Opinion
CV-23-00153-TUC-SHR (MSA)
06-05-2024
Deserea Murray, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARIA S. AGUILERA, UNITED STATES MAGISTRATE JUDGE
Plaintiff Deserea Murray seeks judicial review of an unfavorable decision issued by the Commissioner of Social Security Administration. The matter has been fully briefed. For the following reasons, the Court will recommend that the Commissioner's decision be affirmed.
Background
Plaintiff is 31 years old. (See AR 190.) She has an 11th-grade education and a limited work history. (AR 221, 1752-53.) She is a recovering drug addict and was released from prison in September 2020 after serving a two-year sentence for kidnapping and aggravated assault with a deadly weapon. (AR 1706.)
After her release, Plaintiff filed an application for supplemental security income. (AR 190.) She alleged that she was disabled because of her “Serious Mental Illness” designation. (AR 56.) Her application was denied initially and again on reconsideration. (AR 53, 78.) She requested a hearing before an administrative law judge (ALJ), and a telephonic hearing was held in February 2022. (AR 34-52, 104.)
After the hearing, the ALJ issued a written decision following the five-step process for determining whether a person is disabled. See 20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (AR 16.) At step two, the ALJ found that Plaintiff had three severe impairments: depression, posttraumatic stress disorder, and personality disorder. (AR 16.) At step three, the ALJ found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of a listed impairment. (AR 17.) Between steps three and four, the ALJ found that Plaintiff had the residual functional capacity to perform a full range of work at all exertional levels but with certain non-exertional limitations. (AR 19.) At step four, the ALJ found that Plaintiff had no past relevant work. (AR 26.) At step five, the ALJ found that Plaintiff could perform jobs that existed in sufficient numbers in the national economy. (AR 26.) The ALJ therefore concluded that Plaintiff was not disabled. (AR 27.)
The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1.) This lawsuit followed.
Legal Standard
The Commissioner's decision will be affirmed if it is supported by substantial evidence and free of legal error. Wischmann v. Kijakazi, 68 F.4th 498, 504 (9th Cir. 2023) (citing Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012)). “Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Glanden v. Kijakazi, 86 F.4th 838, 843 (9th Cir. 2023) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).
Discussion
Plaintiff raises two challenges to the ALJ's decision. First, she argues that the ALJ provided legally insufficient reasons for discounting her symptom testimony. Second, she argues that the ALJ erred in analyzing the medical-opinion evidence. As discussed below, neither challenge is persuasive.
I. The ALJ did not err in discounting Plaintiff's symptom testimony.
Plaintiff offered symptom testimony at her telephonic hearing in February 2022 and in a function report done in October 2020. (AR 36-49, 226-32.) She testified that she had difficulty getting along with others, that she “flip[ped] out” on strangers who tried to talk to her in public, and that she “stay[ed] away” from others because of her anger problems. (AR 41-43, 46-48, 231.) She reported difficulty handling stress and adjusting to change, as well as difficulty remembering, concentrating, and understanding. (AR 231-32.) She also reported hallucinations and medication-related drowsiness. (AR 41, 46.)
The parties agree that the ALJ could discount this testimony only for “specific, clear and convincing reasons.” Ferguson v. O'Malley, 95 F.4th 1194, 1199 (9th Cir. 2024) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). This standard “requires an ALJ to show his work” and is satisfied when “the ALJ's rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). The ALJ here offered four reasons for discounting Plaintiff's testimony: (1) it was inconsistent with the objective medical evidence, (2) it was inconsistent with Plaintiff's conservative treatment, (3) it was inconsistent with Plaintiff's reports to her providers, and (4) it was inconsistent with Plaintiff's daily activities. (AR 22.) As explained below, these reasons satisfy the clear-and-convincing standard.
