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Monique Debbs v. Michael J. Astrue


November 13, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") erred by: (1) improperly evaluating the opinions from the treating and examining sources; (2) failing to find that plaintiff's impairments in combination meet or equal the criteria of one or more listed impairments; and (3) improperly determining plaintiff's residual functional capacity ("RFC"). (Pl.'s Mot. for Summ. J. at 15-29, Dkt. No. 15.) Additionally, plaintiff argues that the Social Security Administration's Appeals Council erred by failing to remand the case based on the additional medical evidence submitted to the Appeals Council after the ALJ's decision. (Id. at 16.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 16.) For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural Background

Plaintiff filed an application for DIB on June 19, 2007, and an application for SSI on June 28, 2007, alleging a disability onset date of December 28, 2006, in both applications. (Administrative Transcript ("AT") 17, 102-12.) The Social Security Administration denied both claims, initially on February 1, 2008, and upon reconsideration on October 2, 2008. (AT 17.) On November 10, 2008, plaintiff filed a request for a hearing before an ALJ, which was conducted on September 8, 2009. (Id.) Plaintiff, who was represented by counsel, was the only person to give testimony at the hearing. (AT 31-47.)

In a decision dated December 30, 2009, the ALJ determined that plaintiff was not disabled, for purposes of the Act, from December 28, 2006, through the date of the ALJ's decision.*fn3 (AT 17-26.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) This action for judicial review ensued.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since December 28, 2006, the alleged onset date. (AT 19.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: depression, bipolar disorder, and schizophrenia. (Id.) At step three, the ALJ determined that plaintiff's impairments, whether considered alone or in combination, did not meet or medically equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). (AT 19-20.)

"a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

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. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

The ALJ further determined that plaintiff had the RFC to "perform a full range of work at all exertional levels," but that she also had non-exertional limitations that limited her to performing "simple unskilled work and detailed work." (AT 21.) In making this determination, the ALJ considered an RFC assessment of plaintiff conducted by Dr. John Onate, plaintiff's treating primary care provider, but accorded "little weight" to Dr. Onate's opinion. (AT 24-25.) Instead, the ALJ gave substantial weight to the opinions of two consultative examining psychologists, Drs. Lisa Perrine and Silvia Torrez, which the ALJ found to contradict Dr. Onate's more severe assessment. (AT 25.)

At step four, the ALJ found that plaintiff was capable of performing her past work as a fast food restaurant worker and telemarketer given her RFC. (AT 22, 25.) In addition, the ALJ determined that, given plaintiff's "age, education, work experience, and [RFC]," there were other jobs that exist in significant numbers in the national economy that plaintiff could also perform. (AT 25.)


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).


A. Whether The ALJ Improperly Evaluated The Opinion Evidence Concerning Plaintiff's Mental Health Impairments Plaintiff argues that the ALJ erred by giving "little weight" to the opinion of Dr. Onate, plaintiff's primary care treating physician, and instead relying on the opinions of two consultative examining psychologists, Drs. Perrine and Torrez, to determine that plaintiff was not disabled. (Pl.'s Mot. for Summ. J. 26-29.) Defendant asserts that the ALJ properly evaluated these opinions as he did, because Dr. Onate's assessment "was inconsistent with all of the other opinions in the record" and "with Plaintiff's treatment records which indicated that her symptoms were generally fair or better and controlled by medication." (Def.'s Cross-Mot. for Summ. J. 8.)

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001),*fn4 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

Here, the ALJ accorded "little weight" to Dr. Onate's August 24, 2009 opinion that plaintiff has a fair-to-poor ability to perform work-related activities in a regular work setting due to her mental impairments. (AT 24-25, 380.) The ALJ's stated reasons for giving this opinion "little weight" were:

[Dr. Onate's] findings are not consistent with the record and there are no objective findings to support his assessment. During consultative examination, claimant's GAF was assessed as 60, denoting mild to moderate symptoms. Her statements during examinations that she goes to the store daily, is able to take public transportation, would like to go to school and enjoys crossword puzzles and watching television programs do not support the restrictive limitations assessed by Dr. Onate. Further, during evaluation, Dr. Perrine opined that due to malingering, the test results were of questionable validity and did not reflect the claimant's true level of functioning. Dr. Torrez stated that the claimant does not appear to be suffering from a major mental disorder and appears to function adequately.

