1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXANDRA C., Case No.: 19cv0756-RBB
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT, REVERSAL OR 14 ANDREW M. SAUL, Commissioner of REMAND [ECF NOS. 10, 11] AND Social Security, 15 GRANTING DEFENDANT’S CROSS- Defendant. MOTION FOR SUMMARY 16 JUDGMENT [ECF NO. 17] 17 18 On April 24, 2019, Plaintiff Alexandra C.1 commenced this action against 19 Defendant Andrew M. Saul, Commissioner of Social Security, for judicial review under 20 42 U.S.C. § 405(g) of a final adverse decision for social security benefits [ECF No. 1]. 21 Defendant filed the Administrative Record on June 28, 2019 [ECF No. 8]. On August 2, 22 2019, Plaintiff filed a motion for summary judgment, reversal or remand [ECF Nos. 10, 23 11]. The Commissioner filed a cross-motion for summary judgment and an opposition to 24 25 26 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the Court's Civil Local 27 Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 1 Plaintiff’s motion on November 5, 2019 [ECF No. 17]. Plaintiff filed an opposition to 2 Defendant’s cross-motion and a reply on November 20, 2019 [ECF Nos. 19, 20]. 3 For the following reasons, Plaintiff's motion for summary judgment, reversal or 4 remand is DENIED and Defendant's cross-motion for summary judgment is 5 GRANTED. 6 I. BACKGROUND 7 On August 31, 2015, Plaintiff protectively filed an application for disability 8 insurance benefits under Title II of the Social Security Act. (Admin. R. 21, 140-41, ECF 9 No. 8.) 2 Plaintiff alleged that she has been disabled since November 14, 2014, due to a 10 back injury, rheumatoid arthritis, and osteoarthritis. (Id. at 140, 164.) Plaintiff was born 11 in 1961 and previously worked as a hostess at the Hotel Del Coronado and as a secretary 12 for an importing and exporting business. (Id. at 160, 165.) Her application was denied 13 on initial review and again on reconsideration. (Id. at 71-74, 84-88.) An administrative 14 hearing was conducted on March 22, 2018, by Administrative Law Judge ("ALJ") 15 Howard K. Treblin, who determined on April 25, 2018, that Plaintiff was not disabled. 16 (Id. at 21-30.) Plaintiff requested a review of the ALJ's decision; the Appeals Council for 17 the Social Security Administration ("SSA") denied the request for review on March 29, 18 2019. (Id. at 1-3.) Plaintiff then commenced this action pursuant to 42 U.S.C. § 405(g). 19 A. Medical Evidence 20 On July 8, 2013, Alexandra C. was evaluated by neurosurgeon David D. Barba, 21 M.D., who had performed a lumbar laminectomy surgery on Plaintiff in March 2007. 22 (Id. at 219-20, 222.) Plaintiff told Dr. Barba that she had experienced pain relief for three 23 24 25 2 The administrative record is filed on the Court’s docket as multiple attachments. The Court will cite to 26 the administrative record using the page references contained on the original document rather than the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). 27 For all other documents, the Court cites to the page numbers affixed by CM/ECF. 1 years following her surgery, but her low back pain had progressively increased over the 2 prior three years. (Id. at 222.) Dr. Barba noted that an MRI scan of Plaintiff’s lumbar 3 spine showed diffuse degenerative changes with an otherwise normal alignment, and her 4 neurologic examination was normal. (Id.) Plaintiff advised that she was interested in 5 obtaining disability benefits. (Id.) Dr. Barba recommended that Alexandra C. start 6 physical therapy. (Id.) 7 The following month, on August 12, 2013, Plaintiff returned to Dr. Barba’s office 8 and complained of bilateral shoulder pain as well as low back and leg pain. (Id. at 224.) 9 She stated that she had not gone to physical therapy because of extra costs required by 10 her insurance company. (Id.) Dr. Barba recommended against surgical intervention. 11 (Id.) On February 6, 2014, Alexandra C. reported continued low back pain and more 12 recent pain in her left thigh and calf. (Id. at 237.) Dr. Barba ordered an 13 electromyography (EMG) test of her left leg and a repeat MRI scan of her lumbar spine. 14 (Id. at 238.) 15 On July 7, 2014, Dr. Barba informed Plaintiff that her low back and leg pain were 16 related to degenerative changes in her lumbar spine. (Id. at 245.) Specifically, her 17 lumbar MRI showed degenerative disc disease with stenosis3 at L2-3 and degenerative 18 changes including anterolisthesis4 at L3-4 and L4-5. (Id.) The EMG of Plaintiff’s left 19 leg showed chronic axonal loss affecting the L5 myotome, most likely due to chronic 20 21 22 3 Spinal stenosis is the narrowing of the spaces within the spine, which can put pressure on the nerves 23 that travel through the spine. See Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/spinal- stenosis/symptoms-causes/syc-20352961 (last visited Apr. 9, 2020). 24 4 Anterolisthesis is when an upper vertebral body slips forward on the vertebral body below it. The 25 amount of slippage is graded on a scale from 1 to 4. Grade 1 is mild (20% slippage), while grade 4 is 26 severe (100% slippage). See Cedars Sinai, https://www.cedars-sinai.edu/Patients/Health- Conditions/Anterolisthesis.aspx (last visited Apr. 9, 2020). 27 1 radiculopathy.5 (Id. at 241.) Dr. Barba strongly recommended that Alexandra C. 2 proceed with physical therapy and ride an exercise bike to reduce her low back pain. (Id. 3 at 245.) The doctor also noted that Plaintiff exhibited signs and symptoms consistent 4 with shoulder impingement and advised her to seek an orthopedic consultation. (Id.) 5 Plaintiff saw her regular primary care physician, Anselmo Roldan, M.D. of the 6 Borrero Medical Group, on August 28, 2014, for rheumatoid arthritis, spinal stenosis, 7 chronic back and leg pain, and shoulder pain. (Id. at 356-57.) The physician noted that 8 Plaintiff was “moderately obese.” (Id. at 357.) Dr. Roldan advised Alexandra C. to 9 continue her medication regimen, which included a caffeine tablet for headaches, Lipitor 10 for cholesterol, pseudoephedrine for congestion, Losartan and hydrochlorothiazide for 11 hypertension, and ibuprofen. (Id. at 356-57.) 12 On September 24, 2014, Plaintiff received a rheumatology consultation from the 13 San Diego Arthritis Clinic. (Id. at 379-81.) Dr. Soumya Rao noted that although 14 Alexandra C.’s blood tests demonstrated elevated rheumatoid factor and positive dsDNA, 15 she did not have any complaints suggestive of an inflammatory joint disease, lupus, or 16 mixed connective tissue disease. (Id. at 381.) Dr. Rao rated Plaintiff’s arthritic disease 17 activity as a three on a scale of ten and indicated that Plaintiff did not have any 18 limitations in her functional capacity. (Id.) X-rays of Plaintiff’s hands showed mild 19 osteoarthritis of the fourth and fifth fingers bilaterally and osteoarthritis of the bilateral 20 third through fifth toes. (Id. at 349-50.) On October 23, 2014, Dr. Rao opined that 21 22 23
