2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 EDITH RATLIFF, Case No. 1:19-cv-01166-SKO 11 Plaintiff,
12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT ANDREW SAUL, 14 Commissioner of Social Security, 15 Defendant. (Doc. 1)
17 _____________________________________/ 18
19 20 I. INTRODUCTION 21 On August 26, 2019, Plaintiff Edith Ratliff (“Plaintiff”) filed a complaint under 42 22 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of 23 Social Security (the “Commissioner” or “Defendant”) denying her applications for disability 24 insurance benefits (“DIB”) and Supplemental Security Income (SSI) under the Social Security 25 Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which 26 were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 27 Magistrate Judge.1 28 1 2 Plaintiff was born on February 20, 1957, obtained a General Educational Development 3 (GED) certificate, and previously worked as a security guard/parking lot supervisor and a house 4 painter. (Administrative Record (“AR”) 21, 22, 33, 35, 63, 70, 79, 86, 188, 193, 199, 207.) 5 Plaintiff protectively filed claims for DIB and SSI payments on February 24, 2016, alleging she 6 became disabled on December 15, 2013, due to high blood pressure, arthritis and bone spurs on 7 her neck and back, and anxiety. (AR 13, 31, 65, 71, 80, 87, 95, 104, 188, 192, 199, 207, 258.) 8 Additional impairments alleged include hyperlipidemia, hypertension, osteoarthritis of the knee, 9 and depression. (AR 16.) 10 A. Relevant Medical Evidence2 11 1. Oakdale Community Health 12 Plaintiff presented to Beatrice Godbouldt, P.A., on February 20, 2015, to establish care. 13 (AR 263.) She reported hypertension, joint pain and swelling, and pain in her knee, back, and 14 hand. (AR 263–64.) P.A. Godbout’s physical examination of Plaintiff was normal. (AR 263– 15 64, 266.) 16 On March 2, 2015, Plaintiff complained of “continued back and neck pain” and that she 17 was “[u]nable to do usual activities due to pain and fatigue.” (AR 269.) She denied joint 18 swelling. (AR 269.) On examination, P.A. Godbouldt found tenderness in Plaintiff’s neck 19 without spasms and noted her fingers were tender to touch without evidence of heat, swelling, 20 visible deformity, or nodes. (AR 268.) Diagnostic imaging of Plaintiff’s cervical and lumbar 21 spine was ordered. (AR 268.) Plaintiff was also prescribed the pain medication Etodolac. (AR 22 270.) 23 Plaintiff presented to P.A. Godbouldt for a follow up appointment on March 13, 2015. 24 (AR 273.) She continued to complain of back and neck pain, but reported that the “pain pills 25 relieve her pain well.” (AR 273.) Plaintiff had tenderness in her neck and back, but a painless 26 straight leg raising test, steady gait, and normal deep tendon reflexes. (AR 272–73.) She was 27
28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 referred to physical therapy for neck pain. (AR 261, 272.) 2 Plaintiff requested an MRI on June 5, 2015, complaining of 9/10 pain in her lower and 3 upper back. (AR 280.) She also requested muscle relaxers, claiming that she has tension in her 4 lower back after physical therapy for her neck. (AR 279.) P.A. Godbouldt examined Plaintiff’s 5 neck, which was normal, and noted Plaintiff’s spine was straight, atraumatic, with painless 6 straight leg raising test. (AR 278.) Tenderness to palpation in Plaintiff’s back was noted, with 7 normal reflexes and steady gait. (AR 278.) Plaintiff was prescribed muscle relaxant Flexeril. 8 (AR 278.) 9 On September 18, 2015, Plaintiff presented for a medication refill. (AR 283.) P.A. 10 Godbouldt noted Plaintiff had “[n]o complaints other than regular aches and pains.” (AR 282.) 11 Her physical examination was normal, with no tenderness, normal strength, painless straight leg 12 raising test, and full range of motion. (AR 281–82.) 13 Plaintiff presented for a follow up appointment on October 23, 2016, complaining of back 14 pain, joint pain, limited range of motion, muscle aches, and stiffness. (AR 312.) Examination of 15 Plaintiff’s neck by Sheila Hernandez-Lee, N.P., was normal (AR 312, 313.) N.P. Hernandez-Lee 16 found full flexion, rotation, and lateral bending in Plaintiff’s back, but limited extension due to 17 pain. (AR 313.) Tenderness in Plaintiff’s knees was also noted, but with full range of motion. 18 (AR 313.) N.P. Hernandez-Lee ordered diagnostic testing of Plaintiff’s knees, cervical spine, and 19 lumbar spine, and increased her dosage of Flexeril. (AR 313.) 