(SS) Ray v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: March 7, 2024
• Docket: 2:22-cv-02187
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CAROL A. RAY, No. 2:22-CV-2187-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 3 and 7, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c); see also ECF No. 9 (minute order reassigning case to Magistrate Judge). Pending 23 before the Court are the parties’ briefs on the merits, ECF Nos. 14 and 17. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more 27 than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th 28 Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support a 1 conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including 2 both the evidence that supports and detracts from the Commissioner’s conclusion, must be 3 considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. 4 Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 6 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or 7 if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is 8 conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the 9 evidence is susceptible to more than one rational interpretation, one of which supports the 10 Commissioner’s decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 11 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in 12 weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 13 For the reasons discussed below, the Commissioner’s final decision is affirmed. 14 15 I. THE DISABILITY EVALUATION PROCESS 16 To achieve uniformity of decisions, the Commissioner employs a five-step 17 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 18 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

19 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 20 not disabled and the claim is denied;

21 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 22 impairment; if not, the claimant is presumed not disabled and the claim is denied; 23 Step 3 If the claimant has one or more severe impairments, 24 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 25 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 26

27 / / /

28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied;

4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental impairment 13 of such severity the claimant is unable to engage in previous work and cannot, considering the 14 claimant’s age, education, and work experience, engage in any other kind of substantial gainful 15 work which exists in the national economy. See Quang Van Han v. Bower, 882 F.2d 1453, 1456 16 (9th Cir. 1989). The claimant has the initial burden of proving the existence of a disability. See 17 Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 1335, 23 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock v. 24 Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff filed for social security benefits on February 21, 2013, alleging disability 3 starting on October 28, 2009. See 18.1 After a hearing, Plaintiff’s 2013 application was denied 4 in a decision issued on April 11, 2014. See id. at 18-27. The Appeals Council denied review on 5 October 20, 2015, see CAR 1-6, and Plaintiff filed an action for judicial review. Plaintiff’s 6 appeal was granted, and the case was remanded to the Commissioner for further proceedings on 7 the 2013 application. See id. at 619. 8 Pursuant to the remand order, the Appeals Council directed an ALJ to further 9 evaluate Plaintiff’s mental impairments, give further consideration to Plaintiff’s residual 10 functional capacity, and obtain vocational expert testimony to clarify the effect of Plaintiff’s 11 limitations on the occupational base. See id. Following a second hearing held on March 27, 12 2017, Plaintiff was again found not disabled. See id. at 619-630. The Appeals Council again 13 denied review, see CAR 598-604, and Plaintiff filed a second action for judicial review of the 14 2013 application. Once again, Plaintiff case was remanded to the Commissioner for further 15 proceedings. See CAR 929. 16 The Appeals Council directed that a third administrative hearing be held, which 17 occurred on May 5, 2021. See id. at 855. In a June 9, 2020, decision by Administrative Law 18 Judge (ALJ) Matilda Surh, Plaintiff was found not disabled. See id. at 855-867. The ALJ 19 determined as follows:

20 1. Through the date last insured, December 31, 2012, the claimant had the following severe impairment(s): degenerative disc disease 21 of the cervical and thoracic spine (20 CFR 404.1520(c));

22 2. Through the date last insured, the claimant did not have an impairment or combination of impairments that meets or medically 23 equals an impairment listed in the regulations;

24 3. Through the date last insured, the claimant had the following residual functional capacity: to perform light work as defined in 20 CFR 25 404.1567(b) except the claimant can lift 20 pounds occasionally and ten pounds frequently, and stand, walk or sit for six hours each in an eight-hour 26 workday; the claimant can occasionally climb ramps, stairs, ladders, ropes 27 1 Citations are to the Certified Administrative Record (CAR) lodged on March 3, 28 2023, ECF No. 12. 1 or scaffolds; the claimant can occasionally balance, stoop, kneel, crouch, and crawl; the claimant can frequently handle and finger bilaterally; the 2 claimant is limited to frequent rotation, flexion or extension of the neck;

3 4. Considering the claimant’s age, education, work experience, residual functional capacity, vocational expert testimony, and the 4 Medical-Vocational Guidelines, through the date last insured there were jobs that existed in significant numbers in the national 5 economy that the claimant could have performed.

