1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 ROSE M.1, Case No. CV 19-7681-AS

12 Plaintiff, MEMORANDUM OPINION 13 v.

14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

17

18 For the reasons discussed below, IT IS HEREBY ORDERED that, 19 pursuant to Sentence Four of

(g), the Commissioner’s 20 decision is affirmed. 21

22

23

24

25 1 Plaintiff’s name is partially redacted in accordance with 26 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of 27 the Judicial Conference of the United States. 28 1 Proceedings 2 On September 5, 2019, Plaintiff filed a Complaint seeking 3 review of the Commissioner’s denial of Plaintiff’s application for 4 a period of disability and disability insurance benefits (“DIB”) 5 under Title II of the Social Security Act. (Dkt. No. 1). On 6 7 February 25, 2020, Defendant filed an Answer and the Administrative 8 Record (“AR”). (Dkt. Nos. 15-16). The parties have consented to 9 proceed before a United States Magistrate Judge. (Dkt. Nos. 10, 10 12). On June 11, 2020, the parties filed a Joint Stipulation 11 (“Joint Stip.”) setting forth their respective positions regarding 12 Plaintiff’s claims. (Dkt. No. 19). 13 14 The Court has taken this matter under submission without oral 15 argument. See C.D. Cal. C. R. 7-15. 16 17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 18 19 On May 31, 2016, Plaintiff, previously employed as a bank 20 collection clerk (see AR 241), filed a DIB application alleging a 21 disability onset date of July 6, 2015. (AR 144-45). Plaintiff’s 22 application was denied initially on October 19, 2016 (AR 65, 81- 23 84), and upon reconsideration on December 8, 2016 (AR 78, 86-90). 24 25 On September 14, 2018, Administrative Law Judge (“ALJ”) Edward 26 T. Bauer heard testimony from Plaintiff, who was represented by 27 counsel, and vocational expert (“VE”) Elizabeth G. Ramos. (AR 35- 28 1 53). On November 21, 2018, the ALJ issued a decision denying 2 Plaintiff’s application. (See AR 15-30). 3 4 The ALJ applied the requisite five-step process to evaluate 5 Plaintiff’s case. At step one, the ALJ found that Plaintiff has 6 not been engaged in substantial gainful activity since July 6, 7 2015, the alleged onset date. (AR 18). At step two, the ALJ found 8 that Plaintiff has the following severe impairments: diabetes 9 mellitus, obesity, hypertriglyceridemia, migraine, major 10 depressive disorder, anxiety disorder, panic disorder, and 11 insomnia. (AR 18). At step three, the ALJ determined that 12 Plaintiff’s impairments do not meet or equal a listing found in 20 13 C.F.R Part 404, Subpart P, Appendix 1. (AR 18). Next, the ALJ 14 found that Plaintiff has the following Residual Functional Capacity 15 (“RFC”):2 16 17 [Plaintiff can] perform medium work as defined in 20 CFR 18 404.1567(c)[3] except that she can lift and carry 50 19 pounds occasionally and 25 pounds frequently; can stand 20 and/or walk for six hours; can sit without limitation; 21 can perform all climbing activities frequently; is 22 limited to simple, routine tasks; can have no public 23 contact; can have only occasional contact with 24 2 A Residual Functional Capacity is what a claimant can 25 still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 26 27 3 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 28 25 pounds.” 20 C.F.R. 404.1567(c). 1 supervisors and co-workers; and is limited to low stress 2 work, which is defined to mean work involving no strict 3 production deadlines or quotas. 4 5 (AR 21). 6 7 At step four, the ALJ found that Plaintiff is unable to perform 8 her past relevant work as a collection clerk. (AR 28). At step 9 five, based on Plaintiff’s RFC, age, education, work experience, 10 and the VE’s testimony, the ALJ determined that there are jobs that 11 exist in significant numbers in the national economy that Plaintiff 12 can perform, including machine feeder, factory helper, and laundry 13 worker I. (AR 29). Accordingly, the ALJ concluded that Plaintiff 14 is not disabled. (AR 30). 15 16 On July 25, 2019, the Appeals Council denied Plaintiff’s 17 request to review the ALJ’s decision. (AR 1-3). Plaintiff now 18 seeks judicial review of the ALJ’s decision, which stands as the 19 final decision of the Commissioner. See

