Eastman v. Saul

• Court: District Court, S.D. California
• Decided: January 30, 2023
• Docket: 3:21-cv-00655
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK E., Case No.: 21cv655-GPC(KSC)

12 Plaintiff, REPORT AND RECOMMENDA- 13 v. TION 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16

17 18 On April 14, 2021, plaintiff Mark E. commenced an action pursuant to Title 42, 19 United States Code, Section 405(g), against Andrew M. Saul, the Commissioner of 20 Social Security, seeking review of a final adverse decision of the Commissioner.1 [Doc. 21 No. 1.] Currently before the Court is the parties’ Joint Submission. In the Joint 22 Submission, plaintiff seeks a reversal and remand of the Commissioner’s final decision. 23 [Doc. No. 17, at p. 23.] Defendant argues that the Commissioner’s final decision should 24 be affirmed because it is supported by substantial evidence and free of legal error. [Doc. 25

26 27 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi, who became the Acting Commissioner of Social Security on or about June 9, 2021, is 28 1 No. 17, at p. 23.] For the reasons outlined more fully below, IT IS RECOMMENDED 2 that the District Court DENY plaintiff’s request for a remand and GRANT defendant’s 3 request to affirm the Commissioner’s final non-disability determination. [Doc. No. 17.] 4 I. Background and Procedural History. 5 Plaintiff filed an application for Social Security disability insurance benefits on 6 January 5, 2016 alleging he was disabled as of October 28, 2014, and had stopped 7 working on this date because of his medical condition. [Doc. No. 11-5, at p. 2.] At this 8 time, plaintiff’s claimed medical conditions included a low back injury; a neck injury; 9 ADD; and depression. [Doc. No. 11-6, at p. 5.] In a Function Report submitted in 10 connection with his application, plaintiff represented that sciatic nerve pain prevented 11 him from doing “most everything involving moving, sitting, [and] standing,” including 12 cooking, personal care, and driving. [Doc. No. 11-6, at p. 27-30.] Plaintiff’s application 13 for benefits was denied on April 7, 2016. [Doc. No. 11-4, at pp. 2-5.] He then submitted 14 a request for reconsideration on June 7, 2016, which was denied on July 22, 2016. [Doc. 15 No. 11-4, at pp. 6, 7-11.] 16 On September 22, 2016, plaintiff requested a hearing, and a hearing was then held 17 before an ALJ on May 30, 2018. [Doc. No. 11-4, at p. 12; Doc. No. 11-2, at p. 61.] In a 18 written decision dated September 12, 2018, the ALJ concluded plaintiff is not eligible for 19 disability benefits, because he was not disabled under Social Security regulations from 20 October 28, 2014, his alleged date of onset, through the date of the ALJ’s decision. [Doc. 21 No. 11-2, at p. 54.] Plaintiff then requested review of the ALJ’s decision by the Appeals 22 Council, but the Appeals Council concluded in a letter dated June 4, 2020, that there was 23 no basis for changing the ALJ’s decision. [Doc. No. 11-2, at pp. 35-36; Doc. No. 11-2, at 24 pp. 5-8.] Therefore, the ALJ’s denial became the final decision of the Commissioner. 25 Plaintiff then filed his Complaint in this action on April 14, 2021 seeking review of the 26 ALJ’s decision. [Doc. No. 1.] 27 / / / 28 / / / 1 II. Standards of Review. 2 The final decision of the Commissioner must be affirmed if it is supported by 3 substantial evidence and if the Commissioner has applied the correct legal standards. 4 Batson v. Comm'r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 5 Under the substantial evidence standard, the Commissioner's findings are upheld if 6 supported by inferences reasonably drawn from the record. Id. If there is evidence in the 7 record to support more than one rational interpretation, the District Court must defer to 8 the Commissioner's decision. Id. "Substantial evidence means such relevant evidence as a 9 reasonable mind might accept as adequate to support a conclusion." Osenbrock v. Apfel, 10 240 F.3d 1157, 1162 (9th Cir. 2001). "In determining whether the Commissioner's 11 findings are supported by substantial evidence, we must consider the evidence as a 12 whole, weighing both the evidence that supports and the evidence that detracts from the 13 Commissioner's conclusion." Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 14 III. The Administrative Record. 15 A. Summary of the Administrative Hearing. 16 At the administrative hearing, the ALJ heard testimony from plaintiff; plaintiff’s 17 ex-wife, Stacey Eastman, who lives in the same household as plaintiff and their three 18 children; and Gloria Lasoff, a vocational expert. 19 1. Plaintiff’s Testimony. 20 Plaintiff testified that he previously worked as a farmers’ market vendor selling 21 fruits and vegetables; a swim and fitness instructor; and a fitness consultant. [Doc. No. 22 11-2, at pp. 66-68.] He stopped working in October of 2014 after injuring his lumbar 23 spine, mid back, and neck in a motor vehicle accident. [Doc. No. 11-2, at p. 69.] 24 Initially, plaintiff was treated by a chiropractor but later had an MRI when he did not get 25 better. He had pain radiating down his right leg into his foot and had difficulty walking. 26 On July 13, 2015, he had surgery, which “took the edge off” of his pain, but “did not fix 27 the problem well enough.” [Doc. No. 11-2, at pp. 69-71.] His pain has improved with 28 “PRP injection[s]” and other types of therapy, such as Egoscue exercises; Epsom salt 1 soaks; a decompression and inversion table; and myofascial release. However, if he 2 “mess[es] up,” he returns to a “pain cycle” that can take months to reverse. [Doc. No. 11- 3 2, at pp. 71-73.] Although he has a prescription for Hydrocodone, he has not “taken it in 4 a while” because he does not like like the side effects, and it does not “really touch the 5 pain well enough to justify constantly ingesting it.” [Doc. No. 11-2, at pp. 72-73.] He 6 previously had a prescription for Gabapentin, but it was not effective. [Doc. No. 11-2, at 7 p. 73.] He is not currently taking either of these medications. [Doc. No. 11-2, at pp. 72- 8 73.] 9 Plaintiff does not believe he would be able to work because he has a tough time 10 standing and sitting for long periods of time. He has tried typing while laying on his back 11 to see if he could do a “data entry” job, but his neck “is crooked up and that causes a lot 12 of pain in the spine” and sends him into a “pain cycle,” so he cannot do it for very long. 13 [Doc. No. 11-2, at p. 73.] He can stand for a short walk of 10 to 15 minutes or stand for a 14 few minutes to cook a meal but then has to rest. After taking a car ride for “a couple 15 hours,” plaintiff said he “was pretty inflamed” and it lasted “a couple days.” [Doc. No. 16 11-2, at pp. 73-74.] He can sit for 20 to 30 minutes; take a short walk for about 15 17 minutes; cook a simple meal for about 20 minutes; “chip in” with laundry; and drive for 18 ten minutes at a time to take the kids to and from school. If he is not doing therapy or 19 chores, he is lying down to rest. [Doc. No. 11-2, at pp. 73-76.] For most of the day, 20 plaintiff testified that he is “just lying still.” [Doc. No. 11-2, at p. 75.] He estimated he is 21 lying down for about 14 hours a day. [Doc. No. 11-2, at p. 75.] 