24 5 “Radiculopathy” describes a range of symptoms produced by the pinching of a nerve root in the spinal 25 column which may cause pain, weakness, numbness, and tingling. See Johns Hopkins, 26 https://www.hopkinsmedicine.org/health/conditions-and-diseases/radiculopathy (last visited Apr. 9, 2020). 27 1 Plaintiff had early arthralgia6 and prescribed hydroxychloroquine to be taken twice per 2 day. (Id. at 385.) When Alexandra C. returned to Dr. Rao on December 8, 2014, she 3 complained of continued shoulder pain as well as knee pain when walking. (Id. at 290.) 4 He advised Plaintiff to continue taking hydroxychloroquine and ordered x-rays and an 5 ultrasound of her left knee and left shoulder. (Id. at 292.) A few weeks later, on 6 December 22, 2014, Alexandra C. received a steroid injection in her left shoulder. (Id. at 7 293-94.) 8 On January 7, 2015, Plaintiff saw Dr. Roldan, her primary care physician, to 9 request that he complete paperwork on her behalf. (Id. at 338.) Dr. Roldan indicated that 10 Plaintiff was “completely disabled” until July 7, 2015. (Id. at 339.) Soon thereafter, on 11 January 26, 2015, Alexandra C. informed Timothy Lazarek, an N.P. at Dr. Rao’s office, 12 that the steroid injection had resolved her left shoulder pain. (Id. at 295.) She also 13 reported that hydroxychloroquine was effective and was not causing any adverse side 14 effects. (Id.) Her neurologic exam was “grossly normal,” (id. at 296), and her joint exam 15 results were normal with no synovitis, swelling, or tenderness, (id. at 297). When 16 Plaintiff returned to Dr. Rao’s office three months later, on April 20, 2015, her shoulder 17 pain had returned. (Id. at 298.) Plaintiff next saw Basma Al Nahlawi, M.D. of San 18 Diego Arthritis Clinic, on July 9, 2015. (Id. at 287.) Dr. Al Nahlawi ordered additional 19 blood tests, shoulder x-rays to evaluate Plaintiff for calcified tendinitis, physical therapy 20 for Plaintiff’s shoulders, and a left knee x-ray. (Id. at 289.) 21 Physical therapist Trevor D’Souza evaluated Alexandra C. on July 28, 2015. (Id. 22 at 254-57.) Plaintiff told him that she attended one-hour aquatic exercise classes at LA 23 Fitness three times a week. (Id. at 255.) Her primary complaint was of left shoulder pain 24
25 26 6 Arthralgia is defined as aching or pain in the joints without swelling. See Healthline, https://www.healthline.com/health/rheumatoid-arthritis/arthralgia#distinctions (last visited Apr. 9, 27 2020). 1 which was aggravated by sleeping on her left side or holding her arm in an elevated 2 position. (Id.) Plaintiff’s abilities to wash and style her hair and to clean overhead were 3 limited due to pain. (Id.) She also had secondary complaints of bilateral knee pain, with 4 greater discomfort on the left than right; low back pain; right shoulder pain; and right hip 5 pain. (Id.) The physical therapist observed that Alexandra C. had decreased range of 6 motion and impaired movement synergies in her left shoulder. (Id. at 256.) He prepared 7 a treatment plan for physical therapy to be provided twice a week for eight to twelve 8 weeks. (Id. at 256-57.) X-rays taken of Plaintiff’s left knee on August 17, 2015, were 9 normal. (Id. at 310.) Shoulder x-rays showed calcification in the right shoulder. (Id. at 10 311.) On September 9, 2015, Dr. Al Nahlawi noted that Plaintiff continued to show no 11 sign of active rheumatoid arthritis. (Id. at 253.) 12 On October 26, 2015, state agency medical consultant E. Steinsapir, M.D., 13 reviewed Plaintiff’s case and assessed her physical residual functional capacity. (Id. at 14 54-55.) The doctor opined that Alexandra C. could lift and carry fifty pounds 15 occasionally and twenty-five pounds frequently, stand and/or walk for six hours in an 16 eight-hour day, sit for six hours in an eight-hour day, and was unlimited in her ability to 17 push and/or pull. (Id. at 54.) Dr. Steinsapir observed that Plaintiff’s rheumatoid arthritis 18 diagnosis was based on lab tests only and there was no active disease on examination, 19 and that evaluations of her age-related osteoarthritis yielded benign results. (Id.) 20 During an office visit on November 4, 2015, Dr. Roldan, Alexandra C.’s primary 21 care doctor, noted that Plaintiff was able to bathe herself, clean the house, converse 22 meaningfully, cook, dress herself, drive, and live independently. (Id. at 308-09.) On 23 March 15, 2016, Dr. Roldan prescribed Tramadol Hcl, a pain medication, to be taken 24 three times a day. (Id. at 547.) He indicated that Plaintiff’s status was “completely 25 disabled and decline expected,” but did not specify the reason. (Id.) On April 25, 2016, 26 state agency consultant Deborah Wafer, M.D., agreed with the previous assessment of 27 1 Plaintiff’s residual functional capacity offered by state agency physician Dr. Steinsapir. 2 (Id. at 66-67.) 3 In his April 27, 2016 treatment notes, Dr. Roldan indicated that Alexandra C. had 4 persistent joint pain in her knees and fingers, and low back pain. (Id. at 533-34.) On 5 May 17, 2016, Plaintiff returned to her rheumatologist, Dr. Al Nahlawi. (Id. at 445-47.) 6 On her musculoskeletal exam, Plaintiff exhibited no tenderness or synovitis and had 7 normal movement of all extremities. (Id. at 446.) The doctor ordered lab work to further 8 evaluate her rheumatoid arthritis, requested bilateral cervical x-rays to assess her 9 osteoarthritis, and recommended cortisone injections for calcific tendinitis in both of 10 Plaintiff’s shoulders. (Id. at 446-47.) Alexandra C.’s cervical x-rays showed severe 11 spondylosis7 and severe disc height narrowing at C4-5, C5-6, and C6-7 and facet 12 arthrosis at C6-7 and C7-T1. (Id. at 421.) Dr. Mahmood Pazirandeh took over as 13 Plaintiff’s rheumatologist when she returned to the arthritis clinic on June 24, 2016. (Id. 14 at 441.) The doctor ordered lab work, MRIs of the shoulders and lumbar spine, and a 15 chest x-ray, and instructed Alexandra C. on shoulder exercises to help her symptoms. 16 (Id. at 443.) The lumbar spine MRI, which was performed on August 8, 2016, showed 17 severe facet arthritis and severe spinal stenosis. (Id. at 405, 407-08.) Dr. Pazirandeh 18 referred Plaintiff to physical therapy for her back and advised her to continue taking 19 Mobic (also known as Meloxicam, a nonsteroidal anti-inflammatory drug) and 20 hydroxychloroquine. (Id. at 405-06.) On August 23, 2016, however, Plaintiff 21 complained that hydroxychloroquine was not helping her pain, which she rated as eight 22 out of ten. (Id. at 402.) Dr. Pazirandeh noted that despite the spinal stenosis and 23 degenerative disc disease in her cervical spine, Plaintiff had normal range of motion in all 24