At the outset, it is important to observe that the ALJ agreed that Plaintiff's mental impairments limited her ability to function in the workplace. The ALJ found that she had a “mild” limitation in her ability to understand, remember, or apply information; a “moderate” limitation in her ability to interact with others; a “moderate” limitation in her ability to concentrate, persist, or maintain pace; and a “mild” limitation in her ability to adapt or manage herself. (AR 18.) The ALJ accounted for these limitations by finding that Plaintiff could “understand, remember, and carry out simple job instructions only” and have “only occasional interaction with co-workers, the public, and supervisors,” with “occasional” being defined as “very little to one-third of the time.” (AR 19.) In determining whether the ALJ provided clear and convincing reasons, the Court remains cognizant that the ALJ did not reject Plaintiff's testimony wholesale.
First, substantial evidence supports the ALJ's finding that Plaintiff's testimony was inconsistent with her providers' clinical observations. See Smartt, 53 F.4th at 498-99 (stating that testimony can be discounted based on inconsistent medical evidence); Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (stating that, in the field of psychiatry, clinical observations are medical evidence). The ALJ cited numerous treatment notes from after the alleged onset date (September 21, 2020) that indicate Plaintiff was capable of a greater level of functioning than alleged. As for her issues with social interaction, the cited records indicate that Plaintiff was cooperative during her medical appointments, even when her provider recorded abnormal findings (e.g., irritable mood, poor judgment, etc.). (AR 1239-40 (September 2020); AR 1335, 1460 (December 2020); AR 1447 (February 2021); AR 1435 (March 2021); AR 1358, 1413, 1425 (April 2021); AR 1396 (July 2021); AR 1529-30 (September 2021); AR 1516 (October 2021); AR 1496-97 (December 2021).) The ALJ also cited examples where the provider expressly described Plaintiff as calm, cooperative, pleasant, or social. (AR 1085 (September 2020); AR 1481 (October 2020); AR 1754 (January 2021); AR 1512 (October 2021); AR 1492 (December 2021).).
While the ALJ focused on examinations that occurred after the alleged onset date, it is worth noting that from December 2019 to September 2020, Plaintiff's prison counselors almost always described her as calm and cooperative. (See AR 1123 (December 2019); AR 1120 (January 2020); AR 1118 (February 2020); AR 1113 (March 2020); AR 1105 (April 2020); AR 1102 (May 2020); AR 1097 (June 2020); AR 1089 (July 2020); AR 1087 (August 2020); AR 1085 (September 2020).) This was true even when the counselor recorded abnormal clinical findings. (See AR 1102 (auditory hallucinations).)
Turning to Plaintiff's memory issues, the cited records indicate that Plaintiff's memory was grossly intact. (AR 1239 (in September 2020, her immediate, short-term, and long-term memory were “intact”); AR 1481 (in October 2020, she had a “normal” memory); AR 1460 (in December 2020, she had a “good” fund of knowledge and “good” memory); AR 1754 (in January 2021, she had an “average” fund of knowledge and “adequate” memory); AR 1447 (in February 2021, she had a “good” fund of knowledge and “good” memory); AR 1435 (same in March 2021); AR 1413 (same in April 2021); AR 1396 (in July 2021, she had a “limited” fund of knowledge and “good” memory); AR 1530 (same in September 2021); AR 1516 (in October 2021, she had a “limited” fund of knowledge and “selective” memory); AR 1497 (in December 2021, she had a “limited” fund of knowledge and “good” memory).)
As for Plaintiff's concentration, the cited records indicate that while Plaintiff sometimes needed to be redirected, she nevertheless had “fair” concentration. (AR 1239 (“good” concentration in September 2020); AR 1335 (“fair” concentration in December 2020); AR 1447 (same in February 2021); AR 1435 (same in March 2021); AR 1358 (same in April 2021); AR 1396 (same in July 2021); AR 1530 (same in September 2021); AR 1516 (same in October 2021); AR 1497 (same in December 2021).) And while Plaintiff testified that she had medication-related drowsiness, the ALJ cited records showing that Plaintiff usually did not appear tired or fatigued on examination. (AR 1239 (“alert” in September 2020); AR 1335 (“normal” alertness in December 2020); AR 1447 (same in February 2021); AR 1435 (same in March 2021); AR 1413 (same in April 2021); AR 1396 (same in July 2021); AR 1529 (same in September 2021); AR 1516 (same in October 2021); AR 1496 (same in December 2021).)