22 2. Testimony of Plaintiff’s Ex-Wife. 23 Plaintiff’s ex-wife, who lives with plaintiff and their three children, was asked to 24 describe what her husband does during the day. She said he takes an Epsom salt bath for 25 an hour or two; does Egoscue and other therapeutic exercises for two to four hours; helps 26 supervise the children; goes to the gym to swim or for hot or cold therapy; makes a meal; 27 lies down; and picks up the kids from their school about ten minutes away from home. 28 [Doc. No. 11-2, at pp. 77-79.] 1 3. Vocational Expert’s Testimony. 2 The vocational expert was asked to consider an individual of plaintiff’s age, 3 education, and work experience, who could lift or carry ten pounds occasionally and less 4 than ten pounds frequently; sit for six hours; stand or walk for two hours; push or pull but 5 never climb ladders, ropes or scaffolds; occasionally perform other postural activities; 6 and avoid exposure to wetness, vibrations, and unprotected heights or dangerous moving 7 machinery. [Doc. No. 11-2, at pp. 84-85.] The vocational expert testified that such an 8 individual could not perform plaintiff’s prior relevant work but could do sedentary work 9 as a document preparer; table worker; or production worker and that these jobs exist in 10 significant numbers in the national economy. [Doc. No. 11-2, at p. 85.] If such an 11 individual could alternate between sitting, standing, and walking, light jobs, such as that 12 of “cashier II” and “assembler,” would also be available in significant numbers in the 13 national economy. [Doc. No. 11-2, at pp. 85-87.] However, if such an individual was 14 “off task for 15% or more of a work schedule” because of “constant position changes or 15 the need for rest outside of the normal rest periods,” no jobs would be available. [Doc. 16 No. 11-2, at p. 88.] 17 B. Summary of Medical Treatment Records. 18 Plaintiff’s medical records indicate he was in a motor vehicle accident in October 19 2014. While stopped, his vehicle was rear ended by another vehicle that was traveling at 20 a high speed. Aches and pains came on gradually after the accident. [Doc. No. 11-7, at 21 p. 3.] On March 31, 2015, plaintiff was evaluated by a chiropractor for treatment of hip 22 and low back pain that was radiating down his right leg; frequent headaches; and pain 23 and spasms in his upper back and neck. [Doc. No. 11-7, at p. 78.] 24 Plaintiff had an orthopedic consultation on April 2, 2015 and reported he had 25 increasing low back pain that was intermittently radiating down his right leg all the way 26 to his foot and weakness in lifting the great toe on his right foot. [Doc. No. 11-7, at pp. 27 3-4.] The orthopedic doctor was most concerned about the weakness plaintiff was 28 experiencing in his right ankle and right great toe, so he ordered MRIs for his right hip 1 and lumbrosacral spine. [Doc. No. 11-7, at p. 5.] An MRI of the lumbrosacral spine 2 revealed “a rather huge central and right pericentral disk extrustion at L4-L5, which was 3 causing right-side neuroforaminal narrowing.” [Doc. 11-7, at p. 6.] The orthopedic 4 doctor concluded that the MRI results explained plaintiff’s “right let symptomatology.” 5 [Doc. No. 11-7, at p. 6.] Various treatment options were discussed, but plaintiff was 6 advised that “the only thing that will cure the lumbosacral spine is surgery,” so plaintiff 7 was referred to a spine surgeon. [Doc. No. 11-7, at p. 6.] 8 On July 13, 2015, plaintiff had “minimally invasive” surgery on his back at 9 Alvarado Hospital to address the herniated disc at L4-L5. There were no complications. 10 [Doc. No. 11-7, at pp. 13-14.] A progress report dated August 12, 2015 notes there was 11 “neurological improvement.” [Doc. 11-7, at p. 13.] However, plaintiff’s gait was 12 markedly antalgic and he was using a crutch. There was a 1 cm atrophy of the right calf 13 compared with the left, and plaintiff was still having “significant persistent pain” that 14 appeared to be mainly from the hip. An intra-articular injection and continued physical 15 therapy were recommended. [Doc. No. 11-7, at pp. 36-37.] 16 A second progress report dated October 22, 2015 states that plaintiff continued to 17 have “significant persistent pain.” [Doc. No. 11-7, at p. 33. He had only had a 30 percent 18 response from a right hip injection, and his right hip was only “a minor component of his 19 pain.” [Doc. No. 11-7, at p. 34.] There was concern that he may have “residual disc 20 material or his L5-S1 spondylolisthesis may be symptomatic.” [Doc. No. 11-7, at p. 34.] 21 An “L spine” MRI was ordered to evaluate “persistent right back and leg pain.” [Doc. 22 No. 11-7, at p. 34.] The MRI confirmed “L5-S1 spondylolisthesis” that “could result in 23 neural foraminal narrowing affecting the exiting L5 nerve roots.” [Doc. No. 11-7, at 24 p. 46.] Thereafter, “serial selective injections” were ordered “for both diagnostic and 25 therapeutic purposes.” [Doc. No. 11-7, at p. 31.] 26 On December 16, 2015, plaintiff sought treatment for chronic headaches and 27 chronic neck and back pain plus intermittent numbness in his hands and the soles of his 28 feet. His lower back pain was reportedly 8 out 10 and neck pain was 6 out of 10. He was 1 unable to work or to sit or stand for more than 15 minutes. [Doc. No. 11-7, at p. 62.] He 2 felt like his legs and grip strength were weaker and he had resorted to a sedentary 3 lifestyle. A physical examination revealed limited flexion and extension with lots of 4 pain, but his grip strength was 5 out of 5. Plaintiff was referred to pain management, 5 physical therapy, and neurology. Norco was prescribed for pain. [Doc. No. 11-7, at pp. 6 62-63.] 7 At a pain management consultation on December 29, 2015, plaintiff said he had 8 8 out of 10 numbing, shooting, and sharp pains in his lumbar spine and right leg. The pain 9 was exacerbated by prolonged sitting or standing but improved with walking. As 10 conservative therapies had failed, steroid injections were recommended but plaintiff 11 elected to hold off on injections and get a second surgical opinion. Plaintiff was started 12 on a “Medrol dose pack,” Celebrex, and Gabapentin, and his prescription for Norco was 13 refilled, but the “overall goal” was to address his pain with steroid injections and non- 14 opiod medications. [Doc. No. 11-7, at pp. 66-68.] 15 On January 13, 2016, plaintiff reported to his primary care doctor that he was 16 taking Advil three times a day and Norco about twice per day as needed. He planned to 17 start physical therapy and to have a neurological examination “to look into hand 18 numbness.” [Doc. No. 11-7, at p. 60.] At this time, his overall sense of well-being was 19 “much better.” [[Doc. No. 11-7, at p. 60.] He was to continue walking for exercise as 20 tolerated. [Doc. No. 11-7, at p. 60.] 