Dora G Lopez v. Commissioner of Social Security Administration

• Court: District Court, C.D. California
• Decided: September 30, 2021
• Docket: 2:20-cv-01493
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DORA L., ) Case No. 2:20-cv-01493-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of Social Security ) Administration, ) 16 ) ) 17 Defendant. ) ) 18 19 I. 20 INTRODUCTION 21 On February 14, 2020, plaintiff Dora L. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking review of a denial of a period of disability and disability insurance benefits 24 (“DIB”). The parties have fully briefed the issues in dispute, and the court deems 25 the matter suitable for adjudication without oral argument. 26 Plaintiff presents five disputed issues for decision: (1) whether the 27 Administrative Law Judge (“ALJ”) properly considered plaintiff’s testimony; (2) 28 whether the ALJ properly considered the opinion of treating physician Dr. Jacob 1 Rabinovich; (3) whether the ALJ properly considered the opinion of examining 2 physician Dr. Donald Kim; (4) whether the ALJ properly considered the opinion of 3 the non-examining medical expert Dr. Eric Schmitter; and (5) whether the ALJ 4 failed to consider a composite job. Memorandum in Support of Plaintiff’s 5 Complaint (“P. Mem.”) at 1-21; see Defendant’s Memorandum in Support of 6 Defendant’s Answer (“D. Mem.”) at 3-20. 7 Having carefully studied the parties’ memoranda, the Administrative Record 8 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 9 the ALJ properly evaluated plaintiff’s subjective symptom testimony and the 10 medical opinions of Dr. Rabinovich, Dr. Kim, and Dr. Schmitter. The court also 11 finds that the ALJ did not err in concluding that plaintiff’s past relevant work as a 12 freezer operator was not a composite job for purposes of the step four analysis. 13 The court therefore affirms the decision of the Commissioner denying DIB. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was 52 years old on the alleged disability onset date, has a 17 tenth grade education. See AR at 88, 103. Plaintiff has past relevant work as a 18 freezer operator, hand packager or production packer, and ice cream freezer 19 assistant. See AR at 89-90. 20 On August 29, 2016, plaintiff filed an application for a period of disability 21 and DIB, alleging an onset date of August 31, 2012 due to pain in her neck, back, 22 left knee, and left shoulder, carpal tunnel in her left hand, and post-stroke 23 impairment. See AR at 103-04. Plaintiff’s application was initially denied on 24 March 13, 2017. See AR at 122. 25 Plaintiff requested a hearing, which the assigned ALJ held on January 15, 26 2019. AR at 47. Plaintiff, represented by counsel, appeared and testified at the 27 hearing. AR at 49, 76-89, 96. The ALJ also heard testimony from Dr. Eric 28 1 Schmitter, a medical expert, and Aida Worthington, a vocational expert. See AR at 2 51-75, 89-101. The ALJ denied plaintiff’s claim for benefits on February 20, 3 2019. AR at 29-40. 4 Applying the well-established five-step sequential evaluation process, the 5 ALJ found, at step one, that plaintiff engaged in substantial gainful activity from 6 June 2, 2013 to August 31, 2013, after the alleged onset date, but there was at least 7 a 12-month period where plaintiff was not earning above the substantial gainful 8 activity level. AR at 31-32. 9 At step two, the ALJ found that plaintiff suffered from the severe 10 impairments of left shoulder tendinitis, left knee medial meniscal tear, lumbar 11 degenerative disc disease, cervical spine degenerative disc disease, obesity, and 12 carpal tunnel syndrome of the left upper extremity. AR at 32. 13 At step three, the ALJ found that plaintiff’s impairments, whether 14 individually or in combination, did not meet or medically equal one of the 15 impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. 16 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 17 determined she had the ability to perform medium work with the following 18 limitations: 19 can lift, carry, push, or pull up to 50 pounds occasionally and 25 20 pounds frequently, however, the individual’s lifting, carrying, 21 pushing, and pulling overhead with the left (non-dominant) upper 22 extremity would be limited to 20 pounds occasionally and 10 pounds 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 nn.5-7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the 27 ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 1 frequently; can stand or walk for six hours out of an eight-hour day; 2 no limitations as to sitting; can frequently climb ramps or stairs, 3 occasionally climb ladders, ropes, or scaffolds, frequently balance and 4 stoop, and occasionally kneel, crouch, and crawl; can occasionally 5 reach above shoulder level with the left (non-dominant) upper 6 extremity; and can occasionally finger and feel with the left (non- 7 dominant) upper extremity. 8 AR at 33. 9 The ALJ found, at step four, that plaintiff was able to perform her past 10 relevant work as a freezer operator as generally performed, and that plaintiff did 11 not have a composite job. AR at 39. The ALJ accordingly concluded plaintiff was 12 not under a disability, as defined in the Social Security Act, at any time from 13 August 31, 2012, the alleged onset date, through March 31, 2016, the date last 14 insured (“DLI”). AR at 40. 15 Plaintiff filed a timely request for review of the ALJ’s decision, but the 16 Appeals Council denied the request for review on January 16, 2020. AR at 1. 17 Accordingly, the ALJ’s decision stands as the final decision of the Commissioner. 18 III. 19 STANDARD OF REVIEW 20 This court is empowered to review decisions by the Commissioner to deny 21 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 22 Administration (“SSA”) must be upheld if they are free of legal error and 23 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 24 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based 25 on legal error or are not supported by substantial evidence in the record, the court 26 may reject the findings and set aside the decision to deny benefits. Aukland v. 27 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 28 1 1144, 1147 (9th Cir. 2001). 2 “Substantial evidence is more than a mere scintilla, but less than a 3 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 4 evidence is such “relevant evidence which a reasonable person might accept as 5 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 6 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 7 substantial evidence supports the ALJ’s finding, the reviewing court must review 8 the administrative record as a whole, “weighing both the evidence that supports 9 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 10 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 11 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 12 marks omitted). If the evidence can reasonably support either affirming or 13 reversing the ALJ’s decision, the reviewing court “may not substitute its judgment 14 for that of the ALJ.” Id. (internal quotation marks omitted). 