Sullivan v. Kijakazi

• Court: District Court, S.D. California
• Decided: May 23, 2022
• Docket: 3:20-cv-00240
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RENEE S., Case No.: 20-cv-0240-BGS

12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY 14 KILOLO KIJAKAZI, Acting JUDGMENT [ECF No. 19]; Commissioner of Social Security,1 15 (2) GRANTING DEFENDANT’S Defendant. CROSS-MOTION FOR 16 SUMMARY JUDGMENT [ECF 17 No. 20]

18 [ECF 19-20] 19

20 I. INTRODUCTION 21 Plaintiff Renee S. (“Plaintiff”) has filed a Complaint seeking judicial review of the 22 Commissioner of the Social Security Administration’s (“Commissioner” or “Defendant”) 23 denial of disability insurance benefits under the Social Security Act, (ECF 1), and the 24 Commissioner has filed the Administrative Record. (ECF 12.) 25

26 27 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew Saul as Defendant. See 42 U.S.C. § 405(g); Fed. R. Civ. 28 1 Plaintiff has filed a Motion for Summary Judgment seeking reversal of the final 2 decision denying benefits and an order for the payment of benefits or, in the alternative 3 that the Court remand the case for further administrative proceedings. (EFC No. 19.) 4 Plaintiff argues the Administrative Law Judge (“ALJ”) committed reversible error in not 5 including certain restrictions in the opinion of treating physician Dr. Hampshire. (Id. at 6 4-9.) The Commissioner’s Opposition to Plaintiff’s Motion argues that the ALJ’s 7 decision to only give some weight to Dr. Hampshire’s opinion and not include all her 8 restrictions was well supported and should be affirmed. (ECF No. 20.) Plaintiff did not 9 file a Reply brief. 10 After careful consideration of the parties’ arguments, the administrative record and 11 the applicable law and for the reasons discussed below, Plaintiff’s Motion for Summary 12 Judgment is DENIED and the Commissioner’s Cross Motion for Summary Judgment is 13 GRANTED. 14 II. PROCEDURAL HISTORY 15 Plaintiff filed an application for disability insurance benefits on October 27, 2016, 16 with an alleged onset date of March 24, 2016. (AR 257-58.) Plaintiff’s Disability 17 Report, completed November 3, 2016, identifies the following conditions that limit her 18 ability to work: diabetes, high cholesterol, neuropathy, and high blood pressure. (AR 19 297.) Her application was denied. (AR 187-90.) Her subsequent request for 20 reconsideration was also denied. (AR 192 (request for reconsideration), 193-97 (denial on 21 reconsideration).) The denial states that Plaintiff identified high cholesterol, neuropathy, 22 and high blood pressure as conditions that prevented her from working. (AR 193.) 23 At Plaintiff’s request, a hearing before an ALJ was held on September 4, 2018 at 24 which Plaintiff was represented by counsel and testified, along with a Vocational Expert. 25 (AR 199-200 (request for hearing), 109-46 (transcript of hearing).) On January 14, 2019, 26 the ALJ issued a decision finding Plaintiff was not disabled and denied Plaintiff’s 27 application for benefits. (AR 17-27.) The Appeals Council denied Plaintiff’s request for 28 review on December 10, 2019. (AR 252-54 (request for review), 1-6 (denial).) 1 III. SUMMARY OF ALJ DECISION AND FIVE STEP EVALUATION 2 The ALJ’s decision explains the five-step evaluation process for determining 3 whether an individual has established eligibility for disability benefits and then goes 4 through steps one through four.2 (AR 21-22 (explaining steps), 22-27 (analysis of steps 5 one through four)); see also Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724-25 6 (9th Cir. 2011) and 20 C.F.R. §§ 404.1520. 7 A. Step One 8 At step one, the ALJ determines whether a claimant has engaged in “substantial 9 gainful activity.” 20 C.F.R. § 1520(a)(4)(i). Here, the ALJ determined that Plaintiff had 10 not engaged in substantial gainful activity since her alleged onset date of March 24, 2016. 11 (AR 22.) In reaching this conclusion, the ALJ explains that Plaintiff testified that she 12 worked part time for a few months in 2018, but was unable to continue working because 13 of her peripheral neuropathy. (AR 22.) The ALJ then categorizes the 2018 work activity 14 as “an unsuccessful work attempt.” (AR 22.) 15 B. Step Two 16 At step two, the ALJ determines whether a claimant has a “severe medically 17 determinable physical or mental impairment . . . or combination of impairments that is 18 severe.” 20 C.F.R. § 1520(a)(4)(ii). Here, the ALJ found Plaintiff had “the following 19

