Brandon v. O'Malley

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MICHELLE B.,1
Plaintiff,
v.
MARTIN J. O’MALLEY,2
Commissioner of the Social Security Administration,
Defendant.
Case No. 3:23-cv-00111-JMK
DECISION AND ORDER
On or about August 9, 2011, Michelle B. (“Plaintiff”) protectively filed applications
under Titles II and XVI of the Social Security Act,3 alleging a disability onset date of
January 15, 2011.4 	Plaintiff has exhausted her administrative remedies and filed a
1 Plaintiff’s name is partially redacted in accordance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States. 	See Memorandum, Committee on Court Administration and
Case 	Management 	of 	the 	Judicial 	Conference 	of 	the 	United 	States 	(May 	1, 	2018),
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Martin J. O’Malley is now the Commissioner of Social Security and is automatically substituted
as a party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act,
42 U.S.C. 405(g) (action survives regardless of any change in the person occupying the office of
Commissioner of Social Security).
3 Title II of the Social Security Act provides benefits to disabled individuals who are insured by
virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain
amount of time. Title XVI of the Social Security Act is a needs-based program funded by general
tax revenues designed to help disabled individuals who have low or no income. Plaintiff brought
claims under Title II and Title XVI. 	Although each program is governed by a separate set of
regulations, the regulations governing disability determinations are substantially the same for both
programs. 	Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under
Title II) with 20 C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For
convenience, the Court cites the regulations governing disability determinations under both titles.
4 Administrative Record (“A.R.”) A.R. 118–39, 142–46, 653.
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Complaint seeking relief from this Court.5 	Plaintiff’s Opening Brief asks the Court to
reverse and remand the agency’s decision for the immediate calculation and award of
benefits.6 Plaintiff also filed a Motion for Summary Judgment.7 The Commissioner filed
the Administrative Record as his Answer and filed a Response Brief.8 	Plaintiff filed a
Reply Brief.9
Oral argument was not requested and was not necessary to the Court’s decision.
This Court has jurisdiction to hear an appeal from a final decision of the Commissioner of
Social Security.10 	For the reasons discussed below, Plaintiff’s request for relief at
Dockets 7 and 8 is DENIED and the Commissioner’s final decision is AFFIRMED.
I. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it either is not supported by substantial evidence or is based upon legal error.11
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
5 Docket 1 (Plaintiff’s Compl.).
6 Docket 7 (Plaintiff’s Br.).
7 Docket 8.
8 Docket 6 (Notice of Lodging Admin. Record); Docket 12 (Commissioner’s Br.). 	As of
December 1, 2022, the Commissioner’s “answer may be limited to a certified copy of the
administrative record.” See Fed. R. Civ. P., Supp. R. 4(b) of Soc. Sec. Actions under 42 U.S.C.
§ 405(g) (effective Dec. 1, 2022).
9 Docket 13 (Reply).
10 42 U.S.C. § 405(g).
11 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
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conclusion.”12 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”13 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.14 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.15 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which he did not rely.”16 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination, or that, despite the legal error,
the agency’s path may reasonably be discerned, even if the agency explains its decision
with less than ideal clarity.”17 Finally, the ALJ has a “special duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.”18 In particular, the
Ninth Circuit has found that the ALJ’s duty to develop the record increases when the
12 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938)).
13 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
14 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
15 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
16 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
17 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotations and citations
omitted).
18 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 	(9th Cir. 	1983)), superseded on other grounds by 	20 C.F.R. 	§ 416.929(c)(3) 	and
§ 404.1529(c)(3); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
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claimant is unrepresented or is mentally ill and thus unable to protect her own interests.19
However, this duty exists “even when the claimant is represented by counsel.”20
II. 	DETERMINING DISABILITY
The Social Security Act (“the Act”) provides for the payment of disability insurance
benefits (“DIB”) to individuals who have contributed to the Social Security program and
who suffer from a physical or mental disability.21 	In addition, Supplemental Security
Income (“SSI”) may be available to individuals who do not have insured status under the
Act but who are age 65 or older, blind, or disabled.22 	Disability is defined in the Act as
follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically 	determinable 	physical 	or 	mental 	impairment 	which 	can 	be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.23
The Act further provides:
An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which exists in
19 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
20 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citations omitted).
21 42 U.S.C. § 423(a).
22 42 U.S.C. § 1381a.
23 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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significant numbers either in the region where such individual lives or in
several regions of the country.24
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.25 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.26 	If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.27 	The
Commissioner can meet this burden in two ways: 	“(a) by the testimony of a vocational
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app.2.”28 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity”
(“SGA”).29 	The ALJ determined that Plaintiff engaged in SGA in 2017 and 2019.
However, the ALJ noted that there also had been continuous 12-month periods during
which Plaintiff did not engage in SGA. 	The ALJ also determined that Plaintiff met the
insured status requirements of the Social Security Act through December 31, 2015.30
Step 2. Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
24 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
25 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
26 Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1099
(9th Cir. 1999).
27 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
28 Tackett, 180 F.3d at 1101.
29 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
30 A.R. 655–56.
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or mental ability to do basic work activities and does not consider age, education, or work
experience. 	The severe impairment or combination of impairments must satisfy the
twelve-month duration requirement.31 The ALJ determined that Plaintiff had the following
severe impairments: anxiety disorder with panic attacks and major depressive disorder.32
Step 3. Determine whether the impairment or combination of impairments meet(s)
or equal(s) the severity of any of the listed impairments found in 20 C.F.R. pt. 404,
subpt. P, app.1, precluding substantial gainful activity. 	If the impairment(s) is(are) the
equivalent of any of the listed impairments, and meet(s) the duration requirement, the
claimant is conclusively presumed to be disabled. 	If not, the evaluation goes on to the
fourth 	step.33 	The ALJ 	determined 	that 	Plaintiff 	did 	not 	have an 	impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. 	The ALJ considered the
“paragraph B” criteria for mental impairments and made the following determinations:
Plaintiff had a moderate limitation understanding, remembering, or applying information
and in concentrating, persisting, or maintaining pace; a moderate limitation interacting
with others; and a mild limitation adapting or managing herself.34
Residual Functional Capacity. Before proceeding to step four, a claimant’s residual
functional capacity (“RFC”) is assessed.35 	Once determined, the RFC is used at both
31 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
32 A.R. 656.
33 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
34 A.R. 656–57.
35 20 C.F.R. §§ 404.1545(a), 416.945(a).
