(SS) Martinez v. Commissioner of Social Security

Opinion

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 MARCOS MARTINEZ, Case No. 1:19-cv-00074-SKO 11 Plaintiff,

12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT ANDREW SAUL, 14 Commissioner of Social Security,1 15 Defendant. (Doc. 1)

17 _____________________________________/ 18

19 20 I. INTRODUCTION 21 On January 16, 2019, Plaintiff Marcos Martinez (“Plaintiff”) filed a complaint under 42 22 U.S.C. § 1383(c) seeking judicial review of a final decision of the Commissioner of Social 23 Security (the “Commissioner” or “Defendant”) denying his application for Supplemental Security 24 Income (SSI) under the Social Security Act (the “Act”). (Doc. 1.) The matter is currently before 25 the Court on the parties’ briefs, which were submitted, without oral argument, to the Honorable 26 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/agency/commissioner.html (last visited by the court on September 12, 2019). He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 28 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper 1 Sheila K. Oberto, United States Magistrate Judge.2 2 II. BACKGROUND 3 On March 12, 2015, Plaintiff protectively applied for SSI, alleging disability beginning 4 December 23, 2014, due to congestive heart failure and heart problems. (Administrative Record 5 (“AR”) 26, 78, 82, 91, 105, 180, 186, 195, 198, 202, 219, 230.) Plaintiff was born on October 23, 6 1964 and was 50 years old on the alleged disability onset date. (AR 33, 78, 90, 91, 102, 198, 219, 7 230.) Plaintiff has a tenth-grade education and can communicate in English. (AR 33, 47, 201, 8 203.) 9 A. Relevant Medical Evidence3 10 1. Community Medical Center 11 On December 25, 2014, Plaintiff presented at the emergency department complaining of 12 shortness of breath. (AR 514–24.) An echocardiogram was normal. (516.) On physical 13 examination, Plaintiff was noted to be obese. (AR 521, 522.) He was positive for tachycardia, but 14 with a regular rhythm, normal S1 and S2, with no murmur, gallop, or friction rub. (AR 521.) 15 “Displaced PMI” was noted. (AR 521.) Plaintiff had a normal respiratory rate and effort, with 16 breath sounds clear to auscultation, except that mild rales in bibasal lungs were noted. (AR 521.) 17 His range of motion was normal, with no venous stasis, deformity, effusion, but pitting bipedal 18 dependent edema was noted. (AR 521.) A chest x-ray revealed cardiomegaly and bronchitis. (AR 19 522.) He was diagnosed with congestive heart failure, rule out cardiomyopathy, and was admitted 20 to the hospital. (AR 523.) Plaintiff left the hospital against medical advice on December 26, 2014. 21 (AR 524.) 22 On February 9, 2015, Plaintiff presented to the emergency department complaining of 23 difficulty breathing, having run out of his congestive heart failure medication two weeks prior. 24 (AR 466–79.) Plaintiff reported having last used methamphetamine in November/December 2014, 25 but his urine tested positive for the drug. (AR 475.) Plaintiff’s physical examination showed 26 normal breath sounds and no respiratory distress. (AR 467.) He had a regular cardiovascular 27 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 rhythm but with tachycardia. (AR 467.) After being admitted for three days, his symptoms 2 improved, and he was discharged in stable condition. (474, 476.) 3 Plaintiff again returned to the emergency department on March 27, 2015, complaining of 4 shortness of breath and chest pain. (AR 524–36.) On physical exam at the time of admission, his 5 heart rate and rhythm were normal, with no murmur, gallop, or friction rub. (AR 530.) Wheezing 6 on both sides of his lungs was noted, and they appeared to be poor in air exchange. (AR 530.) 7 Plaintiff’s range of motion in his extremities was normal, with no venous stasis, deformity, 8 effusion, local swelling, or positive edema. (AR 530.) Plaintiff spent two days in the hospital, 9 after which his complaints were deemed “completely resolved.” (AR 533.) A physical 10 examination prior to discharge was normal, with normal respiratory rate and clear breath sounds to 11 auscultation. (AR 534.) Plaintiff was referred to the heart failure and the chronic obstructive 12 pulmonary disease (COPD) clinic. (AR 536.) 13 On April 2, 2015, Plaintiff presented to the heart failure and COPD clinic to establish care. 14 (AR 537.) He was seen by Shradha Rathi, M.D. (AR 536–42.) Plaintiff reported that he continues 15 to have shortness of breath, dyspnea on exertion when walking a few feet, and paroxysmal 16 nocturnal dyspnea. (AR 537, 601.) Dr. Rathi noted Plaintiff’s history of noncompliance with 17 treatment, specifically that he had had “[r]ecurrent hospital admissions for COPD and congestive 18 heart failure.” (AR 537, 601.) He was prescribed medication for his symptoms. (AR 541–42.) 19 That same day (April 2, 2015), Dr. Rathi completed a “Residual Functional Capacity 20 [RFC]4 Questionnaire.” (AR 508–10.) She opined Plaintiff is able to lift and carry 10 pounds 21 occasionally and less than 10 pounds frequently; stand and walk one hour in an eight-hour workday; 22 and sit three hours total in an eight-hour workday. (AR 508.) Dr. Rathi further opined Plaintiff is 23 unable to walk a city block without rest or significant pain and he will need to take unscheduled 24

25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 breaks during an eight-hour workday. (AR 508.) According to Dr. Rathi, Plaintiff would likely be 2 absent from work once or twice a month. (AR 509.) Dr. Rathi also opined Plaintiff is not physically 3 capable of working an eight-hour day, five days a week on a sustained basis. (AR 509.) 4 Plaintiff returned to Dr. Rathi on April 16, 2015, for a follow up appointment. (AR 542– 5 48.) His history of noncompliance with treatment was again noted. (AR 543, 607.) Plaintiff’s 6 physical examination was normal and Dr. Rathi noted that his symptoms had “markedly improved.” 7 (AR 547.) Plaintiff denied shortness of breath, dyspnea on exertion, and paroxysmal nocturnal 8 dyspnea. (AR 547.) 9 2. St Agnes Medical Center 10 On January 1, 2015, Plaintiff was admitted with symptoms of having difficulty breathing 11 at rest and on exertion. (AR 279–465.) Evaluation revealed congestive heart failure. (AR 279.) 12 On physical examination, Plaintiff had edema, but regular heart rate and respiration. (AR 324.) 13 His range of motion was normal with no tenderness. (AR 324.) He was discharged on January 4 14 in stable condition with improvement in symptoms and an ability to ambulate. (AR 279.) 15 Plaintiff was brought by ambulance to the emergency department with nausea and vomiting 16 on May 29, 2017. (AR 770–835.) He also complained of shortness of breath and abdominal pain. 17 (AR 776, 812.) Tachycardia was noted. (AR 777.) Plaintiff denied substance abuse (AR 814, 18 817), yet his urine test was positive for amphetamine (AR 778). 