1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Christy Lynn Bell, No. CV-22-01816-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 14 Defendant. 15 Pending before the Court is Plaintiff Christy Lynn Bell’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) final decision denying 17 social security disability benefits. (Doc. 1). The appeal is fully briefed (Docs. 22, 25, 30), 18 and the Court now rules. 19 I. BACKGROUND 20 The issues presented in this appeal are: 21 1. Whether the Administrative Law Judge (“ALJ”) failed to give clear and convincing 22 evidence to reject Plaintiff’s symptom testimony. 23 2. Whether the ALJ properly assessed medical opinion evidence from multiple 24 sources. 25 3. Whether the ALJ erred in assessing Plaintiff’s residual functioning capacity 26 (“RFC”) without considering certain alleged restrictions and limitations. 27 4. Whether the ALJ erred in relying on the vocational expert’s testimony in 28 determining whether Plaintiff could make a successful transition to other work. 1 (Doc. 22 at 11). 2 A. Factual Overview 3 Plaintiff was forty-four years old on her alleged disability onset date of April 3, 4 2014. (AR 268). She had completed high school and reported past work as a lab assistant 5 and phlebotomist. (Doc. 22 at 2). On February 28, 2017, Plaintiff filed her application for 6 disability insurance benefits under Title II of the Social Security Act (“the Act”). (Id.) 7 Plaintiff alleged she suffered from the combined effects of a number of physical and mental 8 impairments, including liver cirrhosis, bipolar disorder, depression, back pain, diabetes, 9 foot pain, ankle pain, respiratory impairments, and an enlarged heart. (Id.) She had a date- 10 last-insured under the Act of December 31, 2015. (Id.) At the reconsideration level, 11 Plaintiff was approved for supplemental security income (“SSI”) and found disabled as of 12 August 24, 2017, but for purposes of her Title II claim (“DIB”), she had to prove disability 13 on or before her date last insured. (Doc. 27 at 2). Therefore, in order to be entitled to DIB, 14 Plaintiff had the burden of proving that she became disabled between April 3, 2014, and 15 December 31, 2015. (Id.) 16 The SSA denied Plaintiff’s DIB application initially and on reconsideration. (Id.) 17 Plaintiff requested a hearing before an ALJ, which was held via telephone on August 25, 18 2021. (Doc. 13-1 at 29). The ALJ issued a partially favorable decision on September 2, 19 2021, affirming Plaintiff’s SSI disability finding as August 24, 2017, but denying 20 Plaintiff’s DIB claim. (Id. at 47). The SSA Appeals Council denied Plaintiff’s request for 21 review and adopted that decision as the SSA’s final decision. (Doc. 27 at 2). Plaintiff then 22 sought review in this Court. (Doc. 1). 23 B. The SSA’s Five-Step Evaluation Process 24 To qualify for social security disability insurance benefits, a claimant must show 25 that she “is under a disability.” 42 U.S.C. § 423(a)(1)(E). To be “under a disability,” the 26 claimant must be unable to engage in “substantial gainful activity” due to any medically 27 determinable physical or mental impairment that can be expected to result in death or that 28 has lasted or can be expected to last for a continuous period of not less than twelve months. 1 Id. § 423(d)(1). The impairment must be of such severity that the claimant cannot do her 2 previous work or any other substantial gainful work within the national economy. Id. 3 § 423(d)(2). The SSA has created a five-step sequential evaluation process for determining 4 whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(1). The steps are followed 5 in order, and each step is potentially dispositive. See id. § 404.1520(a)(4). 6 At step one, the ALJ determines whether the claimant is engaging in “substantial 7 gainful activity.” Id. § 404.1520(a)(4)(i). “Substantial gainful activity” is work activity that 8 is (1) “substantial,” e.g., doing “significant physical or mental activities;” and (2) “gainful,” 9 e.g., usually done “for pay or profit.” 20 C.F.R. § 416.972(a)(b). If the claimant is engaging 10 in substantial gainful work activity, the ALJ will find the claimant is not disabled. Id. 11 § 404.1520(a)(4)(i). 