United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. SCOTT UNITED STATES MAGISTRATE JUDGE
2012, Plaintiff David Ramirez (“Plaintiff”)
applied for Supplemental Security Income (“SSI”)
alleging disability beginning July 15, 2010. Administrative
Record (“AR”) 30, 167-69. The Administrative Law
Judge (“ALJ”) convened a hearing on October 2,
2014, at which Plaintiff, who was represented by a lawyer,
appeared and testified. AR 44-63. Plaintiff's counsel
told the ALJ that Plaintiff is “disabled mostly due to
mental health reasons.” AR 47. On November 20, 2014,
the ALJ issued a written decision denying Plaintiff's
request for benefits. AR 30-42.
found that Plaintiff suffers from the severe impairments of
obesity, hernia, depressive disorder, and anxiety disorder.
AR 31, 37. Despite these impairments, the ALJ found that
Plaintiff has the residual functional capacity
(“RFC”) to carry up to twenty pounds
occasionally, ten pounds frequently, sit or stand/walk for
six hours of an eight-hour workday, and occasionally crouch
or climb. AR 32, 37. As non-exertional limits, the ALJ found
that Plaintiff is limited to simple, repetitive tasks, no
face-to-face public contact, only occasional contact with
supervisors and co-workers, and no fast-paced assembly-type
on this RFC and the testimony of a vocational expert
(“VE”), the ALJ found that Plaintiff could
perform his past relevant work as a call center clerk, which
the Dictionary of Occupational Titles (“DOT”)
classifies as “information clerk, transportation,
” DOT code 237.367-018. AR 36-37. The ALJ therefore
concluded that Plaintiff was not disabled. AR 38.
now raises eight claims of error. Dkt. 31, Joint Stipulation
[“JS”] at 21. The Court discusses each, below,
and AFFIRMS the ALJ's decision.
ISSUE ONE: Did the ALJ give adequate reasons for
rejecting medical opinions from Plaintiff's treating
contends that the ALJ failed to explain adequately her
rejection of “Treating sources Huthsteiner, Lletget,
and [Yegiazaryan].” JS at 47.
The Treating Physical Rule.
types of physicians may offer opinions in Social Security
cases: (1) those who directly treated the plaintiff, (2)
those who examined but did not treat the plaintiff, and (3)
those who did not treat or examine the plaintiff.
See 20 C.F.R. § 404.1527(c); Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating
physician's opinion is generally entitled to more weight
than that of an examining physician, which is generally
entitled to more weight than that of a non-examining
physician. Lester, 81 F.3d at 830. Thus, the ALJ
must give specific and legitimate reasons for rejecting a
treating physician's opinion in favor of a non-treating
physician's opinion or an examining physician's
opinion in favor of a non-examining physician's opinion.
Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007)
(citing Reddick v. Chater, 157 F.3d 715, 725 (9th
Cir. 1998)); Lester, 81 F.3d at 830-31 (citing
Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir.1983)). If the treating physician's opinion is
uncontroverted by another doctor, it may be rejected only for
“clear and convincing” reasons. Lester,
81 F.3d at 830 (citing Baxter v. Sullivan, 923 F.2d
1391, 1396 (9th Cir. 1991)). However, “[t]he ALJ need
not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002); accord Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001). The factors to be considered by the
adjudicator in determining the weight to give a medical
opinion include: “[l]ength of the treatment
relationship and the frequency of examination” by the
treating physician; and the “nature and extent of the
treatment relationship” between the patient and the
treating physician. Orn, 495 F.3d at 631 (quoting 20
C.F.R. § 404.1527(d)(2)(i)-(ii)).
Overview of Plaintiff's Medical Treating Source
Conny Huthsteiner and social worker/therapist Valeria Lletget
are both associated with the San Fernando Mental Health
Center (“SFMHC”), part of the Los Angeles County
Department of Mental Health. Ms. Lletget completed
Plaintiff's initial assessment at SFMHC in April 2012. AR
383-87. On May 1, 2012, Plaintiff was assigned to
psychiatrist Dr. Huthsteiner “for medication and
treatment support services.” AR 390, 407.
