Gracy Blanco v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: March 30, 2022
• Docket: 8:20-cv-01241
• Status: Unknown

Opinion

Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 1 of 21 Page ID #:528 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GRACY B., ) Case No. 8:20-cv-01241-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of the Social Security ) Administration, ) 16 ) ) 17 Defendant. ) ) 18 19 I. 20 INTRODUCTION 21 On July 13, 2020, plaintiff Gracy B. filed a Complaint against defendant, the 22 Commissioner of the Social Security Administration (“Commissioner”), seeking 23 review of a denial of supplemental security income (“SSI”). The parties have fully 24 briefed the issues in dispute, and the court deems the matter suitable for 25 adjudication without oral argument. 26 Plaintiff presents three issues for decision: (1) whether the Administrative 27 Law Judge (“ALJ”) properly considered the opinion of examining physician Dr. 28 1 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 2 of 21 Page ID #:529

1 Daniela Drake; (2) whether the ALJ properly considered plaintiff’s symptom 2 testimony; and (3) whether the appointment of former Commissioner of Social 3 Security, Andrew Saul, was constitutional. Mem. in Supp. of Pl.’s Compl. (“P. 4 Mem.”) at 7-15; Pl.’s Notice of New Authority (“Notice”) at 1-2; see Mem. in 5 Supp. of Def.’s Answer (“D. Mem.”) at 1-11. 6 Having carefully studied the parties’ memoranda, the Administrative Record 7 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 8 the ALJ failed to properly evaluate plaintiff’s subjective symptom testimony, but 9 properly evaluated Dr. Drake’s opinion. The court also rejects plaintiff’s 10 constitutional argument as incomplete and contrary to law. Because the ALJ erred 11 in evaluating plaintiff’s symptom testimony, the court reverses the decision of the 12 Commissioner denying SSI benefits. 13 II. 14 FACTUAL AND PROCEDURAL BACKGROUND 15 Plaintiff, who was 45 years old on the alleged disability onset date, has a 16 seventh grade education. AR at 53, 60. She has past relevant work as a nurse’s 17 assistant. AR at 52. 18 On February 20, 2017, plaintiff filed an application for SSI, alleging an 19 onset date of October 6, 2016. AR at 60. Plaintiff claimed she suffered from 20 anxiety, depression, mood swings, migraine headaches, carpel tunnel syndrome, 21 arthritis, endometriosis, large fibroids, ulcers, and insomnia. AR at 60-61. 22 Plaintiff’s application was initially denied on June 9, 2017. AR at 89. 23 Plaintiff requested a hearing, which the assigned ALJ held on April 19, 24 2019. AR at 30. Plaintiff, represented by counsel, appeared and testified at the 25 hearing. AR at 35-54, 57-58. The ALJ also heard testimony from David Rinehart, 26 a vocational expert. AR at 52-57. The ALJ denied plaintiff’s claim on July 2, 27 2019. AR at 16-25. 28 2 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 3 of 21 Page ID #:530

1 Applying the well-established five-step sequential evaluation process, the 2 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 3 since February 20, 2017, the application date. AR at 18. 4 At step two, the ALJ found plaintiff suffered from the following severe 5 impairments: degenerative disc disease at L5-S1, migraines, fibromyalgia, and 6 obesity. Id. The ALJ also found plaintiff suffered from the non-severe impairment 7 of mood disorder. AR at 19. 8 At step three, the ALJ found plaintiff’s impairments, whether individually or 9 in combination, did not meet or medically equal one of the impairments set forth in 10 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 20. 11 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 12 determined she had the ability to perform: 13 medium work as defined in 20 CFR 416.967(c) as follows: can lift 14 and/or carry 50 pounds occasionally and 25 pounds frequently; can 15 stand and walk about 6 hours out of an 8 hour day; can sit for about 6 16 hours out of an 8 hour day; push and/or pull without limit other than 17 as shown for lift and/or carry; can occasionally climb 18 ladders/ropes/scaffolds; can frequently climb ramps/stairs, balance, 19 stoop, kneel, crouch, and crawl; can occasionally reach overhead with 20 bilateral upper extremities; cannot work in a loud work environment, 21 SCO noise intensity level 4 or greater; must avoid concentrated 22 exposure to fumes, odors, dusts, gases, poor ventilation, etc; and 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). 3 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 4 of 21 Page ID #:531

