(SS) Jones v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 10 11 SHERRY LYNN JONES, No. 2:19-cv-01273 AC 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for Disabled Widow’s Benefits (“DWB”), a type of 20 Disability Insurance Benefits (“DIB”), pursuant to Title II of the Social Security Act. 42 U.S.C. 21 §§ 402(e), 416, 423.1 For the reasons that follow, plaintiff’s motion for summary judgment will 22 be DENIED, and defendant’s cross-motion for summary judgment will be GRANTED. 24 Plaintiff applied for benefits on July 27, 2017. Administrative Record (“AR”) 12, 206- 25 //// 26 1 Disabled Widow benefits are a type of Title II benefit. 42 U.S.C.A. 42 U.S.C. § 402(e). The 27 same disability definition applies but the date last insured is determined by the deceased’s work history. Id. at § 402(e)(1)(B). 28 1 214.2 The disability onset date was alleged to be April 17, 2017. AR 64. The application was 2 disapproved initially and on reconsideration. AR 12. On January 29, 2019, ALJ Carol L. Buck 3 presided over the hearing on plaintiff’s challenge to the disapprovals. AR 28 – 62 (transcript). 4 Plaintiff, who appeared with her counsel “Ms. Alberts,” was present at the hearing. AR 30. 5 Cheryl Chandler, a Vocational Expert (“VE”), also testified. Id. 6 On February 13, 2019, the ALJ found plaintiff “not disabled” under Sections 202(e) and 7 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 12-23 (decision), 24-27 (exhibit 8 list). On July 19, 2019, the Appeals Council denied plaintiff’s request for review, leaving the 9 ALJ’s decision as the final decision of the Commissioner of Social Security. AR 1-3. 10 Plaintiff filed this action on July 9, 2019. ECF No. 1; see 42 U.S.C. § 405(g). The parties 11 consented to the jurisdiction of the magistrate judge. ECF No. 29. The parties’ cross-motions for 12 summary judgment, based upon the Administrative Record filed by the Commissioner, have been 13 fully briefed. ECF Nos. 14 (plaintiff’s summary judgment motion), 18 (Commissioner’s 14 summary judgment motion), 19 (plaintiff’s reply), 24 (Commissioner’s sur-reply), 28 (plaintiff’s 15 response to sur-reply). 17 Plaintiff was born in 1959, and accordingly was, at age 57, a person of advanced age 18 under the regulations, when she filed her application.3 AR 63. Plaintiff has at least a high school 19 education and can communicate in English. AR 232-34. Plaintiff worked as a financial 20 representative at a hospital for approximately two weeks in 2017 and as a human resources 21 manager at a nursing home from 2004-2016. AR 234. 23 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 24 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 25 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 26 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews

27 2 The AR is electronically filed at ECF Nos. 11-3 to 11-14 (AR 1 to AR 617). A supplemental certified administrative record (“SAR”) is filed at ECF No. 23-1 (AR 624-644). 28 3 See 20 C.F.R. § 404.1563(e) (“person of advanced age”). 1 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 2 Substantial evidence is “more than a mere scintilla,” but “may be less than a 3 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 4 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 5 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 6 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 7 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 8 Although this court cannot substitute its discretion for that of the Commissioner, the court 9 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 10 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Sec'y of 11 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 12 (9th Cir. 1985) (“The court must consider both evidence that supports and evidence that detracts 13 from the ALJ’s conclusion; it may not affirm simply by isolating a specific quantum of 14 supporting evidence.”). 15 “The ALJ is responsible for determining credibility, resolving conflicts in medical 16 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 17 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001). “Where the evidence is susceptible to more 18 than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 19 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court 20 may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a 21 ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. 22 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It was error for the district court to affirm the 23 ALJ’s credibility decision based on evidence that the ALJ did not discuss”). 24 The court will not reverse the Commissioner’s decision if it is based on harmless error, 25 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 26 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 27 2006) (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)); see 28 also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 2 To qualify for DWB, a claimant must be the unmarried widow of a deceased insured and, 3 if under a disability, must have attained the age of 50. 42 U.S.C.A. 42 U.S.C. § 402(e). The 4 Commissioner uses a five-step sequential evaluation process to determine whether an applicant is 5 disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Barnhart v. 6 Thomas, 540 U.S. 20, 24–25 (2003) (setting forth the “five-step sequential evaluation process to 7 determine disability” under Title II and Title XVI). The following summarizes the sequential 8 evaluation: 9 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 10 20 C.F.R. § 404.1520(a)(4)(i), (b). 11 Step two: Does the claimant have a “severe” impairment? If so, 12 proceed to step three. If not, the claimant is not disabled. 13 Id. §§ 404.1520(a)(4)(ii), (c). 14 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 15 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 16 Id. §§ 404.1520(a)(4)(iii), (d). 17 Step four: Does the claimant’s residual functional capacity make him 18 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 19 Id. §§ 404.1520(a)(4)(iv), (e), (f). 20 Step five: Does the claimant have the residual functional capacity 21 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 22 Id. §§ 404.1520(a)(4)(v), (g). 