25 26 7 Cervical spondylosis is age-related wear and tear affecting the spinal discs in the neck. See Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/cervical-spondylosis/symptoms-causes/syc- 27 20370787 (last visited Apr. 9, 2020). 1 joints, normal low back flexion, and a normal neurological exam. (Id.) The doctor also 2 doubted that Alexandra C. had rheumatoid arthritis and provided an alternate diagnosis of 3 undifferentiated inflammatory arthritis. (Id.) Dr. Roldan, Plaintiff’s primary care 4 physician, also observed that Plaintiff had full range of motion in her neck without pain 5 during his examination on August 24, 2016. (Id. at 520-21.) 6 Plaintiff started physical therapy at South Bay Orthopaedic Physical Therapy on 7 September 9, 2016. (Id. at 472.) She reported that she was in constant pain, was limited 8 in her ability to perform household tasks, and could only stand for ten minutes. (Id.) Her 9 pain increased after she vacuumed and mopped, and her pain level ranged between two 10 and eight on a scale of ten. (Id.) Alexandra C. attended twelve therapy appointments 11 between September 9 and November 2, 2016. (Id. at 448, 477-99.) At her final 12 appointment, Plaintiff reported that she had not had any pain in a week and her pain level 13 was between zero and two. (Id. at 497.) She also advised that in addition to doing water 14 aerobics twice a week, she was walking on the treadmill and using the stationary bike at 15 the gym for thirty minutes, three to four times per week. (Id.) Due to her improvements 16 with physical therapy, Plaintiff reported that she was able to stand for twenty minutes 17 without requiring a sitting rest and was able to vacuum and mop one room without pain. 18 (Id. at 499.) Plaintiff was deemed to be an excellent candidate for discharge to a home 19 exercise program and was noted to have a good understanding of the recommended 20 exercises. (Id.) 21 Alexandra C. next followed-up with Dr. Pazirandeh, the rheumatologist, on 22 December 8, 2016. (Id. at 425.) She complained of left shoulder pain and elected to 23 proceed with a kenalog injection of her shoulder. (Id. at 425-26.) The following week, 24 she presented with right shoulder pain and received a kenalog injection of that shoulder. 25 (Id. at 427-28.) On January 19, 2017, an MRI of Plaintiff’s left shoulder showed 26 acromial arch impingement morphology. (Id. at 506-07, 510.) When Plaintiff next saw 27 1 Dr. Roldan, her primary care doctor, on March 10, 2017, she reported pain in both 2 shoulders. (Id. at 504.) Dr. Roldan referred her to Dr. Eves, an orthopedic surgeon. (Id. 3 at 505.) 4 That same day, on March 10, 2017, Plaintiff received an assessment from Swapna 5 Busa, M.D., a rheumatologist referred by Dr. Roldan. (Id. at 431-34.) Plaintiff reported 6 that neither hydroxychloroquine nor Meloxicam, also known as Mobic, helped her 7 arthritis. (Id. at 431.) Her pressing issue was her left shoulder pain, for which she said 8 the recent injection had provided no relief. (Id.) Dr. Busa found no evidence of active 9 rheumatoid arthritis. (Id.) An examination of Alexandra C.’s joints showed no synovitis 10 and all joints had full range of motion, other than her left shoulder. (Id. at 434.) The 11 physician referred Plaintiff to physical medicine for her chronic neck and low back pain. 12 (Id. at 431.) A few weeks later, on March 31, 2017, Alexandra C. reported that the 13 previous injection in her right shoulder had helped for three months but that she had 14 recently noticed pain in that shoulder as well, so Dr. Busa administered another injection. 15 (Id. at 557.) Plaintiff added Tramadol to help with pain relief, discontinued Meloxicam, 16 and planned to schedule physical therapy. (Id. at 558.) 17 On May 1, 2017, Plaintiff consulted with Patricia Lutfy, M.D. at Synovation 18 Medical Group Chula Vista, for evaluation and management of chronic generalized body 19 pain. (Id. at 615-20.) Alexandra C. stated that her most severe pain was in her back and 20 that it radiated to both lower extremities. (Id. at 615.) Dr. Lutfy performed a physical 21 examination and reviewed Plaintiff’s MRI scans and x-rays. (Id. at 616-19.) She 22 prescribed physical therapy, a lumbar epidural steroid injection at L4-5, orthopedic 23 evaluation of the left shoulder, myofascial treatments, a sample of Pennsaid (a topical 24 solution) for the left shoulder, exercise, and postural corrections. (Id. at 619-20; see also 25 id. at 569.) Plaintiff next obtained an orthopedic evaluation from Dr. William C. Eves on 26 May 5, 2017. (Id. at 601-03.) Dr. Eves found evidence of impingement syndrome of 27 1 both shoulders with an underlying glenoid labral tear of the left shoulder. (Id. at 602.) 2 Dr. Eves discussed various treatment options; Plaintiff opted to proceed with physical 3 therapy and activity modification. (Id.) 4 On May 12, 2017, Plaintiff returned to her new rheumatologist’s office and was 5 seen by Mary Anne Joy Romero, N.P. (Id. at 554-56.) Plaintiff denied any recent 6 arthritic flares and showed no active synovitis. (Id. at 554.) She reported the steroid 7 injection to her right shoulder provided significant relief, but her left shoulder had limited 8 range of motion. Alexandra C. was not interested in starting any new medications at that 9 time. (Id.) Plaintiff received a lumbar epidural steroid injection on June 19, 2017. (Id. at 10 625.) Shortly thereafter, on June 27, 2017, she described her back and shoulder pain as 11 mild and stated she was doing well with occasional medication. (Id. at 627.) 12 On July 14, 2017, Nurse Practitioner Romero of the rheumatologist’s office 13 provided a status review of Plaintiff’s symptoms. (Id. at 569.) Plaintiff denied any recent 14 arthritic flares and did not exhibit any synovitis upon examination. (Id.) She was 15 attending physical therapy twice per week for her left shoulder at Dr. Eves’ referral. (Id.) 16 She was seeing a pain management specialist for her cervical degenerative disc disease. 17 (Id.) She had recently had a lumbar epidural for her lumbar pain. (Id.) Her right 18 shoulder pain had been resolved with a local steroid injection. (Id.) She was to start 19 using Pennsaid, a topical nonsteroidal anti-inflammatory drug, to be applied as needed for 20 pain. (Id.) Several months later, on October 5, 2017, Plaintiff reported to the nurse 21 practitioner that physical therapy had provided significant relief to her left shoulder. (Id. 22 at 565.) She had occasional mild low back pain that was aggravated by strenuous 23 activities and bending, and relieved by rest. (Id.) She requested a referral for physical 24 therapy for her lower back because she felt that her symptoms improved with exercise. 