1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | A., Case No. SA CV 19-06-SP 12 Plaintiff, 13 V. MEMORANDUM OPINION AND 14 ORDER
15 | Social Security Administration. 16 Defendant. 17 18 19 INTRODUCTION 20 On January 3, 2019, plaintiff Luz A. filed a complaint against the 21 | Commissioner of the Social Security Administration (“Commissioner”), seeking a 22 || review of a denial of a period of disability, disability insurance benefits (“DIB”), 23 || and supplemental security income (‘SSI’). The parties have fully briefed the 24 | issues in dispute, and the court deems the matter suitable for adjudication without 25 || oral argument. 26 Plaintiff presents two issues for decision: (1) whether the Administrative 27 || Law Judge (“ALJ”) properly assessed the opinions of two treating or examining 28 || physicians; and (2) whether the ALJ failed to develop the record. Memorandum in
1 || Support of Plaintiff's Complaint (“P. Mem.”) at 2-6; see Defendant’s 2 || Memorandum in Support of Answer (“D. Mem.”) at 1-6. 3 Having carefully studied the parties’ memoranda, the Administrative Record 4} (‘AR’), and the decision of the ALJ, the court concludes that the ALJ properly 5 || assessed the physicians’ opinions and was not required to further develop the 6 || record. Consequently, the court affirms the decision of the Commissioner denying 7 || benefits. 8 II. 9 FACTUAL AND PROCEDURAL BACKGROUND 10 Plaintiff, who was 45 years old on the alleged disability onset date, has a 11 | high school education. AR at 44, 60, 73. Plaintiff has past relevant work as a deli 12 | counter worker. Jd. at 53. 13 On April 30, 2015, plaintiff filed applications for a period of disability, DIB, 14 || and SSI alleging an onset date of August 29, 2011 due to a neck injury, bilateral 15 || knee and feet problems and pain, injuries in the bilateral elbows, hands, and wrists, 16 || right shoulder injury, osteoarthritis, diabetes, high blood pressure, high cholesterol, 17 || depression, and anxiety. Id. at 60-61, 76-77. The Commissioner denied plaintiff's 18 || applications initially, and upon reconsideration, after which she filed a request for a 19 | hearing. Jd. at 126-42. 20 On November 7, 2017, plaintiff, represented by counsel, appeared and 21 || testified at a hearing before the ALJ. Jd. at 41-58. The ALJ also heard testimony 22 | from Dr. Luis Mas, a vocational expert. Jd. at 52-58. On December 27, 2017, the 23 || ALJ denied plaintiff's claims for benefits. Id. at 22-35. 24 Applying the well-known five-step sequential evaluation process, the ALJ 25 || found, at step one, that plaintiff had not engaged in substantial gainful activity 26 || since August 29, 2011, the alleged onset date. /d. at 25. 27 At step two, the ALJ found plaintiff suffered from the following severe 28 || impairments: degenerative joint disease of the bilateral knees; prior fracture of left
1 || distal radius, status-post surgical correction; cervical and lumbar sprain/strain; 2 || hypertension; diabetes mellitus; obesity; major depressive disorder; and anxiety 3 || disorder. Id. 4 At step three, the ALJ found plaintiff's impairments, whether individually or 5 || in combination, did not meet or medically equal one of the listed impairments set 6 || forth in 20 C.F.R. part 404, Subpart P, Appendix 1. /d. at 25-26. 7 The ALJ then assessed plaintiff's residual functional capacity (“RFC”),' and 8 || determined she had the RFC to perform a range of light work, with the limitations 9 || that she: could lift and carry 20 pounds occasionally and 10 pounds frequently; 10 could stand and walk for two hours out of an eight-hour workday with normal 11 || breaks; could sit for eight hours out of an eight-hour workday with normal breaks; 12 || could perform postural activities occasionally, but could not climb ladders, ropes, 13 | and scaffolds; could not walk on uneven terrain; could frequently perform fine and 14 || gross manipulation bilaterally; and was limited to simple tasks and frequent 15 || interaction with coworkers, supervisors, and the public. Jd. at 26-27. 16 The ALJ found, at step four, that plaintiff was unable to perform her past 17 || relevant work as a deli counter worker. Jd. at 32. 18 At step five, the ALJ found that, given plaintiff's age, education, work 19 || experience, and RFC, there were jobs that existed in significant numbers in the 20 || national economy that plaintiff could perform, including counter clerk and salon 21 || attendant. Jd. at 33-34. Consequently, the ALJ concluded plaintiff did not suffer 22 || from a disability as defined by the Social Security Act. Id. at 34. 23 24} SSS 25 ' Residual functional capacity is what a claimant can do despite existing 6 || exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 27 | the ALJ must proceed to an intermediate step in which the ALJ assesses the 28 || claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
