1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DEBBIE F.S.,1 ) Case No. CV 19-8768-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER 13 ) COMMISSIONER OF SOCIAL ) 14 SECURITY ADMINISTRATION, ) ) 15 Defendant. ) ) 16 ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security supplemental security 21 income benefits (“SSI”). The parties consented to the 22 jurisdiction of the undersigned under 28 U.S.C. § 636(c). The 23 matter is before the Court on the parties’ Joint Submission, 24 filed August 5, 2020, which the Court has taken under submission 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 without oral argument. For the reasons stated below, the 2 Commissioner’s decision is affirmed. 3 II. BACKGROUND 4 Plaintiff was born in 1959. (Administrative Record (“AR”) 5 113, 293.) She completed 12th grade and worked as an assistant 6 in an optometry office and laboratory and as a recreation aide 7 for Long Beach Unified School District. (AR 333.) On January 8 31, 2017, she applied for SSI, alleging disability since December 9 1, 2008, because of varicose veins.1 (AR 113, 332.) After her 10 application and reconsideration of it were denied (AR 113-23, 11 125-36), she requested a hearing before an Administrative Law 12 Judge (AR 155-56). A hearing was held on May 8, 2019, at which 13 Plaintiff, represented by counsel, testified, as did a vocational 14 expert. (AR 74-95.) In a written decision issued May 30, 2019, 15 the ALJ found her not disabled. (AR 20-34.) On August 13, 2019, 16 the Appeals Council denied her request for review. (AR 6-8.) 17 This action followed. 18 III. STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), a district court may review the 20 1 Plaintiff apparently had filed four previous applications 21 for SSI, in 1992, 1997, 2004 (concurrent applications for SSI and 22 DIB), and 2010. (See AR 101, 104, 272-74, 281-89.) All were denied except the 2010 application, as to which the ALJ found her 23 disabled and “entitled to benefits for Medicare purposes only” beginning December 1, 2008, through March 31, 2014, as a Medicare 24 Qualified Government Employee. (AR 112; see AR 101, 110-11, 281); 42 C.F.R. § 406.15 (defining MQGEs). To make that 25 determination, the ALJ found that Plaintiff had demonstrated 26 eligibility under the five-step sequential evaluation for determining disability. (See AR 101-12); Padlo v. Berryhill, No. 27 2:15-cv-1953-AD, 2017 WL 735734, at *3 n.4 (E.D. Cal. Feb. 24, 2017) (applying five-step sequential evaluation to MQGE 28 application). 2 1 Commissioner’s decision to deny benefits. The ALJ’s findings and 2 decision should be upheld if they are free of legal error and 3 supported by substantial evidence based on the record as a whole. 4 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 5 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 6 means such evidence as a reasonable person might accept as 7 adequate to support a conclusion. Richardson, 402 U.S. at 401; 8 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 9 is “more than a mere scintilla but less than a preponderance.” 10 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 11 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 12 meaning of ‘substantial’ in other contexts, the threshold for 13 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 14 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 15 evidence supports a finding, the reviewing court “must review the 16 administrative record as a whole, weighing both the evidence that 17 supports and the evidence that detracts from the Commissioner’s 18 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 19 1998). “If the evidence can reasonably support either affirming 20 or reversing,” the reviewing court “may not substitute its 21 judgment” for the Commissioner’s. Id. at 720-21. 22 IV. THE EVALUATION OF DISABILITY 23 People are “disabled” for purposes of receiving Social 24 Security benefits if they are unable to engage in any substantial 25 gainful activity owing to a physical or mental impairment that is 26 expected to result in death or has lasted, or is expected to 27 last, for a continuous period of at least 12 months. 42 U.S.C. 28 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 1 1992). 2 A. The Five-Step Evaluation Process 3 An ALJ follows a five-step sequential evaluation process to 4 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 5 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 6 amended Apr. 9, 1996). In the first step, the Commissioner must 7 determine whether the claimant is currently engaged in 8 substantial gainful activity; if so, the claimant is not disabled 9 and the claim must be denied. § 416.920(a)(4)(i). 10 If the claimant is not engaged in substantial gainful 11 activity, the second step requires the Commissioner to determine 12 whether the claimant has a “severe” impairment or combination of 13 impairments significantly limiting her ability to do basic work 14 activities; if not, a finding of not disabled is made and the 15 claim must be denied. § 416.920(a)(4)(ii) & (c). 16 If the claimant has a “severe” impairment or combination of 17 impairments, the third step requires the Commissioner to 18 determine whether the impairment or combination of impairments 19 meets or equals an impairment in the Listing of Impairments 20 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 21 1; if so, disability is conclusively presumed and benefits are 22 awarded. § 416.920(a)(4)(iii) & (d). 23 Before proceeding to step four, the ALJ must determine the 24 claimant’s residual functional capacity (“RFC”).2 § 416.920(e); 25 see also Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 26 27 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945(a)(1); see Cooper v. 28 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 2017) (ALJ assesses claimant’s RFC between steps three and four). 2 The fourth step requires that the ALJ determine whether the 3 claimant’s RFC is sufficient to perform past relevant work. 4 § 416.920(a)(4)(iv). If it is not or the claimant has no past 5 relevant work, the Commissioner then bears the burden of 6 establishing that she is not disabled because she can perform 7 other substantial gainful work in the national economy, the fifth 8 and final step of the analysis. §§ 416.920(a)(4)(v), 9 416.960(c)(2); Drouin, 966 F.2d at 1257. 10 B. The ALJ’s Application of the Five-Step Process 11 At step one, the ALJ found that Plaintiff had not engaged in 12 substantial gainful activity since January 31, 2017, the 13 application date. (AR 22.) At step two, she determined that she 14 had the severe impairments of “recurrent varicose veins bilateral 15 lower extremity; and status post venous stripping surgery.” 16 (Id.) At step three, she concluded that Plaintiff’s impairments 17 did not meet or equal any of the impairments in the Listing. (AR 18 24-25.) At step four, she found that Plaintiff had the RFC 19 to perform medium work as defined in 20 CFR 416.967(c) 20 except she can lift and carry 50 pounds occasionally and 21 25 pounds frequently; stand and walk for 6 hours in an 8- 22 hour workday; sit for 6 hours in an 8-hour workday; 23 frequently kneel; and occasionally crouch. 24 (AR 25.) The ALJ found that Plaintiff had no past relevant work 25 and continued to step five. (AR 28.) 