(g). 20 21 STANDARD OF REVIEW 22 23 This Court reviews the Administration’s decision to determine 24 if it is free of legal error and supported by substantial evidence. 25 See Brewes v. Comm’r,

(9th Cir. 2012). 26 “Substantial evidence” is more than a mere scintilla, but less than 27 a preponderance. Garrison v. Colvin,

(9th Cir. 28 2014). To determine whether substantial evidence supports a 1 finding, “a court must consider the record as a whole, weighing 2 both evidence that supports and evidence that detracts from the 3 [Commissioner’s] conclusion.” Aukland v. Massanari,

, 4 1035 (9th Cir. 2001) (internal quotation omitted). As a result, 5 “[i]f the evidence can support either affirming or reversing the 6 ALJ’s conclusion, [a court] may not substitute [its] judgment for 7 that of the ALJ.” Robbins v. Soc. Sec. Admin.,

, 882 8 (9th Cir. 2006). 9 10 DISCUSSION 11 12 Plaintiff claims that the ALJ erred in considering the medical 13 opinions of two treating psychiatrists, Dr. Alicia Desai Kohm and 14 Dr. Novellyn Heard. (Joint Stip. at 2-13, 20-21). After 15 consideration of the record as a whole, the Court finds that the 16 Commissioner’s findings are supported by substantial evidence and 17 are free from material legal error.4 18 19 A. Legal Standard for ALJ’s Assessment of Medical Opinions 20 21 In an ALJ’s assessment of medical opinions, a treating 22 doctor’s opinion is generally afforded the greatest weight, though 23 it is not binding on an ALJ with respect to the existence of an 24 impairment or the ultimate determination of disability. Batson v. 25 4 The harmless error rule applies to the review of 26 administrative decisions regarding disability. See McLeod v. 27 Astrue,

(9th Cir. 2011); Burch v. Barnhart,

(9th Cir. 2005) (an ALJ’s decision will not be 28 reversed for errors that are harmless). 1 Comm’r of Soc. Sec. Admin.,

(9th Cir. 2004); 2 Magallanes v. Bowen,

(9th Cir. 1989). “Generally, 3 a treating physician’s opinion carries more weight than an 4 examining physician’s, and an examining physician’s opinion carries 5 more weight than a reviewing physician’s.” Holohan v. Massanari, 6

(9th Cir. 2001); see also Lester v. Chater, 81

, 830 (9th Cir. 1995). The weight given a treating 8 physician’s opinion depends on whether it is supported by 9 sufficient medical data and is consistent with other evidence in 10 the record.

(c)(2); see Trevizo v. Berryhill, 11

(9th Cir. 2017). When a treating physician’s opinion 12 is not controlling, it is weighted based on factors such as the 13 length of the treatment relationship and the frequency of 14 examination, the nature and extent of the treatment relationship, 15 supportability, consistency with the record as a whole, and 16 specialization of the physician.

(c)(2)-(6). 17 If a treating or examining doctor’s opinion is contradicted by 18 another doctor, the ALJ must provide “specific and legitimate 19 reasons” for rejecting the opinion. Orn v. Astrue,