12 At step two, the ALJ determines whether the claimant has “a severe medically 13 determinable physical or mental impairment” or severe “combination of impairments.” Id. 14 § 404.1520(a)(4)(ii). To be “severe,” the claimant’s impairment must “significantly limit” 15 the claimant’s “physical or mental ability to do basic work activities.” Id. § 404.1520(c). 16 If the claimant does not have a severe impairment or combination of impairments, the ALJ 17 will find the claimant is not disabled. Id. § 404.1520(a)(4)(ii). 18 At step three, the ALJ determines whether the claimant’s impairment(s) “meets or 19 equals” an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. 20 § 404.1520(a)(4)(iii). If so, the ALJ will find the claimant is disabled, but if not, the ALJ 21 must assess the claimant’s “residual functional capacity” (“RFC”) before proceeding to 22 step four. Id. §§ 404.1520(a)(4)(iii), 404.1520(e). The claimant’s RFC is her ability to do 23 physical and mental work activities “despite [her] limitations,” based on all relevant 24 evidence in the case record. Id. § 404.1545(a)(1). To determine RFC, the ALJ must 25 consider all the claimant’s impairments, including those that are not “severe,” and any 26 related symptoms that “affect what [the claimant] can do in a work setting.” Id. 27 §§ 404.1545(a)(1)–(2). 28 At step four, the ALJ determines whether the claimant has the RFC to perform the 1 physical and mental demands of “[her] past relevant work.” Id. §§ 404.1520(a)(4)(iv), 2 404.1520(e). “Past relevant work” is work the claimant has “done within the past 15 years, 3 that was substantial gainful activity.” Id. § 404.1560(b)(1). If the claimant has the RFC to 4 perform her past relevant work, the ALJ will find the claimant is not disabled. Id. 5 § 404.1520(a)(4)(iv). If the claimant cannot perform her past relevant work, the ALJ will 6 proceed to step five in the sequential evaluation process. 7 At step five, the last in the sequence, the ALJ considers whether the claimant “can 8 make an adjustment to other work,” considering her RFC, age, education, and work 9 experience. Id. § 404.1520(a)(v). If so, the ALJ will find the claimant not disabled. Id. If 10 the claimant cannot make this adjustment, the ALJ will find the opposite. Id. 11 C. The ALJ’s Application of the Factors 12 Here, at step one, the ALJ concluded that Plaintiff “did not engage in substantial 13 gainful activity during the period from her alleged onset date of April 3, 2014 through her 14 date last insured of December 31, 2015.” (Doc. 13-1 at 32). 15 At step two, the ALJ determined the following impairments were “severe”: 16 multilevel degenerative disc disease (DDD), Haglund’s deformity, left Achilles’ tendonitis 17 with debridement and osteotomy, cirrhosis of the liver, obesity, depressive disorder, 18 anxiety disorder, and alcohol abuse. (Id.) The ALJ found that Plaintiff’s severe 19 impairments “significantly limited the ability to perform basic work activities.” (Id.) The 20 ALJ also determined that Plaintiff had non-severe impairments of thrombocytopenia 21 associated with alcohol use and diabetes mellitus. (Id.) The ALJ found these impairments 22 non-severe because Plaintiff claims to be sober and her “diabetes appeared to be controlled 23 when she was compliant with her medication.” (Id. at 32–33). 24 At step three, the ALJ concluded that Plaintiff did not have an impairment or 25 combination of impairments that met or medically equaled the severity of one of the listed 26 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 33). The ALJ determined 27 that Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. 404.1567(a) except she was able to stand and walk for intervals of 30 minutes for a total 28 of at least four hours per day and sit for intervals of 30 minutes for at least 1 six to eight hours per day. She could [perform] work that required occasional climbing, balancing, and stooping; but no kneeling or crawling. She needed 2 to avoid work on ladders, ropes, or scaffolds, and uneven terrain. She may 3 have had a need to use a cane on an occasional basis for ambulation. She needed to avoid concentrated exposure to hazards. From a mental standpoint, 4 she was limited to simple routine tasks. 5 (Id. at 36). 