26 At that step, considering Plaintiff’s age, education, work 27 experience, and RFC and the VE’s testimony, she found that 28 Plaintiff could perform several jobs existing in significant 5 1 numbers in the national economy. (AR 28-29.) Accordingly, she 2 found her not disabled. (AR 29.) 3 V. DISCUSSION 4 Plaintiff asserts that the ALJ didn’t properly consider her 5 subjective symptom evidence; the opinions of the state-agency 6 reviewers and consulting examiner, who found her limited to light 7 work; or her need to frequently change position. (J. Stip. at 2- 8 3, 3-15, 20-25, 25-27, 30-31, 31-34, 34-38, 38-41.) She also 9 claims that a newly submitted medical-source opinion from a 10 treating physician supports remand. (Id. at 34.) For the 11 reasons discussed below, the ALJ did not err. 12 A. The ALJ Gave Clear and Convincing Reasons to Partially 13 Discount Plaintiff’s Subjective Symptom Statements 14 1. Relevant background 15 a. Plaintiff’s treating doctors 16 Plaintiff had an ultrasound on June 25, 2014; it reflected a 17 history of right-greater-saphenous-vein stripping in 2001.3 (AR 18 399-401.) There was “no evidence of deep venous thrombosis,”4 19 20 3 The great saphenous vein runs from the ankle to the groin, delivering blood from the ankle, lower leg, and thigh to the 21 femoral vein and containing one-way valves that prevent the blood 22 from flowing backward to the foot; if malfunctioning, the valves can cause varicose veins. Great saphenous vein, Healthline, 23 https://www.healthline.com/human-body-maps/great-saphenous-vein#1 (last visited Mar. 8, 2021). “The great saphenous vein is 24 sometimes stripped out of the leg to eliminate varicose veins.” (Id.) 25 26 4 Deep vein thrombosis, or DVT, occurs when a blood clot, or thrombus, forms in one of the deep veins of the body, usually in 27 the legs. Deep Vein Thrombosis (DVT), Mayo Clinic, https:// www.mayoclinic.org/diseases-conditions/deep-vein-thrombosis/ 28 (continued...) 6 1 and the deep-posterior-tibial and peroneal veins were 2 “unremarkable.” (AR 399.) “[I]ncompetent” veins included two 3 “perforator” veins and a “small saphenous” vein, and there was “a 4 thrombosed varicose vein versus a collateral” “5 cm” from “the 5 saphenofemoral junction.”5 (AR 401.) 6 Family-medicine doctor Kailash R. Dhamija screened Plaintiff 7 on July 27, 2017. (AR 415-16.) After an exam, he noted “normal” 8 “constitutional,” cardiovascular, musculoskeletal, and 9 “extremities” findings and assessed her with “[a]symptomatic 10 varicose veins of unspecified lower extremity.” (AR 416-17.) On 11 12 4 (...continued) symptoms-causes/syc-20352557 (last visited Mar. 8, 2021). 13 14 5 Incompetent or insufficient veins have trouble sending blood back to the heart; when chronic, vein walls are weakened 15 and valves are damaged, causing blood to pool in the veins, especially when standing. Venous Insufficiency, MedlinePlus, 16 https://medlineplus.gov/ency/article/000203.htm (last visited Mar. 8, 2021). 17 18 Perforator veins communicate between superficial and deep veins by penetrating anatomic layers of the deep fascia. 19 Perforator Vein, ScienceDirect, https://www.sciencedirect.com/ topics/medicine-and-dentistry/perforator-vein# (last visited Mar. 20 8, 2021). “Communicating veins, such as intersaphenous veins, connect veins within the same anatomic layer.” Id. 21 22 The saphenofemoral junction is the intersection of saphenous and femoral veins near the groin. Saphenofemoral Junction, Med. 23 Dictionary, https://medical-dictionary.thefreedictionary.com/ saphenofemoral+junction (last visited Mar. 8, 2021). 24 Researchers believe that the presence of superficial venous 25 thrombosis within three centimeters of the saphenofemoral 26 junction is associated with an increased risk of recurrent blood clots in the veins. Guidelines for Superficial Venous 27 Thrombosis, SciELO, https://www.scielo.br/scielo.php?pid=S1677- 54492019000102001&script=sci_arttext&tlng=en#B003 (last visited 28 Mar. 8, 2021). 7 1 August 14, 2017, she complained to Dr. Dhamija of “pain” in “both 2 legs” for “10 years.” (AR 419.) The history of Plaintiff’s 3 “present illness” was noted as “bilateral leg pain secondary to 4 varicose veins - not stable on current care,” and the doctor 5 described her as “normal” in all categories except 6 “[e]xtremities,” as to which the only notation was that she was 7 “[w]earing compression stockings.” (Id.) He referred her to a 8 vascular surgeon. (AR 420.) 9 On September 21, 2017, vascular surgeon Joseph F. Vardayo6 10 examined Plaintiff for “painful varicosities lower extremities.” 11 (AR 426.) She complained of “pain and discomfort” despite “using 12 stockings” and described “pain walking and standing.” (Id.) His 13 examination found “enlarged veins at the right thigh” and the 14 “left,” “with involvement all the way down to the knee level.” 15 (Id.) Dr. Vardayo scheduled an ultrasound and recommended 16 stockings, “which the patient already ha[d].” (Id.) 17 An October 18, 2017 ultrasound found Plaintiff’s “lower 18 extremity veins” “unremarkable with respect to appearance, 19 compressibility, and spectral waveform”7 and revealed “no 20 6 The ALJ refers to vascular surgeon Ankur Gupta as 21 Plaintiff’s treating physician (see AR 26), but the records 22 reflect that his practice partner, Dr. Vardayo, treated her (see AR 422, 424, 426-28, 431-32 (containing handwritten initials that 23 appear to be “J F V”)). This apparent error is of no consequence to the outcome. 24 7 Because veins typically are highly compressible, 25 ultrasounds in which the veins are not compressible almost always 26 indicate deep vein thrombosis. How Deep Vein Thrombosis is Diagnosed, verywellhealth, https://www.verywellhealth.com/ 27 deep-vein-thrombosis-diagnosis-1746132 (last visited Mar. 8, 2021). 28 (continued...) 8 1 evidence of DVT.” (AR 428.) The right and left greater- 2 saphenous veins were “[s]tripped/surgically absent” at the 3 “[p]roximal [t]high,” “[m]id [t]high,” knee, calf, and ankle. 4 (Id.) 5 Dr. Vardayo reviewed the ultrasound report and noted the 6 “presence of the reflux8 on both sides and specifically on right 7 side,” with “significant reflux at the saphenofemoral junction 8 with enlargement of the greater saphenous proximally but also 9 common femoral vein 5 second reflux, left leg slightly better.”9 10 (AR 427.) But “considering the patient already ha[d] stripping 11 done,” he would schedule “no further surgery.” (Id.) Instead, 12 he recommended that she “proceed with using the stockings for 13 . . . support” and see him as needed. (Id.) 14 b. State-agency doctors 15 On April 24, 2017, internist Rocely Ella-Tamayo performed a 16 17 7 (...continued) 18 Spectral waveforms measure blood-flow patterns and reflect the physiologic status of the organs they supply. Normal Doppler 19 Spectral Waveforms of Major Pediatric Vessels: Specific Patterns, RadioGraphics, https://pubs.rsna.org/doi/full/10.1148/ 20 rg.283075095 (last visited Mar. 8, 2021). 21 8 In venous reflux, valves don’t function adequately, 22 causing blood to reverse flow during standing or sitting. Chronic Venous Insufficiency, U.C.S.F. Dep’t. of Surgery, 23 https://surgery.ucsf.edu/conditions-procedures/ chronic-venous-insufficiency.aspx (last visited Mar. 8, 2021). 