(AT 25.) In essence, the ALJ found that Dr. Onate's opinion was contradicted by the examining psychologists' opinions and the weight of the treatment records, which ordinarily constitute substantial evidence for an ALJ to reject or accord diminished weight to a treating provider's opinion. See Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751, 755) ("Where the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict").

Nevertheless, plaintiff contends that the ALJ improperly relied on the opinions of Drs. Perrine and Torrez in reaching his determination that plaintiff is not disabled, because these opinions, for various reasons, do not constitute substantial evidence. (Pl.'s Mot. for Summ. J. 26-29.) Plaintiff's argument is not well taken.

1. Dr. Perrine's Opinion

On January 11, 2008, plaintiff underwent a consultative mental health evaluation by psychologist Dr. Perrine. (AT 270-74.) During this evaluation, Dr. Perrine interviewed plaintiff, reviewed plaintiff's prior treatment records, and performed a battery of tests to assess plaintiff's general mental status, intellectual functioning, ability to concentrate, and motor skills. (AT 270, 272-74.)

Dr. Perrine noted that plaintiff was raised by her grandmother until the age of sixteen, when her grandmother died and plaintiff started experiencing chronic depression and anxiety. (AT 270, 272.) As for schooling, plaintiff was never enrolled in special education classes and left high school in the eleventh grade, but received her GED in 2007 and attended American River College for a semester. (Id.) With respect to plaintiff's work history, Dr. Perrine observed that plaintiff "has been employed in child care, fast food, and telemarketing," with her longest employment period occurring in 2006 when she worked for Taco Bell. (AT 271.) Dr. Perrine also observed that plaintiff had some history of marijuana and cocaine use, but that she had been clean and sober for about six months. (AT 271, 274.) Plaintiff reported to Dr. Perrine that she had been hospitalized in 2007 on a voluntary hold "for suicidality, anxiety, depression, and episodic crying." (AT 272.) Plaintiff further claimed that she would experience auditory hallucinations when she felt stressed. (Id.) However, she also told Dr. Perrine that she had been taking Busiprone, Tegretol, Zyprexa, and Celexa for the past five months and that "it helped." (Id.) With respect to plaintiff's current activities, Dr. Perrine noted that plaintiff generally spends her day watching TV, participating in an anger management class, doing crossword puzzles, and walking to the store for cigarettes. (Id.)

Dr. Perrine also conducted her own independent assessment of plaintiff, utilizing several testing procedures that evaluated plaintiff's intellectual, memory, and visual-motor functioning. (AT 270.) Based on her examination, Dr. Perrine found that:

The examinee was alert and fully oriented. Speech was clear, slow, and soft. Conversation was coherent with no evidence of formal thought disorder (despite her report mid-interview that she was hearing voices). Mood was described as depressed and affect blunted. Attention and concentration were good. Comprehension within normal limits resulting in good ability to carry out both simple and complex instructions. Recent memory was mildly impaired while remote memory functioning was moderately impaired. Judgment was fair and insight poor.

(AT 272.) Additionally, Dr. Perrine observed that plaintiff appeared neatly dressed, had a normal posture and gait, and made "no abnormal involuntary movements." (Id.) Moreover, she noted that plaintiff was able to read and write, made good eye contact during the interview, and exhibited "deliberate and neat" work habits. (Id.)

Dr. Perrine found that plaintiff's performance on many of the tests that she administered was exceedingly poor, such as plaintiff's overall IQ score of 72, placing plaintiff's "performance in the borderline range of intellectual functioning." (AT 273-74.) However, Dr. Perrine opined that these poor results were "of questionable validity and likely do not reflect [plaintiff's] current level of cognitive functioning." (AT 272.) Her reasons for this determination were that plaintiff "did not put forward an adequate effort" when taking the exams and, in particular, that her memory functioning test results were "far worse than could reasonably be expected given her history and complaints and not at all consistent with results on another test (Digit Span) that utilizes memory functioning." (AT 274.) Dr. Perrine also noted that during the examination plaintiff "often seemed blase and uninvolved in the testing procedures, unmotivated to correct errors or do more than the bare minimum, and did not make an adequate effort to demonstrate her current abilities." (AT 272.) She further opined that plaintiff's "true level of [intellectual] functioning is likely in the low average range" and that "[t]here was no indication that emotional problems such as depression or anxiety might have interfered with her test results." (AT 273.)