19 3. Than Aw, M.D. 20 On April 30, 2015, Plaintiff presented to Than Aw, M.D., for treatment of congestive heart 21 failure, cough, and asthma. (AR 574–78, 596–600.) Dr. Aw noted Plaintiff’s congestive heart 22 failure was improving and was managed with ACE inhibitor therapy. (AR 574, 596.) Plaintiff was 23 noted as having “[q]uit drugs and smoking and getting better.” (AR 574, 596.) His cough had also 24 improved. (AR 574, 596.) Dr. Aw’s physical examination of Plaintiff was normal, including 25 normal respiratory and cardiovascular results, but right shoulder pain was noted. (AR 577, 599.) 26 On November 9, 2015, Plaintiff saw Dr. Aw for a cardiology and congestive heart failure 27 follow-up appointment. (AR 677–82.) He was assessed with unspecified heart failure, which was 28 stable, and obesity. (AR 681.) He was noted to have started working as a result of being denied 1 disability. (AR 677.) 2 Plaintiff again presented to Dr. Aw for medication refills and weight gain on February 8, 3 2016. (AR 670–76.) He was assessed with unspecified heart failure, which was stable, and obesity. 4 (AR 675.) Plaintiff was noted to be tolerating medication. (AR 675.) 5 Plaintiff saw Dr. Aw on April 25, 2016, for hypertension and medication refills. (AR 663– 6 69.) His physical examination was normal, but morbid obesity was noted. (AR 665.) 7 On May 3, 2017, Plaintiff presented to Dr. Aw complaining of shortness of breath. (AR 8 746–51.) His physical examination was normal. (AR 750.) Plaintiff was prescribed a nebulizer 9 to treat his shortness of breath. (AR 750.) A cardiologist had recommended inserting a defibrillator 10 to treat Plaintiff’s congestive heart failure, to which Plaintiff was “resistant.” (AR 751.) 11 4. State Agency Physicians 12 On May 4, 2015, C. De la Rosa, M.D., a Disability Determinations Service medical 13 consultant, assessed Plaintiff’s RFC and found that Plaintiff could (1) occasionally lift and/or carry 14 50 pounds and frequently 25 pounds; (2) stand and/or walk for about six hours in an eight-hour 15 workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited 16 pushing/pulling with the upper and lower extremities, subject to the lift and carry restrictions. (AR 17 86.) Plaintiff could occasionally climb ladders, ropes, and scaffolds, with no other postural 18 limitations. (AR 86.) Plaintiff was also to avoid concentrated exposure to fumes, odors, dusts, 19 gases, and poor ventilation. (AR 87.) 20 Upon reconsideration on August 18, 2015, another Disability Determinations Service 21 medical consultant, Richard Betcher, M.D., disagreed with Dr. De La Rosa’s RFC findings, and 22 opined instead that Plaintiff could (1) occasionally lift and/or carry 20 pounds and frequently 10 23 pounds; (2) stand and/or walk for about six hours in an eight-hour workday; (3) sit for about six 24 hours in an eight-hour workday; and (4) perform unlimited pushing/pulling with the upper and 25 lower extremities, subject to the lift and carry restrictions. (AR 98.) Plaintiff could frequently 26 climb stairs and occasionally climb ladders, ropes, and scaffolds, with no other postural limitations. 27 (AR 98.) Plaintiff was also to avoid concentrated exposure to fumes, odors, dusts, gases, and poor 28 ventilation. (AR 99.) 1 5. Sam Borno, M.D. 2 On December 22, 2016, Plaintiff presented for a cardiac consultation with Dr. Borno. (AR 3 629–34.) Plaintiff complained of heart failure. (AR 629.) His physical examination was normal, 4 including a normal gait. (AR 630.) Dr. Borno also noted that Plaintiff was able to exercise. (AR 5 630.) 6 Plaintiff underwent a carotid ultrasound, which was normal, with “[n]o atheromatous 7 plaques visualized.” (AR 633.) An echocardiogram showed “[m]arked global hypokinesia with 8 an ejection fraction of 20%,” “[m]ild left ventricular dilatation,” a “mildly enlarged” left atrium, 9 and “diastolic dysfunction.” (AR 634.) 10 B. Administrative Proceedings 11 The Commissioner denied Plaintiff’s application for benefits initially on May 29, 2015, 12 and again on reconsideration on August 19, 2015. (AR 105–109, 113–118.) Consequently, 13 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 119–21.) The 14 ALJ conducted a hearing on June 14, 2017. (AR 39–77.). Plaintiff appeared at the hearing with 15 his counsel and testified. (AR 46–73.) A vocational expert also testified. (AR 73–76.) 16 1. Plaintiff’s Testimony 17 Plaintiff testified that he has trouble breathing, which causes him not to be able to work. 18 (AR 56.) His breathing issues are worse at night and when it is hot outside. (AR 60.) Plaintiff 19 stated that there are certain positions where “it really gets to me really bad.” (AR 60.) He uses an 20 inhaler and a nebulizer to treat his COPD. (AR 58.) With respect to his heart issue, Plaintiff 21 testified that he couldn’t recall whether he used methamphetamine in December 2016, when his 22 injection fraction went from 50 percent to 20 percent, but stated that he “might have, but I’m not 23 too positive.” (AR 57.) 24 Plaintiff testified that he cannot walk very far and can only lift “a couple gallons of milk, 25 and not very far.” (AR 54–55, 69.) He can stand only about a half hour before having to sit down 26 because his back and knees get “stiff” and “tired.” (AR 66–67.) According to Plaintiff, after a 27 short walk he must take a break to catch his breath. (AR 67.) He has trouble sleeping lying down 28 and takes three to four naps for about an hour long each. (AR 68–69.) 1 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a “heater 2 tender,” Dictionary of Operational Titles (DOT) code 553.665-038, which was heavy exertional 3 work as performed (customarily performed as medium), with a specific vocational preparation 4 (SVP)5 of 2. (AR 74.) The ALJ asked the VE to consider a person of Plaintiff’s age, education, 5 and with his work experience. (AR 74.) The VE was also to assume this person was capable of a 6 range of light exertional work, with the following limitations: lifting and carrying 20 pounds 7 occasionally and 10 pounds frequently; sitting, standing and/or walking for six to eight hours in an 8 eight-hour workday; frequent climbing of ramps and stairs; occasional climbing of ladders, ropes 9 and scaffolds; and no exposure to pulmonary irritants of fumes, dusts, gases, odors, other chemical 10 fumes, and extreme heat. (AR 74.) The VE testified that such a person could not perform Plaintiff’s 11 past relevant work, but could perform other, light jobs in the national economy for which a person 12 could alternate positions, such as cashier, DOT code 211.462-010 with an SVP of 2; an information 13 clerk, DOT code 237.367-018 with an SVP of 2; and an office helper, DOT code 239.567-010 with 14 an SVP of 2. (AR 74–75.) 