6 See id. at 857-67. 7 After the Appeals Council declined review on October 1, 2022, this third appeal 8 concerning the 2013 application followed. 9 10 III. DISCUSSION 11 In her opening brief, Plaintiff argues: (1) the ALJ failed to properly evaluate the 12 opinions of Dr. Burt; and (2) the ALJ failed to articulate clear and convincing reasons for 13 rejecting Plaintiff’s subjective statements and testimony. 14 A. Evaluation of Dr. Burt’s Opinions 15 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 16 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not explicitly 17 rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ 18 also errs by failing to set forth sufficient reasons for crediting one medical opinion over another. 19 See id. 20 Under the regulations, only “licensed physicians and certain qualified specialists” 21 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 22 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on an 23 examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it rests 24 on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 25 (9th Cir. 2001). The opinions of non-examining professionals may also constitute substantial 26 evidence when the opinions are consistent with independent clinical findings or other evidence in 27 the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social workers are not 28 considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants also are not 2 acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). Opinions 3 from “other sources” such as nurse practitioners, physician assistants, and social workers may be 4 discounted provided the ALJ provides reasons germane to each source for doing so. See Popa v. 5 Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 F.3d 648, 655 (9th 6 Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance when opinions from 7 “other sources” may be considered acceptable medical opinions). 8 For all claims, as here, filed before March 27, 2017, ALJs are bound by 9 regulations and case law requiring ALJs to give physicians’ opinions appropriate and potentially 10 differing weights, depending on the relationship between the physician and the claimant. See 20 11 C.F.R §§ 404.1527(c) & 416.920(c); Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014). 12 This rule is known as the treating physician rule. The weight given to medical opinions depends 13 in part on whether they are proffered by treating, examining, or non-examining professionals. See 14 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the 15 opinion of a treating professional, who has a greater opportunity to know and observe the patient 16 as an individual, than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 17 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least 18 weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 19 502, 506 & n.4 (9th Cir. 1990). 20 In addition to considering its source, to evaluate whether the Commissioner 21 properly rejected a medical opinion in a claim filed before March 27, 2017, the Court considers 22 whether: (1) contradictory opinions are in the record; and (2) clinical findings support the 23 opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining 24 medical professional only for “clear and convincing” reasons supported by substantial evidence in 25 the record. See Lester, 81 F.3d at 831. While a treating professional’s opinion generally is 26 accorded superior weight, if it is contradicted by an examining professional’s opinion which is 27 supported by different independent clinical findings, the Commissioner may resolve the conflict. 28 See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 1 A contradicted opinion of a treating or examining professional may be rejected 2 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 3 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 4 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 5 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 6 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 7 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 8 without other evidence, is insufficient to reject the opinion of a treating or examining 9 professional. See id. at 831. In any event, the Commissioner need not give weight to any 10 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 11 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 12 also Magallanes, 881 F.2d at 751. 13 At Step 4, the ALJ considered medical opinions from the following sources: (1) 14 State agency psychological consultants; (2) Dr. Christopher Amsden, who provided Plaintiff with 15 pain management; (3) Dr. Aruna Rao, who also provided Plaintiff with pain management; (4) Dr. 16 Andrew Burt, an orthopedic surgeon who examined Plaintiff; (5) Dr. E. Gilpeer, a State agency 17 medical consultant; (6) Dr. P. Ligot, a State agency medical consultant; and (7) Dr. Robert 18 Thompson, a medical expert. See CAR 859-65. 