1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WALTER A. Z., ) NO. 2: 20-CV-08351-E ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION ) 14 ANDREW M. SAUL, Commissioner ) of Social Security, ) 15 ) Defendant. ) 16 _______________________________) 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on September 11, 2020, seeking review 21 of the Commissioner’s denial of benefits. On October 21, 2020, the 22 parties consented to proceed before a United States Magistrate Judge. 23 Plaintiff filed a motion for summary judgment on May 10, 2021. 24 Defendant filed a motion for summary judgment on June 9, 2021. The 25 Court has taken the motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed September 16, 2020. 27 /// 28 /// 1 BACKGROUND 2 3 Plaintiff filed an application for Supplemental Security Income 4 on April 6, 2017, asserting disability since December 17, 2010, based 5 on alleged back pain, knee pain and depression (Administrative Record 6 (“A.R.”) 209-16, 246; see also A.R. 278 (alleging a back injury, 7 depression, mental problems and memory problems)).1 An Administrative 8 Law Judge (“ALJ”) reviewed the record and heard testimony from 9 Plaintiff and from a vocational expert (A.R. 15-26, 32-61). 10 11 The ALJ determined that Plaintiff has severe thoracic spine 12 degenerative disc disease, bilateral knee pain with chondromalacia, 13 depression and a neurocognitive disorder (A.R. 18). The ALJ found 14 that Plaintiff retains a residual functional capacity for medium work, 15 limited to simple, routine tasks and further limited by certain 16 postural restrictions. See A.R. 20-23 (discussing, inter alia, the 17 “persuasive” opinions of consultative psychological examiner Dr. 18 Bahareh Talei and state agency physicians). The ALJ found Dr. Talei’s 19 opinions “overall more persuasive” as based on Dr. Talei’s first-hand 20 examination of Plaintiff (A.R. 23). The ALJ determined that a person 21 with this capacity could perform Plaintiff’s past relevant work and 22 also could perform other medium and light jobs existing in significant 23 numbers in the national economy. See A.R. 23-25 (adopting vocational 24 expert testimony at A.R. 51-55). The Appeals Council denied review 25 (A.R. 1-3). 26 27 1 Plaintiff had filed prior applications for disability benefits, but these applications were denied on February 23, 28 1 STANDARD OF REVIEW 2 3 Under

(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 5| findings are supported by substantial evidence; and (2) the 6| Administration used correct legal standards. See Carmickle v. Commissioner,

(9th Cir. 2008); Hoopai v. Astrue,

(9th Cir. 2007); see also Brewes v. Commissioner, 9]

(9th Cir. 2012). Substantial evidence is “such 10] relevant evidence as a reasonable mind might accept as adequate to 11] support a conclusion.” Richardson v. Perales,

, 401 12] (1971) (citation and quotations omitted); see also Widmark v. 13] Barnhart,

(9th Cir. 2006). 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. But the 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. 22 23|| Tackett v. Apfel,