23 24 The claimant bears the burden of proof in the first four steps of the sequential evaluation 25 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 26 disabled”), 416.912(a) (same); Bowen v. Yuckert, 482 U.S. 137, 146 (1987) n.5. However, “[a]t 27 the fifth step of the sequential analysis, the burden shifts to the Commissioner to demonstrate that 28 the claimant is not disabled and can engage in work that exists in significant numbers in the 1 national economy.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 2 n.5. 3 V. THE ALJ’s DECISION 4 The ALJ made the following findings: 5 1. It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The 6 claimant met the non-disability requirements for disabled widow’s benefits set forth in section 202(3) of the Social Security Act. 7 2. The prescribed period ends on September 30, 2017. 8 3. [Step 1] The claimant has not engaged in substantial gainful 9 activity since April 17, 2017, the alleged onset date (20 CFR 404.1571 et seq.). 10 4. [Step 2] The claimant has the following severe impairments: 11 diabetes mellitus, lumbar/lumbosacral region spondylosis without myelopathy or radiculopathy, obesity, and right hip pain and right 12 shoulder pain due to mild osteoarthritis (20 CFR 404.1520(c)). 13 5. [Step 3] The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 14 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 15 6. [Residual Functional Capacity (“RFC”)] After careful 16 consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work 17 as defined in 20 CFR 404.1567(b) except occasionally climb, balance, stoop, kneel, crouch and crawl; and avoid hazards 18 (machinery, heights). 19 7. [Step 4] The claimant is capable of performing past relevant work as a human resource manager (manager personnel), office manager, 20 and billing clerk. This work does not require the performance of work-related activities precluded by the claimant’s residual 21 functional capacity (20 CFR 404.1565). 22 8. The claimant has not been under a disability, as defined in the Social Security Act, from April 17, 2017, through the date of this 23 decision (20 CFR 404.1520(5)). 24 AR 14-22. 26 Plaintiff alleges that this case should be remanded to the ALJ because (1) the 27 administrative record is incomplete for judicial review; (2) the ALJ erroneously failed to include 28 fibromyalgia, lupus, and sacro-iliac joint dysfunction as severe impairments; (3) the ALJ failed to 1 give clear and convincing reasons for rejecting the opinion of her treating physician; (4) ALJ 2 failed to give clear and convincing reasons for rejecting plaintiff’s subjective testimony; (5) the 3 RFC assessment lacks substantial evidentiary support and is based on legal errors; and (6) the 4 finding that plaintiff can perform past relevant work lacks substantial evidentiary support. ECF 5 No. 14. 6 A. The Record is Complete for Review 7 As a preliminary matter, the court finds that the record before it is complete for review 8 despite the initial omission of new medical records submitted to the Appeals Council. As the 9 plaintiff acknowledges in her response to the Commissioner’s sur-reply (ECF No. 28 at 7-10), the 10 commissioner has filed a supplemental administrative record (SAR). ECF No. 23. The 11 undersigned believes this moots plaintiff’s first challenge. 12 However, even if plaintiff’s challenge were not moot, it could not succeed because the 13 additional documents are not properly part of the record for this court’s review. “The 14 Commissioner’s regulations permit claimants to submit new and material evidence to the Appeals 15 Council and require the Council to consider that evidence in determining whether to review the 16 ALJ’s decision, so long as the evidence relates to the period on or before the ALJ's decision.” 17 Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). “When the 18 Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, 19 that evidence becomes part of the administrative record, which the district court must consider 20 when reviewing the Commissioner’s final decision for substantial evidence.” Id. at 1163. 21 However, if new evidence is submitted to the Appeals counsel and the “evidence did not relate to 22 the period on or before the ALJ’s decision, the Appeals Council [is] not required to consider it.” 23 Warzecha v. Berryhill, 692 F. App'x 859, 860 (9th Cir. 2017) (memorandum decision). 24 In this case, the Appeals Council’s decision indicates that it did not consider any post- 25 hearing evidence. AR 1-3. Plaintiff acknowledges in a footnote that the Appeals Counsel may 26 not have received the additional records before rendering its decision. Additionally, the records 27 themselves demonstrate that they do not relate to the period before the ALJ’s decision. The 28 ALJ’s decision was issued on February 13, 2019 ( AR 23), and the SAR contains medical records 1 spanning March 26-2019 through April 26, 2019 (AR 624-44). Because the Appeals Council did 2 not, and was not required to, consider the documents contained in the SAR, the court will not 3 consider the documents as part of the administrative record before it. 4 B. The ALJ Erred at Step Two, but Error was Harmless 5 Plaintiff argues that the ALJ erred at step two of the sequential evaluation process by 6 failing to find that plaintiff's fibromyalgia, lupus, and sacro-iliac joint dysfunction constitute 7 severe impairments. ECF No. 14 at 14-21. The undersigned agrees that the ALJ erred not 8 simply by failing to find these impairments severe, but by failing to even consider any of these 9 impairments at step two. “The step-two inquiry is a de minimis screening device to dispose of 10 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to 11 identify claimants whose medical impairment is so slight that it is unlikely they would be disabled 12 even if age, education, and experience were taken into account. Bowen, 482 U.S. at 153. 13 At step two of the sequential evaluation, the ALJ determines which of claimant’s alleged 14 impairments are “severe” within the meaning of 20 C.F.R. § 404.1520(c). “An impairment is not 15 severe if it is merely ‘a slight abnormality (or combination of slight abnormalities) that has no 16 more than a minimal effect on the ability to do basic work activities.’” Webb v. Barnhart, 433 17 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 96–3p (1996)). The step- 18 two severity determination is “merely a threshold determination of whether the claimant is able to 19 perform his past work. Thus, a finding that a claimant is severe at step two only raises a prima 20 facie case of a disability.