(SS) Dia Her Yang v. Commissioner of Social Security

Opinion

Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 1 of 43

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DIA HER YANG, Case No. 1:19-cv-00890-SAB

12 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL AND ENTERING 13 v. JUDGMENT IN FAVOR OF DEFENDANT COMMISSIONER OF SOCIAL SECURITY 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 15, 16, 17) 15 Defendant.

17 I.

18 INTRODUCTION

19 Dia Her Yang (“Plaintiff”) seeks judicial review of a final decision of the Commissioner

20 of Social Security (“Commissioner” or “Defendant”) denying her application for disability

21 benefits pursuant to the Social Security Act. The matter is currently before the Court on the

22 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. 1 23 Boone.

24 Plaintiff suffers from depressive disorder, anxiety, and status post right should sprain.

25 For the reasons set forth below, Plaintiff’s Social Security appeal shall be denied.

26 / / / 27 1 The parties have consented to the jurisdiction of the United States magistrate judge and has been assigned to the 28 magistrate judge for all purposes. (See ECF Nos. 7, 9, 18.)

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1 II.

2 BACKGROUND

3 A. Procedural History

4 On June 6, 2015, Plaintiff filed a Title II application for disability insurance benefits, and

5 on June 9, 2015, filed a Title XVI application for supplemental security income, alleging a

6 period of disability beginning on October 1, 2013. (AR 127-28, 245-52.) Plaintiff’s claim was

7 initially denied on August 18, 2015, and denied upon reconsideration on October 28, 2015. (AR

8 165-70, 172-78.) On December 9, 2015, Plaintiff requested hearing before an Administrative

9 Law Judge, and on September 11, 2017, Plaintiff appeared before Administrative Law Judge

10 Ruxana Meyer (the “ALJ”) for a hearing. (AR 44-78, 179.) On February 5, 2018, the ALJ

11 issued a decision finding that Plaintiff was not disabled. (AR 18-37.) On March 11, 2019, the

12 Appeals Council denied Plaintiff’s request for review. (AR 5-12.)

13 Plaintiff filed this action on June 28, 2019, and seeks judicial review of the denial of her

14 application for disability benefits. (ECF No. 1.) On February 25, 2020, Plaintiff filed a brief in

15 support of remand. (ECF No. 15.) On March 23, 2020, Defendant filed a brief in opposition.

16 (ECF No. 16.) On April 6, 2020, Plaintiff filed a reply brief. (ECF No. 17.)

17 B. Hearing Testimony

18 Plaintiff testified at the September 11, 2017 hearing with the assistance of counsel and an

19 interpreter. (AR 44-78.) Plaintiff only speaks minimal English, and her primary language is 20 Hmong. (AR 46.) Plaintiff spoke a little English at her former job. (Id.) Plaintiff did not recall

21 the year she came to the United States. (AR 47.) Plaintiff indicated she has a driver’s license

22 but somebody else drove her to the hearing. (Id.)

23 Plaintiff stated she was born on February 9, 1961, but was unsure of how old she was.

24 (AR 53.) Plaintiff lives with her son, and although she was unsure how old he is, she confirmed

25 he is over eighteen (18).2 (AR 53-54.) Plaintiff’s son has a medical illness, had a brain surgery,

26 and suffers from depression. (AR 54.) The son does not work, and Plaintiff supports herself 27 2 Although at this point Plaintiff indicated this was her only son, in later testimony it appears she refers to another 28 son that does not live with her, but visits to assist her. (AR 53-54, 63.)

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1 from her son’s disability income related to the brain surgery. (AR 54-55.)

2 Plaintiff testified she never attended school. (AR 55.) Plaintiff spoke some English at

3 her previous job at Busseto Foods, where she put sticker labels on meat packages. (AR 55-56.)

4 Plaintiff worked placing labels on jewelry at another position. (AR 56-57.) While a form

5 indicated Plaintiff lifted ten (10) to twenty (20) pounds at the jewelry company, Plaintiff

6 answered that the packages usually weighed one (1) pound or less. (AR 58.) At the meat

7 packing job, the men would do the lifting of objects, and Plaintiff only put on the stickers, as the

8 supervisor didn’t make her lift objects. (Id.)

9 The ALJ inquired about a wrist brace that Plaintiff was wearing at the hearing, and

10 Plaintiff answered it was prescribed, but did not remember when or the name of the doctor that

11 prescribed it, although stated the doctor was located in Fresno. (AR 59.) Plaintiff confirmed that

12 she got the wrist brace more than three years before the hearing and that she had it during the

13 time she worked at Busseto Foods, however, Plaintiff stated she was not allowed to wear it

14 during the day at work, but now wears it every day and night. (AR 60.)

15 When asked why she left the position at Busseto Foods, Plaintiff stated it was because

16 she got injured at work. (AR 61.) Plaintiff fell and injured her neck, shoulder, and elbow, and

17 afterwards felt like she was going to throw up, and so the supervisor took her to the hospital.

18 (Id.) Plaintiff clarified that she wears the wrist brace because of numbness in the right hand that

19 began more than three (3) years before. (AR 62.) 20 Plaintiff takes several kinds of medications for pain but did not have them with her to

21 specify which ones. (Id.) Plaintiff indicates another son that lives within a few minutes of

22 driving distance helps her with taking medication, and he visits every day to cook her food and to

23 tell her the medication to take. (AR 63.)

24 The ALJ then asked if Plaintiff’s counsel would like to examine Plaintiff, and requested

25 counsel to inquire about a cane. (Id.) Plaintiff’s counsel then examined Plaintiff. Plaintiff

26 answered that the cane she brought with her was used to support herself and prevent her from 27 falling due to pain in the right leg. (AR 64.) When asked how long she had the cane, Plaintiff

28 answered that it belonged to her mother and Plaintiff uses it for balance. (Id.) Plaintiff stated

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1 she had been using the cane for one year. (AR 65.) Plaintiff’s doctor does not know that she is

2 using the cane. (Id.)

3 Plaintiff confirmed she has problems holding onto items with her right hand. (Id.) After

4 some confusion regarding the questions, Plaintiff stated her right arm and hand have numbness

5 and pain. (AR 66-67.) Plaintiff also confirmed neck pain. (AR 67.)

6 Plaintiff confirmed she is seeing a therapist or psychologist, Dr. Popper, but was unsure

7 of how long she had been seeing the doctor. (Id.) After Plaintiff initially stated she does not still

8 have problems with mental health in an apparent problem with the translation, counsel further

9 inquired as to why the doctor said that even with medication, Plaintiff still has depression. (AR

10 67-68.) Plaintiff answered that because her son had brain surgery, and a lot of other things,

11 Plaintiff suffers from depression. (AR 68.)

12 The Vocational Expert Cathleen Spencer (the “VE”) testified. (AR 69.) The ALJ

13 presented hypotheticals reflecting the same age, education, and work experience as the Plaintiff.

14 (AR 70.) The first hypothetical assumed an individual that could perform at all exertional levels,

15 and could understand, remember, and carry out simple instructions, and the VE testified such

16 person could perform both prior jobs in Plaintiff’s past work. (Id.)

17 The second hypothetical assumed an individual with the same capacity as the first but

18 that could perform frequent pushing and pulling with the right upper extremity, and could

19 perform frequent overhead reaching with the right upper extremity. (AR 70.) After confirming 20 Plaintiff is in fact right-handed, the VE testified that Plaintiff could not perform any past work,

21 but could perform work in the national or regional economy, including machine packager with

22 69,000 jobs in the national economy, housekeeper with 135,000 jobs in the national economy,

23 and industrial cleaner with 12,000 jobs in the national economy. (AR 71-72.)

24 The third hypothetical assumed an individual that could lift fifty (50) pounds

25 occasionally, lift or carry twenty-five (25) pounds frequently, stand and/or walk six (6) out of

26 eight (8) hours, sit six (6) out of eight (8) hours, could perform frequent pushing or pulling with 27 the right, dominant upper extremity, could perform frequent overhead reaching with the right,

28 upper extremity, and could do simple work. (AR 72.) The VE testified that the same jobs

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1 previously identified for hypothetical two would be available to hypothetical three in the same

2 numbers. (Id.)

3 The fourth hypothetical assumed the same limitations as hypothetical three in addition to

4 requiring no contact with the general public and few changes in the work setting. (AR 72-73.)

5 The VE testified that the jobs available to hypothetical three would also be available to

6 hypothetical four in the same numbers. (AR 73.)

7 The fifth hypothetical assumed the same limitations as hypothetical four in addition to a

8 need to be off-task twenty-five percent (25%) of the day. (Id.) The VE testified that such person

9 could not perform any competitive work in the national or regional economy. (Id.)

10 The ALJ then inquired about the impact of an English language barrier and the VE

11 testified that such language barrier would reduce the number of jobs available for each

12 hypothetical by sixty percent (60%). (AR 73-74.)

13 Counsel then examined the VE. (AR 74.) Counsel presented a modified hypothetical

14 three with the overhead reaching limitation changed to no overhead reaching with the right upper

15 extremity, reaching out with the right upper extremity limited to occasional handling, and

16 fingering limited to occasional. (Id.) The VE testified that such person could not perform any of

17 the previously identified jobs. (Id.) The VE also confirmed that such person would have light

18 and sedentary work available, such as usher with 5,000 jobs in the national economy, or

19 traditional sandwich board carrier with 1,000 jobs in the national economy. (AR 74-75.) If 20 confined to the regional numbers, the VE testified that the number of available sandwich board

21 carrier jobs would number three-hundred (300) in California. (AR 75.) The VE stated an

22 English language barrier would reduce the available light and sedentary jobs by sixty percent

23 (60%). (Id.)

24 Counsel then presented a hypothetical person with the same limitations but with a poor

25 ability to sustain focused attention and a routine on a normal basis and a poor ability to maintain

26 social norms and adapt to stress, specified to cause the individual to be off task twenty percent 27 (20%) of the time. (AR 75-76.) The VE testified that such person could not perform any

28 competitive work. (AR 76.)

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1 Counsel offered a closing statement emphasizing that: the opinion of Plaintiff’s

2 psychologist, Dr. Mark Popper, was supported by substantial evidence; that Plaintiff has ongoing

3 mental health treatment with Dr. Popper and the Center for New Americans where Plaintiff

4 received one-on-one therapy with a licensed clinical social worker; and the report supports a

5 finding that Plaintiff would be off task at least twenty percent (20%) of the workday, that she

6 would be unable to adapt to stresses or social norms, and as a result would be incapable of

7 performing her past work or any other work as normally found. (AR 77.)

8 C. The ALJ’s Findings of Fact and Conclusions of Law

9 The ALJ made the following findings of fact and conclusions of law:

10 • Plaintiff meets the insured status requirements of the Social Security Act through

11 December 31, 2018.

12 • Plaintiff has not engaged in substantial gainful activity since the alleged onset date of

13 October 11, 2013.

14 • Plaintiff has the following severe impairments: depressive disorder, anxiety, and status

15 post right shoulder sprain.

16 • Plaintiff does not have an impairment or combination of impairments that meets or

17 medically equals the severity of one of the listed impairments in 20 CFR Part 404,

18 Subpart P, Appendix 1.

19 • Plaintiff has the residual functional capacity to perform work as follows: lift or carry 50

20 pounds occasionally and 25 pounds frequently; stand or walk 6 out of 8 hours and sit for

21 6 out of 8 hours; perform frequent overhead reaching, pushing and pulling with the right

22 dominant upper extremity; can understand, remember, and carry out simple instructions;

23 and can do work that involves no contact with the general public and few changes in the

24 work setting.

25 • Plaintiff is unable to perform any past relevant work.

26 • Plaintiff was born on September 2, 1961, and was 52 years old, which is defined as a an

27 individual closely approaching advanced age, on the alleged disability onset date. The

28 Plaintiff subsequently changed age category to advanced age.

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1 • Transferability of job skills is not an issue in this case because the Plaintiff’s past relevant

2 work is unskilled.

3 • Considering Plaintiff’s age, education, work experience, and residual functional capacity,

4 there are jobs that exist in significant numbers in the national economy that Plaintiff can

5 perform.

6 • Plaintiff has not been under a disability, as defined in the Social Security Act, from

7 October 11, 2013, through the date of the ALJ’s decision, February 5, 2018.

8 (AR 24-37.)

9 III.

10 LEGAL STANDARD

11 To qualify for disability insurance benefits under the Social Security Act, the claimant

12 must show that she is unable “to engage in any substantial gainful activity by reason of any

13 medically determinable physical or mental impairment which can be expected to result in death

14 or which has lasted or can be expected to last for a continuous period of not less than 12

15 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step

16 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. §

17 404.1520;3 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th

18 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is

19 disabled are: 20 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 21 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 22 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 23 Step three: Does the claimant’s impairment, or combination of impairments, meet 24 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 25 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 26 3 The cases generally cited herein reference the regulations which apply to disability insurance benefits, 20 C.F.R. § 27 404.1501 et seq., and Plaintiff is also seeking supplemental security income, 20 C.F.R. § 416.901 et seq. The regulations are generally the same for both types of benefits. Further references are to the disability insurance 28 benefits regulations, 20 C.F.R. §404.1501 et seq.

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1 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 2 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 3 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 4 disabled. If not, the claimant is disabled.

5 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

6 Congress has provided that an individual may obtain judicial review of any final decision

7 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g).

8 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the

9 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be

10 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v.

11 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a

12 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)

13 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which,

14 considering the record as a whole, a reasonable person might accept as adequate to support a

15 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of

16 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

17 “[A] reviewing court must consider the entire record as a whole and may not affirm

18 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting

19 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 20 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment

21 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is

22 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be

23 upheld.”).

