Opinion
ED CV 22-2233-CAS(E)
08-29-2023
RHIANNA M., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff filed a complaint on December 21, 2022, seeking review of the Commissioner's denial of benefits. Plaintiff filed "Plaintiff's Opening Brief" on May 24, 2023. Defendant filed "Defendant's Responsive Brief" on August 10, 2023. Plaintiff filed "Plaintiff's Reply, etc." on August 23, 2023. The Court has taken the matter under submission without oral argument. See L.R. 7-15.
BACKGROUND
Plaintiff asserts disability since December 2, 2019 (when she was 19 years old), based on allegations of, inter alia, aplastic anemia, conversion disorder, anxiety, attention deficit hyperactivity disorder ("ADHD"), and hidradenitis suppurativa (Administrative Record ("A.R.") 20, 43, 180-86, 198, 269). An Administrative Law Judge ("ALJ") reviewed the record, heard testimony from Plaintiff and a vocational expert, and obtained interrogatory responses from a medical expert (A.R. 20-34, 39-65, 649-66).
Aplastic anemia reportedly occurs when bone marrow does not make enough new blood cells, potentially resulting in arrhythmias, an enlarged heart, heart failure, infections, bleeding and, in severe cases, death (A.R. 340). Conversion disorder reportedly occurs when the body responds with physical symptoms to intense emotional stress or trauma, potentially resulting in the inability to move or feel parts of the body, the inability to stand or walk normally, feeling like movement is out of one's control, loss of speech, sight or hearing, trouble urinating or swallowing and tremors or seizures (A.R. 341). The primary treatment for conversion disorder is psychotherapy (A.R. 341). Hidradenitis suppurativa is a skin condition that causes painful lumps, usually where skin touches skin, like the armpits, inner thighs and groin area, which can develop wounds that fail to heal and which interfere with sitting or walking. Treatment may include medication, wound care and pain control. See https://www.aad.org/public/diseases/a-z/hidradenitis-suppurativa-overview.
The ALJ found that Plaintiff has "severe" ADHD, anxiety disorder, conversion disorder, chronic idiopathic thrombocytopenic purpura,cervical and lumbar degenerative disc disease, hidradenitis, and migraine headaches (A.R. 22). The ALJ deemed Plaintiff capable of performing a limited range of light work, involving: (1) no exposure to extreme cold, heat or wetness; (2) no more than occasional exposure to atmospheric conditions (fumes, noxious odors, dusts, mists, gases or poor ventilation); (3) no climbing of ladders, ropes or scaffolds, and no working at unprotected heights or around dangerous moving mechanical parts; (4) making simple work-related decisions and understanding, remembering and carrying out simple instructions for work not requiring a specific production rate; and (5) a "low demand work setting" (i.e., no more than occasional interaction with the general public and no more than occasional changes in a routine work setting). See A.R. 25-32 (adopting greater limitations than the medical sources found to exist, with the exception of a limitation to performing only one- and two-step tasks that a state agency reviewer had found, see A.R. 88-90, 93-95); see also A.R. 274-75 (Plaintiff's then counsel's hearing brief suggesting that the ALJ should limit Plaintiff to light work with environmental limits including avoidance of excessive heat). In assessing this capacity, the ALJ discounted Plaintiff's testimony and statements suggesting greater limitations (A.R. 26-30) . ///
Chronic idiopathic thrombocytopenic purpura ("ITP") is a blood disorder characterized by low platelet levels. See https://www.mayoclinic.org/diseases-conditions/idiopathic-thrombo cytopenic-purpura/symptoms-causes/syc-20352325.
The ALJ identified certain jobs Plaintiff assertedly could perform, and, on that basis, denied disability benefits (A.R. 33-34 (adopting vocational expert testimony at A.R. 58-60)). The Appeals Council denied review (A.R. 6-10) .
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
DISCUSSION
Plaintiff argues that the Administration erred by assertedly: (1) discounting Plaintiff's testimony and statements concerning alleged limitations from conversion disorder; (2) discounting medical expert Dr. Akins' opinion; (3) failing to account for Plaintiff's alleged spinal limitations; and (4) failing to find that Plaintiff met or equaled Listing 8.06 by reason of hidradenitis suppurativa or otherwise to include limitations based on this condition in Plaintiff's residual functional capacity. See Plaintiff's Opening Brief, pp. 5-15. For the reasons discussed below, the Magistrate Judge recommends that judgment be entered in favor of Defendant. Contrary to Plaintiff's arguments, the Administration's findings are supported by substantial evidence and are free from material legal error.
The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).
I. Summary of the Relevant Education Evidence and the Relevant Medical Evidence
Much of the record evidence predates the December 2, 2019 alleged onset date. The arguably relevant evidence, dated before and after this date, is summarized below.
A. Education Evidence
A March, 2016 "Initial Psycho-Educational Report," from when Plaintiff was in the 9th Grade, reflects that Plaintiff was tested for a learning disorder, but she did not meet the criteria therefor (A.R. 295-314). Plaintiff was attending general education classes with some accommodation for anxiety symptoms (A.R. 296; see A.R. 340-42 ("Classroom Health Care Plan" ("504 plan") from Plaintiff's 9th grade year)). Her attendance then was unsatisfactory, but improving (A.R. 296). Her organizational skills, effort, task completion, attitude, and responsibility were "mostly satisfactory to strong" (A.R. 298).