20 On May 22, 2017, Plaintiff requested medication refills. (AR 307–310.) Her physical 21 examination was normal, including normal gait, full range of motion and no tenderness in her 22 neck. (AR 309.) Plaintiff presented for MRI results on July 14, 2017, which showed arthritis and 23 spondylolisthesis in her lumbar spine. (AR 304.) She reported taking Etodolac and Flexeril, and 24 was “open” to physical therapy but “doubt[ed] it would help her.” (AR 304.) N.P. Hernandez- 25 Lee found tenderness and decreased range of motion in Plaintiff’s neck and back, but normal gait, 26 stability, and strength. (AR 305.) On August 15, 2017, Plaintiff’s physical exam was normal. 27 (AR 300.) 28 /// 1 2. Joseph Serra, M.D. 2 On February 23, 2018, consultative examining physician Dr. Serra conducted a 3 comprehensive orthopedic evaluation of Plaintiff. (AR 323–26.) Plaintiff complained of pain in 4 her back, neck, and knees. (AR 323.) She reported that has had pain for several years in her 5 lower back and, despite physical therapy, the pain has increased with limited range of motion. 6 (AR 323.) Plaintiff also stated she has had knee pain for years and received chiropractic 7 treatment for it. (AR 323.) 8 Dr. Serra observed that Plaintiff had “a halting-type pain[,] shifting her weight both from 9 right and left due to pain in both knees with weight bearing.” (AR 324.) Plaintiff did not use an 10 assistive device. (AR 324.) She had tenderness in her cervical spine with decreased range of 11 motion. (AR 324–25.) Dr. Serra also noted Plaintiff’s complaints of pain in her lumbar spine 12 with tenderness to palpation and decreased range of motion. (AR 325.) Examination of 13 Plaintiff’s knees showed minimal swelling and crepitus, and Dr. Serra observed Plaintiff’s 14 complaints of pain were primarily with weight bearing and kneeling. (AR 325.) 15 Plaintiff’s straight leg raising test was positive at 90 degrees bilaterally with pain referred 16 to the lower back. In supine posture, the test was positive at 45 degrees on the right with pain in 17 the lumbar area with radiation into the buttocks and thighs to the knees. In the supine posture on 18 the left, the test was positive at 60 degrees with pain in the lower back and minimal radiation into 19 the left hip. (AR 325.) Dr. Serra found Plaintiff’s muscle strength, sensation, and reflexes were 20 all normal. (AR 326.) He diagnosed Plaintiff with degenerative disk disease of her lumbosacral 21 spine and cervical spine, and osteoarthritis in both knees. (AR 326.) 22 Dr. Serra concluded in his report that Plaintiff was limited to standing or walking up to 23 four hours in an eight-hour day; sitting up to six hours per day; lifting and carrying 10 pounds 24 frequently; occasionally climbing stairs, steps, ladders, and scaffolds; occasional kneeling; 25 frequent balancing, stooping, and crouching; never crawling; never driving; and no exposure 26 unprotected heights or machinery. (AR 326.) 27 Dr. Serra also completed a “Medical Source Statement of Ability to do Work-Related 28 Activities” form the day after his examination of Plaintiff, on February 24, 2018. (AR 327–32.) 1 He indicated that Plaintiff could frequently lift and carry up to 10 pounds, (AR 327), and found 2 that Plaintiff could sit for seven hours, stand for three hours, and walk for two hours in an eight- 3 hour workday (AR 328). Dr. Serra indicated on the form that Plaintiff could occasionally climb 4 stairs, ramps, ladders, and scaffolds, could frequently balance and stoop, could occasionally kneel 5 and crouch, and never crawl. (AR 330.) According to Dr. Serra, Plaintiff could occasionally be 6 exposed to unprotective heights, moving mechanical parts, and extreme cold, and could 7 frequently be exposed to humidity, wetness, dust, odor, fumes, extreme heat, and vibrations. (AR 8 331.) She could also frequently operate a motor vehicle. (AR 331.) 9 B. Administrative Proceedings 10 The Commissioner denied Plaintiff’s application for benefits initially on June 3, 2016, and 11 again on reconsideration on September 21, 2016. (AR 95–100, 104–109.) Consequently, 12 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 110–26.) 13 On November 8, 2017, Plaintiff appeared with counsel and testified before an ALJ as to 14 her alleged disabling conditions. (AR 32–50.) Plaintiff testified that she has pain and limited 15 range of motion in her neck and pain in her lower back that is partially relieved when she is lying 16 down. (AR 38–40.) She also testified that her doctors recommended physical therapy but that 17 she stopped attending after a few sessions because it caused too much pain and “hinder[ed] 18 [her].” (AR 47–48.) According to Plaintiff, she had not been referred for pain management or 19 prescribed injections for her pain. (AR 48.) 