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). In this case 21 the ALJ found that several of plaintiff’s impairments (diabetes mellitus, lumbar/lumbosacral 22 region spondylosis without myelopathy or radiculopathy, obesity, and right hip pain and right 23 shoulder pain due to mild osteoarthritis) were severe. AR 14. The ALJ did not, however, identify 24 any non-severe impairments. Id. The ALJ did not mention lupus or fibromyalgia at step two. 25 The ALJ’s step-two analysis in this case is deficient because the ALJ failed to mention 26 fibromyalgia, lupus, and sacro-iliac joint dysfunction. However, because the ALJ found that 27 plaintiff had at least one severe impairment, plaintiff was not prejudiced by any arguable step two 28 error. See Burch, 400 F.3d at 682 (“Assuming without deciding that [the] omission [of an 1 impairment] constituted legal error, it could only have prejudiced Burch in step three ... or step 2 five ... because the other steps, including this one, were resolved in her favor.”). Here, step two 3 was decided in plaintiff’s favor, and the ALJ did consider all of plaintiff’s alleged impairments in 4 the RFC analysis. AR 18. Because all impairments were considered in the RFC, the 5 determination of disability was not impacted by any omission at step two. There is accordingly 6 no mistake supporting remand. 7 C. The ALJ Permissibly Rejected a Treating Physician Opinion 8 Plaintiff contends the ALJ erred by failing to give controlling weight to the opinion of 9 plaintiff’s treating physician Dr. Jahanguir Mahmoudi, M.D. ECF No. 14 at 21-24. As discussed 10 below, plaintiff applies the incorrect standard to the ALJ’s determination. The court finds no 11 legal error. 12 1. The Medical Evidence 13 The ALJ considered the medical opinions of (1) State agency physicians B. Williams, 14 M.D., and G. Lee, M.D., and (2) treating physician Dr. Jahangir Mahmoudi, M.D. AR 16-17. 15 a. Opinion of Dr. Mahmoudi 16 Plaintiff was treated by neurologist/endocrinologist Dr. Mahmoudi for diabetes care. AR 17 298. Dr. Mahmoudi completed a diabetes mellitus residual functional capacity questionnaire 18 form on December 12, 2018. AR 599-604. The ALJ credited Dr. Mahmoudi’s opinion to the 19 extent that Dr. Mahmoudi limited plaintiff to sedentary work consistent with the SSA regulatory 20 requirements of 20 CPR 404.1567. AR 17. However, the ALJ found Dr. Mahmoudi’s opinion 21 that plaintiff’s “symptoms were severe enough to constantly interfere with attention and 22 concentration needed to perform even simple work tasks; needed to take unscheduled breaks for 23 10 minutes at a time to lie down; legs should be elevated 5 inches with prolonged sitting; rarely 24 twist, stoop (bend), crouch/squat, climb ladder and stairs; had significant limitation of only 1 % 25 during an 8-hour workday for repetitive reaching, handling, and fingering with the bilateral 26 hands, fingers and arms; avoid all exposure to extreme cold/heat, high humidity, wetness, 27 cigarette smoke, perfumes, soldering fluxes, solvents/cleaners, fumes, odors, gases, dust, and 28 chemicals; and she would be off task 25% or more in a typical workday” was “unpersuasive as it 1 was solely based on the claimant’s reported subjective complaints and directly contradicts his 2 three treatment records on 12/06/2017, 12/20/2017, and 10/08/2018 that found the claimant’s 3 diabetes was under good control without any diabetic related complications, AlC level ranged 4 from 7.8% to 8.9%, and her labs were within normal limits.” AR 17, citing AR 496-504 602-04. 5 b. Opinions of Dr. Williams and Dr. Lee 6 Agency physicians Dr. Williams (AR 63-72) and Dr. Lee (AR 85-95) reviewed Plaintiff’s 7 records through 2017. Each found plaintiff could lift and/or carry 20 pounds occasionally and 10 8 pounds frequently, stand, walk, and sit about 6 hours in an 8-hour workday, do unlimited pushing 9 and pulling, climb ramps, stairs, ladders, ropes, and scaffolds occasionally, and balance, stoop, 10 kneel and crouch occasionally. AR 68-69, 91-92. They found plaintiff did not have 11 manipulative, visual, or verbal limitations. AR 69, 92. They found plaintiff’s only environmental 12 restriction was avoidance of concentrated exposure to hazards. AR 70, 93. The ALJ found both 13 these opinions persuasive “as they are substantially consistent with each other in findings that the 14 claimant was limited to less than light and their opinions were based on their own review of the 15 claimant’s overall medical records from her alleged onset date of April 17, 2017.” AR 16-17. 16 2. Principles Governing the ALJ’s Consideration of Medical Opinion Evidence 17 The parties debate the standard that applies to the ALJ’s weighing of medical opinions, an 18 issue that has been impacted by regulatory amendments promulgated by the Social Security 19 Administration (“SSA”) for cases filed after March 27, 2017. The question is whether the 20 amended regulations invalidate the treating physician rule (“TPR”) that has long governed the 21 consideration of treating physician opinions in the Ninth Circuit. 22 The TPR provides that “those physicians with the most significant clinical relationship 23 with the Plaintiff are generally entitled to more weight than those physicians with lesser 24 relationships. As such, the ALJ may only reject a treating or examining physician’s 25 uncontradicted medical opinion based on clear and convincing reasons. Where such an opinion is 26 contradicted, however, it may be rejected for specific and legitimate reasons that are supported by 27 substantial evidence in the record.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 28 1164 (9th Cir. 2008) (internal citations omitted). The 2017 regulations promulgated by the SSA 1 eliminate the deference given to treating physicians in this and other Circuits, providing that the 2 SSA “will not defer or give any specific evidentiary weight, including controlling weight, to any 3 medical opinion(s) . . . including those from your medical sources” for claims filed after March 4 27, 2017. 