6 At step four, the ALJ determined that Plaintiff was not capable of performing past 7 work as a phlebotomist because it is a light, semi-skilled job that would be above Plaintiff’s 8 RFC of sedentary work. (Id. at 45). 9 At step five, the ALJ determined that Plaintiff could have made a successful 10 adjustment to other work. (Id. at 45). In making this determination, the ALJ consulted a 11 vocational expert (“VE”) because Plaintiff’s “ability to perform all or substantially all of 12 the requirements of [sedentary] work was impeded by additional limitations.” (Id.) The VE 13 testified that given all the factors of Plaintiff’s age, education, work experience, and RFC, 14 she would be able to perform the requirements of representative unskilled sedentary work 15 occupations such as an inspector, sorter, or assembler. (Id. at 46). Accordingly, the ALJ 16 found Plaintiff has not been under a disability—as defined in the Social Security Act— 17 prior to August 24, 2017, and was also not under a disability at any time from April 3, 18 2014, through December 31, 2015, the date last insured. (Id.) 19 II. LEGAL STANDARD 20 This Court may not set aside a final denial of disability benefits unless the ALJ 21 decision is “based on legal error or not supported by substantial evidence in the record.” 22 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Benton ex rel. Benton v. 23 Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). Substantial evidence refers to “such 24 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 25 Id. (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 26 1988)). The Court, in its review, must consider the record in its entirety, “weighing both 27 the evidence that supports and evidence that detracts from the [ALJ’s] conclusion.” Id. 28 (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). 1 The ALJ—not this Court—is responsible for resolving ambiguities, resolving conflicts in 2 medical testimony, determining credibility, and drawing logical inferences from the 3 medical record. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing 4 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Gallant v. Heckler, 753 F.2d 5 1450, 1453 (9th Cir. 1984)). Therefore, when the evidence of record could result in more 6 than one rational interpretation, “the ALJ’s decision should be upheld.” Orn v. Astrue, 495 7 F.3d 625, 630 (9th Cir. 2007). Further, this Court may only review the reasons the ALJ 8 provides in the disability determination; it “may not affirm the ALJ on a ground upon which 9 he did not rely.” Garrison, 759 F.3d at 1010. 10 III. DISCUSSION 11 Plaintiff raises four claims of error in the ALJ’s decision: (1) the ALJ did not 12 properly consider Plaintiff’s symptom testimony; (2) the ALJ did not properly consider the 13 opinions of Dr. Samyukthas, Dr. Reynolds, S. Gregory, and Nurse Practitioner (“N.P.”) 14 Pupillo; (3) the ALJ did not adequately explain the omission of particular alleged 15 restrictions in the RFC determination; and (4) the ALJ erred in relying on the VE’s 16 testimony because the jobs listed by the VE don’t have as many job available as those cited 17 by the VE. (Doc. 22). 18 A. Plaintiff’s Symptom Testimony 19 In assessing the credibility of a claimant’s testimony regarding subjective pain or 20 the intensity of her symptoms, the ALJ must engage in a two-step analysis. Molina v. 21 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, as a threshold matter, “the ALJ must 22 determine whether the claimant has presented objective medical evidence of an underlying 23 impairment ‘which could reasonably be expected to produce the pain or other symptoms 24 alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 25 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant meets the first test, 26 then “the ALJ ‘may not discredit a claimant’s testimony of pain and deny disability benefits 27 solely because the degree of pain alleged by the claimant is not supported by objective 28 medical evidence.’” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (quoting Bunnell, 1 947 F.2d at 346–47). Rather, “unless an ALJ makes a finding of malingering based on 2 affirmative evidence thereof,” the ALJ may only find the claimant not credible by making 3 specific findings supported by the record that provide clear and convincing reasons to 4 explain her credibility evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 5 2006) (citing Smolen v. Chater, 80 F.3d 1273, 1283–84 (9th Cir. 1996)); Lingenfelter, 6 504 F.3d at 1036. An adverse credibility finding is sufficiently specific if the ALJ identifies 7 “what testimony is not credible and what evidence undermines the claimant’s complaints.” 8 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). 9 In assessing credibility, the ALJ may consider, among other factors, “(1) ordinary 10 techniques of credibility evaluation, such as the claimant’s reputation for lying, prior 11 inconsistent statements concerning the symptoms, and other testimony by the claimant that 12 appears less than candid; (2) unexplained or inadequately explained failure to seek 13 treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily 14 activities.” Ghanim, 763 F.3d at 1163 (citation omitted). If the ALJ relies on these factors, 15 and her reliance is supported by substantial evidence, the Court “may not engage in second- 16 guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Thomas v. 17 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). 18 i. Physical Symptoms 19 Plaintiff first argues that the ALJ failed to provide clear and convincing reasons to 20 reject Plaintiff’s testimony about her physical symptoms. (Doc. 22 at 11). Plaintiff asserts 21 that the ALJ provided “boilerplate” language in rejecting Plaintiff’s testimony and that the 22 ALJ’s focus on Plaintiff’s improved symptoms after her heel surgery and back injections 23 did not constitute as clear and convincing reasons to reject Plaintiff’s symptom testimony. 24 (Id.) 25 Regarding Plaintiff’s physical symptoms, the ALJ first found that Plaintiff presented 26 objective medical evidence of an underlying impairment which could reasonably be 27 expected to produce the pain or other symptoms alleged and did not find that Plaintiff was 28 malingering. (Doc. 13-1 at 37). Because the ALJ did not find that Plaintiff was 1 malingering, the Court must determine whether the ALJ gave specific, clear, and 2 convincing reasons for partly discrediting her symptom testimony. Regarding Plaintiff’s 3 physical symptoms, the ALJ opined: In terms of the claimant’s alleged physical impairments, there is minimal 4 objective medical evidence to support the claimant’s complaints prior to 5 December 31, 2015. The claimant did undergo previous surgeries for her Achilles’ tendonitis including debridement and osteotomy, which certainly 6 suggests that her symptoms were genuine. While that fact would normally 7 weigh in the claimant’s favor, it is offset by the fact that the record reflects improvement in her symptoms subsequent to these surgeries. She had 8 improvement in her liver function with treatment. Radiological lumbar 9 findings are mild, and she also had improvement in her back pain with injections. While it is understood she would be somewhat limited in physical 10 functioning, there is no indication that she would not have been able to 11 perform sedentary work with limitations as noted in the above residual functional capacity. 12 (Doc. 31-1 at 39–40). 13 As for the improvement in Plaintiff’s heel symptoms, Plaintiff points to her 14 November 2014 emergency room visit for heel pain as evidence that proved she didn’t 15 have improvement in her symptoms. (Doc. 22 at 13). However, at that emergency room 16 visit, Plaintiff reported having recently twisted her ankle. (Doc 13-1 at 38). Two months 17 later, as pointed out by the ALJ, Plaintiff returned for re-evaluation of her foot and reported 18 improved symptoms, a well-healed incision, and good range of motion of the ankle. (Id.) 19 However, in September 2015, Plaintiff was seen by orthopedics with bilateral foot pain and 20 scar tissue in her ankle. (Id. at 39). Although there is evidence of both improvement and 21 recurring pain in the record, it is not this Court’s role to second-guess the ALJ’s 22 determination of Plaintiff’s credibility and the degree to which her improvement impacted 23 her RFC. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Thomas v. 24 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). Because there was substantial evidence of 25 improvement in the record, this was a specific, clear, and convincing reason to partially 26 discredit Plaintiff’s symptom testimony. 27 Similarly, the ALJ examined the history of Plaintiff’s back pain and observed that 28 once Plaintiff received injections, she reported improved symptoms. (Doc. 13-1 at 39). Six 1 months later, Plaintiff had a normal physical exam and normal gait. (Id.) Like Plaintiff’s 2 heel, the improvement in Plaintiff’s back pain with injections constituted a clear, 3 convincing and specific reason that was supported by substantial evidence. Thus, the Court 4 finds that the ALJ grounded her partial discrediting of Plaintiff’s physical symptom 5 testimony with clear, convincing, and specific reasons supported by substantial evidence. 6 ii. Mental Symptoms 7 Similar to her physical symptoms, Plaintiff also argues the ALJ failed to provide 8 clear and convincing reasons to reject Plaintiff’s testimony about her mental symptoms. 9 (Doc. 22 at 15). Plaintiff asserts that the ALJ’s reasoning for rejecting Plaintiff’s symptom 10 testimony was insufficient. (Id. at 15–16). Regarding Plaintiff’s mental symptoms, the ALJ 11 first found that Plaintiff presented objective medical evidence of an underlying impairment 12 which could reasonably be expected to produce the symptoms alleged and did not find that 13 Plaintiff was malingering. (Doc. 13-1 at 37). In assessing her mental symptoms, the ALJ 14 opined: In terms of the claimant’s mental impairments, it should be noted that the 15 claimant was not entirely compliant in taking medications as prescribed. 16 While she did have a couple of inpatient hospitalizations, her symptoms improved when she started taking her medications as prescribed and during 17 periods of alleged sobriety. . . . Although the claimant received various 18 forms of treatment for the allegedly disabling symptoms, which would normally weigh somewhat in the claimant’s favor, the record also reveals 19 that the treatment was generally successful in controlling those symptoms. 20 There is evidence that the claimant was not entirely complaint in taking prescribed medications, which suggests that the symptoms may not have 21 been as limiting as the claimant has alleged in connection with this 22 application. 23 (Id. at 41). 24 Plaintiff cites two Ninth Circuit cases that she asserts supports the notion that her 25 failure to comply with prescribed medication and treatment is insufficient evidence to 26 discount her subjective symptom testimony. (Doc. 22 at 15). However, both quotes from 27 those cases concern the analysis of a treating doctor’s opinions about a claimant rather than 28 a claimant’s own symptom testimony. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1 1996); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). Moreover, in Nguyen 2 the claimant sought mental health treatment “late in the game” rather than not complying 3 with the medications and recommendations of the mental health provider. 100 F.3d 4 at 1465. These cases are distinguishable. The ALJ rejected Plaintiff’s symptom testimony 5 in part due to her not following a prescribed course of treatment despite it improving her 6 symptoms. This is a permissible reason to reject Plaintiff’s testimony under Ghanim. 763 7 F.3d at 1163. The ALJ cited substantial evidence of improvement in Plaintiff’s symptoms 8 when she complied with the prescribed course of treatment, a clear and convincing reason 9 to reject Plaintiff’s symptom testimony. (See Doc. 13-1 at 40–41 (noting that January, July, 10 and September 2015 mental status examinations revealed normal findings, such as 11 euthymic mood, good concentration, and fair insight and judgment)). Accordingly, the 12 Court finds that the ALJ grounded her partial discrediting of Plaintiff’s mental symptom 13 testimony with clear, convincing, and specific reasons supported by substantial evidence. 14 As an aside, Plaintiff takes issue with the way in which the ALJ addressed Plaintiff’s 15 daily activities. (See Doc. 22 at 18). However, the ALJ rejected Plaintiff’s subjective 16 symptom testimony on other permissible grounds and thus, even if the ALJ erred by 17 rejecting Plaintiff’s testimony about her daily activities in an overly broad manner, any 18 error is harmless. 