15 IV. 16 DISCUSSION 17 A. The ALJ Properly Evaluated the Medical Opinions 18 Plaintiff argues the ALJ improperly rejected the opinions of treating 19 physician Dr. Rabinovich and examining physician Dr. Kim, and instead wrongly 20 gave significant weight to the opinion of the medical expert, Dr. Schmitter. 21 To determine whether a claimant has a medically determinable impairment, 22 the ALJ considers different types of evidence, including medical evidence. 20 23 C.F.R. §§ 404.1527(b), 416.927(b).2 The regulations distinguish among three 24 types of physicians: (1) treating physicians; (2) examining physicians; and (3) non- 25 26 2 The SSA issued new regulations effective March 27, 2017. All regulations 27 cited in this section are effective for cases filed prior to March 27, 2017. See 20 28 C.F.R. §§ 404.1527(b), 416.927(b). 1 examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Lester v. 2 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating 3 physician’s opinion carries more weight than an examining physician’s, and an 4 examining physician’s opinion carries more weight than a reviewing physician’s.” 5 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 6 §§ 404.1527(c)(1)-(2), 416.027(c)(1)-(2). The opinion of the treating physician is 7 generally given the greatest weight because the treating physician is employed to 8 cure and has a greater opportunity to understand and observe a claimant. Smolen v. 9 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 10 751 (9th Cir. 1989). 11 Nevertheless, the ALJ is not bound by the opinion of a treating physician. 12 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 13 ALJ must provide clear and convincing reasons for giving it less weight. Id. If the 14 treating physician’s opinion is contradicted by other opinions, the ALJ must 15 provide specific and legitimate reasons, supported by substantial evidence, for 16 rejecting it. Id. Likewise, the ALJ must provide specific and legitimate reasons, 17 supported by substantial evidence, in rejecting the contradicted opinions of 18 examining physicians. Lester, 81 F.3d at 830-31. The opinion of a non-examining 19 physician, standing alone, cannot constitute substantial evidence. Widmark v. 20 Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006). 21 1. Dr. Rabinovich 22 Dr. Rabinovich began treating plaintiff on August 29, 2016, after the DLI of 23 March 31, 2016. See AR at 772. Dr. Rabinovich issued two opinions on plaintiff’s 24 limitations, the first one on December 5, 2016 (AR at 526) and the second on 25 August 21, 2017 (AR at 816-28). The ALJ addressed only the 2016 opinion in her 26 decision. See AR at 38. In that 2016 opinion, Dr. Rabinovich determined that 27 plaintiff should be limited to, among other things: (1) lifting or carrying a 28 1 maximum of ten pounds; (2) occasional reaching with her left hand; (3) standing 2 and walking four hours total out of an eight-hour workday; and (4) about three 3 days off work every month due to her impairments or treatment. See AR at 526. 4 The ALJ rejected Dr. Rabinovich’s opinion in favor of Dr. Schmitter’s 5 contrary opinion that plaintiff could: (1) push, pull, or lift up to 50 pounds 6 occasionally and 25 pounds frequently; (2) stand and walk for six hours out of an 7 eight-hour workday; and (3) no indication of days off work due to impairments or 8 treatment. See AR at 33, 55-56. Because Dr. Schmitter is a non-examining source, 9 the ALJ must have provided specific and legitimate reasons, backed by substantial 10 evidence, to reject Dr. Rabinovich’s contradicted opinion. See Lester, 81 F.3d at 11 830-31. 12 As an initial matter, plaintiff appears to treat the two separate opinions from 13 2016 and 2017 as Dr. Rabinovich’s single, seamless opinion. That is not proper in 14 this case given the length of time between the opinions and the fact that, as 15 discussed below, each opinion raises its own temporal concerns due to their 16 remoteness to the DLI. 17 To the extent plaintiff argues the ALJ erred in failing to discuss the 2017 18 opinion, that argument fails. Dr. Rabinovich signed the opinion on August 21, 19 2017, more than seventeen months after the DLI. Thus, the opinion was not 20 probative evidence of plaintiff’s limitations during the relevant period from August 21 31, 2012 to March 31, 2016. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 22 1012 (9th Cir. 2003) (ALJs do not have discuss evidence that is neither significant 23 nor probative); Lombardo v. Schweiker, 749 F.2d 565, 567 (9th Cir. 1984) (ALJ 24 properly disregarded opinion that was based on examination from one and one half 25 years after the expiration of plaintiff’s insured status); see also Wallace v. 26 Berryhill, 2017 WL 3835169, at *3 (C.D. Cal. Aug. 31, 2017) (“[A]n ALJ may 27 entirely ‘disregard’ a medical opinion rendered so far after the LDI that it is 28 1 ‘reasonably’ considered too ‘remote[]’ to have probative value.” (quoting 2 Lombardo, 749 F.2d at 567)); Chavolla v. Colvin, 2014 WL 953422, at *2 (C.D. 3 Cal. Mar. 11, 2014) (“Dr. Lane’s opinions from July and September 2009 were not 4 probative evidence of plaintiff’s limitations during the earlier, relevant period of 5 June 27, 2007[] to May 20, 2009.”). 6 Moving on to the ALJ’s analysis, the ALJ provided four reasons for giving 7 little weight to Dr. Rabinovich’s 2016 opinion. AR at 38. First, the ALJ found 8 that the opinion was inconsistent with the medical record as a whole, which 9 showed normal and mild clinical findings prior to the DLI. Id. The ALJ provided 10 multiple examples of normal medical findings in the section of her decision dealing 11 with plaintiff’s RFC. 12 There are normal exam findings as early as June 14, 2012, particularly 13 concerning sensation and reflexes. See AR at 34, 358. On August 10, 2012, an 14 electrodiagnostic study of plaintiff’s lower extremities came back normal. See AR 15 at 35, 346-48. Other medical exams from mid-2012 to early 2013 showed no 16 reports of weakness, decreased sensation, decreased reflexes, or difficulty walking. 17 See AR at 35, 480-98. 18 On August 1, 2014, an examination by Dr. Kim revealed certain normal 19 exam findings, including normal strength, sensation, and reflexes of the upper and 20 lower extremities, a negative straight leg raise test, and normal gait. See AR at 35, 21 391-95. 