Adams v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Richard Charles Adams, No. CV-20-01247-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Richard Charles Adams’s appeal from the 16 Commissioner’s denial of his application for Security Disability Insurance (“SSDI”) and 17 Supplemental Security Income (“SSI”) benefits under 42 U.S.C. §§ 401–434, 1381–1383f. 18 (Doc. 1). The appeal is fully briefed. (Docs. 16, 19, 20). The Court now rules. 19 I. BACKGROUND 20 Plaintiff was born on February 5, 1969 and completed high school. (Docs. 13-3 at 21 40; 13-7 at 7). Plaintiff has past relevant work experience as a “collections clerk.” (Doc. 22 16 at 2). Plaintiff argued that the following conditions rendered him disabled: “morbid 23 obesity, status-post tibia fracture, asthma, bilateral knee arthritis, and lumbar degenerative 24 disc disease with stenosis.” (Doc. 16 at 3). Plaintiff has not engaged in substantial gainful 25 activity since July 1, 2015, the alleged onset date of Plaintiff’s conditions. (Doc. 13-3 at 26 19). 27 Plaintiff filed an application for SSDI and SSI benefits in February 2017. (Docs. 16 28 at 2; 13-3 at 15). Those applications were denied at the initial stage, (Doc. 13-3 at 15), upon 1 reconsideration, (id.), and by the Administrative Law Judge (“ALJ”) after a hearing, (Docs. 2 16 at 2; 13-3 at 15–27). The Appeals Council denied review. (Doc. 13-3 at 2–4). Plaintiff 3 then sought review in this Court. (Doc. 1). 4 A. The Disability Determination 5 A claimant must show he “is under a disability” to qualify for disability insurance 6 benefits. 42 U.S.C. § 423(a)(1)(E). The claimant is disabled if he suffers from a medically 7 determinable physical or mental impairment that prevents him from engaging in any 8 “substantial gainful activity.” Id. § 423(d)(1)–(2). The Social Security Administration has 9 created a five-step process for an ALJ to determine whether the claimant is disabled. 20 10 C.F.R. § 404.1420(a)(1). Each step can be dispositive. See id. § 404.1420(a)(4). “The 11 burden of proof is on the claimant at steps one through four,” and the burden shifts to the 12 Commissioner at step five. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 13 (9th Cir. 2009). 14 At step one, the ALJ examines whether the claimant is “doing substantial gainful 15 activity.” 20 C.F.R. § 404.1520(a)(4)(i). If not, then the ALJ proceeds to step two. At step 16 two, the ALJ considers whether the claimant has a physical or mental impairment or a 17 combination of impairments that are “severe.” Id. § 404.1520(a)(4)(ii). If the ALJ finds 18 that there is severe impairment, then the ALJ proceeds to step three to determine whether 19 the claimant’s impairment or combination of impairments meets or medically equals an 20 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. 21 § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ must assess the 22 claimant’s “residual functional capacity” (“RFC”) before proceeding to step four. Id. 23 § 404.1520(a)(4). The RFC is the most a claimant “can still do despite [his] limitations.” 24 Id. § 404.1545(a)(1). At step four, the ALJ determines whether the claimant can still do 25 “past relevant work” in light of the claimant’s RFC. Id. § 404.1520(a)(4)(iv). If not, the 26 ALJ proceeds to the final step and examines whether the claimant “can make an adjustment 27 to other work” considering the claimant’s RFC, age, education, and work experience. Id. 28 § 404.1520(a)(4)(v). If an adjustment can be made, the claimant is not disabled. Id. 1 B. The ALJ’s Decision 2 The ALJ denied Plaintiff social security benefits because she determined that 3 Plaintiff was “not disabled” and was “capable of performing past relevant work as a 4 collections clerk.” (Doc. 13-3 at 26–27). After finding that Plaintiff was not engaged in 5 substantial gainful activity since July 22, 2015 at step one, the ALJ determined, at step two, 6 that Plaintiff “has the following severe impairments: morbid obesity, status-post tibia 7 fracture, asthma, bilateral knee arthritis, and lumbar degenerative disc disease with 8 stenosis.” (Id. at 19–20). 