19 B. Medical Opinions 20 Next, Plaintiff argues that the ALJ did not properly weigh four different medical 21 source opinions. 22 In social security cases, there are three types of medical opinions: “those from 23 treating physicians, examining physicians, and non-examining physicians.” Valentine v. 24 Comm’r, 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “The medical opinion of a 25 claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported 26 by medically acceptable clinical and laboratory diagnostic techniques and is not 27 inconsistent with the other substantial evidence in [the claimant’s] case record.’” Trevizo 28 v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). ALJs 1 generally give more weight to medical opinions from treating physicians “since these 2 sources are likely to be the medical professionals most able to provide a detailed, 3 longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique 4 perspective to the medical evidence that cannot be obtained from the objective medical 5 findings alone or from reports of individual examinations . . . .” 20 C.F.R. 6 §§ 404.1527(c)(2), 416.927(c)(2). Thus, the opinion of a treating source is generally given 7 more weight than the opinion of a doctor who does not treat the claimant. Lester v. Chater, 8 81 F.3d 821, 830 (9th Cir. 1995). Should the ALJ decide not to give the treating physician’s 9 medical opinion controlling weight, the ALJ must weigh it according to factors such as the 10 nature, extent, and length of the physician-patient relationship, the frequency of 11 evaluations, whether the physician’s opinion is supported by and consistent with the record, 12 and the specialization of the physician. Trevizo, 871 F.3d at 676; see 20 C.F.R. 13 §§ 404.1527(c)(2), 416.927(c)(2). 14 Although a “treating physician’s opinion is entitled to ‘substantial weight,’” Bray, 15 554 F.3d at 1228 (citation omitted), it is “not binding on an ALJ with respect to the 16 existence of an impairment or the ultimate determination of disability.” Batson v. Comm’r 17 of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Rather, an ALJ may reject the 18 uncontradicted opinion of a treating physician by stating “clear and convincing reasons that 19 are supported by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 20 (9th Cir. 2008) (citation omitted). “If a treating or examining doctor’s opinion is 21 contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific 22 and legitimate reasons that are supported by substantial evidence.” Id. (citation omitted). 23 Nevertheless, “[t]he ALJ need not accept the opinion of any physician, including a treating 24 physician, if that opinion is brief, conclusory, and inadequately supported by clinical 25 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 26 i. Dr. Samyukthas 27 In December 2019, Dr. Samyukthas completed a checkbox form stating that 28 Plaintiff was able to lift and carry less than ten pounds, sit for two hours, and stand or walk 1 for less than two hours in a workday. (AR at 2747–48). She opined that these conditions 2 were in existence on or before December 31, 2015, and declined to provide an explanation 3 or further detail beyond a general indication that these limitations resulted from objective, 4 clinical, or diagnostical findings. (Id.) 5 The ALJ gave little weight to the opinions of Dr. Samyukthas because “they are 6 inconsistent with physical exam and radiologic findings noting improvement in the 7 claimant’s symptoms noting improvement in the claimant’s symptoms with surgery and 8 injections. (Exhibits 2F, 6F, 7F, 9F, 28F).” (Doc. 13-1 at 43). As previously discussed, the 9 record supported the ALJ’s finding that Plaintiff’s symptoms improved with surgery and 10 injections. Dr. Samyukthas did not provide any explanation for her conclusions. The ALJ 11 cited a number of different exhibits that supports her conclusion that Dr. Samyukthas’ 2019 12 opinion conflicts with the objective medical evidence and evidence of Plaintiff’s 13 improvement as a result of surgery and injections. These exhibits were discussed in detail 14 earlier in the ALJ’s decision and showed normal gait, full strength, and improved pain in 15 Plaintiff’s ankle. See Lewis v. Apfel, 236 F.3d 503, 513–14 (9th Cir. 2001) (finding that the 16 ALJ “discussed and evaluated the evidence,” and was not required to do so under any 17 particular heading). The ALJ did not state whether Dr. Samyukthas’ opinions were 18 contradicted, but regardless, the ALJ gave clear and convincing reasons supported by 19 substantial evidence for giving the opinions little weight. 