22 On February 28, 2015, in preparation for her shoulder surgery, plaintiff 23 exhibited otherwise normal neurological findings regarding motor strength, 24 sensation, and reflexes. See AR at 35, 363-67. After her surgery, plaintiff reported 25 her neck and shoulder pain had improved, and exhibited good range of motion in 26 her left knee. See AR at 35-36, 376, 445. On May 4, 2015, a medical examination 27 revealed full and symmetric muscle strength and normal muscle tone without any 28 1 atrophy or abnormal movements. See AR at 35, 869. Although an MRI of the left 2 shoulder from November 13, 2015 shows moderate osteoarthritis in the 3 acromioclavicular joint (“AC joint”), there was no evidence of labral tear and only 4 mild tendinosis of the subscapularis, supraspinatus, and infraspinatus. See AR at 5 36, 409-10. Other medical exams from 2015 revealed no reports of positive 6 neurological findings or difficulty walking. See AR at 35, 429-35, 441-42, 867, 7 872. 8 Further exams from January 21, 2016 showed no positive neurological 9 findings or difficulty walking. See AR at 35, 425-28, 875. On January 26, 2016, 10 an MRI of plaintiff’s cervical spine came back normal, except for mild right 11 uncovertebral osteophytosis and anteriorly bulging disc without significant 12 narrowing at C5-6, and mild anteriorly and posteriorly bulging disc with minimal 13 effacement of the ventral CSF at C6-7. See AR at 36, 403-04. On March 15, 2016, 14 plaintiff reported that medication helped control her pain, bringing it down from an 15 eight out of ten to two to four out of ten. See AR at 36, 425. This allowed her to 16 perform activities of daily living. See id. 17 Finally, there are multiple normal exam findings, including neurological and 18 gait-related, from after the DLI. See AR 36-37, 652, 877, 879-80, 882, 884-85, 19 887, 890-91, 898-99, 903-04. Some of those examinations occurred as late as 20 2018. See AR at 37, 898-99, 903-04. 21 When the opinion of a treating physician is contradicted by another doctor, 22 the ALJ must provide specific and legitimate reasons, supported by substantial 23 evidence, to reject the opinion. See Smolen, 80 F.3d at 1285. The ALJ can do this 24 by “setting out a detailed and thorough summary of the facts and conflicting 25 clinical evidence, stating his interpretation thereof, and making findings.” Reddick, 26 157 F.3d at 725 (citation omitted). 27 Here, the ALJ adopted the testifying medical expert’s opinion instead of Dr. 28 1 Rabinovich’s, specifically with respect to lifting, carrying, standing, walking, and 2 absenteeism. See AR at 33. In doing so, the ALJ adequately summarized the 3 medical evidence she believed to be inconsistent with Dr. Rabinovich’s opinion. 4 See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (ALJs may discredit a 5 treating opinion that is unsupported by the record as a whole or by objective 6 medical findings). She combed through tens of medical records, many of which 7 she ultimately interpreted as showing normal or mild clinical findings. See 8 Harrington v. Saul, __ Fed. Appx. __, 2021 WL 2433571, at *1 (9th Cir. 2021) 9 (accepting reason that physician’s opinion was inconsistent with the record, which 10 documented “intact or nearly intact functioning”). 11 Plaintiff argues the ALJ failed to address the particular aspects of Dr. 12 Rabinovich’s opinion regarding standing, walking, reaching, and absenteeism that 13 support plaintiff’s disability. See P. Mem. at 9-10. But, as previously summarized, 14 the ALJ gave an extensive list of examples of normal or mild clinical findings that 15 were inconsistent with Dr. Rabinovich’s opined limitations, including those related 16 to standing, walking, reaching, and absenteeism. The ALJ’s explanation was not 17 boilerplate as plaintiff argues. The law does not require “magic words” or 18 “incantations” to reject the opinions of treating physicians. See Magallanes, 881 19 F.2d at 755. Accordingly, this reason was specific, legitimate, and backed by 20 substantial evidence. 21 Second, the ALJ rejected Dr. Rabinovich’s opinion for failing to cite any 22 medical findings, such as imaging, range of motion assessments, antalgic gait, or 23 other exam findings. AR at 38. The form that Dr. Rabinovich used to document 24 his 2016 opinion includes fields for him to explain the medical findings supporting 25 his assessments. See AR at 526. But he left most of those fields blank, providing a 26 basis only for his opinion on sitting, standing, and walking limitations. See id. He 27 stated that his assessment on those abilities was based on “pain on [left] shoulder, 28 1 neck and back pain, tenderness (based on medical examination).” See id. 2 “[A]n ALJ may discredit treating physicians’ opinions that are conclusory, 3 brief, and unsupported by the record as a whole . . . or by objective medical 4 findings.” Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004) (citations 5 omitted). Plaintiff’s subjective symptom complaints to Dr. Rabinovich are not the 6 type of clinical findings sufficient to support an opinion. See id. (finding that ALJ 7 properly discounted treating physician’s opinion that lacked supportive objective 8 evidence and was based on plaintiff’s subjective descriptions of pain). Thus, the 9 ALJ did not err in concluding that Dr. Rabinovich failed to support his 2016 10 opinion with medical findings. 11 Plaintiff argues that Dr. Rabinovich’s comprehensive report accompanying 12 his 2017 opinion provides medical findings in support of his 2016 opinion. See P. 13 Mem. at 10. She contends the ALJ must consider all of the objective evidence that 14 Dr. Rabinovich utilized to form his opinion. See id. at 11. But the court already 15 found that plaintiff’s effort to consolidate the 2016 and 2017 opinions was 16 improper. And, for obvious reasons, Dr. Rabinovich could not have considered 17 those 2017 medical findings in formulating his 2016 opinion. Accordingly, 18 plaintiff’s argument is not persuasive. 19 The ALJ’s third reason for rejecting Dr. Rabinovich’s opinion was that he 20 appeared not to be familiar with the SSA’s precise disability guidelines. AR at 38. 21 The ALJ based her conclusion on Dr. Rabinovich’s failure to include the frequency 22 for his opinion on lifting and carrying limitations or any discussion of postural 23 limitations. See id. 24 The ALJ did not err in discounting Dr. Rabinovich’s opinion regarding 25 lifting and carrying given the clear omission of frequency qualifications. See 20 26 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6) (ALJs may consider familiarity with the 27 Administration’s “disability programs and their evidentiary requirements” when 28 1 evaluating a medical opinion). As plaintiff notes, Dr. Rabinovich did discuss 2 frequency in his later opinion, but the court will not treat the two opinions as one 3 for the reasons previously provided. On the other hand, there is no requirement in 4 the regulations that opinion sources opine on every potential limitation to be 5 considered by the Administration, so that is not a legitimate reason to discredit an 6 entire opinion. The ALJ’s reason is also not applicable to the other limitations in 7 the opinion that did include frequency qualifications, such as sitting, standing, 8 walking. See AR at 526; cf. Gutierrez v. Comm’r, 2016 WL 1305096, at *2 (C.D. 9 Cal. Apr. 1, 2016) (“[E]ven total ignorance of the law would have no logical 10 impact on the validity of Dr. Minkus’[s] opinions regarding Plaintiff’s functional 11 abilities, such as Plaintiff’s tolerances for sitting, standing and walking.” (citations 12 omitted)). Thus, this reason for discounting Dr. Rabinovich’s opinion is only 13 partially legitimate and supported by substantial evidence. 