(SS) Tuupoina v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: January 6, 2020
• Docket: 1:18-cv-01320
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID TUUPOINA, No. 1:18-cv-01320-GSA 12 Plaintiff, 13 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF 14 ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY Security, AND AGAINST PLAINTIFF 15

16 Defendant.

18 I. Introduction 19 Plaintiff David Tuupoina (“Plaintiff”) seeks judicial review of the final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 disability insurance benefits pursuant to Title II and supplemental security income pursuant to 22 Title XVI of the Social Security Act. The matter is currently before the Court on the parties’ 23 briefs which were submitted without oral argument to the Honorable Gary S. Austin, United 24 States Magistrate Judge.1 See Docs. 19 and 26. Having reviewed the record as a whole, the 25 Court finds that the ALJ’s decision is supported by substantial evidence and applicable law. 26 Accordingly, Plaintiff’s appeal is denied. 27

28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs.8 and 10. 1 II. Procedural Background 2 On December 22, 2009, Plaintiff filed applications for disability insurance benefits and 3 supplemental security income alleging disability beginning October 1, 2009. AR 126. Following 4 initial review, reconsideration and an agency hearing, the Commissioner denied the applications 5 on October 11, 2012. AR 126. The Appeals Council denied review on November 21, 2013. AR 6 126. 7 On January 27, 2014, Plaintiff again filed applications for disability insurance benefits2 8 and supplemental security income alleging disability beginning October 1, 2009. AR 33. The 9 Commissioner denied the application initially on July 15, 2014, and following reconsideration on 10 November 19, 2014. AR 33. 11 On December 22, 2014, Plaintiff filed a request for a hearing. AR 33. Administrative 12 Law Judge Nancy Stewart presided over an administrative hearing on September 26, 2016. AR 13 86-105. Plaintiff appeared and was represented by an attorney. AR 86. On December 8, 2016, 14 the ALJ denied Plaintiff’s application. AR 33-40. 15 The Appeals Council denied review on February 13, 2018. AR 7-13. On September 25, 16 2018, 2018, Plaintiff filed a complaint in this Court. Doc. 1. 17 III. Factual Background 18 A. Plaintiff’s Testimony 19 Plaintiff (born May 18, 1964) completed the twelfth grade. AR 90. He had previously 20 worked as a security bouncer at a nightclub, where he was paid “under the table.” AR 92-93. 21 During the day, Plaintiff was responsible for accepting liquor deliveries and moving stage and 22 dance floor equipment according to the night’s planned entertainment. AR 94-95. 23 Plaintiff was using marijuana to relieve his pain even though his doctor had declined to 24 give Plaintiff a medical marijuana card. AR 96-97. He was able to lift fifty pounds comfortably, 25 much less than he had to lift on his last job. AR 97. In the mornings he walked his daughters one 26 mile to school, then rested outside the office before walking home. AR 98. When he experienced 27 pain while standing, as when he did the dishes, Plaintiff took a break. AR 98. He was most

28 2 December 31, 2014, was the last date of Plaintiff’s eligibility for disability insurance coverage. AR 35. 1 comfortable sitting or lying on the floor. AR 99. When his pain was severe, Plaintiff smoked 2 marijuana and lay down. AR 100. 3 B. Medical Records 4 The administrative record includes limited medical records. At the administrative hearing 5 Plaintiff’s attorney confirmed that the record was complete and that Plaintiff had not seen his 6 primary care physician “in quite some time.” AR 89. 7 On December 28, 2013, Plaintiff was treated in the emergency department of Memorial 8 Hospital Los Banos (MHLB) for an itchy rash diagnosed as ringworm. AR 365. Emergency 9 room personnel also prescribed blood pressure medication because Plaintiff’s blood pressure was 10 high (199/110). AR 365-68. Plaintiff returned to MHLB on January 31, 2014, with a pruritic 11 erythematous rash. AR 372-78. 12 On June 23, 2014, Plaintiff was treated in the emergency department following a fall in 13 his bathtub. AR 381-83. Medical personnel diagnosed strain of the abductor muscles of the right 14 leg and right paralumbar muscles and prescribed valium and Norco. AR 382-83. On June 25, 15 2014, Anna Vaz, NP, treated Plaintiff for muscle spasm at Santa Clara Valley Medical Center. 16 AR 392. Ms. Vaz prescribed Flexeril. AR 392. 17 In the emergency department of Emanuel Medical Center on February 14, 2016, Brad 18 Ramsey, D.O., treated Plaintiff for acute lumbar radiculopathy. AR 401. Dr. Ramsey prescribed 19 Baclofen and Naproxen and directed Plaintiff to follow up with his primary care physician. AR 20 401. 21 On February 26, 2015, Plaintiff was treated for rectal bleeding in the gastroenterology 22 department of Santa Clara Valley Medical Center. AR 403-08. In the course of a colonoscopy on 23 June 3, 2015, Nimeesh Shah, M.D., removed three polyps from Plaintiff’s colon. AR 409-10. In 24 July 2015, doctors reported that the polyps were invasive carcinoma but that there was no 25 evidence of metastases. AR 414. 