24 IV.

25 DISCUSSION AND ANALYSIS

26 Plaintiff argues the ALJ erred by: (1) rejecting the opinions from Plaintiff’s treating

27 orthopedist Dr. Mochizuki, and Plaintiff’s treating psychotherapist Dr. Popper, without proper

28 evaluation as required by the regulations; and (2) failing to consider a closed period of disability

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1 for the period of time exceeding twelve (12) months, during which Plaintiff alleges she was

2 limited to a range of sedentary to light work. (Pl.’s Opening Br. (“Br.”) 1, ECF No. 15.)

3 A. The ALJ’s Weighing of the Medical Opinions was not Erroneous

4 The weight to be given to medical opinions depends upon whether the opinion is

5 proffered by a treating, examining, or non-examining professional. See Lester v. Chater, 81 F.3d

6 821, 830-831 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded

7 more weight than those of non-examining physicians, and the opinions of examining non-

8 treating physicians are afforded less weight than those of treating physicians.” Orn v. Astrue,

9 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)); see also Garrison v.

10 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“While the opinion of a treating physician is thus

11 entitled to greater weight than that of an examining physician, the opinion of an examining

12 physician is entitled to greater weight than that of a non-examining physician.”).

13 “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion,

14 an ALJ may only reject it by providing specific and legitimate reasons that are supported by

15 substantial evidence.” Garrison, 759 F.3d at 1012 (citing 20 C.F.R. § 404.1527(d)(3)). The

16 contrary opinion of a non-examining expert is not sufficient by itself to constitute a specific,

17 legitimate reason for rejecting a treating or examining physician’s opinion, however, “it may

18 constitute substantial evidence when it is consistent with other independent evidence in the

19 record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). “The weight afforded a 20 non-examining physician’s testimony depends ‘on the degree to which [he] provide[s]

21 supporting explanations for [his] opinions.’ ” Garrison, 759 F.3d at 1012 (citations omitted).

22 The ALJ need not accept the opinion of any physician that is brief, conclusory, and

23 unsupported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). It is

24 the ALJ’s responsibility to consider inconsistencies in a physician opinion and resolve any

25 ambiguity. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). The

26 ALJ can meet her “burden by setting out a detailed and thorough summary of the facts and 27 conflicting clinical evidence, stating [her] interpretation thereof, and making findings.”

28 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 779 F.2d

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1 1403, 1408 (9th Cir. 1989)).

2 1. The ALJ did not Err in Weighing Dr. Mochizuki’s Opinion

3 The Court first summarizes the relevant treatment records.

4 a. Dr. Mochizuki’s Medical Treatment Records

5 On June 2, 2014, Plaintiff was seen by Dr. Mochizuki who noted August 14, 2013 x-rays

6 of the right shoulder and elbow demonstrated a slightly diminished subacromial space with a

7 type II acromion, calcification measuring 2mm adjacent to the coronoid, and that an April 14,

8 2014 MRI of the shoulder demonstrated degenerative signal in the superior labrum. (AR 475-

9 76.) Dr. Mochizuki assessed a cervical strain, impingement syndrome of the right shoulder with

10 a probable tear of the labrum, and a possible coronoid fracture of the right elbow with tear of the

11 medial ulnar collateral ligament. (AR 478.) Dr. Mochizuki precluded Plaintiff from carrying

12 more than 10 pounds with the upper right extremity, pushing/pulling more than 10 pounds, or

13 working above shoulder level. (AR 479.) Further MRIs were recommended with follow-up in

14 four weeks. (Id.)

15 Following a June 16, 2014 MRI of the right elbow that revealed an interstitial tear of the

16 common extensor tendon and an osteochondral lesion of the posterior capitellum, on June 30,

17 2014, Dr. Mochizuki recommended a corticosteroid injection, but noted Plaintiff did not

18 understand the treatment recommendations because of a language barrier and recommended an

19 interpreter accompany the patient for a follow-up visit three weeks later. (AR 470-72.) Dr. 20 Mochizuki again noted a cervical strain, impingement syndrome of the right shoulder with

21 probable tear of labrum, and a possible coronoid fracture of the right elbow with tear of the

22 medial ulnar collateral ligament. (AR 472.) Dr. Mochizuki recommended precluding Plaintiff

23 from carrying more than ten pounds with the upper right extremity, pushing/pulling with more

24 than ten pounds of force, or working at or above the shoulder level of the right arm. (Id.)

25 On July 21, 2014, Plaintiff presented before Dr. Mochizuki who observed a positive

26 Hawkins test, positive O’Brien’s test, positive Speed’s test, tenderness to palpation over the 27 shoulder region, and reduced motor strength in the right extremity. (AR 405.) Dr. Mochizuki

28 again assessed a cervical strain, impingement syndrome with probable tear of the labrum, a

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1 possible coronoid fracture of the right elbow with tear of the medial ulnar ligament, an interstitial

2 tear of the common extensor tendon, and an osteochondral lesion of the posterior capitellum.

3 (AR 405-406.) Plaintiff was prescribed tramadol, and the doctor opined Plaintiff was precluded

4 from carrying more than 10 pounds with the upper right extremity, pushing or pulling more than

5 ten pounds, or working at or above the shoulder level. (AR 406.) Dr. Mochizuki also noted

6 Plaintiff was unsure whether she would like a corticosteroid injection, and stated: “No further

7 follow-up visits have been scheduled for Ms. Yang. She will be managed conservatively without

8 any further medical treatment from me.” (AR 406.)

9 On August 21, 2014, Dr. Mochizuki made similar findings and recommendations as

10 previous exams, in addition to completing a request for authorization for an ultrasound-guided

11 corticosteroid injection of the right shoulder with a scheduled follow-up four weeks later. (AR

12 458-59.) On September 15, 2014, Dr. Mochizuki administered the injection. (AR 453.) Dr.

13 Mochizuki noted Plaintiff was to return in the next two weeks before traveling to Laos to

14 reexamine the shoulder if she were feeling any side effects, and would otherwise return in

15 December of 2014 for a follow-up. (AR 456.)

16 On December 22, 2014, Plaintiff again presented to Dr. Mochizuki and reported that the

17 injection made the right shoulder feel better for approximately two weeks before pain returned.

18 (AR 449.) Dr. Mochizuki recommended arthroscopic repair of the right shoulder and opined that

19 Plaintiff was precluded from working at or above shoulder level, or carrying, pushing, or pulling 20 more than ten (10) pounds. (AR 451.) Dr. Mochizuki again noted that Plaintiff should have an

21 interpreter with her to understand the ramifications of surgery and recommended a follow-up in

22 three weeks. (Id.)

23 On February 2, 2015, Plaintiff met with Dr. Mochizuki for the final time. (AR 444.)

24 Plaintiff stated she was afraid to have surgery because her niece had surgery on her right upper

25 extremity and had lost use of her hand. (Id.) The assessment remained unchanged from prior

26 examinations: (1) cervical strain; (2) impingement syndrome of right shoulder, with probable 27 tear of labrum; (3) possible coronoid fracture of the right elbow with tear of the medial ulnar

28 collateral ligament; (4) osteochondral lesion of the posterior capitellum, right elbow; and (5)

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1 interstitial tear of the common extensor tendon. (AR 445-46.) Plaintiff requested a

2 corticosteroid injection, and once the injection was completed, Plaintiff would be “declared

3 permanent and stationary.” (AR 446.) A follow-up was to be conducted in four weeks. (Id.)

4 b. The ALJ’s Weighing of Dr. Mochizuki’s Opinions

5 The ALJ gave little weight to the medical opinions that were issued from multiple

6 medical professionals as part of Plaintiff’s workers’ compensation process, which included Dr.

7 Mochizuki’s opinion. The ALJ stated:

8 As part of the workers’ compensation process, the claimant [obtained] several different modified work slips including no working at or above shoulder level 9 with the right arm . . . no lifting, pushing, or pulling over 10 pounds . . . a 10 pound restriction with no reaching above the shoulders on the right . . . a 10 10 pounds restriction with limited use of the right arm . . . a 30 pounds lifting, pushing, and pulling restriction with no reaching above the shoulders . . . no 11 lifting more than 20 pounds and no pushing or pulling more than 30 pounds . . . Little weight is given to these opinions because they are temporary in nature and a 12 stated duration of this activity was not given. Additionally, records after the claimant stopped seeing the worker’s compensation providers indicate her 13 shoulder pain was only intermittent [AR 6544]. The reduction to 10 pounds is also not consistent with the degree of changes on imaging of the shoulder or 14 elbow and therefore appears to be based primarily on subjective complaints of pain [AR 476, 488, 489-90; 6135]. Accordingly, little weight is given as the 15 claimant’s mild reduction in strength and limited shoulder range of motion have been accounted for with the reduction to a reduced range of medium work as 16 described in the residual functional capacity above. 17 (AR 32-33.)

19 4 Here, the ALJ cites to an exam by Dr. Yang on April 4, 2016. (AR 654.) Dr. Yang noted that Plaintiff’s shoulder pain is intermittent, that “[s]he was recommended to have surgery and she refused,” and that “there is not much 20 more to offer[] for she already completed shoulder work up and refused surgery . . . [s]he only wants medical therapy.” (Id.) 21 5 Here the ALJ cites the April 14, 2014 MRI of the shoulder which showed an intact rotator cuff and degenerative 22 signal of the superior labrum without evidence of displaced tear. (AR 489-92.) The ALJ cites a record from the first visit with Dr. Mochizuki on June 2, 2014, wherein previous imaging results were summarized as follows: “X-rays of 23 the cervical spine include AP and lateral views, taken on August 14, 2013. The x-rays demonstrate straightening of the normal cervical lordosis. X-rays of the right shoulder demonstrate a slightly diminished subacromial space with a type II acromion. X-rays of the right elbow demonstrate a calcification measuring 2mm adjacent to the coronoid. 24 It is unclear whether this represents an osteophyte or possible fracture.” (AR 475-76.) The ALJ cites the June 16, 2014 MRI which found: (1) small osteochondral lesion of the posterior capitulum at the radiohumeral joint with no 25 other significant areas of abnormal signal; (2) ulnohumeral and radiosigmoid spaces grossly preserved; (3) ulnar collateral ligament and annular ligament intact; (4) tendons of the medial, lateral, anterior, and posterior 26 compartments intact; (5) no significant bursal or soft tissue abnormality; (6) severe tendinosis/interstitial tear of the common extensor tendon; (7) no effusion. (AR 488.) The June 16, 2014 impressions were: (1) osteochondral lesion 27 of the posterior capitulum; and (2) interstitial tear of the common extensor tendon. (Id.) The ALJ also cites the May 26, 2015 x-ray results which were compared with the April 14, 2014 MRI, and the impressions were noted as: (1) 28 normal right shoulder; and (2) abnormalities visualized on the MRI were not visualized in the x-ray. (AR 613.)

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1 c. Summary of the Plaintiff’s Challenges to the ALJ’s Findings

2 Plaintiff contends the ALJ’s rejection of Dr. Mochizuki’s opinion for lack of a stated

3 duration is erroneous because as for Plaintiff’s inability to work at or above shoulder level, Dr.

4 Mochizuki opined that Plaintiff’s limitations were “permanent and stationary, and thus the stated

5 duration of this activity was given, and the restriction was permanent.” (Br. 13; AR 446.)

6 Similarly, Plaintiff argues the ALJ’s assertion that Plaintiff’s shoulder pain was subsequently

7 described as “intermittent” was not a legitimate reason for rejecting the reaching limitations

8 because there is no indication that the frequency of Plaintiff’s intermittent pain was so limited

9 that the opined restrictions would no longer apply, particularly as intermittent pain throughout

10 the day or only with use does not contradict Dr. Mochizuki’s opinion. (Br. 13.) In this regard,

11 Plaintiff further argues the longitudinal record contradicts the ALJ’s assumption that Plaintiff’s

12 pain lessened or improved to a degree that renders Dr. Mochizuki’s opinion irrelevant,

13 emphasizing that in addition to ongoing treatment with medications including lidocaine,

14 acetaminophen with codeine, tramadol, prednisone, and gabapentin (AR 545-46, 576-77, 581-82,

15 598, 638, 644, 648, 656-57, 666-67), Plaintiff reported persistent right shoulder pain that was a

16 stressor and interfered with sleep, in addition to being regularly observed rubbing her right

17 shoulder and arm during therapy sessions due to pain (AR 704, 712, 720, 721, 729, 730, 732).

18 Thus, consistent Dr. Mochizuki’s opinion of permanent reaching restrictions, there was never

19 any indication that the shoulder pain and limitations ever improved to a point that would allow 20 greater functionality. (Br. 14.) Finally, Plaintiff argues the ALJ improperly speculated that the

21 degree of imaging does not support Dr. Mochizuki’s opined limitations (AR 33), as the ALJ is

22 not a medical expert and is not qualified to interpret such medical imaging, and the ALJ’s “lay

23 opinion” is contradicted by Plaintiff’s treating orthopedist and at least three other providers who

24 assessed the right-arm functional limitations.