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step four and step five. An RFC assessment is a determination of what a claimant is able
to do on a sustained basis despite the limitations from her impairments, including
impairments that are not severe.36 	The ALJ determined that Plaintiff had the residual
functional capacity to perform a full range of work at all exertional levels, but with the
following non-exertional limitations: remembering, understanding, and carrying out only
simple instructions and tolerating no more than occasional interaction with the public. The
ALJ determined that Plaintiff could respond appropriately to supervision, coworkers, and
usual work situations and manage changes in a routine work setting.37
Step 4. Determine whether the claimant is capable of performing past relevant
work. 	At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. 	If the
claimant can still do her past relevant work, the claimant is deemed not to be disabled.38
Otherwise, the evaluation process moves to the fifth and final step.39 The ALJ determined
that Plaintiff had no past relevant work.40
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. 	If so, the claimant is not disabled. 	If not, the claimant is considered disabled.41
36 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
37 A.R. 657.
38 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
39 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
40 A.R. 662.
41 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
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The ALJ determined that there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform.42
The ALJ concluded that Plaintiff was not disabled at any time from January 15,
2011, the alleged onset date, through November 8, 2022, the date of the ALJ’s decision.43
III. 	PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was 33 years old on the alleged disability date.44 From the alleged onset
date through the date of the ALJ’s decision, she was considered “a younger individual”
(age 18–49) by the Social Security Administration.45 	In the past, she worked as a
customer service representative, a receptionist, and as an in-home caretaker, but the SSA
determined her earnings record showed no definitive evidence that she engaged in this
work at substantial and gainful levels.46 	Plaintiff alleged disability due to anxiety, panic
attacks, and depression.47
Plaintiff’s 	claims 	were 	denied 	initially 	on 	November 	17, 	2011, 	and 	after
reconsideration on May 29, 2012.48 	On March 14, 2013, she appeared without
representation and testified at a hearing before the assigned ALJ in New York, New
42 A.R. 662.
43 A.R. 663.
44 A.R. 118.
45 See 20 C.F.R. §§ 404.1563, 416.963.
46 A.R. 324, 336–37.
47 A.R. 119.
48 A.R. 52–55.
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York.49 The ALJ issued an unfavorable hearing decision on April 8, 2013.50 On May 27,
2014, the Appeals Council denied Plaintiff’s request for review.51
The United States District Court for the Southern District of New York granted the
parties’ stipulated remand on December 4, 2014.52 The Appeals Council remanded the
case on September 15, 2015, for the stated reason that Plaintiff’s file did not contain a
waiver of representation form and it was unclear from the hearing recording whether the
ALJ informed Plaintiff of her right to counsel.53
On January 26, 2016, Plaintiff appeared and testified with representation at a
second hearing before a different ALJ in New York, New York.54 On March 9, 2016, the
ALJ issued an unfavorable decision.55 On March 29, 2017, the Appeals Council denied
Plaintiff’s request for review.56
On June 5, 2018, the United States District Court for the Central District of
California 	reversed 	and 	remanded 	the 	Commissioner’s 	final 	decision 	for 	further
proceedings.57 	The district court found that the ALJ failed to provide specific and
legitimate 	reasons 	supported 	by 	substantial 	evidence 	for 	rejecting 	the 	examining
49 A.R. 20–35.
50 A.R. 8–15.
51 A.R. 1–3.
52 A.R. 362–65.
53 A.R. 368.
54 A.R. 332–61.
55 A.R. 317–26.
56 A.R. 292–93.
57 A.R. 721–33.
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physician’s opinions.58 The district court held that the ALJ “must reassess the evidence
and provide sufficient reasons supported by the record for rejecting Dr. Kushner’s opinion,
if the ALJ again finds the opinion should be rejected.”59 	The Commissioner’s decision
was reversed and remanded for further proceedings.60 The Ninth Circuit disagreed with
Plaintiff’s assertion that the district court should have remanded for an immediate award
of benefits and affirmed the district court’s order.61
On April 14, 2022, and again on June 28, 2022, Plaintiff filed a waiver of her right
to a hearing before an ALJ. 	She also requested “a determination made based on the
medical records already in her file.”62
On November 8, 2022, the assigned ALJ issued an unfavorable decision pursuant
to 20 C.F.R. §§ 404.948(b) and 416.1448(b).63 After the Appeals Council denied review
on April 3, 2023, Plaintiff timely appealed to this Court.64
IV. 	DISCUSSION
Plaintiff is representing herself in this appeal. 	The Court construes Plaintiff’s
appeal to raise the following issues: 	(1) the ALJ failed to follow the U.S. District Court
58 A.R. 728–32.
59 A.R. 732.
60 A.R. 733.
61 A.R. 712–16.
62 A.R. 826–27.
63 A.R. 652–63. An ALJ may decide a case on the record and not conduct an oral hearing if the
claimant indicates in writing that she does not wish to appear before the ALJ at an oral hearing.
See 20 C.F.R. §§ 404.948(b) and 416.448(b).
64 A.R. 643–48. Plaintiff filed her complaint on May 12, 2023. See Docket 1.
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Order by failing to provide clear and convincing reasons for discounting Dr. Kushner’s
medical opinions; (2) the ALJ failed to provide specific, clear, and convincing reasons for
rejecting Plaintiff’s symptom allegations; (3) the ALJ erred in finding that Plaintiff engaged
in substantial gainful activity in 2017 and 2019; (4) the ALJ erred by finding that Plaintiff
had no past relevant work; and (5) the ALJ failed to adequately consider Social Security
Ruling 85-15.65 Plaintiff urges the Court to remand the ALJ’s decision for the immediate
payment of benefits.
The Commissioner asserts that the ALJ rationally discounted Plaintiff’s allegations
because they conflicted with the treatment record and that the ALJ reasonably discounted
Dr. Kushner’s medical opinion because it was unsupported, unexplained, and at odds
with the record. The Commissioner urges the Court to affirm the ALJ’s decision.66
A. 	Medical Opinion Evidence
Upon initial review of Plaintiff’s claims, the reviewing agency physician found that
there was insufficient evidence to evaluate Plaintiff’s medically determinable mental
impairment of affective disorder and the SSA determined Plaintiff was not disabled.67
Although Plaintiff had multiple treating providers, due to limited treatment, these providers
declined to evaluate Plaintiff’s work limitations.68 	Dr. Kushner, a non-treating, but
examining psychologist, provided functional limitations based on his evaluation on
65 Docket 7 at 8–15.
66 Docket 12 at 2–8.
67 A.R. 40–43, 47–51.
68 See e.g., A.R. 456–62, 488, 496–98.
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November 9, 2015.69 	Therefore, Dr. Kushner’s opinion is the only medical opinion
providing specific functional limitations relating to Plaintiff’s mental impairments.
On appeal, the U.S. District Court for the Central District of California reversed and
remanded the ALJ’s decision for further proceedings. 	First, the district court noted that
the record showed a “well-documented history of severe depression, anxiety, and panic
attacks.”70 	The district court also pointed out that Dr. Kushner’s opinion was the only
evidence in the record that included a functional assessment. The medical records also
contain GAF scores ranging primarily between 50 and 75, with two lower scores of 34
and 47.71 	The district court considered the higher GAF scores medical evidence
contradictory to Dr. Kushner’s opinion.72 However, the district court then concluded that
the GAF scores did not contradict Dr. Kushner’s opinion because “[m]ost often providers
found Plaintiff’s GAF score to be between 50-55,73 which is indicative of significant
impairment.”74
69 A.R. 465–71.
70 A.R. 729.
71 See e.g., A.R. 493 (GAF score of 47 on initial assessment), A.R. 495 (GAF Score 34), A.R. 509
(GAF Score 55), 512 (GAF score of 55), 515 (GAF Score 55), 523 (GAF score of 65–70), 543
(GAF score of 65), 546 (GAF Score 50), 552 (GAF Score 50), 572 (GAF Score 52), 583 (GAF
Score 50), 587 (GAF Score 50), 591 (GAF Score 52), 611 (GAF score of 55), 614 (GAF Score 55),
621 (GAF score of 65–70), 635 (GAF score of 65), 642 (GAF score of 65).