As noted above, a consultative evaluation that is based on independent clinical findings and that contradicts a treating provider's opinion, such as Dr. Perrine's examination of plaintiff, may constitute substantial evidence to justify an ALJ's rejection of the treating provider's opinion. Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751). Plaintiff, however, makes three arguments as to why the ALJ's reliance on Dr. Perrine's opinion was in error.

First, plaintiff emphasizes that Dr. Perrine only examined plaintiff on one occasion for a short period of time. (Pl.'s Mot. for Summ. J. 26-27.) However, the fact that a consultative examining provider saw a claimant on only one occasion is not in itself sufficient to disqualify the examiner's opinion; the very nature of a consultative examination generally limits an examining provider to a single opportunity to assess a claimant. See 20 C.F.R. § 404.1519.

In developing her opinion, Dr. Perrine conducted a thorough examination, resulting in independent clinical findings, and reviewed plaintiff's prior records.*fn5

Second, plaintiff argues that her performance on the tests administered by Dr. Perrine actually support a finding that plaintiff is disabled. (Pl.'s Mot. for Summ. J. 27.) This interpretation, of course, contradicts Dr. Perrine's professional opinion that these results do not accurately reflect plaintiff's actual capabilities. (See AT 273-74.) Dr. Perrine explained her conclusion by stating that plaintiff had not put forth an adequate effort to demonstrate her actual capabilities. She based this determination on the records before her, plaintiff's behavior, her personal examination of plaintiff, and her clinical expertise as a psychologist. Indeed, plaintiff's performance on the consultative examination plausibly suggests malingering -- for example, apart from her behavioral observations, Dr. Perrine noted that plaintiff's test results regarding her memory functioning were inconsistent with results from her Digit Span test, which also tested memory functioning skills. (Id.)

After reviewing and considering all of the evidence before him, the ALJ agreed with Dr. Perrine's interpretation of those results. (See AT 25.) One of the ALJ's stated reasons for according "little weight" to Dr. Onate's opinion was that "Dr. Perrine opined that due to malingering, the test results were of questionable validity and did not reflect the claimant's true level of functioning." (Id.) While Dr. Perrine's interpretation may not be the only one, it was reasonable and the ALJ was entitled to rely on her psychological expertise. Sprague, 812 F.2d at 1230 ("The general rule is that conflicts in the evidence are to be resolved by the Secretary . . . and that the Secretary's conclusion must be upheld where there is more than one rational interpretation of the evidence").

Finally, plaintiff contends that the ALJ gave disproportionate consideration to Dr. Perrine's opinion, because Dr. Perrine only "had limited medical records and failed to consider any records other than those 'provided by the Disability Evaluation Division' prior to 1/11/08." (Pl's Mot. for Summ J. 27.) As an initial matter, the mere fact that further medical records were generated after a consultative examiner's assessment does not per se disqualify the examiner's opinion. Because consultative examiners can only review the records reasonably available at the time of the assessment, plaintiff's interpretation would lead to disqualification of virtually every consultative examiner's opinion in every case. In any event, the ALJ did not rely solely on Dr. Perrine's opinion, but also considered consultative psychologist Dr. Torrez's opinion and plaintiff's treatment records, which, as discussed below, were generally consistent with Dr. Perrine's opinion.