25 (Id. at 566.) She stated that she took Tylenol only when the pain was severe. (Id.) The 26 27 1 nurse advised Alexandra C. to continue exercising and stretching and discussed a healthy 2 lifestyle through proper diet with Plaintiff. (Id. at 565.) 3 Plaintiff had twelve physical therapy appointments at San Diego Spine and Sport 4 between October 16 and December 15, 2017, for her low back. (Id. at 649, 708-57.) At 5 her last appointment, she stated that therapy had helped, but she continued to have 6 difficulties depending on the day. (Id. at 753.) She did not have pain on some days, but 7 that on others, it was hard to perform house chores, walk, or stand. (Id.) She obtained a 8 new physical therapy prescription for her shoulder pain, and attended six sessions 9 between December 21, 2017, and January 18, 2018. (Id. at 753, 758-81.) Dr. Eves 10 indicated on December 1, 2017, that Plaintiff should continue her physical therapy 11 exercises. (Id. at 597-98.) When Dr. Roldan saw Plaintiff on February 27, 2018, he 12 noted that she still had shoulder pain and tenderness, as well as tenderness in her lumbar 13 spine. (Id. at 787-88.) 14 On March 9, 2018, Dr. Roldan completed a questionnaire regarding Alexandra C.’s 15 impairments. (Id. at 783-86.) His diagnoses consisted of impingement of both shoulders, 16 rheumatoid arthritis, degenerative disc disease of the lumbar spine, and chronic pain. (Id. 17 at 783.) The physician stated that Plaintiff could walk less than one block without rest or 18 severe pain, could sit for only five minutes before needing to get up, and could stand for 19 only five minutes at a time before needing to sit down or walk around. (Id. at 784.) He 20 indicated that Plaintiff could sit, stand, and/or walk for less than two hours out of an 21 eight-hour workday. (Id.) He estimated that she would need to take unscheduled breaks 22 every thirty minutes. (Id. at 785.) Dr. Roldan further opined that Alexandra C. could 23 rarely lift and carry under ten pounds and could never carry ten pounds or more. (Id.) He 24 stated that Plaintiff could never twist, stoop, crouch, climb ladders, or climb stairs, and 25 would have significant limitations with reaching, handling, or fingering. (Id.) Finally, he 26 stated that she was incapable of even “low stress” work and that due to impairments, 27 1 Plaintiff did not experience “good days” and “bad days,” but rather “all bad” days. (Id. at 2 786.) 3 B. Hearing Testimony 4 On March 22, 2018, Alexandra C. appeared with her attorney at a hearing before 5 ALJ Treblin. (Id. at 37.) An interpreter was also present. (Id.)8 Plaintiff testified that 6 she was fifty-six years old and had completed two years of junior college. (Id. at 38.) 7 She had driven herself to the hearing. (Id. at 39.) Plaintiff stated that she spoke some 8 English and read only “[a] little” in English. (Id. at 37, 39.) She had, however, taken 9 classes in English at Southwestern College and Mesa College and performed well 10 academically. (Id. at 39-40.) Alexandra C. stated that she had problems with her 11 shoulders, back, legs, and feet and had rheumatoid arthritis. (Id. at 40.) She testified that 12 she was right-handed and had difficulty reaching with her arms over her head. (Id. at 40- 13 41.) She stated that she could lift ten pounds, sit for five to fifteen minutes before 14 needing to get up, and stand or walk for five to ten minutes. (Id. at 41.) The doctor who 15 performed her previous back surgery told her that he would perform another surgery in 16 six to eight years. (Id.) The doctor who evaluated her shoulder gave her a 17 hydrocortisone injection, sent her to physical therapy, and told her to wait for surgery. 18 (Id. at 42.) Alexandra C. stated that the injection and physical therapy helped her pain, 19 but medicine did not. (Id.) She did not experience any side effects from her medications. 20 (Id.) During the day, she tried to clean her house and do “the minimum that needs to be 21 done.” (Id.) She testified that she had pain on an almost daily basis. (Id. at 43.) 22 Although she was previously unable to lift her arms and hands, she was able to do so 23 24 25 26 8 The ALJ noted that Plaintiff answered questions posed in English before they were translated from 27 English to Spanish. (Admin. R. 25, ECF No. 8.) 1 after her shoulder injections. (Id.) The effects of the injections lasted about three to four 2 months. (Id. at 43-44.) 3 C. ALJ's Decision 4 On April 25, 2018, the ALJ issued a decision finding that Alexandra C. had not 5 been under a disability, as defined in the Social Security Act, from her alleged onset date 6 through the date of the decision. (Id. at 21-30.) Judge Treblin stated that Plaintiff met 7 the insured status requirements of the Social Security Act through December 31, 2019. 8 (Id. at 23.) He also determined that Plaintiff had not engaged in substantial gainful 9 activity since November 14, 2014, the alleged onset date. (Id.) The ALJ found that 10 Alexandra C. had the following severe impairments: lumbar spine degenerative disc 11 disease; spondylosis status-post history of laminectomy in 2007; cervical spine 12 spondylosis; rheumatoid arthritis with mild symptoms of arthralgias; osteoarthritis; 13 bilateral shoulder impingement with improvement after cortisone injections; and chronic 14 pain. (Id.) The ALJ considered Plaintiff’s obesity to not be severe because there was no 15 evidence that she experienced limitations due to her weight. (Id. at 24.) The ALJ found 16 that, singly or in combination, Plaintiff did not have impairments that met or medically 17 equaled a listing. (Id.) He further determined that Alexandra C. had the residual 18 functional capacity to perform medium work except she is able to lift and/or carry fifty 19 pounds occasionally and twenty-five pounds frequently; she is able to sit for six hours in 20 an eight-hour workday with normal breaks; she is able to stand and/or walk for six hours 21 in an eight-hour workday with normal breaks; she has push and/or pull limitations that 22 are the same as the lift and/or carry limitations; she is frequently able to climb ramps, 23 stairs, ladders, ropes, and scaffolds; and she can frequently balance, stoop, kneel, crouch, 24 and crawl. (Id.) The ALJ concluded that Plaintiff could perform her past relevant work 25 as a secretary/office worker and waitress and had not been under a disability from 26 November 14, 2014, through the date of his decision. (Id. at 29.) 27 1 II. LEGAL STANDARDS 2 Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful 3 applicants to seek judicial review of a final agency decision of the Commissioner. 