72 A.R. 729–32.
73 A.R. 732 n.7 (“Again, a GAF score of 50 indicates a ‘serious impairment in social, occupational,
or school functioning.’ 	DSM-IV at 34. 	A GAF score between 61 and 60 describes ‘moderate
symptoms’ or ‘any moderate difficulty in social, occupational, or school functioning.’ Id.”).
74 A.R. 732.
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Next, the district court cited to examples of Plaintiff’s reports of some improvement
with medications, but also noted that Plaintiff continued to report symptoms of depression
and almost daily panic attacks. The district court cited examples in the record showing
that Plaintiff sometimes discontinued her treatment or failed to comply with treatment.75
The district court found that this failure to comply is “not unusual in the mental health
context and does not contradict the evidence of impairment.”76
The district court held that it was not clear from the record that the ALJ would be
required to find Plaintiff disabled after properly evaluating the evidence, in part because
the record contained no evidence from a vocational expert.77 The district court ordered
the ALJ to “reassess the evidence and provide sufficient reasons supported by the record
for rejecting Dr. Kushner’s opinion[.]”78
As discussed above, after the district court ordered remand, Plaintiff elected not to
appear and testify at a new hearing and elected not to submit any new medical evidence.
The most recent medical evidence in the record is from February 2016, and no vocational
75 A.R. 729–30.
76 A.R. 730 (citing Cf. Garcia v. Astrue, No. C10-5463-RBL-JRC, 2011 WL 884126, at *18 (W.D.
Wash. Mar. 14, 2011), report and recommendation adopted 2011 WL 888114 (W.D. Wash.
Mar. 14, 2011) (“When mental illness is involved, assuming that a failure to comply with prescribed
treatment suggests a willful failure to comply with prescribed treatment can be illogical. This is in
part because a person suffering from a mental illness may not realize that he needs his
medication, or he may not realize even that his ‘condition reflects a potentially serious mental
illness.’” (quoting Van Ngyuen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996))).
77 The Court stated, “Most often providers found Plaintiff’s GAF score to be between 50-55, which
is indicative of significant impairment.” 	A.R. 732. 	See A.R. 509 (GAF Score 55), 512 (GAF
Score 55), 515 (GAF Score 55), 546 (GAF Score 50), 552 (GAF Score 50), 572 (GAF Score 52),
583 (GAF Score 50), 587 (GAF Score 50), 591 (GAF Score 52), 611 (GAF Score 55), 614 (GAF
Score 55).
78 A.R. 733.
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expert has ever testified in this case. Therefore, the ALJ issued a decision after remand
without an oral hearing and based only on the previous record, pursuant to 20 C.F.R.
§§ 404.948(b) and 416.1448(b).79
In her brief to this Court, Plaintiff alleges that the ALJ, after remand, “failed to
provide sufficient reasons supported by the record for rejecting the SSA Consultative
Examiner, psychologist, Dr. Michael Kushner’s opinion[.]”80 Because Plaintiff protectively
filed her applications on or about August 9, 2011, the regulations prior to March 27, 2017,
are applicable here.
1. 	Legal standard
For applications filed before March 27, 2017, the weight given to medical opinions
depends on “an acceptable medical source’s” relationship with the claimant.81 A licensed
psychologist is an acceptable medical source under the prior regulations.82
In the three-tiered hierarchy of acceptable medical sources, treating medical
sources are considered the highest tier. These opinions are given “controlling weight” if
they are “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and [are] not inconsistent with the other substantial evidence in the claimant’s
case record.”83 An acceptable medical source who examines the claimant but does not
79 A.R. 653.
80 Docket 7 at 8.
81 Woods v. Kijakazi, 32 F.4th 785, 789 n. 2 (9th Cir. 2022).
82 See 20 C.F.R. § 404.1513(a)(2) (effective Sept. 3, 2013, to March 26, 2017).
83 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017), superseded on other grounds by 20
C.F.R. § 404.1502(a); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
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have an ongoing medical relationship with the claimant is considered an examining
source. 	His opinion is “entitled to greater weight than the opinion of a nonexamining
physician.”84 	The “lowest-weighted tier” consists of non-examining medical sources.85
However, the opinions of non-examining medical sources may serve as substantial
evidence when the opinions are consistent with independent clinical findings or other
evidence in the record.86
When a treating or examining medical source’s opinion is not contradicted by other
evidence, the ALJ must provide “clear and convincing reasons” for rejecting the medical
opinion.87 	When contradicted, the ALJ may only reject a treating or examining medical
source’s opinion by providing specific and legitimate reasons that are supported by
substantial evidence.88 	This can be done by “setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating [the ALJ’s] interpretation
thereof, and making findings.”89 An ALJ may reject the opinion of any medical source “if
that opinion is brief, conclusory, and inadequately supported by clinical findings.”90
Because Dr. Kushner was an examining psychologist in this case and his opinion
that Plaintiff’s social functioning was markedly impaired is contradicted by the GAF scores
84 Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020); see also 20 C.F.R. § 404.1527(c)(1).
85 Woods, 32 F.4th at 789.
86 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
87 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
88 Id. at 654.
89 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989)).
90 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
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in the record, the ALJ was required to provide specific and legitimate reasons supported
by substantial evidence for rejecting his medical opinion.91 	For the reasons set forth
below, the ALJ provided specific and legitimate reasons for discounting certain portions
of Dr. Kushner’s medical opinions.
2. 	Medical opinion of Michael Kushner, Ph.D.
On November 9, 2015, Plaintiff saw Michael Kushner, Ph.D., for a psychiatric
evaluation.92 	Dr. Kushner conducted a background history based on Plaintiff’s self-
reports. On mental examination, Dr. Kushner observed that Plaintiff was cooperative, and
her manner of relating, social skills, and overall presentation was adequate. He reported
that Plaintiff’s speech was clear and adequate; thought processes were coherent and
goal directed without evidence of hallucinations, delusions, or paranoia; her affect was
depressed and mood dysthymic; her attention and concentration generally intact; her
recent and remote memory skills impaired; and her intellectual function was below
average. Dr. Kushner diagnosed Plaintiff with unspecified depressive disorder and panic
disorder and recommended that Plaintiff continue with her psychiatric treatment.93
As part of his evaluation, Dr. Kushner assessed Plaintiff’s functional limitations. He
opined that Plaintiff was moderately impaired in her ability to understand and remember
complex instructions, carry out complex instructions, and make judgements on complex
work-related decisions. He opined that Plaintiff was moderately to markedly impaired in
91 See Revels, 874 F.3d at 654.
92 A.R. 465–68. As noted by the U.S. District Court, Central District of California, Dr. Kushner
referred to the examination as a psychiatric evaluation, but he signed the evaluation as a Ph.D.
in psychology. A.R. 465, 468, 728 n.3.