Huthsteiner complete two “complex medication support
service” reports in June and August 2012. AR 434-37. In
the June 2012 report under “assessment, ” Dr.
Huthsteiner noted that Plaintiff exhibited “symptoms of
depression and PTSD” and “may be borderline MR
[mentally retarded].” AR 437. She also noted that
Plaintiff has a “probable binge eating disorder and is
severely morbidly obese.” Id. After noting
that Plaintiff would start Wellbutrin and Ativan/Lorazepam,
Dr. Huthsteiner opined that Plaintiff “needs to attend
groups to address relationship/behavioral issues.”
August 2012 report, Dr. Huthsteiner noted Plaintiff
“feels his anxiety is a little better” and
“feels he is less angry. Being pushed by a friend to
return to work.” AR 434. She also noted, “Pt
improving on meds. … Pt doesn't want to take an
antipsychotic at this time …. Nevertheless, I have
made a prescription available to him to use should he find it
useful.” Id. She also noted that Plaintiff had
no psychiatric hospitalizations and no “Hx”
[history] of psychiatric treatment. AR 435.
Dr. Lilit Yegiazaryan was later assigned to Plaintiff's
care team, replacing Dr. Huthsteiner. AR 523. It appears
(although the signature is illegible) that Dr. Yegiazaryan
completed similar medication support reports in October 2012,
January 2013, and April 2013. AR 429-33. Similar reports were
also completed in August and November 2013. AR 513-15. The
record also contains 2014 typed progress notes from Dr.
Yegiazaryan. AR 516-18. In those notes, Dr. Yegiazaryan
generally recorded that Plaintiff was doing better on
medications and reported no side effects. Id. At the
hearing, Plaintiff testified that he saw Dr. Yegiazaryan
“just for medication.” AR 51.
The ALJ's Discussion of the SFMHC Evidence.
began her analysis by noting that for mental impairments, she
was more concerned about identifying their effects on
Plaintiff's functioning rather than labeling them with a
precise diagnosis. AR 31. The ALJ emphasized that she
considered Plaintiff as a “whole person, ”
including the interplay between all his medically
determinable impairments and their symptoms, whether physical
or mental. Id.
found that Plaintiff's depression and anxiety are both
“severe” impairments. AR 31. The ALJ discussed
SFMHC's treating records. AR 33-36, citing exhibits 3F
(AR 380-394), 5F (AR 399-437), and 9F (AR 513-18). The ALJ
summarized Dr. Yegiazaryan's 2014 treatment records. AR
36. The ALJ also discussed Ms. Lletget's opinions
concerning Plaintiff's mental health, both as documented
in her progress notes and a Mental Disorder Questionnaire
that she completed in May 2013. Id.
ultimately “concur[ed] with Ms. Lletget to an
extent” and therefore assessed “major functional
limitations in [Plaintiff's] ability to socialize, the
limitation to simple repetitive work (e.g., attaching to
problems with changes in routine) and in precluding his
ability to handle fast-paced assembly work (e.g., due to the
likelihood of heightened anxiety).” AR 36. The ALJ put
all these restrictions in Plaintiff's RFC. AR 37.
Analysis of Plaintiff's Claimed Errors.
contends that the ALJ erred by failing to address Dr.
Huthsteiner's opinions. JS at 40. While the ALJ's
decision does not mention Dr. Huthsteiner's name, it does
discuss SFMHC's records. The ALJ also discussed Ms.
Lletget's progress notes, and Plaintiff admits,
“Lletget merely reiterated the same diagnoses [as]
Huthsteiner.” JS at 26.
contends that the ALJ needed to give reasons for rejecting
Dr. Huthsteiner's initial assessment that Plaintiff
exhibited “symptoms of depression and PTSD” and
“may be borderline MR.” JS at 40, citing AR 437.