1 cannot work around hazards such as dangerous moving machinery and 2 heights. 3 AR at 21. 4 The ALJ found, at step four, that plaintiff was capable of perform her past 5 relevant work as a nurse’s assistant. AR at 24. The ALJ accordingly concluded 6 plaintiff was not under a disability, as defined in the Social Security Act, at any 7 time since February 20, 2017. Id. 8 Plaintiff filed a timely request for review of the ALJ’s decision, but the 9 Appeals Council denied the request for review on May 12, 2020. AR at 1. 10 Accordingly, the ALJ’s decision became the final decision of the Commissioner. 11 III. 12 STANDARD OF REVIEW 13 This court is empowered to review decisions by the Commissioner to deny 14 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 15 Administration (“SSA”) must be upheld if they are free of legal error and 16 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 17 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based 18 on legal error or are not supported by substantial evidence in the record, the court 19 may reject the findings and set aside the decision to deny benefits. Aukland v. 20 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 21 1144, 1147 (9th Cir. 2001). 22 “Substantial evidence is more than a mere scintilla, but less than a 23 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 24 evidence is such “relevant evidence which a reasonable person might accept as 25 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 26 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 27 substantial evidence supports the ALJ’s finding, the reviewing court must review 28 4 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 5 of 21 Page ID #:532

1 the administrative record as a whole, “weighing both the evidence that supports 2 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 3 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 4 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 5 marks and citation omitted). If the evidence can reasonably support either 6 affirming or reversing the ALJ’s decision, the reviewing court “may not substitute 7 its judgment for that of the ALJ.” Id. (internal quotation marks and citation 8 omitted). 9 IV. 10 DISCUSSION 11 A. The ALJ Failed to Properly Consider Plaintiff’s Testimony 12 Plaintiff argues the ALJ failed to articulate legally sufficient reasons to 13 discount her subjective symptom testimony. P. Mem. at 11-15. 14 1. Legal Standard 15 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 16 evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded 17 SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, 18 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not have the same 19 force and effect as statutes or regulations, they are binding on all components of 20 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). 21 In adopting SSR 16-3p, the SSA sought to “clarify that subjective symptom 22 evaluation is not an examination of an individual’s character.” Id. at 2. 23 [SSR 16-3p] makes clear what our precedent already required: that 24 assessments of an individual’s testimony by an ALJ are designed to 25 evaluate the intensity and persistence of symptoms after the ALJ finds 26 that the individual has a medically determinable impairment(s) that 27 could reasonably be expected to produce those symptoms, and not to 28 5 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 6 of 21 Page ID #:533

1 delve into wide-ranging scrutiny of the claimant’s character and 2 apparent truthfulness. 3 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up). 4 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 5 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 6 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 7 produced objective medical evidence of an underlying impairment that could 8 reasonably be expected to produce the symptoms alleged. Id. Second, if the 9 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 10 must evaluate the intensity and persistence of the claimant’s symptoms and 11 determine the extent to which they limit her ability to perform work-related 12 activities. Id. 13 In assessing intensity and persistence, the ALJ may consider: a claimant’s 14 daily activities; the location, duration, frequency, and intensity of the symptoms; 15 precipitating and aggravating factors; the type, dosage, effectiveness, and side 16 effects of medication taken to alleviate the symptoms; other treatment received; 17 other measures used to relieve the symptoms; and other factors concerning the 18 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 19 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen v. Chater, 80 20 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996)). To reject the claimant’s subjective 21 symptom statements, the ALJ must provide “specific, clear, and convincing” 22 reasons, supported by substantial evidence in the record, for doing so. Id. at 921, 23 929. 24 2. Plaintiff’s Subjective Symptom Testimony 25 In a disability report dated August 24, 2017, plaintiff claimed she was 26 disabled due to impairments that caused pain, blurred vision, dizziness, and 27 disorientation. AR at 21 (citing AR at 214). Her pain was so severe in her legs 28 6 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 7 of 21 Page ID #:534