24 9 A reflux time of over 0.5 seconds for superficial veins 25 and over 1.0 seconds for deep veins indicates the presence of 26 reflux, with a longer duration implying more disease; it does not, however, “correlate well with clinical manifestations.” 27 Chronic Venous Insufficiency, Circulation, https:// www.ahajournals.org/doi/10.1161/CIRCULATIONAHA.113.006898 (last 28 visited Mar. 8, 2021). 9 1 “complete internal medicine evaluation” of Plaintiff but had “no 2 medical records available for review.” (AR 406; see AR 407-10.) 3 Plaintiff complained of “[v]aricose veins” and “[p]ainful joints” 4 and reported varicose-vein stripping “on both lower extremities 5 up to the thighs in 1990 and again in 1997.” (AR 406-07.) She 6 had gradually developed lower-back and left-knee pain since 1988, 7 experienced “pain with prolonged walking or standing,” wore “high 8 compression stockings,” and took “pain medication with little 9 help.” (AR 407.) Her daily activities included “driv[ing] 10 locally,” “tak[ing] care of her own needs,” “feed[ing] the dog,” 11 and “sometimes” going to “the store or doctor.” (Id.) Her 12 examination was unremarkable, with “[t]ortuous varicose veins10 13 on both lower extremities from the legs up to the thighs on 14 removal of her compression stockings” but “[n]o hyperpigmentation 15 or edema.” (AR 408-09.) Dr. Ella-Tamayo’s functional assessment 16 was as follows: 17 [T]he claimant is restricted in pushing, pulling, 18 lifting, and carrying to about 20 pounds occasionally and 19 about 10 pounds frequently. Sitting is unrestricted. In 20 terms of standing and walking, the claimant is able to 21 stand and walk 6 hours out of an 8-hour workday with 22 normal breaks. She can kneel frequently, squat 23 occasionally. There is no significant functional 24 25 10 Tortuous varicose veins are twisted, widened veins in the 26 subcutaneous tissues of the legs and are often easily visible “but are widely seen as medically unimportant and deserving low 27 priority for treatment.” Varicose Veins and Their Management, U.S. Nat’l Libr. of Med., https://www.ncbi.nlm.nih.gov/pmc/ 28 articles/PMC1526945/ (last visited Mar. 8, 2021). 10 1 impairment observed on both hands. There are no visual, 2 communicative or environmental limitations. 3 (AR 410.) 4 Dr. D. Pong11 reviewed Plaintiff’s records on June 27, 2017, 5 noting that she had a “[s]evere” impairment of “[v]aricose 6 [v]eins of [l]ower [e]xtremities,” with pain, loss of sensation, 7 and weakness. (AR 118-21.) The doctor noted that she could 8 “occasionally” lift and carry 20 pounds, “frequently” lift and 9 carry 10 pounds, stand or walk and sit “[a]bout 6 hours [each] in 10 an 8-hour workday,” and was “[u]nlimited” in her ability to push 11 and pull. (AR 120.) Dr. Pong found that Plaintiff’s gait was 12 normal; she had “[b]ack pain” with range of motion; her 13 “[s]ensory” impressions were within normal limits; and her 14 strength was “5/5 throughout.” (Id.) Dr. Pong found that the 15 “MSS12 is too restrictive[;] light RFC is more appropriate.”13 16 11 There is no indication in the record of Dr. Pong’s area 17 of specialization. 18 12 “MSS” presumably refers to Dr. Ella-Tamayo’s medical- 19 source statement. (See AR 406 (“Internal Medicine Evaluation”).) 20 13 Dr. Pong had been directed as follows: 21 Per review of clmt’s IMCE report, recommend a Med RFC. 22 Minimal to mild abn finding. Please advise if the suggestive [sic] MSS from IMCE is overly restricted. 23 (AR 118.) “IMCE” presumably means internal-medicine consultative 24 examiner, referring to Dr. Ella-Tamayo, whose report suggested limitations consistent with a light range of work. (See AR 410.) 25 Thus, Dr. Pong’s response that “[b]ased on PE, MSS is too 26 restrictive” (AR 120) would seem to suggest that a medium RFC – not “light” as he stated – was what he intended as “more 27 appropriate” (see id.). Indeed, the prompt to Dr. Pong had “recommend[ed] a Med RFC” and asked him to confirm. (AR 118.) 28 (continued...) 11 1 (Id.) 2 On November 28, 2017, Dr. H. Jone14 reviewed Plaintiff’s 3 medical records, finding the same impairments and limitations as 4 Dr. Pong and parroting the exertional-limitation finding, stating 5 that “[b]ased on PE, MSS is too restrictive, light RFC is more 6 appropriate.” (AR 133; see also AR 131-36.) 7 c. Plaintiff’s statements 8 On March 15, 2011, Plaintiff testified that she had worked 9 part time until mid-June 2009.15 (AR 37, 42-43.) She explained 10 that even though she worked for six months after her December 1, 11 2008 alleged onset date, her legs “really bothered [her] a lot,” 12 and she was “doing the best [she] could at that time.” (AR 44- 13 45.) Her duties were not reduced and she didn’t miss work, but 14 because she couldn’t sit to elevate her legs, they would “swell 15 up and start throbbing.” (AR 45.) She reported no change in her 16 legs after she stopped working – they “still bother[ed her] a 17 lot.” (AR 46.) 18 She wore compression stockings daily; otherwise, she 19 couldn’t “walk around [her] house” and was “[u]nable to do 20 anything.” (Id.) With the compression stockings, she could 21 22 13 (...continued) 23 But in fact, Dr. Pong’s RFC was almost identical to Dr. Ella- Tamayo’s except that she found that Plaintiff could “frequently” 24 kneel and Dr. Pong limited her to “occasional” posturals, making Dr. Pong’s assessment arguably more restrictive, not less. 25 (See AR 120, 410.) 26 14 Dr. Jone’s specialty is not indicated in the record. 27 15 This testimony was given for her 2010 MQGE application 28 but concerns symptoms within the relevant period here. 12 1 stand for 15 to 30 minutes at a time and walk for “30 minutes to 2 an hour.” (AR 46-47.) She could sit for “[t]wo hours, three 3 hours” and lift and carry between 15 and 20 pounds. (AR 47-48.) 4 Her treatment at the time was compression stockings, Motrin, 5 and leg elevation. (AR 50-51.) After vein-stripping surgery of 6 both legs in 1992, she experienced “a lot of trouble” and didn’t 7 want another. (AR 48, 58.) She had “some improvement” but then 8 varicose veins returned and her feet became “real bad and [she] 9 couldn’t even wear shoes.” (AR 58.) Dr. Dhamija offered a 10 referral for another surgery, but she didn’t ever see the 11 specialist because she was “afraid” given that the last surgery 12 “laid [her] up.” (AR 50.) 13 During the daytime she “s[a]t in the recliner and put [her 14 legs] up.” (AR 51.) She hadn’t looked for a sedentary job 15 because she didn’t have “qualifications for a lot of them.” 16 (Id.) At home, she did laundry and dishes and watched her two 17 dogs, was able to perform self-care, helped with cooking and 18 chores, and drove a car to do errands. (AR 52-54.) 19 In an exertion questionnaire dated March 17, 2017, Plaintiff 20 described “lower back pain [and] all over leg pain” that 21 prevented her from carrying out a normal workday. (AR 338.) She 22 could walk “maybe a block or 2” (see id.), didn’t climb stairs, 23 and “couldn’t” and “didn’t” lift things (see AR 339). She 24 nonetheless did her own grocery shopping but no chores, and she 25 wore “30 to 40 [millimeters of mercury] compression” “medical 26 support stockings.” (AR 340.) 