1 Plaintiff filed a timely request for review of the ALJ’s decision, which was 2 || denied by the Appeals Council. /d. at 1-8. The ALJ’s decision stands as the final 3 || decision of the Commissioner. 4 Hl. 5 STANDARD OF REVIEW 6 This court is empowered to review decisions by the Commissioner to deny 7 || benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 8 || Administration must be upheld if they are free of legal error and supported by 9 | substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 10 || (as amended). But if the court determines the ALJ’s findings are based on legal 11 || error or are not supported by substantial evidence in the record, the court may 12 || reject the findings and set aside the decision to deny benefits. Aukland v. 13 || Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 14 } 1144, 1147 (9th Cir. 2001). 15 “Substantial evidence is more than a mere scintilla, but less than a 16 || preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 17 || “relevant evidence which a reasonable person might accept as adequate to support 18 || aconclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 19 || F.3d at 459. To determine whether substantial evidence supports the ALJ’s 20 || finding, the reviewing court must review the administrative record as a whole, 21 || “weighing both the evidence that supports and the evidence that detracts from the 22 | ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 23 || affirmed simply by isolating a specific quantum of supporting evidence.’” 24 || Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 25 || Cir. 1998)). If the evidence can reasonably support either affirming or reversing 26 || the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 27 || of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 28 | 1992)).
1 IV. 2 DISCUSSION The ALJ Properly Weighed the Medical Opinions 4 Plaintiff argues the ALJ failed to provide specific and legitimate reasons 5 || supported by substantial evidence for rejecting the opinions of Dr. Moheimani and 6 || Dr. Calhoun. P. Mem. at 2-4. More specifically, plaintiff argues the reason 7 || provided by the ALJ for discounting their opinions — that their opined limitations 8 || were overly restrictive and inconsistent with plaintiff's treatment history and 9 || contemporaneous examination findings — is insufficient because plaintiffs 10 treatment history and examinations in fact support the opined limitations. /d. 11 || Because plaintiff's medical record is extensive, only those notes and findings 12 || relevant to the present issue are discussed below. 13 In determining whether a claimant has a medically determinable impairment, 14 | among the evidence the ALJ considers is medical evidence. 20 C.F.R. 15 || §§ 404.1527(b), 416.927(b).* In evaluating medical opinions, the regulations 16 || distinguish among three types of physicians: (1) treating physicians; (2) examining 17 || physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 18 || 416.926(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a 19 treating physician’s opinion carries more weight than an examining physician’s, 20 || and an examining physician’s opinion carries more weight than a reviewing 21 || physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 22 || C.F.R. §§ 404.1527(c)(1)-(2), 416. 927(c)(1)-(2). The opinion of the treating 23 || physician is generally given the greatest weight because the treating physician is 24 || employed to cure and has a greater opportunity to understand and observe a 25 || claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. 26 || Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 27 | ————— 28 All citations to the Code of Federal Regulations refer to regulations applicable to claims filed before March 27, 2017.