15 The ALJ asked the VE, in a second hypothetical, whether an individual in the first 16 hypothetical who would also need to take additional unscheduled breaks of two to three per day of 17 about 20 minutes each could perform Plaintiff’s past work or any work in the national economy. 18 (AR 75.) The VE testified that that there would be no work that such individual could perform. 19 (AR 75.) Plaintiff’s counsel asked the VE whether the fact that an individual would need to lie 20 down during the workday during periods of expected productivity would result in them being off 21 task or needing to take an extra break. (AR 76.) The VE answered affirmatively. (AR 76.) 22 C. The ALJ’s Decision 23 In a decision dated October 12, 2017, the ALJ found that Plaintiff was not disabled, as 24 defined by the Act. (AR 26–34.) The ALJ conducted the five-step disability analysis set forth in 25 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 20 C.F.R. § 416.920. (AR 28–34.) The ALJ decided that Plaintiff had not engaged in substantial 2 gainful activity since March 11, 2015, the application date (step one). (AR 28.) At step two, the 3 ALJ found Plaintiff’s following impairments to be severe: substance-induced congestive heart 4 failure; methamphetamine abuse; and chronic obstructive pulmonary disease (COPD). (AR 29.) 5 Plaintiff did not have an impairment or combination of impairments that met or medically equaled 6 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step 7 three). (AR 29.) 8 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 9 five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your 10 residual functional capacity . . . . We use this residual functional capacity assessment at both step 11 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 12 had the RFC: 13 to perform a range of work at the light exertional level as defined in 20 CFR [§] 416.967(b). Specifically, he is able to lift and carry 20 pounds occasionally and 10 14 pounds frequently, stand and walk six hours, and sit six hours in an eight-hour workday. He can frequently climb ramps or stairs and occasionally climb ladders, 15 ropes, or scaffolds. In addition, [Plaintiff] must avoid all exposure to extreme heat, 16 fumes, dusts, gases, odors, and other pulmonary irritants.. 17 (AR 29–30.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 18 expected to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not 19 entirely consistent with the medical evidence and other evidence in the record.” (AR 32.) 20 The ALJ found that Plaintiff could not perform his past relevant work as a heater tender 21 (step four). (AR 32–33). Nonetheless, the ALJ determined that Plaintiff could perform alternate 22 jobs that exist in significant numbers in the national economy, such as cashier, information clerk, 23 and officer helper (step five). (AR 33–34). Ultimately, the ALJ concluded that Plaintiff was not 24 disabled at any time through the date of her decision. (AR 34.) 25 Plaintiff sought review of this decision before the Appeals Council, which denied review 26 on August 27, 2018. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 27 Commissioner. 20 C.F.R. § 416.1481. 28 /// 1 2 A. Applicable Law 3 An individual is considered “disabled” for purposes of disability benefits if he or she is 4 unable “to engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has lasted or can 6 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 7 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 8 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 9 previous work but cannot, considering [her] age, education, and work experience, engage in any 10 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 11 “The Social Security Regulations set out a five-step sequential process for determining 12 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 13 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 14 The Ninth Circuit has provided the following description of the sequential evaluation analysis: 15 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 16 proceeds to step two and evaluates whether the claimant has a medically severe 17 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 18 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 19 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 20 performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 21 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 22 23 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 24 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 25 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 26 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 27 “The claimant carries the initial burden of proving a disability in steps one through four of 28 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden 2 shifts to the Commissioner in step five to show that the claimant can perform other substantial 3 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 4 B. Scope of Review 5 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 6 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 7 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means 8 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 10 305 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 11 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). The Court 12 “must consider the entire record as a whole, weighing both the evidence that supports and the 13 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by isolating 14 a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 15 2007) (citation and internal quotation marks omitted). 16 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 17 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 18 only if that decision is not supported by substantial evidence or it is based upon legal error.” 19 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the 20 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; 21 see, e.g., Edlund, 253 F.3d at 1156 (“If the evidence is susceptible to more than one rational 22 interpretation, the court may not substitute its judgment for that of the Commissioner.” (citations 23 omitted)). 24 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 25 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 26 must determine whether the Commissioner applied the proper legal standards and whether 27 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 28 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 1 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 2 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 3 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 4 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 5 1993)). 