27 On April 14, 2017, Plaintiff completed another exertion 28 questionnaire, in which she described her symptoms as “fatigue, 13 1 leg pain, . . . shortness of breath (when it’s too much for me) 2 up and down both legs, get a lot of pain in my feet - burning 3 ac[h]ing (when too much walking).” (AR 354; see AR 356.) She 4 stated, “can’t walk to [sic] far of long distance [sic], cause my 5 legs start hurting real bad soon after!” (AR 354 (emphasis in 6 original).) She had to buy her compression stockings “out of 7 pocket, cause the[y were] not covered by medical insur[ance]” and 8 cost “about $75” a pair. (AR 356.) 9 At the hearing on May 8, 2019, Plaintiff testified that she 10 drove a car to “do errands” “two or three” times a week. (AR 11 78.) She wore support stockings “[e]very day” because she needed 12 “them to help with pain with [her] legs.” (Id.) On a typical 13 day, she woke up “between 9:30 and 10:30,” took care of her 14 “small dog,” took “a couple of Aleve’s with [her] coffee” and 15 “Ibuprofen’s [in the] afternoon” because “they’re stronger,” and 16 “stay[ed] around the home most of the time,” “watching TV and 17 stuff.” (AR 79-80.) She couldn’t “do a whole lot” because she 18 felt “a lot of pain in [her] ankles and [her] feet.” (AR 79.) 19 She could not “stand or walk for a total of six hours in an 20 eight-hour day.” (AR 83.) The longest she spent on her feet was 21 “two, three hours,” with a maximum of “15 minutes, 20 minutes” at 22 a time. (AR 84.) She would experience “numbness” and “swelling” 23 if she stood any longer than that. (Id.) She elevated her legs 24 for “30, 45 minutes” “three to five times” a day. (AR 85.) She 25 had two surgeries “[a]bout 12 years ago maybe,” but at the time 26 of the hearing her varicose veins were “[i]noperable.” (AR 88.) 27 d. The ALJ’s decision 28 After noting that Plaintiff’s “medically determinable 14 1 impairments could reasonably be expected to cause the alleged 2 symptoms,” the ALJ found that her statements about their 3 intensity, persistence, and limiting effects were “inconsistent 4 with the record because while [her] record [wa]s significant for 5 venous stripping surgeries in her lower extremities, the 6 subsequent treatment history [wa]s fairly minimal other than the 7 recommendation for use of compression stockings.” (AR 26.) She 8 cited the 2014 ultrasound finding “no evidence” of deep vein 9 thrombosis as well as “generally unremarkable” examination 10 findings in response to Plaintiff’s “intermittent” complaints of 11 pain in her legs. (Id.) She also noted the vascular surgeon’s 12 September 2017 generally normal findings and “no history of 13 stasis ulcer and claudication.”16 (Id.) Treatment was 14 compression stockings. (Id.) An October 2017 ultrasound 15 revealed “reflux at the . . . saphenofemoral area, but the dee[p] 16 system was intact” and there was “no evidence of deep vein 17 thrombosis on either extremity.” (Id.) At her November 2017 18 follow-up appointment, the doctor recommended “to continue with 19 the use of compression stockings, with no further surgery being 20 scheduled,” and instructed that she should be seen “on an as- 21 needed basis.” (Id.) The ALJ remarked that there were no other 22 23 16 Venous ulcers are open skin sores caused by circulation problems in the legs. Venous Ulcers, Johns Hopkins Medicine, 24 https://www.hopkinsmedicine.org/health/conditions-and-diseases/ venous-ulcers (last visited Mar. 8, 2021). 25 26 Claudication is pain in the thigh, calf, or buttocks that occurs during walking and is caused by narrowed or blocked 27 arteries that reduce blood flow to the legs. Claudication, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/ 28 conditions-and-diseases/claudication (last visited Mar. 8, 2021). 15 1 treatment notes in Plaintiff’s record. (Id.) 2 Referring to Dr. Ella-Tamayo’s consultative examination, the 3 ALJ noted Plaintiff’s grip strength of “40, 40, 40 pounds” on 4 both sides; “no hyperpigmentation or edema”; “normal” gait and 5 joints of the lower extremities, with “no inflammation or 6 tenderness”; range of motion “within normal limits”; normal “deep 7 tendon reflexes” “of the upper and lower extremities”; and motor 8 strength “5/5 symmetrically.” (Id.) The ALJ gave “partial 9 weight to [Dr. Ella-Tamayo’s] opinion to the extent that the 10 stand and walk limitation of 6 hours, the frequent kneeling and 11 occasional squatting [were] consistent with the objective finding 12 of enlarged veins on thighs bilaterally,” but she found “the 13 light exertional limitation [wa]s not consistent with the 14 objective findings in the record that were generally unremarkable 15 and within normal limits and not consistent with the conservative 16 course of treatment essentially consisting of wearing compression 17 stockings.” (AR 27.) 18 She also found that Plaintiff’s “activities of daily living 19 were inconsistent” with her “statements concerning the alleged 20 intensity, persistence, and limiting effects” of her symptoms. 21 (Id.) In support, she cited Plaintiff’s ability to “take care of 22 her own needs, feed her dog, . . . go to the store and the 23 doctor,” and drive two to three times a week “to stores and 24 running errands,” demonstrating “physical and mental abilities” 25 that were “the same as those necessary for obtaining and 26 maintaining employment.” (Id.) 27 Further, she found “the degree of [Plaintiff’s] subjective 28 complaints . . . not comparable to the frequency or extent of 16 1 treatment sought.” (Id.) Plaintiff’s treatment regimen was 2 “conservative,” and the “record [wa]s devoid of evidence of 3 persistent attempts to obtain relief [of] symptoms, such as 4 trying a variety of treatments or changing treatment sources.” 5 (Id.) Instead, her treatment was “essentially routine and 6 conservative in nature, involving nothing more than over-the- 7 counter medication and compression stockings.” (Id.) 8 Finally, “no restrictions [were] recommended by treating 9 physicians.” (Id.) Given Plaintiff’s allegation of disabling 10 symptoms, the ALJ suggested that “one might expect to see some 11 indication in the treatment records of restrictions placed on 12 [her] by a treating doctor.” (Id.) 13 2. Applicable law 14 An ALJ’s assessment of a claimant’s allegations concerning 15 the severity of her symptoms is entitled to “great weight.” 16 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 17 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 18 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to 19 believe every allegation of disabling pain, or else disability 20 benefits would be available for the asking, a result plainly 21 contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 674 22 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 23 597, 603 (9th Cir. 1989)). 24 In evaluating a claimant’s subjective symptom testimony, the 25 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 26 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 27 2016). “First, the ALJ must determine whether the claimant has 28 presented objective medical evidence of an underlying impairment 17 1 [that] could reasonably be expected to produce the pain or other 2 symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (citation 3 omitted). If such objective medical evidence exists, the ALJ may 4 not reject a claimant’s testimony “simply because there is no 5 showing that the impairment can reasonably produce the degree of 6 symptom alleged.” Id. (citation omitted & emphasis in original). 