19 Plaintiff only takes issue with ALJ’s evaluation of Dr. Burt’s opinion. See ECF 20 No. 14, pgs. 8-12. In evaluating Dr. Burt’s opinion, the ALJ stated: 21 Dr. Burt, a qualified medical examiner, opined the claimant’s “cervical spine currently restricts [her] to light work,” which “contemplates the 22 ability to work in a standing and walking position with minimum demands for physical effort” (Ex. 3F). Dr. Burt further opined the claimant is 23 precluded from overhead work (Id.). Dr. Burt did not define “light” and “minimum” (Id.). Therefore, this opinion failed to provide specific work- 24 related limitations (Id.). While workers’ compensation disability ratings are not dispositive for this agency’s finding on disability, I have attempted 25 to translate Dr. Burt’s opinion into corresponding language within the Social Security Administration’s definition of light work. Here, Dr. Burt 26 defined “light” as having a “minimum demands of physical effort” (Ex. 3F), which suggests he precluded the claimant from such efforts as lifting 27 up to 50 pounds occasionally and limited the claimant to light exertion as defined at 20 CFR 404.1567. For the same reasons discussed regarding the 28 opinions of Drs. Gilpeer and Ligot, I give great weight to Dr. Burt’s 1 opinion regarding the claimant’s exertional abilities to the extent it is consistent with the Agency’s definition of light work. Further, Dr. Burt’s 2 opinion regarding the claimant’s ability to lift overhead is overly restrictive given the claimant’s positive response to epidural steroid 3 injections with reported improved functioning and clinical examinations documenting forward flexion to 35 degrees, and cervical extension to 25- 4 to-40 degrees. For these reasons, I give partial weight to Dr. Burt’s opinion. 5 CAR 863-64. 6 7 First, Plaintiff argues that the ALJ erred in equating “light” and “minimum” to an 8 ability to light exertion as that term is defined in the social security regulations. See ECF No. 14, 9 pgs. 10-11. Second, Plaintiff argues that the ALJ’s determination that Dr. Burt essentially found 10 Plaintiff can perform light work fails to take into account thoracic spine limitations, which were 11 not considered by Dr. Burt, whose opinion was limited to Plaintiff’s cervical spine impairment. 12 See id. at 11. Plaintiff does not appear to take issue with the ALJ’s rejection of Dr. Burt’s 13 opinion concerning the ability to lift overhead. 14 Dr. Burt’s November 27, 2012, opinion following examination is contained with 15 the record at Exhibit 3F. See CAR 216-24. Dr. Burt performed an orthopedic examination. See 16 id. at 219. Dr. Burt first noted that Plaintiff did not use any supportive device and was careful in 17 changing position so as to guard her spine. See id. Examination of the neck revealed “some 18 increased lordosis.” Id. Range of motion was limited at the cervical spine. See id. Flexion, 19 however, was normal with some pain. See id. Extension was limited to 45 degrees compared to 20 normal at 60 degrees. See id. Lateral bending is limited to 30 degrees left and 40 degrees right 21 compared to normal at 45 degrees bilaterally. See id. Rotation was limited to 45 degrees left and 22 50 degrees right compared to normal of 80 degrees. See id. Plaintiff was observed to move 23 stiffly. See id. Deep tendon reflex was hypoactive but described as “normal.” Id. Grip strength 24 was essentially normal. See id. at 220. 25 Dr. Burt diagnosed chronic degenerative neck pain with bilateral cervical 26 radiculopathy, cervical spine stenosis, and multilevel degenerative cervical disc and facet disease. 27 See id. at 221. In the context of a workers’ compensation review, Dr. Burt concluded that 28 Plaintiff was restricted to “light work.” Id. at 222. Dr. Burt specially stated that this conclusion 1 “complicates the ability to work in a standing and walking position with minimum demands for 2 physical effort.” Id. Dr. Burt further opined that “[o]verhead work will be precluded.” Id. 3 The Court agrees with Plaintiff that the ALJ must consider the definitional 4 distinction between the Social Security scheme and California worker’s compensation scheme in 5 evaluating the opinions of examining professionals. See Desrosiers v. Secretary of Health and 6 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “Under the California workers’ compensation 7 system, a claimant . . . may be capable of performing ‘light,’ ‘semi-sedentary,’ or ‘sedentary’ 8 work. See id. at 576 (citing Schedule for Rating Permanent Disabilities, Guidelines for Work 9 Capacity, 1–A (Labor Code of the State of California)). In Desrosiers, the court found that the 10 ALJ did not adequately consider the distinction between the Social Security disability scheme and 11 the California workers’ compensation claim scheme, and as a result, incorrectly held that the 12 doctors’ reports contradicted the plaintiff’s disability claim. See id. 13 Plaintiff contends that, as in Desrosiers, the ALJ in this case failed to consider the 14 distinction. See ECF No. 14, pgs. 10-11. The differences between disability claims and workers’ 15 compensation claims, however, is not the only reason cited by the ALJ for discounting Dr. Burt’s 16 opinions. Plaintiff does not contend that Dr. Burt’s opinions contradict her claim, or that the ALJ 17 incorrectly concluded that Dr. Burt’s report contradicted her claim. Furthermore, the ALJ’s 18 decision indicates she did note the distinction between the aforementioned schemes. See CAR 19 863 (“While workers’ compensation disability ratings are not dispositive for this agency’s finding 20 on disability, I have attempted to translate Dr. Burt’s opinion into corresponding language within 21 the Social Security Administration’s definition of light work.”). Therefore, the Court does not 22 find Plaintiff’s argument persuasive. 