(9th Cir. 1999) (citations and quotations omitted). 25] /// 26] /// /// 28] ///

1 DISCUSSION 2 3 Plaintiff argues that substantial evidence does not support the 4 ALJ’s residual functional capacity determination because some of the 5 medical opinions the ALJ deemed “persuasive” assertedly involved 6 greater limitations than the ALJ ultimately found to exist. 7 See Plaintiff’s Motion, pp. 5-8. For the reasons explained below, the 8 Court finds that substantial evidence supports the ALJ’s decision and 9 that the ALJ did not materially err in evaluating the medical opinion 10 evidence. 11 12 I. Summary of the Relevant Medical Evidence2 13 14 In April of 2016, Plaintiff began treatment with the Los Angeles 15 County Department of Mental Health (“County”) for “major depressive 16 disorder (recurrent, moderate)” (A.R. 447). Plaintiff then said he 17 was patient and good at helping people, and he enjoyed cooking, 18 cleaning and reading, but he also said “he has not been able to enjoy 19 his hobbies while depression is more intense” (A.R. 448). Plaintiff 20 reported a history of depression since age 12, and said he had 21 difficulty asking for help because he felt he should be able to take 22 care of things himself (A.R. 450). Plaintiff had become increasingly 23 overwhelmed since losing his job in 2011 following a back injury, and 24 Plaintiff reported symptoms of depression including insomnia, memory 25 26 2 Because the issues raised herein by Plaintiff concern 27 only Plaintiff’s mental abilities/limitations, the Court has not summarized the medical evidence relating to Plaintiff’s physical 28 1 loss, anxiety, increased appetite, isolation, headaches, tachycardia, 2 irritability, sadness, lack of energy, anhedonia and helplessness 3 (A.R. 448, 450, 452, 454). He claimed that these symptoms were 4 affecting his ability to maintain stable housing and employment and to 5 engage in social interactions (id.). Plaintiff reported that he was 6 unable to work certain jobs due to his back injury and was working 7 part time jobs to earn income (A.R. 453). Mental status examination 8 showed a dysphoric mood, and Plaintiff reportedly was amotivational, 9 isolated and withdrawn (A.R. 455-56). Plaintiff, who was in the 10 process of being evicted, was given a list of shelters (A.R. 460). 11 12 A follow up in June of 2016 reported that Plaintiff did not want 13 to be depressed anymore and wanted a normal life (A.R. 483). He was 14 referred for weekly psychotherapy (A.R. 483-84). Meanwhile, treatment 15 notes from St. Vincent Medical Center in October of 2016 and February, 16 March and April of 2017, reported that Plaintiff was not treating his 17 depression (A.R. 541, 547, 555, 572, 581, 588, 595). Psychiatric 18 examination was normal during all of these visits (A.R. 542, 549, 556, 19 574, 583, 589, 597). 20 21 There are records, dated June, 2016 through June, 2017, 22 reflecting semi-regular weekly therapy sessions with a County social 23 work intern (A.R. 621-98, 731-35). Most of this therapy appears to 24 have centered around discussions concerning Plaintiff’s unstable 25 housing (id.). Plaintiff had been prescribed Prozac in June of 2014 26 and had decided not to take it, but Plaintiff reported that he felt 27 better with the regular therapy sessions (A.R. 679). In August of 28 2016, Plaintiff reported that his unemployment was negatively 1 impacting his mental health and that he was interested in finding a 2 job (A.R. 671-72). By September of 2016, Plaintiff reportedly had 3 lost his apartment, had lived in a shelter until he felt unsafe to do 4 so, and then was given a voucher to live in a hotel A.R. 663, 665, 5 667, 669, 672, 674, 676, 677, 681, 683, 685, 688, 691, 693, 694, 695). 6 Plaintiff subsequently reported some “isolation,” and he said that he 7 had moved in with his brother, which had caused some conflict (A.R. 8 654, 656, 658). By November of 2016, Plaintiff was homeless (“couch 9 surfing”) again and had requested assistance with housing (A.R. 649- 10 50). He was back in a shelter in January of 2017 and was complaining 11 about his living conditions (A.R. 630, 642, 644, 646). In March of 12 2017, Plaintiff reported having had an altercation with someone at the 13 shelter, and said he was depressed after finding out that he had been 14 denied Social Security disability benefits (A.R. 628, 632). Plaintiff 15 reportedly “did not appear to be gravely disabled at the time” and was 16 referred for follow up with his regular therapist (A.R. 624). 