20 ii. Dr. Reynolds and S. Gregory 21 In December 2017, Dr. Reynolds completed a checkbox form stating that Plaintiff 22 was unable to work, and she could not lift or carry more than ten pounds and could not 23 stand or sit for more than two hours. (AR 1939–40). Unlike Dr. Samyuthkas, Dr. Reynolds 24 did not indicate that she conditions were in existence on or before December 31, 2015. (Id.) 25 Plaintiff argues that the ALJ erred in not assigning a weight to the opinion, and Smith v. 26 Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988), stands for the premise that the ALJ must 27 analyze a post-date-last-insured opinion and explain whether or not it relates back to the 28 date last insured. (Doc. 22 at 23). 1 The Court does not agree with Plaintiff’s interpretations of Bowen. Although the 2 Bowen court said that medical opinions subsequent to the last date of eligibility may be 3 relevant evidence in determining the existence of an underlying disability, it did not state 4 that they would be relevant in all cases or that an ALJ must give an explanation of whether 5 the opinions relate back to the date of last insured. 849 F.2d at 1225–26. Regardless, the 6 ALJ did explain that the opinions of Dr. Reynolds were related to the SSI claim rather than 7 Plaintiff’s DIB claim because they show a significantly worsened condition than in 2015 8 and no indication of how, when, or which impairments worsened during the relevant time 9 period for the DIB claim. This is sufficient explanation to reject the opinions of Dr. 10 Reynolds because they are not relevant to the underlying DIB claim. Further, Plaintiff 11 claims that the ALJ did not assign weight to Dr. Reynolds’ opinions, but the ALJ states 12 “none of these opinions are given any weight” with a sufficiently specific reference to Dr. 13 Reynolds opinions, among others. (See Doc. 13-1 at 36). 14 Similarly, in November 2019, S. Gregory completed a checkbox form stating that 15 Plaintiff had moderate to moderately severe mental health limitations. (AR at 2743–44). 16 The ALJ rejected S. Gregory’s opinions for the same reasons as Dr. Reynolds—“they were 17 provided subsequent to the claimant’s date last insured with no indication of when these 18 restrictions started or what evidence supported an earlier restriction.” (Doc. 13-1 at 36). 19 The same analysis above applies to S. Gregory’s opinion, although an opinion like this 20 might potentially be relevant under Bowen, it does not indicate any information about the 21 relevant time period being examined in this appeal. The Court finds that the ALJ gave clear 22 and convincing reasons supported by substantial evidence to reject the opinions of both Dr. 23 Reynolds and S. Gregory. 24 iii. N.P. Pupillo 25 Finally, Plaintiff asserts that the ALJ rejected N.P. Pupillo’s opinions with 26 conclusory language insufficient to withstand the substantial evidence standard. (Doc. 22 27 at 24). N.P. Pupillo is Plaintiff’s current therapist, and she gave an opinion of Plaintiff’s 28 mental impairment that ranged from moderately severe to severe. (AR at 2642). N.P. 1 Pupillo stated that these restrictions would have dated back to 2015. (Id.) Plaintiff ignores 2 the ALJ’s reasoning that “[o]ther mental health evidence received shows, that while the 3 claimant did have severe mental impairments, they improved when the claimant was 4 compliant with medication, and the claimant herself notes improvement in her symptoms 5 and advised that she was feeling ‘much better’ (Exhibits 2F, 12F, 24F).” (Doc. 13-1 at 43). 6 Although the ALJ used the fact that N.P. Pupillo had not seen Plaintiff in 2015 as part of 7 the reason she gave the opinions little weight, the ALJ also pointed out other 8 inconsistencies that led to her conclusion. The Court finds that the ALJ gave clear and 9 convincing reasons supported by substantial evidence to reject the opinions of N.P. Pupillo. 