1 that she could not walk until it subsided. Id. She allegedly loses her balance often 2 because her leg gives out on her. Id. (citing AR at 221). She further claimed that 3 she was no longer able to do household tasks or walk her dog, and that driving her 4 daughter to school was difficult because of her low energy, headaches, and 5 disorientation. Id. (citing AR at 217). She does not go out because she feels 6 constantly sick. Id. (citing AR at 226). She also stated that her medications gave 7 her side effects. Id. (citing AR at 216-17). 8 At the hearing in April 2019, plaintiff testified that she could lift a gallon of 9 milk only on a good day, could not sit for more than ten minutes, could stand for 10 only a couple of minutes before having to walk, and could walk for only 15 11 minutes. AR at 22 (citing AR at 41-43). She also claimed she spends most of her 12 time in bed because of her pain, although she could take her daughter to school on 13 a good day. Id. (citing AR at 44). 14 3. The ALJ’s Findings 15 At the first step for evaluating plaintiff’s symptom testimony, the ALJ found 16 her medically determinable impairments could reasonably be expected to cause the 17 symptoms alleged. AR at 22. At the second step, the ALJ discounted plaintiff’s 18 testimony concerning the intensity, persistence, and limiting effects of her 19 symptoms as not entirely consistent with the medical evidence and other evidence 20 in the record. AR at 22-23. 21 As an initial matter, the court must determine the correct standard to review 22 the ALJ’s evaluation of plaintiff’s symptom testimony. The ALJ discounted her 23 testimony based, in part, on her poor effort on range of motion testing. See AR at 24 23 (citing AR at 271). The Ninth Circuit’s clear and convincing standard does not 25 appear to apply in cases involving malingering, although it is unclear whether that 26 is still the case after the adoption of SSR 16-3p. See Vasquez v. Astrue, 572 F.3d 27 586, 591 (9th Cir. 2009) (clear and convincing standard applies only “[i]f the 28 7 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 8 of 21 Page ID #:535

1 claimant meets the first test and there is no evidence of malingering”). Here, the 2 court need not decide one way or another because, although the ALJ considered 3 plaintiff’s lack of effort during examination, he did not affirmatively find her to be 4 a malingerer. See Tagle v. Colvin, 2016 WL 5662076, at *7 (C.D. Cal. Sept. 28, 5 2016) (ALJ noted plaintiff’s poor effort and exaggeration but did not find her to be 6 a malingerer). Thus, the court will apply the Ninth Circuit’s clear and convincing 7 standard to this case. 8 First, the ALJ determined that plaintiff’s symptom testimony was 9 inconsistent with the objective medical record. AR at 23. The ALJ acknowledged 10 her lumbar spine disorder and poor back mobility, but found her allegations of 11 debilitating pain causing extreme limitations on lifting, carrying, sitting, standing, 12 and walking were not supported by objective findings of normal motor strength, 13 negative straight leg raising, intact sensation, lack of atrophy as an indicator of 14 pain and inactivity, and normal gait and balance. Id. (citing AR at 270-72). The 15 ALJ also pointed to generally normal studies of her right shoulder, thoracic spine, 16 and cervical spine. Id. (citing AR at 271, 364, 367). 17 Plaintiff argues the ALJ erred in considering the consistency of her symptom 18 testimony with objective findings because her fibromyalgia “is a disease that 19 eludes objective evidence.” See P. Mem. at 13. Defendant responds that her 20 fibromyalgia diagnosis “does not preclude consideration of consistency with the 21 objective evidence when evaluating symptom allegations.” See D. Mem. at 10. 22 Defendant is correct that a fibromyalgia diagnosis does not foreclose any 23 part of the disability analysis per se. See SSR 12-2p, 2012 WL 3104869, at *5-6 24 (July 25, 2012) (explaining that sequential evaluation process also applies to cases 25 of fibromyalgia). Nevertheless, ALJs must consider all significant probative 26 evidence, and explain their reasons if they choose to reject any of it. See Vincent v. 27 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). For the following reasons, the court 28 8 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 9 of 21 Page ID #:536

1 finds the ALJ failed to properly consider the extent to which plaintiff’s 2 fibromyalgia contributes to her alleged symptoms. See Revels v. Berryhill, 874 3 F.3d 648, 662 (9th Cir. 2017) (pointing out “recurrent problem” of ALJs failing to 4 properly analyze fibromyalgia-related symptoms). 5 Fibromyalgia is a poorly-understood disease with no known cause or cure. 6 See Knight v. Saul, 2020 WL 5518386, at *4 (E.D. Cal. Sept. 14, 2020) (citing 7 Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). It is diagnosed entirely 8 on the basis of a patient’s reports of pain and other symptoms, and there are no 9 laboratory tests, X-rays, or MRIs to confirm the diagnosis. Revels, 874 F.3d at 10 656-57 (citation omitted). “What is unusual about the disease is that those 11 suffering from it have muscle strength, sensory functions, and reflexes that are 12 normal.” Id. at 656 (cleaned up). A fibromyalgia patient’s joints may appear 13 normal and may lack symptoms that a lay person would ordinarily associate with 14 joint and muscle pain. See id. (citation omitted). 15 Here, the ALJ found that plaintiff’s symptom testimony was inconsistent 16 with, among other findings, normal X-rays of her right shoulder, thoracic spine, 17 and cervical spine, normal motor strength, negative straight leg raising, and intact 18 sensation. But as the Ninth Circuit has cautioned, those findings may not tell the 19 whole story about the condition of a person suffering from fibromyalgia. 20 Specifically, the ALJ failed to consider that fibromyalgia sufferers may have 21 normal X-rays, joint anatomy, muscle strength, sensory functions, and reflexes. 22 See Revels, 874 F.3d at 656-57. 23 Notably, the ALJ determined that plaintiff’s fibromyalgia was a severe 24 impairment and noted multiple findings of positive fibromyalgia tender points 25 throughout 2018. See AR at 18, 22 (citing AR at 421, 423, 425, 427). The ALJ 26 also indicated that he considered the diagnosis pursuant to the SSR 12-2p 27 guidelines. AR at 21. But other than acknowledging her tender points, the ALJ 28 9 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 10 of 21 Page ID #:537