20 A Vocational Expert (“VE”) also appeared at the hearing. (AR 50–57.) She testified that 21 Plaintiff had past relevant work as a combination security guard and parking lot supervisor, 22 Dictionary of Operational Titles (“DOT”) codes 372.667-034 and 915.133-010, respectively, 23 which were medium exertional work with specific vocational preparations (SVP)3 of 3 and 4, 24 respectively. (AR 53.) The VE also testified that Plaintiff had past relevant work as a painter, 25 DOT code 840.381-010, medium exertional work, and SVP 7. (AR 53.) The ALJ asked the VE 26 3 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical 27 worker 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). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the 1 a hypothetical question, in which the VE was to consider a person of Plaintiff’s age, education, 2 and work experience, who can lift, carry, push, or pull 25 pounds frequently and 50 pounds 3 occasionally; who can sit for 6 hours; stand and walk for 6 hours; and who can frequently stoop, 4 kneel, crouch, and crawl. (AR 54.) The VE testified that such a person could perform Plaintiff’s 5 past relevant work, both per the DOT and as performed. (AR 54.) The VE further testified that 6 such a person could perform other medium positions under the DOT in the national economy, 7 such as food service hospital worker, DOT code 319.677-014and SVP 2; hand packager, DOT 8 code 920.587-018 and SVP 2; and dining room attendant, DOT Code 311.677-018 and SVP 2. 9 (AR 54–55.) 10 The ALJ asked a follow up question regarding a second hypothetical worker with same 11 limitations as in the first hypothetical, except that the worker could occasionally stoop, kneel, 12 crouch, or crawl; cannot climb ladders, ropes, or scaffolds; cannot be exposed to unprotected 13 heights; and who must alternate positions for up to five minutes every hour, but is able to remain 14 on task during that time. (AR 55.) The VE testified that such a person could not perform 15 Plaintiff’s past work, but could still perform the hand packager job, as well as machine packer, 16 DOT code 920.685-078, medium, SVP 2. (AR 55.) The ALJ then posed to the VE a third 17 hypothetical person who had the same limitations as the first except the individual could only 18 occasionally stoop, kneel, crouch, and crawl. (AR 56.) The VE testified that such a person could 19 perform Plaintiff’s past work of combination security guard and parking lot supervisor, as well as 20 the other positions identified in response to the first hypothetical. (AR 56.) 21 The ALJ posed a fourth and final hypothetical to the VE of a person with the same 22 limitations as the second hypothetical except that except the individual could lift, carry, push, or 23 pull 10 pounds frequently and 20 pounds occasionally. (AR 56.) The VE testified that such a 24 person could not perform Plaintiff’s past work, but could perform other, light positions under the 25 DOT in the national economy, such as mail router, DOT code 222.587-038 and SVP 2; ticket 26 seller, DOT code 211.467-030 and SVP 2; and cashier, DOT Code 211.462-010 and SVP 2. (AR 27 56–57.) 28 /// 1 C. The ALJ’s Decision 2 In a decision dated August 29, 2018, the ALJ found that Plaintiff was not disabled, as 3 defined by the Act. (AR 15–23.) The ALJ conducted the five-step disability analysis set forth in 4 20 C.F.R. §§ 404.1520, 416.920. (AR 16–23.) The ALJ decided that Plaintiff had not engaged in 5 substantial gainful activity since her alleged onset date of December 15, 2013 (step one). (AR 6 16.) At step two, the ALJ found Plaintiff’s following impairments to be severe: lumbar and 7 cervical degenerative disc disease. (AR 16–18.) Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled one of the listed impairments in 20 9 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 18.) 10 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the 11 RFC assessment at steps four and five. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before 12 we go from step three to step four, we assess your residual functional capacity . . . . We use this 13 residual functional capacity assessment at both step four and step five when we evaluate your 14 claim at these steps.”). The ALJ determined that Plaintiff had the RFC: 15 to perform medium work as defined in 20 CFR [§] 404.1567(c) and [§] 416.967(c) except she is limited to sitting for up to six hours per day, standing or 16 walking for up to six hours per day, occasional stooping, kneeling, crouching, or crawling, no climbing ladders, ropes, or scaffolds, no exposure to unprotected 17 heights, and she must alternate between sitting and standing for up to five minutes 18 every hour, while remaining on task. 19 (AR 18–21.