23 Plaintiff next states that the ALJ misinterpreted Dr. Burt’s use of the word 24 “minimum.” See ECF No. 14, pg. 10. Specifically, Plaintiff cites Merriam Webster’s definition of 25 “minimum” to contend that Dr. Burt’s report intended to limit Plaintiff to “sedentary” work, 26 rather than “light” work as defined in 20 C.F.R. § 404.1567, as the least amount of work per the 27 regulations is “sedentary.” Id. (noting that “[t]he exertional categories per [20 C.F.R. § 404.1567] 28 range from sedentary, light, medium and heavy”). Dr. Burt’s report states “[d]isability residual at 1 the cervical spine currently restricts to light work. This complicates the ability to work in a 2 standing and walking position with minimum demands for physical effort.” CAR 222 (emphasis 3 added). As previously mentioned, the California workers’ compensation system demonstrates the 4 type of work that an employee is capable of performing, with “light” work denoting the employee 5 is able to walk for most of the day and entails a minimum of demands for physical effort. 6 Schedule for Rating Permanent Disabilities, Guidelines for Work Capacity, 1-A (Labor Code of 7 the State of California). 20 C.F.R. § 404.1567 defines sedentary work as “one which involves 8 sitting, a certain amount of walking and standing is often necessary in carrying out job duties” 9 while light work “requires a good deal of walking or standing, or when it involves sitting most of 10 the time with some pushing and pulling of arm or leg controls.” In light of the similarities 11 between Dr. Burt’s findings and the description of light work by the Social Security 12 Administration, the Court finds the ALJ’s interpretation of Dr. Burt’s report is reasonable. 13 Dr. Burt’s report states, “[f]or all practical purposes, her cervical spine disability 14 has resulted in inability2 to compete in the labor market beginning in about 2008.” CAR 223. As 15 previously stated, the Court considers whether: (1) contradictory opinions are in the record; and 16 (2) clinical findings support the opinions. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995). 17 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 18 by an examining professional’s opinion which is supported by different independent clinical 19 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 1041 20 (9th Cir. 1995). 21 First, the Court examines whether contradictory opinions are in the record. Id. 22 Here, Drs. Gilpeer and Ligot both opined, in contradiction to Dr. Burt, that Plaintiff can “lift, 23 carry, push and pull 20 pounds occasionally and 10 pounds frequently, stand and/or walk six 24 hours during an eight-hour workday, and sit for six hours during an eight-hour [workday].” CAR 25 862. This opined capability is consistent with “light” work as defined in 20 C.F.R. § 404.1567, 26 and thus, would likely contradict Dr. Burt’s opinion. 27 2 The report includes a correction, presumably by Dr. Burt, so that it reads 28 “inability,” as opposed to “ability.” CAR 223. 1 The ALJ summarized the opinions provided by Drs. Gilpeer and Ligot as follows: 2 As discussed, while there is evidence of moderate-to-severe right 3 foraminal stenosis at C5-C6 and mild-to-moderate foraminal stenosis at other levels, there is no evidence of muscle atrophy or significantly 4 reduced grip strength on clinical examination (Exs. 1F and 3F). Further, the claimant’s chronic pain and radicular symptoms were effectively 5 managed for prolonged periods with epidural steroid injections; this finding is consistent with the claimant’s subjective reports of prolonged 6 pain relief and improved function with such treatment (Exs. 5F, 12F and 14F). The claimant received epidural steroid injections about two times 7 per year during the relevant period, which further indicates this treatment was effective in managing her symptoms for prolonged periods (Id.). 8 Moreover, she consistently endorsed tolerable pain levels with use of medications, primarily Norco and methadone, and denied significant 9 medication side effects (Id.). The claimant’s subjective reports of positive response to treatment are inconsistent with her allegations of disabling 10 pain symptoms (Id.). Finally, the claimant reported that treating medical providers had reviewed her MRI scan dated June 2012 and concluded the 11 findings “have remained essentially unchanged since the earlier [scan] that she had back in the 1990s” (Ex. 3F). This statement indicates the 12 claimant’s allegedly disabling cervical impairment was present at approximately the same level of severity prior to her alleged onset date of 13 disability. The fact that her cervical impairment did not prevent her from working at the light exertional level at that time strongly suggests that it 14 would did not preclude light work during the relevant adjudicatory period (Exs. 10D, 11D, 11E, 14E, 17E and 3F; Hearing Testimony, May 2020). 15 In sum, considering the image studies of record, the claimant’s clinical examination findings and her positive response to treatment, I give great 16 [weight] to the opinions of Drs. Gilpeer and Ligot as they pertain to the claimant’s exertional and postural abilities. However, considering the 17 claimant’s complaints of worsening cervical symptoms in the setting of constant cervical flexion, extension or rotation in conjunction clinical 18 examinations documenting cervical stiffness and with her positive response to epidural steroid injections, I find she is further limited to 19 frequent rotation, flexion or extension of the neck (Exs. 3F, 5F, 12F, 14F and 15F). Finally, considering the claimant’s reports of some reduced grip 20 strength, but positive response to epidural steroid injections and lack of significantly reduced strength, including grip, I find she can frequently 21 handle and finger (Id.). In sum, I give partial weight to their opinion.