1 did not explain or even mention her fibromyalgia at all in discounting her 2 testimony. See AR at 21-24. In other words, the ALJ failed to evaluate the 3 medical evidence and plaintiff’s symptom testimony “in light of fibromyalgia’s 4 unique symptoms and diagnostic methods, as described in SSR 12-2P and 5 [caselaw].” Revels, 874 F.3d at 662-63, 666 (finding the ALJ erred by discounting 6 symptom testimony from a fibromyalgia patient based on normal X-rays, nerve 7 conduction and velocity studies, and MRIs). 8 Second, the ALJ found plaintiff’s allegations of extreme limitations were not 9 supported by her reportedly positive response to pain medications without lasting 10 adverse side effects. AR at 23. In support of this reason, the ALJ cited records 11 from December 2017 to November 2018, which showed a consistent level of pain 12 of about 6/10 to 7/10 with some positive response to pain medication. See AR at 13 337, 421, 423, 425, 427, 429. Plaintiff argues the ALJ failed to consider that in 14 September 11, 2018, her provider instructed her to switch medications and referred 15 her to physical therapy. P. Mem. at 13 (citing AR at 368). Again, the ALJ 16 considered the evidence of improvement on medication in a vacuum. Although the 17 ALJ cited six separate pain records, they span less than one year, and there is no 18 evidence the ALJ considered that symptoms of fibromyalgia wax and wane, which 19 results in bad days and good days. See Revels, 874 F.3d at 663. The ALJ’s failure 20 to consider plaintiff’s pain reports in light of her fibromyalgia diagnosis was error. 21 Third, the ALJ determined that plaintiff’s testimony was inconsistent with 22 prior statements regarding a wide array of daily activities (“ADLs”). AR at 23. 23 Namely, during a May 14, 2017 mental evaluation, she reported the ability to do 24 household chores, run errands, shop, cook, and drive. AR at 278. She was also 25 able to dress and bathe herself. Id. The ALJ noted that these reports contradicted 26 the extreme limitations that she testified about at the April 2019 hearing. AR at 23. 27 In response, plaintiff highlights testimony that her level of activity depends on 28 10 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 11 of 21 Page ID #:538

1 whether she is having a good or bad day. P. Mem. at 14-15. This reason is also 2 deficient due to the ALJ’s consideration of the evidence without apparent regard to 3 plaintiff’s fibromyalgia diagnosis. Again, because the symptoms of fibromyalgia 4 wax and wane leading to bad days and good days, “analysis of [a plaintiff’s] RFC 5 should consider a longitudinal record whenever possible.” Revels, 874 F.3d at 657, 6 660 (cleaned up). Here, the ALJ focused on plaintiff’s statements about ADLs 7 from a single report back in 2017. To be fair, it is not clear whether there were 8 other longitudinal records the ALJ could have considered. Even so, the ALJ 9 should have explained why plaintiff’s fibromyalgia did or did not inform his 10 evaluation of the discrepancy in ADLs from mid 2017 to early 2019. See Vincent, 11 739 F.2d at 1395 (ALJ must explain rejection of significant probative evidence). 12 Fourth, the ALJ found that plaintiff’s testimony was inconsistent with the 13 opinions of state agency physicians Drs. R. Masters and R. Jacobs, which 14 supported the capability for medium work activity. AR at 23. Plaintiff objects to 15 this reason on the basis of outdated caselaw preceding the adoption of SSR 16-3p. 16 See P. Mem. at 13-14. The real issue with the ALJ’s reasoning, however, is that it 17 is also linked to his failure to properly consider her fibromyalgia. Although the 18 opinions of Drs. Masters and Jacobs were largely similar, the ALJ ultimately gave 19 greater weight to Dr. Jacobs’s opinion, finding it was better supported by the 20 evidence, including objective findings. See id. But the ALJ’s conclusion that Dr. 21 Jacobs’s opinion is more consistent with the objective findings than Dr. Drake’s 22 rests on the ALJ’s faulty evaluation of the objective record explained above. 23 Accordingly, this reason is not clear and convincing either. 24 The ALJ’s fifth and final reason to discount plaintiff’s testimony was her 25 poor effort on range of motion testing. AR at 23 (citing AR at 271). Plaintiff does 26 not address this reason. Even without an affirmative finding of malingering, an 27 ALJ may rely on a claimant’s poor effort as a reason to discount his or her 28 11 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 12 of 21 Page ID #:539

