SHERI PYM, Magistrate Judge.
On July 12, 2016, plaintiff Regina B. filed a complaint against defendant, Commissioner of the Social Security Administration ("Commissioner"), seeking a review of a denial of supplemental security income ("SSI"). Both parties have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff argues the Administrative Law Judge ("ALJ") improperly gave res judicata effect to a 2011 decision finding plaintiff not disabled. Plaintiff contends there was new and material evidence showing her mental impairments had changed for the worse since that decision, and the ALJ improperly rejected that evidence because: (1) the ALJ failed to properly consider a treating physician's opinion; and (2) the ALJ improperly discounted the credibility of plaintiff's complaints regarding medication side effects. Memorandum in Support of Complaint ("P. Mem.") at 2-7.
Having carefully studied the parties' written submissions, the decision of the ALJ, and the Administrative Record ("AR"), the court concludes that, as detailed herein, the ALJ properly considered the treating physician's opinion and properly discounted plaintiff's testimony, and therefore properly gave res judicata effect to the 2011 decision. Consequently, the court affirms the decision of the Commissioner denying benefits.
Plaintiff, who was forty years old on her alleged disability benefit onset date, graduated from high school. AR at 39, 92. She has past relevant work as a home care provider, garment sorter, and retail clerk. Id. at 44-45.
Plaintiff initially filed applications for a period of disability and disability insurance benefits and for SSI on December 8, 2009. Id. at 72. After a hearing before the ALJ, the applications were denied and subsequently denied for review by the Appeals Council. Id. at 69-90. The ALJ determined plaintiff suffered from the following severe impairments: diabetes mellitus, asthma, hypertension, obesity, affective disorder, and polysubstance abuse. Id. at 74. He also determined plaintiff was capable of performing less than the full range of light work. Id. at 77. The ALJ found plaintiff was unable to perform past relevant work, but could perform work as a small products assembler and thread cutter, and therefore was not disabled. Id. at 80-81.
On February 28, 2013, plaintiff protectively filed an application for SSI. Id. at 92. Plaintiff alleges she has been disabled since November 30, 2010 due to diabetes, hearing voices, mood swings, bipolar disorder, diabetes, difficulty sleeping, asthma, high blood pressure, high cholesterol, bronchitis, and acid reflux. Id. at 92-93. The Commissioner denied plaintiff's application, after which she filed a request for reconsideration, which was denied. Id. at 120-24, 129-32. Plaintiff then filed a request for a hearing. Id. at 133-36.
On January 8, 2015, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. Id. at 35-48. At the hearing, the ALJ also heard testimony from Dr. Betty Borden, a medical expert ("ME"), and Jeanine Metildi, a vocational expert ("VE"). Id. at 41-46. On January 27, 2015, the ALJ denied plaintiff's claim for benefits. Id. at 18-30.
Because there was a prior unfavorable decision in plaintiff's claim for benefits, the ALJ noted it would be presuming continuing non-disability pursuant to Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). AR at 18. He noted plaintiff could rebut this presumption by proving "changed circumstances indicating a greater disability." Id.; see Chavez, 844 F.2d at 693. If plaintiff could not prove such circumstances, the adjudicator of the subsequent claim had to adopt disability findings contained in the final decision on the prior claim, unless there was new and material evidence relating to a finding, or there has been a change in law, regulations, or rulings. AR at 18-19.
The ALJ noted that in his prior decision, he determined plaintiff had severe medically determinable mental and physical impairments that resulted in limitations that permitted plaintiff to perform a wide range of light work with jobs existing in significant numbers, and therefore she was not disabled. Id. at 19. He found there were changed circumstances in plaintiff's case — namely, a lack of any severe physical medically determinable impairment — which changed the prior finding because plaintiff now only had non-exertional limitations. Id. Moreover, he found plaintiff's history of poly-substance abuse was no longer severe. Id. Because these changed circumstances failed to indicate a greater disability, the ALJ concluded there was insufficient evidence to overcome Chavez, which led him to adopt the findings and conclusions of his prior decision. Id. Nonetheless, as defendant points out, the ALJ still thoroughly reviewed the entirety of plaintiff's medical records.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since February 28, 2013, the date the application was filed. Id. at 21.
At step two, the ALJ found plaintiff suffered from the following severe impairment: major depressive disorder. Id.
At step three, the ALJ found plaintiff's impairments, whether individually or in combination, did not meet or medically equal the severity of one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings").