17 Plaintiff returned in June of 2017, seeking therapy and housing 18 assistance (A.R. 732-33). 19 20 Plaintiff’s next mental health treatment record reflects a follow 21 up with the County in April of 2018, when Plaintiff again reported 22 being adversely affected by his living situation, which then involved 23 shared housing (A.R. 804-09). Plaintiff complained of daily 24 depression and intermittent anxiety, which reportedly affected his 25 ability to get along with others, maintain stability and obtain 26 employment (A.R. 805). Plaintiff again indicated he had been 27 depressed since he was 12 years old (A.R. 805). Plaintiff reported a 28 15-year history of working in retail (A.R. 806). On examination, 1 Plaintiff manifested restless motor activity and appeared anxious and 2 worried (A.R. 809). 3 4 II. Summary of the Medical Opinion Evidence 5 6 Consultative examiner Dr. Bahareh Talei provided a Complete 7 Psychological Evaluation dated June 15, 2017 (A.R. 724-28). Dr. Talei 8 reportedly reviewed some medical records from June of 2016 and January 9 of 2017, which indicated Plaintiff had been diagnosed with “major 10 depressive disorder in the moderate range,” with symptoms that were 11 consistent with Plaintiff’s current report and presentation (A.R. 12 724). Plaintiff came to the examination alone by bus and arrived 13 promptly (A.R. 724). Plaintiff was meticulously dressed and groomed, 14 and was not malodorous, but he did arrive with a backpack and luggage 15 (A.R. 724). 16 17 Plaintiff reported a history of psychiatric/psychologic treatment 18 but no current mental health treatment (A.R. 725). Plaintiff reported 19 feelings of depression and anxiety related to an injury at work (A.R. 20 725). Plaintiff had lived with his mother until two years earlier, at 21 which time his mother had passed away (A.R. 725). Plaintiff had been 22 able to maintain his own residence until a year earlier, at which time 23 he became homeless (A.R. 725). Plaintiff then was staying in a 24 shelter (A.R. 725). 25 26 Plaintiff was born in Nicaragua and immigrated to the United 27 States in 1986 (A.R. 725). Plaintiff said he had completed high 28 school and some college (A.R. 725). Plaintiff had vocational training 1 as a medical assistant (A.R. 725). Plaintiff reported that he spent 2 his days watching television and listening to music, taking public 3 transportation or walks, managing his own funds from General Relief, 4 and independently performing the activities of daily living (A.R. 5 726). 6 7 On mental status examination, Plaintiff reportedly was anxious, 8 his affect was constricted, his effort was adequate, his response time 9 and work pace were slow, his psychomotor slowing was evident, his 10 immediate and intermediate memory were mildly diminished, his 11 attention and concentration span were moderately diminished, and his 12 current intellectual functioning was borderline with a full scale IQ 13 of 70, but his fund of knowledge, his insight and his judgment were 14 average (A.R. 726-28). Dr. Talei diagnosed probable major depressive 15 disorder (moderate, recurrent), and borderline intellectual 16 functioning, and assigned a current Global Assessment of Functioning 17 Score (“GAF”) of 58. See American Psychiatric Association, 18 Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”) 34 19 (4th Ed. 2000 (Text Revision)).3 Dr. Talei opined that Plaintiff 20 would be able to understand, remember, and carry out short, simplistic 21 instructions without difficulty, would have moderate inability to 22 understand, remember and carry out detailed instructions, and would be 23 able to make simplistic work-related decisions without special 24 3 Clinicians use the GAF scale to rate “psychological, 25 social, and occupational functioning on a hypothetical continuum 26 of mental health-illness.” DSM-IV-TR, p. 34. A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and 27 circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., 28 1 supervision (A.R. 728). Dr. Talei indicated that Plaintiff was 2 somewhat socially inappropriate during the examination, so Dr. Talei 3 opined that Plaintiff would have mild inability to interact 4 appropriately with supervisors, coworkers and peers on a consistent 5 basis (A.R. 728). 