25 d. The ALJ’s Assignment of Reduced Weight to Dr. Mochizuki’s Opinion for Lack of Stated Duration and for Plaintiff’s Description of Shoulder Pain as 26 Intermittent was not Error 27 The Court first considers two of the arguments offered by Plaintiff for why the ALJ’s

28 weighing of Dr. Mochizuki’s opinion was error: (1) that the ALJ’s rejection of Dr. Mochizuki’s

13 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 14 of 43

1 opinion for a lack of stated duration was improper because Dr. Mochizuki in fact opined that

2 Plaintiff’s limitations were permanent and stationary; and (2) that the ALJ’s assertion that

3 Plaintiff’s shoulder pain was subsequently described as “intermittent” was not a legitimate

4 reason for rejecting the reaching limitations because there was no indication that the frequency of

5 pain was so limited as to make the opined restrictions no longer applicable. (Br. 13; AR 446.)

6 Defendant responds that the ALJ properly relied on records demonstrating that after

7 Plaintiff stopped seeing the workers’ compensation providers, Plaintiff indicated her shoulder

8 pain was only intermittent and thus the ALJ found the records were not consistent with the extent

9 of Dr. Mochizuki’s opinions. (Opp’n 15.) Defendant highlights that Dr. Mochizuki’s last

10 examination of Plaintiff was February 2, 2015, and the last examination with any workers’

11 compensation provider was March 2, 2015 (AR 443, 446, 493). (Opp’n 15.) The ALJ discussed

12 that beginning in March of 2015, Plaintiff was mainly treated by her primary care providers, who

13 at times found through examinations that Plaintiff showed some limited range of motion with

14 discomfort and/or pain in the right shoulder (AR 30, 545, 576, 666),6 and as further noted by the

15 ALJ, other examinations showed a mild reduction in strength of 4 out of 5, but normal gait and

16 no other motor or sensory deficits (AR 30, 581, 585, 592, 596, 600, 637, 643, 647, 660).7

17 Defendant argues that a review of these treatment records illustrate that at many appointments,

18 6 On March 17, 2015, Plaintiff complained of elbow and shoulder pain “more day and night,” and showed limited 19 range of motion (“ROM”) with discomfort in the right shoulder on exam. (AR 545.) On May 4, 2015, presented to Dr. Yang as a new patient, complaining of heat intolerance, insomnia, and dry eyes. (AR 574-78.) The physical 20 exam noted right shoulder ROM limited by pain. (AR 576.) On October 27, 2015, Plaintiff complained of shoulder pain stating she could not put her wrist behind her back, described as moderate pain, and limited range of motion. 21 (AR 668.) Plaintiff presented with ROM limited to less than 90 degrees. (AR 666.) Regarding these records, the ALJ stated: “Beginning in 2015, the claimant was mainly treated by her primary care provider who noted she had 22 limited range of motion with discomfort in her right shoulder . . . consistent with prior exams but also accounted for in the residual functional capacity. (AR 30.) The ALJ went on to state the “claimant was able to lift her shoulder 23 above 90 degrees but had some limitations going backwards [AR 600].” (AR 30.) That is an accurate statement as to September 25, 2015, however as just stated, she could not extend past 90 degrees on October 27, 2015. (AR 600, 666.) Nonetheless, the differences may provide support to the ALJ’s reliance on the intermittent nature of the 24 shoulder pain. 25 7 The ALJ’s representation of these records is largely accurate. Plaintiff presented with a reduction of strength of 4 out of 5 and normal gait and no motor sensory deficits on May 18, 2015, June 18, 2015, July 22, 2015, and August 26 17, 2015 (though no express statement of normal or abnormal gait on August 17); and the same on September 25, 2015, February 3, 2016, August 1, 2016, and February 6, 2017, though there are no express statements of the 27 presence or non-presence of motor or sensory deficits in the 2016 and 2017 reports. (AR 581, 585, 592, 596, 600, 637, 643, 647, 660). 28

14 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 15 of 43

1 Plaintiff complained of other medical issues and did not always complain of shoulder pain or

2 limited range of motion of the upper extremity, and thus the ALJ’s conclusion was consistent

3 with the Plaintiff’s report on April 4, 2016, to Dr. Yang, that her shoulder pain was intermittent

4 (AR 30, 33, 654), and the ALJ ultimately found that to the extent that Plaintiff’s upper right

5 extremity caused limitations consistent with these prior examinations, they were accounted for

6 by the limited medium exertional limitations the ALJ assessed in the RFC, which limited

7 Plaintiff to frequent overhead reaching, pushing and pulling with the right dominant upper

8 extremity. (Opp’n 15-16.)

9 Defendant also argues the ALJ properly gave great weight to the opinions of State agency

10 physicians Frankel and Bugg, who opined on Plaintiff’s physical condition and found she could

11 perform medium work with a limitation to frequent pushing and pulling and frequent overhead

12 reaching with the upper right extremity (AR 33, 99-106, 135-40). (Opp’n 18.) Defendant

13 contends the ALJ properly relied on these physicians because they were familiar with the Social

14 Security Administration’s precise disability guidelines and the ALJ noted their opinions were

15 consistent with the medical record as a whole because even though they did not have the

16 opportunity to review later received medical evidence, there had been little change in Plaintiff’s

17 status. (AR 33, 574-615, 635-669.)8

18 In reply, Plaintiff reemphasizes the longitudinal record contradicts the ALJ’s assumption

19 that Plaintiff’s pain lessened or improved to a degree that renders Dr. Mochizuki’s opinion 20 irrelevant, as she reported persistent pain (AR 704, 712, 720, 721, 729, 730, 732),9 and thus

21 8 22 Dr. Frankel rendered an opinion on July 24, 2015 and appears to have reviewed medical evidence dating up to June 18, 2015. (AR 99-106.) Dr. Bugg rendered an opinion on October 28, 2015, and appears to have reviewed 23 medical evidence dating up to September of 2015. (AR 135-40.) The Court’s review has confirmed the records do not reflect any significant detrimental changes that stand out from prior dates. Plaintiff does not specifically argue that Dr. Frankel or Bugg did not have access to records that reflect significant changes or that would have materially 24 affected their ultimate findings. 25 9 On June 19, 2015, Plaintiff reported shoulder pain (AR 730-32); on July 28, 2015 Plaintiff reported persistent pain in shoulder and difficulty carrying more than a gallon of water (AR 729); on April 25, 2016, Plaintiff reported 26 shoulder pain and trouble functioning with the right arm (AR 721); on May 11, 2016, Plaintiff reported pain in the shoulders (AR 720); on August 8, 2016, Plaintiff was observed massaging her shoulder due to pain during a therapy 27 session (AR 712); on December 30, 2016, Plaintiff was observed as tearful and constantly rubbing the right shoulder during a psychology appointment (AR 704). 28

15 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 16 of 43

1 consistent with Dr. Mochizuki’s permanent reaching restrictions, there is no indication that the

2 shoulder pain and limitations ever improved to a point allowing greater functionality. (Reply 5.)

3 i. Lack of Stated Duration

4 First, while Plaintiff emphasizes Dr. Mochizuki issued a permanent and stationary

5 opinion, the Court notes that “permanent and stationary” is a “term of art relevant to workers’

6 compensation law under California law,” and a “disability is considered permanent and

7 stationary for California workers’ compensation purposes after the employee has reached

8 maximum medical improvement or his or her condition has been stationary for a reasonable

9 period of time.” Viramontes v. Astrue, No. 2:09-CV-00248 WBS KJ, 2010 WL 3212861, at *7

10 (E.D. Cal. Aug. 12, 2010) (internal citations and quotation marks omitted).10

11 10 While not expressly raised by Plaintiff in briefing, an ALJ may err where the ALJ fails to translate workers’ 12 compensation medical opinions’ terms of art. “While workers’ compensation ratings are not controlling in disability cases decided under the Social Security Act, the ALJ must consider workers’ compensation medical opinions and must ‘translate’ workers’ compensation terms of art in order to accurately assess the implications of those opinions 13 for the social security disability determination.” Fuentes v. Comm’r of Soc. Sec. Admin., No. SACV 11-1960 AJW, 2013 WL 140290, at *4 (C.D. Cal. Jan. 7, 2013) (citing Booth v. Barnhart, 181 F.Supp.2d 1099, 1105–1109 (C.D. 14 Cal.2002); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988); Coria v. Heckler, 750 F.2d 245, 247–248 (3d Cir.1984)); see also Withrow v. Colvin, No. CV 13-1959-AS, 2015 WL 58727, at *5 (C.D. 15 Cal. Jan. 5, 2015) (“However, the ALJ properly noted that Dr. Piasecki’s findings were based on the criteria used for evaluating a worker’s compensation claim which differ from the criteria used for a finding of disability under the 16 Social Security Act.”), aff'd, 672 F. App’x 748 (9th Cir. 2017). The Fuentes court found that “[a]lthough the ALJ noted that ‘Dr. Brown said the claimant remained permanent and stationary,’ the ALJ did not explain the 17 significance of this conclusion for purposes of the social security disability evaluation, nor did he explain how he interpreted or weighed Dr. Brown’s opinions that plaintiff was ‘temporarily totally disabled’ or Dr. Brown’s 18 workers’ compensation disability ratings.” Fuentes, 2013 WL 140290, at *4. Of note, in Fuentes, the court found there was no conflicting opinion, and thus the treating workers’ compensation opinion was entitled to controlling 19 weight, and while the ALJ summarized the report, the ALJ failed to “provide any reasons, let alone clear and convincing reasons, for rejecting the opinion.” Id. The Ninth Circuit in Desrosiers, cited in Fuentes, held that given 20 the differences in categories of work between the workers’ compensation law and Social Security Act, it was “clear from the record that the ALJ did not adequately consider this distinction,” because the ALJ used the incorrect 21 definition during the hearing, and inaccurately stated that Plaintiff’s alleged inabilities were contradicted by all examining physicians, when the workers’ compensation doctors were not in fact contradicted. Desrosiers, 846 F.2d 22 at 576 (9th Cir. 1988). The crux of the caselaw in this area appears to boil down to require an ALJ to evaluate a workers’ compensation opinion with a similar methodology and deference used when evaluating other types of 23 medical opinions, which ultimately may require the ALJ to demonstrate they considered the distinctions between the statutory schemes, or at least demonstrate an understanding of the distinctions. See de Orozco v. Comm'r of Soc. Sec., No. 1:18-CV-00817-SAB, 2019 WL 2641490, at *12 (E.D. Cal. June 27, 2019). 24 The ALJ’s opinion does not expressly reference the term “permanent and stationary.” In the portion of the 25 opinion weighing Dr. Mochizuki’s and the other workers’ compensation opinions, the ALJ notes that “[a]s part if the workers’ compensation, the claimant [received] several different modified work slips,” before providing the three 26 reasons for rejecting the opinions. (AR 32-33.) In assigning reduced weight, the ALJ stated little weight was given in part because the opinions were “temporary in nature and a stated duration of this activity was not given.” (AR 27 33.) An argument could be made that the opinion does not demonstrate the ALJ fully considered the distinctions between the schemes. However, the ALJ need not expressly translate such terms, and again, the crux of the caselaw 28 appears only to require weighing the workers’ compensation opinions in the same manner as other medical opinions,

16 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 17 of 43

1 Of note, within the records from Dr. Mochizuki, on July 21, 2014, Plaintiff presented

2 before Dr. Mochizuki who observed a positive Hawkins test, positive O’Brien’s test, positive

3 Speed’s test, tenderness to palpation over the shoulder region, and reduced motor strength in the

4 right extremity. (AR 405.) Dr. Mochizuki again assessed a cervical strain, impingement

5 syndrome with probable tear of the labrum, a possible coronoid fracture of the right elbow with

6 tear of the medial ulnar ligament, an interstitial tear of the common extensor tendon, and an

7 osteochondral lesion of the posterior capitellum. (AR 405-406.) Plaintiff was prescribed

8 tramadol, and the doctor opined Plaintiff was precluded from carrying more than 10 pounds with

9 the upper right extremity, pushing or pulling more than ten pounds, or working at or above the

10 shoulder level. (AR 406.) Dr. Mochizuki also noted Plaintiff was unsure whether she would like

11 a corticosteroid injection, and wrote: “No further follow-up visits have been scheduled for Ms.

12 Yang. She will be managed conservatively without any further medical treatment from me.”

13 (AR 406.)

14 On February 2, 2015, Plaintiff met with Dr. Mochizuki for the final time. (AR 444.)

15 Plaintiff stated she was afraid to have surgery because her niece had surgery on her right upper

16 extremity and had lost use of her hand. (Id.)11 The assessment remained unchanged from prior

17 which the ALJ did, while also expressly recognizing the opinions were issued in the workers’ compensation context. 18 See Bowser v. Comm’r of Soc. Sec., 121 F. App’x 231, 242 (9th Cir. 2005) (“[T]he objective medical findings contained in such opinions are to be evaluated as any other medical opinion [and] [t]he ALJ’s opinion should reflect, 19 however, that the ALJ properly considered the pertinent distinctions between the two schemes . . . In this case, although the ALJ did not explicitly translate Dr. White’s and Dr. Edington’s findings into Social Security parlance, 20 his reasoning can be gleaned from his opinion.”); see also Holloway v. Berryhill, No. EDCV 16-93 FFM, 2017 WL 5508512, at *5 (C.D. Cal. Nov. 16, 2017) (While holding the ALJ’s rejection of a workers’ compensation opinion 21 simply because it was generated in the workers’ compensation process was not a permissible reason to reject the opinion, the error was harmless because “opinion that plaintiff is permanent and stationary is only a finding that 22 plaintiff’s condition is not expected to improve. It does not show that plaintiff is more limited than assessed in the RFC.”). Further, Plaintiff did not expressly challenge any potential failure to describe or demonstrate taking account 23 of the difference between workers’ compensation and Social Security Act terminology, and therefore has waived the issue. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). 24 11 The Court notes that additionally, within the record cited by the ALJ concerning intermittent shoulder pain dated April 4, 2016, Dr. Yang wrote that Plaintiff’s shoulder pain is intermittent, that “[s]he was recommended to have 25 surgery and she refused,” that she continues to have shoulder pain, and that “there is not much more to offer[] for she already completed shoulder work up and refused surgery . . . [s]he only wants medical therapy.” (AR 654.) Dr. 26 Yang also recorded that Plaintiff was not taking her blood pressure medication, and made a notation under “Diagnosis” of “Plaintiff’s noncompliance with other medical treatment and regimen.” (AR 654-56.) The ALJ 27 expressly cited this record stating: “Notably, after she refused surgery through worker’s compensation, the claimant’s primary care provider noted there was not much else to offer her and she only wanted medical therapy . . 28 . He also indicated her shoulder pain was only intermittent.” (AR 30, citing AR 654.)