The ALJ then assessed plaintiff's residual functional capacity ("RFC"),
The ALJ found, at step four, that plaintiff was capable of performing past relevant work as a garment sorter. Id. at 30. Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act. Id.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 9-11, 1-6.
The ALJ's decision stands as the final decision of the Commissioner.
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "`cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "`may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
Although plaintiff argues the ALJ improperly applied Chavez and its presumption of non-disability to her case, as defendant points out, this issue is largely a question of whether the ALJ properly assessed Dr. Melvin Sigman's opinion. Plaintiff argues Dr. Sigman's opinion constituted new and material medical evidence showing plaintiff was under a greater mental impairment than before so as to rebut the Chavez presumption of non-disability. P. Mem. at 2-3.
A previous final determination of non-disability creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996); see also Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985); Lyle v. Sec'y of Health & Human Servs., 700 F.2d 566, 568-69 (9th Cir. 1983); Social Security Acquiescence Ruling ("SSAR")
In determining whether a claimant has a medically determinable impairment, among the evidence the ALJ considers is medical evidence. 20 C.F.R. § 404.1527(b). In evaluating medical opinions, the regulations distinguish among three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester, 81 F.3d at 830 (as amended). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). The opinion of the treating physician is generally given the greatest weight because the treating physician is employed to cure and has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
Nevertheless, the ALJ is not bound by the opinion of the treating physician. Smolen, 80 F.3d at 1285. If a treating physician's opinion is uncontradicted, the ALJ must provide clear and convincing reasons for giving it less weight. Lester, 81 F.3d at 830. If the treating physician's opinion is contradicted by other opinions, the ALJ must provide specific and legitimate reasons supported by substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide specific and legitimate reasons supported by substantial evidence in rejecting the contradicted opinions of examining physicians. Id. at 830-31. The opinion of a non-examining physician, standing alone, cannot constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. Comm'r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993).
Dr. Sigman, a psychiatrist, treated plaintiff approximately six times in 2013 and 2014. AR at 649-55. Dr. Sigman first treated plaintiff on March 12, 2013. Id. at 653-54. Dr. Sigman's treatment notes indicate plaintiff's mood was euthymic and there was no evidence of psychosis. Id. at 653. There are also notes in the treatment response/medication side effects section indicating plaintiff was "quite withdrawn and fearful of people." Id.
Dr. Sigman treated plaintiff again on June 11, 2013. Id. at 652. Again, his treating notes note plaintiff's mood as euthymic. Id. On August 12, 2013, plaintiff's mood was again noted as euthymic. Id. at 650. Dr. Sigman treated plaintiff again on November 18, 2013. Id. at 649. At that time, Dr. Sigman noted plaintiff was "generally doing well," in a euthymic mood, but had "mild depression." Id. On February 18, 2014, Dr. Sigman noted plainiff's mood was euthymic and there was no evidence of psychosis. Id. at 648. On May 19, 2014, Dr. Sigman saw plaintiff for the final time. Id. at 647. He noted plaintiff had some depression but was doing okay overall. Id.
In addition to his treatment notes, Dr. Sigman also completed a mental residual functional capacity questionnaire on December 2, 2014. Id. at 655-60. In the questionnaire, Dr. Sigman opined plaintiff suffered from Axis I schizoaffective disorder and posttraumatic stress disorder. Id. at 656. He found plaintiff would be precluded from performing a job for more than 30% of an 8-hour workday. Id. at 659. He also opined plaintiff would likely be absent five days or more from work and would be unable to complete five days or more of work in a month as a result of her impairments. Id. Dr. Sigman concluded plaintiff could only be expected to perform a job at 50% efficiency during an average workweek. Id. Lastly, he noted plaintiff had a Global Assessment of Functioning ("GAF") score of 45.
The ALJ gave Dr. Sigman's source statement zero weight, but gave his treating notes more weight. AR at 26. Specifically, he found Dr. Sigman's "extreme findings" were "wholly inconsistent with, and contrary to, the substantial evidence of record." Id. at 25. He noted the record was "entirely void of any evidence" that supported Dr. Sigman's findings. Id. The ALJ found Dr. Sigman's findings were also inconsistent with several other medical opinions, including medical expert testimony. Id. at 26. He agreed with Dr. Betty Borden's testimony that Dr. Sigman's source statement was inconsistent with his own treating notes. Id. at 27. The ALJ concluded Dr. Sigman's source statement was simply "a regurgitation of grossly exaggerated subjective reports." Id. at 25-26. These reasons given by the ALJ for rejected Dr. Sigman's opinion were supported by substantial evidence.