14 The fourth and final reason given by the ALJ was that the opinion was 15 issued eight months after the DLI, does not identify the time period to which the 16 assessments apply, and Dr. Rabinovich did not start treating plaintiff until months 17 after the DLI. See AR at 38. Unless an opinion is too remote from the DLI to be 18 probative, ALJs must consider medical opinions made after the DLI that evaluate a 19 “preexpiration condition.” See Lester, 81 F.3d at 832 (internal quotation marks 20 omitted); Lombardo, 749 F.2d at 567. But remoteness from the DLI can be a 21 proper reason to give an opinion less weight, especially if the source of the opinion 22 did not examine the plaintiff prior to the DLI. See Lombardo, 749 F.3d at 567 23 (rejecting opinion of psychiatrist who examined plaintiff after the DLI); Chavolla, 24 2014 WL 953422, at *2 (same); Mitchell v. Astrue, 2008 WL 486014, at *11 (E.D. 25 Cal. Feb. 15, 2008) (ALJ did not err in giving less weight to opinions from January 26 and April of 2004 where plaintiff’s DLI was March 31, 2003). On the other hand, 27 the court agrees with plaintiff that the ALJ erred in failing to supplement the record 28 1 regarding the extent to which Dr. Rabinovich’s 2016 opinion applied prior to the 2 DLI. See Smolen, 80 F.3d at 1288 (ALJs have a duty to conduct an appropriate 3 inquiry and augment the record if necessary). But that error is harmless because 4 the ALJ supported her evaluation with other substantial evidence as discussed. 5 Accordingly, this reason for discounting Dr. Rabinovich’s opinion was also proper. 6 Plaintiff raises other arguments aside from directly challenging the ALJ’s 7 four reasons for discounting Dr. Rabinovich’s opinion. First, the court rejects 8 plaintiff’s argument that the ALJ did not sufficiently consider Dr. Rabinovich’s 9 status as a board-certified orthopedic surgeon and plaintiff’s treating physician. 10 See P. Mem. at 8. Contrary to plaintiff’s argument, the ALJ did not have to 11 expressly address each of the factors outlined in 20 C.F.R. § 404.1527(c) in her 12 decision. See Kelly v. Berryhill, 732 Fed. Appx. 558, 562 n.4 (9th Cir. May 1, 13 2018). It is enough that the ALJ gives some indication that the factors were 14 properly considered. See id. Here, the court is satisfied the ALJ properly 15 considered all of the relevant factors given that she expressly discussed treatment 16 relationship, supportability, consistency, and familiarity with the SSA’s guidelines. 17 Plaintiff’s argument also fails because Dr. Schmitter, whose opinion the ALJ 18 adopted instead of Dr. Rabinovich’s, is also a board-certified orthopedic surgeon. 19 See AR at 914-15. 20 Second, plaintiff’s argument that the ALJ should have addressed Dr. 21 Rabinovich’s treatment notes is too conclusory to be persuasive. See P. Mem. at 8. 22 Only some of those notes predate the 2016 opinion (see AR at 787-808), which is 23 the only one of Dr. Rabinovich’s opinions that the ALJ found to be of some 24 probative value in this case. And it is unclear whether Dr. Rabinovich even relied 25 on those treatment notes to formulate his 2016 opinion. See AR at 526 (basing his 26 opinion on plaintiff’s subjective pain statements made during an unidentified 27 “medical examination”). Plaintiff also fails to explain how the information in 28 1 those notes supports her arguments. See Williams v. Berryhill, 728 Fed. Appx. 2 709, 711 (9th Cir. 2018) (“We require contentions to be accompanied by reasons.” 3 (internal quotation marks omitted)). 4 Finally, plaintiff argues the ALJ erred in rejecting Dr. Rabinovich’s opinion 5 in favor of the medical expert’s. See P. Mem. at 13. The court addresses that 6 argument in the section on Dr. Schmitter’s opinion. 7 For all of these reasons, the court concludes the ALJ properly considered 8 and discounted Dr. Rabinovich’s 2016 opinion. 9 2. Dr. Kim 10 Dr. Kim conducted a neutral Qualified Medical Evaluation as part of 11 plaintiff’s workers’ compensation claim. P. Mem. at 14; AR at 387-402. He 12 issued his opinion after conducting a physical examination of plaintiff on August 1, 13 2014, and reviewing her medical records. Id. Among other things, Dr. Kim 14 opined that plaintiff “would be restricted from pushing, pulling or lifting greater 15 than 10 pounds.” AR at 396. 16 The ALJ rejected Dr. Kim’s opinion on pushing, pulling, and lifting and 17 adopted Dr. Schmitter’s contrary opinion that plaintiff could push, pull, or lift up to 18 fifty pounds occasionally and twenty-five pounds frequently. See AR at 33, 55-56. 19 Because Dr. Schmitter is a non-examining source, the ALJ must have provided 20 specific and legitimate reasons, backed by substantial evidence, to reject Dr. Kim’s 21 contradicted opinion. See Lester, 81 F.3d at 830-31. 22 The ALJ gave Dr. Kim’s opinion little weight for two reasons. First, the 23 ALJ found that, “as evidenced by the opinion[s], [Dr. Kim is] not familiar with the 24 Social Security Administration’s precise disability guidelines.” AR at 38. Second, 25 the ALJ concluded that Dr. Kim’s opinion was not consistent with the medical 26 evidence as a whole, which shows many normal exam findings. AR at 39. 27 The ALJ’s first reason is only partly legitimate. As previously discussed, 28 1 ALJs may consider a physician’s familiarity with the SSA’s guidelines. 20 C.F.R. 2 §§ 404.1527(c)(6), 416.927(c)(6). The ALJ here essentially inferred that Dr. Kim 3 was unfamiliar with the guidelines given his opinion’s omission of frequency or 4 certain other limitations. See AR at 38-39. This is fair. But familiarity with the 5 guidelines is not necessary to opine that an individual cannot push, pull, or lift 6 more than ten pounds. See, e.g., Gutierrez, 2016 WL 1305096, at *2 (“[E]ven total 7 ignorance of the law would have no logical impact on the validity of Dr. 8 Minkus’[s] opinions regarding Plaintiff’s functional abilities, such as Plaintiff’s 9 tolerances for sitting, standing and walking.” (citations omitted)). 10 Defendant’s caselaw to the contrary is distinguishable because it concerns 11 final determinations of disability or blindness, which are terms of art that have 12 different requirements for purposes of social security and workers’ compensation. 