93 A.R. 465–68.
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her ability to interact appropriately with the public, with supervisors, and with co-workers
and to respond appropriately to usual work situations and to changes in a routine work
setting. 	Dr. Kushner stated that his opinions regarding Plaintiff’s ability to interact
appropriately to persons and work situations were based on Plaintiff’s self-reports of
symptoms of major depression and panic disorder.94
“When the evidence can rationally be interpreted in more than one way, the court
must uphold the [ALJ’s] decision.”95 Moreover, we are confined to reviewing the reasons
the ALJ asserts.96 At the same time, the court may not affirm an ALJ’s decision where
the ALJ “pick[ed] out a few isolated instances of improvement” to deny benefits to a
claimant.97
Reviewing the same record as the U.S. District Court for the Central District of
California, the assigned ALJ gave some weight to Dr. Kushner’s opinion that Plaintiff had
mild limitations in understanding, remembering, and carrying out simple instructions and
in making judgments regarding simple work-related decisions and his opinion that
Plaintiff’s limitations were moderate if those instructions and judgments were complex.
The ALJ also gave some weight to Dr. Kushner’s opinion that Plaintiff was mildly limited
in her ability to follow and understand simple instructions and perform simple tasks
independently. The ALJ found these assessments generally consistent with the findings
94 A.R. 469–71.
95 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001).
96 Brown-Hunter, 806 F.3d at 494 (“As we have long held, we are constrained to review the
reasons the ALJ asserts.”) (quotations, citations, and emphasis omitted).
97 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).
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in Dr. Kushner’s own report and with the treatment record. The ALJ incorporated these
opinions into the RFC.98
However, the ALJ assigned only little weight to the portion of Dr. Kushner’s opinion
opining Plaintiff experienced moderate to marked limitations in all aspects of her social
functioning. 	The ALJ provided the following reasons: 	(1) Dr. Kushner “had a limited
understanding of the overall diagnostic picture on which to form an opinion because he
saw the claimant on a single occasion and reviewed no treatment notes or other records”;
(2) the longitudinal evidence is not consistent with Dr. Kushner’s assessment of marked
limitations in all aspects of social function; (3) Dr. Kushner did not provide sufficient
rationale, specific findings, or articulate the frequency and circumstances to support his
assessments of marked limitations in social functioning; and (4) Dr. Kushner’s “moderate
to at times marked” limitations are not consistent with his other assessments of only mild
limitations.99
3. 	Familiarity with the record
In assessing the weight of a medical opinion, the ALJ considers the extent to which
the medical source is “familiar with the other information in [Plaintiff’s] case record.”100
And, an ALJ may also discredit physicians’ opinions that are unsupported by the record
as a whole.101 	In this case, Dr. Kushner met Plaintiff on one occasion, provided a
functional assessment based on a single evaluation, and did not review Plaintiff’s medical
98 A.R. 661.
99 A.R. 661–62 (simplified).
100 20 C.F.R. § 416.927(c)(6).
101 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
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records.102 	Plaintiff’s treating providers declined to provide functional assessments
because 	Plaintiff 	had 	not 	attended 	enough 	sessions 	to 	make 	an 	assessment.103
Moreover, without a record review, it appears that Dr. Kushner relied heavily on Plaintiff’s
subjective reports, which the ALJ discounted.104
Therefore, the ALJ’s finding that Dr. Kushner “had a limited understanding of the
overall diagnostic picture on which to form an opinion” was a specific and legitimate
reason to discount Dr. Kushner’s marked limitations in social functioning.
4. 	Treatment notes and Plaintiff’s Global Assessment of Function (GAF)
scores
An ALJ may discount an opinion that is conclusory, brief, and unsupported by the
record as a whole, or by objective medical findings.105 And, the consistency of a medical
opinion with the treatment notes is a relevant factor in the ALJ’s evaluation of that
opinion.106 	However, an ALJ may not “cherry pick” evidence to discount a medical
opinion.107
Contrary to Plaintiff’s assertion, the ALJ did not cherry-pick the evidence in this
case. 	Instead, the ALJ found Plaintiff’s anxiety disorder with panic attacks and major
102 A.R. 465–71.
103 See e.g., A.R. 456–62, 488, 496–98.
104 A.R. 470. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject
a treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-reports that have
been properly discounted as incredible.”) (citations omitted), superseded on other grounds by 20
C.F.R. § 404.1502(a).
105 Batson v. Comm’r of Soc. Sec. Admin.,359 F.3d 1190, 1195 (9th Cir. 2004).
106 See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Orn, 495 F.3d at 631.
107 Ghanim, 763 F.3d at 1164.
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depressive order to be severe based on the longitudinal record.108 However, the ALJ also
pointed to treatment records indicating that Plaintiff’s mental status examinations at her
mental health appointments conflicted with Dr. Kushner’s marked limitations.109
The Court’s review of the record shows that Plaintiff was alert, cooperative, calm,
with normal speech, and with normal psychomotor activity at mental health appointments
and upon examination by Dr. Kushner.110 Moreover, the ALJ considered Plaintiff’s GAF
scores and afforded them some weight. However, the ALJ found that the scores did not
“reflect specific functional limitations,” did not suggest more than a moderate level in
overall function, and were “consistent across several months of treatment.”111
Based on the record in this case, the Court agrees. First, “[a] GAF score is a rough
estimate of an individual’s psychological, social, and occupational functioning used to
reflect the individual’s need for treatment.”112 	However, GAF scores alone do not
necessarily provide guidance for determining functional limitations.113 	Moreover, two
GAF scores under 50 without further explanation is not necessarily inconsistent with
108 A.R. 656.
109 A.R. 661.
110 A.R. 661; See also e.g., A.R. 492, 519, 523, 529, 532, 535, 538–39, 550–52, 571–72, 621.
111 A.R. 661.
112 Vargas v. Lambert, 159 F.3d 1161, 164 n.2 (9th Cir. 1998).
113 See Harris v. Berryhill, 738 Fed. App’x. 529, 530–31 (9th Cir. 2018) (unpublished) (“Because
the GAF scale does not have a direct correlation to the severity requirements in the mental health
listings and [plaintiff’s] GAF scores were not accompanied by explanations of the scores’ impact
on 	[plaintiff’s] 	functional 	limitations, the ALJ was 	not required to discuss the scores.”).
Unpublished orders of the U.S. Court of Appeals for the Ninth Circuit issued on or after January 1,
2007, may be cited to by the courts of the Ninth Circuit in accordance with Fed. R. App. P. 32.1
and 9th Cir. R. 36-3.
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Plaintiff’s RFC, given the other evidence in the record suggesting Plaintiff retained the
ability to work.114 And, the majority of Plaintiff’s GAF scores appear to be between 52–
70, reflecting at most, a moderate difficulty in social functioning.115
“Where evidence is susceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld.”116 Here, the ALJ’s discounting of Dr. Kushner’s
opinion that Plaintiff’s social functioning was markedly limited, based on the longitudinal
record, is a specific and legitimate reason supported by substantial evidence.