20 C.F.R. § 416.920c (titled “How we consider and articulate medical opinions and 5 prior administrative findings for claims filed on or after March 27, 2017”) (hereafter “new 6 regulation”). 7 Plaintiff forwards two arguments in support of her contention that the 2017 amendments 8 do not abolish the TPR: (1) the new regulation is not valid and therefore is not entitled to 9 deference, and (2) even if validly adopted, the new regulation does not override prior caselaw 10 establishing the TPR. For the reasons now explained, the court rejects both arguments. 11 a. The New Regulation is Valid and Entitled to Deference 12 Plaintiff first argues that the new regulation is contrary to the Social Security Act 13 (hereafter “The Act”) because it fails the test outlined in Chevron, U.S.A., Inc. v. Nat. Res. Def. 14 Council, Inc., 467 U.S. 837 (1984). In Chevron, the Supreme Court established a two-step 15 analysis to determine the validity of agency regulations. Chevron, U.S.A., Inc., 467 U.S. at 844. 16 The first step looks to the statute and determines whether Congress explicitly states how the 17 statute should be interpreted. If the statute is explicit, then congressional intent is clear and there 18 is nothing further for the courts to interpret. If the statute is not explicit, then Congress left room 19 for the administering agency to interpret the statute; the question then becomes “whether the 20 agency’s answer is based on a permissible construction of the statute.” Id. at 843. A permissible 21 interpretation is one that is not arbitrary, capricious, or manifestly contrary to the statute. Id. 22 When a statute and associated agency regulation meet these qualifications, the court must defer to 23 the agency’s regulation under the doctrine known as “Chevron deference.” See, e.g., Barnhart v. 24 Walton, 535 U.S. 212, 222 (2002) (granting Chevron deference to Social Security Administration 25 interpretation of 12-month duration requirement for disability benefits.) 26 i. The Statute Allows the SSA to Prescribe Standards for the 27 Consideration of Medical Opinion Evidence 28 The Social Security Act does not provide explicit requirements for the weighing of 1 medical opinions, and it does not expressly require treating physicians be given preferential 2 treatment. Because the statutory language does not explicitly state how the Act is to be applied in 3 this context, Congress has left room for the SSA to interpret the statute. Plaintiff asserts that 4 statutory language requiring the SSA to “make every reasonable effort to obtain from the 5 individual’s treating physician medical evidence” is evidence that the statute itself prioritizes 6 treating physicians over other medical professionals. ECF No. 28 at 2. However, even though 7 the statute directs the SSA to obtain medical evidence from treating physicians, it does not direct 8 the SSA to prioritize that evidence. Accordingly, the undersigned finds under the first step of the 9 Chevron analysis that the statute is ambiguous as to the weighing of treating physician opinions, 10 and the SSA’s interpretation must therefore be evaluated for arbitrariness. 11 Bolstering this conclusion is the fact that the Act gives express and considerable deference 12 to the SSA to define its application generally. “The Commissioner of Social Security shall have 13 full power and authority to make rules and regulations and to establish procedures, not 14 inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry 15 out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and 16 provide for the nature and extent of the proofs and evidence and the method of taking and 17 furnishing the same in order to establish the right to benefits hereunder.” 42 U.S.C. § 405(a). 18 The Supreme Court has repeatedly recognized that the Act (specifically 42 U.S.C. § 405(a)) 19 confers “exceptionally board authority” on the SSA to prescribe the standards for establishing 20 disability. Bowen, 482 U.S. at 145 (internal quotations and citations omitted); Heckler v. 21 Campbell, 461 U.S. 458, 466 (1983); Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981). 22 Because the agency is clearly within its power to fill an explicit gap in the statute, the new 23 regulations are a permissible interpretation if they are not arbitrary, capricious, or contrary to the 24 statute. 25 ii. The New Regulation is Not Arbitrary or Capricious 26 An agency regulation is “arbitrary and capricious if the agency has relied on factors 27 which Congress has not intended it to consider, entirely failed to consider an important aspect of 28 the problem, offered an explanation for its decision that runs counter to the evidence before the 1 agency, or is so implausible that it could not be ascribed to a difference in view or the product of 2 agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 3 463 U.S. 29, 43 (1983). An agency’s determination will be upheld if it is “supportable on any 4 rational basis,” particularly “when an agency is acting within its own sphere of expertise.” 5 McFarland v. Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008) (quoting Voyageurs Nat. Park 6 Ass'n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004). 7 The SSA was plainly acting within its sphere of expertise by promulgating regulations 8 regarding the weighing of evidence in disability determinations, and there is no evidence in the 9 record of arbitrary agency action. Indeed, plaintiff’s allegation of arbitrariness is wholly 10 rhetorical. No evidence has been presented that the agency acted for an improper purpose or on 11 an impermissible basis, that it relied on factors which Congress has not intended it to consider, 12 that it entirely failed to consider an important aspect of the problem, offered an explanation for its 13 decision that runs counter to the evidence before the agency, or that its stated rationale is so 14 implausible as to be inherently suspect. Accordingly, the new regulation cannot be considered 15 arbitrary or capricious. 