6 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 7 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 8 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 9 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 10 Tommasetti, 533 F.3d at 1038 (quoting Robbins, 466 F.3d at 885). “[T]he burden of showing that 11 an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki 12 v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 13 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 14 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th 15 Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment 16 for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the 17 Court must determine whether the Commissioner applied the proper legal standards and whether 18 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis, 498 19 F.3d at 911. 20 IV. DISCUSSION 21 Plaintiff contends that the ALJ erred in assessing the opinion of treating physician Dr. Rathi, 22 in evaluating Plaintiff’s credibility, and in not finding Plaintiff’s obesity a “severe” impairment. 23 (See Doc. 19 at 12–25; Doc. 23 at 1–10.) Defendant counters that the ALJ properly evaluated both 24 Dr. Rathi’s opinion and Plaintiff’s obesity, and that substantial evidence supports the ALJ’s 25 discrediting of Plaintiff’s subjective complaints. (See Doc. 22 at 13–23.) 26 A. The ALJ Appropriately Assessed the Opinion of Dr. Rathi 27 1. Legal Standard 28 The medical opinions of three types of medical sources are recognized in Social Security 1 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not 2 treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant 3 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more 4 weight is given to the opinion of a treating professional, who has a greater opportunity to know and 5 observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 6 “To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its 7 source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical 8 findings support the opinions.” Cooper v. Astrue, No. CIV S–08–1859 KJM, 2010 WL 1286729, 9 at *2 (E.D. Cal. Mar. 29, 2010). An ALJ may reject an uncontradicted opinion of a treating or 10 examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830. 11 In contrast, a contradicted opinion of a treating or examining professional may be rejected for 12 “specific and legitimate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 13 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. 14 “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and thorough 15 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and 16 making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v. 17 Chater, 157 F.3d 715, 725 (9th Cir. 1998)). “The ALJ must do more than state conclusions. He 18 must set forth his own interpretations and explain why they, rather than the doctors’, are correct.” 19 Id. (citation omitted). 20 “[E]ven when contradicted, a treating or examining physician’s opinion is still owed 21 deference and will often be ‘entitled to the greatest weight . . . even if it does not meet the test for 22 controlling weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 (9th 23 Cir. 2007)). The regulations require the ALJ to weigh the contradicted treating physician opinion, 24 Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001)6, except that the ALJ in any event need 25 not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. 26 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally supported 27

28 6 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of 1 opinion rejected); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The opinion 2 of a non-examining professional, by itself, is insufficient to reject the opinion of a treating or 3 examining professional. Lester, 81 F.3d at 831. 4 2. Analysis 5 It is uncontested that Dr. Rathi treated Plaintiff, and thus is considered a treating physician. 6 She opined that Plaintiff is able to lift and carry 10 pounds occasionally and less than 10 pounds 7 frequently; stand and walk one hour in an eight-hour workday; and sit three hours total in an eight- 8 hour workday. (AR 508.) Dr. Rathi further opined Plaintiff is unable to walk a city block without 9 rest or significant pain and he will need to take unscheduled breaks during an eight-hour workday. 10 (AR 508.) According to Dr. Rathi, Plaintiff would likely be absent from work once or twice a 11 month. (AR 509.) Dr. Rathi concluded by opining that Plaintiff is not physically capable of 12 working an eight-hour day, five days a week on a sustained basis. (AR 509.) 13 As the ALJ noted (see AR 31), Dr. Rathi’s opinion is contradicted by the medical opinion 14 evidence of Disability Determinations Service medical consultant Dr. Betcher. Dr. Betcher opined 15 that Plaintiff could stand, walk, and/or sit up to six hours in an eight-hour workday and could lift 16 and carry 10 pounds frequently and 20 pounds occasionally. (AR 98.) Having found that Dr. 17 Rathi’s opinion conflicted with that of Dr. Betcher, the ALJ was therefore obliged to provide 18 specific and legitimate reasons for rejecting Dr. Rathi’s opinions. Trevizo, 871 F.3d at 675. 19 In reviewing the medical evidence and giving “very little weight” to Dr. Rathi’s opinion, 20 the ALJ stated that it is: 21 inconsistent with the medical and other evidence. For example, it is inconsistent 22 with the unremarkable physical examination findings, which showed a normal range of motion with no tenderness. The opinion is also inconsistent with the other 23 medical opinions of record and it is over-restrictive especially in light of [Plaintiff’s] history of noncompliance with treatment. In addition, an inability to 24 walk a city block without rest or significant pain is inconsistent with a report 25 showing he ambulated with a normal gait and was able to exercise. Finally, the opinion is discounted because Dr. Rathi first saw the claimant on April 2, 2015, 26 which is the same day she completed the form, thus, there is no history of treatment upon which to base the opinion. 27 28 (AR 31 (citations omitted).) 1 An ALJ may properly discount a treating physician’s opinion that is not supported by the 2 medical record, including their own treatment notes. See Batson v. Comm’r of Soc. Sec. Admin., 3 359 F.3d 1190, 1195 (9th Cir. 2004) (noting that “an ALJ may discredit treating physicians’ 4 opinions that are conclusory, brief, and unsupported by the record as a whole, . . . or by objective 5 medical findings”) (citing Tonapetyan, 242 F.3d at 1149); Thomas v. Barnhart, 278 F.3d 947, 957 6 (9th Cir. 2002) (“The ALJ need not accept the opinion of any physician, including a treating 7 physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”); 8 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly rejected the opinion of 9 treating physician, where treating physician’s opinion was inconsistent with his own examination 10 and notes of claimant); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (finding that the 11 ALJ properly rejected the opinion of a treating physician since it was not supported by treatment 12 notes or objective medical findings). 