9 At step three, the ALJ concluded that Plaintiff’s impairments, singularly or in 10 combination, did not “meet[] or medically equal[] the severity of one of the listed 11 impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 12 404.1526, 416.920(d), 416.925 and 416.926).” (Id. at 20–21). Accordingly, the ALJ 13 conducted an RFC analysis and found that Plaintiff could perform “a limited range of light 14 work.” (Id. at 21–26). In doing so, the ALJ gave “little weight” to the opinions of Plaintiff’s 15 treating physician, “some weight” to the opinions of Plaintiff’s examining physicians, and 16 “significant weight” to the opinions of state agency nonexamining physicians. (Id. at 24– 17 26). 18 At step four, the ALJ determined that Plaintiff could perform past relevant work as 19 a collections clerk (DOT 216.362-014).” (Id. at 26). Thus, the ALJ determined that Plaintiff 20 had not been under a disability from July 1, 2015 through the date of the ALJ’s decision. 21 (Id. at 27). 22 II. LEGAL STANDARD 23 The ALJ’s decision to deny disability benefits may be overturned “only when the 24 ALJ’s findings are based on legal error or not supported by substantial evidence in the 25 record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 26 “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 27 i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 28 conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young 1 v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 2 “The inquiry here is whether the record, read as a whole, yields such evidence as 3 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 4 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is 5 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must 6 be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically 7 flowing from the evidence.” Id. (citations omitted); see Batson v. Comm’r of Soc. Sec. 8 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not 9 the reviewing court must resolve conflicts in the evidence, and if the evidence can support 10 either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 11 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Benton, 331 F.3d at 1035 (“If the 12 evidence can support either outcome, the Commissioner’s decision must be upheld.”). 13 The ALJ is responsible for resolving conflicts in medical testimony, determining 14 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 15 Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the 16 ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th 17 Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may not affirm 18 simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 19 625, 630 (9th Cir. 2007) (quotation omitted). The Court is not charged with reviewing the 20 evidence and making its own judgment as to whether Plaintiff is or is not disabled. See 21 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Rather, the Court’s inquiry is 22 constrained to the reasons asserted by the ALJ and the evidence relied upon in support of 23 those reasons. See id. 24 III. ANALYSIS 25 Plaintiff contends that there are two potential errors in the ALJ’s analysis: (1) The 26 ALJ erred when she failed to provide specific and legitimate reasons for assigning little 27 weight to the opinions of Dr. Narwani, Plaintiff’s treating physician, and significant weight 28 to the opinions of nonexamining physicians, and (2) the ALJ did not provide specific, clear, 1 and convincing reasons for rejecting Plaintiff’s symptom testimony. (Doc. 16). The Court 2 addresses each contention in turn. 3 A. Physician Opinions 4 Plaintiff argues that the ALJ erred when she failed to provide specific and legitimate 5 reasons for assigning little weight to the opinions of Dr. Narwani, Plaintiff’s treating 6 physician. (Doc. 16 at 12). Plaintiff also argues that this error was magnified by the fact 7 that the ALJ assigned significant weight to the opinions of Plaintiff’s nonexamining 8 physicians. (See id. at 17–19). 9 “If a treating or examining doctor’s opinion is contradicted by another doctor’s 10 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are 11 supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) 12 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). The ALJ must 13 also apply the factors set forth in 20 C.F.R. § 404.1527(c)(2)(i)–(ii) and (c)(3)–(6). “The 14 ALJ must do more than state conclusions. [She] must set forth [her] own interpretations 15 and explain why they, rather than the doctors’, are correct.” Garrison, 759 F.3d at 1012 16 (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). In other words, “an ALJ 17 errs when he rejects a medical opinion or assigns it little weight while doing nothing more 18 than ignoring it, asserting without explanation that another medical opinion is more 19 persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis 20 for his conclusion.” Id. at 1012–13. 