1 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 2 || Smolen, 80 F.3d at 1285. Ifa treating physician’s opinion is uncontradicted, the 3 || ALJ must provide clear and convincing reasons for giving it less weight. Lester, 4 | 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 5 || opinions, the ALJ must provide specific and legitimate reasons supported by 6 || substantial evidence for rejecting it. 7d. at 830. Likewise, the ALJ must provide 7 || specific and legitimate reasons supported by substantial evidence in rejecting the 8 || contradicted opinions of examining physicians. /d. at 830-31. The opinion of a 9 || non-examining physician, standing alone, cannot constitute substantial evidence. 10 | Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. 11 | Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 12 | 813, 818 n.7 (9th Cir. 1993). 13 1. Medical Opinions and Records 14 Dr. A. Michael Moheimani 15 Dr. Michael Moheimani, an orthopedic surgeon, evaluated plaintiff on 16 || November 27, 2012 and December 21, 2012 in connection with her worker’s 17 | compensation claims. AR at 482-93, 731-44. Although plaintiff identifies Dr. 18 | Moheimani as her treating physician (see P. Mem. at 2-4), apart from the two 19 || evaluations in the record, there is no other indication of plaintiff being regularly 20 || treated by Dr. Moheimani. Nonetheless, Dr. Moheimani was designated a primary 21 || treating physician. See AR at 482-85. 22 Dr. Moheimani examined plaintiff and conducted a comprehensive initial 23 || orthopedic consultation on November 27, 2012. Jd. at 486-93. Plaintiff 24 || complained of aching pain in her bilateral elbows, neck, right shoulder, upper back, 25 || lower back, calves, and knees. /d. at 486. Plaintiff reported the symptoms in her 26 || knees worsened while walking, standing, sitting, and squatting, and she had 27 || weakness in her entire body as well as swelling, inflammation, and grinding in her 28 || knees. Jd. Based on a twelve-point review of plaintiff's systems, Dr. Moheimani
1 | found all symptoms were negative except for the following: chest pains, sleep 2 || disruption, shortness of breath, bladder problems, bowel problems, and vision 3 | problems. /d. at 487. After examining plaintiff and reviewing x-rays and MRIs of 4 | plaintiff's spine, wrists, and knees, Dr. Moheimani diagnosed plaintiff with left 5 || knee osteoarthritis, right knee osteoarthritis with medial meniscal tear, cervical 6 || degenerative disc disease, and a lumbosacral strain. /d. at 492. Dr. Moheimani 7 || opined plaintiff was capable of performing only sedentary work. Jd. 8 During a second examination on December 21, 2012, plaintiff presented for 9 || a physical for a right knee arthroscopy scheduled for December 27, 2012. Id. at 10 || 482-83. The examination notes indicate plaintiff's surgery was postponed because 11 || her case was not accepted. Jd. at 483. Based on a twelve-point review of 12 || plaintiff's systems, Dr. Moheimani found all symptoms were negative except for 13 || the following: joint pain, numbness, ab pain, sore throat, sleep disruption, 14 || depression, fatigue, headache, and nervousness. /d. at 482. Dr. Moheimani again 15 | diagnosed plaintiff with cervical degenerative disc disease, lumbosacral strain, left 16 | knee osteoarthritis, and right knee osteoarthritis with medial meniscal tear. Jd. at 17 | 483. Dr. Moheimani opined plaintiff could return to modified work on December 18 21, 2012 with the limitation that plaintiff could only perform sedentary work. Id. 19 |] at 484. 20 Dr. Kevin Calhoun 21 Dr. Kevin Calhoun evaluated plaintiff on May 8, 2013 and June 5, 2013 in 22 || connection with her worker’s compensation claims. Jd. at 494-502, 636-44. As 23 || with Dr. Moheimani, although plaintiff identifies Dr. Calhoun as a treating 24 || physician, there is no indication in the record that plaintiff was seen by Dr. 25 || Calhoun other than for the evaluations in May and June 2013, yet he too was 26 || designated a primary treating physician. See id. 27 During an examination on May 8, 2013, plaintiff presented with the 28 || following complaints: continuous pain in her neck, shoulders, arms, low back, and