For reasons unknown, the last 10 pages of this report reference a student named Justin, so the Court has not considered those pages. See A.R. 315-24.
Plaintiff's 504 plan allowed for the use of a walker for ambulation, as well as unlimited access to water, the health office and the restroom (A.R. 339, 341).
Plaintiff then reported a medical history including: (1) conversion disorder diagnosed in September of 2015, when Plaintiff had an episode of bilateral leg weakness, abnormal gait and confusion followed by hospitalization for evaluation and treatment; (2) aplastic anemia; (3) ADHD (for which she was taking Adderall); and (4) anxiety (for which she was taking Gabapentin) (A.R. 297; see also A.R. 335 (2008 letter reporting Plaintiff had been diagnosed with ADD/ADHD in elementary school); A.R. 339 (school nurse note regarding Plaintiff's medical conditions)). Plaintiff had been attending weekly counseling and was using a trained service dog, which reportedly helped with her conversion disorder symptoms - she had not had any conversion disorder "episodes," according to her parent (A.R. 297, 299).
For the first three months after her conversion disorder diagnosis, Plaintiff's doctor restricted her physical activities at school (e. g., no sports, physical exercise or dance) (A.R. 339). By February of 2016, Plaintiff's doctor allowed her to participate in ROTC activities, drill, marching and dance (A.R. 297-98).
B. Psychiatric Treatment Evidence
The record includes psychiatric treatment notes related to anxiety, depression, and ADHD from March of 2015 (when Plaintiff was 14 years old) through March of 2019 (just after she graduated from high school) (A.R. 351-403, 431-43). All of these records predate the alleged disability onset date. Plaintiff initially complained of debilitating anxiety with, inter alia, poor concentration, occasional panic attacks and depression (A.R. 351). She also reported a history of poor concentration since before age seven (A.R. 351). She then was not taking any medication, but reportedly had taken Adderall in the past (A.R. 352). Her knowledge was estimated to be average, but she was failing school due to poor concentration and lack of motivation (A.R. 355-56 (describing Plaintiff as "intelligent")). Her providers had tried various medications before settling on Adderall: Lexapro (which Plaintiff did not tolerate), Prozac (which reportedly resulted in Plaintiff cutting her wrist), and Zoloft (which reportedly made Plaintiff dizzy) (A.R. 356, 377-78, 380, 382, 388).
An October, 2015 note reports that Plaintiff had been admitted to the hospital for conversion disorder due to allegations of confusion, memory lapse and, supposedly, an inability to walk (A.R. 380). Yet, she then was walking "fine" (A.R. 380). Later in October, Plaintiff reported that she had fallen at school, and she presented with wobbly legs and unsteady gait, so her doctor increased her Zoloft dose (A.R. 383-85). By December of 2015, Plaintiff had stopped taking Zoloft due to alleged dizziness and had obtained a service dog, which supposedly had resolved her dizziness completely (A.R. 386). Yet, Plaintiff reportedly was still wobbly on her feet and needed a walker in the absence of her dog (A.R. 386). She was not attentive and was not turning in her homework (A.R. 386). Her doctor restarted Adderall and authorized Plaintiff to bring her dog to class (A.R. 388).
By February of 2016, Plaintiff reportedly was doing very well, with no concerns (A.R. 389). Adderall was helping with her focus, her mood was good, and she was getting all A's in school (A.R. 389). She had a normal gait (with her service dog present) (A.R. 389-90). Her doctor added a second Adderall dose to help with afternoon focus (A.R. 390-91) .
In April of 2016, Plaintiff reported that she was taking Adderall and getting good grades in school (A.R. 358-59, 361). Reportedly, she still had depression and irritability, and she "shut[] down when challenged" (A.R. 358-59). She complained that conversion disorder did not make sense "with regard to her symptoms" because she no longer was anxious (A.R. 358). Blackouts reportedly still occurred when Plaintiff got too hot (A.R. 358). In July of 2016, Plaintiff said that Adderall had been helpful for the previous school year and that she had only one episode of an unsteady gait (the week prior), which her mother had attributed to low blood sugar (A.R. 392).
In November of 2016, Plaintiff reported that she was still taking Adderall, her mood was good, she denied having any anxiety and she was "doing well" (A.R. 395). She reportedly had some mild dizziness but no syncope or falling, and she had not been needing her service dog as much as before (A.R. 395). She reported "mild anorexia" (A.R. 395). On examination, she appeared to have mild anxiety and her judgment/ insight reportedly were impaired (A.R. 396).
In March of 2017, Plaintiff said she was "doing great," taking her medications to stay focused, and attending school daily without her service dog (A.R. 398). Plaintiff denied any anxiety or depression (id.). Similarly, in April of 2017, Plaintiff reported that she rarely took her service dog to school (A.R. 367). Based on her improvements, Plaintiff no longer met "medical necessity" for the "level of care" she was receiving (A.R. 372). She was doing well in school and socially (A.R. 367). She was in ROTC and "on colorguard" id. She also had a boyfriend (id.). She said she wanted to join the Air Force when she graduated from high school (id.).
In October of 2017, Plaintiff reported that she was doing well overall, but her grades had slipped a little since she had run out of Adderall one month earlier (A.R. 402). She denied any anxiety or conversion symptoms (A.R. 402). On examination, she appeared to have mild anxiety and was distractable (A.R. 402). Her doctor restarted Adderall (A.R. 402) .