22 CAR 862-63 (emphasis added). 23 Given this discussion, the Court finds the ALJ provided a detailed, thorough 24 summary of the facts and conflicting clinical evidence through her aforementioned assessment of 25 the opinion of Drs. Ligot and Gilpeer. See id. She then stated her interpretation of the evidence 26 before making a finding, conformed to valid regulations, and resolved the conflict, accordingly. 27 42 U.S.C.A. § 405(g); see Magallanes, 881 F.2d at 751-55. The Court finds the ALJ’s finding is 28 based on proper legal analysis supported by substantial evidence. 1 B. Evaluation of Plaintiff’s Subjective Statements and Testimony 2 The Commissioner determines the weight to be given to a claimant’s own 3 statements and testimony, and the court defers to the Commissioner’s discretion if the 4 Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94 5 F.3d 520, 522 (9th Cir. 1996). An explicit finding must be supported by specific, cogent reasons. 6 See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. 7 See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify 8 what testimony is not afforded weight and what evidence undermines the testimony. See id. 9 Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner’s 10 reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see also 11 Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 12 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 13 If there is objective medical evidence of an underlying impairment, the 14 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 15 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 16 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

17 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 18 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the 19 medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 20 be a reasonable inference, not a medically proven phenomenon.

21 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 22 23 The Commissioner may, however, consider the nature of the symptoms alleged, 24 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 947 25 F.2d at 345-47. In weighing a claimant’s statements and testimony, the Commissioner may also 26 consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other 27 inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to 28 follow a prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and 1 (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See 2 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 3 claimant cooperated during physical examinations or provided conflicting statements concerning 4 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 5 claimant testifies as to symptoms greater than would normally be produced by a given 6 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 7 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 8 At Step 4, the ALJ considered Plaintiff’s subjective statements and testimony. 9 CAR 861-62. The ALJ summarized Plaintiff’s testimony as follows: 10 The claimant alleged disability secondary to degenerative disc disease of the thoracic and cervical spine with associated disc bulging, stenosis and 11 bone spurs (Exs. 2E, 6E and 8E; Hearing Testimony, May 2020). As a result of chronic neck pain with radicular symptoms in her upper 12 extremities, she alleged difficulty doing certain activities, such as fixing her hair, putting dishes away, sweeping and dusting (Id.). During a 13 qualified medical examination, the claimant alleged constant neck pain, which worsened with flexion, extension and rotation (Ex. 3F). She also 14 alleged radiating pain to the mid-back between her shoulder blades and numbness and tingling in both hands (Id.). She reported difficulty handling 15 small objects and limited tolerance to grasping (Id.). She corroborated these allegations at the hearing (Hearing Testimony, May 2020). 16 CAR 861. 17 18 In evaluating Plaintiff’s statements and testimony, the ALJ stated: 19 The claimant suffered a cumulative work-related injury to her neck in 1994, which was treated with epidural steroid injections, physical therapy 20 and medication management, including Lidocaine patches, Norco and methadone (Ex. 3F/2-3). These treatment modalities helped control her 21 pain and improve her quality of life (Ex. 3F/3). She subsequently returned to work at substantial gainful activity levels (Ex. 11D). In June 2012, a 22 magnetic resonance imaging (MRI) scan of the claimant’s cervical spine showed mild hypertrophic changes of the facets at C3-C4 with no central 23 spinal canal or foraminal stenosis, mild-to-moderate hypertrophic changes of the facets at C4-C5 with mild left-sided foraminal stenosis, moderate 24 hypertrophic changes of the facets at C5-C6 with moderate-to-severe right and mild-to-moderate left foraminal stenosis, mild-to-moderate 25 hypertrophic changes of the facets at C6-C7 with mild-to-moderate left- sided foraminal stenosis (Ex. 1F). While these images are partially 26 consistent with her allegations of chronic cervical symptoms, the claimant reported these MRI findings had remained essentially unchanged since the 27 1990s, which suggests her cervical impairment had been stable since that time and had not preclude full-time work activity (Exs. 11D and 3F/4). In 28 September 2012, an x-ray of the claimant’s thoracolumbar spine showed 1 mild degenerative multilevel disc findings and spondylosis (Ex. 2F and 4F/43). These mild findings are inconsistent with disabling thoracic 2 symptoms.