26 In July 2016, Peter Park, M.D., diagnosed a ganglion cyst in Plaintiff’s right wrist and 27 prescribed Naproxen. AR 426. 28 /// 1 IV. Standard of Review 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 5 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 6 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 7 within the record that could lead a reasonable mind to accept a conclusion regarding disability 8 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 9 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 10 omitted). When performing this analysis, the court must “consider the entire record as a whole 11 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 12 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 13 omitted). 14 If the evidence reasonably could support two conclusions, the court “may not substitute its 15 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 16 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 17 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 18 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 19 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 20 V. The Disability Standard 21 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 22 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 23 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 24 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 25 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 26 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 27 him, or whether he would be hired if he applied for work. 28 42 U.S.C. §1382c(a)(3)(B). 1 To achieve uniformity in the decision-making process, the Commissioner has established 2 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 3 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 4 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 5 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 6 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 7 medically determinable “severe impairments,” (3) whether these impairments meet or are 8 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 9 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 10 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 11 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 12 In addition, when an applicant has one or more previous denials of applications for 13 disability benefits, as Plaintiff does in this case, he or she must overcome a presumption of 14 nondisability. The principles of res judicata apply to administrative decisions, although the 15 doctrine is less rigidly applied to administrative proceedings than in court. Chavez v. Bowen, 844 16 F.2d 691, 693 (9th Cir. 1988); Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988). 17 Social Security Acquiescence Ruling (“SSR”) 97–4(9), adopting Chavez, applies to cases 18 involving a subsequent disability claim with an unadjudicated period arising under the same title 19 of the Social Security Act as a prior claim in which there has been a final administrative decision 20 that the claimant is not disabled. A previous final determination of nondisability creates a 21 presumption of continuing nondisability in the unadjudicated period. Lester v. Chater, 81 F.3d 22 821, 827 (9th Cir. 1995). The presumption may be overcome by a showing of changed 23 circumstances, such as new and material changes to the claimant's RFC, age, education, or work 24 experience. Id. at 827–28; Chavez, 844 F.2d at 693. 25 VI. Summary of the ALJ’s Decision 26 Acknowledging Plaintiff’s previous applications for disability insurance benefits and 27 supplemental security income, the ALJ found that the circumstances had changed since Plaintiff’s 28 prior application. AR 33. Accordingly, she concluded that the presumption of continuing 1 disability did not apply to the 2014 application, but that the October 11, 2012 decision was res 2 judicata through that date. AR 33. 3 The Administrative Law Judge found that Plaintiff had not engaged in substantial gainful 4 activity since the alleged onset date of October 1, 2009. AR 35. His severe impairments 5 included: disorder of the spine with radiculopathy; disorder of the right knee; and obesity. AR 6 36. None of the severe impairments met or medically equaled one of the listed impairments in 20 7 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 8 416.920(d), 416.925 and 416.926). AR 36. 9 The ALJ concluded that Plaintiff had the residual functional capacity to perform light 10 work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could lift, carry push 11 and pull 25 pounds occasionally and 10 pounds frequently, and could stand and walk six hours in 12 an eight-hour workday with the ability to rest at the end of each hour for about one minute. AR 13 36. He needed to rest for fifteen minutes every two hours falling within normal breaks and lunch 14 period. AR 36. Plaintiff could sit without limitation. AR 36. Plaintiff was unable to climb 15 ladders, ropes or scaffolds. AR 36. He could perform all other postural activities occasionally. 16 AR 36. 