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 20 expected to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as 21 “not entirely consistent with the medical evidence and other evidence in the record.” (AR 19.) 22 The ALJ found that Plaintiff was unable to perform her past relevant work (step four), but that, 23 based on the RFC assessment, she retained the capacity perform other work that existed in 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. 26 TITLES 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 27 from an 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 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 sufficient numbers in the national economy, specifically, as a hand packager or a machine 2 packager (step five). (AR 21–22.) 3 Plaintiff sought review of this decision before the Appeals Council, which denied review 4 on July 3, 2019. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 5 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 6 III. LEGAL STANDARD 7 A. Applicable Law 8 An individual is considered “disabled” for purposes of disability benefits if he or she is 9 unable “to engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which has lasted or can 11 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 12 423(d)(1)(A). However, “[a]n individual shall be determined to be under a disability only if [her] 13 physical or mental impairment or impairments are of such severity that [s]he is not only unable to 14 do [her] previous work but cannot, considering [her] age, education, and work experience, engage 15 in any other kind of substantial gainful work which exists in the national economy.” Id. § 16 423(d)(2)(A). 17 “The Social Security Regulations set out a five-step sequential process for determining 18 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 19 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has 20 provided the following description of the sequential evaluation analysis: 21 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 22 proceeds to step two and evaluates whether the claimant has a medically severe 23 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 24 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. 25 If not, the ALJ proceeds to step four and assesses whether the claimant is capable 26 of 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] . . 27 . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 28 1 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 2 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 3 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 4 “The claimant carries the initial burden of proving a disability in steps one through four of 5 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 6 1989)). “However, if a claimant establishes an inability to continue her past work, the burden 7 shifts to the Commissioner in step five to show that the claimant can perform other substantial 8 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 9 B. Scope of Review 10 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 11 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 12 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” 13 means “such relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of 15 N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but 16 less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 17 The Court “must consider the entire record as a whole, weighing both the evidence that supports 18 and the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply 19 by isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 20 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 21 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 22 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be 23 disturbed only if that decision is not supported by substantial evidence or it is based upon legal 24 error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will 25 uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 26 interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 1156 (“If the evidence is susceptible to more 27 than one rational interpretation, the court may not substitute its judgment for that of the 28 Commissioner.” (citations omitted)). 1 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 2 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 3 must determine whether the Commissioner applied the proper legal standards and whether 4 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 5 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot 6 be affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d 7 at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 8 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 9 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 10 Cir. 1993)). 