7 If the claimant meets the first test, the ALJ may discount 8 the claimant’s subjective symptom testimony only if she makes 9 specific findings that support the conclusion. See Berry v. 10 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or 11 affirmative evidence of malingering, the ALJ must provide a 12 “clear and convincing” reason for rejecting the claimant’s 13 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 14 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 15 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 16 Cir. 2014). The ALJ may consider, among other factors, the 17 claimant’s (1) reputation for truthfulness, prior inconsistent 18 statements, and other testimony that appears less than candid; 19 (2) unexplained or inadequately explained failure to seek 20 treatment or to follow a prescribed course of treatment; (3) 21 daily activities; (4) work record; and (5) physicians’ and third 22 parties’ statements. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 23 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 24 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ’s evaluation of a 25 plaintiff’s alleged symptoms is supported by substantial evidence 26 in the record, the reviewing court “may not engage in second- 27 guessing.” Thomas, 278 F.3d at 959. 28 18 1 3. Analysis 2 The ALJ found that Plaintiff’s “statements concerning the 3 intensity, persistence and limiting effects of [her] symptoms 4 [we]re not entirely consistent with the medical evidence and 5 other evidence in the record.” (AR 26.) She provided two 6 additional clear and convincing reasons supported by substantial 7 evidence for partially discounting Plaintiff’s subjective symptom 8 statements: her statements were inconsistent with the “frequency 9 or extent of treatment sought” and with the “restrictions 10 recommended by treating physicians.” (AR 27.) Any error in the 11 ALJ’s remaining reason – that her “activities of daily living 12 were inconsistent with [her] statements concerning the alleged 13 intensity, persistence, and limiting effects of symptoms” (id.) – 14 was harmless. 15 a. Objective Medical Evidence 16 The ALJ’s first reason for discounting Plaintiff’s 17 subjective complaints was that they were inconsistent with the 18 objective medical evidence (AR 26), which is a “sufficient basis” 19 for rejecting a claimant’s subjective symptom testimony. 20 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th 21 Cir. 2008) (citation omitted); see also Morgan v. Comm’r of Soc. 22 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (finding 23 “conflict” with “objective medical evidence in the record” to be 24 “specific and substantial” reason undermining plaintiff’s 25 statements). Specifically, the ALJ noted “no evidence of deep 26 venous thrombosis,” “intermittent” complaints of “pain in her 27 legs” in 2016 and 2017, “generally unremarkable” examination 28 findings, “fairly minimal” “subsequent treatment history” other 19 1 than “compression stockings” after “venous stripping surgeries in 2 her lower extremities,”17 and referral to a vascular surgeon, who 3 recommended that she “continue with the use of compression 4 stockings, with no further surgery being scheduled,” and be seen 5 “on an as-needed basis.” (AR 26.) 6 Plaintiff’s ultrasounds from 2014 and 2017 showed right-side 7 incompetent perforator veins and reflux (see AR 401, 428-29) but 8 no deep vein thrombosis (see AR 399, 401, 428, 429). They also 9 showed “complete compressibility,” “phasicity and augmentation,”18 10 and “unremarkable” veins in the calf. (AR 399.) Indeed, the 2017 11 ultrasound found the “lower extremity veins” “unremarkable with 12 respect to appearance, compressibility, and spectral waveform,” 13 the “deep femoral vein” “unremarkable in appearance,” and the 14 “paired posterior tibial and peroneal veins in the calf” 15 “unremarkable.” (AR 428; see also AR 26 (ALJ noting that “the 16 dee[p] system was intact,” with “no evidence of deep venous 17 thrombosis on either extremity”).) 18 19 17 It’s not clear exactly when Plaintiff had her surgeries (see AR 399 (2014 ultrasound report noting “[h]istory of 20 stripping [of the] right greater saphenous vein” in 2001), 407 (consultative examiner reporting surgeries in 1990 and 1997 in 21 patient history gained from interview of Plaintiff); but see AR 22 86, 88 (Plaintiff testifying that she had surgery in 1995 and about 12 years before the 2019 hearing)), but they were well 23 before the December 1, 2008 onset date alleged here. 24 18 Phasicity is respiratory blood-flow change with breathing, the absence of which may mean a blood clot. Bedside 25 Ultrasound, Ultrasound DVT, https://cmijournal.wordpress.com/ 26 2016/04/27/ultrasound-dvt/ (last visited Mar. 8, 2021). 27 Augmentation is a diagnostic test in which the muscles are gently squeezed, which should cause a surge in blood flow in the 28 vein; if it doesn’t, a clot may be present. Id. 20 1 Moreover, as the ALJ observed, Plaintiff only “intermittently 2 complained of pain in her legs . . . in 2016 and 2017.” (AR 26.) 3 For example, Dr. Dhamija noted at a July 27, 2017 office visit 4 that Plaintiff’s varicose veins were “[a]symptomatic.” (AR 417.) 5 But on August 14, 2017, Plaintiff complained of “pain” in “both 6 legs” for “10 years” and requested a referral to the “same 7 surgeon” she had seen three years before to “discuss surgery 8 options.” (AR 419.) Dr. Dhamija referred her but recommended 9 only that she continue taking ibuprofen and return to him or an 10 emergency room if her symptoms worsened, and there is no evidence 11 of either happening. (AR 420.) The foregoing reports of only 12 intermittent complaints of pain, no deep vein thrombosis, and 13 numerous “unremarkable” findings provided the ALJ substantial 14 evidence to partially discount Plaintiff’s statements. See 15 Roberts v. Berryhill, 734 F. App’x 489, 491 (9th Cir. 2018) 16 (finding that ALJ properly discounted claimant testimony based on 17 intermittent doctor visits that didn’t support testimony of 18 debilitating pain and fatigue). 19 Further, the ALJ explained that examination by the vascular 20 surgeon found the presence of enlarged veins bilaterally, but 21 Plaintiff was “alert and oriented, her heart had regular rate and 22 rhythm, and in her lower arterial system, all the pulses were 23 present and palpable”; she had “no history of stasis ulcer and 24 claudication”; and the surgeon recommended that she continue the 25 “use of compression stockings, with no further surgery being 26 scheduled, and . . . be seen on an as-needed basis.” (AR 26; see 27 also AR 426, 431.) She also noted that consultative-examiner 28 Ella-Tamayo diagnosed “tortuous varicose veins,” but her physical 21 1 examination found “grip strength of 40, 40, 40 pounds on the right 2 and . . . left”; “normal” gait, range of motion, deep tendon 3 reflexes of the upper and lower extremities, and joints of the 4 lower extremities; “no inflammation or tenderness”; “no calf 5 tenderness or pedal edema”; and “motor strength [of] 5/5 6 symmetrically.” (AR 26; see also AR 406-10.) The ALJ properly 7 considered the foregoing medical evidence a “relevant factor in 8 determining the severity of [Plaintiff’s] pain and its disabling 9 effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 10 (holding that lack of corroboration with medical evidence can’t be 11 sole reason to reject subjective pain testimony but is relevant to 12 determining severity and disabling effects of pain). 