17 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 18 of 43

1 examinations: (1) cervical strain; (2) impingement syndrome of right shoulder, with probable

2 tear of labrum; (3) possible coronoid fracture of the right elbow with tear of the medial ulnar

3 collateral ligament; (4) osteochondral lesion of the posterior capitellum, right elbow; and (5)

4 interstitial tear of the common extensor tendon. (AR 445-46.) Plaintiff requested a

5 corticosteroid injection, and once the injection was completed, Plaintiff would be “declared

6 permanent and stationary.” (AR 446.) A follow-up was to be conducted in four weeks. (Id.)

7 On March 2, 2015, Plaintiff was prescribed tramadol and was again referred for a corticosteroid

8 injection in the shoulder joint, and as part of the workers’ compensation process Plaintiff’s injury

9 was designated as permanent and stationary, with modified activity to include no reaching above

10 the shoulder (AR 443, 493). This was Plaintiff’s last examination with a workers’ compensation

11 provider.

12 Given the content and history of the workers’ compensation records reviewed and cited

13 by the ALJ, including the ALJ’s express highlighting that these worker’s compensation opinions’

14 restrictions had various exertional limitations ranging between ten and thirty pounds throughout

15 the relevant time period (AR 32-33), and the description and review of the records by the ALJ

16 beginning in March of 2015 when the Plaintiff began treatment with primary care providers

17 rather than the worker’s compensation providers (AR 30), the Court finds that the ALJ’s

18 discounting of the workers’ compensation opinions, including Dr. Mochizuki’s, because the

19 opinions’ findings were temporary in nature with no stated duration of the activity was a specific 20 and legitimate reason for discounting the opinions, supported by substantial evidence. The

21 ALJ’s statement is facially true given the nature of workers’ compensation opinions in general,

22 see Holloway, 2017 WL 5508512, at *5 (noting the “opinion that plaintiff is permanent and

23 stationary is only a finding that plaintiff’s condition is not expected to improve [and] does not

24 show that plaintiff is more limited than assessed in the RFC”), and because of the details

25 surrounding the nature of the last visit with Dr. Mochizuki and the other workers’ compensation

26 provider, including notations that Plaintiff was declining surgery, and that she would be managed 27 conservatively with no further medical treatment by Dr. Mochizuki. Thus, this particular

28 permanent and stationary opinion was especially reflective of the fact that it only states

18 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 19 of 43

1 Plaintiff’s condition had reached maximum medical improvement, or her condition had been

2 stationary for a reasonable period of time. See Viramontes, 2010 WL 3212861, at *7.

3 Further even if this reason for assigning reduced weight would not stand in isolation, as

4 the Court finds herein, the ALJ’s other reasons for assigning reduced weight to the worker’s

5 compensation opinions, including Dr. Mochizuki’s, were also specific and legitimate reasons

6 supported by substantial evidence, and bolster this reason when considered collectively; the

7 ALJ’s assigning greater weight to the state agency physician opinions was proper; and the

8 ultimate RFC determination is supported by substantial evidence. See Rounds v. Comm’r Soc.

9 Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ is responsible for translating and

10 incorporating clinical findings into a succinct RFC.”); Shaibi v. Berryhill, 883 F.3d 1102, 1108

11 (9th Cir. 2017) (“Where evidence is susceptible to more than one rational interpretation, it is the

12 ALJ’s conclusion that must be upheld . . . As we cannot say that the ALJ’s interpretation of the

13 available evidence was not rational, the ALJ’s conclusions were supported by substantial

14 evidence.”).

15 ii. Intermittent Shoulder Pain

16 The Court now turns to the Plaintiff’s argument that the ALJ improperly relied on the fact

17 that after Plaintiff stopped seeing the workers’ compensation doctors, Plaintiff reported her

18 shoulder pain was intermittent. Specifically, the ALJ stated: “records after the claimant stopped

19 seeing the worker’s compensation providers indicate her shoulder pain was only intermittent [AR 20 654].” (AR 33.)

21 While the ALJ’s statement reads “records” in the plural, the ALJ only cited to one record

22 in this specific part of the opinion. This record reflects that on April 4, 2016, Dr. Yang noted

23 that Plaintiff’s shoulder pain is intermittent, that “[s]he was recommended to have surgery and

24 she refused,” that she continues to have shoulder pain, and that “there is not much more to offer[]

25 for she already completed shoulder work up and refused surgery . . . [s]he only wants medical

26 therapy.” (AR 654.) Dr. Yang also recorded that Plaintiff was not taking her blood pressure 27 medication, and made a notation under “Diagnosis” of “Plaintiff’s noncompliance with other

28 medical treatment and regimen.” (AR 654-56.)

19 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 20 of 43

1 While only citing one record, the ALJ’s statement that “records after the claimant stopped

2 seeing the worker’s compensation providers indicate her shoulder pain was only intermittent,” is

3 an accurate statement. Review of the administrative record reveals that on February 6, 2017, Dr.

4 Yang noted intermittent right shoulder pain on physical exam. (AR 636, 639.) Other records

5 also note descriptions of the shoulder pain as intermittent earlier in the treatment process. Some

6 records show Plaintiff’s pain was described both as chronic and intermittent in the same

7 examination. Specifically, Plaintiff’s last examination with Dr. Mochizuki was on February 2,

8 2015, and the last examination with any workers’ compensation doctor was March 2, 2015. (AR

9 443, 446, 493.) Previously, on October 10, 2013, and November 7, 2013, pain was described as

10 “chronic, mild, moderate, intermittent, sharp, stabbing and aching.” (AR 432, 435.) On

11 December 27, 2013, Plaintiff’s described intermittent pain in the front of the shoulder. (AR

12 429.) On February 7, 2014, Plaintiff’s shoulder pain was described as both intermittent and

13 chronic. (AR 426.) On March 24, 2014, under history of illness, Plaintiff’s pain is described as

14 “chronic, mild, intermittent, sharp, and stabbing.” (AR 423.) Treatment notes from May 12,

15 2014, June 23, 2014 and August 4, 2014, describe Plaintiff’s history and states “pain is constant,

16 no improvement,” described as aching with intermittent sharp pain, and also notes the “pain

17 improves with rest and medication and worsens with overuse.” (AR 400.)

18 Thus, the ALJ’s finding that the records indicate that Plaintiff’s shoulder pain was

19 intermittent is supported by substantial evidence in the record.12 A rational interpretation of the 20 ALJ’s statement is that the ALJ was relying on the fact that intermittent pain is inconsistent with

21 such exertional limitations, and not that the shoulder pain had improved a certain degree to only

22 intermittent. See Shaibi, 883 F.3d at 1108. Additionally, in another portion of the ALJ’s

23 opinion, the ALJ cites to the same April 4, 2016 record, stating: “Notably, after she refused

24 surgery through worker’s compensation, the claimant’s primary care provider noted there was

25 not much else to offer her and she only wanted medical therapy . . . He also indicated her

26 12 Plaintiff did not present an argument that the ALJ’s notation of this record was improper because of previous 27 notations of intermittent pain were also in the record, but rather argues Plaintiff’s shoulder pain never was indicated to have improved such a degree as to render Dr. Mochizuki’s opinion irrelevant, and argues Plaintiff reported 28 persistent shoulder pain. (Br. 14.)

20 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 21 of 43

1 shoulder pain was only intermittent.” (AR 30.) The ALJ provided a specific and legitimate

2 reason supported by substantial evidence in the record to reject the opinion of Dr. Mochizuki.

3 Further even if this reason for assigning reduced weight would not stand in isolation, as

4 the Court finds herein, the ALJ’s other reasons for assigning reduced weight to the worker’s

5 compensation opinions, including Dr. Mochizuki’s, were also specific and legitimate reasons

6 supported by substantial evidence, and bolster this reason when considered collectively; the

7 ALJ’s assigning greater weight to the state agency physician opinions was proper; and the

8 ultimate RFC determination is supported by substantial evidence. See Rounds, 807 F.3d at 1006;

9 Shaibi v. Berryhill, 883 F.3d at 1108.

10 e. The ALJ’s Reliance on the Objective Imaging Results was not Error

11 The Court next turns to Plaintiff’s argument that the ALJ is not a medical expert and

12 improperly interpreted the objective imaging results. In response, Defendant first highlights the

13 following passage from the ALJ’s opinion pertaining to the weighing of the objective imaging

14 results:

15 The objective evidence is not consistent with the severity and frequency of alleged symptoms related to the claimant’s right upper extremity impairment. X- 16 rays of the right shoulder revealed a slightly diminished subacromial space with a type II acromion [AR 47613]. The MRI of the shoulder from April 2014 17 demonstrated a degenerative signal in the superior labrum [AR 476, 489-9014]. However, in 2015, X-rays showed a normal right shoulder and the abnormalities 18

19 13 Here the ALJ cites a record from the first visit with Dr. Mochizuki on June 2, 2014, wherein previous imaging results were summarized as follows: “X-rays of the cervical spine include AP and lateral views, taken on August 14, 20 2013. The x-rays demonstrate straightening of the normal cervical lordosis. X-rays of the right shoulder demonstrate a slightly diminished subacromial space with a type II acromion. X-rays of the right elbow demonstrate 21 a calcification measuring 2mm adjacent to the coronoid. It is unclear whether this represents an osteophyte or possible fracture.” (AR 475-76.) 22 14 Here the ALJ again cites the record from the first visit with Dr. Mochizuki on June 2, 2014, wherein the previous 23 April 14, 2014 MRI was summarized as demonstrating “degenerative signal in the superior labrum,” (AR 476.) The ALJ also cites the actual imaging findings which state the same in addition to adding “without evidence of displaced tear,” and noting an intact rotator cuff. (AR 489-90.) Specifically, the April 14, 2014 MRI findings 24 showed: (1) the undersurface of the acromion is flat, mild degenerative changes of the acromioclavicular joint noted, and humeral head well seated within the glenoid fossa; (2) focal subcortical cystic change seen at the distant 25 attachment of the infraspinatus tendon, with remaining visualized osseous structures demonstrating normal cortical and bone marrow signal intensity without evidence of fracture, trabecular bone injury dislocation, and no chondral 26 defects identified; (3) supraspinatus, infraspinatus, teres minor and subscapularis tendons were intact; (4) rotator cuff interval within normal limits; (5) long head of the biceps tendon normal in course and caliber and biceps labral 27 anchor intact; (6) degenerative signal of lesion superior labrum noted without evidence of displaced tear, and no labral tear identified; and (7) no significant muscle atrophy noted, and no significant joint effusion noted. (AR 489.) 28

21 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 22 of 43

1 visualized on the previous MRI were not visualized [AR 61315]. Imaging of the right elbow in 2014 demonstrated a 2mm calcification adjacent to the cornoid 2 [AR 476]. In June 2014, an MRI of the right elbow revealed an interstitial tear of the common extensor tendon and an osteochondral lesion of the posterior 3 capitulum [AR 401, 48816]. Finally, it is noted that although the claimant complained of neck pain, the only abnormality on imaging was a straightening of 4 the normal cervical lordosis [AR 476].

5 (AR 29.) Defendant emphasizes the ALJ was citing to imaging reports from medical

6 professionals that, for example, found pursuant to the May 26, 2015 x-ray of the right shoulder

7 that Plaintiff had a normal right shoulder and that abnormalities visualized on the April 14, 2014

8 MRI of the shoulder were not seen (AR 613). Thus, Defendant argues that the ALJ properly

9 considered and weighed the opinion under the regulations, 20 C.F.R. §§ 404.1527(c)(3)-(4), and

10 properly assessed whether it was consistent and supported by the objective medical evidence,

11 basing her decision on substantial evidence in the record, including but not limited to the

12 objective medical imaging. (Opp’n 15.)

13 Defendant is correct that the impressions based on the May 26, 2015 x-ray results noted

14 that there was a “[n]ormal right shoulder,” and that the “[a]bnormalities visualized on MRI of

15 shoulder of 4/14/2014 are not visualized.” (AR 613.) The x-ray results also showed: (1) bony

16 structures were intact and normally mineralized; (2) no fracture, erosive or destructive changes;

17 (3) acromioclavicular and glenohumeral joints are normally maintained; (4) subacromial space

18 preserved; and (5) no soft tissue abnormality. (AR 613.) Plaintiff responds that the x-ray report

19 does not state that the defects observed upon an earlier MRI were resolved, but rather only 20 identified that no bony abnormalities were present and the soft tissue defects were not visualized.