, 20 632 (9th Cir. 2007); Lester, 81 F.3d at 830-31. 21 22 B. ALJ’s Assessment of Dr. Kohm’s Opinion 23 24 Psychiatrist Alicia Desai Kohm, M.D., treated Plaintiff on 25 two occasions – first on August 13, 2015 (AR 569-84), and then 26 about a month later, on September 17, 2015 (AR 624-35). On both 27 dates, Dr. Kohm assessed Plaintiff’s “mental functional 28 1 impairments” (AR 575, 628), and extended Plaintiff’s disability 2 leave (which began prior to Dr. Kohm’s treatment) (AR 576-77, 629). 3 4 On August 13, 2015, Dr. Kohm opined that Plaintiff had 5 moderate-to-severe limitations in the following areas: “[a]bility 6 to control emotions and maintain composure, free of crying spells, 7 anger outbursts”; and “[a]bility to deal with the usual stressors 8 encountered in the workplace, maintain regular attendance, and 9 complete a normal workday or work week.” (AR 575). Dr. Kohm 10 stated, moreover, that Plaintiff was moderately impaired in her 11 “[a]bility to perform detailed and complex tasks”; “[a]bility to 12 maintain concentration, attention, persistence, and pace”; and 13 “[e]nergy level.” (AR 575). Dr. Kohm found that Plaintiff had 14 mild-to-moderate limitations in the following areas: “[a]bility to 15 perform simple and repetitive tasks”; “[p]roblem solving & 16 [d]ecision-making i.e. ability to plan, organize and do things”; 17 “[a]bility to perform activities without special or additional 18 supervision”; and “[a]bility to drive or take public 19 transportation.” (AR 575). Finally, Dr. Kohm opined that 20 Plaintiff was only mildly impaired in her “[a]bility to relate and 21 interact with co-workers and the public,” and she had no impairment 22 in her “[h]ygiene and grooming”; “[a]bility to accept instructions 23 from supervisors”; “[a]bility to control threatening or dangerous 24 behaviors”; and “[a]wareness of hazards.” (AR 575). 25 26 On September 17, 2015, Dr. Kohm’s assessment was somewhat less 27 restrictive. (AR 628). Among other things, Dr. Kohm found 28 Plaintiff had only a moderate impairment (as opposed to moderate- 1 to-severe) in her “[a]bility to control emotions and maintain 2 composure, free of crying spells, anger outbursts”; and “[a]bility 3 to deal with the usual stressors encountered in the workplace, 4 maintain regular attendance, and complete a normal workday or work 5 week.” (AR 628). Dr. Kohm also found Plaintiff had a mild-to- 6 moderate limitation (as opposed to moderate) in her “[e]nergy 7 level” and “[a]bility to maintain concentration, attention, 8 persistence, and pace”; and no limitation (as opposed to mild) in 9 her “[a]bility to relate and interact with co-workers and the 10 public.” (AR 628). Despite the apparent improvements, Dr. Kohm 11 still extended Plaintiff’s disability leave. (AR 629). Dr. Kohm 12 additionally noted Plaintiff should continue her current dosage of 13 Paxil that she had been taking for just the past week, and advised 14 Plaintiff to follow up with a therapist (or group therapy) and 15 return for a follow-up psychiatry appointment in one to two months, 16 but with a different provider because Dr. Kohm was leaving the 17 office at the end of September. (AR 628-29). 18 19 The ALJ gave Dr. Kohm’s assessments “limited” or “partial 20 weight.” (AR 24). Among other things, the ALJ determined that 21 Dr. Kohm’s August 2015 assessment, which included some severe 22 limitations, was not “intended to last for 12 months,” given that 23 Dr. Kohm’s subsequent assessment, in September, showed improvement 24 and included only “moderate” limitations, at most. (AR 24; see AR 25 575 (August), 628 (September)). Overall, the ALJ determined that 26 Dr. Kohm’s assessments were not “fully consistent with the 27 longitudinal medical records and other evidence,” as discussed in 28 the decision (AR 24). The ALJ included the following mental 1 limitations in the RFC: “[Plaintiff] is limited to simple, routine 2 tasks; can have no public contact; can have only occasional contact 3 with supervisors and co-workers; and is limited to low stress work, 4 which is defined to mean work involving no strict production 5 deadlines or quotas.” (AR 21). 6 7 Plaintiff claims that the ALJ failed to provide specific and 8 legitimate reasons for giving less than significant weight to Dr. 9 Kohm’s opinion. (Joint Stip. at 6-13). Plaintiff contends, first, 10 that the ALJ mischaracterized the difference between Dr. Kohm’s 11 August and September assessments, particularly by failing to 12 consider that Dr. Kohm still found that Plaintiff was unable to 13 return to work in September 2015, despite some improvements from 14 the earlier assessment. (Id. at 6-7). Thus, Plaintiff asserts 15 that the ALJ had no basis for assuming that Dr. Kohm’s August 2015 16 opinion was not intended to last for twelve months. (Joint Stip. 17 at 7). Instead, Plaintiff argues, the ALJ had a duty to develop 18 the record on this issue. (Id.). 19 20 However, Plaintiff has failed to show that the ALJ misstated 21 or overlooked anything in Dr. Kohm’s assessments. To the contrary, 22 the ALJ accurately described the two assessments and drew 23 reasonable inferences from them. Specifically, in light of the 24 reduced limitations in the September assessment, it was reasonable 25 to infer that the more severe limitations opined in the August 26 assessment were intended only to describe Plaintiff’s functioning 27 during that particular assessment and not over a long-term period 28 (i.e., more than twelve months). Plaintiff may interpret the 1 opinion differently, but “[w]here evidence is susceptible to more 2 than one rational interpretation, it is the ALJ’s conclusion that 3 must be upheld.” Burch v. Barnhart,