21 In a report to the Department of Social Services dated February 5, 2016, plaintiff’s 22 chiropractor stated plaintiff had been treated with spinal adjustments, manual traction, 23 mechanical massage, and myofascial therapy for severe right low back and hip pain that 24 radiated down the right leg to his ankle; frequent headaches; and neck and upper back 25 pain. The chiropractor reported that when plaintiff was evaluated on March 31, 2015, he 26 was unable to walk on his heels; perform “bilateral leg lower” or lumbar range of motion 27 due to pain. His movements were guarded and he made vocal and facial expressions of 28 pain when he moved. [Doc. No. 11-7, at pp. 78-79.] However, the chiropractor’s notes 1 state that plaintiff’s “subjective symptoms appear to exceed his exam findings.” [Doc. 2 No 11-7, at p. 79.] After evaluation and treatment on March 31, 2015, plaintiff did not 3 return to this chiropractor for any additional care. [Doc. No. 11-7, at p. 79.] 4 On February 6, 2016, plaintiff established care with another health care provider 5 with new health care coverage and requested a referral to pain management and an early 6 refill of Percocet pending consultation with a pain management specialist. At this time, 7 plaintiff was using crutches for ambulation and had an unstable gait. Straight leg raises 8 increased radicular pain. The doctor advised him of the “local narcotic policy” and 9 limited a refill of his pain medication to a two-week supply. Plaintiff was also referred to 10 neurology for further diagnostic and intervention studies. [Doc. No. 11-7, at pp. 14-16.] 11 On February 9, 2016, plaintiff had a Platelet Rich Plasma Autologous Graft 12 treatment that was injected into his right iliolumbar ligaments and sacroiliac joint. [Doc. 13 No. 11-7, at p. 88.] 14 On February 11, 2016, plaintiff sought treatment of pain from a new chiropractor 15 for stabbing, aching pain, as well as cramping and tingling, in his lower back. The 16 chiropractor noted that plaintiff’s “prognosis is guarded and uncertain” as there was no 17 change after the adjustment. The chiropractor recommended spinal “decompression 18 treatments” until he returns to pre-accident functioning. [Doc. No. 11-7, at p. 142.] 19 These treatments continued on a frequent basis until June 30, 2016. [Doc. No. 11-7, at 20 pp. 128-142.] However, plaintiff did not respond well to these treatments. The final 21 treatment note from June 30, 2016 states plaintiff was “not responding to treatment” and 22 his “condition is failing to change as was expected.” [Doc. No. 11-7, at p. 128.] It was 23 the chiropractor’s view that plaintiff would need additional surgery, and he reported to 24 the Department of Social Services in a letter dated July 5, 2016 that plaintiff had 25 functional limitations in “sitting, lifting, twisting and traveling.” [Doc. No. 11-7, at 26 p. 127.] 27 On March 23, 2016, plaintiff returned to the place where he had the Platelet Rich 28 Plasma Autologous Graft treatment. The notes from the visit state that plaintiff had 1 “great success” from the treatment and was “down to one pain pill a day from eight.” 2 [Doc. No. 11-7, at p. 87.] The notes also indicate plaintiff “is now doing physical 3 activities and exercising such as swimming. He is also doing decompression.” [Doc. No. 4 11-7, at p. 87.] 5 On April 18, 2016, plaintiff’s chief complaints were lower back pain and “bilateral 6 hand numbness” that was “symmetric bilaterally and mostly in the 4.5 digits and 7 occasionally the thumb.” [Doc. No. 11-7, at p. 90.] Plaintiff also indicated he had neck 8 pain and “radicular symptoms to the triceps mostly at night when he is sleeping.” [Doc. 9 No. 11-7, at p. 90.] However, the treatment notes states there was “[n]o loss of strength 10 or muscle atrophy in his hands.” [Doc. No. 11-7, at p. 90.] An MRI of the cervical and 11 lumbar spine areas and an EMG/NCV study of both upper extremities were 12 recommended, and plaintiff was directed to follow up with a pain specialist. [Doc. No. 13 11-7, at pp. 91-92.] 14 On June 7, 2016, an EMG and a motor nerve conduction study were completed 15 because plaintiff was complaining of “bilateral hand numbness in digits 4-5.” [Doc. No. 16 11-7, at p. 93.] The results were “mildly abnormal.” [Doc. No. 11-7, at p. 93.] 17 According to the report, “[t]here is electrodiagnostic evidence of an active left C3 18 radiculopathy possibly subacute. No evidence of entrapment neuropathy or peripheral 19 neuropathy was present on the study.” [Doc. No. 11-7, at p. 93.] Additionally, results of 20 motor nerve conduction and sensory nerve conduction studies were “normal.” [Doc. No. 21 11-7, at p. 93.] 22 On July 7, 2016, plaintiff had a consultation with a certified neurosurgeon for a 23 neurosurgical opinion. The surgeon’s report indicates plaintiff still had “symptomatic 24 cervical radiculopathy” and “lumbar radiculopathy” despite conservative treatments and 25 the passage of time. [Doc. No. 11-7, at p. 145.] A physical examination was completed, 26 and the surgeon’s report includes the following notations concerning plaintiff’s motor 27 strength: “4+/5 right knee flexion, knee extension, foot dorsiflexion, plantar flexion, and 28 EHL. 5/5 bilateral digit flexion, digit extension, deltoid, bicep, and tricep. The patient is 1 right-hand dominant.” [Doc. No. 11-7, at p. 146.] As to grip strength, plaintiff 2 reportedly had “90/90/90 kg of force in his dominant right hand and 60/60/60 kg of force 3 in his left hand.” [Doc. No. 11-7, at p. 146.] Severe back pain and spasm were noted 4 with “positive straight leg raising bilaterally.” [Doc. No. 11-7, at p. 146.] An 5 examination of the cervical spine revealed “significant neck pain and spasm.” [Doc. No. 6 11-7, at p. 146.] The surgeon also reviewed plaintiff’s MRI results from May 23, 2016. 7 Based on his evaluation, the surgeon recommended a trial of physical therapy and a 8 diagnostic CT scan of the lumbar spine. He indicated there was potential for surgical 9 intervention of the cervical spine, as well as the lumbar spine (i.e., a transforaminal 10 lumbar fusion at L4-S1). 11 Treatment notes from plaintiff’s primary care provider dated August 30, 2016 12 indicate plaintiff was participating in physical therapy and was interested in having 13 epidural injections to treat his pain. [Doc. No. 11-8, at p. 92.] His prescriptions for 14 Norco and Gabapentin were refilled. [Doc. No. 11-8, at p. 95.] He was opposed to 15 taking any NSAIDs because a physician who performs stem cell therapy told him 16 NSAIDs would interfere with circulation at the injection site. [Doc. No. 11-8, at p. 95.] 17 In a follow-up appointment on October 31, 2016, plaintiff reported “significant 18 improvement” in his back pain since starting “Egoscue physical therapy exercises 6 19 weeks ago.” [Doc. No. 11-8, at p. 89.] The therapy involves “menus” of exercises 20 provided to him by a physical therapist over the phone. Plaintiff reported he met with a 21 pain management specialist but had declined interventional therapies (epidural or steroid 22 injections), as well as stem cell therapy, because of his pain improvement. However, 23 plaintiff did say that his pain is aggravated by prolonged sitting and he is taking Norco 24 for breakthrough pain. [Doc. No. 11-8, at p. 89.] His gait was normal; the range of 25 motion in his lumbar spine was “near normal;” and he was moving “all extremities well.” 26 [Doc. No. 11-8, at p. 90.] Plaintiff’s prescriptions for Norco and Gabapentin were 27 refilled, but the doctor told plaintiff he could not “indefinitely refill narcotic analgesics” 28 unless there was “some sort of treatment plan.” [Doc. No. 11-8, at p. 90.] 