5. 	Lack of support for assessments
As noted by the ALJ, Dr. Kushner provided very little explanation in support of his
opinion that Plaintiff’s ability to interact appropriately with supervisors, co-workers, and
the public, as well as respond to changes in the work setting, was moderately to markedly
impaired.117 He provided no explanation for his opinions that Plaintiff’s ability to maintain
114 See e.g., Daniel S.O. v. Comm’r of Soc. Sec., No. C19-6203-MLP, 2020 WL 2850565, at *2–3
(W.D. Wash. June 2, 2020) (finding that unexplained GAF scores alone were not necessarily
inconsistent with the ALJ’s RFC assessment reflecting a limitation of performing simple, routine,
unskilled tasks, with only superficial contact with the public); Zerba v. Comm’r of Soc. Sec. Admin.,
279 Fed. App’x. 438, 439 (9th Cir. 2008) (unpublished) (finding a GAF score of 45 to be not
necessarily inconsistent with a finding that a plaintiff’s depression was not severe); Lehman v.
Berryhill, No. 6:16-cv-00920-PK, 2017 WL 4415753, at *11 (D.Or. Jul. 25, 2017) (finding no error
where the ALJ failed to discuss a GAF score of 45 because other evidence in the record
suggested Plaintiff retained the ability to work).
115 Garrison, 759 F.3d at 1002 n.4 (“According to the DSM-IV, a GAF score between 41 and 50
describes ‘serious symptoms’ or ‘any serious impairment in social, occupational, or school
functioning.’ A GAF score between 51 to 60 describes ‘moderate symptoms’ or [‘]any moderate
difficulty in social, occupational, or school functioning.’”).
116 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
117 A.R. 467, 470.
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attention and concentration, maintain a regular schedule, learn new tasks, and perform
complex tasks under supervision, was “moderate to at times marked[ly]” limited.118
Therefore, the ALJ’s finding that Dr. Kushner’s marked limitations were not
explained or supported is a specific and legitimate reason for discounting Dr. Kushner’s
opinions.
6. 	Internal inconsistences and inconsistency with the record
An ALJ may properly reject a medical opinion if it is internally inconsistent.119 To
the extent Dr. Kushner’s limitations on social interaction exceeded the RFC, the ALJ
reasonably interpreted Dr. Kushner’s moderate to marked limitations as conflicting with
the results of his own mental status examination. 	For example, although Dr. Kushner
opined that Plaintiff was moderately to markedly limited in relating adequately with others
and appropriately dealing with stress, he noted that upon mental status examination,
Plaintiff’s “[m]anner of relating, social skills, and overall presentation were adequate.”120
The ALJ also reasonably found that Dr. Kushner’s opinion regarding Plaintiff’s
“moderate to at times marked” difficulty maintaining attention and concentration and
learning new tasks was not consistent with his other opinions that Plaintiff was only mildly
limited in understanding, remembering, and carrying out simple instructions and in making
judgments regarding simple work-related decisions, as well as his opinion that Plaintiff
118 A.R. 467.
119 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (internal
inconsistencies within and between physicians’ reports constitutes relevant evidence.); see also
Tommasetti, 533 F.3d at 1041 (a provider’s opinion may be rejected due to an incongruity between
a provider’s medical questionnaire responses and her medical records).
120 A.R. 466–67.
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was moderately limited in understanding, remembering, and carrying out complex
instructions and in making judgments regarding complex work-related decisions.121
Moreover, Dr. Kushner’s conclusion that Plaintiff would have difficulty interacting
appropriately with the public is addressed in the RFC by limiting Plaintiff to occasional
interaction with the public.122 	The RFC also addressed Dr. Kushner’s conclusion that
Plaintiff had difficulties maintaining attention and concentration, learning new tasks, and
performing 	complex 	tasks 	under 	supervision 	by 	limiting 	Plaintiff 	to 	remembering,
understanding, and carrying out only simple instructions.123
In sum, the ALJ cited specific and legitimate reasons for discounting Dr. Kushner’s
opinion and accounting only for mild to moderate mental limitations in the RFC.
B. 	Plaintiff’s Subjective Symptom Testimony and Reports
The Court interprets Plaintiff’s opening brief as asserting that the ALJ failed to
articulate specific, clear, and convincing reasons for rejecting her testimony. Specifically,
Plaintiff contends that her use of public transportation was limited to “scheduled doctor’s
appointments,” with a “trusted person,” and “not for joy or leisure.” She also asserts that
“[i]t is consistently noted throughout her record, that she show(s) signs of psychiatric
121 A.R. 661–62.
122 A.R. 657.
123 A.R. 657. See Withrow v. Colvin, 672 Fed. Appx. 748, 749 (9th Cir. 2017) (unpublished) (”[T]his
court has upheld determinations that claimants with moderate mental limitations are capable of
doing simple unskilled work.”) (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.2d 685, 690
(9th Cir. 2009) (upholding a denial of benefits where the ALJ found that a claimant with ”moderate
restrictions of his capacity to concentrate, interact with the public, and carry out detailed work
instructions” was not disabled)); Stubbs-Danielson v. Astrue, 539 F.2d 1169, 1173–74 (9th Cir.
2008) (the ALJ’s finding of moderate mental limitations was consistent with an RFC for simple,
routine, and repetitive work).
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problems, which should substantiate her symptoms to SSA.”124 	The Commissioner
counters 	that 	the ALJ 	“reasonably 	discounted 	Plaintiff’s 	allegations 	because 	they
conflicted with the treatment record.”125
Plaintiff appeared and testified at two hearings before two different ALJs. 	In the
first hearing, Plaintiff appeared and testified without representation before the assigned
ALJ in New York, New York, on March 14, 2013. She testified that she lived with her three
children ages five, six, and twelve at a friend’s apartment in Manhattan. She testified that
she moved from California to New York “just to live with a friend to help me out with my
children.” She testified that she was unable to take care of her children because of panic
attacks and depression and that her oldest child and friend took care of the household
chores, 	cooking, 	and 	grocery 	shopping. 	Plaintiff 	testified 	that 	she 	was 	taking
Lorazepam126 and Klonopin,127 but that she did not see a doctor regularly and had not
been hospitalized for depression. 	She testified that she had seen a psychologist three
times after arriving in New York City in August 2012. 	She stated that she did not get
dressed every day and showered or bathed once or twice a week. She stated that she
took public transportation to the hearing and that she took the subway every so often.128
124 Docket 7 at 10.
125 Docket 12 at 2–5.
126 Lorazepam is used to treat anxiety disorders. 	See https://www.mayoclinic.org/drugs-
supplements/lorazepam-oral-route/description/drg-20072296.
127 Klonopin is used to treat panic attacks. 	See https://www.webmd.com/drugs/2/drug-920-
6006/klonopin-oral/clonazepam-oral/details.
128 A.R. 20–35.
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After stipulated remand of the ALJ’s unfavorable decision in the U.S. District Court
for the Southern District of New York, Plaintiff appeared and testified with representation
before the assigned ALJ in New York, New York, on January 26, 2016. She testified that
she moved to New York City in 2012 from Los Angeles, California. She testified that she
worked as a customer service representative at call centers over a period of 15 years.