11 Finally, courts “may not reverse an ALJ’s decision on account of an error that is 12 harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. 13 Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear 14 from the record that ‘the ALJ’s error was inconsequential to the ultimate nondisability 15 determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins v. 16 Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is 17 harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 18 556 U.S. 396, 409 (2009) (citations omitted). 19 IV. DISCUSSION 20 Plaintiff contends that the ALJ erred in assessing the opinion of examining physician Dr. 21 Serra. (See Doc. 14.) The Commissioner counters that the ALJ properly evaluated the medical 22 opinion evidence. (See Doc. 15.) The Court agrees with the Commissioner. 23 A. Legal Standard 24 The medical opinions of three types of medical sources are recognized in Social Security 25 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not 26 treat the claimant (examining physicians); and (3) those who neither examine nor treat the 27 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 28 Ordinarily, more weight is given to the opinion of a treating professional, who has a greater 1 opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 2 1273, 1285 (9th Cir. 1996). “To evaluate whether an ALJ properly rejected a medical opinion, in 3 addition to considering its source, the court considers whether (1) contradictory opinions are in 4 the record; and (2) clinical findings support the opinions.” Cooper v. Astrue, No. CIV S–08– 5 1859 KJM, 2010 WL 1286729, at *2 (E.D. Cal. Mar. 29, 2010). An ALJ may reject an 6 uncontradicted opinion of a treating or examining medical professional only for “clear and 7 convincing” reasons. Lester, 81 F.3d at 830. In contrast, a contradicted opinion of a treating or 8 examining professional may be rejected for “specific and legitimate reasons that are supported by 9 substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 10 F.3d at 1198); see also Lester, 81 F.3d at 830. “An ALJ can satisfy the ‘substantial evidence’ 11 requirement by ‘setting out a detailed and thorough summary of the facts and conflicting clinical 12 evidence, stating [her] interpretation thereof, and making findings.’” Garrison v. Colvin, 759 13 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 14 “The ALJ must do more than state conclusions. [She] must set forth [her] own interpretations 15 and explain why they, rather than the doctors’, are correct.” Id. (citation omitted). 16 “[E]ven when contradicted, a treating or examining physician’s opinion is still owed 17 deference and will often be ‘entitled to the greatest weight . . . even if it does not meet the test for 18 controlling weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 (9th 19 Cir. 2007)). The regulations require the ALJ to weigh the contradicted treating physician 20 opinion, Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001)5, except that the ALJ in any 21 event need not give it any weight if it is conclusory and supported by minimal clinical findings. 22 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally 23 supported opinion rejected); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 24 The opinion of a non-examining professional, by itself, is insufficient to reject the opinion of a 25 treating or examining professional. Lester, 81 F.3d at 831. 26 /// 27 5 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of 28 the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. § 1 2 Following an examination in February 2018, consultative orthopedist Dr. Serra opined 3 that Plaintiff was limited to standing or walking up to four hours in an eight-hour day; sitting up 4 to six hours per day; lifting and carrying 10 pounds frequently; occasionally climbing stairs, 5 steps, ladders, and scaffolds; occasional kneeling; frequent balancing, stooping, and crouching; 6 As the only opinion evidence in the record,6 Dr. Serra’s opinion is uncontradicted, and thus the 7 ALJ was required to set forth “clear and convincing reasons” for rejecting the opinion. Lester, 81 8 F.3d at 830. 9 In reviewing the medical evidence and giving “little weight” to Dr. Serra’s opinion, the 10 ALJ stated that the opined limitations were (1) “based on [Plaintiff’s] subjective complaints of 11 pain,” and (2) “not consistent with the sparse evidence of treatment in the record.” (AR 21.) 