1 On November 28, 2016, the Social Security Disability Office in San Diego 2 received two handwritten notes. The first was apparently written by a physician’s 3 assistant, stating that plaintiff has a lumbar and cervical spine condition and has the 4 following work restrictions: No lifting greater than 20 pounds; avoid prolonged sitting, 5 standing, or walking; and minimize bending and twisting of the lumbar spine. [Doc. No. 6 11-7, at p. 47.] The second handwritten note was apparently written by a physical 7 therapist and is dated October 21, 2016. The note states that plaintiff participated in 8 physical therapy for back pain in July 2016 and has a history of lumbar spine surgery. 9 Because of his condition, the note states that plaintiff has “functional limitations” in his 10 ability to lift, and sit and walk for prolonged periods. [Doc. No. 11-7, at p. 149.] The 11 ALJ afforded the opinions in these notes “little weight,” because they were not made by 12 physicians and because they conflict with “substantial evidence” in the record. [Doc. No. 13 11-2, at pp. 50-51.] 14 Plaintiff had a follow-up appointment with his primary care physician on 15 February 22, 2017 and sought a second surgical evaluation from neurology; chiropractic 16 care; aqua therapy; and prescription refills. He described “right radicular pain affecting 17 the right hip, right arm, as well as weakness in the right lower extremity,” and he said he 18 was wearing a back brace when sedentary. [Doc. No. 11-8, at p. 84-87.] The treatment 19 notes state plaintiff was not being followed by a pain management specialist and had 20 declined interventional therapies at his previous visit. Although detailed testing was not 21 done, the treatment notes state plaintiff had an antalgic gate but was moving all 22 extremities well. Plaintiff’s prescriptions for Norco and Gabapentin were refilled. [Doc. 23 No. 11-8, at p. 87.] 24 An MRI of the lumbar spine completed on April 29, 2017 concluded plaintiff had 25 “[m]ild to moderate multilevel degenerative changes . . . including an annular fissure 26 within L2-L3 disc.” [Doc. No. 11-8, at pp. 108-109.] Thereafter, on May 3, 2017, 27 plaintiff indicated to his primary care physician that he wanted to continue with 28 conservative, non-surgical treatment. [Doc. No. 11-8, at p. 23.] 1 Plaintiff had an initial visit with a chircopractor on July 21, 2017 and described 2 level 2 out of 10 pain (a “dull ache”) that could reach 8 out of 10 at its worst in his lower 3 back, right hip, and buttocks with no radiation of pain into his legs. [Doc. No. 11-8, at p. 4 69.] He said that the pain was “constant, every day” and was “getting worse as time goes 5 by.” [Doc. No. 11-8, at p. 69.] The pain was aggravated by bending, lifting, and sitting 6 or standing for too long and relieved by stretching, massage, trigger point therapy, 7 manipulation, and swimming. Plaintiff also described moderate, level 4 pain in his neck 8 that is “getting worse” and “comes and goes” about 2 to 3 times per week. [Doc. No. 11- 9 8, at p. 69.] The treatment goals were to reduce pain levels from 2 out of 10 to 1 out of 10 10 and to increase strength and flexibility so that plaintiff could “optimally perform all 11 activities of daily living.” [Doc. No. 11-8, at p. 70.] 12 Following the initial visit with the chiropractor on July 21, 2017, the record 13 indicates that plaintiff continued with treatments on a regular basis through April 20, 14 2018. [Doc. No. 11-8, at pp. 2-4, 5-6, 7-8, 9-10, 15-16, 16-18, 19-20, 21-22, 23-24, 25- 15 26, 32-33, 34-35, 35-37, 42-43, 44-45, 45-47, 48-49, 56-57, 58-59, 66-68.] During these 16 visits, the treatment goals remained the same, and all pain was classified by the 17 chiropractor as “moderate.” Plaintiff’s remarks at these visits varied -- “about the same;” 18 “a little better;” “getting worse;” “[e]xcellent, working out at the gym again.” [See, e.g., 19 Doc. No. 11-8, at pp. 48, 58, 66.] On October 20, 2017, plaintiff remarked that the 20 “treatment always helps,” but he still has “stiffness and pain.” [Doc. No. 11-8, at p. 41.] 21 On November 8, 2017, plaintiff complained to his primary care physician of pain 22 and tightness in the third finger on his left hand and said he may have broken his finger a 23 few months back. The interphalangeal joint was tender and slightly swollen, and he was 24 unable to completely close his finger while making a fist, so x-rays were ordered. [Doc. 25 No. 11-8, at pp. 38-40.] The treatment notes state that: “Typically finger pain will 26 improve over time.” [Doc. No. 11-8, at p. 40.] Plaintiff also complained of “mild sciatic 27 pain when bending his head down or bending forward” and “tight hip flexors.” [Doc. No. 28 11-8, at p. 38.] Plaintiff also reported he had been receiving epidural stem cell therapy 1 and “PRP” for lumbar pain and requested an “interval MRI” to determine whether or not 2 the treatments had been beneficial. [Doc. No. 11-8, at p. 38.] At this time, plaintiff was 3 no longer taking Gabapentin and was only taking Norco “occasionally” for pain. [Doc. 4 No. 11-8, at p. 38.] 5 On November 10, 2017, plaintiff told the chiropractor that he had not had any 6 “major flare-ups;” that he had “tingling in his fingers;” and that his neck, lower back, 7 middle back, hips, and knees were sore. [Doc. No. 11-8, at p. 36.] Plaintiff also reported 8 tingling and soreness in his fingers on December 1, 2017 [Doc. No. 11-8, at p. 34]; 9 December 15, 2017 [Doc. No. 11-8, at p. 32]; and April 20, 2018 [Doc. No. 11-8, at p. 5 10 (“the tingling and pain into the hands is increasing, treatment is helping but it always 11 comes back”). 12 In a follow-up appointment on December 20, 2017, plaintiff reported to his 13 primary care physician that he had “[m]ild sciatic pain when bending his head down or 14 bending forward; he was “occasionally” taking Norco for pain; he was receiving 15 chiropractic treatments which were “very beneficial;” epidural stem cell therapy; and 16 “PRP” for lumber back pain. [Doc. No. 11-8, at p. 27.] Plaintiff also said he “spends 17 much of his days doing self-directed therapy for his back, including sitting in a hot tub, 18 followed by sitting in cold pool water, and exercising at the gym.” [Doc. No. 11-8, at 19 p. 27.] The treatment note further states as follows: “Overall back pain has significantly 20 improved.” [Doc. No. 11-8, at p. 27.] 21 On February 3, 2018, a follow-up MRI of the lumbar spine was completed. The 22 conclusion states as follows: “Stable mild to moderate degenerative changes of the 23 lumbar spine which are most significant at the L4-L5 and L5-S1 level where there is 24 moderate right neural foraminal stenosis at L4-L5 and mild right neural foraminal 25 stenosis at L5-S1. Stable grad 1 anterolisthesis of L5 on S1.” [Doc. No. 11-8, at p. 107.] 