13 Here, the ALJ properly rejected Dr. Rathi’s assessment of Plaintiff because it was not 14 supported by the objective medical evidence and other evidence, particularly Plaintiff’s normal 15 physical examination findings from the time period both before and after Dr. Rathi’s April 2, 2015 16 assessment. As the ALJ noted (AR 31), on January 1, 2015, Plaintiff’s physical examination 17 revealed edema, but regular heart rate and respiration. (AR 324.) His range of motion was normal 18 with no tenderness. (AR 324.) On February 9, 2015, Plaintiff’s physical examination showed 19 normal breath sounds, no respiratory distress, and no edema. (AR 467.) He had a regular 20 cardiovascular rhythm, and, although tachycardic, he tested positive for methamphetamine. (AR 21 467.) The ALJ further noted (AR 31) that Dr. Aw’s physical examination of Plaintiff on April 30, 22 2015, was normal, including normal respiratory and cardiovascular results. (AR 577, 599.) 23 Plaintiff’s physical examination during his December 22, 2016 cardiac consultation with Dr. Borno 24 was normal, including a normal gait. (AR 630.) Dr. Borno also found that Plaintiff was able to 25 exercise. (AR 630.) As the ALJ observed (AR 31), Plaintiff’s physical examination on May 3, 26 2017, was also normal. (AR 750.) Such normal findings, particularly with respect to Plaintiff’s 27 respiratory and cardiovascular functioning, fail to support Dr. Rathi’s opinion that Plaintiff was so 28 significantly impaired that he is not physically capable of working an eight-hour day, five days a 1 week, on a sustained basis, even with some limitations. 2 In addition, as the ALJ pointed out (AR 31), Dr. Rathi’s own treatment notes showing 3 Plaintiff’s “history of noncompliance” undermine the opined limitations. Dr. Rathi’s April 2, 2015 4 treatment record, written on the same day she completed the RFC questionnaire, noted Plaintiff’s 5 history of noncompliance with treatment, specifically that he had had “[r]ecurrent hospital 6 admissions for COPD and congestive heart failure” and had left the hospital against medical advice 7 in December 2014. (AR 537, 601.) Dr. Rathi again noted Plaintiff’s history of noncompliance on 8 April 16, 2015. (AR 543, 607.) Plaintiff’s lack of compliance with his treatment suggests that his 9 symptoms may not have been as limiting as he alleged—and certainly not as limiting as Dr. Rathi 10 opined. See McDonald v. Berryhill, No. 1:16–cv–01477–SKO, 2018 WL 1142192, at *14 (E.D. 11 Cal. Mar. 2, 2018) (treating physician’s opinion properly discredited where evidence showed that 12 the plaintiff had not been entirely compliant in taking prescribed medications); Vongdeng v. Colvin, 13 2:15-cv-1071–CKD, 2016 WL 3126121, at *4 (E.D. Cal. Jun. 2, 2016) (same). 14 Finally, the ALJ did not err in discounting Dr. Rathi’s assessment because it was based on 15 one single office visit. (AR 31.) As noted above, the ALJ gave reduced weight to Dr. Rathi’s 16 opinion because “there is no history of treatment upon which to base the opinion.” (AR 31.) In 17 assigning weight to a treating physician’s opinion, the regulations expressly permit an ALJ to 18 consider the length and frequency of the treatment relationship. See 20 C.F.R. § 404.1527(c)(2)(i) 19 (“When the treating source has seen you a number of times and long enough to have obtained a 20 longitudinal picture of your impairment, we will give the source’s opinion more weight than we 21 would give it if it were from a nontreating source.”). In this instance, as the ALJ correctly points 22 out, Dr. Rathi first saw Plaintiff on April 2, 2015, which is the same day she completed the RFC 23 questionnaire. (See AR 31. See also AR 508–10, 536–42.) 24 Plaintiff also contends the ALJ improperly substituted his own lay opinion as that of a 25 medical source or otherwise improperly imposed his own lay interpretation of the medical 26 evidence. (See Doc. 19 at 14; Doc. 23 at 3.) This argument is unavailing. Although an ALJ may 27 not base his or her decision on “his [or her] own [medical] expertise.” Whitney v. Schweiker, 695 28 F.2d 784, 788 (7th Cir.1982), the ALJ, however, is free to choose “between properly submitted 1 medical opinions,” or, as here, between a medical opinion and other objective medical evidence in 2 the record. Gober v. Matthews, 574 F.2d 772, 777 (3rd Cir. 1978). In this case the ALJ did not 3 improperly substitute her lay opinion for that of a medical doctor, but rather properly exercised her 4 responsibility to evaluate the medical evidence in the record: she discussed the evidence presented, 5 noted where the medical opinions were contradictory, and provided reasons for giving particular 6 opinions less weight. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998) (ALJ has duty to 7 determine credibility and resolve ambiguities and conflicts in medical evidence); see also Morgan 8 v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 601, 603 (9th Cir. 1999); Sample v. Schweiker, 9 694 F.2d 639, 642 (9th Cir. 1982). 10 In sum, the ALJ identified ample medical evidence in the record that undermines Dr. Rathi’s 11 opinion that Plaintiff is not physically capable of working an eight-hour day, five days a week on 12 a sustained basis. (AR 509.) This, along with a lack of treating history to support the opinion, see 13 20 C.F.R. § 404.1527(c)(2)(i), is a specific, legitimate reason supported by substantial evidence for 14 discounting the opinion of Dr. Rathi. 7 See Magallanes, 881 F.2d at 751; see also Batson., 359 15 F.3d at 1195; Thomas, 278 F.3d at 957. As the Court may neither reweigh the evidence nor 16 substitute its judgment for that of the Commissioner, it will therefore not disturb the ALJ’s finding 17 on this basis, even if, as Plaintiff points out (see Doc. 19 at 16–19), some of the above-described 18 evidence could be construed more favorably to him. See Robbins, 466 F.3d at 882; Thomas, 278 19 F.3d at 954 (Where the evidence is susceptible to more than one rational interpretation, it is the 20 Commissioner’s conclusion that must be upheld.); Batson, 359 F.3d at 1196 (“When evidence 21 reasonably supports either confirming or reversing the ALJ’s decision, we may not substitute our 22 judgment for that of the ALJ.”). 23 B. The ALJ Properly Found Plaintiff Less Than Fully Credible 24 1. Legal Standard 25 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 26