21 1. Dr. Narwani 22 The ALJ stated that she gave little weight to Dr. Narwani’s assessments because the 23 medical evidence of record did not support the limitations opined on by Dr. Narwani and 24 “the record indicates that [Plaintiff] had significant improvement with treatment.” (Doc. 25 13-3 at 25). The ALJ additionally found that “the medical evidence of record indicate[d] 26 full motor strength and tone.” (Id.). 27 The ALJ justified assigning less weight to Dr. Narwani’s opinions by noting that 28 they were not supported by the medical evidence of record. (Id.). Dr. Narwani opined that 1 Plaintiff could: 2 lift and/or carry less than 10 pounds; stand and/or walk for less than 2 hours 3 in an 8-hour workday; sit for less than 2 hours in an 8-hour workday; needed to alternate between sitting, standing, or walking every 46 to 60 minutes, 4 with a 10 to 15 minute rest period between position changes; could less than 5 occasionally use his right hand, use his left hand, bend, reach, and stoop. He further opined that [Plaintiff] had cognitive or pace limitations that would 6 inhibit the completion of more than 1 and 2 step job duties over an 8 hours 7 [sic] workday and would cause a severe interruption of work pace with [Plaintiff] being off task; would experience headaches or mental fatigue more 8 than 4 times per month, such that [Plaintiff] would need to rest 1 to 2 hours 9 at a time on the days present; and would miss more than 6 days of work per month due to his medical condition. 10 11 (Id.). The ALJ noted, however, that the medical record indicates that Plaintiff had full 12 motor strength and tone. (Id. (citing Docs. 13-9 at 2–3, 14–15, 43; 13-10 at 84)). Further, 13 the ALJ found that the record indicated that Plaintiff “had significant improvement with 14 treatment, and even was able to reduce his pain medication.” (Doc. 13-3 at 25 (citing Docs. 15 13-9 at 20, 43, 65; 13-10 at 47, 52)). The ALJ also found that there was “no evidence to 16 support the extreme manipulative limitations” assessed by Dr. Narwani. (Doc. 13-3 at 25). 17 Further, in examining Plaintiff’s medical record, the ALJ cited records indicating 18 that Plaintiff consistently had “normal objective clinical examinations, including no acute 19 distress, full range of motion, normal strength, normal sensation, and no clubbing, 20 cyanosis, or edema,” (Docs. 13-3 at 22; 13-8 at 106, 109, 113–114, 116; 13-9 at 80, 83, 86, 21 89, 91, 93; 13-10 at 77), full motor strength and tone in all extremities, (Docs. 13-3 at 22; 22 13-9 at 3, 7, 11, 15, 19, 24, 31, 34, 37, 40, 43, 58, 65, 70, 75; 13-10 at 3–49, 55–72, 84, 89, 23 93), “good control of his pain, without side effects, from narcotic medication, trigger point 24 injections, transformational epidural steroid injections, medical branch blocks, and 25 radiofrequency ablation,” (Docs. 13-3 at 22; 13-9 at 2–44, 57–79; 13-10 at 2–76), normal 26 respiratory examinations, (Docs. 13-3 at 23; 13-8 at 106, 109, 113; 13-9 at 80, 83–93; 13- 27 10 at 77), and an ability to start “mild aerobic rehabilitative exercises,” (Docs. 13-3 at 25; 28 13-9 at 20; 13-10 at 35, 57, 85). 1 The ALJ also noted that, regarding Plaintiff’s reported pain, Plaintiff started 2 tapering his pain medication because his overall pain level had reduced, (Docs. 13-3 at 22– 3 23; 13-10 at 4, 9, 14), reported “over 65% relief from epidural steroid injections, 80% relief 4 from trigger point injections, greater than 80% relief from medical branch blocks, and 5 significant relief from radiofrequency ablation,” (Docs. 13-3 at 23; 13-9 at 65, 76; 13-10 6 at 47, 52, 57), reported improved pain levels due to core strengthening exercises, (Docs. 7 13-3 at 23; 13-10 at 9), reported 60%–80% pain relief in his lower limb due to a trial of 8 spinal cord stimulator which Plaintiff believed could allow him to come off of his pain 9 medications if replicated, (Docs. 13-3 at 23; 13-10 at 94), and received steroid injections 10 in his knees which provided significant relief, (Docs. 13-3 at 23; 13-10 at 17, 21, 26, 71). 