2. Dr. Torrez's Opinion and the Other Treatment Records The ALJ also relied on the opinion of Dr. Torrez, another consultative examining psychologist, as a reason for according Dr. Onate's opinion "little weight." (AT 25.) Dr. Torrez performed a comprehensive mental health evaluation of plaintiff on August 31, 2008. (AT 312-17.) During this examination, Dr. Torrez observed that plaintiff's speech, thought content, concentration, and judgment abilities were within normal limits and that "[t]here were no indications of hallucinations or delusions." (AT 315-16.) She also noted that plaintiff was well-dressed, had a pleasant attitude, and made fair eye contact. (AT 315.) While Dr. Torrez found that plaintiff's mood and affect were dysphoric, plaintiff denied any notions of suicide. (Id.) With respect to plaintiff's speech, Dr. Torrez noted that it was logical, coherent, concise, and clearly articulated. (Id.) Dr. Torrez further found that plaintiff's level of intellectual function was consistent with her education level as she "had no difficulty identifying three presidents of the United States and the capitol and governor of California correctly" and could correctly answer other simple questions. (Id.) With respect to intellectual functioning, Dr. Torrez stated that plaintiff had an average intellect, an intact recent and remote memory, and the ability to conduct abstract thinking within normal limits. (AT 315-16.)

Dr. Torrez diagnosed plaintiff with cocaine dependence in early remission, cannabis and alcohol dependence in early partial remission, an unspecified depressive disorder, and a GAF score of 60.*fn6 (AT 316.) Dr. Torrez opined that "[d]espite claimant's reported symptoms and history, she does not appear to be suffering from a major mental disorder at this time." (AT 317.) She further found that plaintiff's "symptom severity was considered to be within the mild to moderate range." (AT 316.) Dr. Torrez also assessed plaintiff as having a fair ability to perform a number of work-related tasks such as remembering instructions, maintaining concentration, interacting with co-workers, and dealing with changes in a work setting. (Id.) Additionally, Dr. Torrez found that there was a minimal likelihood of plaintiff emotionally deteriorating in the work environment. (Id.)

Plaintiff argues that the ALJ erroneously relied on Dr. Torrez's opinion, because Dr. Torrez did not review plaintiff's prior treatment records when conducting her evaluation. (Pl.'s Mot. for Summ. J. 28-29.) Generally, the regulations require that a consultative examiner be given any necessary background information about the plaintiff's condition. 20 C.F.R. § 404.1517. Background information is essential because consultative examinations are used to resolve inconsistencies or ambiguities in the evidence. 20 C.F.R. § 404.1519a(b). In a mental impairment case, a plaintiff's prior treatment records are even more important than in a case involving a physical impairment, which is usually more easily visible to the examining physician. It is quite often the case that the severity, or even the expression, of mental problems will vary from day to day.

Thus, the undersigned agrees that, standing alone, Dr. Torrez's opinion cannot constitute substantial evidence. Nevertheless, Dr. Torrez's opinion was supported by a thorough examination resulting in independent clinical findings, and the ALJ considered Dr. Torrez's opinion in conjunction with the other evidence and opinions in the record, which were generally consistent with Dr. Torrez's findings. (AT 21-25.) Plaintiff's treatment records generally indicate that plaintiff's impairments caused her mild-to-moderate limitations consistent with Drs. Perrine's and Torrez's assessments, rather than the more extreme limitations assessed by Dr. Onate.

For example, the treatment records generally indicate that plaintiff's conditions were well-controlled once she started receiving medication. In June 2007, plaintiff was checked into Sacramento County Mental Health Treatment Center and placed on an involuntary psychiatric hold. (AT 236.) While there, plaintiff complained of hearing voices and "depressive feelings, decreased sleep and appetite, increased irritability." (Id.) Plaintiff was not taking any medications at the time and stated that "I need medications that will help me with my voices and anger." (Id.) Despite plaintiff's complaints, the doctor noted that plaintiff's speech was normal and that her insight and judgment were fair. (AT 237.) Additionally, the doctor recommended reestablishing plaintiff's medications and prescribed Zyprexa. (AT 239, 241.)