27 7 The Court’s affirmance of the ALJ’s finding that Dr. Charles’ opinions were not supported by the medical record applies with equal force to Plaintiff’s suggestion that the opinions gave rise to a closed period of disability from 28 Plaintiff’s alleged onset date of March 13, 2009, through October 5, 2011, the date of Dr. Charles’ last report. (See 1 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 2 the ALJ must determine whether the claimant has presented objective medical evidence of an 3 underlying impairment that could reasonably be expected to produce the pain or other symptoms 4 alleged. Id. The claimant is not required to show that her impairment “could reasonably be 5 expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could 6 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 7 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 9 if he gives “specific, clear and convincing reasons” for the rejection. Id. As the Ninth Circuit has 10 explained: 11 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s 12 reputation for lying, prior inconsistent statements concerning the symptoms, and 13 other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 14 of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 15 16 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray, 554 17 F.3d at 1226–27. Other factors the ALJ may consider include a claimant’s work record and 18 testimony from physicians and third parties concerning the nature, severity, and effect of the 19 symptoms of which he complains. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 20 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 21 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 22 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 23 General findings are not sufficient to satisfy this standard; the ALJ “‘must identify what testimony 24 is not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 25 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester, 81 F.3d at 834). 26 2. Analysis 27 As set forth above, the ALJ found Plaintiff’s “medically determinable impairments could 28 reasonably be expected to cause the alleged symptoms.” (AR 32.) The ALJ also found that 1 “[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 2 symptoms are not entirely consistent with the medical evidence and other evidence in the record.” 3 (AR 32.) Since the ALJ found Plaintiff’s “medically determinable impairments could reasonably 4 be expected to cause the alleged symptoms,” the only remaining issue is whether the ALJ provided 5 “specific, clear and convincing reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 6 572 F.3d at 591. Here, the ALJ found Plaintiff’s credibility was undermined by several factors: 7 inconsistent statements made to his physicians regarding his substance use; the objective medical 8 evidence; and his noncompliance with prescribed treatment. (AR 32.) The Court takes each 9 finding in turn. 10 a. Inconsistent Statements 11 The ALJ also found that Plaintiff “made several inconsistent statements regarding his 12 substance use.” (AR 32.) Specifically, the ALJ pointed out that during a hospital visit in February 13 2015 Plaintiff reported last taking methamphetamine in November-December 2014, but a urine 14 toxicology screen from that visit was positive for the drug. (AR 32, 475.) In addition, the ALJ 15 observed that at another hospital visit in May 2017 Plaintiff denied substance abuse (AR 814, 817), 16 yet his urine test was positive for amphetamine (AR 778). (AR 32.) 17 Inconsistent statements regarding drug use can be “substantial evidence in the record [to] 18 support [] the ALJ’s negative conclusions about [the plaintiff’s] veracity.” Thomas, 278 F.3d at 19 959. The ALJ may consider whether the Plaintiff’s testimony is believable. Verduzco v. Apfel, 20 188 F.3d 1087, 1090 (9th Cir. 1999). “In determining credibility, an ALJ may engage in ordinary 21 techniques of credibility evaluation, such as considering claimant’s reputation for truthfulness and 22 inconsistencies in claimant’s testimony.” Burch, 400 F.3d at 680; see also Thomas, 278 F.3d at 23 959 (supporting the ALJ’s finding that a “lack of candor” regarding the use of drugs “carries over” 24 to the plaintiff’s description of her disabling condition). 25 Plaintiff is correct that illegal drug use, standing alone, has no bearing on Plaintiff’s 26 credibility (See Doc. 19 at 20–21; Doc. 23 at 8–9). See, e.g., Buck v. Astrue, No. 3: 10–cv–05519– 27 KLS, 2011 WL 2600505, at * 11 (W.D. Wash. June 28, 2011). However, the mere fact that Plaintiff 28 has a history of methamphetamine use is not a reason on which the ALJ’s credibility determination 1 was based; it was, instead, Plaintiff’s inconsistent statements about that use for which his subjective 2 complaints were discredited. Accordingly, the ALJ made a clear and convincing determination 3 that Plaintiff’s inconsistent statements impacted his credibility. See, e.g., Vasquez v. Astrue, No. 4 1:11-CV-00853-SKO, 2012 WL 4433565, at *15 (E.D. Cal. Sept. 24, 2012) (finding Plaintiff’s 5 inconsistent statements regarding her substance abuse history a clear and convincing reason for the 6 ALJ to discredit her testimony). 7 b. Objective Medical Evidence 8 The ALJ’s next ground for discounting Plaintiff’s credibility is that his allegations of 9 significant limitations are inconsistent with the objective medical evidence, specifically Plaintiff’s 10 normal physical examination findings. (AR 32.) “[T]he Ninth Circuit has repeatedly emphasized 11 that, ‘in evaluating the credibility of pain testimony after a claimant produces objective medical 12 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints 13 based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.’” 14 Ondracek v. Comm’r of Soc. Sec., Case No. 1:15–cv–01308–SKO, 2017 WL 714374, at *8 (E.D. 15 Cal. Feb. 22, 2017) (quoting Burch, 400 F.3d at 680); see also, e.g., Rollins, 261 F.3d at 857 16 (“[S]ubjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated 17 by objective medical evidence . . . .”). Nonetheless, “lack of medical evidence . . . is a factor that 18 the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681. See also Moisa v. 19 Barnhart, 367 F.3d 882, 885 (9th Cir.2004); Morgan, 169 F.3d at 600. Stated differently, 20 “[a]lthough the inconsistency of objective findings with subjective claims may not be the sole 21 reason for rejecting subjective complaints of pain, it is one factor which may be considered with 22 others.” Salas v. Colvin, No. 1:13–cv–00429–BAM, 2014 WL 4186555, at *6 (E.D. Cal. Aug. 23 21, 2014) (citations omitted). 