The Court has reviewed the record and determined that the ALJ's cited examples are representative. These findings indicate that, during the year following her alleged onset date, Plaintiff functioned at a higher level than alleged. As such, the ALJ could rationally find that Plaintiff's symptom testimony was inconsistent.
Second, substantial evidence supports the ALJ's finding that Plaintiff's testimony was inconsistent with her conservative treatment history. See Smartt, 53 F.4th at 500 (stating that testimony can be discounted based on a conservative treatment history). Plaintiff's treatment included standard outpatient therapy, monthly psychiatric appointments, and medication. (See AR 1749.) As the ALJ found, and as discussed above, with this treatment Plaintiff “had some abnormal mental exam findings . . . but usually a lack of significantly abnormal findings.” (AR 21.) And, as the ALJ observed, Plaintiff did not require “psychiatric hospitalizations” or “intensive outpatient therapy.” (AR 20.) The Court cannot say that it was irrational for the ALJ to characterize Plaintiff's treatment as conservative and discount her testimony on that basis.
Third, substantial evidence supports the ALJ's finding that Plaintiff's testimony was inconsistent with statements she made to her providers. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (stating that testimony can be discounted based on the claimant's inconsistent statements). Plaintiff testified that she had hallucinations “all the time” (AR 46), but the ALJ cited records showing that she denied them throughout the relevant period. (AR 1240 (September 2020); AR 1457 (December 2020); AR 1428 (April 2021); AR 1396 (July 2021); AR 1530 (September 2021); AR 1516 (October 2021); AR 1497 (December 2021).) The ALJ also cited examples where Plaintiff reported improvement in her other symptoms. In March 2021, she reported “okay” sleep and “fair” moods, and she denied severe agitation and feelings of hopelessness. (AR 1433.) In July 2021, she denied depression and had only “a little” agitation and anxiety. (AR 1392.) In September 2021, she reported “situational[] irritability” and occasional daytime drowsiness but “decent” sleep. (AR 1526.) In addition, Plaintiff reported “doing well” on a few occasions. (AR 1341 (November 2020); AR 1327 (December 2020); AR 1392 (July 2021).) In the context of the ALJ's decision as a whole, these statements offer some support for the ALJ's findings.
Fourth, substantial evidence supports the ALJ's finding that Plaintiff's testimony was inconsistent with her daily activities. See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (stating that testimony can be discounted based on the claimant's inconsistent daily activities). The ALJ identified several activities that were inconsistent with Plaintiff's testimony that she had problems with social interaction. While in prison, Plaintiff reported having friends and playing games with other inmates. (AR 1117 (March 2020); AR 1105 (April 2020); AR 1096 (June 2020).) After her release in late 2020, she reported spending time with others once per week watching movies, going to the park, going out to eat, and shopping. (AR 230.) She also reported going to a community center and library on a regular basis, as well as using public transportation to get around. (AR 229-30.) The ALJ could rationally find that Plaintiff's reports of spending time with friends and spending time in public places undermined her testimony that she isolated herself because she did not get along with others. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (affirming the ALJ's finding that the plaintiff's testimony about difficulty with social interaction was inconsistent with her “walking her two grandchildren to and from school, attending church, shopping, and taking walks”), superseded by regulation on other grounds.