42 4 U.S.C.A. §§ 405(g), 421(d) (West 2011). The scope of judicial review is limited, 5 however, and the denial of benefits "'will be disturbed only if it is not supported by 6 substantial evidence or is based on legal error.'" Brawner v. Sec'y of Health & Human 7 Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 8 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 9 Substantial evidence means "'more than a mere scintilla but less than a preponderance; it 10 is such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews 12 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the entire 13 record, including the evidence that supports and detracts from the Commissioner's 14 conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 15 1988). If the evidence supports more than one rational interpretation, the court must 16 uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 17 district court may affirm, modify, or reverse the Commissioner's decision. 42 U.S.C.A. § 18 405(g). The matter may also be remanded to the SSA for further proceedings. Id. 19 To qualify for disability benefits under the Social Security Act, a claimant must 20 show two things: (1) The applicant suffers from a medically determinable impairment 21 that can be expected to result in death or that has lasted or can be expected to last for a 22 continuous period of twelve months or more; and (2) the impairment renders the 23 applicant incapable of performing the work that he or she previously performed or any 24 other substantially gainful employment that exists in the national economy. See 42 25 U.S.C.A. §§ 423(d)(1)(A), (2)(A) (West 2011). An applicant must meet both 26 requirements to be classified as "disabled." Id. The applicant bears the burden of 27 1 proving he or she was either permanently disabled or subject to a condition which 2 became so severe as to disable the applicant prior to the date upon which his or her 3 disability insured status expired. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 4 The Commissioner makes this assessment by employing a five-step analysis 5 outlined in 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 6 (9th Cir. 1999) (describing five steps). First, the Commissioner determines whether a 7 claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. 8 20 C.F.R. § 404.1520(b) (2019). Second, the Commissioner determines whether the 9 claimant has a "severe impairment or combination of impairments" that significantly 10 limits the claimant's physical or mental ability to do basic work activities. If not, the 11 claimant is not disabled. Id. § 404.1520(c). Third, the medical evidence of the claimant's 12 impairment is compared to a list of impairments that are presumed severe enough to 13 preclude work; if the claimant's impairment meets or equals one of the listed 14 impairments, benefits are awarded. Id. § 404.1520(d). If not, the claimant’s residual 15 functional capacity is assessed and the evaluation proceeds to step four. Id. 16 § 404.1520(e). Fourth, the Commissioner determines whether the claimant can do his or 17 her past relevant work. If the claimant can do their past work, benefits are denied. Id. 18 § 404.1520(f). If the claimant cannot perform his or her past relevant work, the burden 19 shifts to the Commissioner. In step five, the Commissioner must establish that the 20 claimant can perform other work. Id. § 404.1520(g). If the Commissioner meets this 21 burden and proves that the claimant is able to perform other work that exists in the 22 national economy, benefits are denied. Id. 23 III. DISCUSSION 24 Plaintiff argues that the ALJ’s decision is not supported by substantial evidence 25 because the ALJ did not properly consider her subjective complaints, failed to properly 26 evaluate the opinion of her treating physician, Dr. Roldan, and improperly found that 27 1 Plaintiff is fully literate in English. (Pl.’s Mot. Attach. #1 Mem. Supp. Summ. J. 10-15, 2 ECF No. 10.) 3 A. Subjective Complaints 4 Plaintiff first contends that the ALJ failed to articulate clear and convincing 5 reasons to reject her subjective complaints. (Id. at 10-13.) It is her view that the ALJ 6 considered only one factor, Plaintiff’s daily activities, in evaluating her symptom 7 testimony. (Id. at 13.) In response, Defendant argues that the ALJ in fact provided four 8 reasons for finding that Plaintiff’s testimony was not entirely consistent with the record: 9 his own observations of Plaintiff at the administrative hearing, her relatively benign exam 10 findings throughout the medical record, her conservative treatment to relatively good 11 effect, and evidence of her daily activities. (Def.'s Mot. Attach. #1 Mem. Supp. Summ. J. 12 4-8, ECF No. 17.) 13 An ALJ engages in a two-step analysis to determine the extent to which a 14 claimant’s report of symptoms must be credited. First, an ALJ must determine whether 15 the claimant has presented objective medical evidence of an underlying impairment 16 which could reasonably be expected to produce the pain or other symptoms alleged. 17 Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (citing Garrison, 759 F.3d at 18 1014-15). In this analysis, the claimant is not required to show that her impairment could 19 reasonably be expected to cause the severity of the symptoms alleged; nor is she required 20 to produce objective evidence of the pain or its severity. Id. (citing Garrison, 759 F.3d at 21 1014-15). If the claimant satisfies step one of the analysis, and there is no evidence of 22 malingering, the ALJ can reject the claimant’s testimony about the severity of her 23 symptoms only by offering “specific, clear and convincing reasons” for doing so. Id. 24 Here, ALJ Treblin determined that Alexandra C. satisfied step one of the two-step 25 analysis. (Admin. R. 25, ECF No. 8.) Nevertheless, he found Plaintiff's allegations of 26 debilitating symptoms were "not entirely consistent with the medical evidence and other 27 1 evidence in the record." (Id.) As Defendant observes, he articulated four reasons for his 2 finding. 3 1. ALJ’s observations of Plaintiff at the administrative hearing 4 First, the ALJ relied on his observations of Plaintiff at the administrative hearing in 5 his consideration of her subjective symptom testimony. He noted that Alexandra C. 6 answered questions posed in English before they were translated from English to 7 Spanish. (Id.; see also id. at 37 (ALJ’s observation during the hearing that Plaintiff 8 “obviously” spoke some English).) The ALJ also commented that notwithstanding her 9 testimony that she could speak and understand only a little English and could not read or 10 write in English, Plaintiff had attended two years of community college classes, including 11 English classes, and by her own admission she had received good grades in college. (Id. 12 at 25.) 13 An ALJ may consider his or her observations of a claimant at the administrative 14 hearing when assessing the claimant’s subjective statements. See 20 C.F.R. § 15 404.1529(c)(3) (“We will consider all of the evidence presented, including . . . 16 “observations by our employees and other persons.”). But according to Social Security 17 Ruling (“SSR”) 16-3p, the ALJ must limit his evaluation of a claimant’s symptoms to 18 “the evidence in the record that is relevant to the individual’s impairments.” SSR 16-3p, 19 2017 WL 5180304, at *11 (Oct. 25, 2017).9 “The focus of the evaluation of an 20 individual’s symptoms should not be to determine whether he or she is a truthful person.” 21 Id. at *11. The ALJ’s observation of Plaintiff’s ability to communicate in English is not 22