1 || knees; intermittent pain in the bilateral feet; anxiety; depression; insomnia; 2 || nervousness; and frustration from work-related trauma and stress. Jd. at 496-97. A 3 || physical examination of plaintiff revealed pain with passive extension of the left 4 || knee, pain in the right knee, and that plaintiff had a full range of motion in both 5 || knees but with pain and swelling. /d. at 498. Dr. Calhoun diagnosed plaintiff with 6 || a bilateral knee medial meniscus tear, and enthesopathy of the bilateral knees. □□□ 7 | Dr. Calhoun opined plaintiff was able to return to her modified work duties with 8 || the limitations that plaintiff could not stoop, bend, kneel, crawl, or walk on uneven 9 || surfaces, and could not stand for more than 10 minutes, with plaintiff advised to sit 10 or stand as needed. Id. at 499. 11 During an examination on June 5, 2013, plaintiff presented with the 12 | following complaints: pain in the cervical spine, lumbar spine, and bilateral knees. 13 | Id. at 636. Plaintiff reported the bilateral knee pain was persistent, and the pain in 14 her lumbar spine radiated to the left leg. Jd. After examining plaintiff, Dr. 15 || Calhoun diagnosed plaintiff with cervicalgia, lumbago, bilateral knee medial 16 || meniscus tear, and bilateral knee enthesopathy. Jd. at 639. Dr. Calhoun opined 17 | plaintiff was totally temporarily disabled from June 5, 2013 through July 25, 2013. 18 | Id. 19 Dr. Payam Moazzaz 20 Dr. Payam Moazzaz, an orthopedic surgeon, completed an orthopedic 21 || consultation of plaintiff on March 10, 2013. Jd. at 476-81. Dr. Moazzaz diagnosed 22 || plaintiff with left knee degenerative joint disease with meniscal tears, 23 || spondylolisthesis, and lumbar degenerative disc disease. Id. at 479. Dr. Moazzaz 24 || opined plaintiff could lift and carry 20 pounds occasionally and 10 pounds 25 || frequently, stand and walk for six hours in an eight-hour work day, sit for six hours 26 || in an eight-hour workday with normal breaks, and occasionally bend, kneel, stoop, 27 || crawl, and crouch. Jd. at 480. Dr. Moazzaz further opined plaintiff could perform 28 || overhead activities on an unrestricted basis, had full use of her hands for fine and
1 || gross manipulation, and did not require the use of an assistive ambulatory device. 2 |i Id. 3 Dr. Zaven Bilezikjian 4 Dr. Zaven Bilezikjian, an orthopedic surgeon, completed an orthopedic 5 || consultation of plaintiff on August 18, 2015. Jd. at 908-13. Plaintiff complained 6 || of bilateral knee pain, low back pain, neck pain, right shoulder pain, right foot 7 || pain, and bilateral hand pain and numbness. /d. at 908-09. Dr. Bilezikjian 8 || diagnosed plaintiff with severe bilateral arthritis with varus deformities, probable 9 || early carpal tunnel syndrome, cervical and lumbosacral strain/sprain, and recent 10 || right foot pain of unknown etiology. Jd. at 911-12. Dr. Bilezikjian opined plaintiff 11 } could push, pull, lift, and carry 20 pounds occasionally and 10 pounds frequently, 12 || walk and stand for two hours per day, occasionally bend, stoop, kneel, and squat, 13 | frequently perform fine and gross manipulation, and could not walk on uneven 14 || terrain or climb ladders. Jd. at 912. Dr. Bilezikjian further opined plaintiff did not 15 | require an assistance ambulatory device, and could sit without restrictions. Id. 16 Other Medical Treatment 17 Plaintiff has received medical treatment from a range of physicians at 18 || different clinics. From June to November 2012, plaintiff was treated by various 19 || physicians at Southland Spine & Rehabilitation Medical Center for her shoulder, 20 || neck, back, and knee pain with cortisone injections in her knees (see, e.g., id. at 21 || 527) and anti-inflammatory medication (see, e.g., id. at 578, 608). Id. at 527-635. 22 || Acupuncture and physical therapy were also recommended at various times to treat 23 | plaintiff's pain. See, e.g., id. at 551, 608. 24 Plaintiff was treated by various physicians at Pacific Cardiovascular 25 || Associates on December 26, 2013, February 7, 2014, and May 29, 2014 for her 26 || complaints of hypertension, chest pain, and palpitations/arrhythmias. Id. at 646- 27 || 58. Plaintiff was prescribed medication to treat her palpitations and chest pain. Id. 28