1 symptom testimony. Collins v. Astrue, 2009 WL 1202891, at *5-6 (C.D. Cal. Apr. 2 27, 2009) (evidence of poor effort was clear and convincing reason to discount 3 plaintiff’s symptom testimony). The ALJ here claims plaintiff’s poor effort in 4 range of motion testing weighs against her allegations of debilitating pain causing 5 extremely limited lifting, carrying, sitting, standing, and walking restrictions. See 6 AR at 23. But the ALJ does not sufficiently explain how plaintiff’s poor effort on 7 a single test translates into what is essentially a wholesale rejection of her symptom 8 testimony. Additionally, fibromyalgia is an unusual disease that is not amenable to 9 objective testing, which further calls into doubt the ALJ’s determination. See 10 Revels, 874 F.3d at 656-57. Ultimately, allowing the ALJ to reject plaintiff’s entire 11 testimony solely because of her poor effort on a single test would run afoul of the 12 SSA’s goal in adopting SSR 16-3p, which sought to clarify that “subjective 13 symptom evaluation is not an examination of an individual’s character.” 2017 WL 14 5180304, at *2. Thus, the court finds this reason was not sufficiently specific, 15 clear, and convincing by itself under the circumstances. 16 In sum, the ALJ failed to consider plaintiff’s symptom testimony in light of 17 her severe fibromyalgia. See Revels, 874 F.3d at 666. This error tainted his 18 reasoning for discounting the testimony. Accordingly, the court concludes the ALJ 19 failed to properly evaluate plaintiff’s symptom testimony. 20 B. The ALJ Properly Discounted Dr. Drake’s Opinion But It Should 21 Nonetheless Be Reconsidered on Remand 22 Plaintiff also argues the ALJ failed to provide legally sufficient reasons for 23 giving only partial weight to the opinion of examining physician Dr. Daniela 24 Drake. P. Mem. at 7-11. 25 1. Legal Standard 26 To determine whether a claimant has a medically determinable impairment, 27 the ALJ considers different types of evidence, including medical evidence. 20 28 12 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 13 of 21 Page ID #:540

1 C.F.R. §§ 404.1527(b), 416.927(b).2 The regulations distinguish among three 2 types of physicians: (1) treating physicians; (2) examining physicians; and (3) non- 3 examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Lester v. 4 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating 5 physician’s opinion carries more weight than an examining physician’s, and an 6 examining physician’s opinion carries more weight than a reviewing physician’s.” 7 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 8 §§ 404.1527(c)(1)-(2), 416.027(c)(1)-(2). 9 The ALJ is not bound by the opinion of an examining physician. Lester, 81 10 F.3d at 830. If an examining physician’s opinion is uncontradicted, the ALJ must 11 provide clear and convincing reasons for giving it less weight. Id. (citation 12 omitted). If the opinion is contradicted by other opinions, the ALJ must provide 13 specific and legitimate reasons, supported by substantial evidence, to discount it. 14 Id. at 830-31 (citation omitted). The opinion of a non-examining source alone is 15 not substantial evidence to discount an examining opinion. Id. at 831 (citations 16 omitted). Additionally, the opinions of a specialist about medical issues related to 17 his or her area of expertise are entitled to more weight than the opinions of a non- 18 specialist. Smolen, 80 F.3d at 1285 (citations omitted). 19 2. Dr. Drake’s Examining Opinion 20 On April 29, 2017, plaintiff presented to Dr. Drake’s office for an internal 21 medicine consultation. AR at 269. As the ALJ explained, Dr. Drake assessed 22 plaintiff with a light functional capacity. AR at 22. Specifically, Dr. Drake opined 23 that plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; 24 push and pull on a frequent basis; walk, stand, or sit for six hours in an eight-hour 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). 13 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 14 of 21 Page ID #:541