In April of 2018, a nurse practitioner assessed ADHD and generalized anxiety disorder and continued Plaintiff's Adderall (A.R. 442). In June of 2018, Plaintiff reported that her focus was good with Adderall and that she was going to summer school (A.R. 439). In August of 2018, Plaintiff claimed that she was tired all the time, but said that Adderall was helpful (A.R. 437). In September of 2018, Plaintiff reported that she was doing well in school using Adderall, and her mood was stable (A.R. 435). In January and March of 2019, Plaintiff reported that she was doing well, and she had graduated from high school (A.R. 431, 433). She then took Adderall only on weekends (A.R. 431, 433).
C. Other Treatment Evidence
The record contains some treatment notes for other conditions. In April of 2017, Plaintiff presented to Loma Linda University Health Pediatric Oncology for leukopenia and thrombocytopenia (A.R. 404). She complained of heavy periods and some aches and pains, including intermittent bilateral hip and right shoulder pain (A.R. 404). She then was performing "rigorous" physical education as part of her ROTC program, including playing football and basketball (A.R. 404). She also had bilateral, non-healing abscesses in the perineal region, which were diagnosed as fistulas and referred for wound care (A.R. 410) .
In June of 2017, Plaintiff presented to her primary provider with Riverside University Health System, complaining of a left groin cyst treated with sulfa but not healed thereby (A.R. 454). She was given antibiotic ointment for the cyst (A.R. 455).
In March of 2018 and March of 2019, Plaintiff followed up with her oncologist, reporting continued non-healing perineal abscesses for which she had not yet had surgery (A.R. 416-21). At the later appointment, her doctor cleared her for surgery (A.R. 420-21).
Also in March of 2019, Plaintiff presented to her primary provider, asking for testing for fibromyalgia and rheumatoid arthritis because she said she had aches in her hip and knees (A.R. 465). She reported having had knee problems since she was 12, for which arthritis testing had been negative (A.R. 465). Plaintiff also said she wanted a knee brace because she claimed she sometimes could not bear weight on her knee (A.R. 465). On examination, her knees were normal, with full range of motion and a normal gait (A.R. 466). Blood testing also was normal (A.R. 468). Her provider was awaiting knee x-rays, but assessed patellar tendinitis in both knees and referred her for physical therapy (A.R. 468-70). There are no physical therapy notes in the record, however.
Plaintiff returned to her primary provider in September of 2019, complaining of recurrent skin infections/lesions in her groin area (A.R. 479). Her provider prescribed Doxycycline and Lidocaine patches and referred her to dermatology (A.R. 482-83). She returned later that month, reporting that Doxycycline did not help and that she had not yet gone to a dermatologist (A.R. 484). Her provider prescribed Keflex (A.R. 485). ///
In February of 2020, Plaintiff returned to her primary provider, complaining of a history of chronic headaches (although an MRI reportedly had been normal) (A.R. 544). Plaintiff sought a neurology referral (id.). In March of 2020, Plaintiff presented to neurologist Dr. Raja Boutros for evaluation of "daily" headaches since a July, 2019 car accident (A.R. 511), Plaintiff also complained of sciatica and right side tremors supposedly preventing her from writing (A.R. 511). She said she smoked marijuana daily for pain (A.R. 511). Examination findings were within normal limits (A.R. 512). Dr. Boutros diagnosed vascular headaches (with phono phobia and photo phobia), cervicalgia, marijuana dependence, "essential tremor," a history of scoliosis and a history of sciatica (A.R. 512). Dr. Boutros ordered imaging and prescribed Propranolol and Maxalt (A.R. 513) .
The record does not contain records of any treatment that may have occurred in the immediate aftermath of the car accident.
Plaintiff followed up regarding test results in April of 2020 (A.R. 514-16). Spine MRIs showed disc bulges with some stenosis in the lumbar, cervical and thoracic spine, as well as two wedge-type compression fractures at ¶ 6 and T7 (A.R. 515-16; see also A.R. 518-25 (MRI reports)). This "constellation of findings" was thought possibly to be secondary to Scheuermann's disease (A.R. 515-16). Dr. Boutros diagnosed common migraines, bulging lumbar and cervical discs, sciatic leg pain, and thoracic spine wedge compression fractures (A.R. 516). Dr. Boutros requested a brain MRI for Plaintiff's migraines and referred Plaintiff to neurosurgery for her bulging lumbar discs (A.R. 516). Her primary provider also ordered a thoracic brace (A.R. 539-40) .
Plaintiff returned to Dr. Boutros in June of 2020, complaining of continued headaches, and she reported that she had not yet seen a surgeon (A.R. 585). Her brain MRI was negative (A.R. 586; see also A.R. 594 (MRI report)). Plaintiff reportedly was noncompliant with her headache medications because she "was told it could be problematic for her 'back surgery'" (although she had not yet seen a surgeon) (A.R. 586) .
Also in June of 2020, Plaintiff followed up with her oncologist (A.R. 531). Plaintiff reported that she was "doing fair," but that she had been struggling for the past two years with non-healing perineal abscesses (A.R. 531). She still had not had surgery for the abscesses (A.R. 531). Testing showed mild thrombocytopenia for which she would need a platelet transfusion prior to any spine surgery (A.R. 534). Her blood counts reportedly were within an acceptable range for surgical invervention for the abscesses (A.R. 534). Her doctor referred her to rheumatology to rule out any immunology disorder (A.R. 535) .