11 The ALJ’s decision additionally demonstrates that she considered the relevant 12 factors set forth in 20 C.F.R. 404.1527(c) when weighing Dr. Narwani’s opinions. The ALJ 13 discussed the nature of the treatment relationship, noting that Dr. Narwani’s was Plaintiff’s 14 pain management specialist. (Doc. 13-3 at 25); see 20 C.F.R. 404.1527(c)(2). The ALJ also 15 considered the supportability and consistency of Dr. Narwani’s opinions with the record as 16 a whole. (Doc. 13-3 at 25); see 20 C.F.R. 404.1527(c)(3)–(4). Additionally, the ALJ noted 17 that Dr. Narwani’s specialty is pain management. (Doc. 13-3 at 25); see 20 C.F.R. 18 404.1527(c)(5). These considerations affirm the ALJ’s assertion that she considered the 19 relevant factors set forth in 20 C.F.R. 404.1527(c). (See Doc. 13-3 at 21). 20 Plaintiff asserts that the medical evidence cited by the ALJ supports, rather than 21 detracts from, Dr. Narwani’s opinions. (Id. at 13–17). Yet, it is not for this Court to second 22 guess the ALJ’s reasonable interpretation of the medical record because “where evidence 23 is susceptible to more than one rational interpretation, as it is here, it is the ALJ’s 24 conclusion that must be upheld.” Benear v. Comm’r of Soc. Sec. Admin., No. CV-17- 25 04160-PHX-JAT, 2019 WL 258345, at *6 (D. Ariz. Jan. 18, 2019), aff’d sub nom. Benear 26 v. Saul, 838 F. App’x 305 (9th Cir. 2021) (internal alterations and marks omitted). 27 Plaintiff next argues that the ALJ was not qualified to determine that the objective 28 medical record failed to support Dr. Narwani’s opinions. (Doc. 16 at 13–15). Instead, 1 Plaintiff argues, the interpretation of medical evidence is the role of doctors. (Id.). 2 However, when examining the medical record, “[r]esolving conflicts is the ALJ’s 3 responsibility and prerogative.” Owen v. Saul, 808 F. App’x 421, 423 (9th Cir. 2020). 4 Rather than usurp the role of a doctor, the ALJ used evidence in the record to resolve the 5 conflicts between the opinions of doctors. Thus, even as a lay person, the ALJ properly 6 weighed the evidence before her and provided specific and legitimate reasons for her 7 determinations. See Garrison, 759 F.3d at 1012. 8 Plaintiff then avers that the ALJ did not properly examine the whole record but 9 inappropriately engaged in “cherry-picking” to support her findings. (Doc. 16 at 15–16). 10 Yet, the ALJ here examined the medical record as a whole, including portions of the record 11 that supported her findings and portions that did not. (See, e.g., Doc. 13-3 at 22 (citing 12 portions of the record showing Plaintiff’s full range of motion, normal strength, and normal 13 sensation followed by portions of the record showing Plaintiff’s tenderness to palpitation, 14 limited range of motion, and palpable muscles spasms)). The Court finds that the medical 15 record as a whole is at least ambiguous as to Plaintiff’s symptoms. “[G]iven that the ALJ 16 is the ‘final arbiter with respect to resolving ambiguities in the medical evidence,’” the 17 Court finds that the ALJ did not engage in cherry-picking and defers to the ALJ’s findings 18 in this case. Singh v. Comm’r of Soc. Sec. Admin., No. CV-19-02315-PHX-MTM, 2020 19 WL 5757620, at *3 (D. Ariz. Sept. 28, 2020) (quoting Tommasetti v. Astrue, 533 F.3d 20 1035, 1041 (9th Cir. 2008)). 21 Further, Plaintiff asserts that, while the medical record shows stability in his 22 symptoms, stability does not mean he was symptom free. (Doc. 16 at 15–16). Yet, Plaintiff 23 admits that the record reflects improvement and stability in his pain from medication and 24 pain management procedures. (See id. at 15). While Plaintiff is correct that some 25 improvements and stability in medical conditions do not mean that a party is symptom free, 26 see Petty v. Astrue, 550 F. Supp. 2d 1089, 1099 (D. Ariz. 2008), the improvements in 27 Plaintiff’s symptoms support the ALJ’s ultimate decision to give little weight to the 28 opinions of Dr. Narwani. See Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are 2 not disabling for purposes of determining eligibility for SSI benefits.”). 