1 workday; occasionally bend, stoop, kneel, crawl, walk on uneven terrain, climb 2 ladders, and work at heights; do fine manipulation without limitations; and do 3 gross manipulation frequently. Id. (citing AR at 272-73). 4 3. The ALJ’s Findings 5 The ALJ gave Dr. Drake’s opinion only partial weight. AR at 22. 6 Specifically, the ALJ rejected Dr. Drake’s lifting, carrying, and gross manipulation 7 restrictions. See id. 8 As an initial matter, plaintiff concedes that Dr. Drake’s opinion was 9 contradicted by the opinions of the non-examining state agency physicians, Drs. 10 Masters and Jacobs. See P. Mem. at 8, 10. As such, the ALJ needed to provide 11 specific and legitimate reasons, supported by substantial evidence, to discount Dr. 12 Drake’s opinion. See Lester, 81 F.3d at 830-31. Here, the ALJ provided two 13 reasons. First, the ALJ found Dr. Drake’s lifting and carrying restrictions were not 14 supported by the objective medical record. See AR at 22. Second, the ALJ 15 concluded that Dr. Drake’s gross manipulation restriction was inconsistent with his 16 own clinical findings. See id. 17 First, the ALJ determined that Dr. Drake’s lifting and carrying restrictions 18 were not supported by the objective medical record, which was fairly minimal. See 19 AR at 22. Namely, an April 27, 2017 X-ray of plaintiff’s shoulder was normal, 20 although X-rays of plaintiff’s lumbar spine revealed moderate degenerative disease 21 at L5-S1. Id. (citing AR at 268). Two days later, she presented to Dr. Drake’s 22 office for an internal medicine consultation. She exhibited normal gait and 23 balance, intact motor and sensory functions, normal range of motion in her wrists, 24 a negative Phalen’s test, and a negative straight leg raise test. AR at 18, 22 (citing 25 AR at 270-72). Although she had limited mobility in the lumbar spine and 26 shoulders, Dr. Drake reported that she was making a poor effort during the 27 examination. AR at 22 (citing AR at 271). Exams of the remaining joints 28 14 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 15 of 21 Page ID #:542

1 throughout the upper and lower extremities were within normal limits. Id. (citing 2 AR at 270-72). 3 X-rays of plaintiff’s thoracic spine from October 10, 2017 were normal, as 4 was a study of the cervical spine except for questioned muscle spasms. Id. (citing 5 AR at 364, 367). A lumbar spine study from that same date also showed moderate 6 L5-S1 degenerative disc compression and facet arthropathy. Id. (citing AR at 365). 7 An X-ray of her hands demonstrated only early joint osteoarthritis. AR at 18 8 (citing AR at 366). 9 Starting in December 2017 and throughout 2018, plaintiff reported 10 improvement with Lyrica without side effects after medication adjustments. Id. 11 (citing AR at 337, 423, 425, 427, 429). Several 2018 examinations also recorded 12 positive fibromyalgia tender points. Id. (citing AR at 421, 423, 425, 427). 13 The ALJ found no objective findings supporting functional limitations due 14 to fibroids, abdominal pain, end organ damage, history of stroke, cardiovascular 15 disease, high blood pressure, or compression of a nerve root on the spinal cord. 16 See AR at 18, 20 (citing AR at 270-71). 17 In discounting Dr. Drake’s lifting and carrying restrictions, the ALJ was 18 particularly persuaded by Dr. Drake’s findings of negative straight leg raising, 19 normal motor strength, and intact sensation. See AR at 22. The ALJ also 20 emphasized that Dr. Drake obtained these normal findings despite plaintiff’s poor 21 effort during range of motion testing in her back. See id. Notably, plaintiff does 22 not argue that the ALJ failed to consider her fibromyalgia in evaluating the 23 consistency between Dr. Drake’s opinion and the objective record. Accordingly, 24 the court finds no error in the ALJ’s analysis and interpretation of the objective 25 record, and concludes that he provided substantial evidence to support his 26 conclusions. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“An ALJ 27 can satisfy the substantial evidence requirements by setting out a detailed and 28 15 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 16 of 21 Page ID #:543