The ALJ also identified activities that undermine Plaintiff's testimony that she has trouble understanding, remembering, and applying information, as well as trouble handling stress and adjusting to changes. Notably, Plaintiff reported being the sole caregiver to her small child. (AR 38.) Plainly, it was rational for the ALJ to find that taking care of a baby requires the foregoing abilities. (AR 18-19.) The ALJ also pointed out that Plaintiff denied problems handling her personal care, and that her providers did not document substandard grooming or hygiene. (AR 18.) The ability to “maintain[] personal hygiene” is an indicator that a claimant can adapt or manage herself, so it was rational for the ALJ to rely on that evidence. 20 C.F.R. Pt. 404, subpt. P, appx. 1 § 12.00E.4. The ALJ highlighted other activities as well, including that Plaintiff used public transportation, walked to places alone, went shopping, and fully participated in her treatment decisions. The ability to make plans independently of others is another indicator that a claimant can adapt or manage herself, so it was rational for the ALJ to rely on that evidence as well. Id.
These four reasons are clear and convincing. It bears repeating at this point that the ALJ did not find that Plaintiff has no mental limitations; the ALJ found that Plaintiff has limitations that are less severe than alleged. Based on the foregoing evidence, it was rational for the ALJ to conclude that, despite her limitations, Plaintiff maintained the ability to “understand, remember, and carry out simple job instructions only” and to interact with others “very little” up to “one-third of the time.” See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”); Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating [evidence] into a succinct [residual functional capacity].”).
Resisting this conclusion, Plaintiff argues that the ALJ failed to account for the fact that symptoms caused by mental impairments tend to wax and wane in severity. However, the ALJ did not ignore that Plaintiff's symptoms fluctuated in intensity. The ALJ found that, even when Plaintiff's symptoms were more severe, they were not work preclusive. (See AR 21 (“In addition, she has had some abnormal mental exam findings at mental health treatment, but usually a lack of significantly abnormal findings.”).) Plaintiff also disagrees with the ALJ's assessment of her daily activities. However, as discussed above, the ALJ rationally linked those activities to her testimony. Plaintiff's interpretation of the record might be reasonable, but so was the ALJ's. That means the ALJ's interpretation must be upheld. Burch, 400 F.3d at 679.
II. The ALJ did not err in evaluating the medical-opinion evidence.
The ALJ must decide the persuasiveness of each medical opinion after considering several factors. 20 C.F.R. § 416.920c(c). The most important factors are supportability and consistency. Id. § 416.920c(b)(2). The supportability factor focuses on whether the medical source has offered “relevant . . . objective medical evidence and supporting explanations” in support of his opinion. Id. § 416.920c(c)(1). The consistency factor focuses on whether the medical source's opinion is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” Id. § 416.920c(c)(2). The ALJ may also consider the nature and extent of the treatment relationship, the medical source's specialization, and other factors such as the medical source's familiarity with other evidence in the record or understanding of the disability regulations. Id. § 416.920c(c)(3)-(5). The ALJ must explain how he considered the supportability and consistency factors, but he need not explain how he considered other factors. Id. § 416.920c(b)(2).
Plaintiff argues that the ALJ erred in evaluating the opinions of Nurse Practitioner Scott Kristie, her primary provider, and of Dr. Noelle Rohen, a consulting psychologist. The Court disagrees.
A. NP Kristie
In April 2021, NP Kristie completed a checkbox mental residual functional capacity assessment. (AR 1376-78.) NP Kristie opined that Plaintiff had a “moderate” limitation in her ability to understand, remember, or apply information; a “moderate” limitation in her ability to interact with others; a “marked” limitation in her ability to concentrate, persist, or maintain pace; and a “marked” limitation in her ability to adapt or mange herself. (AR 1376.) NP Kristie checked boxes indicating that Plaintiff's impairments would, anywhere from 15% to 50% of the time, interfere with her ability to work with others, interact with the public, maintain attendance, and maintain attention and concentration. (AR 1377.) He also opined that Plaintiff's symptoms worsened when she had to face changes in her environment or routine. (AR 1378.) In the narrative portion of the form, NP Kristie wrote that his opinions were based on his five-month treatment relationship with Plaintiff and on Plaintiff's medical history as recounted to him by Plaintiff. (AR 1378.) NP Kristie clarified that, as of the date of his opinion, he had not reviewed “collateral documentation” regarding Plaintiff's treatment history. (AR 1378.)