26 27 2 Based on prior records discussed above, “PRP” stands for Platelet Rich Plasma 28 1 The final primary care treatment note in the record is dated March 22, 2018, and it 2 states that plaintiff was asking for a letter “stating specific disabilities,” because he is 3 unable to care for his special needs child,” and his “ex-wife needs assistance vis-à-vis 4 IHSS.” [Doc. No. 11-8, at p. 11.] Plaintiff said “he does self-directed therapy for his 5 back all day long” and is also receiving chiropractic care. [Doc. No. 11-8, at p. 10.] He 6 reported “[s]ciatic pain when bending his head down or bending forward.” [Doc. No. 11- 7 8, at p. 11.] Additionally, plaintiff reported that his back pain was improving “overall” 8 until very recently when he took a road trip in the car, which made his back pain worse. 9 Prescriptions for both Gabapentin and Norco are listed as “discontinued” in this treatment 10 note. [Doc. No. 11-8, at p. 10.] The physical examination section of the treatment note 11 states that plaintiff’s back has a “normal spinal contour [and a] normal sitting posture” 12 but forward flexion was “limited to about 70 degrees.” [Doc. No. 11-8, at p. 13.] 13 Plaintiff was able to rotate his back “fully in both directions.” [Doc. No. 11-8, at p. 13.] 14 Additionally, plaintiff was able to move “all extremities well;” had no obvious 15 neurological abnormalities; and had a normal gait. [Doc. No. 11-8, at p. 13.] 16 Finally, the record includes a form entitled “Physical Medical Source Statement” 17 that is dated May 4, 2018 and that was completed and signed by Carmen Bellofatto. The 18 form does not include any credentials for Ms. Bellofatto but does indicate it was 19 submitted for the record by plaintiff’s attorney. [Doc. No. 11-8, at pp. 111, 114.] The 20 form indicates that Ms. Bellofatto provided some therapy to plaintiff in six sessions from 21 September 9, 2016 through May 4, 2017. [Doc. No. 11-8, at p. 111.] Symptoms listed 22 on the form include “neck, jaw, tingling down arms, right shoulder pain, right low 23 back/hip pain that radiates down to his calf” and that increases with sitting and standing. 24 [Doc. No. 11-8, at p. 111.] The therapy included gentle stretching and strengthening to 25 address plaintiff’s “postural imbalances.” [Doc. No. 11-8, at p. 111.] 26 According to Ms. Bellofatto, plaintiff could walk one to two blocks; sit for 10 to 15 27 minutes; and stand for 15 to 20 minutes but needed to take unscheduled breaks of 30 28 minutes often and shift positions at will during an 8-hour work day because of pain. 1 [Doc. No. 113, at pp. 112-113.] The form also indicates that plaintiff could occasionally 2 twist and climb stairs but should rarely lift more than 10 to 20 lbs; never crouch or climb 3 ladders; and rarely stoop. [Doc. No. 11-8, at p. 113.] Ms. Bellofatto also reported on the 4 form that plaintiff had significant limitations with reaching, handling, or fingering; would 5 likely be “off task” about 25 percent of the time; and needed to spend most of the day 6 lying on his back. [Doc. No. 11-8, at p. 114.] The ALJ afforded “little evidentiary 7 weight” to this opinion, because it was not not made by a physician; is not based on 8 objective medical findings; does not include a medical diagnosis; and appears to be based 9 on the claimant’s subjective complaints. Additionally, the ALJ noted Ms. Bellofatto had 10 limited involvement in the case. [Doc. No. 11-2, at p. 51.] 11 C. Non-Treating, Non-Examining Medical Opinions. 12 The ALJ gave “great weight” to the following medical opinions because they were 13 “largely consistent with the physical exam record as a whole” and consistent with “the 14 overall medical evidence of record” [Doc. No. 11-2, at pp. 50, 52]: 15 On April 6, 2016, G. Spellman, M.D., an agency physician, reviewed plaintiff’s 16 medical records and concluded plaintiff is not disabled and could perform his past 17 relevant work as a consultant (a sedentary job), because he has the residual functional 18 capacity to do the following in an 8-hour work day: occasionally lift and carry 10 19 pounds; frequently lift and carry less than 10 pounds; stand and or walk for 2 hours; sit 20 for about 6 hours; push and pull to use hand and/or foot controls on an unlimited basis; 21 occasionally climb stairs, balance, stoop, kneel, and crouch or crawl; and never climb 22 ladders. [Doc. No. 11-3, at pp. 10-14.] 23 On July 14, 2016, K. Vu, an agency physician, reviewed plaintiff’s medical records 24 and concluded he is not disabled because he has the residual functional capacity to 25 occasionally lift or carry 10 pounds; frequently lift or carry less than 10 pounds; stand or 26 walk for 2 hours and sit for about 6 hours in an 8-hour work day; push and pull hand or 27 foot controls on an unlimited basis; occasionally balance, stoop, kneel, crouch, crawl, and 28 climb ramps and stairs. However, Dr. Vu noted plaintiff should avoid vibration “due to 1 C3 radiculopathy.” [Doc. No. 11-3, at pp. 23-26.] It was Dr. Vu’s opinion that plaintiff’s 2 statements about his symptoms were partially consistent with the medical evidence in the 3 record. His notations also refer to “improvement,” hip [range of motion with no pain]; 4 and “no atrophy of quads or calfs.” [Doc. No. 11-3, at p. 22.] 5 IV. The ALJ’s Decision. 6 The ALJ followed the Commissioner’s five-step sequential evaluation process for 7 determining whether an applicant is disabled under this standard. 20 C.F.R. § 8 404.1520(a). At steps one and two, the ALJ concluded that plaintiff has not engaged in 9 substantial gainful activity since October 28, 2014, and he has the severe impairments of 10 “status post motor vehicle accident October 28, 2014 with degenerative disc disease and 11 degenerative joint disease of the lumbar spine; status post minimally invasive L4-L5 12 foraminotomy/discectomy surgery; osteoarthritis of the bilateral hips; and degenerative 13 disc disease of the cervical spine.” [Doc. No. 11-2, at p. 42.] The ALJ also concluded 14 that plaintiff’s depression (also referred to as “affective disorder”) does not significantly 15 limit his ability to perform basic work activities. [Doc. No. 11-2, at p. 42.] 16 At step three, the ALJ concluded that plaintiff’s impairments do not meet or equal 17 any of the relevant listings in the SSA’s Listing of Impairments. [Doc. No. 11-2, at 18 p. 45.] At step four, the ALJ must determine the claimant’s residual functional capacity 19 to work based on all impairments, including impairments that are not severe. 20 C.F.R. § 20 404.1520(e), § 404.1545(a)(2). Residual functional capacity is “the most [an applicant] 21 can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). As part of this 22 assessment, the ALJ must determine whether the applicant retains the residual functional 23 capacity to perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). 