In October of 2020, Plaintiff presented to her primary provider, complaining of fatigue and requesting a back brace (A.R. 633-34). Her scoliosis brace reportedly did not help, she had not yet been to physical therapy and she "was dismissed by the neurosurgeon" (A.R. 634). She reportedly was getting pain management injections (A.R. 634). Her provider advised her to bring her current brace to physical therapy for evaluation and offered a referral to a different neurosurgeon, which Plaintiff declined (A.R. 635).
The record does not contain any treatment notes reflecting any such injections.
D. The Medical Opinion Evidence
Consultative examiner Dr. Christopher Cooper reviewed medical records and prepared a Complete Psychological Evaluation, dated March 18, 2020 (A.R. 496-99). Plaintiff then complained of an inability to focus and symptoms of depression and anxiety, including sleep disturbance, weight gain and a supposed history of suicidal ideation (A.R. 496-97). She had psychiatric medication management, but had never attended therapy (A.R. 497). She reportedly had worked as a service dog trainer in 2016, but was not then working due to her "mental and medical illness" (A.R. 497). Mental status examination showed anxious mood, diminished immediate and recent memory, impaired insight and fair judgment (A.R. 497-98). Intelligence testing suggested borderline intellectual functioning with a full scale IQ of 77 (A.R. 498). Memory testing suggested functioning in the "extremely low range" (A.R. 499).
Dr. Cooper diagnosed ADHD and unspecified anxiety disorder, but opined that Plaintiff would be able to: (1) understand, remember and carry out short, simplistic instructions and make simplistic work decisions without special supervision with mild difficulty; (2) understand, remember and carry out detailed and complex instructions with moderate difficulty; (3) comply with job rules such as safety and attendance with mild difficulty; (4) respond to changes in a normal workplace setting with mild difficulty; (5) maintain persistence and pace in a normal workplace setting with moderate difficulty; and (6) interact with supervisors, coworkers and peers with mild difficulty (A.R. 499).
Consultive examiner Dr. Azizollah Karamlou reviewed medical records and prepared an Internal Medicine Consultation dated March 26, 2020 (after the car accident but before any spine imaging) (A.R. 500-04). Dr. Karamlou indicated that Plaintiff seemed to be "quite intelligent," but had poor attention (A.R. 500). Plaintiff reportedly smoked medical cannabis (A.R. 500). On examination, she had normal gait and balance without the use of an assistive device, hidradenitis in the inguinal area, and findings otherwise within normal limits (A.R. 501-03). Dr. Karamlou diagnosed a history of aplastic anemia, thrombocytopenia and leukopenia (under control), hidradenitis in the inguinal area (under control), ADHD and a mild learning disability, for which he deferred to a specialist (A.R. 503 (again reporting Plaintiff is "quite intelligent")). Dr. Karamlou opined that Plaintiff would have no functional limitations (A.R. 503-04).
State agency reviewers, who considered the record in April of 2020, found no severe physical conditions and agreed with Dr. Cooper that Plaintiff would be capable of performing simple routine/ repetitive tasks (A.R. 66-79). On reconsideration in August of 2020, the reviewers found Plaintiff would be capable of medium work limited to "simple one and two-step tasks" with the avoidance of concentrated exposure to extreme heat and cold, fumes, dusts and gases, and the avoidance of moderate exposure to hazards (A.R. 91-96).
After the administrative hearing, the ALJ sent interrogatories to clinical psychologist Dr. Faren Akins to attempt to reconcile perceived variances in intellectual testing (A.R. 62, 649-59). Dr. Akins reviewed the available exhibits and replied with a narrative response by letter dated April 5, 2021 (A.R. 661-64). Dr. Akins opined that the record supports a finding of severe ADHD, generalized anxiety disorder and anxiety disorder (A.R. 661). Dr. Akins found that Plaintiff would not meet or equal Listings 12.06 or 12.11, because she would have only: (1) mild to moderate limitations in understanding, remembering or applying information; (2) mild limitations in interacting with others; (3) moderate to marked limitations maintaining concentration, persistence or pace based on her IQ testing; and (4) mild to moderate limitations in adapting or managing herself (A.R. 661-63). Dr. Akins opined that Plaintiff could perform simple tasks with "no problem," but should avoid highly complex tasks because of "possible" deficits in intellect, concentration and memory (A.R. 663).
II. Substantial Evidence Supports the ALJ's Conclusion that Plaintiff Can Work.
For claims filed after March 27, 2017, such as Plaintiff's claim, new regulations govern the evaluation of medical opinion evidence. Under these regulations, ALJs no longer "weigh" medical opinions; rather, ALJs determine which opinions are the most "persuasive" by focusing on several factors: (1) supportability; (2) consistency; (3) relationship with the claimant (including the length of treatment, frequency of examinations, purpose of treatment, extent of treatment, whether the medical source examined the claimant); (4) the medical source's specialty; and (5) "other" factors. See 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The two most important factors in determining the persuasiveness of medical opinions are supportability and consistency with the evidence. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). ALJs must explain how they considered the factors of supportability and consistency, but need not explain how they considered any other factor. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b).
Supportability means the extent to which a medical source supports the medical opinion by explaining the "relevant... objective medical evidence." Consistency means the extent to which a medical opinion is "consistent... with the evidence from other medical sources and nonmedical sources in the claim.Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (internal citations omitted; citing 20 C.F.R. § 404.1520c(c) (1), (2)).