In February 2022, NP Kristie wrote a letter regarding Plaintiff's mental health functioning. (AR 1748-49.) NP Kristie wrote that Plaintiff demonstrated normal attention, attachment, and emotional responsiveness to her child. (AR 1748.) He explained that while she was “psychiatrically stable and functioning about as well as . . . she could,” he believed that she was incapable of “holding meaningful employment.” (AR 1748.) NP Kristie wrote that Plaintiff “struggled with developmental delays, impulse control issues, and mood dysregulation,” and had a language processing disorder that affected her comprehension and verbal expression. (AR 1749.) He opined that Plaintiff's insight and judgment would always be “somewhat limited.” (AR 1749.) Finally, he concluded that while Plaintiff was “currently doing quite well,” her “cognitive and psychological difficulties ma[de] significant improvements in interpersonal, occupational, and intellectual functioning highly unlikely.” (AR 1749.)
The ALJ found these opinions “not persuasive.” (AR 24.) As to the supportability factor, the ALJ found that NP Kristie's “own treatment notes do not support [his] opinions, as the claimant had relatively intact mental exam findings on a longitudinal basis at exams with him.” (AR 24.) The ALJ also found that “NP Kristie's April 2021 treatment note shortly before the April 2021 opinion did not support that opinion.” (AR 24.) These findings are supported by substantial evidence.
As for the April 2021 note, the ALJ correctly observed that Plaintiff's examination was largely unremarkable: she was talkative with poor insight, but she was alert and fully oriented with good eye contact, unremarkable thought processes, appropriate affect, good memory, fair concentration, and improving judgment. (AR 1428.) The ALJ could rationally find that that examination did not support the April 2021 opinions. Further, the ALJ could rationally find that NP Kristie's other examinations did not support his opinions. For instance, another April 2021 examination was unremarkable except that Plaintiff had poor insight. (AR 1413.) A July 2021 examination was unremarkable except that Plaintiff had limited insight. (AR 1396.) A September 2021 examination was unremarkable except that Plaintiff was talkative with limited insight. (AR 1529-30.) At an October 2021 appointment, Plaintiff was talkative and had circumstantial thought processes, an animated affect, a selective memory, and limited sight. (AR 1516.) Still, she was redirectable, alert, and fully oriented with good eye contact, a euthymic mood, fair concentration, and improving judgment. (AR 1516.) Given the foregoing, the ALJ reasonably found that the longitudinal record did not support the level of restrictions proposed by NP Kristie.
As to the consistency factor, the ALJ found that NP Kristie's opinions were “inconsistent with other evidence in the record,” including Dr. Rohen's opinions. (AR 24.) This finding is supported by substantial evidence. Dr. Rohen examined Plaintiff and opined that while she has some mental limitations, “there is likely a work setting she can manage.” (AR 1754-55.) The ALJ found Dr. Rohen's opinions “somewhat persuasive,” as they were supported by the examination and generally consistent with other evidence in the record. (AR 25.) As discussed in the next section, the ALJ's analysis of Dr. Rohen's opinions is supported by substantial evidence. As such, the ALJ could rationally reject NP Kristie's opinions on the ground that they were inconsistent with Dr. Rohen's opinions.
The ALJ also found that NP Kristie's opinions were inconsistent with a treatment note from a physical examination in October 2020. (AR 24.) At that examination, the provider noted that Plaintiff was fully oriented with appropriate mood and affect and normal insight and judgment. (AR 1481.) Substantial evidence also supports this reasoning.