Plaintiff testified that her last job was as a home health aide in 2009. She stated that her
panic attacks began in 2008–2009 and she received outpatient treatment at UCLA
Hospital at that time. She indicated the medications prescribed to her by UCLA Hospital
did not help and she stopped treatment on her own. 	She testified that she attended
psychotherapy for one year, stopped attending, resumed therapy approximately three
years later in New York in 2013, and was still being treated for panic attacks at the time
of the hearing. 	Plaintiff stated that therapy and medication did not help, but that her
therapist 	and 	psychiatrist 	suggested 	she 	continue 	to 	take 	medication 	and 	attend
therapy.129
Plaintiff indicated that she had been living with two different friends over a period
of six years in New York with her three children, ages eight, nine, and fifteen. She testified
that she stayed home while the children were at school and that her friend and oldest
daughter took care of the grocery shopping, cooking, cleaning, and laundry. She reported
having panic attacks almost every day for about 20 minutes and that she could have more
than one panic attack per day. She also testified that her panic attacks went away each
129 A.R. 741–49.
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time after taking an Atarax130 pill. However, Plaintiff stated that she was depressed every
day for most of the day and that her previous Effexor131 and current Zoloft132 prescriptions
did not help her. She testified that she had lost weight over the past two years, she did
not sleep well, did not get dressed every day, had low energy, and could not focus or
concentrate for long. She testified that she did not pick up her children from school and
did not help with homework. Plaintiff stated that she no longer enjoyed activities that she
used to enjoy and had no friends except the friend that she lived with at the time of the
hearing.133
1. 	Legal standards
An ALJ’s assessment of a claimant’s symptoms has two steps.134 First, the ALJ
determines whether the claimant has presented “objective medical evidence of an
underlying impairment which could reasonably be expected to produce the pain or other
symptoms alleged.”135 In the first step, the claimant need not show “that her impairment
could reasonably be expected to cause the severity of the symptom she has alleged; she
130 Atarax is used to help control anxiety and tension caused by nervous and emotional conditions.
See 	https://www.mayoclinic.org/drugs-supplements/hydroxyzine-oral-route/description/drg-
20311434.
131 Effexor is used to treat depression, general anxiety disorder, social anxiety disorder, and panic
disorder. See https://www.mayoclinic.org/drugs-supplements/venlafaxine-oral-route/description/
drg-20067379.
132 Zoloft is used to treat depression, obsessive-compulsive disorder, panic disorder, premenstrual
dysphoric 	disorder, 	posttraumatic 	stress 	disorder, 	and 	social 	anxiety 	disorder. 	See
https://www.mayoclinic.org/drugs-supplements/sertraline-oral-route/description/drg-20065940.
133 A.R. 749–66.
134 Trevizo, 871 F.3d at 678 (9th Cir. 2017), superseded on other grounds by 20 C.F.R.
§ 404.1502(a).
135 Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)).
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need only show that it could reasonably have caused some degree of the symptom. Nor
must a claimant produce objective medical evidence of the pain or fatigue itself, or the
severity thereof.”136
Second, if the claimant has satisfied step one and the ALJ has determined that the
claimant is not malingering, the ALJ must provide “specific, clear and convincing reasons”
for rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms.
This standard is “the most demanding required in Social Security cases.”137 Yet, this does
not mean an ALJ is required to “simply accept a claimant’s subjective symptom testimony
notwithstanding inconsistencies between that testimony and the other objective medical
evidence in the record, allowing a claimant’s subjective evidence to effectively trump all
other evidence in a case.”138
In this case, the ALJ determined that, although Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, Plaintiff’s
statements concerning the intensity, persistence, and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence in the record.
The ALJ did not determine that Plaintiff was malingering.139
Because the ALJ found Plaintiff’s underlying impairments severe and cited no
evidence of malingering, he was required to provide specific, clear, and convincing
reasons for rejecting Plaintiff’s subjective symptom allegations. 	The ALJ provided the
136 Garrison, 759 F.3d at 1014 (internal citations and quotations omitted).
137 Trevizo, 871 F.3d at 678.
138 Smartt v. Kijakazi, 53 F. 4th 489, 499 (9th Cir. 2022).
139 A.R. 658–60.
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following reasons: 	(1) Plaintiff’s treatment notes indicate that medication was effective
for her panic attacks, anxiety, and depression; (2) Plaintiff’s providers recorded generally
unremarkable mental status findings; (3) the absence of medical evidence after February
2016 “suggests that [Plaintiff] has obtained little to no treatment because her symptoms
remained controlled with medication”; and (4) Plaintiff’s activities are not consistent with
the level of impairment claimed by Plaintiff.140
2. 	Improvement with treatment
An ALJ may discount a claimant’s mental health symptom testimony based on
improvement with treatment.141 	However, “[r]eports of ‘improvement’ in the context of
mental health issues must be interpreted with an understanding of the patient’s overall
well-being and the nature of her symptoms.”142 	Here, the ALJ acknowledged Plaintiff’s
history of problems with depression and anxiety, including panic attacks, and Plaintiff’s
use of medication and therapy to treat them.143
The Court’s review of the record reveals that Plaintiff suffered from symptoms of
her depression, anxiety, and panic attacks between January 2011 and February 2016.
The record includes three visits to the emergency room for panic attacks, use of
140 A.R. 658–60.
141 See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical treatment
successfully relieving symptoms can undermine a claim of disability.”) (citing 20 C.F.R.
§§ 404.1520a(c)(1), 416.920a(c)(1))).
142 Garrison, 759 F.3d at 1017 (internal citation omitted).
143 A.R. 659–60.
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prescription medications, and limited psychotherapy.144 	However, the Court’s review of
the treatment notes also reveals that when Plaintiff engaged in treatment, she often
reported that it was helpful.145 	Moreover, the treatment Plaintiff engaged in before
February 2016 was sporadic.146 Plaintiff started and stopped treatment after only a few
visits or after a few months, often with large gaps of time between her re-initiation of
treatment.147
144 See e.g., A.R. 203–11 (panic attack, August 8, 2011), 217–22 (panic attack, July 12, 2011),
234–38 (panic attack, January 5, 2011), 460 (reported depression and anxiety attacks), 488–96
(presented with symptoms of depression and anxiety), 502–53 (medication follow up), 556–642
(behavioral therapy and medication follow up).
145 See e.g., A.R. 489 (reported marital counseling was helping in learning how to better deal with
her children), 494 (reported being in therapy off and on and that it was somewhat helpful, but
denied ever having taken medication for symptoms), 496 (provider noted “some improvement”
starting medications), 502 (reported doing better on Zoloft, feels calmer and less depressed),
505–06 (reported improvement with change in medication), 508 (reported benefit at start of the
day from medication, but motivation wears off as the day progresses), 526 (medication well
tolerated), 530 (compliance with medications and feeling calmer and not depressed), 533
(continue current medications, reported feeling less depressed), 535 (reported compliance with
medication and feeling less depressed), 627 (reported compliance with medication and no
complaints at the time), 630 (compliance with medications and feeling less depressed).
146 Abrahamson v. Saul, 818 Fed. Appx. 718, 721 (9th Cir. 2020) (unpublished) (sporadic
adherence to prescribed treatment is a clear and convincing reason to conclude a plaintiff’s
testimony overstated his symptoms and limitations).