13 b. Conservative Treatment 14 Second, the ALJ concluded that “the degree of [Plaintiff’s] 15 subjective complaints [was] not comparable to the frequency or 16 extent of treatment sought,” her “treatment regimen was 17 conservative[,] and the case [wa]s devoid of evidence of 18 persistent attempts to obtain relief [of] symptoms such as trying 19 a variety of treatments or changing treatment sources.” (AR 27.) 20 A conservative course of treatment may undermine a claimant’s 21 allegations of disabling symptoms. See, e.g., Parra, 481 F.3d at 22 750-51 (stating that “[e]vidence of ‘conservative treatment’ is 23 sufficient to discount a claimant’s testimony regarding severity 24 of an impairment” (citation omitted)). None of Plaintiff’s 25 treating doctors recommended “more than over-the-counter 26 medication and compression stockings.” (See AR 27 (citing AR 404, 27 419-20, 427).) 28 Plaintiff argues that her two prior surgeries demonstrate 22 1 aggressive treatment, and that because she “was afraid to have 2 more surgery, could not afford surgery, and more importantly that 3 she was advised that no further surgery was possible,” her 4 testimony should not be discounted because nothing more could 5 have been done. (J. Stip. at 10; see id. at 8-11, 18-20.) She 6 is correct that her surgeries were not conservative treatment, 7 see Michel v. Berryhill, No. EDCV-17-01793-AFM, 2018 WL 3031450, 8 at *4 (C.D. Cal. June 15, 2018) (collecting cases finding surgery 9 not conservative treatment), but those surgeries were performed 10 well before her alleged onset date, and she worked for at least 11 one year, and up to 11 years, after them. (See AR 42 (“I worked 12 up until June ’09.”); see also AR 88 (last surgery “about” 2007), 13 399 (surgery in 2001), 407 (surgeries in 1990 and 1997).) In 14 2017, after examining Plaintiff and reviewing her then-recent 15 ultrasound, vascular surgeon Vardayo recommended no further 16 surgery because her veins already had been stripped, but he also 17 did not suggest any other aggressive treatment, only that she 18 continue to wear compression stockings.19 (See AR 431.) Thus, 19 during the relevant time period, she had no surgery, and none of 20 her treating doctors found deep vein thrombosis, edema, ulcers, 21 or any other diagnosis warranting more than conservative 22 treatment with compression stockings and over-the-counter — not 23 prescription — pain relievers. (See AR 415-32); Craig v. 24 25 19 Contrary to Plaintiff’s contention (J. Stip. at 22 26 (citing Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999))), the ALJ was not required to address why 27 Plaintiff didn’t seek more aggressive treatment because she relied on Dr. Vardayo’s and the other doctors’ failure to find 28 that any such treatment was needed. 23 1 Berryhill, No. 2:17-CV-02978-GMN-EJY, 2019 WL 4936033, at *14 (D. 2 Nev. Sept. 17, 2019) (finding medication, nightly leg elevation, 3 compression stockings, and use of diuretics “conservative 4 treatment”), accepted by 2019 WL 4932922 (D. Nev. Oct. 7, 2020); 5 see also Parra, 418 F.3d at 750-51 (treatment with over-the- 6 counter pain medication is “conservative treatment” sufficient to 7 discredit claimant’s testimony regarding allegedly disabling 8 pain). 9 c. Restrictions Not Recommended 10 The ALJ also discounted Plaintiff’s testimony because given 11 her “allegations of disabling symptoms, one might expect to see 12 some indication in the treatment records of restrictions placed 13 on [her] by a treating doctor.” (AR 27.) An absence of 14 functional limitations was substantial evidence supporting the 15 ALJ’s discounting of Plaintiff’s claims of disabling impairment. 16 See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 17 (finding that substantial evidence supported ALJ’s finding of no 18 disability because “[n]one of the doctors who examined [the 19 claimant] expressed the opinion that he was totally disabled”); 20 see also Roberta W. v. Comm’r of Soc. Sec., No. C19-5464-BAT, 21 2019 WL 5456194, at *2 (W.D. Wash. Oct. 24, 2019) (finding that 22 ALJ permissibly rejected claimant’s testimony because although 23 compression stockings were required, no doctor limited her 24 activities in manner she claimed), appeal filed, No. 19-36032 25 (9th Cir. Dec. 9, 2019). Plaintiff contends that the ALJ should 26 have considered Dr. Bambrah-Dhamija’s “November 2010 check off 27 disability form” concluding that she was “non-functional.” (J. 28 Stip. at 14; see also AR 106 (ALJ discussing form in 2011 24 1 decision).) But those records also include treatment notes from 2 Dr. Bambrah-Dhamija reflecting mostly “within normal limits” 3 examination findings and “moderate pain control” with compression 4 stockings, along with a consultative-examination finding that 5 Plaintiff was able to perform activities consistent with medium 6 work. (See AR 106-07.) Thus, aside from an unsupported checkoff 7 form, those records appear to further support the ALJ’s 8 discounting of her symptom testimony. 9 d. Daily Activities 10 Finally, the ALJ also partially rejected Plaintiff’s 11 subjective symptom statements based on evidence that she could 12 “take care of her own needs, feed her dog, and go to the store 13 and the doctor.” (AR 27.) An ALJ may discount a claimant’s 14 subjective symptom testimony when it is inconsistent with her 15 daily activities. See Molina, 674 F.3d at 1113. “Even where 16 those [daily] activities suggest some difficulty functioning, 17 they may be grounds for discrediting the claimant’s testimony to 18 the extent that they contradict claims of a totally debilitating 19 impairment.” Id. The ALJ here found that “[s]ome of the 20 physical and mental abilities required in order to perform the 21 [described] activities are the same as those necessary for 22 obtaining and maintaining employment.” (AR 27.) But this 23 finding might have been unsupported because self-care, dog 24 feeding, and running errands two or three times a week do not 25 necessarily translate to an ability to perform a medium range of 26 work. See Fair, 885 F.2d at 603 (holding that “many home 27 activities are not easily transferable to what may be the more 28 grueling environment of the workplace, where it might be 25 1 impossible to periodically rest or take medication”). 2 Even assuming the ALJ erred, any error was harmless because 3 the ALJ provided three clear and convincing reasons for partially 4 rejecting Plaintiff’s testimony — inconsistency with the medical 5 record, conservative treatment, and no doctor-recommended 6 functional limitations. See Larkins v. Colvin, 674 F. App’x 632, 7 633 (9th Cir. 2017) (“[B]ecause the ALJ gave specific, clear and 8 convincing reasons for finding [plaintiff] not fully credible, 9 any error in the additional reasons the ALJ provided for finding 10 [her] not fully credible was harmless.” (citing Batson v. Comm’r 11 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004))). 12 Remand is not warranted. 