24 Here, the ALJ concluded plaintiff is unable to perform his past relevant work as a 25 farmer’s market vendor. [Doc. No. 11-2, at pp. 52-53.] However, the ALJ did conclude 26 plaintiff has the residual functional capacity to perform sedentary work as defined in 20 27 CFR 404.1567(a), except that he has the capacity to lift and carry 10 pounds occasionally 28 and less than 10 pounds frequently; stand and/or walk 2 hours in an 8-hour workday with 1 normal breaks; push and pull within the lift and carry restrictions; occasionally climb 2 ramps and stairs, balance, stoop, kneel, crouch, or crawl, but never climb ladders, ropes, 3 or scaffolds. Additionally, the ALJ concluded plaintiff must avoid concentrated exposure 4 to wetness, vibration, and hazards, such as unprotected heights or dangerous moving 5 machinery. [Doc. No. 11-2, at p. 45.] 6 At step five, the ALJ must consider the residual functional capacity assessment, 7 along with the applicant's age, education, and work experience, to determine whether the 8 applicant could "make an adjustment to other work" that is available in significant 9 numbers in the national economy. 20 C.F.R. § 404.1520(a)(4)(v); 42 U.S.C. § 10 1382c(a)(3)(B). While the applicant carries the burden of proving eligibility at steps one 11 through four, the burden at step five rests on the agency. Celaya v. Halter, 332 F.3d 12 1177, 1180 (9th Cir. 2003). 13 At step 5, the ALJ relied on the vocational expert’s testimony and determined that 14 plaintiff would be able to perform the representative sedentary occupations of document 15 preparer; table worker; and production worker, which are available in significant numbers 16 in the national economy. Thus, the ALJ determined plaintiff is not disabled. 17 V. Discussion. 18 A. Hand Numbness. 19 Plaintiff argues “there is competent evidence detailing how cervical disc 20 degeneration impairs plaintiff’s ability [to] handle and grasp,” but the ALJ overlooked or 21 mischaracterized this evidence. As a result, plaintiff contends the ALJ’s RFC should 22 have included limitations on plaintiff’s ability to perform fine and gross manipulation, 23 which would have lead to a conclusion that he could not sustain competitive work. [Doc. 24 No. 17, at pp. 7-8.] In support of these arguments, plaintiff refers the Court to a number 25 of treatment records from 2015 and 2016, as well as the results of an MRI and an EMG. 26 [Doc. No. 17, at pp. 7-10.] Additionally, plaintiff argues that the ALJ rejected his 27 complaints of “hand pain and numbness” and “limited hand use” without clear and 28 convincing evidence. [Doc. No. 17, at pp. 16-20.] 1 Defendant argues that the ALJ appropriately concluded and explained in his 2 decision that the weight of the medical evidence, including diagnostic testing and clinical 3 findings, did not substantiate manipulative limitations due to numbness in plaintiff’s 4 hands. [Doc. No. 17, at p. 14.] Defendant contends, and the Court agrees, that plaintiff’s 5 argument should be rejected, because he only cites “isolated excerpts” and “single 6 instances” from the record indicating, for example, that he had “a slightly reduced grip 7 strength” and “decreased sensation,” but ignores conflicting evidence, such as treatment 8 records stating he had “full strength, full sensation, and intact deep-tendon reflexes.” 9 [Doc. No. 17, at p. 14.] Defendant also disputes plaintiff’s contention that an EMG test 10 supports his argument because it shows “active left C3 radiculopathy” when there is 11 nothing pointing to any “evidence that C3 radiculopathy causes hand numbness.” [Doc. 12 No. 17, at p. 15.] Rather, based on information in a publicly available article cited in 13 Footnote 3, defendant claims that “C3-related symptoms appear to involve the neck and 14 trapezious.” [Doc. No. 17, at p. 15.] 15 Based on a thorough review of the record, it is clear that plaintiff complained of 16 “tingling” or numbness in his hands on a number of occasions. However, plaintiff did 17 not cite, and the Court was unable to locate, any testimony or other statements by 18 plaintiff indicating he was in any way limited in his ability to use his hands or his upper 19 extremities because of numbness, tingling, or pain in his hands. Rather, plaintiff’s 20 application for benefits, the written statements he made in support of his claim, and his 21 testimony at the hearing before the ALJ largely point to neck pain, low back pain, and 22 trouble with sitting, standing, and walking as the basis for his disability claim. [Doc. No. 23 11-6, at pp. 5, 27-29; 61; 68; 93-94; 93-100.] Additionally, the Court was only able to 24 locate two notations in the record that mention hand “pain,” as opposed to mere 25 numberness or tingling. The first of these references to pain was on November 8, 2017, 26 when plaintiff told his doctor he had pain and tightness in the third finger on his left hand 27 and may have broken it a few months back. The doctor noted plaintiff had some swelling 28 and was unable to completely close his finger while making a fist, so he ordered x-rays 1 and indicated that finger pain typically improves over time. [Doc. No. 11-8, at pp. 38- 2 40.] 3 The second reference was located in notes from a visit to the chiropractor on 4 April 20, 2018, which states that “the tingling and pain into the hands is increasing” and 5 “treatment is helping but it always comes back.” [Doc. No. 11-8, at p. 5.] The 6 chiropractor recommended plaintiff follow up with his primary care physician “to assess 7 the tingling and pain in the hands.” [Doc. No. 11-8, at p. 5.] However, as noted above, 8 an EMG and a motor nerve conduction study had already been completed on June 7, 9 2016 for this specific purpose, and the results were only “mildly abnormal.” [Doc. No. 10 11-7, at p. 93.] 11 There is also nothing from which the Court could conclude the ALJ ignored or 12 mischaracterized evidence regarding plaintiff’s complaints of numbness, tingling, or pain 13 in his hands. In this regard, the ALJ addressed this topic in a single paragraph and 14 concluded that “[d]iagnostic findings do not substantiate the claimant’s complaints of 15 significant bilateral hand numbness.” [Doc. No. 11-2, at p. 48 (emphasis added).] In 16 support of this conclusion, the ALJ referred to two documents. First, the ALJ referenced 17 treatment notes from an office visit plaintiff had with his primary care physician on 18 April 18, 2016. Plaintiff’s chief complaints were lower back pain and “bilateral hand 19 numbness” that was “symmetric bilaterally and mostly in the 4.5 digits and occasionally 20 the thumb.” [Doc. No. 11-7, at p. 90.] Plaintiff also indicated he had neck pain and 21 “radicular symptoms to the triceps mostly at night when he is sleeping.” [Doc. No. 11-7, 22 at p. 90.] However, the treatment notes states there was “[n]o loss of strength or muscle 23 atrophy in his hands.” [Doc. No. 11-7, at p. 90.] An MRI of the cervical and lumbar 24 spine areas and an EMG/NCV study of both upper extremities were recommended, and 25 plaintiff was directed to follow up with a pain specialist. [Doc. No. 11-7, at pp. 91-92.] 