21 Plaintiff argues that x-rays only produce imaging of dense tissues and would not show damage to

22 Plaintiff’s cartilage and ligaments that would be shown on an MRI. (Reply 4-5.)

23 It may be true that x-rays are “less effective at viewing soft tissues” than an MRI. Larson

24 15 The May 26, 2015 x-ray impressions noted that there was a “[n]ormal right shoulder,” and that the “[a]bnormalities visualized on MRI of shoulder of 4/14/2014 are not visualized.” (AR 613.) 25 16 The June 16, 2014 MRI found: (1) small osteochondral lesion of the posterior capitulum at the radiohumeral joint 26 with no other significant areas of abnormal signal; (2) ulnohumeral and radiosigmoid spaces grossly preserved; (3) ulner collateral ligament and annular ligament intact; (4) tendons of the medial, lateral, anterior, and posterior 27 compartments intact; (5) no significant bursal or soft tissue abnormality; (6) severe tendinosis/interstitial tear of the common extensor tendon; and (7) no effusion. (AR 401; 488.) The impressions were: (1) osteochondral lesion of 28 the posterior capitulum; and (2) interstitial tear of the common extensor tendon. (Id.)

22 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 23 of 43

1 v. Berryhill, No. 2:17-CV-00029-DWC, 2017 WL 2620068, at *4 (W.D. Wash. June 16, 2017)

2 (citing Chondromalacia patella, Diagnosis, Mayo Clinic,

3 http://www.mayoclinic.com/health/chondromalacia-patella/DS00777); see also Hall v. Colvin,

4 778 F.3d 688, 690-91 (7th Cir. 2015) (noting that “for such soft-tissue injuries an MRI is a better

5 diagnostic tool than an x-ray.”) (citing National Library of Medicine, Medline Plus,

6 “Lumbosacral Spine X–Ray,” www.nlm.nih.gov/medlineplus/ency/article/003807.htm.).

7 However, Plaintiff’s statement that x-rays only produce imaging of dense tissues and would not

8 show damage to Plaintiff’s cartilage and ligaments as shown on an MRI, appears to overstep in

9 the definitiveness of the assertion. See National Library of Medicine, MedlinePlus, “X–Ray,”

10 available at https://medlineplus.gov/ency/article/003337.htm (last accessed May 15, 2020)

11 (“Structures that are dense (such as bone) will block most of the x-ray particles, and will appear

12 white . . . Structures containing air will be black, and muscle, fat, and fluid will appear as shades

13 of gray.”); National Library of Medicine, MedlinePlus, “Joint x–Ray,” available at

14 https://medlineplus.gov/ency/article/003810.htm (last accessed May 15, 2020) (noting joint x-

15 rays may be conducted on shoulders and other joints and may show degenerative conditions of

16 the joint such as arthritis); National Library of Medicine, MedlinePlus, “Arthritis,” available at

17 https://medlineplus.gov/ency/article/001243.htm (last accessed May 15, 2020) (noting arthritis is

18 “inflammation or degeneration of one or more joints . . . and involves the breakdown of

19 cartilage.”); see also National Library of Medicine, MedlinePlus, “Abdominal x–Ray,” available 20 at https://medlineplus.gov/ency/article/003815.htm (last accessed May 15, 2020) (noting

21 abdominal x-rays are used to look at organs and structures in the abdomen, and is used to

22 diagnose issues such as kidney stones, blockages in the intestine, or to diagnose tumors,

23 abdominal masses, or other injuries to the abdominal tissue.).

24 In fact, x-rays are routinely cited, in conjunction with MRI results or separately, in social

25 security cases as evidence of the presence or absence of soft-tissue abnormalities. See, e.g.,

26 Paxton v. Saul, No. 1:18-CV-00716-BAM, 2020 WL 639199, at *6 (E.D. Cal. Feb. 11, 2020) 27 (“Nevertheless, x-rays of Plaintiff’s right ankle in August 2015 showed mild soft tissue

28 prominence, a mortise joint that was congruent and no acute osseous abnormalities . . . while x-

23 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 24 of 43

1 rays of Plaintiff’s right ankle in December 2016 showed only mild soft tissue swelling . . . [and]

2 x-rays of his right wrist in December 2016 were negative and showed no significant osseous,

3 articular, or soft tissue abnormality.”); Gardner v. Berryhill, No. 6:16-CV-01105-YY, 2017 WL

4 7163956, at *4, 7 (D. Or. Nov. 29, 2017) (“Multiple x-rays taken of the right shoulder showed a

5 ‘normal right shoulder’ and ‘no significant abnormalities’ of the soft tissue or bones . . . the ALJ

6 noted that both of Gardner’s lumbar x-rays showed normal disc spacing without deformity,

7 normal joints and soft tissues . . . ALJ also noted that the July 2013 x-ray of Gardner’s right

8 shoulder showed normal findings and no abnormalities of the bones or soft tissue . . .

9 Accordingly, the ALJ did not err in finding that the severity of Gardner’s symptom testimony

10 was contradicted by the unremarkable results contained in the imaging reports.”); Arellano v.

11 Colvin, No. CV 11-769-TUC-CRP, 2013 WL 5448418, at *3 (D. Ariz. Sept. 30, 2013) (“August

12 2006 x-rays showed mild osseous proliferation at the fascial insertion, mild increase in soft tissue

13 volume, and density at affected areas.”); Powell v. Astrue, No. CV 10-923-TC, 2011 WL

14 7024967, at *7 (D. Or. Sept. 23, 2011) (“The MRI revealed a horizontal memscus tear, cartilage

15 thinning, mild to moderate joint disease, and moderate joint effusion . . . One month later, an x-

16 ray revealed soft tissue swelling, moderately extensive degenerative changes, and no evidence of

17 joint effusion.”); Shari R. v. Comm’r of Soc. Sec., No. 2:17-CV-00284-SMJ, 2018 WL 3244086,

18 at *6 (E.D. Wash. July 3, 2018) (“X-rays and MRI’s showed normal soft tissue and articular

19 structures and an absence of joint space narrowing or avascular necrosis.”); Scheitlin v. Colvin, 20 No. CV 12-1799-E, 2013 WL 3878961, at *3 (C.D. Cal. July 26, 2013) (“X-rays of Plaintiff’s

21 feet and ankles showed bilateral soft tissue swelling and a large left plantar calcaneal spur.”).

22 However, it is also true an ALJ may err by improperly ignoring MRI results or

23 improperly relying on x-ray results when weighing all of the medical evidence in the record. See

24 Larson v. Berryhill, No. 2:17-CV-00029-DWC, 2017 WL 2620068, at *4, n.6 (W.D. Wash. June

25 16, 2017) (“The ALJ notes the X-ray examination report in the record was essentially normal;

26 however, Dr. Smith did not rely on X-rays. Instead, the ALJ fails to mention that Dr. Smith 27 relied on MRI scans which were consistent with chronic medial retinacular sprain and

28 chondromalacia . . . As Dr. Smith relied on imaging techniques better suited to assessing damage

24 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 25 of 43

1 to soft tissues, the ALJ’s use of X-ray scans to discount Dr. Smith’s opinion does not constitute a

2 specific and legitimate reason supported by substantial evidence.”); Hall v. Colvin, 778 F.3d 688,

3 690-91 (7th Cir. 2015) (noting that “for such soft-tissue injuries an MRI is a better diagnostic

4 tool than an x-ray” and holding the “administrative law judge’s most serious error, one we’ve

5 noted in previous cases . . . is her belief that complaints of pain, to be credible, must be

6 confirmed by diagnostic tests. Even if that were true, she should have known of the limitations

7 of x-rays as tools for diagnosing pain and, knowing that, should have ordered an MRI before

8 issuing her decision, because his two earlier MRIs had, he testified, preceded the onset of his

9 total disability.”) (citing National Library of Medicine, Medline Plus, “Lumbosacral Spine X–

10 Ray,” www.nlm.nih.gov/medlineplus/ency/article/003807.htm.).

11 Turning to the evidence presented here, given the totality of records and analysis

12 completed by the ALJ, the Court declines to find the ALJ erred. Assuming, arguendo, the x-ray

13 impressions were the sole reason given by the ALJ for discounting Dr. Mochizuki’s opined

14 limitations, perhaps a stronger case that the ALJ erred could be constructed. However, even

15 taken in isolation, the Court cannot find it unreasonable nor improper how the ALJ summarized

16 and noted her review of the entirety of the objective imaging medical evidence, including the

17 specific notation of the x-ray results in question not showing the abnormalities shown on the

18 previous MRI (AR 29), then cited these same imaging records in the portion of the opinion

19 reviewing all of the worker’s compensation opinions finding the degree of changes shown on the 20 imaging of the shoulder or elbow did not support a reduction in functional limitations to 10

21 pounds, when the various worker’s compensation opinions over the period in question contained

22 restrictions ranging from 10 pounds to 30 pounds. (AR 32-33.)

23 Given the range of opined limitations by the worker’s compensation providers, the Court

24 finds the ALJ reasonably found a reduction of exertional limitations to only ten pounds was not

25 consistent with the degree of changes shown on imaging of the shoulder or elbow, and thus

26 found such limitation to be primarily based on subjective complaints of pain, and not supported 27 by such imaging results. (AR 32-33.) Facially and taken alone, this appears to be a specific and

28 legitimate reason for assigning reduced weight to the various worker’s compensation opinions,

25 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 26 of 43

1 including Dr. Mochizuki’s, and is supported by substantial evidence in the record, as the Court’s

2 review and description of such evidence above shows. While Plaintiff is correct the x-ray

3 impressions do not expressly state that any or all problems with Plaintiff’s right extremity have

4 been resolved, the impressions also do not state that the abnormalities that are visible through an

5 MRI could not be seen with an x-ray. Rather, the record clearly and simply states the

6 abnormalities previously shown on MRIs were not present on the x-ray. (AR 613.) It was not

7 unreasonable nor legal error for the ALJ to specifically rely on such diagnostic impressions

8 expressly stated on the x-ray report when weighing all of the medical evidence. Further, to be

9 clear, in the ALJ’s portion of the opinion discounting the various worker’s compensation doctor

10 opinions that included Dr. Mochizuki’s (AR 33), the ALJ did not explicitly nor only cite to the

11 fact that the later x-ray results did not show the abnormalities visualized on the previous MRI,

12 but only stated the degree of changes shown across the various imaging results did not support

13 the more extreme reductions across the spectrum of the worker’s compensation modified work

14 slips. (AR 32-33.)

15 Additionally, the Court finds the ALJ did not ignore the results of the MRIs in favor of

16 the x-rays, but rather weighed the impressions taken through a variety of dates in conjunction

17 with the various medical opinions, finding the evidence did not support the opined limitations.

18 (AR 29, 33; see also, the Court’s review of the records cited by the ALJ, supra, footnotes 4, 5, 6,

19 7, 8, 9.) When considered as a part of the ALJ’s overall review and analysis of the record as a 20 whole, including Plaintiff’s refusal of surgery, testimony of travel and stated activities of

21 Plaintiff highlighted by the ALJ (AR 30), the review of the doctors’ opinions, both state and non-

22 state,17 the ALJ’s review and statements concerning the objective imaging results made when

23 17 The ALJ assigned great weight to the State agency physicians Frankel and Bugg, who found Plaintiff could perform medium work except frequent pushing and pulling with the upper right extremity and frequent overhead 24 reaching with the upper right extremity, stating that “[a]lthough the State agency consultants did not have the opportunity to review later rec[e]ived medical evidence, there has been little change in the claimant’s status as her 25 treatment remained routine and conservative with medication prescribed by her primary care provider.” (AR 33.) Dr. Frankel rendered the opinion on July 24, 2015, and appears to have reviewed medical evidence dating up to June 26 18, 2015. (AR 99-106.) Dr. Bugg rendered an opinion on October 28, 2015, and appears to have reviewed medical evidence dating up to September of 2015. (AR 135-40.) The Court’s review has confirmed the records do not 27 reflect any significant detrimental changes that stand out from prior dates. Plaintiff does not specifically argue that Dr. Frankel or Bugg did not have access to records that reflect significant changes or that would have materially 28 affected their ultimate findings, nor did Plaintiff specifically address the assessments. The Court finds the ALJ

26 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 27 of 43

1 weighing the workers’ compensation opinions including Dr. Mochizuki’s, were specific and

2 legitimate reasons for discounting the opinion, and were supported by substantial evidence in the

3 record, and not erroneous. Rounds, 807 F.3d at 1006; Shaibi, 883 F.3d at 1108.

4 Accordingly, for all of the above reasons, the ALJ did not err in assigning reduced weight

5 to Dr. Mochizuki’s opinion.