3 During the relevant period, the claimant’s residual cervical symptoms were responsive to treatment, including epidural steroid injections and 4 medication management. Specifically, from March 2007 through October 2013, the claimant received pain management from Christopher Amsden, 5 M.D. and Aruna Rao, M.D. at Modesto Pain Medicine (Exs. 5F, 12F, 14F and 15F). The claimant rated her pain levels as 3-to-7 on a scale from 1- 6 to-10 (Id.). The claimant’s clinical examinations documented centralized cervical tenderness, spasms in cervical paraspinal muscles, stiffness with 7 motion of the neck, dysesthesias to light touch in the C5, C6 and C7 dermatomes, cervical forward flexion to 35 degrees, cervical extension to 8 25-to-40 degrees, and limited cervical side bending and rotation secondary to pain and discomfort (Id.). With treatment, including epidural steroid 9 injections and medication management, the claimant reported improved pain relief and function. For example, the claimant stated gabapentin 10 reduced her neve pain from 6 to 3 on a scale from 1-to-10. (Id.). She reported methadone made her pain “tolerable” allowing her to “handling 11 her pain better” (Id.). She further noted carisoprodol helped “significantly for muscle pain and spasms” and relaxed her muscles (Id.). The claimant 12 experienced good symptom relief with epidural steroid injections, which she received in December 2008, March 2009, July 2009, March 2010, 13 August 2010 and April 2012 (Id.). These injections provided extended pain relief, improved her grip strength and increased her mobility (Id.). 14 The claimant’s pain level was consistently reported as tolerable (Id.). She experienced some side effects from her medications, specifically reflux; 15 however, this side effect resolved with use of proton pump inhibitors (Id.). In September 2012, the claimant reported feeling good (Ex. 4F). Medical 16 records dated after the claimant’s alleged onset date documented similar findings and treatment modalities (Ex. 18F). Notably, in December 2019, 17 nerve conduction and electromyography studies showed no evidence of cervical radiculopathy, which suggests improvement in her alleged 18 radicular symptoms (Ex. 21F). In sum, during the relevant adjudicatory period, the claimant’s residual cervical symptoms were effectively 19 managed with biannual epidural steroid injections and regular medication management. 20 In November 2012, Andrew Burt, M.D., an orthopedic surgeon and 21 qualified medical examiner, examined the claimant (Ex. 3F). Despite the claimant’s allegations of worsening symptoms, she noted that treating 22 medical providers had reviewed her recent MRI scan and concluded the findings “have remained essentially unchanged since the earlier [scan] that 23 she had back in the 1990s,” which suggests the claimant’s cervical symptoms would not have precluded work during the relevant period (Id.). 24 Upon examination, the claimant did not use any supportive device, but changed positions carefully (Id.). Inspection of her neck revealed some 25 increased lordosis, increased dorsal kyphosis, some prominence at the dorsal spine at about C7, and tenderness to palpation in the midline at the 26 base of the neck and on either side of the vertebral column (Id.). She had limited cervical range of motion, including limited extension to 45 27 degrees, lateral bending to 30 degrees, rotation to 45 degrees on the left, and rotation to 50 degrees on the right (Id.). There was spasm in the 28 cervical paraspinous muscles with extension and lateral bending (Id.). 