6 7 In July of 2017, state agency physician Dr. D. Funkenstein 8 reviewed the record and indicated that Plaintiff would have “moderate” 9 limitations in certain areas of functioning (i.e., the ability to: 10 (1) understand, remember and carry out detailed instructions; 11 (2) maintain attention and concentration for extended periods; 12 (3) perform activities within a schedule, maintain regular attendance 13 and be punctual within customary tolerances; (4) sustain an ordinary 14 routine without special supervision; (5) complete a normal workday and 15 workweek without interruption from psychologically based symptoms; and 16 (6) perform at a consistent pace without an unreasonable number and 17 length of rest periods (A.R. 112-13). When asked to explain certain 18 of these limitations, Dr. Funkenstein stated “CE,” a reference to Dr. 19 Talei (id.). 20 21 On reconsideration in November of 2017, state agency physician 22 Dr. Jay S. Flocks affirmed the prior opinion (A.R. 118-35). Dr. 23 Flocks stated that Dr. Talei’s opinion was consistent with the 24 objective findings of Dr. Talei’s examination and with other mental 25 health evidence in the file (A.R. 128). Dr. Flocks mentioned the same 26 “moderate” limitations that Dr. Funkenstein had mentioned, with the 27 same references to “CE” where asked for explanation (A.R. 131-32). 28 Further detail was provided by the “DEA” (disability evaluation 1 analyst) as follows: 2 3 A. [Claimant] can understand, remember, and carry out a 4 two-step command involving simple instructions. 5 B. [Claimant] able to sustain “cpp” [concentration, 6 persistence and pace] for an 8 hr/workday in a 40 7 hr/workweek. 8 C. [Claimant] is able to interact appropriately or 9 maintain socially appropriate behavior [with] peers, 10 public and supervisors. 11 D. [Claimant] can adapt to changes or stress in work 12 environment. 13 14 (A.R. 131-32). Dr. Flocks stated that he had read and reviewed the 15 initial decision and he affirmed the decision as written (A.R. 132). 16 Elsewhere in the reconsideration decision, Plaintiff is said to have a 17 “MRFC” (mental residual functional capacity) for “simple, unskilled” 18 work and the ability to perform “work . . . that is less demanding” 19 than his past relevant work (A.R. 134-35). According to the 20 reconsideration decision, Plaintiff’s “condition [is] not severe 21 enough to keep [him] from working” (A.R. 135).4 22 23 4 Plaintiff himself gave testimony at the hearing arguably consistent with this conclusion. When asked what mental 24 issues he might have in performing a simple job where he had to keep up and be there every day, Plaintiff replied, “For me, I 25 would have to sleep in a normal, comfortable environment, 26 peacefully, and have no roommate make loud noises, disturb my sleep. I’m a light sleeper, so once my sleeping is disturbed, 27 it’s hard for me to go back to sleep” (A.R. 50-51). Plaintiff did not identify any issue he might have with keeping up, or with 28 1| IIIT. Substantial Evidence Supports the ALJ’s Residual Functional 2 Capacity Determination.° 3 4 For claims filed after March 27, 2017 (such as Plaintiff’s present claim), new regulations govern the evaluation of medical 6] opinion evidence. Under these regulations, ALJs no longer “weigh” 7) medical opinions; rather, ALJs determine which opinion(s) are the most persuasive by focusing on several factors: (1) supportability; (2) consistency; (3) relationship with the claimant (including the 10] length of treatment, frequency of examinations, purpose of treatment, 11] extent of treatment, whether the medical source examined the 12] claimant); (4) the medical source’s specialty; and (5) “other” 13] factors. See