17 Plaintiff was unable to perform his past relevant work. AR 39. However, considering 18 Plaintiff’s age, education, work experience and residual functional capacity jobs that he could 19 perform existed in significant numbers in the national economy. AR 39. Accordingly, the ALJ 20 found that Plaintiff was not disabled at any time from October 1, 2009, the alleged onset date, 21 through December 8, 2016, the date of the decision. AR 40. 22 VII. Reliability of Plaintiff’s Testimony 23 Plaintiff contends that the ALJ failed to provide clear and convincing reasons for 24 concluding that Plaintiff’s allegations of his knee and back pain were not fully credible. The 25 Commissioner contends that because of Plaintiff’s lack of treatment and minimal objective 26 findings, the ALJ properly determined that Plaintiff’s subjective testimony was not supported by 27 the objective medical evidence. 28 /// 1 An ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v. 4 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 5 To determine whether the ALJ’s findings are supported by sufficient evidence a court 6 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 7 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 8 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown- 9 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized 10 determinations like a claimant’s entitlement to disability benefits, Congress places a premium 11 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the 12 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting 13 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. 14 Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts 15 should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, 16 and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 17 F.3d at 1098). 18 A claimant’s statements of pain or other symptoms are not conclusive evidence of a 19 physical or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 20 “An ALJ cannot be required to believe every allegation of [disability], or else disability benefits 21 would be available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. 22 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 23 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 24 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 25 subjective symptom evaluation is not “an examination of an individual’s character” but an 26 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 27 16-3p at 1-2. 28 /// 1 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 2 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 3 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the 4 claimant must produce objective medical evidence of an impairment that could reasonably be 5 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; 6 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that 7 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the 8 alleged symptoms.” AR 37. The ALJ did not find Plaintiff to be malingering. 9 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ 10 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent 11 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 12 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by 13 symptoms to a greater or lesser extent than other individuals with the same medical impairments, 14 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In 15 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical 16 evidence; the claimant’s representations of the intensity, persistence and limiting effects of his 17 symptoms; statements and other information from medical providers and other third parties; and, 18 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 19 “The determination or decision must contain specific reasons for the weight given to the 20 individual’s symptoms, be consistent with and supported by the evidence, and be clearly 21 articulated so the individual and any subsequent reviewer can assess how the adjudicator 22 evaluated the individual’s symptoms.” SSR 16-3p at *10. 23 Because a “claimant’s subjective statements may tell of greater limitations than can 24 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 25 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter, 26 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602). See also Bunnell v. Sullivan, 947 27 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an underlying medical 28 impairment, the ALJ may not discredit the claimant’s testimony regarding the severity of his 1 symptoms solely because they are unsupported by medical evidence). “Congress clearly meant 2 that so long as the pain is associated with a clinically demonstrated impairment, credible pain 3 testimony should contribute to a determination of disability.” Id. (internal quotation marks and 4 citations omitted). 