EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for a period of disability and Disability Insurance Benefits ("DIB") under Titles II of the Social Security Act. The parties have filed cross-motions for summary judgment. ECF Nos. 19 & 20. For the reasons discussed below, plaintiff's motion for summary judgment is denied and the Commissioner's motion is granted.
Plaintiff filed an application for a period of disability and DIB on August 6, 2013, alleging that he had been disabled since May 19, 2012. Administrative Record ("AR") at 185-191. His application was denied initially and upon reconsideration. Id. at 107-110, 112-116. On May 5, 2015, a hearing was held before administrative law judge ("ALJ") Mark C. Ramsey. Id. at 41-80. Plaintiff was represented by counsel at the hearing, at which he and a vocational expert testified. Id. At this hearing plaintiff amended his alleged onset date to December 27, 2013. Id. at 50.
On July 21, 2015, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Act.
Id. at 24-34.
Plaintiff's request for Appeals Council review was denied on December 13, 2016, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-7.
From 2012 to 2014, plaintiff received mental health treatment from Drs. Russell Cottrell and James Chard. E.g., id. at 341-42. He also received home visits from licensed social worker Bobby Walden. Id. at 346. Throughout 2013, plaintiff presented with various mental health issues. He reported being depressed in April 2013 after a concert he organized resulted in a financial loss. Id. at 426. In July 2013, he related a plan — which Dr. Chard viewed as unrealistic — to move to Hawaii and forage in the jungle if "things did not pan out." Id. at 406-07. In August 2013, plaintiff told Dr. Chard that he might have been sexually assaulted while he was in the Navy, but he was unsure whether these memories were real or not. Id. at 373.
On December 27, 2013 — the amended onset date — plaintiff reported having vivid thoughts of harming himself and others. Id. at 341-42. He was not on any psychotropic medication at this time. Id. at 341. Dr. Cottrell advised plaintiff to voluntarily hospitalize himself and plaintiff initially agreed. Id. at 342. A subsequent medical entry indicates, however, that plaintiff merely went to the hospital waiting room for approximately ten minutes before having his girlfriend take him home. Id. at 339.
State agency medical consultants reviewed plaintiff's records in December of 2013 and May of 2014. Dr. L. Colsky conducted the December review and found that treatment notes indicated that: (1) plaintiff was "doing well;" (2) he "want[ed] SSI because it would be more income for him;" (3) a few months earlier he was managing bands in his own business; and (4) plaintiff was capable of at least simple, routine tasks when compliant with medication. Id. at 88-90. Dr. Hillary Weiss conducted the May 2014 review by examining evidence prior to the date last insured. Id. at 99-100. Weiss noted that: (1) plaintiff's condition vacillated between November and December of 2013; (2) he was smoking "copious amounts of cannabis" during the period which lead up to his December 2013 episode when he considered voluntary hospitalization; and (3) that plaintiff's conditions were severe, but under good control when he was compliant with his medications. Id. at 100.
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "`It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues that the ALJ erred by: (1) relying primarily on plaintiff's work activities that preceded the alleged onset date in order to find him not fully credible and (2) failing to provide adequate reasons for discrediting the opinions of his treating physicians.
It was not error for the ALJ to consider medical evidence predating the alleged onset date. In Carmickle v. Comm'r of Soc. Sec. Admin., the Ninth Circuit stated that "[m]edical opinions that predate the alleged onset of disability of limited relevance." 553 F.3d 1155, 1165 (9th Cir. 2008). Carmickle also recognized, however, that this principle was most applicable "where disability is allegedly caused by a discrete event." Id. In a subsequent, unpublished opinion, the circuit emphasized that Carmickle did not relieve the ALJ of his duty to consider all medical evidence. See Williams v. Astrue, 493 F. App'x 866, 868-69 (9th Cir. 2012) (finding the ALJ erred in ignoring medical opinions from up to six years prior to the plaintiff's alleged onset date); see also Hubble v. Astrue, 467 F. App'x 675, 677 (9th Cir. 2012) (finding that it was permissible for ALJ to conclude that a claimant's "ability to work with similar impairments in the past undermines [the claimant's] inability to work now.").