(9th Cir. 4 2005). Moreover, notwithstanding Plaintiff’s contention, the fact 5 that Dr. Kohm still extended Plaintiff’s disability leave in 6 September 2015 does not render Dr. Kohm’s assessments “ambiguous” 7 or insufficiently clear so as to trigger the ALJ’s duty to develop 8 the record. See Tonapetyan v. Halter,

(9th 9 Cir. 2001) (ALJ’s duty to develop the record is triggered only when 10 there is “ambiguous evidence” or when “the record is inadequate to 11 allow for proper evaluation of the evidence”); see also McLeod v. 12 Astrue,

(9th Cir. 2011) (ALJ had no duty to 13 request more information from two physicians where their records 14 from the relevant period were before the ALJ, and there “was nothing 15 unclear or ambiguous about what they said”). 16 17 Plaintiff contends that the ALJ erred “by stating that the 18 limitations suggested by Dr. Kohm in September of 2015 are not 19 ‘inconsistent’ with plaintiff’s RFC.” (Joint Stip. at 9) (citing 20 AR 24). In particular, Plaintiff asserts that the ALJ failed to 21 include in the RFC any limitations related to being off-task or 22 missing workdays, despite Dr. Kohm’s opinion that Plaintiff was 23 moderately limited in her ability to maintain regular attendance, 24 complete a normal workweek, and control her emotions and maintain 25 composure. (Joint Stip. at 9) (citing AR 21, 628). Plaintiff also 26 claims that the RFC’s restriction to “simple routine tasks” is less 27 limited than Dr. Kohm’s assessment of a moderate impairment in 28 1 performing “simple and repetitive tasks.” (Joint Stip. at 9) 2 (citing AR 21, 628). 3 4 However, even to the extent that the RFC may diverge from the 5 limitations in Dr. Kohm’s September 2015 assessment, Plaintiff has 6 failed to demonstrate any error because the ALJ did not purport to 7 adopt Dr. Kohm’s assessments in any respect. Instead, the ALJ 8 merely remarked that the moderate limitations in Dr. Kohm’s 9 September 2015 assessment were not “clearly inconsistent” with the 10 RFC. (AR 24). At the same time, the ALJ expressly stated: “I do 11 not find [Dr. Kohm’s assessments] to be fully consistent with the 12 longitudinal medical records and other evidence . . . .” The ALJ 13 thus gave Dr. Kohm’s assessments only “limited weight to the extent 14 that they are in line with” the RFC finding. (AR 24). The ALJ 15 provided specific and legitimate reasons for this determination. 16 17 Plaintiff disputes the ALJ’s finding that Plaintiff’s mental 18 “impairments are generally managed with conservative treatment 19 measures.” (Joint Stip. at 10-11; AR 26). Plaintiff asserts that 20 her psychiatrists have prescribed her “a variety of psychotropic 21 medications, and changed the dosages frequently, since the alleged 22 onset date.” (Joint Stip. at 10). Plaintiff points out, for 23 example, that one psychiatrist, Dr. Sultana Ikramullah, had 24 prescribed Trazodone and Paxil as of August 27, 2017 (AR 3797), 25 and then increased the Paxil dosage at the next visit, on October 26 5, 2017, when Plaintiff complained of increasing depression (AR 27 3799). About a month later, on November 2, 2017, Dr. Ikramullah 28 increased the Paxil and Trazodone dosages. (AR 3800). Later, on 1 January 25, 2018, Dr. Ikramullah switched Plaintiff from Paxil to 2 Prozac after Plaintiff complained of feeling “spaced out” and 3 unable to concentrate. (AR 3801). Plaintiff points out that she 4 has also “required treatment with various psychologists, as well 5 as group therapy.” (Joint Stip. at 11) (citing AR 674-678, 702- 6 706, 848, 886, 3845-3856). 