5 However, the law does not require an ALJ simply to ignore inconsistencies between 6 objective medical evidence and a claimant’s testimony. “While subjective pain testimony cannot 7 be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 8 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 9 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 10 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly 11 considers whether the objective medical evidence supports or is consistent with a claimant’s pain 12 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to 13 diminish residual functional capacity only to the extent that the alleged functional limitations and 14 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 15 other evidence”). The ALJ did so here, finding that Plaintiff’s “statements concerning the 16 intensity, persistence and limiting effects of these symptoms are not entirely consistent with 17 medical evidence and other evidence in the record for the reasons explained in this decision.” AR 18 37. 19 “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions 20 about the intensity and persistence of symptoms, including the effects those symptoms may have 21 on the ability to perform work-related activities.” S.S.R. 16-3p at 6. Because objective medical 22 evidence may reveal the intensity, persistence and limiting effects of a claimant’s symptoms, an 23 ALJ must consider whether the symptoms reported by a claimant are consistent with medical 24 signs and laboratory findings of record. Id. 25 To explain her assessment of Plaintiff’s lack of reliability in this case, the ALJ stated, 26 “The claimant has had very little treatment for his impairments and the objective findings are 27 minimal.” AR 37. The ALJ reviewed Plaintiff’s treatment for back pain in June 2014 and 28 /// 1 February 2015, Dr. Bayne’s consultative examination and the opinions of the agency physicians. 2 AR 37-38 3 In assessing a claimant’s credibility, an ALJ may properly rely on “unexplained or 4 inadequately explained failure to seek treatment or follow a prescribed course of treatment.” 5 Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). A claimant’s failure to assert a good 6 reason for not seeking treatment or for failing to follow a prescribed course of treatment or an 7 ALJ’s finding that the proffered reason is not credible, cast doubt on the sincerity of the 8 claimant’s testimony. Fair, 885 F.2d at 603. “[I]f the frequency or extent of the treatment 9 sought by an individual is not comparable with the degree of the individual’s subjective 10 complaints, or if the individual fails to follow prescribed treatment that may improve symptoms, 11 we may find the alleged intensity and persistence of an individual’s symptoms are inconsistent 12 with the overall evidence of record.” SSR 16-3p at 9. 13 Here, Plaintiff contends that because he lacks medical insurance, his subjective testimony 14 should not be discounted based on his limited medical treatment. As summarized in the factual 15 background statement above, however, Plaintiff sought treatment for acute, alarming or painful 16 conditions including itchy or visually disturbing rashes, blood in his stool and a ganglion cyst in 17 his right wrist. A claimant’s ability to seek and obtain affordable medical care for other ailments 18 supports a reasonable inference that the claimant could have obtained care for the allegedly 19 disabling impairment if his symptoms were as severe as he alleged. Karabajakyan v. Berryhill, 20 713 Fed.Appx. 553, 555 (9th Cir. 2017). 21 In contrast to his other ailments, Plaintiff sought treatment of back pain on only two 22 occasions, once following a fall in the bathtub. Such limited treatment fails to support his 23 contention that he was unable to work because of constant debilitating pain. “That [a plaintiff’s] 24 pain was ‘not severe enough to motivate [her] to seek [these forms] of treatment,’ even if she 25 sought some treatment, is powerful evidence of the extent to which she was in pain.” Burch v. 26 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (quoting Fair, 885 F.2d at 604). 27 As is always the case in an appeal of the Commissioner’s denial of disability benefits, 28 Plaintiff would construe the evidence differently than the ALJ. Nonetheless, the hearing decision 1 sets forth sufficient evidence in the record to support the ALJ’s determination that Plaintiff’s 2 representations to the agency were not fully consistent with the medical evidence of record. The 3 Court therefore cannot second guess the ALJ’s assessment of Plaintiff’s credibility. 4 VIII. Sufficient Evidence Supported the ALJ’s Determination 5 Plaintiff contends that the determination of Plaintiff’s residual functional capacity was not 6 supported by sufficient evidence. The Commissioner disagrees. After carefully reviewing the 7 administrative record and the ALJ’s analysis, the Court concludes that substantial evidence 8 supported the ALJ’s determination of Plaintiff’s residual functional capacity. 9 A. Medical Opinions 10 1. Agency Physicians 11 In the initial evaluation, agency physician K. Quint, M.D. opined that Plaintiff could lift 12 twenty pounds occasionally and ten pounds frequently; stand or walk six hours in an eight-hour 13 work day; and, sit about six hours in an eight-hour workday. AR 132, 144. Plaintiff could 14 occasionally balance, stoop, kneel, crouch and crawl, but could never climb ladders, ropes or 15 scaffolds. AR 132, 144. He should avoid concentrated exposure to hazards such as machinery 16 and heights. AR 133, 145. 