23 24 9 SSR 16-3p supersedes SSR 96-7p, the previous policy governing the evaluation of subjective symptoms, and applies to decisions rendered after March 28, 2016. SSR 16-3p, 2017 WL 5180304, at 25 *1-*2. The Ninth Circuit stated that SSR 16-3p “makes clear what our precedent already required: that 26 assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms . . .’ and not to delve into wide-ranging scrutiny of the claimant’s character and 27 apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (citing SSR 16-3p). 1 relevant to her impairments but rather appears to be an assessment of her veracity, and 2 thus it does not constitute a clear and convincing reason to reject her pain testimony. 3 2. Benign exam findings 4 Second, Judge Treblin noted that Alexandra C. had relatively normal exam 5 findings throughout the medical record. (Admin. R. 25, ECF No. 8.) Although an ALJ 6 may not disregard a claimant’s testimony “solely because it is not substantiated 7 affirmatively by objective medical evidence,” (see Robbins v. Soc. Sec. Admin., 466 8 F.3d 880, 883 (9th Cir. 2006)), the ALJ may consider whether the alleged symptoms are 9 consistent with the medical evidence as one factor in his evaluation. See Lingenfelter v. 10 Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). In this case, the ALJ referred to medical 11 evidence in the record to demonstrate that many of Plaintiff’s examinations yielded 12 normal or benign results, including Dr. Barba’s “normal neurologic exam” on July 8, 13 2013 (see Admin. R. 222, ECF No. 8); an essentially normal examination by nurse 14 practitioner Lazarek on January 26, 2015 (id. at 296-97); an overall normal evaluation 15 except for lumbar spine tenderness by Dr. Roldan on November 4, 2015 (id. at 309); an 16 essentially normal physical exam on May 17, 2006,10 by Dr. Al Nahlawi (id. at 446); Dr. 17 Busa’s normal physical and neurological exam on March 10, 2017 (id. at 433-34); and 18 Nurse Practitioner Romero’s examination on May 12, 2017, in which no active synovitis 19 was noted (id. at 554). (See id. at 26-27.) 20 The ALJ’s observation that Plaintiff often presented with unremarkable findings on 21 physical exam is supported by substantial evidence in the record. As the ALJ observed, 22 although Alexandra C. had undergone back surgery in the past and her recent MRI scans 23 showed cervical and lumbar conditions, “she had mostly normal physical exams except 24
25 26 10 The ALJ erroneously indicated the date of this examination as June 14, 2016. (Compare Admin. R. 27, ECF No. 8, with id. at 445-46.) 27 1 for spinal and shoulder tenderness.” (Id. at 25.) In addition to the normal examinations 2 referred to by the ALJ in his decision, the record contains other evidence of relatively 3 normal medical evaluations. (See, e.g., id. at 402 (normal range of motion in all joints, 4 normal low back flexion, and normal neurological exam); 521 (normal range of motion of 5 neck without pain).) ALJ Treblin’s observation that Plaintiff had been diagnosed with 6 rheumatoid arthritis but only had “mild” symptoms is also supported by the substantial 7 evidence. (See, e.g., id. at 253 (no signs of active synovitis); 297 (normal joint exam); 8 381 (no clinical presentation suggesting an inflammatory joint disease); 402 (rheumatoid 9 arthritis doubtful); 431 (no evidence of active rheumatoid arthritis); 446 (no tenderness or 10 synovitis, and normal movement of all extremities).) And, although Plaintiff was treated 11 for osteoarthritis, x-rays showed only mild osteoarthritis in her fingers and toes. (Id. at 12 349-50.) 13 The Court finds that Plaintiff’s relatively benign findings on examination 14 constituted a clear and convincing reason for the ALJ to discount her testimony regarding 15 the severity of her symptoms. 16 3. Conservative medical treatment 17 The ALJ’s third reason for discrediting Plaintiff’s pain testimony was that she 18 engaged in only conservative medical treatment. Receiving only “minimal, conservative 19 treatment” is a valid reason to discredit a claimant’s symptom testimony. Meanel v. 20 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see also Parra v. Astrue, 481 F.3d 742, 751 21 (9th Cir. 2007); 20 C.F.R. § 404.1529(c)(3)(v) (treatment received for relief of pain 22 relevant to evaluating symptoms). Plaintiff’s medical providers consistently prescribed 23 conservative treatment consisting of physical therapy, exercises, and steroid injections. 24 After reviewing her lumbar MRI scans, Dr. Barba, a neurosurgeon, advised against 25 surgical intervention and recommended only physical therapy and an exercise bike. 26 (Admin. R. 245, ECF No. 8.) Dr. Al Nahlawi, a rheumatologist, referred Plaintiff to 27 1 physical therapy for her shoulder complaints. (Id. at 289.) Dr. Pazirandeh, another 2 rheumatologist, referred Alexandra C. to physical therapy and instructed her on shoulder 3 exercises. (Id. at 406, 443.) Pain specialist Dr. Lutfy recommended physical therapy, 4 epidural steroid injections, myofascial treatments, exercise, and postural corrections. (Id. 5 at 619-20.) Physical therapy and exercise are conservative treatment measures. See, e.g., 6 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding conservative course 7 of treatment includes physical therapy). Although courts have characterized steroid 8 epidural injections as both conservative and not conservative, in instances of limited 9 injections, they may be considered conservative. See Ruiz v. Berryhill, 2017 WL 10 4570811, at *5 (C.D. Cal. Oct. 11, 2017) (collecting cases); Jones v. Comm’r of Soc. Sec. 11 Admin., 2014 WL 228590, at *7 (E.D. Cal. Jan. 21, 2014) (finding occasional use of 12 epidural injections in conjunction with anti-inflammatory medications may be considered 13 conservative). 