16 iii. The New Regulation is Not Contrary to the Statute 17 The new regulation denies deference to any specific category of medical opinion, and 18 provides new articulation requirements for the evaluation of medical evidence. Neither of these 19 components of the new regulation is manifestly contrary to the statute. First, the new regulation 20 explicitly states that the SSA “will not defer or give any specific evidentiary weight, including 21 controlling weight, to any medical opinion(s)” when evaluating claims filed after March 27, 2017. 22 20 C.F.R. § 416.920c(a). Rather than placing significance on the source proffering the opinion, 23 the “most important factors” the ALJ will consider in weighing a medical opinion are its 24 “supportability” and “consistency.” Id. 25 The Act itself contains one provision relevant to the ALJ’s evaluation of medical 26 evidence: 42 U.S.C. § 423(d)(5)(B). Section 423(d)(5)(B) states that the Commissioner “shall 27 make every reasonable effort to obtain from the individual’s treating physician (or other treating 28 health care provider) all medical evidence, including diagnostic tests, necessary in order to 1 properly make such determination, prior to evaluating medical evidence obtained from any other 2 source on a consultative basis.” Plaintiff argues that this language demonstrates that Congress 3 recognized the “special nature” of the treating relationship. ECF No. 19 at 15. The court takes a 4 somewhat different view. Yes, Congress recognized the significance of treatment records to the 5 disability determination, and the statutory language is consistent with due respect for the role of 6 treating professionals. But § 423(d)(5)(B) does not require deference to a treating source. 7 Rather, the Act requires that the Commissioner try to obtain and evaluate evidence from a treating 8 source prior to evaluating other sources. The new regulation does not eliminate this requirement, 9 nor does it preclude the Commissioner from giving decisive weight to a treating source in a 10 particular case. 20 C.F.R. § 416.920c. It eliminates only a categorical presumption that a treating 11 source is entitled to more weight—a presumption which is not required anywhere in the Act 12 itself. Id. Accordingly, the new regulation is not contrary to 42 U.S.C. § 423(d)(5)(B). Under 13 the new regulation, all medical evidence starts on equal footing and must be evaluated in its case- 14 specific context and on its case-specific merits. This approach is entirely consistent with the Act. 15 Plaintiff also argues that the new regulation’s “articulation requirements” are contrary to 16 the Act. The court disagrees. The Act requires any decision denying disability to contain “a 17 statement of the case, in understandable language, setting forth a discussion of the evidence, and 18 stating the Commissioner’s determination and the reason or reasons upon which it is based.” 42 19 U.S.C. § 405(b)(1). The new regulation builds on this articulation requirement in three ways. 20 First, it provides for “source-level articulation:” the ALJ may consider multiple medical opinions 21 from a single medical source together in one analysis. 20 C.F.R. § 416.920c(b)(1). Second, it 22 requires “most important factors” articulation, in which the ALJ must explain how the agency 23 considered the supportability and consistency of a medical opinion. Finally, if there are equally 24 persuasive medical opinions, it requires the agency to articulate how it considered those opinions 25 and reached its ultimate decision. 20 C.F.R. § 416.920c(b). The new regulation also identifies 26 specific factors to be considered when evaluating medical opinions—such as the relationship of 27 the source with the claimant and the length of the relationship—but does not require explicit 28 articulation of those considerations. 20 C.F.R. § 416.920c(c); 20 C.F.R. § 416.927(c). 1 Though the new regulation eliminates the need to articulate specific reasons for 2 discounting a treating source, it provides for different, additional articulation requirements, like 3 explicit consideration of the consistency of the medical opinion with the rest of the medical 4 evidence. 20 C.F.R. § 416.920c(b). The new regulation does not allow the ALJ to forego 5 articulation of their “reason or reasons” altogether; rather, it provides specific articulation 6 requirements. It is therefore not contrary to the Act. 7 For all the reasons explained above, the court finds that the new regulation is valid, and 8 that Chevron deference applies.4 9 b. The New Regulation Displaces Contrary Pre-Existing Caselaw 10 Having found that the new regulation is entitled to Chevron deference, the court turns to 11 the question whether the treating physician rule established by prior Circuit caselaw survives the 12 regulation or is overridden by it. It is a corollary of the Chevron doctrine that, because agencies 13 and not judges are experts in the field, a prior judicial construction of a statute will supersede an 14 agency’s interpretation only in very narrow circumstances. Chevron, U.S.A., Inc., 467 U.S. at 15 865. The Supreme Court has held that “prior judicial construction of a statute trumps an agency 16 construction otherwise entitled to Chevron deference only if the prior court decision holds that its 17 construction follows from the unambiguous terms of the statute and thus leaves no room for 18 agency discretion.” Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 19 U.S. 967, 982 (2005). 20 The Ninth Circuit’s prior construction of the Social Security Act, recognizing the TPR, 21 was not derived from the unambiguous terms of the statute. As noted above, there is no such 22 unambiguous statutory language. The TPR evolved with the Court’s interpretation of the 23 statutory provision that courts can only overturn a decision if it is unsupported by substantial 24 evidence. See 41 U.S.C. § 405(g). In 1975, the Ninth Circuit held that agency adjudicators had 25