After her release from the hospital, plaintiff began receiving treatment services from the Guest House Homeless Services Program ("Guest House"), where she received treatment from August 2007 through May 2008. (AT 298-311.) During the course of plaintiff's treatment at Guest House, her medications and dosages were changed several times and the examiners generally observed a steady improvement in plaintiff's mood and overall condition. (See AT 298-305.) Plaintiff was last examined at Guest House on May 14, 2008, by Licensed Psychiatric Technician ("L.P.T.") Scales, who noted that plaintiff "continues with some mild depression, however, feels stable on her current medications." (AT 305.) Plaintiff also received treatment at El Hogar from June 2008 to January 2009. (AT 352-79.) During that time period, she was treated by Drs. Franklin and Meer. (AT 363, 366.) During plaintiff's final examination on January 15, 2009, Dr. Meer noted that plaintiff's current "combination of medication had worked well for her," causing Dr. Meer to continue plaintiff on the same regimen of medication. (AT 366.)

As such, the treatment records indicate that plaintiff's mental impairments were generally well-controlled by medication, corroborating the relatively mild findings of Drs. Perrine and Torrez, and plausibly suggesting that plaintiff's symptoms were overall mild to moderate throughout most of the relevant period.

Additionally, on September 30, 2008, a non-examining state agency psychiatrist, Dr. Gottschalk, reviewed plaintiff's prior records and conducted a mental RFC assessment. (AT 318-35.) Dr. Gottschalk opined that plaintiff had insignificant-to-moderate limitations with respect to understanding and memory, concentration and persistence, social interaction, and adaptation. (AT 318-19.) Dr. Gottschalk further found that while plaintiff had certain psychotic features, they were in remission because of the medications she took. (AT 322-23.) Additionally, Dr. Gottschalk opined that plaintiff's impairments caused only mild restriction in activities of daily living and moderate difficulties in maintaining social functioning, concentration, persistence, and pace. (AT 329.) Ultimately, Dr. Gottschalk determined that plaintiff was mentally able to do at least "1-2 step tasks, not requiring significant, close, coordinated interactions" and was "able to adapt to change in work routine." (AT 320.) As such, Dr. Gottschalk's opinion generally comports with the opinions of Drs. Perrine and Torrez, as well as plaintiff's treatment records.

Moreover, even setting aside the substantial evidence of the consultative examining psychologists and the state agency psychiatrist, Dr. Onate's brief, two-page opinion itself is conclusory, minimally supported, and inconsistent with the weight of plaintiff's treatment records. For example, Dr. Onate opined that plaintiff had a fair-to-poor ability to understand instructions and sustain concentration and task persistence. (AT 380.) His basis for this assessment was that plaintiff's bipolar disorder caused her difficulty in paying attention. (Id.) However, the treatment records show that some of plaintiff's other treating physicians noted that plaintiff was attentive, alert, had a normal ability to concentrate, and made good eye contact. (See, e.g., AT 272, 305-07, 309, 315, 366.)

Indeed, Dr. Onate's opinion contains little in the way of objective clinical findings beyond an ultimate determination that plaintiff has "poor chronic Bipolar [disorder]" and a checklist regarding plaintiff's ability to understand and remember instructions, sustain concentration and task persistence, engage in social interactions, and adapt to changes. (AT 380-81.) He also opined that plaintiff had difficulty with attention and emotional control (id.), but did not cite to any objective test results or specific clinical findings that support these conclusions, and did not explain what his "psychiatric evaluation" of plaintiff entailed. (See id.) As noted in footnote 5, supra, Dr. Onate based his functional capacity assessment solely on a single, initial consultation with plaintiff on August 24, 2009. (See AT 380-81.)*fn7 "The ALJ need not accept an opinion of a physician -- even a treating physician -- if it is conclusionary and brief and is unsupported by clinical findings." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Magallanes, 881 F.2d at 747, 751); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that the ALJ properly rejected the opinion of a treating physician because it was "unsupported by rationale or treatment notes, and offered no objective medical findings to support the existence of [the claimant's] alleged conditions"); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected).

Additionally, Dr. Onate's status as a primary health care provider further bolsters the ALJ's reliance on the other specialist opinions from psychologists and a psychiatrist. 20 C.F.R. § 404.1527 ("We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist").

Accordingly, the undersigned finds that substantial evidence supports the ALJ's evaluation of the opinion evidence.