14 In assessing a claimant’s subjective symptoms, an ALJ may also properly consider 15 whether the claimant had a “fair response” to treatment. See Odle v. Heckler, 707 F.2d 16 439, 440 (9th Cir. 1983); see also 20 C.F.R. § 404.1529(c)(3)(v). In this case, the 17 conservative treatment prescribed by Plaintiff’s physicians generally helped her 18 symptoms. After completing a course of physical therapy, Alexandra C. reported that she 19 had not experienced pain in a week and her pain level was only between zero and two. 20 (Admin. R. 497, ECF No. 8; see also id. at 565 (treatment record indicating that physical 21 therapy had “provided significant relief”.) Steroid injections also helped to improve 22 Plaintiff’s symptoms. (See id. at 557 (doctor’s note that injection to right shoulder helped 23 for three months; 43-44 (Plaintiff’s testimony that effects of shoulder injections lasted for 24 three to four months).) Plaintiff acknowledged that exercise helped to decrease her pain. 25 (See id. at 566 (treatment note stating that Plaintiff “noticed [her] symptoms have 26 improved with exercise”).) 27 1 The ALJ’s third reason for discounting Plaintiff’s pain testimony is clear and 2 convincing. 3 4. Daily activities 4 Fourth, ALJ Treblin reviewed the evidence of Alexandra C.’s daily activities and 5 found them inconsistent with her allegations of disabling symptoms. Specifically, he 6 referred to a notation in the medical record indicating that she drove independently and 7 exercised three times a week at a one-hour long aquatics class. (Id. at 27 (citing id. at 8 370).) Plaintiff contends that her daily activities do not support a finding that she can 9 stand or walk for more than her claimed limitations. (Pl.’s Mot. Attach. #1 Mem. Supp. 10 Summ. J. 13, ECF No. 10.) 11 An ALJ may properly consider the claimant’s daily activities in evaluating 12 testimony regarding subjective pain. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958- 13 59 (9th Cir. 2002); see also 20 C.F.R. § 404.1529(c)(3)(i) (claimant’s daily activities 14 relevant to evaluating symptoms). The ALJ may consider inconsistencies between the 15 claimant’s testimony and the claimant’s conduct, as well as whether the claimant engages 16 in activities inconsistent with the alleged symptoms. Molina v. Astrue, 674 F.3d 1104, 17 1112 (9th Cir. 2012) (quotations and citations omitted). “One does not need to be ‘utterly 18 incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 19 2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Nevertheless, “[e]ven 20 where [a claimant’s] activities suggest some difficulty functioning, they may be grounds 21 for discrediting the claimant’s testimony to the extent that they contradict claims of a 22 totally debilitating impairment.” Molina, 674 F.3d at 1113 (citations omitted). 23 Here, the ALJ found that Plaintiff’s claimed limitations, including being able to 24 stand or walk for only five to ten minutes, sit for five to fifteen minutes, and lift only ten 25 pounds, were inconsistent with her ability to drive independently and exercise at the gym. 26 The ALJ could reasonably conclude that Alexandra C.’s activities undermined her 27 1 testimony that she was incapable of standing, walking, or sitting for more than a few 2 minutes at a time. In addition to driving independently and doing aquatics exercise 3 classes at the gym, Plaintiff was able to clean her house, including vacuuming and 4 mopping, and could use the treadmill and exercise bike at the gym for thirty minutes. 5 (See Admin. R. 309, 497, 499, ECF No. 8.) Plaintiff’s daily activities constituted a clear 6 and convincing reason to discredit her testimony regarding the functional limitations 7 caused by her symptoms. 8 The Court concludes that the ALJ articulated sufficient specific, clear and 9 convincing reasons supported by substantial evidence to discount Plaintiff’s subjective 10 symptom testimony. 11 B. Treating Physician Opinion 12 Plaintiff next argues that the ALJ failed to properly consider the opinion of her 13 treating primary care physician, Dr. Roldan. (Pl.’s Mot. Attach. #1 Mem. Supp. Summ. 14 J. 13-14, ECF No. 10.) As set forth above, Dr. Roldan stated that Plaintiff could walk 15 less than one block, sit for five minutes, and stand for only five minutes at a time. 16 (Admin. R. 784, ECF No. 10.) He indicated that Plaintiff could sit, stand, and/or walk for 17 less than two hours out of an eight-hour workday, and she would need to take 18 unscheduled breaks every thirty minutes. (Id. at 784-85.) He further opined that 19 Alexandra C. could rarely lift and carry up to ten pounds and could never carry ten 20 pounds or more. (Id. at 785.) He found that she would have significant limitations 21 reaching, handling, or fingering, and was incapable of even “low stress” work. (Id. at 22 785-86.) Defendant contends that the ALJ reasonably found that Dr. Roldan’s opinions 23 regarding Plaintiff’s limitations were inconsistent with the doctor’s treatment records. 24 (Def.'s Mot. Attach. #1 Mem. Supp. Summ. J. 8-9, ECF No. 17.) Defendant further 25 argues that the ALJ was entitled to give little weight to Dr. Roldan’s opinion that Plaintiff 26 27 1 was “completely disabled” and to rely upon the opinions of the state agency physicians. 2 (Id. at 9.) 3 The standard for determining whether an ALJ properly rejected the opinion of a 4 treating physician varies. If the treating doctor's opinion is not contradicted by another 5 physician, the ALJ must give clear and convincing reasons for rejecting it. Thomas, 278 6 F.3d at 957. On the other hand, if the treating physician's opinion is contradicted, "the 7 ALJ must give specific, legitimate reasons for disregarding the opinion of the treating 8 physician.'" Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) 9 (quoting Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Orn v. 10 Astrue, 495 F.3d 625, 632 (9th Cir. 2007). An ALJ may discredit opinions "that are 11 conclusory, brief, and unsupported by the record as a whole . . . or by objective medical 12 findings." Batson, 359 F.3d at 1195 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 13 (9th Cir. 2001)). Generally, more weight is given to the opinions of treating physicians 14 because they "are likely to be the medical professionals most able to provide a detailed, 15 longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique 16 perspective to the medical evidence that cannot be obtained from the objective medical 17 findings alone or from reports of individual examinations, such as consultative 18 examinations or brief hospitalizations." 20 C.F.R. §§ 404.1527(c)(2).11 But if a treating 19 physician’s opinion is not supported by the record, it may be disregarded. Batson, 359 20 F.3d at 1195; see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th 21 22