24 Here, Plaintiff testified that he has trouble breathing, which causes him not to be able to 25 work. (AR 56.) He stated that he can stand only about a half hour before having to sit down 26 because his back and knees get “stiff” and “tired.” (AR 66–67.) According to Plaintiff, after a 27 short walk he must take a break to catch his breath. (AR 67.) However, as the ALJ observed (AR 28 32), and as set forth more fully above (see Section IV.A.2, supra), Plaintiff’s physical examinations 1 in January, February, and April 2015 showed normal respiratory, cardiovascular, and 2 musculoskeletal functioning. (AR 324, 467, 577, 599.) The ALJ noted that Plaintiff continued to 3 have normal physical examination results in December 2016 and May 2017. (AR 630, 750.) These 4 findings are supported by substantial evidence and constitute yet an additional clear and convincing 5 reason the ALJ reasonably discounted the severity of Plaintiff’s subjective complaints. See Molina 6 v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (concluding that the ALJ properly discredited 7 claimant testimony based on inconsistencies with objective medical evidence). 8 c. Lack of Compliance with Treatment 9 The ALJ’s final ground for discounting Plaintiff’s credibility is that the alleged severity of 10 his impairments is “inconsistent with his history of noncompliance with prescribed treatment.” 11 (AR 32.) The ALJ noted Plaintiff’s history of noncompliance found in the records of his treating 12 physician Dr. Rathi. (AR 32.) In those records, Dr. Rathi observed in April 2015 that Plaintiff had 13 had “[r]ecurrent hospital admissions for COPD and congestive heart failure” and had left the 14 hospital against medical advice in December 2014. (AR 537, 601.) Dr. Rathi again noted 15 Plaintiff’s history of noncompliance with treatment in April 2015. (AR 543, 607.) 16 In evaluating a claimant’s claimed symptoms, an ALJ may consider a claimant’s failure to 17 follow a prescribed course of treatment when weighing a claimant’s credibility. See Tommasetti, 18 533 F.3d at 1039–40; Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). In so doing, 19 however, an ALJ must consider a claimant’s explanation for failing to undergo the recommended 20 treatment. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). As the Ninth Circuit 21 explained in Fair v. Bowen, it is the claimant’s burden to adequately explain his or her failure to 22 follow a prescribed course of treatment. 885 F.2d at 603 (claimant’s failure to explain failure to 23 seek treatment or follow a prescribed course of treatment can “cast doubt” on the sincerity of his 24 testimony); see also Smolen, 80 F.3d at 1293. An ALJ may discount a claimant’s credibility due 25 to an “unexplained or inadequately explained failure to seek treatment or to follow a prescribed 26 course of treatment.” Tommasetti, 533 F.3d at 1039. 27 Here, Plaintiff’s briefing does not address the ALJ’s reliance on evidence of Plaintiff’s lack 28 of compliance with treatment as reason to discredit his subjective complaints, other than to 1 characterize it as “cherry-picked.” (See Doc. 19 at 21.) Plaintiff therefore proffers no explanation 2 for his failure to follow his prescribed course of treatment, including taking his medication. (See 3 AR 467 (“Plaintiff is not compliant with [congestive heart failure] meds and states he has been out 4 of his medications for the past two months.”).) In view of Plaintiff not having met his burden of 5 adequately explaining his failure to follow his treatment regimen, see Fair, 885 F.2d at 603, and 6 viewing the record as a whole, the Court finds that ALJ’s conclusion that Plaintiff was non- 7 compliant with taking medication is supported by substantial evidence. The ALJ’s determination 8 that Plaintiff was non-compliant with his use of prescribed treatment is therefore another clear and 9 convincing reason for discounting Plaintiff’s subjective symptom testimony. Tommasetti, 533 F.3d 10 at 1039. 11 In sum, the Court finds that the ALJ offered multiple clear and convincing reasons to 12 discredit Plaintiff’s testimony regarding the extent of his limitations. While Plaintiff may disagree 13 with the ALJ’s interpretation of the medical evidence (see Doc. 19 at 21), it is not within the 14 province of this Court to second-guess the ALJ’s reasonable interpretation of that evidence, even 15 if such evidence could give rise to inferences more favorable to Plaintiff. See Rollins, 261 F.3d 16 at 857 (citing Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). 17 C. The ALJ Properly Evaluated the Effects of Plaintiff’s Obesity 18 Finally, Plaintiff contends that the ALJ erred in failing to find a Plaintiff’s obesity a severe 19 impairment at step two; in failing to consider the effect of the obesity on the Listings at step three; 20 and in failing to consider his obesity in determining his RFC. (Doc. 19 at 22–25.) The Court 21 disagrees. 22 Social Security Ruling 02-1p directs that an ALJ “do an individualized assessment of the 23 impact of obesity on an individual’s functioning when deciding whether the impairment is 24 severe.” TITLES II & XVI: EVALUATION OF OBESITY, Social Security Ruling (“SSR”) 02-1p, 2002 25 WL 34686281 (S.S.A. Sept. 12, 2002).8 An impairment qualifies as severe if “alone or in 26 combination with another medically determinable physical or mental impairment(s), it 27 8 Plaintiff cites to Social Security Ruling 19-2p as the relevant authority for evaluation of obesity. (See Doc. 19 at 22– 28 23.) However, the ALJ issued the instant decision on October 12, 2017, prior to the May 20, 2019 effective date of 1 significantly limits an individual’s physical or mental ability to do basic work activities.” Id. 2 Social Security Ruling 02-1p directs that “[the ALJ] will not make assumptions about the severity 3 or functional effects of obesity combined with other impairments.” Id. Rather, “[the ALJ] will 4 evaluate each case based on the information in the case record.” Id. The claimant bears the 5 burden of establishing the severity of an alleged impairment by providing medical evidence 6 consisting of signs, symptoms, and laboratory findings. 20 C.F.R. § 416.908. 7 1. The ALJ Did Not Err at Step Two 8 In this case, the ALJ noted at step two that Plaintiff was assessed by physicians as obese, 9 but found the impairment was not severe because it did not cause more than a “minimal limitation 10 in his ability to perform basic work activities.” (AR 29 (citing AR 522, 630, 665, 675, 681).) In 11 support of her finding, the ALJ pointed to Plaintiff’s history of normal physical examinations, 12 including with respect to Plaintiff’s respiratory and cardiovascular functioning, as well as his 13 normal musculoskeletal examination results and noted ability to exercise (as described more fully 14 above, see Section IV.A.2, supra). (AR 29 (citing AR 324, 467, 577, 599, 630, 750).) Plaintiff 15 contends that obesity “exacerbate[ed] his limited cardiac and respiratory functioning” (Doc. 19 at 16 22) and cites treatment records from a single hospital visit in December 2014 (AR 514, 521, 524). 