The ALJ, however, did not “reject” the medical
evidence that Plaintiff suffers from depression and
post-traumatic stress disorder. To the contrary, she found
that Plaintiff suffers from the severe impairments of
depressive disorder and anxiety disorder. AR 37. She noted
that Plaintiff's childhood abuse “might support a
diagnosis of PTSD, ” but felt she had adequately
addressed the effect of Plaintiff's mental impairments on
his functioning regardless of their label. AR 31, 33.
Plaintiff has not suggested what restrictions the ALJ should
have included in his RFC based on Dr. Huthsteiner's
opinions beyond those that the ALJ included, i.e.,
limitations (1) to simple, repetitive work, (2) on social
interactions, and (3) against fast-paced work. AR 37.
mental retardation, even if the ALJ had accepted Dr.
Huthsteiner's initial impression as a diagnosis,
Plaintiff does not persuasively explain how an RFC limited to
“simple, repetitive tasks” does not account for
Plaintiff's cognitive difficulties. Plaintiff argues that
the ALJ erred in finding he could perform even simple,
repetitive work because he was laid off from “a simple
repetitive” call center job for being “too
slow.” JS at 71, citing AR 192 (when asked to explain
why he stopped working, Plaintiff said “change in
management and he was too slow”). The ALJ, however,
found that Plaintiff could do the call center job
for four or five years and was laid off when the company
moved, not for performance reasons. AR 33. This finding is
supported by substantial evidence - i.e., Plaintiff's own
hearing testimony. AR 48-49, 50, 59-60 (cited and discussed
below). The ALJ was entitled to rely on Plaintiff's
hearing testimony that he could do the call center job (both
then and now) and therefore Plaintiff's mental
impairments do not prevent him from doing even simple,
argues, “Huthsteiner noted that [Plaintiff] was not
even able to live independently.” JS at 77, citing AR
435. In fact, the cited record is from Dr. Huthsteiner's
first encounter with Plaintiff and merely notes that
Plaintiff “has always lived with his parents.” AR
435. This is a far cry from a medical opinion that Plaintiff
cannot live independently.
discusses many patient history facts recorded by Dr.
Huthsteiner and others at SFMHC, such as that Plaintiff has
an abusive family, required special education services to
complete high school, and is ashamed of his weight. Such
patient history facts are not medical opinions, and the ALJ
had no obligation to give reasons for “rejecting”
them. In any event, the ALJ did not disbelieve
Plaintiff's self-reported history; she incorporated much
of it into her decision. AR 30 (discussing special
education), AR 33 (discussing abuse), AR 35 (discussing
symptoms Plaintiff reported to SFMHC).
fails to identify a single opinion by Dr. Yegiazaryan in the
record before the ALJ that would have required a different
RFC, had the ALJ adopted it.
states, “Robinson, Lletget, and Yegiazaryan gave
[Plaintiff] low GAF scores in the 40s, which are listing
level and, and presumptively indicate that he is disabled and
cannot engage in substantial gainful employment. (AR 380,
456-60, 294-95).” JS at 77. In fact, while AR 380 is a
record from Robinson and AR 456-60 are records from Lletget,
AR 294-95 are not records from Yegiazaryan. Rather, AR 294-95
is a post-hearing letter brief written by Plaintiff's
counsel summarizing a February 24, 2015 opinion by Dr.
Yegiazaryan (i.e., an opinion written after the
ALJ's November 20, 2014 decision). Plaintiff's
argument that this Court should consider Dr.
Yegiazaryan's February 24, 2015 opinion as new evidence
is discussed below under Issue Seven.
Social Worker/Therapist Lletget.
workers are generally not an “acceptable medical
source.” See 20 C.F.R. § 404.1513(a)
(listing acceptable medical sources). An opinion from a
person who is not an acceptable medical source need not be
afforded any deference by the ALJ. See Bunnell v.
Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990), rev'd
en banc on other grounds, 947 F.2d 341 (9th Cir. 1991). A
social worker can be an acceptable medical source, but only
if the social worker acts as an agent of a licensed physician
or psychologist. Gomez v. Chater, 74 F.3d 967,
970-71 (9th Cir. 1996). This occurs where the social worker
acts so “closely under the supervision” of the
treating physician that the social worker's opinion
should be “properly considered as part of the
opinion” of the treating physician. Id. at
appears to argue that Ms. Lletget's opinions should be
considered part of Dr. Huthsteiner's opinions under this
“agency” rule, asserting that Ms. Lletget
“merely reiterated the same diagnoses of
board-certified treating psychiatrist Huthsteiner, who
unequivocally is an acceptable medical source.” JS at
26. This argument does not demonstrate error for at least two
reasons. First, Plaintiff has not identified evidence (beyond
working at SFMHC) that Dr. Huthsteiner closely supervised Ms.
Lletget. Plaintiff saw Ms. Lletget before meeting Dr.
Huthsteiner, and Dr. Huthsteiner's role on
Plaintiff's care team appears to have been providing
prescriptions and medication support services. Second, as
discussed above, Plaintiff has not demonstrated that the
ALJ's RFC determination failed to account for any of Dr.
Huthsteiner's opinions, which Plaintiff argues are
essentially the same as Ms. Lletget's. The ALJ included
“major functional limitations” in Plaintiff's
RFC due to Ms. Lletget's progress notes. AR 36.
also argues that the ALJ should have considered Ms. Lletget
an acceptable medical source because 20 C.F.R. §
404.1513(d)(1) “specifically states that
‘therapists' and others are acceptable medical
sources (and such sources have been fully elevated to the
status of treating sources under the new
regulations.).” JS at 26. When the ALJ wrote her
decision in 2014, the cited regulation provided that the only
sources who can provide “evidence to establish an
impairment” are “acceptable medical
sources.” 20 C.F.R. § 404.1513(a). The regulation
then listed all acceptable medical sources, which were
licensed physicians, psychologists, optometrists,
podiatrists, and speech-language pathologists. Id.
The regulation also explained that the agency may consider
evidence from “other sources” concerning the
severity of a claimant's impairments. 20 C.F.R. §
404.1513(d). Such “other sources” included other
“medical sources” such as nurse-practitioners,
chiropractors, audiologists, and therapists. 20 C.F.R. §
404.1513(d)(1). “Other” sources also included
“non-medical sources” such as clergy and family
members. 20 C.F.R. § 404.1513(d)(4). Thus, the 2014
version of section 404.1513 did not
identify therapists as “acceptable” medical
sources; they were identified as “other” medical
Social Security Administration has amended certain
regulations, effective March 27, 2017, including by
broadening the scope of acceptable medical sources to include
advanced practice registered nurses, audiologists, and
physician assistants. See 20 C.F.R. §
404.1502(a), (d), (e) (2017). The 2017 amendments do not make
therapists or social workers acceptable medication sources.
Id. Even if they did, Plaintiff has not advanced an
argument that they governed the ALJ's 2014 decision. The
presumption is against retroactive application. See Lowry v.
Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012)
(applying version of regulation in effect at time of
ALJ's decision despite subsequent amendment); Garrett
ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir.
2004) (“We apply the rules that were in effect at the
time the Commissioner's decision became final.”);
Duran v. Berryhill, No. 16-7416, 2017 WL 2588069, at
*3 n.3 (C.D. Cal. June 14, 2017) (citing same cases for same
these reasons, the ALJ did not err by declining to apply the
treating physician rule to Ms. Lletget.
ISSUE TWO: Did the ALJ give adequate reasons for
rejecting Plaintiff's testimony?