1 Plaintiff was also treated by physicians at Anaheim Regional Medical Center 2 || for several emergency room admissions as well as routine screenings such as 3 | mammograms from March 2013 to February 2014. /d. at 659-730. Plaintiff's 4 || emergency room admissions were for complaints including fatigue, nervousness, 5 || dizziness, and body aches (id. at 671-76), chest pain and anxiety (id. at 662-70), 6 || and nausea, vomiting, diarrhea, and abdominal pain (id. at 677-91). The treatment 7 || notes for plaintiff's emergency room admissions are not entirely clear, but it 8 || appears plaintiff was prescribed medication and discharged later that day for all of 9 || her admissions. /d. at 662-730. 10 Plaintiff was treated by various physicians at Gateway Medical Center from 11 || October 2014 to December 2015 for her knee, shoulder, and neck pain. Jd. at 942- 12 || 87. Plaintiff was recommended physical therapy, home exercises, a left knee 13 || brace, lubricant and corticosteroid injections, and medication. Jd. 14 Plaintiff was evaluated by various physicians at Orange County Memorial 15 || Medical Center from October 2016 to May 2017 in advance of a back surgery 16 || scheduled for May 2017. Id. at 988-1030. 17 Dr. Gina Wilvang 18 Dr. Gina Wilvang, a D.P.M, opined on October 3, 2017 that plaintiff suffers 19 || from multiple foot and ankle conditions including diabetic peripheral neuropathy, 20 || venous insufficiency, and chronic instability, and is unable to bear weight for 21 || extensive periods of time. /d. at 1031. Apart from Dr. Wilvang’s October 3 note, 22 || the record does not include any other indication that plaintiff was treated by Dr. 23 || Wilvang. 24 Dr. Ryan Fan 25 Dr. Ryan Fan examined plaintiff on October 9, 2017 and opined that 26 || plaintiff has severe bone-on-bone bilateral knee arthritis and is very limited in her 27 || ambulation. /d. at 1032. Apart from Dr. Fan’s October 9 note, the record does not 28 || include any other indication that plaintiff was treated by Dr. Fan.
1 State Agency Physicians 2 State agency physicians Alicia V. Blando and D. Chan opined plaintiff 3 || could: lift and carry 20 pounds occasionally and 10 pounds frequently; stand and 4 || walk for two hours; sit for about six hours in an eight-hour workday; perform 5 || unlimited pushing and pulling other than as shown for lifting and carrying; 6 || occasionally climb, balance, stoop, kneel, crouch, and crawl; could perform limited 7 || fine and gross manipulation; had no environmental limitations; but must avoid 8 || even moderate exposure to hazards and could not walk on uneven terrain or climb 9 | ladders. Id. at 69-71, 85-87, 101-03, 117-19. 10 2. The ALJ’s Findings 11 The ALJ determined plaintiff had the physical RFC to perform a range of 12 }| light work with the limitations that she could: lift and carry 20 pounds occasionally 13 || and 10 pounds frequently; stand and walk for two hours out of an eight-hour 14 || workday with normal breaks; sit for eight hours out of an eight-hour workday with 15 | normal breaks; frequently perform fine and gross manipulation bilaterally; 16 || occasionally perform postural activities, but could not climb ladders, ropes, and 17 || scaffolds; and could not walk on uneven terrain. Jd. at 26. In reaching his physical 18 || RFC determination, the ALJ gave greatest weight to the opinions of Dr. Bilezikjian 19 || and the determinations of the state agency medical consultants. /d. at 31. 20 The ALJ gave some weight to the opinion of Dr. Moazzaz because it was not 21 || inconsistent with the objective medical evidence and opinions of a second 22 || consultative orthopedic examiner and state agency medical consultants, but 23 || treatment notes subsequent to Dr. Moazzaz’s evaluation indicated that further 24 | limitations on plaintiff's ability to stand, walk, and manipulate objects were 25 || warranted. Id. at29. The ALJ gave minimal weight to the opinion of Dr. Wilvang 26 || because the record does not contain any treatment notes from Dr. Wilvang or any 27 || longitudinal history of foot pain, plaintiff had normal examinations of the lower 28 || extremities in 2013 and 2015, and Dr. Wilvang’s assessment was vague as to the