17 These treatment records, however, merely note that Plaintiff experienced shortness of breath 18 symptoms “with associated weight gain”—they do not discuss or contain any limitations related 19 to Plaintiff’s obesity, either alone or as exacerbating any other condition. Other than citing to 20 these records, Plaintiff does not specify how his obesity limits his functional capacity, or how it 21 exacerbates his currently existing conditions. 22 It is the plaintiff’s obligation to establish a connection between his excessive weight, 23 impairments, and any relevant functional limitations. See Burch, 400 F.3d at 683. “An ALJ is 24 not required to discuss the combined effects of a claimant’s impairments or compare them to any 25 listing in an equivalency determination, unless the claimant presents evidence in an effort to 26 establish equivalence.” Id. See also Garcia v. Comm’r of SSA, 498 F. App’x 710, 712 (9th Cir. 27 2012) (the ALJ’s finding that obesity did not impact the RFC was proper where the Plaintiff “did 28 not provide any evidence of functional limitations due to obesity which would have impacted the 1 ALJ’s analysis”) (internal quotation marks omitted); Hoffman v. Astrue, 266 F. App’x 623, 625 2 (9th Cir. 2008) (“The ALJ’s failure to consider Hoffman’s obesity in relation to his RFC was 3 proper because Hoffman failed to show how his obesity in combination with another impairment 4 increased the severity of his limitations.”). Here, there is simply no evidence of any functional 5 limitations as a result of Plaintiff’s obesity that the ALJ should have, yet failed, to consider. 6 Although Plaintiff’s physicians noted his weight in treatment notes, it does not appear that any 7 physician indicated his obesity either caused or exacerbated his impairments or resulted in any 8 functional limitations whatsoever. Plaintiff has identified no medical records that the ALJ might 9 have overlooked stating otherwise. 10 Additionally, Plaintiff did not raise his obesity as an impairment or limitation in his 11 application for benefits or in his hearing testimony, instead focusing entirely on his other 12 impairments. (See, e.g., AR 26, 60, 66–69, 78, 82, 91, 105, 180, 186, 195, 198, 202, 219, 230.) 13 Plaintiff was represented by an attorney at the hearing, and neither of them offered any evidence 14 or explanation to show how Plaintiff’s obesity limited his ability to function or how his obesity 15 exacerbates one or more of his conditions resulting in limitations. Although Plaintiff testified 16 that he has trouble breathing, can stand only about a half hour before having to sit down because 17 his back and knees get “stiff” and “tired,” and can only walk a short distance before taking a break 18 to catch his breath (AR 60, 66–69), this is contrast to Plaintiff’s physical examinations in January 19 2015, February 2015, April 2015, and May 2017, which showed normal respiratory, 20 cardiovascular, and musculoskeletal functioning, and a cardiac evaluation in December 2016 21 showing that Plaintiff can ambulate without difficulty and can exercise. (AR 324, 467, 577, 599, 22 630, 750.) Therefore, the undersigned finds no error in the ALJ’s failure at step two to include 23 obesity as a severe impairment. 24 2. The ALJ Did Not Err at Step Three 25 Plaintiff’s argument the ALJ erred at step three by failing to consider the combined 26 conditions of his congestive heart failure, obesity, and COPD to meet or equal Listing 4.00 and/or 27 4.02 is also without merit. (Doc. 19 at 22–23.) Title 42 U.S.C. § 423(d)(2)(C) requires that “the 28 combined effect of all of the individual’s impairments” be considered, “without regard to whether 1 any such impairment, if considered separately,” would be sufficiently severe to meet a Listing. 2 See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.1990) (where claimant presented evidence that 3 the combination of impairments established medical equivalence, ALJ’s finding that “claimant 4 has failed to provide evidence of medically determinable impairments that meet or equal the 5 Listings,” without more, was insufficient to show that the ALJ actually considered equivalence). 6 Here, the ALJ considered Plaintiff’s impairments, both severe and non-severe, and found 7 that they did not meet or medically equal Listing 4.02 either “singly or in combination” based on 8 the medical evidence. (AR 29.) Plaintiff asserts that “[w]hen considering [L]isting 4.02 for 9 chronic heart failure, the ALJ erred by failing to consider the effect of obesity in combination 10 with Mr. Martinez’s [congestive heart failure]” (Doc. 19 at 22), yet cites no evidence that the 11 combination of his impairments equals this (or any other) Listing.9 See Burch, 400 F.3d at 683 12 (“Plaintiff bears the burden of demonstrating that his impairment meets or equals a Listing.”). 13 See also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (rejecting claimant’s theory that his 14 symptoms of seizure disorder and mental retardation equaled a listing when claimant did not offer 15 a plausible theory or point to any evidence that his symptoms combined to equal a listed 16 impairment). In sum, the ALJ did not err at step three in finding Plaintiff did not meet or equal a 17 Listing. 18 3. The ALJ Did Not Err in Formulating Plaintiff’s RFC 19 Lastly, Plaintiff contends that the ALJ also erred in failing to consider Plaintiff’s obesity in 20 combination with her other impairments in determining his RFC. (Doc. 19 at 24.) Plaintiff, 21 however, fails to point to any specific functional limitation attributable to his obesity that was 22 omitted from the RFC. Nor has he provided any evidence that his obesity exacerbated his reported 23 physical impairments. Indeed, the only evidence on which Plaintiff relies for his contention merely 24 notes that Plaintiff experienced shortness of breath symptoms “with associated weight gain,” and 25 does not discuss or contain any limitations related to Plaintiff’s obesity, either alone or as 26 exacerbating any other condition. (See AR 514, 521, 524.) The ALJ therefore was not required to 27

28 9 Plaintiff also contends, without evidentiary support, that, when taking into account his obesity, he meets Listing 1 include additional limitations not supported by the record. See Osenbrock v. Apfel, 240 F.3d 1157, 2 1164–65 (9th Cir. 2001). 3 V. CONCLUSION AND ORDER 4 After consideration of Plaintiff’s and Defendant’s briefs and a thorough review of the 5 record, the Court finds that the ALJ’s decision is supported by substantial evidence and is therefore 6 AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant 7 Andrew Saul, Commissioner of Social Security, and against Plaintiff. 8 IT IS SO ORDERED. 9

Sheila K. Oberto 10 Dated: February 27, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 11

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