26 Second, the ALJ referenced the results of an EMG and a motor nerve conduction 27 study that were completed on June 7, 2016 because plaintiff complained of “bilateral 28 hand numbness in digits 4-5” during the visit to his doctor on April 18, 2016 referenced 1 above. [Doc. No. 11-7, at p. 93.] The results were “mildly abnormal.” [Doc. No. 11-7, 2 at p. 93.] According to the report, “[t]here is electrodiagnostic evidence of an active left 3 C3 radiculopathy possibly subacute. No evidence of entrapment neuropathy or peripheral 4 neuropathy was present on the study.” [Doc. No. 11-7, at p. 93.] Additionally, the 5 results of the motor nerve conduction and sensory nerve conduction studies were 6 “normal.” [Doc. No. 11-7, at p. 93.] 7 Without more, such as notations indicating that “active left C3 radiculopathy” is a 8 likely cause of plaintiff’s hand numbness, it is unclear how the ALJ could have reached 9 the different or opposite conclusion that plaintiff’s complaints of numbness in his hands 10 were both significant and substantiated by objective medical evidence. In this regard, the 11 Court notes that the results of the EMG and motor nerve conduction study from June 7, 12 2016 were part of the record at the time Dr. Vu, an agency physician, reviewed plaintiff’s 13 medical records on July 14, 2016. [Doc. No. 11-3, at pp. 21-26.] Dr. Vu concluded 14 plaintiff is not disabled, and his notes specifically reference and credit the June 7, 2016 15 results by stating that plaintiff should “avoid vibration due to C3 radiculopathy.” [Doc. 16 No. 11-3, at p. 24.] Dr. Vu did not recommend any other limitations to plaintiff’s RFC 17 based on these results. [Doc. No. 11-2, at p. 45.] Nor are there any conflicting medical 18 opinions in the record to support plaintiff’s contention that the ALJ’s RFC should have 19 included limitations on plaintiff’s ability to “handle and grasp” with his hands. [Doc. No. 20 17, at pp. 7-8.] 21 Finally, where an ALJ “‘determines that a claimant for Social Security benefits is 22 not malingering and has provided objective medical evidence of an underlying 23 impairment which might reasonably produce the pain or other symptoms she alleges, the 24 ALJ may reject the claimant's testimony about the severity of those symptoms only by 25 providing specific, clear, and convincing reasons for doing so.’ [Citations omitted.] 26 This requires the ALJ to ‘specifically identify the testimony [from a claimant] she or he 27 finds not to be credible and . . . explain what evidence undermines that testimony.’ 28 [Citations omitted.]” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). As outlined 1 above, plaintiff has not submitted objective medical evidence of an underlying 2 impairment that might reasonably cause disabling numbness or pain in his hands. Nor 3 does the record include testimony or statements by plaintiff of disabling numbness or 4 pain that limited the use of his hands because of numbness or pain. Therefore, contrary 5 to plaintiff’s contention, it is this Court’s view that the ALJ was not required to cite 6 specific, clear, and convincing reasons in support of his conclusion that plaintiff did not 7 have limited use of his hands or upper extremities because of numbness or pain in his 8 hands. Therefore, for the reasons outlined above, it is this Court’s view that substantial 9 evidence supports the ALJ’s RFC and his apparent conclusion that it was unnecessary to 10 include any limitations in the RFC based on hand numbness or hand pain. 11 B. Ability to Sit During a Regular Workday. 12 As noted above, the ALJ concluded plaintiff had the capacity to “perform 13 sedentary work as defined in 20 CFR 404.1567(a).” [Doc. No. 11-2, at p. 45.] Section 14 404.1567(a) states as follows: “Sedentary work involves lifting no more than 10 pounds 15 at a time and occasionally lifting or carrying articles like docket files, ledgers, and small 16 tools. Although a sedentary job is defined as one which involves sitting, a certain amount 17 of walking and standing is often necessary in carrying out job duties. Jobs are sedentary 18 if walking and standing are required occasionally and other sedentary criteria are met.” 19 20 C.F.R. § 404.1567(a). 20 Under Social Security Ruling 83-10, “‘[o]ccasionally’ means occurring from very 21 little up to one-third of the time. Since being on one's feet is required ‘occasionally’ at 22 the sedentary level of exertion, periods of standing or walking should generally total no 23 more than about 2 hours of an 8-hour workday, and sitting should generally total 24 approximately 6 hours of an 8-hour workday. . . .” SSR 83-10 (emphasis added). 25 Additionally, Social Security Ruling 83-12 provides that a person who “must alternate 26 periods of sitting and standing” (i.e., an individual who can sit for a time, but must then 27 get up and stand or walk before returning to sitting), “is not functionally capable of doing 28 either the prolonged sitting contemplated in the definition of sedentary work (and for the 1 relatively few light jobs which are performed primarily in a seated position) or the 2 prolonged standing or walking contemplated for most light work. (Persons who can 3 adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., 4 would still be able to perform a defined range of work.)” SSR 83-12. 5 Based on the foregoing, the ALJ concluded plaintiff could sit for approximately 6 6 hours of an 8-hour workday. Plaintiff contends there is “compelling evidence” that 7 supports a finding he is “unable to sit for prolonged periods” and requires “frequent 8 breaks if seated.” [Doc. No. 17, at pp. 5, 7.] Plaintiff therefore believes the ALJ’s RFC 9 is “incomplete and fatally flawed” and should have resulted in a finding that he is 10 disabled, because the Vocational Expert testified there would be no competitive work 11 available for an individual who needed to change positions outside of the normal work 12 breaks. [Doc. No. 17, at pp. 5-8.] 13 Defendant argues that plaintiff has not established error because he has not 14 identified any evidence compelling a finding that he is unable to sit for prolonged 15 periods. [Doc. No. 17, at p. 13.] “No physician offered a medical opinion finding that 16 plaintiff could not perform prolonged sitting or required any sit-stand option.” [Doc. No. 17 17, at pp. 13-14.] “As the ALJ noted, plaintiff did assert he could sit for only 20 to 30 18 minutes before needing to adjust his position, but the medical evidence did not support 19 any such finding.” [Doc. No. 17, at p. 14.] 20 Defendant argues that the ALJ was justified in relying heavily on the opinions of 21 the state agency physicians because the medical evidence was “complex and conflicting” 22 and because the weight of conflicting medical evidence supports the opinions of these 23 physicians. [Doc. No. 17, at pp. 11-12.] Consistent with the opinions of these 24 physicians, defendant contends the ALJ “assessed a highly restrictive and carefully 25 tailored RFC” that included a number of appropriate restrictions. [Doc. No. 17, at p. 12.] 