13 B. The ALJ Properly Discounted the State-Agency Opinions 14 as Inconsistent with the Objective Medical Evidence 15 Plaintiff asserts that the ALJ improperly rejected the 16 opinions of Drs. Pong and Jone because they were “highly 17 qualified to ascertain limitations” and the ALJ was “not 18 qualified to provide a medical opinion.” (J. Stip. at 26.) 19 Next, Plaintiff contends that the ALJ’s reasons for “rejecting” 20 Dr. Ella-Tamayo’s light-RFC opinion were contradicted by the 21 state-agency physicians and the medical evidence. (Id. at 31- 22 33.) These arguments do not require remand. 23 1. ALJ Decision 24 The ALJ gave “little weight to the opinions of the State 25 agency medical consultants,” who concluded that Plaintiff should 26 be limited to “light work, with occasional postural limitations.” 27 (AR 27.) She found those opinions “inconsistent with the 28 objective findings in the record as a whole, including generally 26 1 unremarkable findings, minimal and conservative treatments, and 2 [Plaintiff’s] activities of daily living.” (Id.) The ALJ gave 3 “partial weight” to Dr. Ella-Tamayo’s opinion 4 to the extent that the stand and walk limitation of 6 5 hours, the frequent kneeling and occasional squatting 6 limitation are consistent with the objective finding of 7 enlarged veins on thighs bilaterally . . . , but the 8 light exertional limitation is not consistent with the 9 objective findings in the record that were generally 10 unremarkable and within normal limits and not consistent 11 with the conservative course of treatment essentially 12 consisting of wearing compression stockings. 13 (Id.) In her explanation of why Dr. Ella-Tamayo’s light-work RFC 14 was not supported, the ALJ cited the doctor’s examination 15 findings showing Plaintiff’s “40, 40, 40” grip strength on both 16 sides; her lack of “hyperpigmentation or edema”; her “normal” 17 gait, “joints of the lower extremities,” “range of motion,” and 18 “deep tendon reflexes of the upper and lower extremities”; her 19 lack of “inflammation or tenderness” in the lower extremities or 20 “calf tenderness or pedal edema”; and her “motor strength [of] 21 5/5 symmetrically.” (AR 26 (citing AR 406-10).) 22 2. Applicable Law 23 Three types of physicians may offer opinions in Social 24 Security cases: those who directly treated the plaintiff, those 25 who examined but did not treat the plaintiff, and those who did 26 neither. Lester, 81 F.3d at 830. A treating physician’s opinion 27 is generally entitled to more weight than an examining 28 physician’s, and an examining physician’s opinion is generally 27 1 entitled to more weight than a nonexamining physician’s. Id.; 2 see § 416.927(c)(2).20 But “the findings of a nontreating, 3 nonexamining physician can amount to substantial evidence, so 4 long as other evidence in the record supports those findings.” 5 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 6 (as amended). 7 The ALJ may disregard a physician’s opinion regardless of 8 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 9 751 (9th Cir. 1989); see Carmickle, 533 F.3d at 1164. When a 10 doctor’s opinion is not contradicted by other medical-opinion 11 evidence, however, it may be rejected only for a “clear and 12 convincing” reason. Magallanes, 881 F.2d at 751; Carmickle, 533 13 F.3d at 1164 (citing Lester, 81 F.3d at 830–31). When it is 14 contradicted, the ALJ must provide only a “specific and 15 legitimate reason” for discounting it. Carmickle, 533 F.3d at 16 1164 (citing Lester, 81 F.3d at 830–31). The weight given a 17 physician’s opinion, moreover, depends on whether it is 18 consistent with the record and accompanied by adequate 19 explanation, among other things. § 416.927(f)(1). The ALJ 20 21 20 For claims filed on or after March 27, 2017, the rules in 22 § 416.920c (not § 416.927) apply. See § 416.920c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). 23 The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary 24 weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from 25 your medical sources.” § 416.920c(a). Thus, the new regulations 26 eliminate the term “treating source” as well as what is customarily known as the treating-source or treating-physician 27 rule. See § 416.920c. Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it under the treating- 28 source rule in § 416.927. 28 1 considers findings by state-agency medical consultants and 2 experts as opinion evidence. § 416.927(e). 3 Further, “[t]he ALJ need not accept the opinion of any 4 physician . . . if that opinion is brief, conclusory, and 5 inadequately supported by clinical findings.” Thomas, 278 F.3d 6 at 957; accord Batson, 359 F.3d at 1195. An ALJ need not recite 7 “magic words” to reject a physician’s opinion or a portion of it; 8 the court may draw “specific and legitimate inferences” from the 9 ALJ’s opinion. Magallanes, 881 F.2d at 755. 10 The Court must consider the ALJ’s decision in the context of 11 “the entire record as a whole,” and if the “‘evidence is 12 susceptible to more than one rational interpretation,’ the ALJ’s 13 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 14 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 15 3. Analysis 16 The ALJ noted that the state-agency reviewing physicians’ 17 opinions were inadequately supported by the objective medical 18 evidence, citing the “generally unremarkable” “examination 19 findings,” “intermittent[] complain[ts] of pain in her legs,” “no 20 evidence of deep venous thrombosis,” “regular” heart rate and 21 rhythm, “no history of stasis ulcer and claudication,” and 22 treatment with only ibuprofen and compression stockings. (AR 26; 23 see also AR 399, 409-10, 416-20, 426, 428-29.) These reasons 24 alone were a proper basis to discount the state-agency opinions. 25 See Thomas, 278 F.3d at 957. Further, consultative-examiner Dr. 26 Aziz Karamlou’s determination after examining Plaintiff in June 27 2011 (for her 2010 application but during the time period 28 relevant here) that she had the RFC to “lift and carry 25 pounds 29 1 frequently and 50 pounds occasionally, stand and/or walk 6/8 2 hours, sit 6/8 hours” (AR 107) was consistent with the medium- 3 work RFC found by the ALJ. See § 416.967(c); Ryan, 528 F.3d at 4 1198 (finding that Court must consider “record as a whole”). 5 Thus, the ALJ’s rejection of the “light work” findings by Drs. 6 Pong and Jone was supported by substantial evidence. 7 As to Dr. Ella-Tamayo, as an initial matter, the ALJ did not 8 “reject” her opinion. She gave it “partial weight” and in fact 9 adopted all of the doctor’s functional limitations except lifting 10 and carrying 20 pounds occasionally and 10 pounds frequently. 11 (Compare AR 25, with AR 410.) The ALJ’s citation to the doctor’s 12 own examination findings and her reliance on the “generally 13 unremarkable and within normal limits” (AR 27) findings in the 14 other medical evidence provided specific clear-and-convincing 15 reasons on which to discount those portions of her opinion. 16 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 17 Lester, 81 F.3d at 830–31). Although Plaintiff complains that 18 the ALJ was “not qualified to provide a medical opinion” and no 19 other doctor found the limitations in the ALJ’s RFC (J. Stip. at 20 32), in fact Dr. Karamlou’s opinion supported the lifting and 21 carrying limitations the ALJ found, and those were the only 22 functional assessments of Dr. Ella-Tamayo’s the ALJ didn’t 23 follow. 