13 See 20 C.F.R. § 404.1504 (“Because a decision by any other governmental agency 14 or a nongovernmental entity about whether you are disabled, blind, employable, or 15 entitled to any benefits is based on its rules, it is not binding on us . . . .”). 16 Adopting a state agency’s disability determination is not the same as adopting a 17 state agency physician’s opinion on limitations; in fact, the regulations require 18 ALJs to consider those opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c) 19 (“Regardless of its source, we will evaluate every medical opinion we receive.”). 20 The ALJ’s second reason to discount Dr. Kim’s opinion, by contrast, is 21 specific, legitimate, and backed by substantial evidence. The ALJ recognized that 22 the medical record contained evidence of severe impairments. AR at 39. But there 23 are also multiple examples of normal medical findings, which the court previously 24 outlined. 25 Of relevance to the part of Dr. Kim’s opinion concerning pushing, pulling, 26 and lifting, plaintiff did not report any weakness or difficulty walking during 27 several medical examinations in late 2012 and early 2013. See AR at 35, 471-98. 28 1 There were also normal exam findings and no reports of positive neurological 2 findings or any difficulty walking during examinations in 2015 and early 2016. 3 See AR at 35-36, 363-67, 425-42, 867, 869, 872, 875. For example, on May 4, 4 2015, plaintiff exhibited full and symmetric muscle strength and normal muscle 5 tone without any atrophy or abnormal movements. AR at 869. Plaintiff also 6 reported improvement in her neck and left shoulder following surgery, including 7 less pain and more movement. See AR at 35-36, 376, 445. In late 2016, plaintiff 8 exhibited normal range of motion, no obvious muscoskeletal deformity, and no 9 neurological deficits. See AR at 36, 652. There were also many normal findings, 10 including neurological and regarding gait in 2017 and 2018. See AR at 37, 887, 11 890-91, 898-99, 903-04. 12 Defendant also notes that Dr. Kim’s own findings appear to contradict his 13 opinion. See D. Mem. at 17-18. Indeed, the ALJ noted that Dr. Kim’s evaluation 14 revealed “many normal exam findings, including normal strength, sensation and 15 reflexes of the upper and lower extremities, a negative straight leg raise, and 16 normal gait.” See AR at 35, 391-95; Santiago v. Saul, 777 Fed. Appx. 237, 238 17 (9th Cir. 2019) (affirming rejection of limitations on lifting capacity where plaintiff 18 “had tenderness, reduced range of motion, and reduced grip strength, but she also 19 had a negative straight-leg raise test, no muscle spasms, normal motor strength, 20 normal sensation, normal reflexes, and no signs of radiculopathy”). 21 In short, the ALJ provided one specific and legitimate reason, backed by 22 substantial evidence, to discount Dr. Kim’s contradicted opinion. See Tommasetti 23 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (incongruity between opinion and 24 plaintiff’s medical records provides specific and legitimate reason to reject 25 opinion). Accordingly, the court finds no error in the ALJ’s evaluation of the 26 opinion. 27 28 1 3. Dr. Schmitter 2 Dr. Schmitter was the medical expert who testified at the hearing. The ALJ 3 summarized Dr. Schmitter’s opinion on plaintiff’s limitations as follows: lifting, 4 carrying, pushing, or pulling 50 pounds occasionally and 25 pounds frequently; 5 standing or walking six hours out of an eight-hour day; no limits on sitting; 6 occasional, light lifting or carrying in the overhead position with the upper left 7 extremity; no limitations on climbing ramps or stairs; occasional bending, 8 crawling, and stooping; and occasional manipulation, including fine touch and 9 feeling, with the upper left extremity. See AR at 37. The ALJ gave significant 10 weight to Dr. Schmitter’s opinion and formulated plaintiff’s RFC based on it. See 11 AR at 33, 38. 12 The ALJ stated she gave significant weight to Dr. Schmitter’s opinion 13 because he is impartial, had reviewed plaintiff’s medical records, is board certified 14 in orthopedic surgery, is familiar with the Social Security Administration’s precise 15 disability guidelines, and his opinion is consistent with the medical record as a 16 whole. AR at 38. The ALJ highlighted this last reason – consistency with the 17 medical record – as the most important. Id. Plaintiff disputes this consistency. 18 Plaintiff first argues that Dr. Schmitter found no hand impairment and no 19 significant pathology in the lumbar spine until challenged on these points by 20 counsel. P. Mem. at 16. It is true that Dr. Schmitter initially omitted plaintiff’s 21 carpal tunnel syndrome from his opinion, but he ultimately testified that it would 22 impair manipulation and fine touch on an occasional basis. See AR at 56, 58-59. 23 As for plaintiff’s lumbar spine, Dr. Schmitter testified that the moderate decrease 24 in the anteroposterior sagittal diameter of the lumbosacral spine was due to normal 25 deterioration and did not amount to anything. See AR at 63. Plaintiff argues that 26 because the decrease was moderate, Dr. Schmitter’s finding that there was no 27 significant pathology in the lumbar spine is erroneous. See P. Mem. at 16. But 28 1 plaintiff’s assertion is not supported by any citation to medical evidence, and is 2 thus insufficient to challenge Dr. Schmitter’s expert opinion on that specific issue. 3 See Toni L. v. Kijakazi, 2021 WL 3891066, at *8 (E.D. Wash. Aug. 31, 2021) 4 (finding that plaintiff “failed to tie the evidence to the arguments” by failing to cite 5 to the medical records). 6 Plaintiff also challenges Dr. Schmitter’s opinion with respect to her left 7 shoulder. The court recognizes that Dr. Schmitter’s discussion of the AC joint 8 separation issue was disorganized. Dr. Schmitter opined that plaintiff’s shoulder 9 separation, identified for the first time in an August 19, 2016 MRI, could reflect an 10 old injury but that it ultimately did not affect his opinion on plaintiff’s limitations. 11 See AR at 37, 65. Initially, Dr. Schmitter explained that although shoulder 12 separation of 12 millimeters was significant, he saw no evidence of pain in the 13 record. See AR at 63-64. But as plaintiff’s counsel noted, there is evidence that 14 plaintiff was suffering from increasing pain in her left shoulder at least as of April 15 6, 2016. See AR at 65-66, 519 (“The left shoulder is very symptomatic with 16 painful arc.”). And Dr. Schmitter testified that generalized shoulder pain could be 17 due to injury to the AC joint. See AR at 65-67. 