26 4 Plaintiff also argues at some length that the policy rationale for the 2017 regulations is not compelling. ECF No. 19 at 17-22. The wisdom of the regulations is not subject to judicial 27 review. This court is limited to the question whether the agency was permissibly exercising its regulatory authority, and may not overturn validly-enacted regulations on grounds they are 28 wrong-minded. 1 to articulate “clear and convincing reasons” for rejecting the “uncontradicted” opinion of a 2 treating doctor, implying a deference to treating sources. Day v. Weinberger, 522 F.2d 1154, 3 1156 (9th Cir. 1975). Neither Day nor other early TPR cases cited statutory language mandating 4 such deference. Rather, like other federal Courts of Appeals, the Ninth Circuit concluded that a 5 decision which ignores evidence provided by a treating physician cannot be supported by 6 substantial evidence. See Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983). 7 After several other circuits adopted their own versions of the TPR as a rule for weighing 8 medical evidence, the Ninth Circuit followed suit. In 1983, our Circuit agreed with the Fifth, 9 Sixth and Second Circuits’ practice of giving greater weight to the opinions of treating physicians 10 because of their “greater opportunity to observe and know that patient as an individual.” Murray 11 v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). As the Supreme Court succinctly explained, “[t]he 12 treating physician rule . . . was originally developed by Courts of Appeals as a means to control 13 disability determinations by administrative law judges under the Social Security Act.” Black & 14 Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003). 15 “In 1991, the Commissioner of Social Security adopted regulations approving and 16 formalizing use of the rule in the Social Security disability program.” Id. In promulgating the 17 SSA rules of 1991, the agency noted that “[n]one of the circuit courts of appeals has held that its 18 treating physician rule is required by the Act or Constitution.” Final Rules, Standards for 19 Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 (1991). The 2017 20 regulations at issue here changed the Agency’s approach. The Agency is free to make such 21 changes, despite extant caselaw, where the judicial interpretations were not themselves compelled 22 by the statutory language. See Brand X, supra, 545 U.S. at 982. 23 The Ninth Circuit has recognized that the Social Security Administration may, by 24 regulation, override the court’s own prior interpretations of the Act. In Lambert v. Saul, 980 F.3d 25 1266 (9th Cir. 2020), the Court of Appeals addressed the conflict between its precedent 26 establishing a presumption of continuing disability after a prior disability determination, and the 27 SSA’s interpretation of the 1983 Reform Act which found that no such presumption was available 28 under the statute. Id. at 1268. In deferring to the agency’s interpretation despite its own contrary 1 precedent, the Lambert court noted that there are limited circumstances in which a court’s own 2 precedent is not controlling, and the court is in fact required to depart from it. Id. “Those 3 circumstances include the intervening higher authority of an administrative agency’s authoritative 4 and reasonable interpretation of a statute.” Id. Finding first that the SSA’s interpretation was 5 entitled to deference under Chevron, the Court of Appeals further concluded that “the SSA’s 6 authoritative interpretation of the Social Security Act displaces our prior precedents on the issue 7 of a presumption of continuing disability.” Id. at 1275. This conclusion was compelled by Brand 8 X, because the Ninth Circuit precedents adopting the presumption had been based on the 9 persuasive authority of other Circuit Courts of Appeals and not on any mandatory language of the 10 statute that foreclosed agency interpretation. Id. The TPR was likewise adopted by the Ninth 11 Circuit based on the persuasive authority of other Circuit Courts of Appeals and not on any 12 mandatory language of the statute that foreclosed agency interpretation. Accordingly, the 13 undersigned concludes that the new regulations regarding the evaluation of medical opinion 14 evidence displace the Ninth Circuit’s prior precedents implementing the TPR. 15 Few courts have yet addressed the question whether the 2017 regulations displace the TPR, but 16 Brand X and Lambert provide a clear path. “Only a judicial precedent holding that the statute 17 unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the 18 agency to fill, displaces a conflicting agency construction.” Brand X, 545 U.S. at 982-983. None 19 of the Ninth Circuit’s TPR cases constitute such a precedent. Accordingly, the agency was free to 20 displace the judicially created rule by regulation. See Lambert, 980 F.3d at 1268, 1275. In sum, 21 because (1) the 2017 regulations are not arbitrary and capricious or manifestly contrary to statute, 22 (2) the prior judicial construction was not mandated by the governing statutory language to the 23 exclusion of a differing agency interpretation, and (3) the TPR is inconsistent with the new 24 regulation, the court concludes that the 2017 regulations effectively displace or override 25 3. The ALJ Permissibly Rejected the Treating Physician Opinion 26 Having established that the 2017 regulations control, the court turns to the ALJ’s 27 evaluation of Dr. Mahmoudi’s opinion. The ALJ found that Dr. Mahmoudi’s opinion was not 28 consistent with the record, and was not well explained or supported. AR 17. The ALJ thus 1 addressed the two key factors identified in the 2017 regulations. 20 C.F.R. § 404.1520c(b)(2) 2 (“Therefore, we will explain how we considered the supportability and consistency factors for a 3 medical source’s medical opinions or prior administrative medical findings in your determination 4 or decision.”). 5 The ALJ accurately found that Dr. Mahmoudi’s opinion was based on plaintiff’s 6 subjective complaints and was inconsistent with his own treatment notes showing controlled 7 diabetes and normal laboratory findings (AR 17, citing AR 498 (10/8/18: noting diabetes under 8 good control and normal laboratory findings), 500 (12/20/17: noting normal laboratory findings), 9 503 (12/6/17: noting normal laboratory findings)). The ALJ discussed Dr. Mahmoudi’s treatment 10 records in some detail, demonstrating the contrast between the opinion and the doctor’s own 11 records. AR 20. Inconsistency between a physician’s opinion and his or her own treatment notes 12 has long been recognized as an acceptable reason to discount such opinion. Valentine v. Comm'r 13 Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009) (holding that contradiction between a 14 treating physician’s opinion and his treatment notes constitutes a specific and legitimate reason 15 for rejecting the treating physician’s opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 16 2005) (holding that contradiction between treating physician's assessment and clinical notes 17 justifies rejection of assessment). Because Dr. Mahmoudi’s opinion was not consistent with his 18 treatment notes, the ALJ reasonably found it not persuasive. See 20 C.F.R. § 404.1520c(c)(2). 