7 8 Regardless of these facts, substantial evidence in the record 9 supports the ALJ’s finding that Plaintiff’s mental conditions were 10 generally well managed with conservative treatments, such as 11 therapy and antidepressant medications such as Trazodone and Paxil. 12 The ALJ referenced treatment records noting that Plaintiff 13 “[t]hinks the paxil has helped reduce her anxiety” (AR 625 14 (September 2015)), that she “[r]eports better sleep since 15 [Plaintiff] increased trazadone to 100 mg qhs for the past week” 16 (AR 637 (October 2015)), and that she reportedly “attended 17 depression group in the past which was helpful” (AR 989 (September 18 2016)), and noted that there was no indication that Plaintiff’s 19 mental impairments have required more aggressive interventions, 20 such as inpatient hospitalizations. 21 22 The ALJ noted that even “to the extent that any of 23 [Plaintiff’s] impairments have ever been described as less than 24 well managed with conservative measures, this state of affairs may 25 be due at least in part to [Plaintiff’s] frequent failures and/or 26 refusals to comply fully with treatment advice.” (AR 27). The 27 ALJ pointed to numerous examples from the treatment records 28 indicating that Plaintiff was apparently skipping some prescribed 1 medications, taking less than recommended dosage amounts, and 2 missing scheduled appointments. (AR 27) (citing, e.g., AR 278, 3 284, 327, 760, 802, 868, 970, 989, 3802, 3850, 3853). This finding, 4 which Plaintiff does not dispute, further supports the ALJ’s 5 decision to give only limited weight to Dr. Kohm’s opinion. 6 7 Plaintiff also disputes the ALJ’s finding that Dr. Kohm’s 8 opinion is not “well-supported by the objective data and other 9 evidence – including [Plaintiff’s] modest clinical findings . . . 10 as well as her treatment notes[.]” (Joint Stip. at 11-12; AR 23). 11 Plaintiff contends that the objective findings overall support Dr. 12 Kohm’s opinion. (Joint Stip. at 12). As examples, Plaintiff 13 points to three mental status exams between 2016 and 2018. (Joint 14 Stip. at 12). In the first, on August 17, 2016, Plaintiff’s 15 therapist, Wendy Elizabeth Marinoff, noted a depressed mood, 16 psychomotor retardation, fatigue, and low motivation. (AR 918- 17 19). In the second, on April 26, 2017, Dr. Ikramullah noted 18 agitated psychomotor activity, slow and emotional speech, depressed 19 mood, slow thought processes, impaired concentration, phobias of 20 heights, and compulsions. (AR 3793-2794). Finally, in the third, 21 on May 30, 2018, Plaintiff’s therapist, Jennifer Fog, Ph.D., noted 22 suicidal ideation with a plan, tired mood, decreased concentration, 23 and short-term memory loss. (AR 3854). Plaintiff contends that 24 the ALJ’s account of the objective evidence of mental impairments 25 is “far off the mark,” and particularly “seems to rely upon evidence 26 showing plaintiff’s improvement in the short-term, without 27 considering the longitudinal treatment record.” (Joint Stip. at 28 12). 