17 Following the initial evaluation, Plaintiff slipped in the bathtub, injuring right abductor 18 and right paralumbar muscles. AR 157, 171. Thereafter, Plaintiff experienced traumatic muscle 19 spasms. AR 157. Evaluating Plaintiff’s medical claim on reconsideration, agency physician C. 20 De la Rosa, M.D., noted that because Plaintiff’s recent injury was likely to resolve within twelve 21 months, it did not impact Plaintiff’s residual functional capacity. AR 157. Dr. De la Rosa agreed 22 with Dr. Quint’s assessment of Plaintiff’s residual functional capacity except for the applicable 23 environmental restrictions. AR 160-61, 173-75. Dr. De la Rosa opined that Plaintiff should avoid 24 concentrated exposure to extreme cold and heat and vibration but exposure to hazards was 25 unlimited. AR 160-61. 26 On reconsideration, agency psychiatrist Mark Dilger, M.D., performed the psychiatric 27 review technique and opined that Plaintiff had no psychological disability. AR 158, 172. 28 /// 1 B. Orthopedic Consultative Examination 2 On June 18, 2014, orthopedist Omar Bayne, M.D., prepared an evaluation of Plaintiff’s 3 knee pain and recurrent back pain. AR 359-61. Plaintiff reported a history of lumbar 4 degenerative disc disease with possible spondylolisthesis that resulted in radicular pain and 5 numbness of the lower left extremity. AR 359. He had received conservative treatment including 6 pain and anti-inflammatory medications and chiropractic manipulation. AR 359. Plaintiff could 7 partially alleviate his pain by avoiding aggravating factors such as bending, twisting, crouching 8 crawling and stooping. AR 359. Plaintiff could lift no more than ten pounds, walk about one- 9 half block and sit for ten to fifteen minutes. AR 359. 10 As a young man Plaintiff broke his right knee cap while playing football. AR 359. He 11 now experienced knee pain when squatting, kneeling, crouching and stooping and was unable to 12 run or play sports. AR 359. 13 Plaintiff had difficulty lying on his back and experienced significant sleep disturbance. 14 AR 359. His medications included lisinopril; over-the-counter pain relievers such as ibuprofen 15 (Advil) and Aleve; and, medical marijuana. AR 359. Because Plaintiff had no medical 16 insurance, he did not take prescription pain medications and had significant muscle spasms upon 17 palpation. AR 359. 18 Examination revealed a slow, bent-over gait and difficulty walking on heels and toes. AR 19 359. Plaintiff was only able to squat about fifty per cent of normal due to knee and back pain. 20 AR 359. The cervical spine examination was generally normal. AR 360. Plaintiff’s lumbosacral 21 spine lacked a normal lordotic curve and was tender to palpation. AR 360. Straight leg raising 22 was sixty degrees on the left with radiculopathy, and seventy degrees on the right with low back 23 pain and spasms. AR 360. Strength and range of motion in the lower extremities was normal, 24 however, the right knee was tender to palpation. AR 360. Plaintiff had reduced sensation to light 25 touch on the left calf and thigh over the L5 dermatome distribution. AR 360. 26 Dr. Bayne diagnosed chronic recurrent low back strain/sprain; lumbar degenerative disc 27 disease with L5 radiculopathy; history of right patellar fracture; right patellofemoral arthritis; 28 history of hypertension; and, history of insomnia. AR 360. The doctor opined: 1 [Plaintiff] should be able to stand and walk with appropriate breaks for four hours in an eight-hour workday. He should be able to sit 2 with appropriate breaks for six hours in an eight-hour workday. Repetitive bending, twisting, crouching, crawling, stooping, 3 kneeling, climbing up and down stairs, inclines, ramps or ladders should be limited to occasionally. He should be able to lift and carry 4 20 pounds frequently and 40 pounds occasionally. He should be able to work in any work environment except on unprotected heights. 5 AR 360. 6 B. Determining Residual Functional Capacity 7 “Residual functional capacity is an assessment of an individual’s ability to do sustained 8 work-related physical and mental activities in a work setting on a regular and continuing basis.” 9 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 10 restrictions which result from an individual’s medically determinable impairment or combination 11 of impairments. SSR 96-8p. 12 A determination of residual functional capacity is not a medical opinion, but a legal 13 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 14 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 15 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 16 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so the 17 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary 18 ambiguities. Andrews, 53 F.3d at 1039-40. 19 “In determining a claimant's RFC, an ALJ must consider all relevant evidence in the 20 record such as medical records, lay evidence and the effects of symptoms, including pain, that are 21 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See 22 also 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant 23 medical and other evidence). “The ALJ can meet this burden by setting out a detailed and 24 thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and 25 making findings.” Magallanes, 881 F.2d at 751 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 26 (9th Cir. 1986)). 