6 2. The ALJ’s Weighing of Dr. Popper’s Opinion was not Erroneous

7 On August 22, 2017, Dr. Popper completed a mental disorder questionnaire form. (AR

8 681-85.) Plaintiff argues the ALJ failed to provide specific and legitimate reasons for rejecting

9 Dr. Popper’s opinion.

10 In assigning reduced weight to Dr. Popper’s findings contained in the mental health

11 questionnaire, the ALJ stated the following:

12 Dis[co]unted weight is given to the statement by Mark Popper, Ph.D., who indicated the claimant had difficulty keeping her appointments even with 13 reminders; she was disoriented to time and her memory, concentration, and judgment were poor; her ability to interact with and communicate effectively with 14 others was poor; her ability to sustain focused attention, complete every day household routines, and follow instructions was poor; and she had a poor ability 15 to adapt to stress and a low frustration tolerance [AR 681-85]. While this statement was given considerable weight as to establishing the presence of severe 16 mental impairments with associated functional limitations, it reflects observations of the claimant’s emotional state rather than findings that would support more 17 limitations than stated in the residual functional capacity. The claimant’s tearful and depressed mood displayed during her therapy sessions has been accounted for 18 with the reduction to no contact with the public. However, the report of the consultative examiner does not support the claimant’s poor attention or focus 19 because the claimant demonstrated the ability to comprehend instructions without difficulty during testing, even though she put forth poor effort on testing [AR 20 67918]. Additionally, the claimant’s primary care provider, who prescribed her 21 properly relied on the opinions of state agency physicians Frankel and Bugg. Given the consistency with other 22 evidence identified by the ALJ, their opinions are also substantial evidence supporting the ALJ’s evaluation of all of the medical evidence of record. See Tonapetyan, 242 F.3d at 1149 (“Although the contrary opinion of a non- 23 examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician’s opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record.”); Sportsman v. Colvin, 637 F. App’x 992, 994–95 (9th Cir. 2016) (“The ALJ th[o]roughly summarized 24 the facts and conflicting evidence regarding Sportsman[’]s physical limitations, including an extensive review of the medical opinions of Sportsman’s treating physicians, stated his interpretation of the facts and conflicting evidence, 25 and made findings accordingly . . . We find that the ALJ did not err in assigning substantial weight to the state agency medical consultant, whose opinion relied on and was consistent with the medical evidence of record.”) 26 (citing Tonapetyan, 242 F.3d at 1149). 27 18 Here the ALJ cites a July 27, 2017 psychological evaluation completed by Dr. James Murphy. (AR 676-80.) The relevant portion of the report states that: “The claimant appeared to comprehend the instructions with out [sic] 28 difficulty from the beginning of the first test series and her sample answers revealed that she understood what was

27 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 28 of 43

1 medication for depression, noted the claimant was cognitively at her baseline with no deficit [AR 57619]. Additionally, the reported poor response to stress is not 2 consistent with the claimant’s ability to manage many situational stressor[s] with only a low dose of medication and no evidence of decompensation [AR 550, 553, 3 563, 622, 688, 695, 716]. The reduction to simple tasks with few changes in the work setting and no contact with the general public limits the stress and 4 distractions in the claimant’s environment and will allow her to perform basic work activities on a regular and continuing basis. 5

6 (AR 34.) The ALJ also gave little weight to the global assessment of functioning (“GAF”)

7 scores, including the GAF score of 43 issued by Dr. Popper:

8 Little weight is given to the global assessment of functioning (GAF) scores of 43 [AR 732] and 55 [AR 563, 618]. These scores represent serious to moderate 9 symptoms. They were given by two different mental health providers, around the same period of time, demonstrating the inconsistent nature of GAF scores and 10 their ability to fluctuate widely. Furthermore, GAF scores consider more than just the claimant’s occupational functioning and the basis for the scores and weight 11 given to specific factors was not provided. However, it is noted that a finding of moderate symptoms is not inconsistent with the residual functional capacity 12 above.

13 (AR 34.)

14 Preliminarily, Defendant first emphasizes that while Plaintiff states the ALJ “rejected”

15 Dr. Popper’s opinion, the ALJ did not completely reject the opinion but instead gave it

16 discounted weight, giving considerable weight to the opinion to the extent it established Plaintiff

17 expected of her and attempted to perform on these problems to the best of her ability, however, once she began the actual test she appeared to give little thought to the answers and answered indiscriminately. The claimant scored in 18 the Very Poor Range at the <1st percentile on her overall full scale. This indicates that greater than 99 percent of the population would score higher than she did. This is considered an un-acceptable Level of Intelligence. Ms. Yang 19 seemed to make very little effort to answer the problems correctly. Her ability to complete the sample problems correctly suggests she understood the tests. She seemed to have no difficulty grasping the idea behind the actual test 20 scales. (AR 679, emphasis in original.) The report went on to state: “Her level of intelligence as recorded through the interview and testing could not be assessed due to her poor effort on testing. She was able to sit for two hours 21 without a break and did not verbally or behaviorally demonstrate discomfort. Ms. Yang’[s] ADL’s, work history, and education history suggest that she functions at a higher level than the test results indicate. It appeared that the 22 most difficult barriers for this individual to overcome if she were to attempt to re-enter the work force would be her desire not to work. This individual’s test results indicates she is incapable of performing Simple Repetitive 23 Tasks (SRT) but there is some question as to how much effort she put into the tests.” (AR 679, emphasis in original.) In the portion relating to the Wechsler Memory Scale test, the report states: INTERPRETATION OF THESE TEST RESULTS SHOULD BE DONE WITH EXTREME CAUTION DUE TO POOR EFFORT OF 24 THE CLAIMANT.” (AR 678, emphasis in original.) Dr. Murphy also stated: “She did understand simple, basic instructions, and was able to complete sample tasks assigned to her by this clinician without any difficulty but once 25 she was started on the actual test material she demonstrated no effort.” (AR 680.) 26 19 On May 4, 2015, Plaintiff visited Dr. Bobby Yang as a new patient complaining of heat intolerance, insomnia and dry eyes. (AR 574.) The record notes Plaintiff’s functional status was within normal limits and “cognitively at 27 baseline with no deficit, good speech, good muscle control, good mood, [and] can converse and respond appropriately.” (AR 576.) 28

28 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 29 of 43

1 had severe mental impairments and associated functional limitations. (Opp’n 16, AR 34, 681-

2 87.) For example, the ALJ specifically accounted for Plaintiff’s tearful and depressed mood

3 displayed during therapy sessions with Dr. Popper, with a reduction in the RFC to no contact

4 with the public (AR 28, 34). (Opp’n 16.) The Court finds this is an accurate characterization of

5 the ALJ’s manner of assigning reduced weight to certain aspects of the opinion, as the Court

6 summarized above.

7 Turning to the specific arguments, Plaintiff first emphasizes the following of Dr.

8 Popper’s findings: (1) Plaintiff had difficulty keeping up with appointments and reminders; (2)

9 Plaintiff was sad, depressed, worried, anxious, and cried during all therapy sessions; (3) Plaintiff

10 was disoriented to time with poor recent and long-term memory, and poor concentration and

11 impaired judgment; (4) Plaintiff’s capacity to interact appropriately and communicate effectively

12 with others was poor; (5) Plaintiff cries in public and around people in waiting rooms, cries to

13 strangers about her problems, is easily tearful, and has poor interpersonal skills; (6) Plaintiff’s

14 ability to sustain focused attention, complete everyday household routines, and follow

15 instructions is poor, and she is extremely overwhelmed, preoccupied, and often loses focus; (7)

16 Plaintiff has poor ability to adapt to stress, has low frustration tolerance, is easily overwhelmed

17 and discouraged, has a short attention span, and poor decision-making skills; (8) Plaintiff’s

18 prognosis was poor and her condition was chronic; and (9) Plaintiff was not competent to

19 manage funds on her own behalf. (Br. 10-11; AR 681-85.) Plaintiff was diagnosed with (1) 20 major depressive disorder, recurrent episode with psychotic features; (2) generalized anxiety

21 disorder; and (3) posttraumatic stress disorder, chronic. (AR 685.)

22 Plaintiff contends the ALJ’s statement that Dr. Popper’s opinion “reflects observations of

23 the claimant’s emotional state rather than findings that would support more limitations than

24 stated in the residual functional capacity,” (AR 34), is premised on the unsupported assumption

25 that an emotional state “due to pervasive depression, is not relevant” to the RFC. (Br. 15.)

26 Plaintiff argues the ALJ’s opinion that a limitation on public contact adequately accommodates 27 Plaintiff’s persistent depression and crying throughout therapy sessions (AR 33-34), is not

28 supported by the record and is contradicted by Dr. Popper’s conclusion that Plaintiff’s pervasive

29 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 30 of 43

1 depression interferes with her ability to effectively communicate and relate to others, sustain a

2 routine, tolerate stress, and concentrate or complete tasks. (Br. 15-16.) Plaintiff further argues

3 the ALJ improperly utilized several isolated examples of evidence to contradict Dr. Popper’s

4 opinion, specifically, the ALJ’s citation to the consultative examiner’s notation of poor effort on

5 testing failed to set forth any specific and legitimate reasons for crediting the examiner’s opinion

6 rather than Dr. Popper’s assessment, and what the consultative examiner identified as “poor

7 effort” is in fact shown in the record to be symptoms of amotivation, poor concentration, and a

8 genuine lack of understanding, as for example, Plaintiff could not identify her age or son’s age at

9 the hearing because she never attended school and did not know simple math (AR 53-55), and

10 she routinely displayed lack of eye contact, persistent mental preoccupation and distraction,

11 isolation, lack of interest in activities with trouble completing tasks, lack of desire for anything,

12 and poor grooming (AR 705, 725-32). (Br. 16.)

13 Defendant responds the ALJ properly found Dr. Popper’s opinion simply reflected

14 observations of Plaintiff’s emotional state and that such findings were not entirely consistent

15 with or supported by the record, and would not support more limitations than already assessed in

16 the RFC. (Opp’n 16.) In reviewing Dr. Popper’s opinion that Plaintiff had poor attention or

17 focus, the ALJ found it inconsistent with Plaintiff’s demonstrated ability during testing with

18 consultative examiner Dr. Murphy who noted that even though she displayed poor effort,

19 Plaintiff’s behavior was goal-directed and showed an ability to comprehend instructions without 20 difficulty (AR 34, 673-80, 684-85). (Opp’n 16.) The ALJ gave considerable weight to Dr.

21 Murphy’s determination that Plaintiff did understand simple, basic instructions and was able to

22 complete without difficulty the assigned simple tasks (AR 34, 679). The ALJ found Plaintiff’s

23 ability to understand the instructions and tasks at the psychological examination as consistent

24 with the ability to perform simple, routine tasks (AR 28, 34, 679). (Opp’n 16-17.)

25 Plaintiff replies that identifying a conflicting opinion is not itself an explanation for

26 crediting that opinion over the other, and the ALJ’s discounting Dr. Popper’s findings because 27 the “report of the consultative examiner does not support the claimant’s poor attention or focus”

28 (AR 34), was improper because Dr. Popper’s treatment records do not support the consultative

30 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 31 of 43

1 examiner’s findings that Plaintiff has the ability to complete tasks without any difficulty, and the

2 existence of a conflict alone does not constitute an explanation for discounting Dr. Popper’s

3 opinion. (Reply 3 (citing Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“An ALJ

4 errs when he rejects a medical opinion or assigns it little weight while doing nothing more than

5 ignoring it, asserting without explanation that another medical opinion is more persuasive, or

6 criticizing it with boilerplate language that fails to offer a substantive basis for his

7 conclusion”)).)

8 As another preliminary consideration, the Court notes the ALJ did not accept the entirety

9 of Dr. Murphy’s opinion, but gave greater weight to certain aspects of the opinion, while

10 assigning less weight to the aspects the ALJ found were not supported by other evidence in the

11 record, including Dr. Murphy’s finding that Plaintiff could not handle her own monetary funds:

12 Considerable weight is given to the opinion of the consultative examiner, James Murphy Ph.D., who found the claimant did understand simple, basic instructions, 13 and was able to complete sample tasks assigned to her without any difficulty, but once she was started on the actual test material, she demonstrated no effort; the 14 most difficult barriers for her to overcome if she were to attempt to re-enter the workforce would be her desire not to work; she could not handle her own funds; 15 and she had a GAF score of 60 (Exhibit B10F at 10-11). Considerable weight is given as, although Dr. Murphy indicated poor effort during testing with an 16 inability to assess her level of functioning due to poor effort, her behavior was in a goal-directed fashion and she understood the instructions of the tasks consistent 17 with the ability to perform simple routine tasks. It is also noted that the claimant requested this consultative examination herself and not cooperating with the 18 process demonstrates some strategic mental ability. Little weight is given to Dr. Murphy’s opinion the claimant could not handle her funds as she worked for 19 many years, stopping for a physical injury and managed the household with her son and husband who were in poor health (Exhibit B11F). 20

21 (AR 33-34.)20

22 Turning to Plaintiff’s argument that the ALJ only utilized a conflicting opinion to

23 discount Dr. Popper’s opinion without further support, the Court disagrees. The ALJ did not

24 simply reject Dr. Popper’s opinion because it conflicted with Dr. Murphy’s but rather cited the

25 evidence contained in Dr. Murphy’s report pertaining to Plaintiff’s apparent poor effort on

26 20 Like Dr. Popper, Dr. Murphy determined that Plaintiff could not handle her own monetary funds, and the ALJ assigned reduced weight to this aspect of the opinion noting that Plaintiff stopped working due to a physical injury 27 not a mental condition and worked for many years and managed a household with her son and husband being in extremely poor health. (AR 34, 675, 685.) Plaintiff does not specifically challenge the ALJ’s assignment of 28 reduced weight to this aspect of Dr. Murphy’s opinion.

31 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 32 of 43

1 testing, as well as her ability to understand the testing instructions and other observations made

2 during the consultative exam with Dr. Murphy. Specifically, as to the ALJ’s notation of poor

3 effort demonstrated in testing, an ALJ’s citation to poor effort in testing can constitute a specific

4 and legitimate reason for rejecting a medical opinion. See Thomas v. Barnhart, 278 F.3d 947,

5 958 (9th Cir. 2002) (ALJ gave “specific, legitimate reasons for discrediting particular opinions”

6 and determining credibility of medical evidence, where “[i]n discrediting the report, the ALJ

7 reasoned that a one-hour physical capacity evaluation relies almost entirely on subjective

8 information, and when a claimant exaggerates symptoms, the results cannot be valid.”); Brady v.