.1520c(c) (1)-(5), 416.920c(c) (1)-(5). 14] The two most important factors in determining the persuasiveness of 15] medical opinions are supportability and consistency with the evidence. 16] See

.1520c(a), 416.920c(a). ALJs must explain how 17] they considered the factors of supportability and consistency, but 18] need not explain how they considered any other factor. See 20 C.F.R. 19] §§ 404.1520c(b), 416.920c(b). The new regulations also eliminated the 20] term “treating source,” as well as the rule previously known as the 21 22 *(...continued) attendance, providing only he could sleep in a normal environment 23] (ALR. 50-51). 24 ° The Court has considered and rejected all of 25 Plaintiff’s arguments. The Court discusses Plaintiff’s principal arguments herein. Neither Plaintiff’s arguments nor the 26|| circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the 27] See generally McLeod v. Astrue,

(9th Cir. 2011) (discussing the standards applicable to evaluating 28 prejudice). 17

treating source rule or treating physician rule, which formerly 2|| required special deference to the opinions of treating sources. See 3]

.1520c, 416.920c; Natalie v. Saul,

, 4) at *3 n.4 (C.D. Cal. Nov. 6, 2020); Martha R.L. v. Saul,

] 1140433, at *3 n.6 (C.D. Cal. March 9, 2020); Alonzo v. Commissioner,

, at *3 (D. Ariz. March 2, 2020); see also

] 62560, at 62573-74 (Sept. 9, 2016). 8 9 The ALJ followed these new regulations in making the relevant findings based on the available record. As noted above, the ALJ 11] reportedly found “persuasive” the opinion evidence from Dr. Talei and 12] the opinion evidence from the state agency physicians. However, the 13] ALJ found “more persuasive” Dr. Talei’s opinion that Plaintiff would 14] be able to understand, remember, and carry out short, simplistic 15] instructions without difficulty and would be able to make simplistic work-related decisions without special supervision. See A.R. 22-23. The ALJ reasonably explained the preference for Dr. Talei’s opinion, 18] saying that the opinion had been based on a first-hand examination of 19) Plaintiff (id.). 20 21 Substantial evidence supports the ALJ’s reasoning. In any event, 22| the state agency physicians arguably agreed with the capacity Dr. 23|| Talei found to exist. See A.R. 108 (stating, “I agree with the YMSS 24|| [psychological medical source statement] given for SRT’s”); A.R. 128 25] (stating that Dr. Talei’s opinion was consistent with the objective findings of Dr. Talei’s examination and with other mental health 27| evidence in the file). Additionally, the “moderate” limitations in some areas of functioning that the state agency physicians deemed to 19

1 exist arguably were consistent with Dr. Talei’s GAF assessment of 58 2 suggesting “moderate” limitations. Furthermore, the state agency 3 physicians themselves expressly based their “moderate” limitations in 4 some areas of functioning on Dr. Talei. See A.R. 112-13, 131-32 5 (stating “CE,” i.e., consultative examiner Dr. Talei, when asked to 6 explain their opinions regarding certain limitations). 7 8 The Court will uphold the ALJ’s findings in this case as 9 supported by substantial evidence and free from any material legal 10 error. See, e.g., Webster v. Commissioner,

, at *5 11 (N.D. Miss. Feb. 14, 2020) (under new regulations, when medical 12 opinions are at issue, reviewing court affirms ALJ’s decision if ALJ 13 properly addressed supportability and consistency). 14 15 Plaintiff asserts that the limitation to simple, routine tasks is 16 not sufficiently restrictive to account for Plaintiff’s allegedly 17 moderate limitations in performing activities within a schedule, 18 maintaining regular attendance, being punctual, sustaining an ordinary 19 routine without special supervision, performing at a consistent pace 20 and completing a normal work day or work week without interruptions 21 from psychologically based symptoms (see Plaintiff’s Motion at 7). 22 However, it appears from the reconsideration decision that the state 23 agency physicians (and the ALJ) adequately addressed these limitations 24 by finding Plaintiff capable of simple, unskilled work and by 25 accepting the premise that Plaintiff could sustain concentration, 26 persistence and pace for a normal work day and work week, could 27 interact appropriately with others, could adapt to changes or stress 28 at work, and (in short) could work notwithstanding Plaintiff’s mental 1] problems (A.R. 131-32, 134-35). 2 3 The medical opinions in this case constitute substantial evidence 4|| to support the ALJ’s determination of non-disability. See Orn v. 5] Astrue,

(9th Cir. 2007) (opinion of examining physician based on independent clinical findings can provide substantial evidence to support administrative conclusion of 8] non-disability). 9 10 To the extent any of the evidence was in conflict, it was the prerogative of the ALJ to resolve such conflicts. See Lewis v. 12) Apfel,

(9th Cir. 2001); see also Treichler v. 13] Commissioner,

(9th Cir. 2014) (court “leaves it to 14] the ALJ” “to resolve conflicts and ambiguities in the record”). When 15] evidence “is susceptible to more than one rational interpretation,” 16] the Court must uphold the administrative decision. See Andrews v. 17] Shalala,

(9th Cir. 1995); accord Thomas v. 18] Barnhart,

(9th Cir. 2002); Sandgathe v. Chater, 108 19] F.3d 978, 980 (9th Cir. 1997). The Court will uphold the ALJ’s rational interpretation of the evidence in the present case 21] notwithstanding any conflicts in the evidence. 22] /// 23] /// 24] /// 25] /// 26] /// /// 28] /// T/A

1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: June 14, 2021. 10 11 /S/ CHARLES F. EICK 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28