3 Finally, Plaintiff argues that “the ALJ rejected Dr. Narwani’s assessment based on 4 the ALJ’s belief the evidence did not support Dr. Narwani’s assessed manipulative 5 limitations.” (Doc. 16 at 17). The ALJ, however, did not “reject” Dr. Narwani’s opinions 6 based on the assessed manipulative limitations, but merely found that the lack of evidence 7 to support Dr. Narwani’s “extreme manipulative limitations” supported the ALJ’s decision 8 to give little weight to Dr. Narwani’s opinion. (See Doc. 13-3 at 25). Plaintiff cites, and the 9 Court finds, no evidence to support Dr. Narwani’s opined manipulative limitations. Thus, 10 while an ALJ errs by discounting a medical source’s entire testimony because of a single 11 inconsistency with a record, see Dale v. Colvin, 823 F.3d 941, 945 (9th Cir. 2016), the ALJ 12 here did not err by simply supporting her decision to give Dr. Narwani’s opinion little 13 weight by noting the absence of certain evidence. 14 Ultimately, the ALJ did not err in giving minimal weight to Plaintiff’s treating 15 physician after analyzing the entire medical record and determining that it did not support 16 Dr. Narwani’s opinions. See Batson, 359 F.3d at 1195 (holding an ALJ did not err in giving 17 minimal weight to the opinions of plaintiff’s treating physicians, in part, because they were 18 not supported by the medical record as a whole); Benear 2019 WL 258345, at *12 (same); 19 Hermiz v. Berryhill, No. 318CV01035BENKSC, 2019 WL 3780271, at *18 (S.D. Cal. 20 Aug. 9, 2019), report and recommendation adopted, No. 318CV01035BENKSC, 2019 WL 21 4016451 (S.D. Cal. Aug. 26, 2019) (same). 22 2. Nonexamining Physicians 23 The ALJ gave substantial weight to the opinions of nonexamining physicians who 24 found that Plaintiff could perform activities beyond those opined by Dr. Narwani. (Doc. 25 13-3 at 24). The ALJ gave substantial weight to these opinions because she found they 26 were “consistent with the medical evidence of record.” (Id.). Plaintiff argues that the ALJ 27 erred when she gave substantial weight to these opinions while giving little weight to the 28 opinions of Dr. Narwani. (Doc. 16 at 17–19). 1 In determining whether a party is disabled, ALJs are required to consider the record 2 medical opinions together with the other relevant evidence. 20 C.F.R. § 404.1527(b)–(c). 3 When deciding how much weight to give a medical opinion, the ALJ considers numerous 4 factors, including the supportability of that medical opinion. 20 C.F.R. § 404.1527(c)(3). 5 “Generally, the more consistent a medical opinion is with the record as a whole, the more 6 weight [an ALJ] will give to that medical opinion.” 20 C.F.R. § 404.1527(c)(4). 7 “‘[T]he findings of a nontreating, nonexamining physician can amount to substantial 8 evidence, so long as other evidence in the record supports those findings.’” Fliss v. Astrue, 9 284 F. App’x 440, 442 (9th Cir. 2008) (quoting Saelee v. Chater, 94 F.3d 520, 522 (9th 10 Cir. 1996)). The rejection of the opinion of an examining or treating physician may be 11 based in part on the testimony of a nontreating, nonexamining medical advisor, when 12 consistent with other independent evidence in the record. Shafer v. Barnhart, 120 F. App’x 13 688, 694 (9th Cir. 2005) (citing Morgan v. Apfel, 169 F.3d 595, 602 (9th Cir. 1999)). “The 14 ALJ can meet this burden by setting out a detailed and thorough summary of the facts and 15 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 16 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 17 Here, the ALJ set out a detailed and thorough summary of the facts and clinical 18 evidence that she believed supported the opinions of the nonexamining physicians and 19 conflicted with the opinions of Dr. Narwani. (Doc. 13-3 at 22–26). She did not find that 20 the opinions of the nonexamining physicians alone amounted to substantial evidence, but 21 that they were due substantial weight in light of the supporting record evidence. (See id. at 22 24–25). While the ALJ’s decision to give little weight to Dr. Narwani’s opinion may have 23 been based in part on the opinions of nonexamining physicians, this rejection was 24 supported by substantial evidence in the medical record. See supra Section III.A.1. 25 Plaintiff argues that the ALJ found that the nonexamining physicians’ opinions 26 “cancelled out” Dr. Narwani’s opinions. (Doc. 16 at 18). This, however, is a 27 mischaracterization of the ALJ’s findings. The ALJ did not use the nonexamining 28 physicians’ opinions to cancel out Dr. Narwani’s opinions, but instead gave Dr. Narwani’s 1 opinions little weight finding them to be unsupported by the record, including the objective 2 medical evidence. (See Doc. 13-3 at 24–25). 