1 thorough summary of the facts and conflicting clinical evidence, stating his 2 interpretation thereof, and making findings.” (cleaned up)); Aukland, 257 F.3d at 3 1035 (“Substantial evidence is more than a mere scintilla, but less than a 4 preponderance.” (citation omitted)). 5 Plaintiff argues that the ALJ is improperly using her poor effort as a sword 6 and a shield. See P. Mem. at 9. She contends that Dr. Drake acknowledged the 7 poor effort, yet still assessed a light exertional limitation. See id. The court is not 8 persuaded. It is true the ALJ considered plaintiff’s poor effort and arrived at a 9 different conclusion than Dr. Drake’s. But the ALJ supported his interpretation by 10 looking at the entire objective record, which he found to be fairly minimal. As 11 previously noted, the broader record also included largely normal findings 12 concerning plaintiff’s shoulders and hands, and reported improvement of 13 symptoms with medication. Thus, the ALJ properly explained his disagreement 14 with Dr. Drake. See Seawood v. Berryhill, 2020 WL 1624377, at *11 (S.D. Cal. 15 Apr. 2, 2020) (“The ALJ is to resolve conflicts in the record and assess the 16 claimant’s functionability based on the record as a whole.” (citing Tommasetti v. 17 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008))). 18 Plaintiff also contends that the ALJ failed to give sufficient weight to her 19 moderate degenerative disease and narrowing of her apophyseal joints at L5-S1. 20 See P. Mem. at 9; AR at 268. She argues that the ALJ considered only evidence 21 that affirmed his conclusion. See id. But the ALJ did consider plaintiff’s April 27, 22 2017 lumbar spine X-ray. The ALJ properly weighed that evidence against the 23 many other normal clinical findings. See Key v. Heckler, 754 F.2d 1545, 1550 (9th 24 Cir. 1985) (“[T]he ALJ has the power to weigh conflicting evidence” in deciding 25 whether the claimant suffers from an impairment). 26 Accordingly, lack of support in the objective medical record was a specific 27 and legitimate reason supported by substantial evidence for discounting Dr. 28 16 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 17 of 21 Page ID #:544

1 Drake’s opinion regarding plaintiff’s lifting and carrying restrictions. See Burrell 2 v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (ALJ may reject treating opinion if 3 unsupported by the record as a whole or objective medical findings). 4 Second, the ALJ determined that the gross manipulation restriction (i.e., 5 frequent gross manipulation) was not consistent with Dr. Drake’s own examination 6 evidence, which included a negative Phalen’s test and no other significant findings. 7 See AR at 22. Plaintiff argues there were indeed significant findings to support Dr. 8 Drake’s limitation. Namely, she could only generate five pounds of force 9 bilaterally using the Jamar Hand Dynamometer. P. Mem. at 10 (citing AR at 270). 10 She argues that grabbing the dynamometer requires gripping a decent-sized handle, 11 so the ALJ should have used his common sense to see that the dynamometer 12 finding supports the gross manipulation restriction. See id. 13 Even if plaintiff is right that the dynamometer finding was evidence of some 14 gross manipulative impairment, the ALJ did not ignore that finding as plaintiff 15 alleges. The ALJ considered all of Dr. Drake’s findings and interpreted them to be 16 not significant enough to warrant any gross manipulation restriction. See AR at 17 22; Key, 754 F.2d at 1550 (“[T]he ALJ has the power to weigh conflicting 18 evidence” in deciding whether the claimant suffers from an impairment). The ALJ 19 specifically mentioned the negative Phalen’s test because it would have revealed 20 hand numbness attributable to carpal tunnel syndrome. See AR at 22; King v. 21 Astrue, 2011 WL 3273182, at *5 (E.D. Cal. July 27, 2011). Additionally, Dr. 22 Drake’s examination revealed normal range of motion in her wrists and joints of 23 her fingers, good hand coordination, and normal sensation. See AR at 18 (citing 24 AR at 271-72). At best, plaintiff has presented evidence tending to show that there 25 is more than one rational interpretation of Dr. Drake’s findings, in which case the 26 ALJ’s interpretation must stand. See Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 27 (9th Cir. 2005) (“If the record would support more than one rational interpretation, 28 17 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 18 of 21 Page ID #:545

1 we defer to the ALJ’s decision.” (cleaned up)). 2 Accordingly, inconsistency with the evidence from the examination was a 3 specific and legitimate reason, backed by substantial evidence, to discount Dr. 4 Drake’s opinion as to gross manipulation. Aukland, 257 F.3d at 1035 (“Substantial 5 evidence is more than a mere scintilla, but less than a preponderance.” (citation 6 omitted)); Shavin v. Comm’r of Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 7 2012) (explaining that legitimate inconsistencies in doctor’s analysis or conflicting 8 lab test results, reports, or testimony may be specific and legitimate reasons to 9 reject medical opinion). 10 Accordingly, the ALJ provided two specific and legitimate reasons to 11 discount Dr. Drake’s opinion as he did, and the reasons given were supported by 12 substantial evidence. Nevertheless, the court notes that the ALJ may need to 13 reassess Dr. Drake’s opinion depending on the outcome of his reconsideration of 14 the effect of fibromyalgia on plaintiff’s condition on remand. 15 C. The Court Rejects Plaintiff’s Vague Constitutional Challenge 16 On August 11, 2021, almost two months after defendant filed its 17 Memorandum, plaintiff filed a Notice of New Authority. In the Notice, she states 18 that the U.S. Department of Justice’s Office of Legal Counsel issued an opinion on 19 July 8, 2021 that casts significant doubt on the constitutionality of the appointment 20 of the prior Commission of Social Security. Notice at 1. Plaintiff notes that she 21 filed her claim for benefits on February 21, 2017, participated in a hearing on April 22 19, 2019, received the ALJ’s adverse decision on June 27, 2019,3 and was denied 23 review by the Appeals Council on May 12, 2020. Id. at 2. She indicates that 24 Andrew Saul held the office of Commissioner of Social Security as the sole person 25 dischargeable only for cause between June 17, 2019 and July 11, 2021. Id. at 1-2. 26 The court is puzzled by plaintiff’s filing, which does not explain whether she 27 28 3 The date of the ALJ’s decision is actually July 2, 2019. See AR at 25. 18 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 19 of 21 Page ID #:546