20 21 2 In order to qualify for disability benefits, an applicant must show that he or she suffers from a medically determinable physical or mental impairment that can be expected to result 22 in death, or that has lasted or can be expected to last for a continuous period of not less 23 than twelve months and the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment 24 that exists in the national economy. 42 U.S.C. §§ 423(d)(1)(A), (2)(A) (defining 25 disability). An applicant must meet both requirements to be “disabled.” Id. The claimant bears the burden of proving he is disabled through step four. Valentine v. Comm’r of Soc. 26 Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, which the ALJ did not reach 27 here, the Commissioner bears the burden of showing the claimant can do other kinds of work that exist in significant numbers in the national economy “taking into consideration 28 1 severe impairments: diabetic and alcoholic peripheral neuropathy; metabolic syndrome 2 with obesity, hypertension, diabetes mellitus, and hyperlipidemia; alcoholic cirrhosis; 3 splenomegaly; history of cholecystitis; duodenitis/GRD; status post banding of 4 esophageal varices; and a history of endometrial hyperplasia status post hysterectomy and 5 bilateral salpingo-oophorectomy.” (AR 22.) However, as to “other medically 6 determinable impairments, including venous thrombosis and pulmonary embolism” the 7 ALJ found “the evidence as a whole, including the clinical records’ depiction of their 8 mild or non-existent symptoms and minimal treatment, fail[ed] to demonstrate that they 9 cause more than minimal limitations in the claimant’s ability to perform basic work 10 activities.” (AR 24.) The ALJ then goes on to specifically address venous thrombosis 11 and pulmonary embolism with citation to normal scans and lack of symptoms in the 12 record. (AR 23 (citing AR 499 [Ex 2F at 98]; AR 1395-1728 [Ex 13F]).) 13 C. Step Three 14 At step three the ALJ considers whether the claimant’s impairments meet or equal 15 one or more of the specific impairments or combination of impairments described in 16 20 C.F.R. Part 404, Subpart P, Appendix 1, the listings. See §§ 404.1520(a)(4)(iii), 17 404.1520(d), 404.1525, 404.1526. Here, the ALJ considered digestive system and 18 neurological system listings with emphasis on 5.05 (chronic liver disease) and 11.14 19 (peripheral neuropathy). (AR 23.) The ALJ also considered the potential impact of 20 diabetes mellitus and obesity. (AR 23.) The ALJ concluded that the “the severity of 21 claimant’s impairments, considered singly and in combination, does not meet or 22 medically equal the criteria of any listing.” (AR 23.) The ALJ also found that “[n]o 23 treating or examining physician . . . record[ed] findings equivalent in severity to the 24 criteria of any listed impairment” and the evidence did not “show medical findings that 25 are the same or equivalent to those of any listed impairment.” (AR 23.) 26 /// 27 /// 28 /// 1 D. Residual Functional Capacity 2 If the claimant does not meet a listing, the ALJ “assess[es] and makes a finding 3 about [the claimant’s] residual functional capacity based on all the relevant medical and 4 other evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1520(e). A claimant’s 5 RFC is the “most [they] can still do despite [their] limitations” taking into account all 6 medically determinable impairments, including “medically determinable impairments 7 that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(1)(2). The RFC is used at the fourth and 8 fifth steps to determine whether the claimant can do their past work (step four) or adjust 9 to other available work (step five). §§ 404.1520(e)-(f), 404.1545(a)(5). 