9 Berryhill, No. EDCV 17-1075 JC, 2018 WL 2090508, at *4 (C.D. Cal. Apr. 27, 2018) (ALJ gave

10 specific and legitimate reasons for giving partial weight to two opinions where one doctor

11 “expressly noted that the psychological testing scores appeared to be ‘invalid’ which was

12 ‘consistent with [plaintiff’s] impaired mental status’ (i.e., during the evaluation plaintiff

13 ‘seem[ed] to be intoxicated from either alcohol or other street drugs’) and plaintiff’s ‘poor

14 effort.’ ”) (alterations in original); Murphy v. Colvin, No. 2:13-CV-1760 AC, 2014 WL

15 3837026, at *14 (E.D. Cal. July 30, 2014) (Upholding ALJ’s rejection of opinion based in part

16 on findings of poor effort and possible malingering during psychological testing); Ybarra v. Saul,

17 No. 1:18-CV-00924-BAM, 2019 WL 4734759, at *8 (E.D. Cal. Sept. 27, 2019) (rejecting

18 opinion in part due to poor effort on range of motion testing); Bullene v. Astrue, No. C12-

19 808MJP-MAT, 2013 WL 228642, at *3 (W.D. Wash. Jan. 22, 2013) (noting the “Ninth Circuit 20 held that an ALJ may reject the opinion of an examiner when the claimant puts forth poor effort

21 during examinations.”).

22 However, it is not clear to what extent an ALJ may properly use poor effort in testing

23 noted in one medical examiner’s report to assign reduced weight to another medical examiner’s

24 report. See Corral v. Colvin, No. 2:13-CV-3056-FVS, 2014 WL 3411233, at *7 (E.D. Wash.

25 July 10, 2014) (finding “poor effort at testing conducted by Dr. Thompson, Dr. Muscatel, Dr.

26 Drew and Dr. Duvall has little to do with the reliability of Dr. Brown’s findings,” as the “ALJ 27 pointed to nothing in Dr. Brown’s records suggesting a lack of effort or malingering while Dr.

28 Brown treated and evaluated plaintiff,” and Dr. Brown’s conclusions were similar to those of Dr.

32 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 33 of 43

1 Thompson, Dr. Muscatel and Dr. Brown, while the true “inconsistent findings [were] those of

2 Dr. Duvall, who found no limitations,” and therefore the ALJ’s determination that Dr. Brown’s

3 findings were inconsistent with objective evidence that plaintiff gave poor effort was not based

4 on substantial evidence, and the “conclusion that the neuropsychological evaluations ‘raised

5 questions about his effort and the extent of his symptoms’ is an overstatement of the evidence

6 [as] [o]nly Dr. Duvall raised questions about plaintiff’s effort during neuropsychological

7 evaluations and his objective test results reflect that lack of effort.”); Baez v. Colvin, No. ED CV

8 15-881 MRW, 2016 WL 335633, at *3 (C.D. Cal. Jan. 26, 2016) (“Dr. Glassmire”s supposition

9 that Plaintiff put forth ‘poor effort’ on the IQ test is entirely unsupported in the administrative

10 record. Most notably, Dr. Larson – the psychologist whom the agency hired to give Plaintiff the

11 test – didn’t observe any malingering or feigning during the exam. Dr. Larson noted that

12 Plaintiff had ‘limited interest in completing’ this specific test . . . [h]owever, there’s no basis to

13 stretch this discrete note regarding one exam (measuring visual-motor functioning) to entirely

14 vacate the results of another one (measuring general intelligence).”) (emphasis in original); but

15 see Bullene, 2013 WL 228642, at *3 (“Plaintiff’s poor effort during both Dr. Lind’s and Dr.

16 Thorpe’s examinations constitutes a specific and legitimate reason for rejecting Dr. Thorpe’s

17 opinion, even if Dr. Thorpe believed her own examination results were sufficiently valid to offer

18 an opinion”).

19 While the Court reproduced portions of the report in greater detail above, supra footnote

20 17, here the Court reemphasizes significant observations by Dr. Murphy. Dr. Murphy observed

21 that Plaintiff “appeared to comprehend the instructions without [sic] difficulty from the

22 beginning of the first test series and her sample answers revealed that she understood what was

23 expected of her and attempted to perform on these problems to the best of her ability, however,

24 once she began the actual test she appeared to give little thought to the answers and answered

25 indiscriminately.” (AR 679.) Dr. Murphy noted: “Ms. Yang seemed to make very little effort

26 to answer the problems correctly. Her ability to complete the sample problems correctly 27 suggests she understood the tests. She seemed to have no difficulty grasping the idea behind the

28 actual test scales.” (AR 679, emphasis in original.) Dr. Murphy noted Plaintiff’s level of

33 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 34 of 43

1 intelligence “could not be assessed due to her poor effort on testing.” (Id.) Dr. Murphy observed

2 that Plaintiff “was able to sit for two hours without a break and did not verbally or behaviorally

3 demonstrate discomfort . . . [and her] ADL’s, work history, and education history suggest that

4 she functions at a higher level than the test results indicate.” (Id.) Dr. Murphy opined that “[i]t

5 appeared that the most difficult barriers for this individual to overcome if she were to attempt to

6 re-enter the work force would be her desire not to work.” (Id.)

7 Further, Dr. Murphy stated Plaintiff’s “test results indicates she is incapable of

8 performing Simple Repetitive Tasks (SRT) but there is some question as to how much

9 effort she put into the tests.” (AR 679, emphasis in original.) Finally, in the portion relating to

10 the Wechsler Memory Scale test, the report states: INTERPRETATION OF THESE TEST

11 RESULTS SHOULD BE DONE WITH EXTREME CAUTION DUE TO POOR EFFORT

12 OF THE CLAIMANT.” (AR 678, emphasis in original.)

13 Given the way Dr. Murphy repeatedly stated these admonitions with capital letters,

14 bolding, and underlying, it appears the way Plaintiff demonstrated poor effort in testing was not

15 simply an observation of certain aspects of her actions that might indicate poor effort, but rather

16 were blatant and obvious to the consultative examiner. This would clearly be a specific and

17 legitimate reason supported by substantial evidence, for discounting the weight given to Dr.

18 Murphy’s opinion if the opined limitations were based on test results that Dr. Murphy himself

19 stated were not reliable. As noted above however, when used to discount the weight given to a 20 different doctor that did not specifically opine Plaintiff had poor effort on testing or rely on the

21 same testing in formulating the opinion, it is not clear to be proper in all circumstances.

22 However, the description of the poor effort put forth here and relevance to the ALJ’s use of such

23 report is distinguishable from the facts in Corral, 2014 WL 3411233, at *7, and Baez, 2016 WL

24 335633, at *3. Further, the ALJ did not simply cite to poor effort in testing, but stated the

25 “report of the consultative examiner does not support the claimant’s poor attention or focus

26 because the claimant demonstrated the ability to comprehend instructions without difficulty 27 during testing,” and then qualified that statement with “even though she put forth poor effort on

28 testing.” (AR 34.) Thus, the ALJ was not only relying on the poor effort demonstrated, but the

34 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 35 of 43

1 observations of Dr. Murphy as to Plaintiff’s ability to remain attentive and focus on tasks as

2 demonstrated in the ability to complete the sample problems without any issues, and demeanor

3 observed over a period of two hours. The Court finds the ALJ’s citation to the abilities exhibited

4 during practice testing and poor effort during other testing observed by Dr. Murphy was a

5 specific and legitimate reason supported by substantial evidence for assigning reduced weight to

6 Dr. Popper’s opinion.

7 Even if it were improper to solely rely on the poor effort and abilities demonstrated

8 during testing with Dr. Murphy to discount Dr. Popper’s opinion, the ALJ provided other reasons

9 in the same portion of the opinion. The Court turns to Plaintiff’s challenges to these reasons as

10 well.

11 Plaintiff argues the ALJ’s citation to Plaintiff’s prescribing physician and primary care

12 provider “noted the claimant was cognitively at her baseline with no deficit” (AR 34), however,

13 the treatment records cited to by the ALJ do not include mental status examination findings (AR

14 34, citing AR 576), as there is no notation for mental status examination, and Dr. Yang noted

15 “she will need further evaluation with mental health” (AR 574-76), which indicates that Dr.

16 Yang was not personally evaluating or assessing Plaintiff’s mental health functioning. (Br. 17.)

17 Thus, Plaintiff argues Dr. Yang’s general note about Plaintiff’s overall status is not a specific and

18 legitimate reason for rejecting Dr. Popper’s detailed analysis of Plaintiff’s specific mental health

19 impairments. (Br. 17.) 20 Specifically, following the ALJ’s discussion of poor effort demonstrated with Dr.

21 Murphy, the ALJ stated: “Additionally, the claimant’s primary care provider, who prescribed her

22 medication for depression, noted the claimant was cognitively at her baseline with no deficit.”

23 (AR 34.) The Court has reviewed the record cited by the ALJ here. (AR 34.) On May 4, 2015,

24 Plaintiff visited Dr. Bobby Yang as a new patient complaining of heat intolerance, insomnia,

25 depression, and dry eyes. (AR 574.) The record notes Plaintiff was pleasant, her functional

26 status was within normal limits, and she was “cognitively at baseline with no deficit, good 27 speech, good muscle control, good mood, [and she could] converse and respond appropriately.”

28 (AR 576.) Plaintiff accurately points out that the record also states: “She will need further

35 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 36 of 43

1 evaluation with mental health and hard copy of referral given to patient.” (AR 574.)

2 Perhaps if taken in isolation, Plaintiff would have a stronger argument that a lone citation

3 to this record does not amount to a specific and legitimate reason supported by substantial

4 evidence for discounting Dr. Popper’s opinion, however, as part of the multiple reasons offered

5 by the ALJ, the Court cannot find this was error to rely on these exam physician notes as one of

6 multiple reasons. The ALJ did not incorrectly reference this record, and the citation was offered

7 as part of multiple reasons, against the backdrop of conflicting opinion offered by the

8 consultative examiner Dr. Murphy, and reviewing state agency physicians. The Court finds this

9 was a specific and legitimate reason supported by substantial evidence for discounting the

10 opinion of Dr. Popper.

11 Additionally, Plaintiff argues that the ALJ’s conclusion that Dr. Popper’s opinion that

12 poor response to stress “is not consistent with the claimant’s ability to manage many situational

13 stressor[s] with only a low dose of medication and no evidence of decompensation,” (AR 34),

14 neglects to acknowledge that Plaintiff was not in fact managing her situational stressors, which is

15 why Plaintiff presented tearfully in weekly therapy session which she attended due to her

16 inability to cope, and as explained by Dr. Popper, Plaintiff often missed therapy appointments,

17 and explained to her providers that her absence was due to overwhelming stress (AR 622, 623-

18 26, 681). (Br. 17.) Defendant argues the ALJ properly found that Dr. Popper’s opinion

19 reporting Plaintiff’s poor response to stress was not consistent with the record, which displayed 20 Plaintiff’s ability to manage many situational stressors with only a low dose of medication and

21 no evidence of decompensation (AR 34, 550, 553, 563, 598, 622, 688, 695, 716). (Opp’n 17.)

22 Specifically, as an additional reason given for discounting Dr. Popper’s opinion, the ALJ

23 stated: “Additionally, the reported poor response to stress is not consistent with the claimant’s

24 ability to manage many situational stressor[s] with only a low dose of medication and no

25 evidence of decompensation.” (AR 34.) The Court has reviewed these records cited by the ALJ

26 here. They are essentially counseling records showing the various stress incidents that Plaintiff 27 complained about during treatment. For example, on June 8, 2015, therapy treatment notes

28 documented Plaintiff’s stresses with an uncle passing away, hospitalization of her husband for

36 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 37 of 43

1 three days, her husband’s “betrayal,” PTSD from seeing her husband fall from panic, with

2 progress notes only stating Plaintiff “is having trouble focusing and listening.” (AR 550.) The

3 record also notes Plaintiff came in “stating she forgot her appointment so she would just walk[]

4 in when she remember[s]” (Id.) Another record for example, dated May 13, 2015, showed

5 Plaintiff complained of stress from leaving her mother’s house after a trip to Oregon, that she did

6 not want to return home because she feels depressed there, that her son is hardly home, that she

7 started crying when talking about her marriage, and shared sadness about one of two twin babies

8 dying at birth. (AR 553.) Progress notes stated Plaintiff was tearful throughout the sessions,

9 called the clinician the wrong name, and shared her feelings non-stop as she was anxious to

10 share. (Id.) The other records show similar progress notes, continuing until June 30, 2016.

11 The Court finds these records support the ALJ’s statement that Plaintiff was able to

12 manage a variety of situational stressors without decompensation during the period of these

13 records, and with conservative treatment with medication. Again, perhaps if taken in isolation,

14 Plaintiff would have a stronger argument that this rationale is not a specific and legitimate

15 reason, however, as part of the multiple reasons offered by the ALJ, the Court cannot find this

16 was error. See Corthion v. Colvin, No. CV-15-00837-PHX-GMS, 2017 WL 68910, at *4 (D.

17 Ariz. Jan. 6, 2017) (“The bulk of case law deals with conservative treatment vis-à-vis claimant

18 credibility, rather than the weight due a treating physician’s report, but the Ninth Circuit has

19 discussed conservative treatment in the context of a treating physician’s report’s weight as 20 recently as 2016, albeit in an unpublished case.”) (citing Hanes v. Colvin, 651 F. App’x 703, 705

21 (9th Cir. 2016) (“In addition, the ALJ reasonably relied on his findings regarding Hanes’s daily

22 activities, her conservative treatment, and her positive response to that treatment to conclude that

23 the assessments of Dr. Hawkins and Dr. Pena were inconsistent with the objective evidence in

24 the record.”)); see also Eblen v. Saul, 811 F. App’x 417, 419 (9th Cir. 2020) (“The ALJ properly

25 gave little weight to Dr. Steven Maness’s opinion that Eblen was disabled because it was

26 inconsistent with the objective medical evidence, including Dr. Maness’s own treatment notes, 27 and because the record indicated that Dr. Maness had recommended conservative treatment.”).