26 Additionally, defendant notes the ALJ explained that his RFC was consistent with “other 27 probative activities of daily living,” including evidence that plaintiff took an active role in 28 raising his children, drove them to school, assisted in household chores such as cooking 1 and laundry, and was able to swim and exercise for hours a day at a gym. [Doc. No. 17, 2 at p. 13.] Defendant also notes the ALJ found that plaintiff’s “longitudinal treatment 3 records showed that his treatment was effective in stabilizing and improving his 4 symptoms.” [Doc. No. 17, at p. 13.] 5 At the hearing before the ALJ, plaintiff testified he could sit for 20 to 30 minutes 6 before he has to “make adjustments.” [Doc. No. 11-2, at p. 74.] If he sits for longer 7 periods, such as a two-hour car ride, he returns to a “pain cycle” for “a couple days.” 8 [Doc. No. 11-2, at p. 74.] He also testified he typically only stands for 10 to 20 minutes 9 at a time and is “lying still most of the day” (about 14 hours) when he is not doing chores 10 or physicial therapy exercises. [Doc. No. 11-2, at pp. 73-75.] However, it is apparent the 11 ALJ did not find plaintiff’s testimony believable because he and his wife made a number 12 of inconsistent statements about plaintiff’s daily activities and because there was a lack of 13 medical evidence to support plaintiff’s testimony. In this regard, the ALJ’s decision 14 states as follows: 15 The claimant testified that he is unable to work because of his limitations in standing and sitting for lengths of time. He stated that he can walk 10-15 16 minutes and then needs to rest, and he can sit for approximately 20-30 17 minutes before needing to adjust his position. He said that when he does not have appointments, he lays down at home for 14 hours a day. However, the 18 claimant also testified that he drives his children to school in the morning 19 and is active in raising his children. He also assists in the household chores, cooking and doing laundry. He does physical exercising and stretching, 20 including use of an inversion table. His wife testified that he exercised for 21 hours a day, goes to the gym to swim, and drives the children to and from school. In sum, the testimony – to the extent it alleges a disabling condition 22 – is largely inconsistent with the overall record. 23 24 [Doc. No. 11-2, at p. 46.]

25 The medical treatment records do indicate plaintiff reported difficulty with sitting. 26 For example, on October 31, 2016, plaintiff reported that his pain was aggravated by 27 prolonged sitting. [Doc. No. 11-8, at p. 89.] More recently, during an initial visit to a 28 1 chiropractor on July 21, 2017, plaintiff indicated his pain was aggravated by bending, 2 lifting, and sitting or standing for too long. [Doc. No. 11-8, at p. 69.] However, as 3 outlined more fully above, all pain reported and treated by this chiropractor during 2017 4 and 2018 was characterized as moderate. (As noted above, the treatment goals with this 5 chiropractor were to reduce pain levels from 2 out of 10 to 1 out of 10 and to increase 6 strength and flexibility so that plaintiff could “optimally perform all activities of daily 7 living.”) [Doc. No. 11-8, at p. 70.] 8 Contrary to plaintiff’s contention, there is no “compelling evidence” to support a 9 finding that he cannot sit long enough to perform a sedentary job. As defendant points, 10 there are no compelling medical opinions in the record indicating plaintiff should avoid 11 prolonged sitting. As outlined more fully above, the ALJ considered but justifiably 12 afforded “little weight” to opinions by a physician’s assistant and a physical therapist 13 indicating plaintiff should avoid prolonged sitting. These opinions conflicted with other 14 evidence in the record and were not made by physicians. [Doc. No. 11-2, at p. 51-52.] 15 The ALJ did give “some weight” to the opinion of a chiropractor who treated plaintiff in 16 2016 and reported that he had functional limitations in “sitting, lifting, twisting and 17 traveling.” [Doc. No. 11-7, at p. 127.] Although plaintiff did not respond well to the 18 treatments in 2016, later treatment notes in 2017 and 2018 show a pattern of 19 improvement, and this pattern is reflected in the ALJ’s decision. 20 Lastly, the ALJ afforded “little weight” to the opinion of Carmen Bellofatto, who 21 filled out a form dated May 14, 2018, indicating plaintiff had radiating pain down his leg 22 that increases with sitting; could only sit for 10 to 15 minutes at a time; could only sit 23 and stand for about 2 hours in an 8-hour workday; would need frequent unscheduled 24 breaks; and would need “to spend most of the day lying on his back.” [Doc. No. 11-8, at 25 pp. 111-114.] The ALJ stated this opinion was not convincing, because it was not made 26 by a physician; was not based on objective medical findings; did not include a medical 27 diagnosis; and appeared to be based on the claimant’s subjective complaints. 28 Additionally, the ALJ noted Ms. Bellofatto had limited involvement in the case (i.e., the 1 form she completed states that she only had six visits with plaintiff between 2 September 18, 2016 through May 4, 2017). [Doc. No. 11-2, at p. 51, referring to Doc. 3 No. 11-8, at pp. 111-114.] 4 Contrary to plaintiff’s contention, these opinions, whether considered individually 5 or all together, do not constitute “compelling evidence” that plaintiff could not sit for 6 prolonged periods without taking frequent breaks. Additionally, as the ALJ states 7 throughout his decision, the objective medical evidence does not support a finding that 8 plaintiff suffered from disabling symptoms, and two agency physicians concluded based 9 on the medical records that plaintiff was not disabled. Additionally, the records 10 convincingly show improvement over time to a moderate level of pain in the low back 11 and neck pain that rarely requires the use of pain medication, and an ability to engage in 12 a wide range of physical activities on a daily basis, which included swimming and 13 exercising at a gym. In this Court’s view, the ALJ’s non-disability determination is 14 supported by substantial evidence. 15 Conclusion 16 Based on the foregoing, it is RECOMMENDED that the District Court DENY 17 plaintiff’s request for reversal and remand and GRANT defendant’s request for 18 affirmance of the final decision of the Commissioner, because the ALJ’s RFC and non- 19 disability determination are supported by substantial evidence. [Doc. No. 17.] 20 This Report and Recommendation is submitted to the United States District Judge 21 assigned to this case, pursuant to the provisions of 28 U.S.C. Section 636(b)(1). Within 22 fourteen (14) days after being served with a copy of this Report and Recommendation, 23 “any party may serve and file written objections.” 28 U.S.C. § 636(b)(1)(B)&(C). The 24 document should be captioned “Objections to Report and Recommendation.” The parties 25 / / / 26 / / / 27 / / / 28 / / / | |} are advised that failure to file objections within the specific time may waive the right to 2 || raise those objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153, 3 1156-1157 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 ||Dated: January 30, 2023 Me Ui ) 6 VL LL fa 7 Hori. Karen S. Crawford United States Magistrate Judge

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