1 There was some patchy numbness to sharp stimulation with a pinwheel on both sides (Id.). Despite the claimant’s allegations of chronic weakness, 2 there was no evidence of significant muscle atrophy or grip strength differential, which is inconsistent with the claimant’s allegations of 3 disabling weakness (Id.). Dr. Burt diagnosed the claimant with chronic discogenic neck pain with bilateral cervical radiculopathy, central and 4 neuroforaminal cervical spinal stenosis, and multilevel degenerative cervical disc and facet disease (Id.). 5 CAR 861-62. 6 7 Plaintiff argues the ALJ erred in the following ways: (1) the ALJ’s citation to 8 improvement with treatment lacks context; (2) the ALJ’s reliance on inconsistency with the 9 objective clinical findings is misplaced and, even if not, would be insufficient alone to discount 10 Plaintiff’s subjective statement and testimony. See ECF No. 14, pgs. 12-19. 11 1. Improvement with Treatment 12 Plaintiff contends that the ALJ relied too heavily on evidence she was “doing 13 well” because this measure does not necessarily relate to work-related functional capacity. See 14 id. at 13-14 (citing Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001), and Ryan v. 15 Commissioner of Social Security, 528 F.3d 1194, 1200-01 (9th Cir. 2008)). In support of this 16 argument, Plaintiff refers to various treatment notes between November 2011 and December 2012 17 documenting Plaintiff’s complaints of pain symptoms. See ECF No. 14, pgs. 14-16. Though 18 Plaintiff concedes that her symptoms improved with injections and medications, she nonetheless 19 remained, as exhibited by the referenced objective records, disabled by pain. See id. at 16-19. 20 While the Court agrees with Plaintiff’s overall statement that improvement of 21 symptoms with medication and treatment does not necessarily equate to an ability to engage in 22 work-related activities, here, both Drs. Ligot and Gilpeer opined, based on all the medical 23 evidence including evidence of Plaintiff’s response to medical and treatment, that Plaintiff can 24 perform the demands of light work with the restrictions imposed by the ALJ. 25 2. Inconsistency with Objective Clinical Findings 26 Plaintiff argues that the ALJ’s determination that Plaintiff’s subjective testimony 27 and statements were inconsistent with the MRI results is unsupported. See ECF No. 14, pg. 17- 28 18. Presuming the Court agrees that the ALJ erred in relying on improvement with medication 1 | and treatment, Plaintiff also contends that, as the only valid reason remaining, the ALJ 2 || impermissibly relied on inconsistency with the MRI results. See id. at 18-19. Plaintiffs 3 || argument is not dispositive because, as discussed above, the Court finds that the ALJ properly 4 || cited improvement. Thus, the ALJ did not err by relying solely on inconsistency with MRI 5 || results regardless of whether the ALJ assessed those results correctly. 6 7 IV. CONCLUSION 8 Based on the foregoing, the Court concludes that the Commissioner’s final 9 || decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 10 | ORDERED as follows: 11 1. Plaintiff's motion for summary judgment, ECF No. 14, is DENIED. 12 2. Defendant’s motion for summary judgment, ECF No. 17, is GRANTED. 13 3. The Commissioner’s final decision is AFFIRMED. 14 4. The Clerk of the Court is directed to enter judgment and close this file. 15 16 | Dated: March 7, 2024 Ss..c0_, M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 16