23 24 11 For claims filed on or after March 27, 2017, adjudicators will no longer give any specific evidentiary weight, including controlling weight, to any medical opinions. 20 C.F.R. § 404.1520c(a). Instead, the 25 adjudicator will evaluate the persuasiveness of the medical opinion using factors including 26 supportability, consistency, relationship with the claimant, and specialization. Id. § 404.1520c(c). For claims filed before March 27, 2017, including Plaintiff’s claim, the rules in section 404.1527 apply. Id. 27 § 404.1527. 1 Cir. 1999) (holding that “the opinion of the treating physician is not necessarily 2 conclusive as to either the physical condition or the ultimate issue of disability[]”). 3 Dr. Roldan's opinion was contradicted by other medical opinions in the record, 4 those of Dr. Steinsapir and Dr. Wafer, the state agency physicians, who determined that 5 Plaintiff was able lift and carry fifty pounds occasionally and twenty-five pounds 6 frequently, stand and/or walk for six hours in an eight-hour day, sit for six hours in an 7 eight-hour day, and was unlimited in her ability to push and/or pull. (Admin. R. 54-55, 8 66-67, ECF No. 8.) Thus, the ALJ was required to articulate specific and legitimate 9 reasons to reject the treating physician's opinion that were based on substantial evidence 10 in the record. Batson, 359 F.3d at 1195. In providing specific and legitimate reasons to 11 reject a treating physician’s opinion, an ALJ should set out “a detailed and thorough 12 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 13 and making findings.” Garrison, 759 F.3d at 1012 (quotations and citation omitted). 14 The ALJ did so here. He set forth a thorough review of the medical record and 15 found that Dr. Roldan’s12 assertions of disability, which he also made in his treatment 16 notes dated April 12, 2017, September 22, 2017, and February 27, 2018, were not 17 consistent with his treatment records. (See Admin. R. 28, ECF No. 8 (citing id. at 500- 18 01, 607-608, 787-88).) On November 4, 2015, for example, Dr. Roldan wrote that 19 Alexandra C. was completely disabled and could not perform activities of daily living, 20 yet his clinical notes from the same day indicated that Plaintiff engaged in activities of 21 daily living unimpaired and had a normal exam other than lumbar spine tenderness in 22 paravertebral muscles. (Id. at 28 (citing id. at 308-09).) The ALJ also found that Dr. 23 Roldan’s opinion that Plaintiff was disabled was inconsistent with the evaluations by Dr. 24 Busa and Dr. Eves. (Id. at 28.) On March 10, 2017, Dr. Busa, a rheumatologist, 25
26 27 12 The ALJ mistakenly refers to Dr. Roldan as “Dr. Anselmo.” Anselmo is Dr. Roldan’s first name. 1 indicated that Alexandra C.’s joints showed no synovitis and all joints had full range of 2 motion, other than her left shoulder. (Id. at 28, (citing id. at 434).) Dr. Eves, the 3 orthopedic surgeon, evaluated Plaintiff on December 1, 2017, and recommended that she 4 continue with conservative treatment measures. (Id. at 28 (citing id. at 597-98).) The 5 ALJ could appropriately find that these evaluations undermined Dr. Roldan’s opinion. 6 The treating doctor’s restrictive assessment of Plaintiff’s functional capacity and 7 statement that she experienced “all bad days,” (see id. at 786), are also inconsistent with 8 other evidence in the record. On October 5, 2017, Alexandra C. said that she only had 9 mild low back pain when she engaged in strenuous activities and that she needed Tylenol 10 only when her pain was severe. (Id. at 565.) On December 15, 2017, Plaintiff explicitly 11 stated that she did not have any pain on some days but had difficulties on others. (Id. at 12 753.) 13 Opinions of nonexamining medical advisors may serve as substantial evidence 14 when they are supported by other evidence in the record and are consistent with it. 15 Morgan, 169 F.3d at 600 (citation omitted). Here, the ALJ gave “great weight” to the 16 opinions of Drs. Steinsapir and Wafer. (Admin. R. 29, ECF No. 8.) Courts have 17 consistently upheld an ALJ’s rejection of the opinion of a treating physician based in part 18 on the testimony of a nonexamining medical advisor. Morgan, 169 F.3d at 602; see also 19 Allen, 749 F.2d at 579 (stating that when there is conflicting medical evidence, it is 20 within the ALJ’s purview to “determine credibility and resolve the conflict.”). If the 21 evidence supports more than one rational interpretation, the court must uphold the ALJ’s 22 decision. Id. 23 The Court finds the ALJ’s rejection of Dr. Roldan’s opinion was sufficiently 24 specific and legitimate and supported by substantial evidence in the record. 25 / / / 26 / / / 27 1 C. English Literacy 2 Plaintiff’s final argument is that the ALJ’s finding that Plaintiff is “not illiterate in 3 English and is fully able to communicate in English” is not supported by substantial 4 evidence in the record. (Pl.’s Mot. Attach. #1 Mem. Supp. Summ. J. 14-15, ECF No. 10.) 5 She appears to argue that testimony should have been obtained from a vocational expert 6 in light of her “limited ability to speak English.” (Id. at 14.) In response, Defendant 7 contends that Plaintiff’s argument that “she lacked the English skills to perform work that 8 she had already performed for over sixteen (16) years is without merit and wholly 9 illogical.” (Def.'s Mot. Attach. #1 Mem. Supp. Summ. J. 10, ECF No. 17.) 10 Again, substantial evidence means "'more than a mere scintilla but less than a 11 preponderance; it is such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.'" Sandgathe, 108 F.3d at 980 (9th Cir. 1997) (quoting 13 Andrews, 53 F.3d at 1039). As discussed earlier, the ALJ personally observed that 14 Plaintiff was able to answer questions posed in English at the administrative hearing. 15 (Admin. R. 25, 37, ECF No. 8.) Furthermore, “[Alexandra C.] answered questions posed 16 in English before they were translated from English to Spanish.” (Id. at 25.) Plaintiff 17 testified that she attended two years of junior college in the United States, took classes in 18 English, and received good grades. (Id. at 38, 40.) Also, in a disability report submitted 19 to the SSA, Plaintiff indicated that she cannot speak and understand English, but she can 20 read and understand English. (Id. at 163.) Substantial evidence supports the ALJ’s 21 determination that Plaintiff was not illiterate in English and was able to fully 22 communicate in English. 23 / / / 24 / / / 25 / / / 26 / / / 27 1 Hl. CONCLUSION 2 For the reasons stated above, Plaintiff's motion for summary judgment, reversal or 3 ||remand is DENIED and Defendant's cross-motion for summary judgment is 4 || GRANTED. 5 This Order concludes the litigation in this matter. The Clerk shall close the file. 6 IT IS SO ORDERED. 7 ||Dated: April 29, 2020 ) | 8 Hon. Ruben B. Brooks 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 27 28 19cv0756-RBB