The new regulations also eliminated the term "treating source," as well as the rule previously known as the treating source rule or treating physician rule, which formerly required special deference to the opinions of treating sources. See 20 C.F.R. §§ 404.1520c, 416.920c; Woods v. Kj-jakazi, 32 F.4th at 792 ("The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant."); see also 81 Fed.Reg. 62560, at 62573-74 (Sept. 9, 2016). Even so, in evaluating medical opinion evidence "under the new regulations, an ALJ cannot reject an examining or treating doctor' opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence." Woods v. Kijakazi, 32 F.4th at 792.
The ALJ followed these new regulations in making the required findings based on the available record, and substantial evidence supports the ALJ's conclusion that Plaintiff is not disabled. First, as detailed above, all of the medical sources who recorded opinions regarding Plaintiff's physical residual functional capacity found lesser limitations than the ALJ found to exist (i,e., the ALJ limited Plaintiff to a range of light work to accommodate some of Plaintiff's complaints and conditions, while Dr. Karamlou found Plaintiff would have no physical limitations, and the state agency physician who reviewed Dr. Karamlou's opinion and Plaintiff's spine imaging and related treatment notes opined that Plaintiff would be capable of medium work). See A.R. 91-92, 503-04. The ALJ found Dr. Karamlou's opinion and the state agency physician's opinion "not persuasive," as assertedly inconsistent with Plaintiff's spine MRIs and non-healing lesions, and the ALJ adopted greater limitations (A.R. 30-32).
Although the ALJ found these opinions "not persuasive," the opinions nevertheless furnish substantial evidence to support the ALJ's more restrictive physical residual functional capacity assessment. See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) (opinion of examining physician based on independent clinical findings can provide substantial evidence to support administrative conclusion of non-disability); Tonapetyan v, Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining physician "may constitute substantial evidence when it is consistent with other independent evidence in the record"); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining physicians do not contradict "all other evidence in the record," such opinions may furnish substantial evidence); Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988) ("It is not necessary to agree with everything an expert witness says in order to hold that his testimony contains substantial evidence") (quotations omitted); see also Bullock v. Commissioner, 2022 WL 4538576, at *25 (D. Ariz. Aug. 18, 2022), report and recommendation adopted, 2022 WL 4535241 (D. Ariz. Sept. 28, 2022) (finding no error where ALJ's residual functional capacity assessment included greater limitations than those found by the only medical opinions in the record; there was no medical source opinion to the contrary).
Second, the medical sources who opined concerning Plaintiff's mental capacity and limitations found a capacity mostly consistent with the residual functional capacity assessed by the ALJ. Consultative examiner Dr. Cooper opined that Plaintiff would have only mild to moderate difficulties performing mental work-related functions (A.R. 499). The initial state agency reviewer agreed with Dr. Cooper and translated those findings into a mental residual functional capacity to perform simple routine/repetitive tasks (A.R. 73, 75-77). On reconsideration, a state agency reviewer would further limit Plaintiff to simple one- or two-step tasks (A.R. 88-90, 94-95; but see A.R. 90 (noting Dr. Cooper's finding that Plaintiff would be capable of simple tasks appeared consistent with Plaintiff's daily activities and mental status examination)). Dr. Akins reviewed all of these opinions and concluded that Plaintiff did not meet a listed impairment, and could perform simple tasks with "no problem" (A.R. 663) .
The ALJ found Dr. Cooper's opinion "somewhat persuasive," and the state agency reviewers' opinions "less persuasive" (A.R. 30-31). The ALJ added limitations for no work requiring production rate pace, and no work requiring more than occasional interaction with the public or more than occasional changes (A.R. 25, 31). The ALJ specifically rejected the state agency reviewer's reconsideration opinion that Plaintiff would be limited to one- and two-step tasks as inconsistent with testing which showed Plaintiff capable of following three-step commands (A.R. 30-31; see also A.R. 512, 592 (March 24, 2020 examination reporting that Plaintiff was capable of following three-step commands); compare A.R. 312 (school report stating that Plaintiff was compliant with instructions, which included completing her school work, and Plaintiff was passing all of her classes); A.R. 222 (Plaintiff's Function Report stating that she follows written instructions "very well," and spoken instructions "pretty well"); A.R. 233 (Function Report by Plaintiff's mother stating that Plaintiff sometimes needs explanation for written instructions and has trouble applying what is read, but follows spoken instructions "a little better" than written instructions)). The ALJ found Dr. Akins' opinion that Plaintiff could perform simple tasks with no problem "generally persuasive" as consistent with Dr. Cooper's mental status examination and objective testing (A.R. 31).
The medical opinions, which found similar limitations to those the ALJ assessed, constitute substantial evidence to support the ALJ's mental residual functional capacity determination. See Orn v. Astrue, 495 F.3d at 631-32; Tonapetyan v. Halter, 242 F.3d at 1149; Andrews v. Shalala, 53 F.3d at 1041.