B. Whether The ALJ Erred In Determining That Plaintiff's Impairments Did Not Meet or Equal A Disability Listing*fn8

At step three, the ALJ determines whether "a claimant's impairment meets or equals an impairment listed in [20 C.F.R. Part 404, Subpart P, Appendix 1]." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The Listing of Impairments describes specific impairments of each of the major body systems "which are considered severe enough to prevent a person from doing any gainful activity." Id. (citing 20 C.F.R. § 404.1525). If a claimant meets or equals a listed impairment he or she will be found disabled at this step without further inquiry. Id. (citing 20 C.F.R. § 404.1520(d)).

A claimant bears the burden of proving that her impairments satisfy all the criteria of a particular listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ("[f]or a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify") (emphasis in original); Tackett, 180 F.3d at 1099 ("[claimant] had to establish that he met or equaled each of the following characteristics of" a listing).

1. Listing 12.04

In this case, at step three, the ALJ found that plaintiff's "mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listing 12.04," which relates to affective disorders. (AT 19.) In particular, the ALJ found that plaintiff failed to satisfy the "B" and "C" criteria of Listing 12.04.

Paragraphs "B" and "C" of Listing 12.04 specify that the impairment, or combination of impairments, must satisfy the following characteristics:

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration; OR

C. Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.04. Listing 12.04 requires a claimant to prove that his or her impairments, whether singly or in combination, meet the criteria of both Paragraphs A and B or, alternatively, meet the criteria of Paragraph C. See id. Plaintiff contends that the ALJ erred in finding that plaintiff did not meet the B or C criteria. (Pl.'s Mot. for Summ. J. 18-25.)

With respect to whether plaintiff met the criteria listed in Paragraph B, the ALJ determined:

In activities of daily living, the claimant has mild restriction. Although her sister doe [sic] her hair, the claimant does the remainder of her own grooming. She reported to Dr. Torrez that she made her own bed and folded her clothes. . . .

In social functioning, the claimant has moderate difficulties. The claimant reported during consultative evaluation with Dr. Torrez that she was not looking for worked [sic] but wanted to go to school. She goes to the store every day and is able to ride public transportation to get around. . . .

With regard to concentration, persistence or pace, the claimant has moderate difficulties. The claimant testified that she was able to obtain her GED and complete one year of college. She enjoys crossword puzzles and watching television. On examination with Dr. Perrine, the claimant's attention and concentration was good and comprehension was within normal range. . . .

As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration. Because the claimant's mental impairments do not cause at least two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation, each of extended duration, the "paragraph B" criteria are not satisfied.

(AT 20.)

Plaintiff contends, for several reasons, that the record evidence shows that she has marked difficulties in (1) activities of daily living, (2) maintaining social functioning, and (3) maintaining concentration, persistence, or pace. (Pl.'s Mot. for Summ. J. 20-24.)

First, plaintiff contends that Dr. Onate's opinion supports a finding that plaintiff has marked difficulties with respect to all three of the above categories. However, for the reasons discussed above, the ALJ properly discounted Dr. Onate's opinion. Moreover, Dr. Onate never assessed plaintiff's ability to perform activities of daily living. Additionally, with respect to plaintiff's social functioning, Dr. Onate found that plaintiff had a fair ability to interact with both co-workers and supervisors (AT 381), indicating that plaintiff's impairment in this respect was moderate, rather than marked.

Second, plaintiff argues that the treatment records support a finding that she had "marked" impairments with respect to all three categories. (Pl.'s Mot. for Summ. J. 20-24.) The undersigned addresses plaintiff's assertions with respect to each category in turn.

In arguing that she had marked difficulties in activities of daily living, plaintiff cites to the low GAF scores that Drs. Rajappa and Franklin gave plaintiff during her respective appointments with them. (Id.) However, a low GAF score does not determine disability; it is a piece of evidence that is to be considered with the rest of the evidence in the record. Olds v. Astrue, 2008 WL 339757, at *4 (D. Kan. Feb. 5, 2008). As defendant points out, a GAF score also considers non-medical factors and does not necessarily mean that the severity requirements of a mental disorder listing were satisfied. 65 Fed. Reg. 50746-01, 50765 (Aug. 21, 2000) ("[The GAF Scale] does not have a direct correlation to the severity requirements in our mental disorders listings"). Additionally, an ALJ is permitted to discredit a GAF score where it is unsupported by objective evidence. Clark v. Astrue, 2009 WL 542166, at *6 (C.D. Cal. 2009). Plaintiff's other treating records generally show that she did not have "marked" difficulties in performing daily activities. For example, the record shows that plaintiff is able to do most of her own grooming, make her own bed, fold her own clothes, go to the store, and pursue hobbies such as doing crossword puzzles. (See, e.g., AT 272, 316.) In short, the record as a whole does not show marked limitations in plaintiff's ability to perform daily activities.