10 The ALJ assessed the following RFC for Plaintiff: 11 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light 12 work as defined in 20 CFR 404.1567(b), except she has the following 13 additional limitations: she can lift or carry 20 pounds occasionally and 10 pounds frequently; she can sit for 6 hours and stand and/or walk for 14 3 hours in a normal 8-hour day with normal breaks, and she requires a 15 sit/stand option from standing or walking after every 15 minutes to sitting for at least 15 minutes; she cannot push or pull with the bilateral 16 lower extremities; she cannot climb ladders, ropes or scaffolds or walk 17 on uneven terrain; she can occasionally perform all other remaining postural activities of climbing ramps or stairs, balancing, stooping, 18 kneeling, crouch, and crawling; she must avoid concentrated exposure 19 to extreme cold, heat and vibrations; and she must avoid even moderate exposure to hazards such as unprotected heights and dangerous moving 20 machinery. 21 22 (AR 23 (emphasis added to restrictions at issue).) As discussed further below, Plaintiff 23 argues this RFC did not account for the following additional or more limited work 24 restrictions selected on Dr. Hampshire’s questionnaire: “1) limitation to low stress jobs; 25 2) occasional (up to 33% interference in the ability to perform even simple work tasks; 3) 26 need for a sit, stand or walk option at will; 4) sit at least six hours per workday; 5) 27 stand/walk less than two hours per workday; 6) lift and carry less than 10 pounds 28 occasionally; and 7) absenteeism at a rate of one day per month. (ECF 19-1 at 4-8 (citing 1 AR 1033-34 (Dr. Hampshire’s questionnaire)).) 2 E. ALJ’s Evaluation of the Record 3 The ALJ decision goes on to evaluate Plaintiff’s symptom testimony, summarize 4 her medical records and make findings, and evaluate three medical opinions before 5 moving on to step four. 6 1. Plaintiff’s Symptom Testimony 7 Plaintiff does not challenge the ALJ’s evaluati on of her symptom testimony. 8 However, because the ALJ considered Plaintiff’s testimony in evaluating the medical 9 evidence and physician opinions, the Court briefly summarizes the ALJ’s discussion of 10 her testimony. 11 The ALJ explains the two-step process to evaluate symptom testimony and finds 12 Plaintiff’s impairments could be expected to cause the alleged symptoms. (AR 24.) 13 However, the ALJ goes on to find Plaintiff’s statements concerning their intensity, 14 persistence, and limiting effects are “not entirely consistent with the medical evidence 15 and other evidence in the record for the reasons explained in this decision.” (AR 24.) 16 The decision accurately summarizes her testimony. The ALJ explains that Plaintiff 17 testified that “her neuropathy is her main problem that prevents her from working,” and 18 that the neuropathy causes constant pain, numbness, and toe cramping in her feet. (AR 24 19 (ALJ decision); AR 125-128 (testimony).) The decision explains that she indicated she 20 could remain standing for 10 minutes before needing to sit down, sits for about 14 hours 21 per day, and sometimes needs to elevate her feet if she walks during the day. (AR 24 22 (ALJ decision); AR 129-131 (testimony).) She denied any problems with her hands 23 except some itchiness. (AR 24 (ALJ decision); AR 127 (testimony).) 24 After providing a detailed summary of Plaintiff’s medical history and making 25 findings as to the impact of those conditions on her based on the medical records (see 26 infra IV.B.1.a), the ALJ concludes that “[t]aken together, the claimant’s severe 27 impairments, diabetes, neuropathy, gastrointestinal issues, and other health concerns 28 support the less-than-light residual functional capacity assessed above.” (AR 25.) 1 2. ALJ’s Discussion of the Medical Evidence 2 a) Diabetes and Peripheral Neuropathy 3 The ALJ discusses Plaintiff’s history of diabetes and diabetic and alcoholic 4 peripheral neuropathy complicated by noncompliance and lack of health insurance. (AR 5 24-25 (citing AR 439, 444 [Ex. 2F at 38, 43]; AR 1243 [Ex. 12F at 132].) The decision 6 notes improvement as well as periods of uncontrolled diabetes and neurological 7 complications due in part to noncompliance with treatment. (AR 24 (citing AR 531 [Ex. 8 2F at 130]; AR 568, 575 [Ex. 3F at 6, 13].) The ALJ then discusses, with citation to 9 numerous applicable medical records, her improvement, including in hemoglobin A1c 10 levels, intact neurological functions and other normal findings