Therefore, the Court will uphold the ALJ's residual functional capacity assessment, and the ALJ's related findings regarding the medical opinion evidence, as supported by substantial evidence and free from any material legal error. See, e.q., Stephanie M. v. Comm 1r , 2022 WL 110360, at *6 (D. Or. Jan. 12, 2022) (under the new regulations, an ALJ must state reasoning for discounting a medical opinion, explaining the persuasiveness of the opinion based on factors including supportability and consistency, and the ALJ's reasoning must be supported by substantial evidence); Harper v. Kijakazi, 2021 WL 6144112, at *4 (D. Mont. Dec. 29, 2021) (same); Nicole B. v. Comm'r, 2021 WL 4488587, at *6 (D. Or. Sept. 30, 2021) (same); Webster v. Comm 1r , 2020 WL 760395, at *5 (N.D. Miss. Feb. 14, 2020), aff'd, 19 F.4th 715 (5th Cir. 2021) (under new regulations, when medical opinions are at issue, reviewing court affirms ALJ's decision if ALJ properly addressed supportability and consistency).
Plaintiff's challenge to the ALJ's consideration of Dr. Akins' listing analysis is discussed in section III.B below.
The vocational expert testified that a person with the residual functional capacity the ALJ found to exist would be capable of performing jobs existing in significant numbers in the national economy. See A.R. 58-60. The ALJ properly relied on this testimony in finding Plaintiff not disabled. See Barker v. Secretary of Health and Human Services, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986) .
III. Plaintiff's Arguments Are Unavailing.
The Court has considered and rejected all of Plaintiff's arguments. The Court discusses Plaintiff's principal arguments herein. Neither Plaintiff's arguments nor the circumstances of this case show any "substantial likelihood of prejudice" resulting from any error allegedly committed by the ALJ. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice).
A. The ALJ Did Not Materially Err in Evaluating Plaintiff's Testimony Concerning Conversion Disorder.
Plaintiff contends that the ALJ erred in discounting Plaintiff's testimony concerning conversion disorder. See Plaintiff's Opening Brief, pp. 5-8. Plaintiff testified that her anxiety causes panic attacks which assertedly affect the use of her legs (A.R. 49). She claimed to have panic attacks approximately four times a month, for an hour at a time (A.R. 50). Plaintiff claimed that she had to use a walker throughout her sophomore year of high school because she then assertedly could not use her legs (A.R. 49). Plaintiff claimed that she has no idea when her conversion disorder will happen or how long it will affect her (A.R. 56-57). She claimed to be triggered by "small things," for example, something falling to the floor or someone taking a long time to say a sentence (A.R. 49-50).
The ALJ asked Plaintiff why there were no recent reports of conversion disorder symptoms, and Plaintiff responded that she had symptoms but she had not reported them because nothing can be done about them (A.R. 57). However, Plaintiff also appeared to suggest that she did not report the supposed symptoms because she did not want to go back to using a walker (id.) .
In a Function Report - Adult form dated February 24, 2020, Plaintiff reported that she had conversion disorder caused by anxiety that manifested in leg weakness (A.R. 217; see also A.R. 228 (similar report from Plaintiff's mother)). Plaintiff nevertheless reportedly was able to clean house, do laundry, organize, make several course meals, draw, sing, hang out with friends, and take care of animals (A.R. 218-19, 221). She claimed that she could not go out alone due to anxiety (A.R. 220). She estimated that she could lift 20 pounds and walk for a half mile before needing to rest for 20 minutes (A.R. 222). She claimed she did not handle stress or changes in routine well due to her anxiety (A.R. 223). She reportedly had used a walker in 9th grade due to conversion disorder, braces in 2017, crutches through high school as needed, and a cane (A.R. 223).
At the close of the hearing, Plaintiff's then counsel admitted that there was not enough evidence to show that the conversion disorder remained a medically determinable impairment after high school (A.R. 63-64). The ALJ nonetheless found the existence of a severe conversion disorder, but concluded that the longitudinal evidence did not support Plaintiff's allegations of continued episodes from the conversion disorder (A.R. 27). The ALJ observed that Plaintiff had not sought any treatment for conversion disorder after the alleged onset date, and the evidence suggested that her condition had improved prior thereto (id.). The ALJ further reasoned that the longitudinal evidence did not support Plaintiff's allegations regarding the severity of her difficulty ambulating or the need for an assistive device (A.R. 27). On examination, Dr. Karamlou had found normal gait and balance, and Dr. Karamlou had opined that Plaintiff did not require an assistive device for ambulation (A.R. 27 (citing A.R. 501)). Plaintiff also had demonstrated normal gait during other examinations (A.R. 27 (citing A.R. 586)).
An ALJ's assessment of a claimant's credibility is entitled to "great weight." Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Where, as here, an ALJ finds that a claimant's medically determinable impairments reasonably could be expected to cause some degree of the alleged symptoms of which the claimant subjectively complains (A.R. 27), any discounting of the claimant's complaints must be supported by "specific, cogent" findings. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ must state "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering). Generalized, conclusory findings do not suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony") (internal citations and quotations omitted); see also SSR 96-7p (explaining how to assess a claimant's credibility), superseded, SSR 16-3p (eff. March 28, 2016) .
In the absence of an ALJ's reliance on evidence of "malingering," most recent Ninth Circuit cases have applied the "clear and convincing" standard. See, e.g., Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022); Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.l (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021), the Ninth Circuit appeared to apply both the "specific, cogent" standard and the "clear and convincing" standard. In the present case, the ALJ's findings are sufficient under either standard, so the distinction between the two standards (if any) is academic.
The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016} (stating that SSR 16-3p "implemented a change in diction rather than substance") (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p "makes clear what our precedent already required").