147 See e.g., A.R. 449–50 (treatment ceased because unable to contact claimant), 456 (based on
newness of treatment, provider was unable to provide recommendations other than to continue
with individual treatment and monthly medication management), 459–62 (provider reported that
Plaintiff attended only four sessions and declined to provide a functional assessment), 488 (“Client
stopped coming before any progress was made.”), 497–98 (provider declined to provide a
functional assessment because she had not seen Plaintiff long enough), 541 (reported taking
Lexapro and Lorazepam five months previous and current increase in depression and anxiety
symptoms), 546 (poor attendance; Plaintiff requested termination of services “because she had
too many conflicting appointments.”), 595 (reported doing better on Zoloft, less depressed, and
less anhedonic with improved concentration and energy level), 598 (reported doing better on
Zoloft; felt calmer, less depressed, and less anhedonic with improved concentration and energy
level; still had daily panic attacks which were mostly relieved by Atarax), 620 (re-initiated
treatment; reported “had not returned because she had enough medication until last week.”).
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3. 	Unremarkable mental status findings
To the extent the evidence could be interpreted differently, it is the role of the ALJ
to resolve conflicts and ambiguity in the evidence.148 Where evidence is subject to more
than one rational interpretation, the ALJ’s conclusion will be upheld.149 Moreover, an ALJ
may properly discredit a claimant’s testimony based on inconsistencies with relatively mild
mental status examinations.150
Here, the ALJ cited to examples of providers recording “generally unremarkable
mental status findings.”151 While Plaintiff regularly demonstrated a depressed mood and
regularly reported panic attacks, the treatment notes also generally show unremarkable
mental status findings.152 	Therefore, the ALJ’s discounting of Plaintiff’s symptom
testimony 	based 	on 	unremarkable 	mental 	status 	findings 	is 	specific, 	clear, 	and
convincing.
4. 	No record of treatment after February 2016
While a lack of objective medical evidence cannot be the sole reason for rejecting
a claimant’s symptom testimony, it is a proper factor that the ALJ may consider in weighing
148 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599–600 (9th Cir. 1999).
149 Burch, 400 F.3d at 680-81.
150 See Cramer v. Berryhill, 706 Fed. App’x. 385, 386 (9th Cir. 2017); Loewen v. Berryhill, 707 F.
App’x. 907, 908 (9th Cir. 2017) (holding that the ALJ met the clear and convincing reasons
standard, noting that the claimant’s testimony was not consistent with her treatment record and
performance on exams, and explaining that ALJs “can consider a lack of supporting medical
evidence.”).
151 A.R. 659–60.
152 See e.g., A.R. 492, 519, 523, 529, 532, 535, 538, 550–52, 571–72, 621.
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that testimony.153 As discussed above, the last medical evidence submitted in Plaintiff’s
record is from February 2016. And, after remand, Plaintiff elected not to appear and testify
at a new hearing and elected not to submit any new medical evidence.154 In this case,
the ALJ’s rejection of Plaintiff’s symptom testimony based on a lack of medical evidence
after 2016 is a rational interpretation and should be upheld.155
5. 	Daily activities
“Engaging in daily activities that are incompatible with the severity of symptoms
alleged can support an adverse credibility determination.”156 	Here, the ALJ discounted
Plaintiff’s symptom testimony based on Plaintiff’s ability to use public transportation as
inconsistent with Plaintiff’s “allegation of social isolation, agoraphobia, and difficulty being
in public places.”157 The ALJ cited to Plaintiff’s report to Dr. Kushner that she was able to
take public transportation.158 The ALJ also cited to Plaintiff’s report to a provider that she
“forced herself the other day to go out with her children” and stated that she “just rode the
153 See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“The fact that a claimant’s
testimony is not fully corroborated by the objective medical findings, in and of itself, is not a clear
and convincing reason for rejecting it.”); Burch, 400 F.3d at 680–81 (“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 . . ..”).
154 A.R. 653, 826–27.
155 See Burch, 400 F.3d 679 (”Where evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be upheld.”); see also Smart, 53 F.4th at 499
(“The standard isn’t whether our court is convinced, but instead whether the ALJ’s rationale is
clear enough that it has the power to convince.”).
156 Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014).
157 A.R. 660.
158 A.R. 467.
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bus back and forth.”159 	These two vague examples cited by the ALJ are not sufficient
reasons for discounting of Plaintiff’s testimony based on inconsistent daily activities.
However, as set forth above, the ALJ provided other clear and convincing reasons
supported by substantial evidence in the record for discounting Plaintiff’s subjective
testimony. Therefore, any error in relying on Plaintiff’s ability to take public transportation
was harmless.160
In sum, the ALJ did not err by omitting the full extent of Plaintiff’s subjective
testimony in the RFC.
C. 	Substantial Gainful Activity in 2017 and 2019
Plaintiff alleges the ALJ erred in finding that Plaintiff engaged in substantial gainful
activity in 2017 and 2019. 	She asserts that she has not worked since 2011.161 At her
hearing in January 2016, Plaintiff testified that her wallet was stolen and that someone
else was using her social security card, but she did not have a copy of the police report.162
She also asserts that, on March 9, 2016, the SSA mailed the ALJ’s unfavorable decision
to an incorrect address and the paperwork contained her social security number.163 The
159 A.R. 541–42.
160 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162–63 (9th Cir. 2008) (finding
that when the ALJ errs in relying on one of several reasons in support of an adverse credibility
determination, but such error did not affect the ALJ’s decision, the error is harmless “because the
ALJ’s remaining reasoning and ultimate credibility determination were adequately supported by
substantial evidence in the record.”) (internal citation omitted).
161 Docket 7 at 12–13. Plaintiff cites to a letter written by a family friend indicating that Plaintiff
had not worked since 2011. A.R. 947. 	Plaintiff’s previous attorney, Ruth Axelrod, represented
that Plaintiff had not worked since 2009 and that Plaintiff was “taking steps to have all earnings
after 2009 removed from her record.” A.R. 451.
162 A.R. 745–46.
163 Docket 7 at 13; see A.R. 314.
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Commissioner counters that the ALJ did not end the inquiry at step one in the disability
evaluation, 	therefore, 	the ALJ’s 	finding 	regarding 	substantial 	gainful 	activity 	was
“inconsequential to the ultimate nondisability determination.”164
At the first step in the ALJ’s five-step disability analysis, the ALJ determines
whether the claimant is presently engaging in substantial gainful activity. 	If so, the
claimant is not disabled, and the inquiry ends.165 	However, there is also a duration
requirement of 12 months.166 This means that an individual is considered disabled if she
demonstrates an “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less
than 12 months[.]”167
Here, the ALJ found that Plaintiff engaged in substantial gainful activity in 2017 and
2019, based on certified earnings records.168 	The ALJ also found that there were
continuous 12-month periods without substantial gainful activity during the alleged
disability period.169 Consequently, the ALJ continued through the additional steps in the
164 Docket 12 at 2 n.1 (quoting Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012)).
165 20 C.F.R. § 404.1520(a)(4)(i).
166 See Barnhart v. Walton, 535 U.S. 212, 219 (2002).
167 42 U.S.C. § 423(d)(1)(A) (effective Dec. 22, 2020) (Title II) (emphasis added).
168 A.R. 655–56, 918–25. See 20 C.F.R. § 404.1572(c), 416.972(c).
169 A.R. 656.
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disability evaluation process, and only after analyzing all five steps did the ALJ determine
that Plaintiff was not disabled.170
In sum, the ALJ did not err at step one of the sequential disability evaluation
process by finding that Plaintiff engaged in substantial gainful activity in 2017 and 2019.