18 Although Dr. Schmitter eventually conceded that there was indeed evidence 19 that plaintiff had shoulder pain, he refused to amend his opinion on limitations for 20 several other reasons. He explained that the arthroscopic procedure plaintiff had 21 on March 21, 2015 “didn’t find very much,” such as tears in her rotator cuff or 22 labrum. See AR at 66-67. He confirmed plaintiff suffered from tendonitis but 23 explained that his opinion on limitations already accounted for that. See AR at 67. 24 In addition, although Dr. Schmitter did not mention this in his testimony, the ALJ 25 pointed to another MRI report, dated November 13, 2015, that omitted any 26 mention of a separation. See AR at 37 (citing AR at 409, 878). Dr. Schmitter’s 27 opinion regarding medium limitations related to plaintiff’s shoulder is consistent 28 1 with the pieces of evidence that he and the ALJ identified. See AR at 38 (finding 2 Dr. Schmitter’s opinion “consistent with the medical record as a whole, 3 particularly as it pertains to the claimant’s impairments prior to the DLI”); Thomas 4 v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or 5 non-examining physicians may also serve as substantial evidence when the 6 opinions are consistent with independent clinical findings or other evidence in the 7 record.” (citations omitted)). 8 Next, the ALJ did not err in concluding that Dr. Schmitter’s opinion 9 regarding plaintiff’s left knee problems was consistent with the evidence. Dr. 10 Schmitter noted she had full range of motion but showed consistent symptoms of a 11 modest degree due to a knee tear, crepitation in the patella and trochlear groove of 12 the femur, and chondromalacia. See AR at 53, 56, 58, 70. He testified that the 13 knee tear was degenerative, very common at plaintiff’s age of 59 years old, and 14 usually not very severe. See AR at 53-54, 72. He referred to the tear as a minor 15 problem “of not great importance,” that does not usually require surgery. AR at 16 54-55, 72. He testified that the crepitation and chondromalacia were also very 17 common. AR at 70. Taking all of these issues and their severity into account, he 18 opined that plaintiff would have occasional limitations in her ability to crawl, 19 stoop, bend, and kneel. See AR at 58. 20 Plaintiff argues Dr. Schmitter’s opinion is not consistent with the medical 21 evidence because it contradicts the opinions of Dr. Kim and Dr. Ahmed. See P. 22 Mem. at 17. But the ALJ gave little weight to those opinions. See AR at 38. 23 Plaintiff does not dispute the ALJ’s decision as to Dr. Ahmed’s opinion. See 24 Carmickle v. Comm’r, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (“We do not 25 address this finding because [plaintiff] failed to argue this issue with any 26 specificity in his briefing.”). And the court already affirmed the ALJ’s rejection of 27 Dr. Kim’s opinion concerning pushing, pulling, and lifting. 28 1 Plaintiff also argues the ALJ’s finding that her left knee medial meniscal tear 2 was a severe impairment was inconsistent with the significant weight given to Dr. 3 Schmitter’s opinion. See P. Mem. at 18. But her argument relies on a flawed 4 definition of “severe” that gives the term more importance that it deserves at step 5 two. An ALJ’s finding that an impairment is severe at step two means only that it 6 has more than a minimal effect on the claimant’s ability to perform basic work 7 activities. See AR at 32; Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 8 2008) (“The Step Two inquiry is a ‘de minimis screening device to dispose of 9 groundless claims.’” (quoting Smolen, 80 F.3d at 1290)). Thus, the ALJ’s de 10 minimis finding that plaintiff’s knee impairment was severe at step two is not 11 necessarily inconsistent with Dr. Schmitter’s opinion that plaintiff’s ailments are 12 modest and require only occasional limitations. 13 Finally, plaintiff complains that the ALJ erred in giving greater weight to Dr. 14 Schmitter’s opinion than Dr. Rabinovich’s. Plaintiff notes Dr. Schmitter testified 15 that Dr. Rabinovich’s 2016 opinion could be reasonable and the differences 16 between their opinions came down to a judgment call. See P. Mem. at 13-14; AR 17 at 37. Under those circumstances, plaintiff argues the ALJ should not have given 18 more weight to Dr. Schmitter’s opinion. See P. Mem. at 13-14. 19 Plaintiff’s argument fails for several reasons. First, it ignores that the ALJ 20 identified four other reasons for discounting Dr. Rabinovich’s opinion, separate 21 from any conflict with Dr. Schmitter’s opinion. Second, as defendant notes, Dr. 22 Schmitter made that comment in response to a question on whether, considering 23 other evidence identified by plaintiff’s counsel, Dr. Rabinovich’s opinion would be 24 reasonable. See AR at 74. Most of that “other evidence,” however, post-dated the 25 DLI. See AR at 63 (referring to AR at 521), 65 (referring to AR at 519), 69 26 (referring to AR at 754), 71 (referring to AR at 809). Thus, it is unclear whether 27 Dr. Schmitter would have agreed that the 2016 opinion was reasonable if applied 28 1 retroactively. Third, the court is not persuaded that Dr. Schmitter’s comment was 2 all that extraordinary in the context of difficult medical opinions concerning 3 evolving, chronic illnesses. See London v. Colvin, 2014 WL 12557986, at *6 4 (C.D. Cal. Dec. 29, 2014) (ALJ did not err in rejecting examining opinion in favor 5 of medical expert’s opinion despite expert’s testimony that at least part of the 6 dispute boiled down to a judgment call); Santoro v. Astrue, 2012 WL 6853328, at 7 *7-9 (W.D. Wash. Dec. 12, 2012) (although medical consultant stated his 8 disagreement with the examining doctor was a judgment call, “it is solely the 9 province of the ALJ to resolve conflicts in the medical evidence”). 10 For these reasons, the court finds the ALJ did not err in giving significant 11 weight to Dr. Schmitter’s opinion. 12 B. The ALJ Properly Evaluated Plaintiff’s Testimony 13 Plaintiff argues the ALJ erred in considering her testimony regarding pain 14 and symptoms. Plaintiff contends the only reason the ALJ gave for rejecting her 15 allegations was lack of supporting medical evidence, and this reason is legally 16 insufficient. 17 As an initial matter, the court looks to Social Security Ruling (“SSR”) 16-3p 18 for guidance on evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and 19 superseded SSR 96-7p and applies to decisions made on or after March 28, 2016. 20 SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not 21 have the same force and effect as statutes or regulations, they are binding on all 22 components of the Social Security Administration.” Id. (citing 20 C.F.R. 23 § 402.35(b)(1)). 24 In adopting SSR 16-3p, the Social Security Administration sought to “clarify 25 that subjective symptom evaluation is not an examination of an individual’s 26 character.” Id. at *2. 