1 The Court disagrees. The ALJ gave a fairly detailed account 2 of the objective medical evidence, and did not overlook the fact 3 that Plaintiff’s treating sources noted Plaintiff’s anxious or 4 depressed moods and dysphoric affect. (AR 23). The ALJ reasonably 5 found, however, that aside from these moderate mental status 6 impressions, the record was “largely lacking in data of clinical 7 significance,” as there are “no significantly abnormal cognitive 8 function tests, repeatedly dire mental status examination findings 9 (‘MSE’), or other such data to establish major memory loss, 10 attention and concentration deficits, mood disturbances, social 11 difficulties, or other issues.” (AR 23) (citing, e.g., AR 266, 12 279, 284, 290, 294-95, 306, 326-27, 330, 345, 356, 869, 899, 969, 13 990-91, 3792-3856). Substantial evidence in the record thus 14 supports the ALJ’s determination that the objective evidence and 15 data as a whole fail to demonstrate mental limitations beyond those 16 included in the RFC. 17 18 Plaintiff additionally contends that the ALJ erred to the 19 extent he discounted Dr. Kohm’s opinion based on Plaintiff’s 20 purported ability to engage in exercise and daily activities. 21 (Joint Stip. at 9-10). Plaintiff asserts that her ability to 22 exercise “for some part of the day does not prove that she is able 23 to work eight hours per day, five days per week.” (Joint Stip. at 24 10). Plaintiff contends that the ALJ did not “cite any evidence 25 showing plaintiff exercised after 2016, and there is substantial 26 evidence showing she lays down for a significant part of the day.” 27 (Joint Stip. at 10) (citing AR 637, 842, 898, 3379, 3799, 3845, 28 3849, 3852). 1 However, the ALJ does not appear to have considered 2 Plaintiff’s ability to exercise or engage in daily activities as a 3 basis for discounting Dr. Khom’s opinion or otherwise determining 4 Plaintiff’s mental limitations. Instead, the ALJ merely mentioned 5 Plaintiff’s ability to engage in exercise and daily activities in 6 the course of generally noting that he considered all the opinion 7 evidence in the record in reaching his overall conclusions. 8 Specifically, the ALJ stated that in addition to considering the 9 “formal opinions of treating providers,” such as Dr. Kohm’s two 10 assessments in August and September 2015, he also considered “the 11 less formal opinion evidence - such as the remarks from treating 12 sources (including Dr. Kohn and others) that suggest [Plaintiff] 13 has been advised that she should (and thus, presumably can) engage 14 in at least some forms of exercise.” (AR 23) (citing, e.g., AR 15 577, 629, 809, 853, 858, 3857). Regardless, Plaintiff does not 16 dispute that her treatment records do contain indications that she 17 engages in exercise and was encouraged to do so, which the ALJ 18 correctly noted. 19 20 Accordingly, Plaintiff has failed to demonstrate any error in 21 the ALJ’s consideration of Dr. Kohm’s medical opinion, which is 22 grounded in specific and legitimate reasons, supported by 23 substantial evidence in the record. 24 25 C. ALJ’s Assessment of Dr. Heard’s Opinion 26 27 Plaintiff contends the ALJ erred by failing to address an 28 opinion of Dr. Novellyn Heard, M.D., a psychiatrist who treated 1 Plaintiff from October 2015 through September 2016. (Joint Stip. 2 at 20-21; AR 637, 990-92). Specifically, Plaintiff argues that 3 the ALJ should have addressed Dr. Heard’s notation, in several 4 treatment notes, that Plaintiff was “[u]nable to keep a regular 5 schedule.” (Joint Stip. at 20-21; AR 711, 842, 989). Plaintiff 6 asserts that Dr. Heard’s notation qualifies as a “medical opinion” 7 under