D. 	Steps Four and Five and Social Security Ruling 85-15
Plaintiff asserts that the ALJ erred by finding that the transferability of job skills was
not an issue because Plaintiff had no past relevant work. Plaintiff states that she has past
relevant work as a customer service representative and a home health aide within 15
years of her SSI and DIB applications.171 She asserts that the ALJ did not consider Social
Security Ruling (“SSR”) 85-15.172 	She states that her functional limitations render her
unable to follow simple instructions and work with the general public. 	She also states
that, due to her diagnosis of agoraphobia, “it is evident that she would not be able to deal
with the pressures of the expected tasks in a regular work day.”173
The Commissioner counters that the ALJ did not end the inquiry at step four in the
disability evaluation, therefore, the ALJ’s findings were “inconsequential to the ultimate
nondisability determination.”174 The Commissioner does not address Plaintiff’s assertions
regarding Social Security Ruling 85-15.175
170 A.R. 662–63.
171 Docket 7 at 10.
172 Docket 7 at 9.
173 Docket 7 at 11.
174 Docket 12 at 2 n.1.
175 Docket 12.
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Once a claimant proves she cannot return to her former work, the ALJ must show
that there are jobs in the national economy that the claimant can perform.176 	Here,
Plaintiff testified that she worked as a customer service representative “over a period of
15 years.”177 She testified that she had also worked as a receptionist, and as an in-home
caretaker during the last 15 years.178 	However, the ALJ found that Plaintiff had no
relevant past work.179 	The ALJ then proceeded to step five in the disability evaluation
process. 	Assuming Plaintiff could not perform any past work, the ALJ concluded that
considering her age, education, work experience, and RFC, there were jobs that existed
in significant numbers in the national economy that Plaintiff could perform.180 	Because
the ALJ did not end the inquiry at step four and proceeded to the last step in the disability
evaluation process, any error regarding whether Plaintiff’s work as a customer service
representative or home health aide should have been considered past relevant work was
harmless error.181
176 Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.1985).
177 A.R. 336.
178 A.R. 336–37.
179 A.R. 662. 	Although Plaintiff asserts that she has past relevant work as customer service
representative and home health aide, the ALJ only considers work experience done within the
last 15 years, lasted long enough for the claimant to learn to do it, and was substantial gainful
activity. See 20 C.F.R. §§ 404.1565(a), 416.965(a). In this case, the previous ALJ concluded that
Plaintiff’s earnings record showed no definite evidence that she engaged in work as a customer
service representative or a home health aide at substantial and gainful levels. A.R. 324.
180 A.R. 662.
181 See Tommasetti v. Astrue, 533 F.3d at 1044 (“[A]lthough the ALJ erred at step four in finding
that Tommasetti could perform his past work, this error was harmless because the ALJ properly
concluded as an alternative at step five that he could perform work in the national and regional
economies.”).
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Additionally, the ALJ stated that he considered section 204.00 of the Medical-
Vocational Guidelines (the “Grids”) and Social Security Ruling (“SSR”) 85-15 in his step
five determination.182
The relevant portion of SSR 85-15 states:
“Where a person's only impairment is mental, is not of listing severity, but
does prevent the person from meeting the mental demands of past relevant
work and prevents the transferability of acquired work skills, the final
consideration is whether the person can be expected to perform unskilled
work. 	The basic mental demands of competitive, remunerative, unskilled
work include the abilities (on a sustained basis) to understand, carry out,
and remember simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a routine
work setting. A substantial loss of ability to meet any of these basic work-
related activities would severely limit the potential occupational base. This,
in turn, would justify a finding of disability because even favorable age,
education, or work experience will not offset such a severely limited
occupational base.”183
SSR 85-15 also states that individuals suffering from mental illness may “have
difficulty accommodating to the demands of work and work-like settings[,]” resulting in
“highly individualized” abilities to cope with stress in the workplace and requiring
“thoroughness in evaluation on an individualized basis.”184
182 A.R. 662–63.
183 TITLES II AND XVI: CAPABILITY TO DO O THER W ORK — THE M EDICAL-VOCATIONAL RULES AS A
FRAMEWORK FOR E VALUATING SOLELY NONEXERTIONAL I MPAIRMENTS, SSR 85-15, 1985 WL 56857,
at *4 (Jan. 1, 1985). 	Social Security Rulings are issued by the Commissioner to clarify the
Commissioner's regulations and policies. 	Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir.
1991). Although they do not have the force of law, they are nevertheless given deference “unless
they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d
1453, 1457 (9th Cir. 1989); see Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (Social Security
Rulings are “binding on all components of the Social Security Administration, . . . and are to be
relied upon as precedents in adjudicating cases[.]”).
184 Id., at *5.
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Because Plaintiff has alleged only non-exertional impairments, the ALJ was
required to consider SSR 85-15.185 In this case, the ALJ concluded that Plaintiff’s “ability
to 	perform 	work at all 	exertional 	levels has been 	compromised by nonexertional
limitations. However, these limitations have little or no effect on the occupational base of
unskilled worker at all exertional levels.”186
The ALJ included Plaintiff’s nonexertional limitations in the RFC. Specifically, the
ALJ found that Plaintiff could not tolerate more than occasional interaction with the public,
but Plaintiff was able to meet the basic mental demands of competitive, remunerative,
unskilled work on a sustained basis, including the ability to remember, understand, and
carry out only simple instructions; respond appropriately to supervision, coworkers, and
usual work situations; and manage changes in a routine work setting.187 	Moreover,
because the ALJ properly discounted the portion of Dr. Kushner’s opinion that concluded
Plaintiff was “at times” markedly limited in social function and properly discounted the full
extent of Plaintiff’s reported symptoms, the ALJ reasonably determined that Plaintiff’s
mental health limitations had little or no effect on the occupational base of an unskilled
worker at all exertional levels.
In sum, the ALJ adequately considered Plaintiff’s non-exertional impairments
under SSR 85-15 and the decision is supported by substantial evidence in the record.
185 Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995) (SSR 85-15 was issued to clarify “policies
applicable in cases involving the evaluation of solely non-exertional impairments.”).
186 A.R. 662.
187 A.R. 657. See also SSR 85-16 (“Consideration of these factors [ability to understand, carry
out and remember instructions; respond appropriately to supervision, coworkers and customary
work pressures] is required for the proper evaluation of the severity of mental impairments.”).
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V. 	ORDER
The Court, having carefully reviewed the administrative record and the ALJ’s
findings, concludes that the ALJ’s determinations are free from legal error and supported
by substantial evidence. Accordingly, IT IS HEREBY ORDERED:
1. 	The Clerk’s Office is directed to substitute Martin J. O’Malley as Defendant
and update the docket sheet.
2. 	Plaintiff’s request for relief at Docket 7 and Motion for Summary Judgment
at Docket 8, are DENIED.
3. 	The Commissioner’s final decision is AFFIRMED.
4. 	Any pending motions are DENIED as moot.
5. 	The Clerk of this Court shall enter judgment in favor of Defendant and close
this case accordingly.
DATED this 16th day of April, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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