28 Finally, the Court also considers the support provided by the State agency physicians to

37 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 38 of 43

1 the ALJ’s overall analysis of the evidence of Plaintiff’s mental impairments. The ALJ assigned

2 great weight to the State agency physicians Young and Funkenstein:

3 As for the opinions regarding the claimant’s mental functioning, great weight is given to the determinations of the State agency psychological consultants, B. 4 Young, M.D., who found the claimant had a mild limitation in activities of daily living, moderate limitations in social functioning and concentration, persistence, 5 or pace, and no episodes of decompensation (Exhibits 2A, 3A) and on reconsideration, D. Funkenstein, M.D., found the same limitations and indicated 6 the claimant had the ability to perform simple, routine, tasks with limited public contact (Exhibits B6A, B7A). Great weight is given because the ability to 7 perform simple tasks is consistent with the claimant’s ability to comprehend the testing instructions without difficulty during her consultative examination, even 8 though she put forth poor effort in her responses (Exhibit B10F at 10). The undersigned has also credited the claimant’s tearfulness during most of her 9 therapy sessions when finding she is further limited to no contact with the public (Exhibits B8F, B11F). It is again noted that the treating source statement 10 submitted after this determination is not consistent with the need for a further reduction as there was little objective evidence other than the claimant’s observed 11 emotional state during therapy sessions (Exhibit B11F). Notably the claimant was only taking a minimal dose of an anti-depressant to manage symptoms and was 12 resistant to learning coping skills (Exhibits B6F at 34; B8F at 10). 13 (AR 33.)

14 Defendant argues that the ALJ properly relied on State agency physicians who assessed

15 Plaintiff’s mental condition (AR 102-108, 134-142), as Young and Funkenstein reasonably

16 concluded from the review of the psychological records that Plaintiff’s mental limitations were

17 not significantly, mildly or moderately limited (AR 106-108, 140-42), and found that Plaintiff

18 had mild restrictions in activities of daily living, moderate limitations in social functioning (in

19 particular in the ability to interact appropriately with the general public), and moderate 20 limitations in maintaining concentration, persistence, or pace, and no episodes of

21 decompensation (AR 106-108). (Opp’n 17-18.) Young noted in making a credibility

22 assessment, that Plaintiff’s reported activities of daily living and Plaintiff’s individual statements

23 that she can only pay attention for two minutes were not supported by the medical evidence and

24 were exaggerated (AR 103-104). The ALJ did credit the Plaintiff’s reported tearfulness during

25 most of the therapy sessions when she was limited to no contact with the public, which was a

26 greater limitation than that set forth by Young and Funkenstein (AR 33, 618-634, 681-732). 27 (Opp’n 18.)

28 Plaintiff did not address the assessments provided by Drs. Young and Funkenstein in

38 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 39 of 43

1 briefing. The Court finds the ALJ properly relied on the opinions of state agency physicians

2 Young and Funkenstein. Given the consistency with other evidence identified by the ALJ, their

3 opinions are also substantial evidence supporting the ALJ’s evaluation of all of the medical

4 evidence of record. See Tonapetyan, 242 F.3d at 1149 (“Although the contrary opinion of a non-

5 examining medical expert does not alone constitute a specific, legitimate reason for rejecting a

6 treating or examining physician’s opinion, it may constitute substantial evidence when it is

7 consistent with other independent evidence in the record.”); Sportsman, 637 F. App’x at 994–95

8 (“The ALJ th[o]roughly summarized the facts and conflicting evidence regarding Sportsman[’]s

9 physical limitations, including an extensive review of the medical opinions of Sportsman’s

10 treating physicians, stated his interpretation of the facts and conflicting evidence, and made

11 findings accordingly . . . We find that the ALJ did not err in assigning substantial weight to the

12 state agency medical consultant, whose opinion relied on and was consistent with the medical

13 evidence of record.”) (citing Tonapetyan, 242 F.3d at 1149).

14 Accordingly, in addition to the reasons discussed above that were specific and legitimate

15 reasons for assigning reduced weight to Dr. Popper’s opinion, the ALJ’s review and analysis of

16 all the evidence of mental impairments, and combining the various opinions and evidence into a

17 reasonable RFC determination was not error, and was supported by substantial evidence in the

18 record.

19 B. Whether the ALJ was Required to Consider a Closed Period of Disability

20 Plaintiff argues that, assuming “arguendo that the ALJ could correctly find that

21 Plaintiff’s functional capacity increased with improvement in her right shoulder following the

22 close of her worker’s compensation case, the ALJ failed to properly evaluate Plaintiff’s

23 limitations prior to that date.” (Br. 18.) Plaintiff highlights that treating physicians routinely

24 imposed restrictions of limited lifting, pushing, and pulling between 10 and 30 pounds, with no

25 lifting above chest level on the right, and such limitations were imposed from October of 2013

26 through December of 2014. (Br. 18-19, citing AR 249, 380, 401, 406, 414-15, 412, 417-18, 421, 27 423, 427, 436, 432-34, 450-51, 459.) Plaintiff argues that even if the ALJ were correct to

28 speculate that Plaintiff experienced reduced pain beyond these dates, the fact she ultimately

39 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 40 of 43

1 experienced a degree of improvement does not invalidate the medical evidence of record

2 establishing disability prior to that point. (Br. 18.) Plaintiff emphasizes that “the ALJ

3 discredited these opinions because they lacked a durational statement and because Plaintiff’s

4 pain was eventually described as ‘intermittent’ . . . [h]owever, these reasons do not apply to the

5 time period during which these restrictions were persistently imposed following Plaintiff’s

6 injury.” (Br. 18.) Plaintiff further argues the remainder of the ALJ’s rationale in rejecting these

7 opinions is a lay interpretation of medical records, which is not a legitimate reason for rejecting

8 the treating physician’s opinion. (Br. 18.) Therefore, the ALJ erred by failing to consider

9 whether Plaintiff was unable to perform medium work for the period from October of 2013

10 through December 2014, and was therefore disabled pursuant to Medical Vocational Guideline

11 Rule 202.09.

12 Defendant responds that the ALJ specifically relied on the medical expert opinions of the

13 State agency physicians J. Frankel, and G. Bugg, who assessed the relevant evidence during the

14 period in question and did not conclude that the medical evidence during the period conclusively

15 established Plaintiff was disabled as detailed by the worker’s compensation providers. (Br. 20,

16 citing AR 100-101, 117.) Additionally, the ALJ found the objective imaging inconsistent with

17 the worker’s compensation providers’ limiting Plaintiff to no lifting, pushing, or pulling over 10

18 pounds. (Br. 20, citing AR 32-33.) Defendant also states the ALJ already considered Plaintiff’s

19 functional status based on the medical evidence during the alleged closed period and prior to any 20 supposed improvement in Plaintiff’s shoulder pain, and the ALJ cited to numerous treatment

21 records during the closed period that detailed Plaintiff had full range of motion and full strength

22 and this “calls into question Plaintiff’s conclusory assertion that the medical evidence of record

23 established disability during that close[d] period, prior to any degree of improvement that she

24 may have experienced (AR 29 citing 420, 423, 426, 429).” (Br. 20.) As an example, the ALJ

25 cited to Plaintiff’s physical examination conducted by treating physician Michael J. Reynolds,

26 that revealed during the middle of the alleged closed period, Plaintiff displayed no shoulder 27 abnormalities on appearance, normal shoulder range of motion in all planes with pain with no

28 substantial difference in limits noted during either active or passing testing. (Br. 20, citing AR

40 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 41 of 43

1 29, 426.) Plaintiff did not address Defendant’s arguments in the reply brief. (ECF No. 17.)

2 The ALJ did not expressly consider a closed period of disability. However, the ALJ’s opinion

3 expressly stated that to be disabled under the Social Security Act, the claimant must be unable to

4 engage in any substantial gainful activity due to any medically determinable or mental

5 impairment or combination of impairments that can be expected to result in death or that has

6 lasted or can be expected to last for a continuous period of not less than 12 months. (AR 22.)

7 The ALJ found the evidence did not show how Plaintiff’s impairments would limit the claimants

8 functioning for a continuous period of 12 months or more. (AR 25.)

9 As the Court found above, the ALJ properly considered the objective imaging results

10 collectively (AR 29), and properly found the objective imaging inconsistent with the worker’s

11 compensation providers’ limiting Plaintiff to no lifting, pushing, or pulling over 10 pounds,

12 during the relevant time period. (AR 32-33.) The ALJ’s citation to the record of intermittent

13 shoulder pain was not the only reason given for rejecting the workers’ compensation opinions.

14 As explained above, the ALJ did not only assign reduced weight to Dr. Mochizuki’s opinion, but

15 addressed the workers’ compensation opinions together and provided multiple reasons that the

16 Court found to be specific and legitimate. The Court found the ALJ’s overall RFC assessment,

17 both as to the physical and mental impairments, to be reasonable and supported by substantial

18 evidence in the record, including the opinions of state agency experts whose opinions were

19 reasonably found by the ALJ to be consistent with the overall medical evidence of record as a 20 whole.

21 Accordingly, the Court does not find the ALJ erred in failing to consider a closed period

22 of disability. See Laib v. Astrue, No. CV-09-0142-CI, 2010 WL 2218294, at *3, 5 (E.D. Wash.

23 May 26, 2010) (“Even if there are two rational interpretations of the evidence, the court may not

24 substitute its judgment for that of the Commissioner . . . even if Plaintiff identifies evidence in

25 the record that reasonably supports her argument that she was disabled for a closed period, the

26 standard of review dictates that the Commissioner’s decision be upheld if it is legally sufficient . 27 . . [here the] ALJ’s evaluation of the evidence and findings are supported by substantial evidence

28 and free of legal error . . . the Commissioner's determination of non-disability is a reasonable

41 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 42 of 43

1 interpretation of the evidence, it must be affirmed [and] [b]ecause the ALJ found Plaintiff was

2 not disabled at any time, i.e., for a continuous period of twelve months, between January 2006

3 and February 2009, Plaintiff's argument that she is eligible for disability benefits for a closed

4 period between January 2006 and October 2008 fails.”); Little v. Berryhill, No. 1:16-CV-00846-

5 SKO, 2017 WL 3601494, at *9 (E.D. Cal. Aug. 22, 2017) (“Because the ALJ’s evaluation of the

6 evidence and findings that Plaintiff did not suffer an impairment for a continuous period of

7 twelve months is supported by substantial evidence, it was not error for the ALJ not to consider

8 Plaintiff’s eligibility for a closed period of disability.”); Broers v. Berryhill, No. 1:16-CV-00202-

9 SKO, 2017 WL 1427025, at *10 (E.D. Cal. Apr. 21, 2017) (“Because the ALJ’s evaluation of the

10 evidence and findings that Plaintiff did not suffer an impairment for a continuous period of

11 twelve months is supported by substantial evidence, it was not error for the ALJ not to consider

12 Plaintiff’s eligibility for a closed period of disability.”); Rosales v. Colvin, No. CV-12-1550-

13 PHX-GMS, 2013 WL 1410387, at *4 (D. Ariz. Apr. 8, 2013) (“Here, Rosales does not

14 affirmatively set forth any evidence that supports a finding that he was disabled for at least

15 twelve months. Instead, he simply points out the fact that the evidence on which the ALJ relied

16 occurred after a point in time that could be considered the end of a closed period of disability. In

17 fact, the ALJ's decision that Rosales was not impaired for a period of at least twelve months is

18 supported by substantial evidence.”); Felton v. Colvin, No. 2:15-CV-2315-CKD, 2016 WL

19 6803680, at *5-6 (E.D. Cal. Nov. 17, 2016) (finding “substantial objective medical evidence in 20 the record from the closed period plaintiff asserts should be reconsidered supports the ALJ’s

21 determination that plaintiff was not disabled within the meaning of the Act for the duration of

22 that period . . . The ALJ carefully and fully addressed this evidence in his decision and reached a

23 reasonable determination that it did not warrant a finding that plaintiff was disabled, not only

24 during the closed period plaintiff now contests, but throughout the entire course of the relevant

25 period . . . Thus, the ALJ’s RFC determination that plaintiff was capable of light work with some

26 additional postural limitations throughout the course of the entire relevant period was supported 27 by the substantial evidence.”).

28 ///

42 Case 1:19-cv-00890-SAB Document 19 Filed 09/30/20 Page 43 of 43

1 V.

2 CONCLUSION AND ORDER

3 Based on the foregoing, the Court finds that the ALJ did not err in evaluating the opinion

4 of Dr. Mochizuki, did not err in evaluating the opinion of Dr. Popper, and did not err by failing

5 to consider a closed period of disability. The Court finds the ALJ’s decision to be reasonable

6 and supported by substantial evidence in the administrative record.

7 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s appeal from the decision of the

8 Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be

9 entered in favor of Defendant Commissioner of Social Security and against Plaintiff Dia Her

10 Yang. The Clerk of the Court is DIRECTED to CLOSE this action.

11 IT IS SO ORDERED. 12

13 Dated: September 30, 2020 UNITED STATES MAGISTRATE JUDGE 14

19 20

26 27