B. Dr. Rohen
In January 2021, Dr. Rohen examined Plaintiff in connection with her application for benefits. (AR 1751-57.) Plaintiff's examination was largely unremarkable: she was cooperative with good eye contact, normal affect, linear and coherent thoughts, adequate memory, and normal speech. (AR 1754.) On the Folstein Mini Mental Status Examination, Plaintiff achieved a score of 21 out of 30, “suggesting impairment or limited effort.” (AR 1755.) Dr. Rohen suspected limited effort. (AR 1755.) Dr. Rohen opined that Plaintiff's understanding and memory were “grossly intact,” that Plaintiff might have “mild lapses” in concentration and persistence at work, that Plaintiff was manipulative, aggressive, and without remorse, and that Plaintiff could learn new tasks and avoid hazards. (AR 1757.) Dr. Rohen further opined that Plaintiff had a “troubling personality disorder with prominent antisocial and borderline features,” and that Plaintiff's use of methamphetamine “[m]ost likely . . . played a role in past aggressive episodes.” (AR 1755.) Dr. Rohen opined that “there is likely a work setting [Plaintiff] can manage,” and that “a very low complexity job would be best for her.” (AR 1755, 1757.) However, Dr. Rohen noted, Plaintiff was “strongly invested in not returning to work” and was “not motivated to inhibit” her “manipulation and aggressive outbursts.” (AR 1755.)
The ALJ found these opinions “somewhat persuasive.” (AR 25.) Specifically, the ALJ was persuaded by Dr. Rohen's opinion that Plaintiff could perform a low complexity job. (AR 25.) As to the supportability factor, the ALJ explained that the opinion was supported by Plaintiff's examination results, which indicated “some difficulties, but still relatively intact memory, thought process, speech, attention, and fund of information.” (AR 25.) This was rational. As to the consistency factor, the ALJ found that Dr. Rohen's opinion was “generally consistent with other evidence indicating relatively intact mental exam findings, an ability [by Plaintiff] to manage her own treatment, and an ability to care for her baby.” (AR 25.) As discussed throughout this report, the ALJ rationally found that although the longitudinal record showed some abnormalities, there was usually a lack of significant abnormalities. Dr. Rohen's examination produced similar results, so the ALJ could rationally accept Dr. Rohen's opinions as consistent with that other evidence.
The ALJ was only partially persuaded by Dr. Rohen's opinion that Plaintiff had inappropriate social behavior. (AR 25.) As to the supportability factor, the ALJ found that Dr. Rohen's opinion was supported by explanation and her examination findings. (AR 25.) This was rational, as Plaintiff exhibited manipulative behavior during the appointment (i.e., she threatened suicide if she did not receive benefits, and she claimed not to know the purpose of the appointment although she clearly did). (AR 1754.) However, the ALJ explained, the opinion was not persuasive to the extent it was “vague as to what level of contact the claimant can have with others.” (AR 25.) The ALJ found, as to the consistency factor, that “other evidence [was] inconsistent with substantial social limitations and [was instead] consistent with the claimant being able to appropriately interact.” (AR 25.) As explained in a preceding section, substantial evidence supports the ALJ's finding that Plaintiff can have occasional interaction with others. It follows that the ALJ could rationally find that the evidence underlying that finding was inconsistent with any suggestion by Dr. Rohen that Plaintiff had “substantial social limitations.” (AR 25.)
* * *
The ALJ explained how she considered the supportability and consistency factors for each opinion. The ALJ's reasoning is rational and supported by substantial evidence, so it must be upheld. Plaintiff simply offers a different interpretation of the evidence, so she has not shown that the ALJ erred.
Conclusion
The Commissioner's decision is supported by substantial evidence and free of legal error. Therefore, the Court recommends that the Commissioner's decision be affirmed.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections with the district court. Fed.R.Civ.P. 72(b)(2). The parties have 14 days to file responses to objections. Id. The parties may not file replies on objections absent the district court's permission. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-23-00153-TUC-SHR.