Here, the ALJ discounted Plaintiff's subjective testimony and statements concerning the allegedly continuing effects of her conversion disorder based on inconsistencies between Plaintiff's subjective complaints and the longitudinal record which, as the ALJ noted, included: (1) examinations revealing normal gait; and (2) no reports of conversion symptoms after Plaintiff received treatment in high school (A.R. 26-27). The ALJ stated reasoning in discounting Plaintiff's subjective testimony and statements concerning the claimed conversion disorder symptoms is legally sufficient.
The ALJ properly could rely on inconsistencies between Plaintiff's subjective testimony and the findings reported on examination. "Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony." Carmickle v. Commissioner, 533 F.3d at 1161; see also Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) ("When objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony") (emphasis original). It is true that previous symptoms associated with Plaintiff's conversion disorder reportedly were not constant, so that normal gait exhibitions might not necessarily establish conclusively that the conversion disorder no longer was debilitating. However, the ALJ properly could consider the fact that Plaintiff reported that her conversion symptoms stopped after she received treatment with a service dog and therapy (see A.R. 297, 299, 358, 367, 387, 389-90, 395, 398). These reports by Plaintiff arguably were inconsistent with Plaintiff's testimony that her symptoms continued and she did not report them because nothing supposedly could be done to treat any conversion disorder symptoms. The ALJ properly could rely on these inconsistencies in determining that Plaintiff's condition was not as limiting as she claimed.
On this record, the Court finds no material error in the ALJ's evaluation of Plaintiff's testimony. While Plaintiff's counsel points to reports of knee pain, related issues and hand tremors as supposedly suggesting that Plaintiff's conversion disorder symptoms continued (see Plaintiff's Opening Brief, pp. 7-8), Plaintiff herself never previously suggested (and no doctor found) that any alleged knee pain or hand tremors were symptoms of a conversion disorder.
B. The ALJ Did Not Materially Err in Evaluating Dr. Akins' Opinion.
Plaintiff contends that the ALJ erred in evaluating Dr. Akins' opinion that Plaintiff would have "moderate to marked" limitations maintaining concentration, persistence or pace. See Plaintiff's Opening Brief, pp. 8-11. The ALJ found "generally persuasive" Dr. Akins' opinion that Plaintiff should be limited to simple work (A.R. 31). The ALJ found this opinion to be consistent with objective testing suggesting impaired memory and borderline intelligence, but the ALJ also found that Dr. Atkins' opinion of "moderate to marked" limitation in concentration, persistence or pace was "ambiguous and unhelpful and lacks programmatic meaning" (A.R. 31). In other words, the latter opinion was unclear, unexplained and unsupported. The ALJ reasoned that a moderate limitation would be consistent with a restriction to simple work, but a marked limitation would not be consistent with the ability to perform simple tasks "with no problem" (as Dr. Akins also had opined) or with Dr. Cooper's finding that Plaintiff's concentration and attention "were good" (A.R. 31 (citing A.R. 498)). The ALJ adopted limitations for work in a "low demand setting" to accommodate Dr. Akins' opinion that Plaintiff would have some problems with "task demands" (A.R. 31).
As explained above, the ALJ correctly followed the new regulations in considering the medical opinion evidence, including Dr. Akins' opinion. The ALJ properly rejected any suggestion by Dr. Akins that Plaintiff would have marked limitations. Such a suggestion was both unexplained and inconsistent with Dr. Akins' other findings. Substantial evidence supports the ALJ's conclusions. Moreover, to the extent the evidence was in conflict, it was the prerogative of the ALJ to resolve such conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001); see also Treichler v. Comm'r, 775 F.3d 1090, 1098 (9th Cir. 2014) (court "leaves it to the ALJ" "to resolve conflicts and ambiguities in the record"). When evidence "is susceptible to more than one rational interpretation," the Court must uphold the administrative decision. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). The Court will uphold the ALJ's rational interpretation of the arguably conflicting evidence in this case.
C. The ALJ Did Not Materially Err in Evaluating Plaintiff's Spine Impairment(s).
Plaintiff argues that the ALJ erred in assertedly failing to account for Plaintiff's alleged Scheuermann's disease (spine limitations) in determining Plaintiff's residual functional capacity. Plaintiff faults the ALJ for failing to mention Plaintiff's thoracic spine compression fractures and suggests that the ALJ relied on the examinations from March of 2020, which predate Plaintiff's spine MRI studies. See Plaintiff's Opening Brief, pp. 11-13. The record belies Plaintiff's arguments.
In considering Plaintiff's spine MRIs, the ALJ noted there were "thoracic spine abnormalities" as well as multilevel degenerative changes (A.R. 30).
The state agency physician who reviewed the record in August of 2020, examined Plaintiff's spine MRIs and related treatment notes, which suggested a "constellation" of findings that may be consistent with Scheuermann's disease (see A.R. 515-16). Yet, this physician found that Plaintiff's spine condition only would limit Plaintiff to a range of medium work (A.R. 91-92). In determining Plaintiff's residual functional capacity for a range of light work (consistent with what Plaintiff's then counsel had argued the ALJ should assess (see A.R. 274-75)), the ALJ assessed greater limitations than the state agency physician had found to exist (A.R. 30). No material error occurred in the evaluation of Plaintiff's spine impairment(s).
D. The ALJ Did Not Materially Err in Evaluating Plaintiff's Hidradenitis Suppurativa.
Plaintiff contends that the ALJ erred in failing to find that her hidradenitis suppurativa met or equaled Listing 8.06, and that the ALJ otherwise failed adequately to consider this condition in determining Plaintiff's residual functional capacity. See Plaintiff's Opening Brief, pp. 13-15.
