, she noted the claimant was good at keeping 27 appointments, but isolated in his room and had reminders from his mother for 28 daily activities (Exhibit D7E, p. 2). He could prepare simple meals, but could not store, and was able to handle his finances (Exhibit D7E, p. 4). He attended church, 2 but did not spend time with others (Exhibit D7E, p. 5). He could walk one block or less before needing 15-20 minutes rest, was limited in his ability to follow written 3 instructions, and he was slow and had difficulty understanding spoken instructions (Exhibit D7E, p. 6). He was respectful and fearful with authority figures, and he 4 did not handle stress or changes well (Exhibit D7E, p. 7). This report was 5 considered and given some weight with regard to the claimant’s daily activities; however, I note that the treatment record indicates increased activities and 6 decreased mental and physical symptoms that are not fully consistent with this report. 7 (A.R. 19, 22-24). 8 While Plaintiff correctly argues that it is error for an ALJ to define limitations for a 9 Plaintiff absent supporting evidence, such was not the case here. (See ECF No. 15, p. 11). As 10 reflected above, the ALJ summarized Plaintiff’s mental health records, which included notations 11 about both his symptoms and abilities, concluding that the overall record indicated that Plaintiff 12 was improving to the point of not having disabling impairments. 13 Likewise, the Court rejects Plaintiff’s contention that “[t]he ALJ did not accept any of the 14 medical opinions in the record” regarding Plaintiff’s mental RFC assessment. (ECF No. 15, p. 9) 15 (emphasis in original). True, the ALJ discounted all the opinions to a degree, but this is different 16 than not accepting the opinions at all. Notably, the only opinion that the ALJ can be said to have 17 rejected is that of LMFT Sanchez, who opined that Plaintiff was permanently disabled, with the 18 ALJ giving “little to no weight” to the opinion because, among other things, it assessed Plaintiff 19 as being disabled, which is an issue reserved for the ALJ. (A.R. 23, 940); see McLeod v. Astrue, 20 640 F.3d 881, 885 (9th Cir. 2011) (noting than “[a]n impairment is a purely medical condition” 21 but “[a] disability is an administrative determination”). However, as to the remaining opinions, 22 the ALJ gave them at least “limited weight.” 23 As to Nurse Practitioner Vincent, the ALJ gave “limited weight” to the mental disorder 24 questionnaire, which opined, among other things, about the effect that hallucinations and mood 25 swings would have on Plaintiff’s ability to perform full time work. (A.R. 23, 942). The ALJ 26 reasoned that “the overall record [did] support limits on complex work and contact with others, as 27 well as production pace work” but Plaintiff’s medical records indicated that he had done well 28 2 ALJ was well within bounds to accept the opinion in part and reject it in part. See Johnson v. 3 Saul, No. 1:19-CV-01584-SKO, 2021 WL 84377, at *6 (E.D. Cal. Jan. 11, 2021) (“[A]n ALJ’s 4 RFC determination need not precisely reflect any particular medical provider’s assessment.”). 5 Likewise, the ALJ assigned “limited weight” to the opinions of State agency 6 psychological consultants Garcia and Khaleeli who concluded that Plaintiff’s mental disorders 7 caused mild limitations and were not severe. (A.R. 24, 251, 294). The ALJ reasoned that Plaintiff 8 had been “fairly stable with treatment,” which both Garcia and Khaleeli had observed, but 9 concluded that Plaintiff’s “overall symptoms” warranted “some restriction on his ability to 10 perform complex tasks and interact with others.” (A.R. 24, 251, 294). 11 Lastly, the ALJ found that the third-party function report of Plaintiff’s therapist, 12 Phaoudom, was entitled to “some weight.” (A.R. 24). Among other things, Phaodom’s report 13 indicated that Plaintiff was fearful of people because of past trauma and, as to authority figures, 14 was “very respectful” of them but also “fearful of them at the same time.” (A.R. 553, 559). This 15 reasonably support the ALJ’s conclusion that Plaintiff had could not interact with the public but 16 could “tolerate occasional contact with supervisors and coworkers.” (A.R. 19). However, the ALJ 17 also reasonably declined to assign more weight to the report, concluding that “the treatment 18 record indicates increased activities and decreased mental and physical symptoms that are not 19 fully consistent with this report.”3 20 Based on the ALJ’s assessment of the above opinions in light of the record as a whole, the 21 Court concludes that the RFC assessment of Plaintiff’s mental limitations was supported by such 22 evidence that a reasonable mind might accept as adequate to support a conclusion and rejects 23 Plaintiff’s argument that the ALJ improperly crafted the RFC based on the ALJ’s own 24 interpretations of the record. See Digiacomo v. Saul, No. 1:19-CV-00494-BAM, 2020 WL 25 6318207, at *8 (E.D. Cal. Oct. 28, 2020) (affirming RFC assessment based on all record evidence 26 and where “ALJ did not substitute her judgment for a competent medical opinion, play doctor, or 27 3 Phaoudom’s report was also based on Plaintiff’s physical impairments. As noted above, Plaintiff has not 28 challenged the ALJ’s RFC assessment of Plaintiff’s physical impairments. 1 | make independent medical findings”). Because the ALJ did not err regarding the RFC assessment 2 | and the record was not ambiguous, there was no duty for the ALJ to further develop the record. 3 | See Harrison v. Saul, No. 1:19-CV-01683-BAM, 202] WL 1173024, at *5 (E.D. Cal. Mar. 29, 4 | 2021) (“Because it is the Plaintiff's burden to present evidence of disability, the mere absence of 5 | an opinion from an examining physician does not give rise to a duty to develop the record; rather, 6 | that duty is triggered only where there is an inadequacy or ambiguity.”). 7 | OL CONCLUSION AND ORDER 8 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 9 | evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 10 | DENIES Plaintiff's appeal from the administrative decision. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Commissioner of Social Security, and against Plaintiff Larry Ounkham. 13 14 | IT IS SOORDERED. ° Dated: _ March 9, 2022 [Jee hey

UNITED STATES MAGISTRATE JUDGE

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