as to joint and muscle 11 pain, normal gait, and lack of lower extremity edema or weakness. (AR 25 (citing AR 12 1402, 1412 [Ex. 13F at 8, 18]; AR 575 [Ex. 3F at 13]; AR 1729-30 [Ex. 14F at 1-2]; 458 13 [Ex. 2F at 57]; AR 581, 584 [Ex. 3F at 19, 22]; AR 599 [Ex. 4F at 6]; AR 1143, 1146 14 [Ex. 12F at 32, 35]; AR 1730 [Ex. 14F at 2]).) The decision also finds: her neuropathic 15 pain has been “somewhat controlled” through use of medication; diagnostic imaging of 16 her feet reveals no abnormalities; and that her own reports in her medical records indicate 17 that she has been doing well with diabetes control. (AR 25 (citing AR 1126, 1208, 1243 18 [Ex 12F at 15, 97, 132]; AR 563 [Ex. 3F at 1]; AR 1741, 1747 [Ex. 14F at 13, 19].) 19 The ALJ then discusses the chronic nature of her peripheral neuropathy, the 20 decreased sensation in her feet, and the expectation that the neuropathy will require 21 restrictions on her ability to walk. (AR 25.) He goes on to explain that because of the 22 peripheral neuropathy, the RFC includes a sit/stand option, restrictions in standing and 23 walking, and precludes use of her lower extremities to push or pull. (AR 25 (citing AR 24 1734, 1752 [Ex. 14F at 6, 24]) (“[n]evertheless, because of the claimant’s chronic 25 peripheral neuropathy, its expected restrictions on her ability to walk, and her decreased 26 sensation in her feet, the residual functional capacity . . . includes a sit/stand option, 27 further restricts her standing and walking abilities, and precludes her from using her 28 lower extremities to push or pull.”).) 1 b) Other Disorders 2 The ALJ then addresses “the claimant’s other disorders, which she did not allude 3 to during the hearing as disabling,” including “numerous alcohol-related abdominal 4 disorders, abdominal pain, GERD erosive duodenitis, liver cirrhosis, cholecystitis, 5 splenomegaly and banding of esophageal varices (AR 25 (citing numerous medical 6 records).) He explains that by 2016, Plaintiff reported “‘feeling quite well,’ denied 7 gastrointestinal symptoms, and reported that her GERD symptoms were ‘pretty well 8 controlled.’” (AR 25 (citing AR 563 [Ex. 3F at 1]).) The decision then concludes that 9 her ”[r]ecent clinical visits demonstrate[d] no significant medical complications arising 10 from her abdominal and gastrointestinal issues” and she “continued to deny significant 11 gastrointestinal symptoms” with GERD and duodentis stable and cholelithiasis stable and 12 asymptomatic. (AR 25 (citing AR 1112-1336, 1741, 1747 [Ex. 12F, 14F at 13, 19]).) 13 The decision reaches similar conclusions regarding benign and simple endometrial 14 hyperplasia, bilateral salpingo-oophorectomy, hypertension, and hyperlipidemia, finding 15 no significant complications or residual limitations as to the former and the hypertension 16 and hyperlipidemia controlled through medication. (AR 25 (citing AR 600 [Ex. 4F at 7]; 17 608-610 [Ex. 5F at 7-9]; 932 [Ex. 6F at 217]; 1416 [Ex. 13F at 22]; 571 [Ex. 3F at 9]).) 18 And, as to Plaintiff’s obesity, the ALJ finds the evidence does not show Plaintiff’s 19 obesity impacts her ability to ambulate or cause disabling health problems. (AR 25.) 20 3. ALJ’s Evaluation of Medical Opinion Evidence 21 The decision then discusses the medical opinion evidence, giving little weight to 22 state agency medical consultant Dr. Naiman, partial weight to state agency medical 23 consultant Dr. Ross, and some weight to treating physician Dr. Hampshire. (AR 25-26.)3 24 /// 25 /// 26 27 28 1 a) Dr. Naiman 2 The ALJ gave “little weight to the medium residual functional capacity” 3 assessment from Dr. Naiman. (AR 26 (citing AR 154-56 [Ex. 1A at 8-10]; 165-67 [Ex. 4 2A at 8-10]).) The ALJ found it was inconsistent with Dr. Ross’ opinion and not 5 supported by medical records showing chronic peripheral neuropathy symptoms. (AR 6 26.) 7 b) Dr. Ross 8 The ALJ gave “partial weight to the light residual functional capacity assessment” 9 from Dr. Ross, finding it “somewhat supported by the evidence of claimant’s numerous 10 medical issues and initial problems controlling her diabetes.” (AR 25.) However, the 11 ALJ found “further standing and walking limitations were warranted based on claimant’s 12 persistent complaints of peripheral neuropathy affecting her feet.” (AR 25-26.) The ALJ 13 also explained that Dr. Ross had not had an opportunity to review medical records that 14 were only available at the hearing level. (AR 26.) 