As the ALJ found, Dr. Sigman's notes do not support his extreme findings. His treatment notes largely recorded plaintiff's mood as euthymic with mild depression. There were no notes reflecting serious symptoms consistent with a GAF score of 45. Nothing in the notes supported Dr. Sigman's extreme conclusion that plaintiff's mental abilities would make her off task for more than 30% of a workday. And the notes do not contain any findings of psychosis that would support his psychoaffective disorder diagnosis.
Dr. Borden, a psychologist and the ME at the January 8, 2015 hearing, indeed testified Dr. Sigman's treatment notes did not support his completed questionnaire. Id. at 42. She noted the questionnaire indicated marked impairment in daily living activities, social functioning, concentration, persistence, and pace. Id. But the treatment notes generally indicated a euthymic or normal mood with no psychotic features, which Dr. Borden determined as inconsistent with Dr. Sigman's questionnaire responses. Id. This reason alone was a specific and legitimate reason for rejecting Dr. Sigman's opinion. See Tonapetyan, 242 F.3d at 1149 (finding that an ALJ may reject a treating physician's opinion if it is unsupported by his treatment notes and clinical findings).
Dr. Sigman's opinion is further inconsistent with various treatment notes from West Central Mental Health. See AR at 392-560. There were no indications plaintiff had serious impairments in social or occupational functioning, which a GAF score of 45 would indicate. Plaintiff was consistently noted as being alert, oriented, and calm with appropriate or bright affect, and with only a few instances of sad affect. Id. at 411, 412, 414, 415, 416, 417, 419, 420, 421, 422, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438. Therefore, The ALJ's finding that Dr. Sigman's opinion was inconsistent with other evidence in the record is supported by substantial evidence. See Magllanes, 881 F.2d at 751-54 (inconsistency with the objective medical evidence is a specific and legitimate reason for rejecting the opinion of a treating physician).
As the ALJ noted, Dr. Sigman's opinion is also inconsistent with other medical source opinions. Dr. Borden reviewed the exhibits and listened to plaintiff's testimony. AR at 41-42. Based on Dr. Sigman's notes rather than his conclusions, Dr. Borden opined plaintiff: would not have limitations in daily living activities; would have moderate impairment in social functioning; would have moderate limitations in concentration, persistence and pace; and would be limited to simple repetitive work. Id. at 44. The state agency consultants, Dr. Sidney Gold and Dr. R.E. Brooks, similarly opined plaintiff's ability to understand and remember short and simple instructions were not limited, but she did have some limitations in her ability to understand and remember detailed instructions. Id. at 101, 116. They found plaintiff was able to maintain sufficient attention and concentration to consistently perform simple tasks and maintain a regular schedule. Id. at 101, 117.
Plaintiff argues the ALJ erred by rejecting Dr. Sigman's opinion because it repeated her subjective complaints. P. Mem. at 5. But an ALJ may properly reject a treating physician's opinion when the opinion is based on self-reported limitations that have been discredited. Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (affirming ALJ's rejection of a treating physician's opinion when it was based on the claimant's self-reported limitations); Tommasetti, 533 F.3d 1035, 1041 (9th Cir. 2008) (an ALJ may reject a treating physician's opinion if it is based "to a large extent" on self-reporting that has been properly discredited). As discussed below, the ALJ properly rejected plaintiff's credibility, and therefore properly rejected Dr. Sigman's opinion on that basis.
Plaintiff further argues the ALJ erred at step two by finding plaintiff suffered only from a major depressive disorder, as opposed to Dr. Sigman's finding that plaintiff suffered from a schizoaffective disorder and posttraumatic disorder. P. Mem. at 5. But as discussed above, because the ALJ properly rejected Dr. Sigman's opinion, he did not err in reaching a different conclusion than Dr. Sigman.
Therefore, because the ALJ properly rejected Dr. Sigman's opinion, it was not new and material evidence that would have rebutted the Chavez presumption. See Ellis v. Astrue, 2011 WL5877490, at *5-9 (D. Nev. Sept. 28, 2011) (ALJ did not err in adopting the RFC assessment from the prior ALJ's decision because there was no "new and material evidence" concerning the claimant's functional limitations and because the ALJ gave clear and convincing reasons for not relying on the opinion of claimant's treating physicians); Duarte v. Astrue, 2011 WL202196, at *7 (E.D. Cal. Jan. 19, 2011) (res judicata was properly applied and there was no new and material evidence when the ALJ properly rejected the treating physician's opinion).