27 [SSR 16-3p] makes clear what our precedent already required: that 28 1 assessments of an individual’s testimony by an ALJ are designed to 2 evaluate the intensity and persistence of symptoms after the ALJ finds 3 that the individual has a medically determinable impairment(s) that 4 could reasonably be expected to produce those symptoms, and not to 5 delve into wide-ranging scrutiny of the claimant’s character and 6 apparent truthfulness. 7 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (internal quotation 8 marks and alterations omitted). 9 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 10 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 11 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 12 produced objective medical evidence of an underlying impairment that could 13 reasonably be expected to produce the symptoms alleged. Id. Second, if the 14 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 15 must evaluate the intensity and persistence of the claimant’s symptoms and 16 determine the extent to which they limit her ability to perform work-related 17 activities. Id. 18 In assessing intensity and persistence, the ALJ may consider: a claimant’s 19 daily activities; the location, duration, frequency, and intensity of the symptoms; 20 precipitating and aggravating factors; the type, dosage, effectiveness, and side 21 effects of medication taken to alleviate the symptoms; other treatment received; 22 other measures used to relieve the symptoms; and other factors concerning the 23 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 24 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen, 80 F.3d at 25 1283-84 & n.8 (9th Cir. 1996)). To reject the claimant’s subjective symptom 26 statements at step two, the ALJ must provide “specific, clear, and convincing” 27 reasons, supported by substantial evidence in the record, for doing so. Id. at 921, 28 1 929. 2 At the first step, the ALJ found plaintiff’s medically determinable 3 impairments could reasonably be expected to cause the symptoms alleged. AR at 4 34. At the second step, the ALJ discounted plaintiff’s testimony concerning the 5 intensity, persistence, and limiting effects of her symptoms as not entirely 6 consistent with the medical evidence and other evidence in the record. Id. 7 Because plaintiff cleared step one and the ALJ found no evidence of malingering, 8 the ALJ’s reasons for discounting plaintiff’s testimony had to be specific, clear, 9 convincing, and supported by substantial evidence. 10 The crux of the parties’ dispute is about which reason or reasons the ALJ 11 actually provided to discount plaintiff’s testimony. The parties agree one of the 12 reasons was the inconsistency between plaintiff’s testimony and the objective 13 medical record, and that the ALJ did not explicitly rely on any particular medical 14 opinion as a reason. See P. Mem. at 2, 6; D. Mem. at 4-8. Plaintiff maintains that 15 was the only reason the ALJ gave. Defendant claims the ALJ offered two 16 additional reasons: that evidence showed plaintiff’s impairments improved with 17 treatment, and that plaintiff attempted to go back to a job that required medium 18 exertional effort. See D. Mem. at 6-7. 19 The ALJ’s discussion of plaintiff’s symptom testimony begins with a 20 summary of her and her counsel’s statements. See AR at 33-34. The ALJ then 21 explains that her symptom testimony is not “entirely consistent with the medical 22 evidence and other evidence in the record for the reasons explained in the 23 decision.” AR at 34. The ALJ goes on to summarize the medical evidence that she 24 interprets to show “many normal exam and mild clinical exam findings.” See AR 25 at 34-37. The court has already outlined that evidence above. 26 Although the ALJ could have been clearer, the court agrees with defendant 27 that she discounted plaintiff’s testimony in part due to evidence showing that her 28 1 impairments improved with treatment. See AR at 35-36. On the other hand, there 2 is no indication whatsoever the ALJ intended to discount plaintiff’s testimony 3 based on her decision to go back to her job at Rite Aid. The ALJ mentioned that 4 fact only in passing in the section summarizing plaintiff’s testimony. See AR at 5 34. There is no discussion showing the ALJ interpreted that fact in a negative 6 light. See id. Accordingly, the court will only consider whether the ALJ erred in 7 rejecting plaintiff’s testimony based on (1) its consistency with the objective 8 medical record and (2) evidence of improvement with treatment. 9 First, the ALJ did more than simply include a boilerplate conclusion. Cf. 10 Lambert v. Saul, 980 F.3d 1266, 1277-78 (9th Cir. 2020) (ALJ must do more than 11 include boilerplate statement that there are inconsistencies without identifying 12 which evidence contradicts which testimony); Brown-Hunter v. Colvin, 806 F.3d 13 487, 494 (9th Cir. 2015) (ALJ did not identify claimant testimony she found to be 14 contradicted). The ALJ properly identified the testimony she found to be not 15 credible (see AR at 33-34), and highlighted inconsistencies between that testimony 16 and the record (see AR at 34-37). ALJs are not required to “perform a line-by-line 17 exegesis of the claimant’s testimony, nor do [the regulations] require ALJs to draft 18 dissertations when denying benefits.” Lambert, 980 F.3d at 1277 (citation 19 omitted). 20 Plaintiff argues the ALJ did not adequately address several pieces of medical 21 evidence that support her testimony. See P. Mem. at 4. That is not accurate. In 22 considering the medical evidence, the ALJ also acknowledged findings that tended 23 to support plaintiff’s symptom testimony concerning her back, neck, shoulder, 24 knee, and hand impairments. See AR at 34-37. Importantly, the ALJ addressed all 25 of the issues that plaintiff lists in her brief. Compare P. Mem. at 4 with AR at 34- 26 37. This is not a case where the ALJ simply cherry-picked isolated instances of 27 normal or improved symptoms, instead of considering the record as a whole. See 28 1 Holohan, 246 F.3d at 1207 (“[T]he ALJ selectively relied on some entries in 2 Holohan’s records from San Francisco General Hospital and ignored the many 3 others that indicated continued, severe impairment.”). 4 Second, the ALJ discounted plaintiff’s testimony because of evidence 5 showing her impairments improved with treatment. See AR at 35-36. Specifically, 6 the ALJ noted that acupuncture decreased plaintiff’s pain and numbness in her 7 hands. See AR at 35 (citing AR at 484). And the ALJ recognized that, following 8 her shoulder surgery in early 2015, plaintiff reported her neck and shoulder pain 9 improved. See id. at 35-36 (citing AR at 376, 445). There was also evidence from 10 early 2016 that medications helped control plaintiff’s pain, bringing it down from 11 an eight out of ten to two to four out of ten, which allowed her to perform activities 12 of daily living. See AR at 36 (citing AR at 425-26). Thus, this was also a clear 13 and convincing reason, backed by substantial evidence, to reject plaintiff’s 14 testimony. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (ALJs must consider effect of 15 medication and other treatment on pain or other symptoms); Morales v. Astrue, 300 16 Fed. Appx. 457, 459 (9th Cir. 2008) (“Medical improvement is a clear and 17 convincing reason for rejecting a claimant’s testimony.”); Celaya v. Halter, 332 18 F.3d 1177, 1181 (9th Cir. 2003) (ALJ’s finding that symptoms were controlled was 19 clear and convincing reason to reject plaintiff’s testimony). 20 To summarize, the ALJ provided two specific, clear, and convincing 21 reasons, supported by substantial evidence, to discount plaintiff’s symptom 22 testimony. Accordingly, the court finds no error in the ALJ’s conclusion. 23 C. The ALJ Properly Concluded that Plaintiff’s Past Relevant Work as a 24 Freezer Operator Was Not a Composite Job 25 Plaintiff argues the ALJ should have found that plaintiff had a composite 26 job. P. Mem. at 19. Plaintiff contends that she was, in effect, performing both the 27 occupations of freezer operator and ice cream freezer assistant at the same time. 28 1 See id. at 20. Because the vocational expert testified plaintiff was not capable of 2 performing the ice cream freezer assistant job, plaintiff argues the ALJ should have 3 concluded she could not perform her composite job. See id. at 20-21. Plaintiff also 4 argues the vocational expert did not provide a proper explanation or rationale for 5 her conclusion that plaintiff’s job was not composite. See id. at 20. 6 At step four, plaintiff had the burden to prove she could not perform her past 7 relevant work “either as actually performed or as generally performed in the 8 national economy.” Carmickle, 533 F.3d at 1166 (internal quotation marks 9 omitted). In defining plaintiff’s past relevant work, the ALJ must keep in mind 10 that “[e]very occupation consists of a myriad of tasks, each involving different 11 degrees of physical exertion.” Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 12 1985). If a prior occupation has significant elements of two or more occupations, it 13 is classified as a “composite job” with no counterpart in the Dictionary of 14 Occupational Titles (“DOT”). Jesus P. v. Berryhill, 2019 WL 134552, at *3 (C.D. 15 Cal. Jan. 8, 2019) (citing SSA Program Operations Manual Sys. (“POMS”) DI 16 25005.020(B), https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020 (last visited 17 Sept. 21, 2021)); SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982). Whenever a 18 claimant’s past relevant work is a composite job, the ALJ considers only whether 19 the claimant can still perform it as it was actually performed. Jesus P., 2019 WL 20 134552, at *3 (citations omitted). 21 In general, ALJs may not define past relevant work according to its least 22 demanding function. Valencia, 751 F.2d at 1086. But this rule does not apply 23 where “(1) the ‘least demanding function’ is a task that the claimant actually 24 performed most of the time; and (2) the DOT defines the claimant’s past job as 25 requiring only that least demanding function.” Stacy v. Colvin, 825 F.3d 563, 570 26 (9th Cir. 2016) (ALJ properly classified past work as “supervisor” where 27 supervisory duties accounted for 70 to 75 percent of the job). 28 1 Plaintiff testified that she worked as a freezer operator at Humboldt 2 Creamery until 2009. AR at 76-77. Her job included setting up an ice cream 3 machine, bringing ingredients and popsicle sticks to the machine, loading 4 ingredients and materials into the machine, and running it to make ice cream 5 products. See AR at 77, 94. She testified the job involved lifting up to 50 or 55 6 pounds. AR at 77-78, 94. 7 The vocational expert testified that plaintiff’s work as a freezer operator was 8 light pursuant to the DOT but medium as performed by plaintiff. See AR at 89. 9 The expert concluded that, based on the ALJ’s hypothetical question regarding 10 someone with plaintiff’s RFC, plaintiff could still perform the freezer operator job 11 as generally performed in the national economy but not as actually performed. See 12 AR at 90-92. 13 Plaintiff’s counsel asked the vocational expert whether plaintiff’s freezer 14 operator job should be classified as a composite job based on the totality of the 15 duties it required as actually performed. AR at 95. After questioning plaintiff 16 further, the expert concluded that it was not a composite job because any duties 17 that required getting and returning supplies would not be performed all day. See 18 AR at 95-96. 19 Based on the vocational expert’s testimony, the ALJ concluded plaintiff 20 could engage in her past relevant work as a freezer operator as generally 21 performed. AR at 39-40. The ALJ agreed that the position was not a composite 22 job because plaintiff’s duties to shuttle ingredients and clean up were only 23 incidental to the main job of freezer operator. See AR at 40. 24 The court finds the ALJ did not err in concluding that plaintiff’s past 25 relevant work as a freezer operator was not a composite job. Plaintiff failed to 26 present any evidence tending to show that the task of shuttling ingredients was a 27 significant part of her job. See Hurtado v. Berryhill, 2017 WL 2056165, at *4 28 1 | (C.D. Cal. May 12, 2017) (plaintiff has the burden to show that her prior job had 2 || significant elements of two or more occupations). Instead, when asked for more 3 || details about the duties of the freezer operator job, plaintiff testified that getting 4 | ingredients was only part of the “setup” for the main task of making the ice cream. 5 || AR at 96. In other words, the fact that plaintiff had to engage in medium-level 6 || work occasionally did not alter the fundamental nature of her work that involved 7 || the less-demanding task of running an ice cream machine. See Stacy, 825 F.3d at 8 | 570 (“This case is .. . distinguishable from Carmickle, Valencia, and Vertigan, 9 || where the claimants performed less-demanding tasks only occasionally.”’); SSR 82- 10 | 61, 1982 WL 31387, at *2 (“[I]f the claimant cannot perform the excessive 11 functional demands and/or job duties actually required in the former job but can 12 || perform the functional demands and job duties as generally required by employers 13 | throughout the economy, the claimant should be found to be ‘not disabled.””). 14 || Therefore, the ALJ did not err in concluding that plaintiff did not have a composite 15 job. 16 V. 17 CONCLUSION 18 IT IS THEREFORE ORDERED that Judgment shall be entered 19 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 20 || this action with prejudice. 21 : Rep 23 | DATED: September 30, 2021 24 Cinited States Magistrate Judge 25 26 27 28 28