With respect to social functioning, plaintiff focuses her argument on the findings of Nurse Practitioner ("N.P") Wicks, who saw plaintiff on February 27, 2008. (AT 299, 307.) However, N.P. Wicks's findings also suggest only moderate difficulties; she noted that plaintiff had only "mild" mood swings and "moderate depression." (Id.) Plaintiff also told N.P. Wicks that she wanted to go back to school and denied any thoughts of wanting to hurt others. (Id.)

Plaintiff also contends that her treatment records generally indicate that she has "marked difficulties in maintaining concentration, persistence, or pace." (Pl.'s Mot. for Summ. J. 23-24.) To the contrary, there are several treatment records generally showing that plaintiff was attentive, alert, had a normal ability to concentrate, and made good eye contact. (AT 305-07, 309, 315, 366.)

Finally, plaintiff argues that her sister's statements and her own testimony illustrate that she has marked limitations with respect to activities of daily living and social functioning. (Pl.'s Mot. for Summ. J. 20-22.) However, the ALJ determined that plaintiff's statements regarding the extent of her symptoms and functional limitations were not entirely credible, and plaintiff's briefing does not provide any substantive analysis challenging the ALJ's credibility determinations. (AT 22.) Plaintiff also argues that her sister's statements "establish that [plaintiff] has isolated herself from society only going out for treatment." (Pl.'s Mot. for Summ. J. 22.) However, as discussed above, the weight of the record evidence, including the opinion evidence and plaintiff's treatment records, indicates that plaintiff's impairments were not nearly as severe. The ALJ properly relied on this other substantial evidence to determine that plaintiff was at most only moderately impaired. See Sprague, 812 F.2d at 1229-30.

The ALJ also addressed whether plaintiff satisfied the requirements of Paragraph C, stating:

In this case, the evidence fails to establish the presence of the "paragraph C" criteria. The claimant does not require a highly structured and supportive environment for adequate functioning. She has not had repeated extended episodes of decompensation. In addition, a minimal change in the claimant's environment would not be expected to result in deterioration in her condition or decompensation. Moreover, the claimant is not totally unable to function outside the home independently. (AT 20.)

Again, the record evidence generally shows that plaintiff could take public transportation on her own, was able to go to the store and anger management meetings, and that she desired to return to school. (See, e.g., AT 272, 299, 316.) The record also shows that plaintiff has never been committed to an institution, and has been hospitalized for her conditions only once, in 2007, and only for a short period of time, when plaintiff was not taking medication. (AT 236.) As discussed above, the remainder of the treatment records indicate that plaintiff's conditions have generally improved and have been well controlled on medication. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits"). Thus, the ALJ reasonably concluded that plaintiff does not satisfy the Paragraph C criteria.

Based on the foregoing, the undersigned concludes that the ALJ did not err in finding that plaintiff's impairments do not meet or equal Listing 12.04.

2. Listing 12.03

Plaintiff asserts that she also meets the criteria under Listing 12.03 for schizophrenic, paranoid, and other psychotic disorders. (Pl.'s Mot. for Summ. J. 25-26.) While the ALJ did not specifically address whether plaintiff's impairments meet the criteria set out in Listing 12.03, he generally found that plaintiff "does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments . . . ." (AT 19.) In any event, plaintiff's argument is without merit. The criteria required to meet Listing 12.03 substantively mirror the criteria for Listing 12.04, with the only difference being the particular mental impairment in question. See 20 C.F.R. Pt. 404, Subpt. P, App.1, §§ 12.03-12.04. Because the symptoms and limitations arising from plaintiff's mental impairments do not satisfy Listing 12.04, they also do not satisfy Listing 12.03.