12 Addressing the ALJ’s second reason first, an examining physician’s opinion that is not supported 13 by the medical record as a whole may be properly discounted. See Batson v. Comm’r of the SSA, 14 359 F.3d 1190, 1195 (9th Cir. 2004) (noting an ALJ may reject any medical opinion that is 15 unsupported by the record as a whole or objective medical findings); Tonapetyan v. Halter, 242 16 F.3d 1144, 1149 (9th Cir. 2001) (noting that an ALJ may reject an examining physician’s opinion 17 “for lack of objective support”); Morgan v. Comm’r of the SSA, 169 F.3d 595, 603 (9th Cir. 18 1999) (an ALJ may reject an examining physician’s opinion as unreasonable given “other 19 evidence in the record”); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (inadequate 20 clinical findings provide clear and convincing reasons for ALJ to reject treating physician’s 21 opinion). 22 Here, the ALJ rejected Dr. Serra’s assessment of Plaintiff because she properly found it 23 was not supported by the medical evidence, particularly Plaintiff’s “sparse evidence of treatment” 24 and evidence of “mild symptoms and clinical signs.” (AR 21.) The record shows that Plaintiff 25 had normal physical examinations in February 2015 (AR 263–64, 266), September 2015 (AR 26
27 6 At the initial and reconsideration level, in June and September 2016 respectively, both State agency medical consultants found Plaintiff had severe impairments of degenerative disc disease, hypertension, and dysfunction of the 28 major joints, but determined there was insufficient evidence to evaluate the claim, and therefore did not make any 1 281–282), May 2017 (AR 309), and August 2017 (AR 300), with no tenderness (AR 281–82, 2 309), normal strength (AR 281–82), painless straight leg raising tests (AR 281-82), normal gait 3 (AR 300, 309), and full range of motion (AR 281–82, 309). Even where some tenderness and 4 reduced range of motion in Plaintiff’s neck and/or back were noted, those same records showed 5 painless straight leg raising tests (AR 272–73, 278), steady gait (AR 272–73, 278, 305), normal 6 deep tendon reflexes (272–73, 278), and normal strength (AR 305). In addition, as the ALJ 7 observed (AR 21), the medical record shows that Plaintiff received only limited and conservative 8 treatment, specifically anti-inflammatory and muscle relaxant medications and physical therapy 9 (AR 261, 270, 272, 278, 304, 313), with no referral to a pain management clinic or evidence that 10 injections or surgery were warranted to treat her conditions, see, e.g., AR 277, 280, 289, 298, 11 303, 307, 310, 315, 319 (Plaintiff not under pain management), AR 48 (Plaintiff’s testimony that 12 she had not been referred for pain management or prescribed injections for her pain.).7 See 13 Tommasetti, 533 F.3d at 1040 (inconsistency with the evidence of record, lack of treatment, 14 conservative treatment, and refusal to follow proscribed treatment are clear and convincing 15 reasons for discrediting the opinion of a treating physician). 16 In view of the above, the Court finds that the ALJ identified ample medical evidence that 17 undermines Dr. Serra’s opinion that indicates that Plaintiff is not capable of medium work.8 This 18 is a clear and convincing reason for discounting Dr. Serra’s opinion. See Tommasetti, 533 F.3d at 19 1040; Batson, 359 F.3d at 1195; Johnson, 60 F.3d at 1432. As the Court may neither reweigh the 20 evidence nor substitute its judgment for that of the Commissioner, it will not disturb the ALJ’s 21 finding on this basis, even if, as Plaintiff points out (see Doc. 14 at 16), some of the above- 22 7 Plaintiff reported in March 2015 that the medications controlled her pain “well.” (AR 273.) “Impairments that can 23 be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see also Odle v. Heckler, 707 24 F.2d 439, 440 (9th Cir. 1983) (affirming denial of benefits and noting that claimant’s impairments were responsive to medication 25 8 In addition to being inconsistent with the medical evidence, the Court observes that there is inconsistency between the opinion set forth in Dr. Serra’s report and the medical source statement he completed. (Compare AR 326 26 (finding Plaintiff could stand or walk up to four hours in an eight-hour day, sit up to six hours per day, frequently crouch, never drive, not be exposed to unprotected heights or machinery, with no limitations to extremes of 27 temperature or working around chemicals ) with AR 327–31 (finding Plaintiff could sit for seven hours, stand for three hours, walk for two hours; occasionally crouch; occasionally be exposed to extreme cold, unprotective heights, 28 and moving mechanical parts; and frequently operate a motor vehicle and be exposed to extreme heat).) See 1 described evidence could be construed more favorably to her. See Thomas, 278 F.3d at 954 2 (Where the evidence is susceptible to more than one rational interpretation, it is the 3 Commissioner’s conclusion that must be upheld.); Batson, 359 F.3d at 1196 (“When evidence 4 reasonably supports either confirming or reversing the ALJ’s decision, we may not substitute our 5 judgment for that of the ALJ.”). 