1 || length of time plaintiff was capable of bearing weight. Jd. at 30. The ALJ gave 2 || limited weight to the opinion of Dr. Fan because it was vague and did not include 3 || any objective findings. /d. at 30-31. 4 As for the opinions of Dr. Moheimani and Dr. Calhoun, the ALJ did not 5 || explicitly reject their opinions by their names. Instead, the ALJ referenced certain 6 || exhibits in the record and assigned the medical opinions contained therein little 7 || weight. Jd. at 28-89. These exhibits included those containing the opinions of Drs. 8 | Moheimani and Calhoun. Jd. The ALJ gave these opinions little weight because 9 || they were “overly restrictive and inconsistent with the claimant’s treatment history 10 || and examination findings at the time they were provided.” Jd. at 28. The ALJ also 11 || stated a finding that plaintiff was “totally temporarily disabled” in the context of a 12 || worker’s compensation case was “not relevant or binding with regard to an 13 | application under the Social Security Act.” Jd. at 29. 14 Plaintiff does not challenge the ALJ’s disregard of Dr. Calhoun’s finding 15 } that plaintiff was totally temporarily disabled in June 2013, and with reason. An 16 || “ALJ may not disregard a physician’s medical opinion simply because it was 17 || initially elicited in a state workers’ compensation proceeding, or because it is 18 || couched in the terminology used in such proceedings.” Booth v. Barnhart, 181 F. 19 || Supp. 2d 1099, 1105 (C.D. Cal. 2002) (citation omitted). But an ALJ is not bound 20 || to accept or apply a workers’ compensation physician’s status designation, such as 21 || temporary total disability, because such terms of art are “not equivalent to Social 22 || Security disability terminology.” Dawson v. Colvin, 2014 WL 5420178, at *5 23 |! (C.D. Cal. Oct. 23, 2014) (citing Desrosiers v. Secretary of Health & Human 24 |i Services, 846 F.2d 573, 576 (9th Cir. 1988); Macri v. Chater, 93 F.3d 530, 544 25 || (9th Cir. 1996); Booth, 181 F. Supp. 2d at 1104); see also 20 C.F.R. § 404.1504. 26 |! Here, while finding the determination of total temporary disability to be irrelevant, 27 || the ALJ stated he nonetheless considered the evidence used by the physicians in 28 || the worker’s compensation case. AR at 29. It is the ALJ’s assignment of little
1 || weight to Drs. Moheimani’s and Calhoun’s opinions that limited plaintiff to 2 || sedentary work that plaintiff challenges. 3 As stated, the ALJ found their opinions were overly restrictive and 4 || inconsistent with plaintiff's treatment history and examination findings at the time 5 || they were provided. /d. at 28. Clinical findings from 2012 and 2013 indicated 6 || plaintiff had bilateral knee joint line tenderness, varus deformities, a positive 7 || McMurray’s test in both knees, and positive Hawkins and Neer tests of her 8 || bilateral shoulders. Jd. at 483, 489, 491, 533. During an examination on 9 || November 27, 2012, Dr. Moheimani observed a limping gait, but only a month 10 } earlier a physician at the Southland Spine & Rehabilitation Medical Center 11 || observed her to have a normal gait. Id. at 420, 490. Diagnostic imaging studies of 12 } plaintiff's cervical spine, knees, and wrists revealed a posterior spur with 13 || neuroforaminal encroachment bilaterally, patellofemoral arthritis in the left knee, 14 || meniscus tears, and moderate joint effusion in both knees. Jd. at 491, 745-46, 749- 15] 50. Plaintiff's clinical findings and imaging studies from 2012 and 2013 are not 16 || plainly inconsistent with the sedentary or less-than-sedentary restrictions opined by 17 || Drs. Moheimani and Calhoun, although they also do not necessarily support such 18 || level of restriction. 19 But it was particular portions of plaintiff's treatment history that the ALJ 20 || specifically cited in stating he gave little weight to Drs. Moheimani’s and 21 || Calhoun’s opinions. See id. at 28. The ALJ specifically pointed to plaintiffs lack 22 || of surgery and apparent ability to manage her pain with medication as inconsistent 23 || with the severe restrictions opined by Drs. Moheimani and Calhoun. Treatment 24 || notes from a complete orthopedic consultation on March 10, 2013 stated that 25 || plaintiff was only taking tramadol and cyclobenzaprine in 2013 for her pain, which 26 || the ALJ found “an indication that her pain level was managed well with 27 || conservative treatment.” Jd. at 28,477. Right knee arthroscopic surgery was 28 || recommended during an examination on September 19, 2012, but plaintiff testified