If a claimant's impairment meets all the requirements of a "listed impairment," the Administration will automatically consider the claimant disabled. See 20 C.F.R. § 416.920(d). Listing 8.06 for hidradenitis suppurativa is met when the claimant has "extensive skin lesions involving . . . the perineum that persist for three months despite continuing treatment as prescribed." See 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 8.06. The skin lesions must "seriously limit" ambulation, fine and gross motor movements, or the use of more than one extremity. Id. at § 8.00(C)(1) (extensive skin lesions). Additionally, if a claimant does "not have continuing treatment as prescribed, if [the claimant's] treatment has not lasted for at least 3 months, or if [the claimant] do[es] not have extensive skin lesions that have persisted for at least 3 months, [their] impairment cannot meet the requirements of these skin disorder listings." Id. at § 8.00(H) (1) .
Here, the ALJ found that Plaintiff has severe hidradenitis suppurativa, and the ALJ considered whether Plaintiff's physical impairments met or equaled Listings 1.15, 1.16, 7.08, and 8.06 (A.R. 22-23). The ALJ stated: "The claimant's impairments, considered singly and in combination, do not meet or medically equal the severity requirements of any listed impairment. No treating or examining medical source has recorded objective clinical or diagnostic findings that are the same as or medically equivalent to the criteria of any listed impairment." (A.R. 23). Elsewhere, the ALJ acknowledged that Plaintiff's treatment notes confirm multiple non-healing bilateral perineal lesions (A.R. 30 (citing A.R. 88)). The ALJ also stated that Plaintiff's hematologist had indicated Plaintiff's blood counts were acceptable for wound healing if she were to undergo surgery (A.R. 28 (citing A.R. 531, 534)).
The ALJ was not required to detail further why Plaintiff's hidredenitis suppurativa failed to meet or equal Listing 8.06. See Social Security Ruling 17-2p ("If an adjudicator at the hearings. . . level believes that the evidence already received in the record does not reasonably support a finding that the individual's impairment(s) medically equals a listed impairment, the adjudicator is not required to articulate specific evidence supporting his or her finding that the individual's impairment(s) does not medically equal a listed impairment. Generally, a statement that the individual's impairment(s) does not medically equal a listed impairment constitutes sufficient articulation for this finding. An adjudicator's articulation of the reason(s) why the individual is or is not disabled at a later step in the sequential evaluation process will provide rationale that is sufficient for a subsequent reviewer or court to determine the basis for the finding about medical equivalence at step 3.").
Substantial evidence supports the ALJ's finding that Plaintiff's hidradenitis suppurativa did not meet or equal Listing 8.06. First, the record does not suggest that Plaintiff's condition was "seriously limiting." While Plaintiff testified that the condition sometimes limited her ability to ambulate (see A.R. 51-53 (stating that she has to "hobble" when her lesions flair up and that she has pain while sitting)), treatment notes at the time the lesions were observed indicate that the lesions caused "minimal pain" or were "without 'TTP'" (tenderness to palpation) (A.R. 410-11, 416-18, 455, 531-32). Dr. Karamlou observed active lesions, but opined that Plaintiff would have no related limitations, finding the lesions were "under control," having been treated in the past with antibiotics (A.R. 501, 503).
Nor does the record reflect that Plaintiff had any continuing treatment for her lesions. Plaintiff said she had tried sulfa and antibiotic ointment, which supposedly had not healed the lesions (A.R. 416-21, 454-55). On several occasions, Plaintiff was approved to follow up with wound care or surgery for any non-healing lesions, but there is no evidence in the record that she sought such treatment (A.R. 415, 418, 421, 534). Although Plaintiff testified that her wounds flared two or three times a week and lasted for 24 to 48 hours, she was only treating her wounds with heating rags and ointment (A.R. 51-52) .
On this record, the ALJ did not err in finding that Plaintiff's hidradenitis suppurativa failed to meet or equal Listing 8.06. See Mannion v. Berryhill, 772 Fed.Appx. 483, 484 (9th Cir. 2019) (ALJ did not err in finding impairment failed to meet Listing 8.06 where claimant did not demonstrate lesions resulted in "very serious limitation"; medical records indicated the lesions did not affect claimant's extremities, movement, or ambulation); Vanessa P. v. Comm'r of Soc. Sec., 2023 WL 3203624, at *6 (W.D.N.Y. May 2, 2023) (same, where evidence showed that treatment was not continuing and did not suggest serious limitations); Bentley v. Comm'r of Soc. Sec. Admin., 2022 WL 17730119, at *7 (E.D. Wise. Dec. 16, 2022) (same, where evidence showed normal gait and station and no serious functional limitations); Duncan v, Kijakazi, 2022 WL 4664598, at *3 (E.D. Cal. Sept. 30, 2022) (same, where evidence did not show complications from condition).
The ALJ also adequately considered the impact of Plaintiff's hidradenitis suppurativa in determining her residual functional capacity. As detailed above, the state agency physicians and Dr. Karamlou considered Plaintiff's condition and found lesser limitations than the ALJ found to exist (A.R. 66, 71-72, 81, 91-95, 501, 503-04). No material error occurred in the evaluation of Plaintiff's hidradenitis suppurativa.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation and; (2) directing that Judgment be entered in favor of Defendant.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.