19 The ALJ also permissibly discounted Dr. Mahmoudi’s opinion based on the observation 20 that it was overly reliant on plaintiff’s subjective complaints. “If a treating provider’s opinions 21 are based to a large extent on an applicant’s self-reports and not on clinical evidence, and the ALJ 22 finds the applicant not credible, the ALJ may discount the treating provider’s opinion. However, 23 when an opinion is not more heavily based on a patient’s self-reports than on clinical 24 observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 25 1154, 1162 (9th Cir. 2014) (internal citation omitted). As discussed above, the ALJ properly 26 found that Dr. Mahmoudi’s records do not support the limitations he assigned in the diabetes 27 questionnaire. Dr. Mahmoudi treated plaintiff specifically for diabetes, so to the extent that he 28 opined on limitations resulting from conditions other than diabetes, he apparently relied on 1 plaintiff’s subjective reports. AR 502 (noting endocrine consultation with Dr. Mahmoudi and 2 referral to him to treat diabetes). 3 Dr. Mahmoudi’s overreliance on plaintiff’s subjective reporting is clear because his own 4 examinations were normal and did not warrant the degree of limitations assigned. Turner v. 5 Comm'r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (noting, under the former regulations 6 and case law, that an ALJ properly concluded that a treating source relied on subjective 7 complaints when no objective evidence supported his opinion). Dr. Mahmoudi found intact 8 neurological functioning, with normal coordination and gait (AR 503), and otherwise reviewed 9 only normal laboratory findings (AR 500, 503). As to lupus or fibromyalgia, his examinations 10 and laboratory findings showed nothing to support any symptoms or limitations, so he had to rely 11 instead on plaintiff’s reports. To the extent that Dr. Mahmoudi noted abnormal x-ray of the spine 12 (AR 601), the x-rays were benign, showing mild retrolisthesis (AR 346) and mild degenerative 13 disease (AR 461), which Dr. Lee concluded supported a light RFC (AR 89 (citing x-rays as a 14 basis for light RFC opinion)). The overreliance on plaintiff’s subjective complaints was an 15 appropriate rationale for the ALJ to discount Dr. Mahmoudi. 16 D. The ALJ Properly Addressed Plaintiff’s Subjective Testimony 17 Plaintiff alleges the ALJ improperly discredited her subjective pain testimony by (1) 18 failing to use clear and convincing evidence to discredit plaintiff; (2) effectively requiring 19 objective evidence for fibromyalgia, “a disease that eludes such measurement,” (Benecke v. 20 Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)); and (3) failing to identify exactly what testimony 21 was not credible and what specific evidence undermined that testimony. ECF No. 14 at 24-25. 22 Upon review of the record, the court agrees with defendant that the ALJ properly addressed 23 plaintiff’s subjective testimony. 24 “To determine whether a claimant’s testimony regarding subjective pain or symptoms is 25 credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 26 1035–36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented 27 objective medical evidence of an underlying impairment ‘which could reasonably be expected to 28 produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 1 341, 344 (9th Cir. 1991)). “Second, if the claimant meets this first test, and there is no evidence 2 of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms 3 only by offering specific, clear and convincing reasons for doing so.” Id. (citations omitted) 4 (quotation marks omitted). Further, “[t]he ALJ may not reject subjective symptom testimony . . . 5 simply because there is no showing that the impairment can reasonably produce the degree of 6 symptom alleged.” Lingenfelter, 504 F.3d at 1035–36 (quoting Smolen, 80 F.3d at 1282); cf. 7 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Once the claimant produces medical 8 evidence of an underlying impairment, the Commissioner may not discredit the claimant’s 9 testimony as to the severity of symptoms merely because they are unsupported by objective 10 medical evidence.” (citing Bunnell, 947 F.2d at 343)). A claimant is not required to “produce 11 ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.’” Garrison v. 12 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). 13 Plaintiff testified that she has difficulty typing because of swollen hands and difficulty 14 moving her fingers (AR 46), has swelling in her hands and feet (AR 45-48), has trouble walking 15 because her feet are painful, tingling, and burning (AR 47) and is very fatigued (AR 49). The 16 ALJ found plaintiff’s medically determinable impairments could reasonably be expected to cause 17 the alleged symptoms, but that her allegations regarding the persistence, intensity, and limiting 18 effects were inconsistent with (1) the objective medical evidence, showing at most mild 19 abnormalities in imaging studies and normal physical examinations; (2) her lack of treatment for 20 allegedly disabling autoimmune conditions; and (3) her significant improvement from treatment 21 for diabetes and pain. AR 16-21. 