27 /// 28 1 The opinions of treating physicians, examining physicians, and non-examining physicians 2 are entitled to varying weight in residual functional capacity determinations. Lester, 81 F.3d at 3 830. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater 4 opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 5 1273, 1285 (9th Cir. 1996). The opinion of an examining physician is, in turn, entitled to greater 6 weight than the opinion of a non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th 7 Cir. 1990). An ALJ may reject an uncontradicted opinion of a treating or examining medical 8 professional only for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a 9 contradicted opinion of a treating professional may be rejected for “specific and legitimate” 10 reasons. Id. at 830. However, the opinions of a treating or examining physician are “not 11 necessarily conclusive as to either the physical condition or the ultimate issue of disability.” 12 Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 13 C. The ALJ Properly Analyzed Evidence in the Record as a Whole 14 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 15 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 16 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4) (“the more 17 consistent an opinion is with the record as a whole, the more weight we will give to that 18 opinion”). 19 The ALJ gave little weight to Dr. Bayne’s opinion that Plaintiff could stand and walk for 20 only four hours in an eight-hour work day, but adopted the doctor’s restrictions on Plaintiff’s 21 climbing ladders, ropes, scaffolds and limits on other postural activities. AR 38. She noted that 22 Plaintiff testified that he was able to lift fifty pounds and that Dr. Bayne opined that Plaintiff 23 could lift and carry 20 pounds frequently and 40 pounds occasionally. AR 38. Despite Plaintiff’s 24 admission of greater weight-bearing ability, the ALJ gave some weight to Dr. Bayne’s opinion, 25 but reduced the amount of weight in Plaintiff’s residual functional capacity to assist in Plaintiff’s 26 ability to stand and walk for longer periods without rest. AR 38. The ALJ also gave some weight 27 to the opinions of Drs. Quint and De la Rosa but found that the record as a whole did not support 28 the conflicting environmental restrictions imposed by the agency physicians. AR 38 1 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 2 testimony.” Magallanes, 881 F.2d at 750. He properly determines the weight to be given each 3 medical opinion by considering the evidence in the record as the ALJ did here. 20 C.F.R. § 4 404.1527(c)(4) (“the more consistent an opinion is with the record as a whole, the more weight 5 we will give to that opinion”). The record must include objective evidence to support the medical 6 opinion of the claimant’s residual functional capacity. Meanel v. Apfel, 172 F.3d 1111, 1113-14 7 (9th Cir. 1999). Inconsistencies with the overall record or with a physician’s own notes are a valid 8 basis to reject a medical opinion. Molina v. Astrue, 674 F.3d 1104, 1111-1112 (9th Cir. 2012) 9 (recognizing that a conflict with treatment notes is a germane reason to reject a treating 10 physician's assistant's opinion); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (rejecting 11 physician’s opinion when treatment notes provide no basis for the opined functional restrictions); 12 Tommasetti, 533 F.3d at 1041 (incongruity between questionnaire responses and the Plaintiff’s 13 medical records is a specific and legitimate reason for rejecting an opinion); Valentine v. Comm'r 14 of Soc. Sec. Admin., 574 F.3d 685, 692-693 (9th Cir. 2009) (holding that a conflict with treatment 15 notes is a specific and legitimate reason to reject a treating physician's opinion). 16 Plaintiff contends that in evaluating Dr. Bayne’s opinion, the ALJ impermissibly conflated 17 Plaintiff’s residual ability to stand and walk with his ability to bear weight. Although focusing solely on the ALJ’s evaluation of Dr. Bayne’s opinion could lead to such a conclusion, the record 18 as a whole establishes the contrary. The ALJ also gave some weight to the opinions of the agency 19 physicians who opined that Plaintiff could walk for longer periods but lift less weight, rejecting 20 only the conflicting environmental restrictions to which the agency physicians opined. The 21 agency physicians’ opinions supported the ALJ’s conclusions concerning Plaintiff’s residual 22 functional capacity to lift weight and to stand and walk in an eight-hour work day. Thus, the 23 ALJ’s determination was appropriately supported by the record as a whole. 24 X. Conclusion and Order 25 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 26 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 27 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of 28 1 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of 2 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff David Tuupoina. 3 IT IS SO ORDERED. 4

5 Dated: January 6, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6

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