, which defines “medical opinions” as 8 “statements from acceptable medical sources that reflect judgments 9 about the nature and severity of your impairment(s), including your 10 symptoms, diagnosis and prognosis, what you can still do despite 11 impairment(s), and your physical or mental restrictions.” (Joint 12 Stip. at 21) (quoting

(a)(1)). 13 14 However, as Defendant points out, Dr. Heard’s notation – that 15 Plaintiff was “[u]nable to keep a regular schedule” – seems to 16 refer to Plaintiff’s subjective allegations, not Dr. Heard’s 17 opinion of Plaintiff’s limitations or abilities. (See Joint Stip. 18 at 22). This is evident because the notation appears in the 19 treatment notes as part of Plaintiff’s account of her condition 20 and activities at the time of the respective treatment sessions. 21 Indeed, the first time the notation appears, on December 16, 2015, 22 it is in a section labeled “Subjective,” which reads as follows: 23 24 [Plaintiff’s] grandmother died on 12/13/’15. 25 [Plaintiff’s] brother is dying of AIDS. [Plaintiff] is 26 only taking half the prescribed dose of Paxil. 27 [Plaintiff’s] husband is against her taking meds. 28 [Plaintiff] feels depressed. Denies [suicidal ideation, 1 homicidal ideation]. Sleeps well when takes trazodone. 2 Sleeps poorly when doesn’t take trazodone. Appetite- 3 baseline. Conc, energy, interests-below baseline. Denies 4 recent panic attacks. Often feels worried and irritable. 5 6 Better, but still impaired [functioning]. Spends less 7 time in bed. Better, but below baseline bathing and 8 grooming. 9 10 Poor stress tolerance. [Plaintiff] still struggles with 11 chores. Unable to keep a regular schedule. difficulty 12 controling [sic] her emotions. [Plaintiff’s] mother 13 still assists her. 14 15 Last worked in 7/’15. [Plaintiff] is employed in a call 16 center for Bank of America. 17 18 Denies side effects. No [complaints of] headaches. 19 20 (AR 711) (emphasis added). In later treatment notes, the section 21 is labeled “Current,” rather than “Subjective,” but it remains 22 clear from the context that this is still intended to represent 23 Plaintiff’s subjective account, not Dr. Heard’s own impression of 24 Plaintiff’s abilities. For example, a treatment note from May 25, 25 2016 reads: 26 27 [Complains of] increased stress. Feels depressed and 28 anxious. Denies panic attacks, [suicidal ideation, 1 homicidal ideation]. Often feels worried and irritable. 2 Appetite, conc, energy, interests-below baseline. Sleep- 3 better. Impaired [functioning]-spends a lot of time in 4 bed. Below baseline bathing and grooming. Poor stress 5 tolerance. [Plaintiff] is still not mopping and ironing. 6 7 Unable to keep a regular schedule. Difficulty controling 8 [sic] her emotions. [Plaintiff’s] family still assist 9 her. [Plaintiff] didn’t resume attending depression 10 group. Better med compliance. 11 12 Currently on DMI until 6/30/’16. [Plaintiff] is employed 13 in a call center for Bank of America. Last worked in 14 7/’15. [Plaintiff] is considering applying for SSI. Side 15 effects?-forgetfulness. Denies daytime sedation. Has 16 long [history of] migraines prior to taking meds. 17 Migraine medication helps. 18 19 (AR 842) (emphasis added). 20 21 Because Dr. Heard’s notations about Plaintiff’s inability to 22 “keep a regular schedule” refer to Plaintiff’s subjective 23 statements, they do not constitute a medical opinion under 20

(a)(1). Accordingly, the ALJ did not err in 25 failing to consider these statements as Dr. Heard’s treating 26 medical opinion. 27 28 1 CONCLUSION 2 3 For the foregoing reasons, the decision of the Commissioner 4 is AFFIRMED. 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6

7

8 Dated: September 10, 2020 9

10 ______________/s/_____________ ALKA SAGAR 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28