3 Plaintiff further asserts that the ALJ did not adequately explain why the opinions of 4 nonexamining physicians, some of whom did not examine the full record, were elevated 5 above the opinions of a treating physician. (Doc. 16 at 18–19). To begin, ALJ’s are required 6 to consider all the available medical evidence when determining if a party is disabled, 7 including the opinions of nonexamining physicians. See 20 C.F.R. § 404.1527(b)–(c). 8 While an ALJ should take into account whether a physician has reviewed a full or partial 9 medical record when weighing medical opinions, the opinions of a physician who has only 10 reviewed a partial record may still be considered by an ALJ. See 20 C.F.R. 11 § 404.1527(c)(6). Additionally, the ALJ explained that the opinions of the nonexamining 12 physicians were given substantial weight because they comported with the objective 13 medical evidence. (Doc. 13-3 at 24–25). 14 Accordingly, the ALJ did not err in giving substantial weight to the opinions of 15 nonexamining physicians after finding that those opinions were supported by the objective 16 medical record. See Fliss, 284 F. App’x at 442 (holding that the ALJ did not err in relying 17 on the opinions of nonexamining physicians that contradicted treating physician opinions 18 because the medical evidence supported the opinions of the nonexamining physicians); 19 Cameron v. Astrue, No. CV 07-8167-PCT-NVW, 2008 WL 4850023, at *7–8 (D. Ariz. 20 Nov. 7, 2008) (holding that the ALJ did not err in relying on the opinions of nonexamining 21 physicians over the opinions of treating physicians); Darrington v. Astrue, No. CV11- 22 0953-PHX-DGC, 2012 WL 79276, at *7 (D. Ariz. Jan. 11, 2012) (holding the ALJ did not 23 err in giving great weight to opinions of a nonexamining physician because the opinions 24 were supported by the medical record). 25 B. Symptom Testimony 26 Plaintiff argues that the ALJ erred when evaluating his subjective symptom 27 statements. (Doc. 16 at 19–24). The ALJ determined that Plaintiff’s “medically 28 determinable impairments could reasonably be expected to cause the alleged symptoms; 1 however, [Plaintiff’s] statements concerning the intensity, persistence and limiting effects 2 of these symptoms are not entirely consistent with the medical evidence and other evidence 3 in the record.” (Doc. 13-3 at 22). 4 1. Legal Standard 5 The Ninth Circuit has established a two-step analysis for an ALJ to determine 6 whether to credit a Plaintiff’s subjective symptom testimony. “First, the ALJ must 7 determine whether the Plaintiff has presented objective medical evidence of an underlying 8 impairment which could reasonably be expected to produce the pain or other symptoms 9 alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison, 759 10 F.3d at 1014–15). If the Plaintiff presents such evidence, the ALJ then evaluates the 11 Plaintiff’s subjective complaints. See id. “In evaluating the credibility of pain testimony 12 after a Plaintiff produces objective medical evidence of an underlying impairment, an ALJ 13 may not reject a Plaintiff’s subjective complaints based solely on a lack of medical 14 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 15 676, 680 (9th Cir. 2005). Instead, an ALJ must provide “specific, clear, and convincing 16 reasons” for doing so. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 17 2. Discussion 18 Plaintiff first argues that the ALJ applied an improper legal standard by requiring 19 Plaintiff’s symptoms to be “entirely consistent” with the objective medical evidence. (Doc. 20 16 at 20–22). Plaintiff further asserts that the ALJ improperly required Plaintiff to provide 21 medical evidence of the severity of Plaintiff’s symptoms. (Id.). 22 Although the Court agrees that Plaintiff is not required to provide medical evidence 23 of the severity of his symptoms, see Garrison, 759 F.3d at 1014–15, objective medical 24 evidence is a useful tool for an ALJ to assess Plaintiff’s credibility regarding the intensity 25 and persistence of his symptoms, see Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th 26 Cir. 2008) (holding that objective medical evidence was appropriately used to assess 27 credibility of plaintiff’s symptom testimony); Rollins v. Massanari, 261 F.3d 853, 857 (9th 28 Cir. 2001) (holding that medical evidence is “a relevant factor in determining the severity 1 of the claimant’s pain and its disabling effects). The Court does not read the ALJ’s “not 2 entirely consistent” statement, (Doc. 13-3 at 22), as requiring Plaintiff to fully corroborate 3 his symptom testimony with objective medical evidence. Instead, the ALJ’s statement 4 merely notes that the record contains conflicting evidence. The ALJ found this conflicting 5 evidence to be Plaintiff’s improvement through pain treatment and the objective medical 6 evidence. (Id. at 22–24). 