10 C. Omitted Restrictions 11 Plaintiff next argues that the ALJ erred by not including a need for leg elevation and 12 off-task limitations in the RFC. (Doc. 22 at 24–25). However, Plaintiff failed to prove that 13 these were needed limitations. The ALJ found Dr. Lorber to be the most persuasive of the 14 medical opinion evidence and he did not testify Plaintiff needed to elevate her legs, or that 15 Plaintiff would not be off task when changing positions from sitting to standing or walking. 16 (AR at 80–84). The ALJ properly rejected medical opinions that conflicted with the RFC 17 found and concluded that there was not sufficient evidence in the record requiring Plaintiff 18 to regularly elevate her legs to include that restriction in the RFC. It is not the duty of this 19 Court to second-guess the ALJ’s determinations of credibility. See Andrews, 53 F.3d 20 at 1039. The ALJ is not required to include restrictions that Plaintiff has failed to prove. 21 See Batson, 359 F.3d at 1197 (finding no error when ALJ did not incorporate claimant’s 22 properly rejected statements and testimony). The ALJ’s RFC finding was supported by 23 substantial evidence. 24 D. VE Testimony 25 Finally, Plaintiff claims that “the ALJ did not sufficiently consider the erosion of 26 job numbers given the highly restrictive residual functional capacity finding posed to the 27 [VE].” (Doc. 22 at 25). Defendant argues that Plaintiff has waived this issue because she 28 failed to raise it in the initial ALJ hearing and only raised it for the first time on appeal 1 before the SSA Appeals Council without any of the accompanying data she now presents 2 to this Court. (Doc. 27 at 19). Both parties cite Shaibi v. Berryhill, 883 F.3d 1102, 1108 3 (9th Cir. 2017), to support their respective positions. 4 In Shaibi, the court made clear how a claimant could preserve their challenge to a 5 VE’s job numbers. “It is enough to raise the job-numbers issue in a general sense before 6 the ALJ. A claimant may do so by inquiring as to the evidentiary basis for a VE's estimated 7 job numbers, or inquiring as to whether those numbers are consistent with . . . other sources 8 listed in 20 C.F.R. § 404.1566(d).” Shaibi, 883 F.3d at 1110. 9 Plaintiff cites another Ninth Circuit Court of Appeals case, White v. Kijakazi, 44 10 F.4th 828, 835 (9th Cir. 2022), as support for her argument that solely bringing the 11 challenge to the SSA Appeals Council and failing to raise the argument to the ALJ is 12 permissible and the challenge is preserved. (Doc. 30 at 12). However, White is 13 distinguishable. In that case, the plaintiff gave supporting data to the SSA Appeals Council 14 in their challenge to the VE’s job numbers. White, 44 F.4th at 832. Here, Plaintiff only gave 15 a cursory objection to the VE’s job numbers that included no alternative data or additional 16 evidence for SSA to consider. (See AR at 8–9). 17 A linchpin of the court’s holding in White was the fact that the plaintiff submitted 18 alternative job numbers to the SSA Appeals Council, while the case was still in 19 administrative proceedings. See White, 44 F.4th at 832 (reasoning “[u]nder SSA 20 regulations, a claimant has a right to submit additional evidence to the Appeals Council, 21 which the agency may choose to make part of the administrative record where it finds that 22 certain conditions are met” and concluding that the Appeals Council had adopted the 23 differing job numbers evidence when it stated White’s additional evidence was “part of the 24 record.”). Plaintiff has not done the same here. The job numbers Plaintiff has presented are 25 not part of the administrative record, and this Court is not inclined to extend the holding of 26 White. The Court holds that Plaintiff has waived her objection to the VE’s job numbers. 27 IV. CONCLUSION 28 For the foregoing reasons, 1 IT IS ORDERED that the ALJ’s decision is AFFIRMED. 2 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment || accordingly. 4 Dated this 8th day of January, 2024. 5
g James A. Teil Org Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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