In his motion, plaintiff characterizes December 27, 2013 — the amended onset date — as an inflection point at which his "impairments and limitations . . . worsened significantly" and his psychiatrist recommended that plaintiff voluntarily hospitalize himself. ECF No. 19 at 16. Yet plaintiff's medical records make clear that he had continuously struggled, sometimes severely, with the same mental health issues that led him to consider hospitalization on December 27, 2013. On that day, plaintiff told Dr. Cottrell that he was hearing voices which urged him to attack others. AR at 341. Plaintiff had presented with similar symptoms in the months and years preceding his alleged onset date. See id. at 373 (treatment notes from 8/22/2013 indicating that plaintiff "reports daily" suicidal ideation); id. at 445 (treatment notes from 12/21/2012 in which plaintiff referred to an alternate personality within himself known as "Al" which "loved" the mass shooting at Sandy Hook); id. at 447-48 (treatment notes from 12/18/2012 indicating that "[i]n recent sessions" plaintiff had been "continuously communicating the potential he has for violence and also threatening future violence if he does not get satisfaction from the benefit claim process."); id. at 450 (treatment notes from 12/13/2012 stating that alter-ego "Al" is described as a gorilla and that it "likes to kill people."). While plaintiff makes much of his December 2013 "hospitalization," he was never actually admitted to the hospital. His medical records indicate that "[a]fter agreeing to go to the hospital [plaintiff] sat in the waiting room for about 10 minutes then his girlfriend had to go pick up her kids so she took him home." Id. at 339. The court concludes that plaintiff's case is not one where his alleged disability was caused by a single, discrete event and the ALJ did not err in considering medical evidence that predated the amended onset date.
Having so concluded, the court also finds that the ALJ's credibility findings should be upheld. The hearing decision notes that plaintiff had stopped taking his psychotropic medications months before the alleged onset date. Id. at 30. The treatment records specifically state that plaintiff had self-discontinued his psychotropic prescription and had, instead, taken to smoking marijuana "every 20 to 40 minutes in order to maintain the effect." Id. at 340. And both treatment records and the opinion of state agency consultant Weiss indicate that plaintiff's symptoms were fairly controlled when he was compliant with his medication. Id. at 99, 301-302 (treatment notes from 3/5/2014 indicating that "anger is lees (sic) on quetiapine; no longer hallucinating . . . ."). The law is clear that an ALJ may consider such evidence in weighing credibility. See 20 C.F.R. § 416.929(c)(3) (treatments or other methods used to alleviate symptoms is "an important indicator of the intensity and persistence of your symptoms"); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ appropriately considers an unexplained or inadequately explained failure to follow a prescribed course of treatment); see also SSR 96-7p, 1996 SSR LEXIS 4 ("the individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure.")
The ALJ also relied on plaintiff's ability to manage bands during March and April of 2013 in assessing the severity of his symptoms. AR at 30. Plaintiff argues that this was error because these activities preceded his alleged onset date. ECF No. 19 at 16. As noted above, the ALJ properly considered evidence which predated December 27, 2013. Plaintiff also argues that this evidence actually cuts in his favor insofar as he stopped managing bands because doing so caused "too much anxiety for [his] situation." Id. The Ninth Circuit has held, however, that "[e]ven where . . . [daily] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). It may be that plaintiff's band management enterprise caused him substantial anxiety, perhaps too much anxiety to continue in that specific undertaking. Nevertheless, the ALJ could reasonably interpret plaintiff's participation in that activity — at a time when he undisputedly suffered from mental health issues — as evidence that he did not suffer from a totally debilitating impairment.
Some of the ALJ's other rationales for discounting plaintiff's credibility are less convincing. For instance, it agrees with plaintiff that his plans for moving to Hawaii — plans his provider deemed unrealistic — are of minimal value in determining his credibility. So too the ALJ's emphasis on plaintiff visiting the gym four times a week. Unlike his work managing bands, these activities do not obviously or necessarily speak to the intensity or limiting effects of his mental health symptoms. Nevertheless, consideration of these factors was net error and was ultimately harmless in any event in light of the stronger evidence detailed supra. See, e.g., Carmickle, 533 F.3d at 1162-63 (ALJ's reliance on two unsupported reasons was harmless error where the adverse credibility determination was otherwise supported by legally sufficient reasons).
The ALJ accorded minimal evidentiary weight to the assessments of plaintiff's mental functioning provided by Drs. Cottrell and Chard. AR at 31. He noted that the assessments — provided on September 10, 2014 and September 23, 2014 respectively — were completed approximately nine months after plaintiff's date last insured. Id. The ALJ also emphasized that neither Cottrell nor Chard addressed plaintiff's ability to manage four bands. Id. In the same vein, the ALJ stated that the physicians' own treatment records did "not support such extreme assessments." Id. By contrast, the ALJ accorded substantial evidentiary weight to the opinions of State agency consultants Colsky and Weiss. Id.
Where an ALJ discounts a treating physician's opinion in favor of an examining or consulting physician, he is required to provide "specific and legitimate" reasons for doing so.
Based on the foregoing and taking these justifications together, the court finds that the ALJ offered specific and legitimate reasons for discounting the opinions of Drs. Cottrell and Chard.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 19) is DENIED;
2. The Commissioner's cross-motion for summary judgment (ECF No. 20) is GRANTED; and
3. The Clerk is directed to enter judgment in the Commissioner's favor.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
AR at 432-33.