7 a. Pain Treatment 8 When evaluating Plaintiff’s symptom testimony, the ALJ examined myriad 9 evidence regarding Plaintiff’s pain treatment and found “[t]his evidence indicates that 10 [Plaintiff’s] pain was not as severe as alleged” (Id. at 23). The ALJ also found that the 11 “evidence shows that [Plaintiff’s] pain improved with treatment.” (Id.). 12 Plaintiff asserts that this argument is belied by Plaintiff’s medical records which, in 13 fact, support Plaintiff’s symptom testimony. (Doc. 16 at 22–23). As discussed supra, 14 however, the ALJ cited portions of the record that show a medical plan of treatment through 15 pain medications and procedures that yielded improvement in Plaintiff’s conditions. See 16 supra Section III.A.1. At most the record is ambiguous as to Plaintiff’s improvement 17 through treatment, and, “given that the ALJ is the ‘final arbiter with respect to resolving 18 ambiguities in the medical evidence,’” the Court defers to the ALJ’s finding. Singh, 2020 19 WL 5757620, at *3 (quoting Tommasetti, 533 F.3d at 1041). Because the ALJ determined 20 that Plaintiff’s condition improved through treatment, including medications and pain 21 management procedures, the Court finds that the ALJ did not err in discounting Plaintiff’s 22 symptom testimony on this basis. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 23 (“evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony 24 regarding severity of an impairment.”) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 25 Cir. 1995)); see also Singh., 2020 WL 5757620, at *2–3 (affirming ALJ’s discounting of 26 plaintiff’s testimony, in part, because plaintiff’s conditions improved with medication). 27 b. Medical Evidence 28 The ALJ additionally found that Plaintiff’s “statements concerning the intensity, 1 persistence and limiting effects of [his] symptoms are not entirely consistent with the 2 medical evidence.” (Doc. 13-3 at 22). The ALJ went on to discuss the medical evidence 3 she found inconsistent citing records indicating that Plaintiff had full motor strength and 4 tone, saw significant improvement with treatment, was able to reduce his pain medication, 5 and normal respiratory examinations. See supra Section III.A.1. 6 Plaintiff argues that the ALJ did not “tie-in the characterization of the medical 7 record with any particular symptom testimony.” (Doc. 16 at 22). The ALJ, however, 8 specifically noted that the medical records did not support Plaintiff’s testimony regarding 9 his alleged limitations due to back pain, (Doc. 13-3 at 22), his alleged disabling pain 10 generally, (id. at 22–23), his lower extremity impairments, (id. at 23), and his respiratory 11 issues, (id.). Thus, the Court finds the ALJ sufficiently tied her characterization of the 12 medical record to Plaintiff’s symptom testimony. See Lewis v. Comm’r of Soc. Sec. Admin., 13 No. CV-20-00765-PHX-MTL, 2021 WL 791467, at *4 (D. Ariz. Mar. 2, 2021) (finding 14 that ALJ, by citing specific instances throughout a multi-year period, adequately tied 15 countervailing medical record to plaintiff’s symptom testimony when discounting that 16 testimony); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 17 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 18 subjective testimony.”). 19 3. Conclusion Regarding Symptom Testimony 20 Because the ALJ provided specific and legitimate reasons for discounting Plaintiff’s 21 symptom testimony, including Plaintiff’s improvement through treatment and the objective 22 medical evidence, the Court will not overturn the denial of disability benefits on this 23 ground. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJ’s 24 credibility finding is supported by substantial evidence in the record, we may not engage 25 in second-guessing.”). 26 IV. CONCLUSION 27 Accordingly, 28 /// 1 IT IS ORDERED that the ALJ’s decision is AFFIRMED. The Clerk of the Court 2|| shall enter judgment accordingly. 3 Dated this 28th day of June, 2021. 4 5 ' ° 7 = James A. C rg Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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