24 Accordingly, remand is not warranted because the ALJ 25 properly evaluated the state-agency doctors’ opinions. 26 C. The New Evidence Does Not Support Remand 27 Plaintiff has submitted a functional assessment dated 28 December 11, 2019 — a half-year after the ALJ’s decision and 30 1 after the Appeals Council denied review — from family-medicine 2 doctor Mehtab Bambrah-Dhamija and argues that it supports remand. 3 (J. Stip. at 34-36 & Ex. A.) As discussed below, it does not. 4 1. The new evidence 5 The assessment states that Plaintiff can lift and carry “10 6 pounds,” sit three hours at a time and five hours in an eight- 7 hour workday, stand and walk half an hour at a time and three 8 hours in an eight-hour workday, needs unscheduled 10- to 15- 9 minute breaks two or three times a day, and requires leg 10 elevation to hip level 50 percent of an eight-hour workday. (J. 11 Stip., Ex. A.) These limitations were “based on [the doctor’s] 12 objective findings” that Plaintiff had “[p]ain in bilateral lower 13 extremity [that] flare[d] up 2-4 times [a] week.” (Id.) There 14 is no indication that Dr. Bambrah-Dhamija had examined Plaintiff 15 recently or of the exact nature of any treating relationship. 16 2. Applicable law 17 In determining whether to remand a case “in light of new 18 evidence,” “the court examines both whether the new evidence is 19 material to a disability determination and whether a claimant has 20 shown good cause for having failed to present the new evidence to 21 the ALJ earlier.” Mayes v. Massanari, 276 F.3d 453, 462 (9th 22 Cir. 2001) (as amended). 23 To be “material,” the new evidence “must bear ‘directly and 24 substantially on the matter in dispute.’” Id. (quoting Ward v. 25 Schweiker, 686 F.2d 762, 764 (9th Cir. 1982)); see also Skuja v. 26 Colvin, 671 F. App’x 463, 464 (9th Cir. 2016) (new evidence is 27 not material when it “fails to relate back” to relevant period). 28 The plaintiff must also show a “reasonable possibility” that the 31 1 new evidence “would have changed the outcome.” Mayes, 276 F.3d 2 at 462 (citing Booz v. Sec’y of Health & Human Servs., 734 F.2d 3 1378, 1380-81 (9th Cir. 1984)). 4 To show “good cause,” the plaintiff must demonstrate that 5 the new evidence was “unavailable earlier.” Mayes, 276 F.3d at 6 463. New evidence that “surfaces after the Secretary’s final 7 decision” that could not have been obtained “at the time of the 8 administrative proceeding” satisfies the good-cause requirement. 9 Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 10 3. Analysis 11 Dr. Bambrah-Dhamija’s 2019 evaluation is not material 12 because it does not bear directly on the matter in dispute, 13 namely, the nature and extent of Plaintiff’s physical impairments 14 during the relevant period. Mayes, 276 F.3d at 462. The 15 assessment is dated December 11, 2019, and appears to state her 16 capabilities more than a half-year after the hearing in this 17 case. Plaintiff contends that Dr. Bambrah-Dhamija gave a similar 18 opinion in 2011 and that even though the new opinion is dated a 19 half-year after the ALJ’s decision, it is based on conditions 20 that have always been present. (J. Stip. at 34.) But nothing in 21 the assessment indicates that it is restrospective, and the two 22 opinions are nearly a decade apart. 23 Further, Plaintiff has not demonstrated good cause for not 24 submitting it earlier. She offers no explanation for why she 25 didn’t obtain Dr. Bambrah-Dhamija’s opinion before the Appeals 26 Council ruled, much less the ALJ. See Mayes, 276 F.3d at 463; 27 see also Lopez v. Saul, No. 1:19-cv-00971-BAM, 2020 WL 6526197, 28 at *8 n.5 (E.D. Cal. Nov. 5, 2020) (declining to consider new 32 1 evidence because plaintiff didn’t make requisite showing that it 2 couldn’t have been incorporated into administrative record). 3 She contends that because the report is dated after the ALJ’s 4 decision it necessarily wasn’t available earlier. (J. Stip. at 5 35.) But “[a] claimant does not meet the good cause requirement 6 by merely obtaining a more favorable report once his or her claim 7 has been denied.” Mayes, 276 F.3d at 463. 8 Accordingly, the new evidence does not warrant remand. 9 D. The ALJ Properly Considered Plaintiff’s Need to Change 10 Position 11 Finally, Plaintiff contends that the ALJ “fails to address 12 or consider the prior finding of a frequent need to change 13 position.” (J. Stip. at 38-39.) She argues that the ALJ should 14 have applied a “presum[ption]” that the limitation “continue[s] 15 to exist.” (J. Stip. at 39.) 16 Even if such a presumption would normally apply, it has no 17 bearing here. Specifically, in 2011, the ALJ found that 18 Plaintiff had varicose veins and a severe back-pain impairment 19 (see AR 110), but her current impairments do not include back 20 pain (see AR 23 (“There is no objective medical evidence that 21 documents this [back pain] diagnosis resulted from anatomical, 22 physiological, or psychological abnormalities that are 23 demonstrable by medically acceptable clinical or laboratory 24 diagnostic techniques.”)), a finding Plaintiff has not challenged 25 on appeal. Thus, the changed circumstance of an absent 26 impairment rebuts any presumption. See Stubbs-Danielson v. 27 Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (finding that medical 28 evaluations completed after initial final denial necessarily 33 1 provided new, material information not reviewed by first ALJ, 2 thus constituting changed circumstance rebutting prior finding); 3 Johnson v. Berryhill, No. 16-cv-01332-JCS, 2017 WL 3670025, at 4 *16 (N.D. Cal. Aug. 24, 2017) (finding that new information 5 presented to second judge rebutted res judicata effect applicable 6 to “a previous ALJ's findings concerning residual functional 7 capacity, education, and work experience” (citing Chavez v. 8 Bowen, 844 F.2d 691, 693 (9th Cir. 1988))). 9 Moreover, medical evidence submitted with the current 10 application contradicts the allegation of a need to change 11 position frequently. Despite assessing a light-work limitation, 12 Dr. Ella-Tamayo found that “[s]itting is unrestricted.” (AR 13 410.) And in 2011, Plaintiff testified that during the daytime 14 she “usually” sits “and stay[s] somewhere for six hours without 15 having to get up and walk around.” (AR 51; but see AR 64 16 (responding “[n]o” to counsel’s question of whether she could sit 17 for more than four hours).) In 2019, she testified that on a 18 typical day when she had nowhere to go, she spent “two, three 19 hours” standing or walking and elevated her legs “throughout the 20 day” (AR 84-85), suggesting that she sat most of the time. Thus, 21 the record evidence does not appear to support a need to change 22 position. 23 Remand is not warranted. 24 VI. CONCLUSION 25 Consistent with the foregoing and pursuant to sentence four 26 27 28 34 42 U.S.C. § 405(g),*' IT IS ORDERED that judgment be entered DENYING Plaintiff’s request for remand, AFFIRMING the 3 | Commissioner’s decision, and DISMISSING this action with 4 | prejudice. 5 6 | DATED: March 11, 2021 fr Preble JEAN ROSENBLUTH 7 U.S. Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 *! This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the 28 | cause for a rehearing.” 35