Rules for Assessing the Claimant's Testimony.
“[i]f the ALJ finds that the claimant's testimony
as to the severity of his pain and impairments is unreliable,
the ALJ must make a credibility determination with findings
sufficiently specific to permit the court to conclude that
the ALJ did not arbitrarily discredit claimant's
testimony.” Thomas, 278 F.3d at 958. An
ALJ's assessment of symptom severity and claimant
credibility is entitled to “great weight.”
Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.
1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir.
1986). The ALJ is not “required to believe every
allegation of disabling pain, or else disability benefits
would be available for the asking, a result plainly contrary
to 42 U.S.C. § 423(d)(5)(A).” Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation
evaluating a claimant's subjective symptom testimony, the
ALJ engages in a two-step analysis. Lingenfelter v.
Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
“First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying
impairment [that] could reasonably be expected to produce the
pain or other symptoms alleged.” Id. at 1036.
If so, the ALJ may not reject a claimant's testimony
“simply because there is no showing that the impairment
can reasonably produce the degree of symptom alleged.”
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.
if the claimant meets the first test, the ALJ may discredit
the claimant's subjective symptom testimony only if he
makes specific findings that support the conclusion.
Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir.
2010). Absent a finding or affirmative evidence of
malingering, the ALJ must provide “clear and
convincing” reasons for rejecting the claimant's
testimony. Lester, 81 F.3d at 834; Ghanim v.
Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014).
The ALJ must consider a claimant's work record,
observations of medical providers and third parties with
knowledge of claimant's limitations, aggravating factors,
functional restrictions caused by symptoms, effects of
medication, and the claimant's daily activities.
Smolen, 80 F.3d at 1283-84 & n.8.
“Although lack of medical evidence cannot form the sole
basis for discounting pain testimony, it is a factor that the
ALJ can consider in his credibility analysis.”
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
The ALJ's Reasons for Discounting Plaintiff's
gave multiple reasons for discrediting Plaintiff's claim
that his mental health symptoms render him unable to work. AR
32-34. Those reasons include (1) Plaintiff's hearing
testimony was inconsistent with his claim of disability, (2)
Plaintiff's hearing testimony was inconsistent with
statements given to his health care providers, (3) Plaintiff
has received limited mental health treatment, in response to
which he improved, (4) discrepancies between Plaintiff's
2012 and 2013 Adult Function reports suggest that Plaintiff
minimized his activities in the latter, and (5)
Plaintiff's poor work history and recurring travel to
Mexico suggest a lack of motivation to work. Id.
Reason One: Plaintiff's Hearing Testimony.
testified about his ability to perform his past relevant work
as a transportation information clerk at a call center, as
Q: How long did you do [the job of call taker]?
A: Five years.
Q: What was the reason that you left?
A: The company moved to another company. …
Q: When you were there did you have any problems doing that
A: At that time, no. AR 48-49.
Q: If somebody offered you the same job that you had …
before, which was being on the phone, would you be able to do
A: Yes, but I think it will come with - it will be more
Q: Why is that?
A: Because of mental situation. … I don't like to
be around people.
Q: Did you have any trouble communicating with the people
that needed rides?
A: No, not at that time. …
Q: So you said if they offered you your old job back, you
probably could do it, but you would have problems with other
A: I would have problems being around people.
Q: What if they offered you a job where there wouldn't be
other people around? You would just have tasks to do.
… [W]ould you be able to maintain such a job five days
A: Yes and no.
Q: What do you mean by no?
A: … I could do the job, but I don't know if
mental like if I could be … like enclosed or
something. I don't know.
Q: It doesn't necessarily have to be enclosed. You
wouldn't be dealing with other people …. So would
you be able to maintain such a job five days a week?
Q: And you wouldn't miss any time from work?
A: I would miss.
Q: How many days in a typical week you think you would miss?
Q: Why so much?
A: I don't know, because of my mental situation …