C. Whether The ALJ Improperly Assessed Plaintiff's RFC Plaintiff argues that the ALJ erred in determining plaintiff's RFC. (Pl.'s Mot. for Summ. J. 26.) More specifically, she argues that the ALJ erroneously relied on the opinions of Drs. Perrine and Torrez and wrongfully rejected Dr. Onate's opinion and plaintiff's treatment records. (Id.) However, because the undersigned has already concluded that the ALJ properly considered the opinion evidence, plaintiff's argument is without merit.

D. Whether The Appeals Council Erred By Refusing To Remand To The ALJ For Reconsideration Based On Plaintiff's Newly-Submitted Medical Evidence The record contains additional evidence that plaintiff submitted to the Appeals

Council after the ALJ issued his decision, consisting of seven pages of medical records from August 2009 through February 2010, from the Primary Care Clinic with which Dr. Onate was associated. (AT 382-89.) With respect to this evidence, the Appeals Council stated that it had "considered" it, but found that it did "not provide a basis for changing" the ALJ's decision. (AT 1.) Plaintiff argues that the Appeals Counsel erred in failing to remand her case to the ALJ on the basis of this additional evidence. (Pl.'s Mot. for Summ. J. 29.)

The decision of the ALJ remains the final decision when the Appeals Council denies review. Russell v. Brown, 856 F.2d 81, 83-84 (9th Cir. 1988).*fn9 However, any additional evidence considered by the Appeals Council in denying the request for review becomes part of the administrative record for review by this court. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000) (the court may properly consider the additional materials because the Appeals Council addressed them in the context of denying appellant's request for review). To justify a remand based on additional evidence submitted to the Appeals Council, the claimant must show that the evidence is material, i.e., that there is a reasonable possibility that the evidence would have changed the outcome of the administrative hearing. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).

Plaintiff argues that the additional evidence presented in this case was material because it "supported the Medical Source Statement of Dr. Onate by providing medical records of the treatment that he and his staff provided to Plaintiff from 8/19/09 through 2/18/10." (Pl.'s Mot. for Summ. J. 29.) As an initial matter, the court observes that these records could not have supported Dr. Onate's August 24, 2009 assessment, because the only record that predates that assessment was an August 19, 2009 intake record completed by someone other than Dr. Onate (AT 388), and the post-August 24, 2009 examinations logically could not have lent support to his conclusory August 24, 2009 assessment.

Furthermore, after reviewing the additional treatment records in conjunction with the other record evidence, the undersigned cannot conclude that there is a reasonable possibility that the additional records would have changed the ultimate non-disability determination. Notes from plaintiff's visits in the second half of 2009 tend to indicate that plaintiff's impairments did not cause the serious limitations that Dr. Onate assessed in his August 24, 2009 form. For instance, during the appointment on September 28, 2009, it was noted that plaintiff "feels that medication has helped her. Still has [hallucinations], but says that this has improved over last month." (AT 385.)

Although the two treatment records from 2010 indicate that plaintiff's condition may have declined, Dr. Onate's notes from both of these appointments also indicate that plaintiff had run out of certain medications that she was taking to control her impairments. (AT 383-84.) As discussed above, the records from plaintiff's other treating sources generally showed that plaintiff's impairments were well-controlled when she was on medication and that her condition would decline when she ran out of certain medications. (AT 236, 239, 241, 266, 300, 304, 366.) See Warre, 439 F.3d at 1006. Moreover, the two treatment records from 2010 post-date the Commissioner's final decision and thus do not fall within the relevant period under review. If plaintiff's impairments truly worsened after the ALJ's final decision, that may be grounds for a new application, but it does not compel a remand with respect to the period at issue in this action.

Accordingly, plaintiff has failed to show that the additional evidence submitted to the Appeals Council was material and thus her request for remand on the basis of Appeals Council error is without merit.*fn10


Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment or remand (Dkt. No. 15) is DENIED.

2. The Commissioner's cross-motion for summary judgment (Dkt. No. 16) is GRANTED.

3. Judgment is entered for the Commissioner.

4. The Clerk of Court is directed to close this case.

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