22 First, the court agrees with defendant that the ALJ’s decision to discredit plaintiff on the 23 basis on contradictory medical evidence is appropriate, so long as it is not the only basis on which 24 plaintiff is discredited. Ninth Circuit case law has consistently affirmed ALJs’ reliance on 25 objective evidence as one factor for rejecting symptom allegations. Burch, 400 F.3d at 681 26 (affirming the ALJ’s rejection of symptom allegations for being inconsistent with objective 27 imaging). Here, the ALJ noted that plaintiff’s claims of disabling pain (AR 45, 55, 233) were 28 inconsistent with x-rays showing only mild abnormalities in her sacroiliac joints (AR 16, citing 1 AR 428-29); x-rays showing at most mild degenerative disease in her lumbar spine and no 2 abnormalities in her hip and pelvis (AR 16, citing AR 441); and x-rays showing no abnormalities 3 in her hands (AR 16, citing AR 573-74). These benign imaging studies undermine plaintiff’s 4 alleged disabling low back pain. See Burch, 400 F.3d at 681. This contradictory medical 5 evidence combined with the ALJ’s finding that plaintiff’s ailments were effectively alleviated by 6 treatment, as discussed below, constitutes a clear and convincing reason for discrediting 7 plaintiff’s subjective testimony. 8 Second, the court rejects plaintiff’s argument that discounting her fibromyalgia claim for 9 lack of objective evidence is improper under Benecke v. Barnhart, which indicates it is error to 10 require objective evidence for a “disease that eludes such measurement.” Benecke, 379 F.3d at 11 594. ECF No. 14 at 25. Plaintiff’s interpretation of Beneke takes its reasoning too far — 12 following plaintiff’s logic, raising fibromyalgia would always preclude a finding of non- 13 disability. In this case, the ALJ pointed to the fact that fibromyalgia is almost entirely absent 14 from the record. AR 18. The ALJ noted that the entirety of the evidence related to fibromyalgia 15 consists of one physical examination showing 12 of 16 trigger points on 05/04/2017 with no 16 other fibromyalgia related workups, examinations or follow-up treatments in the records since 17 that date. AR 18, 316-18 (examination date), 396 (plaintiff reports history of fibromyalgia and 18 lupus, but neither diagnoses listed on active problem list), 477-88 (rheumatologist visit report 19 noting plaintiff “does not have any features [consistent with] lupus” and advises “stretching 20 exercises and warm water aerobics” for fibromyalgia pain, along with follow-up with a pain 21 specialist (AR 485)). Plaintiff is correct that evaluating claims of pain related to fibromyalgia 22 requires special care; “evaluating whether a claimant’s residual functional capacity renders them 23 disabled because of fibromyalgia, the medical evidence must be construed in light of 24 fibromyalgia's unique symptoms and diagnostic methods.” Revels v. Berryhill, 874 F.3d 648, 25 662 (9th Cir. 2017). However, noting that the record contains minimal references to and 26 treatments for the conditions is not the same thing as requiring objective evidence such as x-rays 27 or definitive test results. “The ALJ is permitted to consider lack of treatment in his credibility 28 determination credibility determination” Burch, 400 F.3d at 681. 1 Third, the ALJ provided clear and convincing evidence for rejecting plaintiff’s testimony 2 by pointing to the documented efficacy of treatment. The ALJ noted that treatment records 3 confirmed that plaintiff’s diabetes improved with treatment (AR 20, citing AR 502, 504; see also 4 AR 498 (diabetes under good control October 2018)). The ALJ noted plaintiff had significant 5 relief for her pain from nerve blocks in December 2018 and January 2019 (AR 20, citing AR 607 6 (nerve block performed December 2018, noted greater than 80% improvement and improved 7 range of motion in all axes), AR 616 (January 2019 nerve block, noted greater than 80% relief 8 from last one and improved range of motion in all axes)). Because Plaintiff’s allegedly disabling 9 impairments were amenable to treatment, the ALJ reasonably rejected plaintiff’s claims that they 10 disabled her. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 11 (“[i]mpairments that can be controlled effectively with medication are not disabling for the 12 purpose of determining eligibility for SSI benefits”). 13 Finally, the court rejects plaintiff’s argument that the ALJ did not specify what portions of 14 plaintiff’s testimony were undermined and therefore rejected. This assertion is clearly 15 contradicted by the opinion itself. For example, the ALJ references plaintiff’s claim that swelling 16 in her hands prevents her from using a keyboard/keypunch before noting that bilateral hand 17 imagery showed no abnormalities to support her complaints. AR 19. It is simply untrue that the 18 ALJ lacked specificity in explaining how subjective pain complaints were undermined. The ALJ 19 did not err in discrediting plaintiff’s subjective testimony. 20 E. The RFC Assessment and Finding Regarding Performance of Past Relevant Work Are 21 Adequately Supported 22 Plaintiff’s final two arguments, that the ALJ’s opinion regarding plaintiff’s ability to 23 perform past relevant work lacks substantial evidence, and that the RFC is not based on 24 substantial evidence, are underdeveloped and dependent on her prior arguments. ECF No. 14 at 25 26-29. Because the court has already determined that the ALJ properly addressed the medical 26 opinion testimony and plaintiff’s subjective testimony, and plaintiff’s final two arguments are 27 repetitive of those points, plaintiff fails to demonstrate error here as well. 28 With respect to the RFC, plaintiff again contends that the ALJ was required to accept the 1 | limitations of Dr. Mahmoudi, and that plaintiffs fibromyalgia, lupus, and SI joint dysfunction 2 || were not properly included in the RFC. ECF No. 14 at 27. Plaintiff also argues that the ALJ 3 || improperly gave too much weight to non-examining medical opinions. Id. at 28. Each of these 4 | arguments is addressed and rejected above. With respect to the ALJ’s finding on plaintiff’ s 5 | ability to perform past relevant work, plaintiff argues that the conclusion is erroneous because the 6 | hypotheticals posed to the vocational expert were based on an erroneous RFC. Id. at 29. Because 7 | the court finds no error with respect to the RFC, this argument necessarily fails. 9 For the reasons set forth above, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s motion for summary judgment (ECF No. 14), is DENIED; 11 2. The Commissioner’s cross-motion for summary judgment (ECF No. 18), is 12 | GRANTED; and 13 3. The Clerk of the Court shall enter judgment for defendant and close this case. 14 | DATED: February 16, 2021 ~ 19 Hhthren— Char ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 22