1 || at the hearing that she did not undergo the surgery. Id. at 28, 50-51, 465. The ALJ 2 || also accurately noted there is no indication in the record that plaintiff underwent 3 || any surgical intervention or significant treatment for her upper extremities, neck, or 4 || back issues during the relevant time period. /d. at 28. 5 Accordingly, the ALJ’s determination that plaintiff's treatment history was 6 || inconsistent with the level of restriction opined by Drs. Moheimani and Calhoun 7 || was supported by substantial evidence and a specific and legitimate reason to 8 || discount their opinions. The ALJ Did Not Err in Not Further Developing the Record 10 Plaintiff contends the ALJ erred by failing to fully and fully develop the 11 record by requesting additional records from Dr. Wilvang. P. Mem. at 5-6. 12 An “ALJ has a special duty to fully and fairly develop the record and to 13 assure that the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 14 || 441, 443 (9th Cir. 1983) (citation omitted). Yet plaintiff has the burden of 15 “furnish[ing] medical and other evidence that [the Commissioner] can use to reach 16 || conclusions about [plaintiff's] medical impairments(s).” Mayes, 276 F.3d at 459 17 || (quoting 20 C.F.R. § 404.1512(a)). Plaintiff may not shift his burden of production 18 |] to the ALJ. Id.; see 42 U.S.C. § 423(d)(5). 19 The duty to further develop the record is triggered when the record is 20 || ambiguous or otherwise inadequate. See Webb, 433 F.3d at 687; see also Mayes, 21 || 276 F.3d at 459-60 (ALJ has a duty to develop the record further only “when there 22 || is ambiguous evidence or when the record is inadequate to allow for proper 23 || evaluation of the evidence”). Generally, the ALJ fulfills this duty by making a 24 || reasonable attempt to obtain additional medical evidence from the claimant’s 25 || treating sources, ordering a consultative examination where the medical evidence is 26 || incomplete or unclear, or subpoenaing the claimant’s physicians or their records. 27 || Tonapetyan, 242 F.3d at 1150. 28
1A
1 Here, there was no ambiguity that warranted further development of the 2 || record. Plaintiff argues Dr. Wilvang was her treating physician, and the absence of 3 || treatment notes in the record from Dr. Wilvang meant that “vital medical evidence” 4 || was missing from the record at the time of the ALJ’s decision. P. Mem. at 5-6. As 5 || an initial matter, there is no indication that Dr. Wilvang was plaintiffs treating 6 || physician. The record only contains a single brief treatment note from Dr. 7 || Wilvang on October 3, 2017, a date that in any event was after plaintiff's date last 8 || insured. Dr. Wilvang’s note diagnoses plaintiff with multiple foot and ankle 9 || conditions including diabetic peripheral neuropathy, venous insufficiency, and 10 | chronic instability, and opines she is unable to bear weight for extensive periods of 11} time. 7d. at 1031. But the note is brief and includes no explanation of the findings 12 | on which these diagnoses and opined limitations were based. Jd. Furthermore, the 13 October 3, 2017 treatment note is vague as to what Dr. Wilvang meant by plaintiff 14 || being unable to bear weight for extensive periods of time. Given that plaintiffs 15 || medical history includes no indication of a history of foot pain, there was no reason 16 || for the ALJ to believe there was ambiguity that warranted further development of 17 the record. 18 As such, the ALJ had no duty to further develop the record. 19 Vv. 20 CONCLUSION 21 IT IS THEREFORE ORDERED that Judgment shall be entered 22 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 23 || the complaint with prejudice. 24 Gh = 25 | DATED: May 22, 2020 26 Cinited States Magistrate Judge 27 28