6 Turning now to the ALJ’s first reason for rejecting Dr. Serra’s opinion, the ALJ’s 7 conclusion that an opinion is largely based on a claimant’s discredited subjective reports is 8 another clear and convincing reason to reject it. Tommasetti, 533 F.3d at 1041; Tonapetyan, 242 9 F.3d at 1149; Morgan, 169 F.3d at 602. Dr. Serra’s report recited Plaintiff’s subjective 10 complaints of pain “for several years” in her lumbar region and knees, and then incorporated 11 those complaints in his report (see AR 326 (sanding and walking capacity due to “chronic knee 12 and low back pain”)) and in the medical source statement he completed (see AR 327 (citing “low 13 back pain” as one of the two “medical or clinical findings . . . which support[s] [his] 14 assessment.”).) Dr. Serra also noted Plaintiff’s statements that her back pain has prevented her 15 from working, and that sitting and standing caused her discomfort. (AR 323.) The ALJ found 16 such statements inconsistent with the medical record, including the treatment records described 17 above and her activities of daily living, which Plaintiff does not challenge.9 (AR 19–21.) 18 Plaintiff asserts, based on Ryan v. Commissioner, 528 F.3d at 1199–1200, that the ALJ 19 erred in rejecting Dr. Serra’s opinion by questioning Plaintiff’s credibility and that the ALJ 20 “fail[ed] to cite any specific basis for his speculative contention.” (Doc. 14 at 16.) In Ryan, the 21 Ninth Circuit stated that “an ALJ does not provide clear and convincing reasons for rejecting an 22 examining physician’s opinion by questioning the credibility of the [claimant’s] complaints 23 where the doctor does not discredit those complaints and supports his ultimate opinion with his 24 own observations.” 528 F.3d at 1199–1200. However, the Ninth Circuit went on to state that 25 9 The ALJ discounted Plaintiff’s credibility in this case, relying in part on the objective medical evidence to find that 26 while Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” her statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . 27 . . .” (AR 16–17.) Plaintiff has not adequately challenged the sufficiency of the evidence supporting the ALJ’s adverse credibility finding in this case or the adequacy of the ALJ’s reasons given to explain this finding. The Court 28 therefore considers the ALJ’s unchallenged credibility finding to be binding. See, e.g., Stanley v. Astrue, No. 1:09– 1 there was “nothing in the record to suggest” the examining physician in that case relied on the 2 claimant’s own “description of her symptoms . . . more heavily than his own clinical 3 observations.” Id. at 1200. Contrary to Plaintiff’s assertion, the same is not true with respect to 4 Dr. Serra’s opinion: Plaintiff’s complaints of knee and low back pain formed the basis, in part, 5 for his opinions, both in his report and the medical source statement (see AR 326, 327). See, e.g., 6 Perez v. Colvin, No. 1:12-cv-2082 BAM, 2014 WL 1247416, at *9 (E.D. Cal. Mar. 25, 2014) 7 (distinguishing Ryan and upholding the ALJ’s decision, observing that “the evaluation forms [the 8 physicians] completed strongly suggests they did in fact rely heavily on Plaintiff’s self-reporting, 9 or at least they did so to a greater extent than they did on any objective clinical findings, further 10 suggesting that their mental examinations were based entirely on Plaintiff’s self-reports as the 11 ALJ noted.”). Accordingly, the Court finds that ALJ’s assignment of “little weight” to Dr. 12 Serra’s opinion because it was to a large extent based on Plaintiff’s discredited subjective reports 13 is yet another clear and convincing reason and thus does not warrant a finding of error.10 See 14 Tommasetti, 533 F.3d at 1041; Morgan, 169 F.3d at 602. 15 V. CONCLUSION AND ORDER 16 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 17 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 18 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 19 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff. 20 IT IS SO ORDERED. 21
Sheila K. Oberto 22 Dated: January 20, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 23
24 25 26 27 10 Even if the ALJ erred in finding that Dr. Serra’s opinion was based on Plaintiff’s subjective complaints of pain, 28 such error is harmless in view of the ALJ’s other permissible reason for discounting the opinion, i.e., that it is