1 is seeking any particular type of relief as a result of the alleged constitutional 2 problem with the former Commissioner’s appointment. Plaintiff had never raised 3 the issue prior to the filing of her Notice. To try to ascertain the nature of 4 plaintiff’s argument, the court reviewed other social security cases in which 5 plaintiff’s counsel also participated and raised the issue. From that, it appears 6 plaintiff intended to argue that the Commissioner’s final decision in this case arose 7 from an unconstitutional administrative process. See, e.g., Rebecca H. v. Kijakazi, 8 2021 WL 6881865, at *8-10 (C.D. Cal. Dec. 14, 2021). Specifically, the allegedly 9 unconstitutional removal provision rendered Saul’s tenure as Commissioner 10 unconstitutional, which in turn tainted his delegation of authority to the assigned 11 ALJ and the Appeals Council to consider and decide plaintiff’s case. See id. at 9. 12 The court will not address each of the arguments plaintiff’s counsel 13 presented in other cases but not here. The court finds only that it is not convinced 14 plaintiff’s constitutional challenge warrants reversal here, for two reasons. First, 15 the Ninth Circuit recently opined that “the possible invalidity of a restriction on the 16 removal of an official does not render invalid the appointment of the official.” See 17 Toni D. M. v. Kijakazi, 2022 WL 423494, at *2 (C.D. Cal. Jan. 5, 2022) (citing 18 Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021)). Second, 19 plaintiff has not even attempted to show any connection between the allegedly 20 unconstitutional removal clause and the ALJ’s or Appeals Council’s decision 21 denying her benefits. See id. at 3 (citing other cases on point); Dareth T. v. 22 Kijakazi, 2022 WL 671540, at *3 (C.D. Cal. Mar. 7, 2022) (same). Accordingly, 23 the court rejects plaintiff’s incomplete constitutional challenge. 24 V. 25 REMAND IS APPROPRIATE 26 The decision whether to remand for further proceedings or reverse and 27 award benefits is within the discretion of the district court. McAllister v. Sullivan, 28 19 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 20 of 21 Page ID #:547

1 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 2 discretion to direct an immediate award of benefits where: “(1) the record has been 3 fully developed and further administrative proceedings would serve no useful 4 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 5 evidence, whether claimant testimony or medical opinions; and (3) if the 6 improperly discredited evidence were credited as true, the ALJ would be required 7 to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020 (setting 8 forth three-part credit-as-true standard for remanding with instructions to calculate 9 and award benefits). But where there are outstanding issues that must be resolved 10 before a determination can be made, or it is not clear from the record that the ALJ 11 would be required to find a plaintiff disabled if all the evidence were properly 12 evaluated, remand for further proceedings is appropriate. See Benecke, 379 F.3d at 13 595-96; Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the 14 court must “remand for further proceedings when, even though all conditions of 15 the credit-as-true rule are satisfied, an evaluation of the record as a whole creates 16 serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 17 Here, remand is required to fully develop the record. On remand, the ALJ 18 shall reconsider plaintiff’s testimony in light of her fibromyalgia diagnosis, and 19 shall also take plaintiff’s fibromyalgia into account in considering the medical 20 opinions. The ALJ shall then reassess plaintiff’s RFC and proceed through steps 21 four and five to determine what work, if any, plaintiff was capable of performing. 22 // 23 // 24 25 26 27 28 20 Case 8:20-cv-01241-SP Document 24 Filed 03/30/22 Page 21o0f21 Page ID #:548

1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 | REVERSING the decision of the Commissioner denying benefits, and 5 || REMANDING the matter to the Commissioner for further administrative action 6 || consistent with this decision. : Prey 9 | DATED: March 30, 2022 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21