Plaintiff also argues her testimony regarding her symptoms, particularly the side effects from her medication, independently rebuts the Chavez presumption. P. Mem. at 2-3. The ALJ found plaintiff's testimony was "not entirely credible." AR at 28.
The ALJ must make specific credibility findings, supported by the record. Social Security Ruling ("SSR") 96-7p.
The ALJ noted plaintiff testified, inter alia: she sleeps as much as possible but finds it hard to do so without medicine; "she follows instructions `very well' yet conversely reports that she has difficulty with memory and concentration"; she does not handle stress or routine changes very well; and she does not spend time with others and has difficulty getting along with others. AR at 26. The ALJ then assessed these subjective complaints.
At the first step, the ALJ found plaintiff's mental impairments could cause the alleged symptoms. Id. at 28. At the second step, because the ALJ did not find any evidence of malingering, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. The ALJ discounted plaintiff's credibility because her testimony was inconsistent with the objective medical evidence, which had "grossly unremarkable findings." Id. He noted the allegations were greater than expected in light of the objective evidence. Id. at 29. The ALJ further reported plaintiff's presentation at the hearing was "that of an attentive witness" and she did not have any "noticeable attention or concentration deficits." Id. at 29. He also found plaintiff's testimony was vague, inconsistent, and evasive. Id.
As discussed above, there is substantial evidence in the record to support the ALJ's finding that the objective medical evidence does not support the severity of plaintiff's claimed symptoms. As for the second reason the ALJ gave, that plaintiff's presentation at the hearing was inconsistent with her allegations, the Ninth Circuit has condemned an ALJ's reliance upon personal observations at the hearing as "sit and squirm" jurisprudence. See Perminter v. Heckler, 765 F.2d 870, 871 (9th Cir. 1985) (per curiam) ("Denial of benefits cannot be based on the ALJ's observation of [plaintiff], when [plaintiff's] statements to the contrary, as here, are supported by objective evidence."). But here, the ALJ did not reject plaintiff's testimony based solely on his observations. Further, the Ninth Circuit has found "the inclusion of the ALJ's personal observations does not render the decision improper." Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (citation omitted). And an ALJ's observations that a plaintiff engaged in behavior at the hearing that was inconsistent with that plaintiff's complaints have been held adequate to justify an ALJ's discounting of plaintiff's credibility. See Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989). The observations of the ALJ in the instant case concerning the inconsistency between plaintiff's testimony and her actions do appear legitimate, and may constitute a clear and convincing reason supported by substantial evidence to discount plaintiff's subjective complaints, particularly since the objective medical evidence also does not support the severity of her complaints.
Moreover, the ALJ gave a third reason for discounting plaintiff's testimony: that it was vague, inconsistent, and evasive. As already noted, the ALJ found plaintiff's claims of difficulty with memory and concentration to be undercut by her report that she follows instructions very well. AR at 26. Plaintiff's challenge to the Chavez presumption here specifically focuses on the alleged side effects of her medication. P. Mem. at 3. At the hearing, plaintiff testified her medication makes her groggy. AR at 41. But as the ALJ recognized, plaintiff consistently denied any side effects from her medication at various treatment sessions. Id. at 26, 412, 415, 417, 419, 427, 428, 431, 433, 434, 435, 436, 641. Plaintiff also reported in her February 6, 2013 Adult Function Report that her medication did not have any side effects. Id. at 213. Plaintiff's inconsistent testimony about her medication's side effects was therefore a specific, clear and convincing reason for rejecting it.
As such, plaintiff's claim that her medication side effects is new and material evidence that serves to rebut the Chavez presumption fails because the ALJ gave clear and convincing reasons for finding her testimony not credible. See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (finding plaintiff's claims of medication side effects were properly rejected because the ALJ properly rejected her testimony with a specific, clear and convincing reason that was supported by the record).
Plaintiff also argues the ALJ erred in failing to properly consider the combination of her impairments, including non-severe impairments. P. Mem. at 7. But plaintiff fails to fully develop this argument. It is not apparent which impairments plaintiff has in mind, nor is it apparent to the court the ALJ erred in failing to consider the combination of plaintiff's impairments. The court will not address the argument further. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (noting the court would not review one of the ALJ's findings because the claimant had failed to specifically argue that issue) (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003)).
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice.