15 c) Dr. Hampshire 16 As to Dr. Hampshire’s “Treating Physician Questionnaire,”4 the ALJ gave it some 17 weight. (AR 26; AR 1032-34.) The ALJ found Dr. Hampshire’s decreased standing and 18 walking limitations “somewhat supported by the claimant’s complaints of neuropathic 19 pain.” (AR 26 (emphasis added).) However, he goes on to explain that it is not 20 corroborated by the record particularly in light of recent changes. (AR 26.) He found Dr. 21 Hampshire’s restrictions to less than two hours of standing and walking, only 22 occasionally lifting less than 10 pounds, and one absence per month “lack[ed] 23 corroborative support in the record, especially in light of recent evidence documenting 24 25 26 4 The ALJ refers to Dr. Hampshire’s opinion as a “questionnaire” but as discussed below, 27 clearly treats it as a treating physician opinion in evaluating it. (AR 26.) The Court refers to it as questionnaire or opinion throughout, but also treats it as a treating physician 28 1 the claimant’s recently improved condition and stable physical symptoms.” (AR 26.) 2 F. Step Four 3 The ALJ decision then concludes, at step four, that Plaintiff is capable of 4 performing her past relevant work as an administrative clerk. In reaching this conclusion, 5 the ALJ relies on the testimony of a vocational expert. (AR 26-27.) The transcript of the 6 hearing reflects the ALJ posed a series of hypotheticals to the vocational expert with each 7 becoming more restrictive in postural limitations, providing a sit/stand option, and the 8 amount of time Plaintiff could stand. (AR 133-143.) The ALJ decision explains, and the 9 transcript reflects, that the vocational expert clarified that the sit/stand option is not 10 addressed in the Dictionary of Occupational Titles, but based on her experience on 11 vocational matters doing job analyses and placements. (AR 26 (ALJ decision); AR 135, 12 142 (transcript).) He additionally discusses the vocational expert’s testimony that the 13 administrative clerk position is typically a seated position that is only classified “as light, 14 as opposed to sedentary because they require more than two hours of sitting” and that this 15 position would generally not require more than three hours of standing and/or walking.” 16 (AR 26-27.) 17 IV. DISCUSSION 18 Plaintiff argues the ALJ erred in not including certain restrictions contained in the 19 treating physician opinion of Dr. Hampshire in Plaintiff’s RFC. Plaintiff argues the 20 following work restrictions were imposed in Dr. Hampshire’s opinion and should have 21 been included in Plaintiff’s RFC: “1) limitations to low stress jobs; 2) occasional (up to 22 33%) interference in the ability to perform even simple work tasks; 3) need for a sit, 23 stand or walk option at will; 4) sit at least six hours per workday; 5) stand/walk less than 24 two hours per workday; 6) lift and carry less than 10 pounds occasionally; and 7) 25 absenteeism at a rate of one day per month.” (ECF 19-1 at 4-5 (citing AR 1033-34 26 (portion of Dr. Hampshire’s opinion)); see also ECF 19-1 at 4-8 (addressing these 27 restrictions).) 28 1 Defendant counters that the ALJ was not required to include the limitations to low- 2 stress work with occasional interference with attention and concentration because Dr. 3 Hampshire’s check-box form provided no explanation or support for these limitations and 4 Plaintiff cites no medical evidence supporting them. (ECF 20 at 11.) Defendant also 5 argues the ALJ properly imposed less restrictive sit/stand, lift/carry, and absence 6 limitations than Dr. Hampshire because her more restrictive limitations failed to consider 7 Plaintiff’s improved condition and stability of symptoms, as noted by the ALJ, and were 8 not supported by any medical records. (ECF 20 at 11-14.) Additionally, Defendant 9 asserts that the limitations imposed by the ALJ are supported by substantial evidence. 10 (ECF 20 at 14-15.) 11 A. Applicable Standards 12 1. Scope of Review 13 Section 405(g) of the Social Security Act allows unsuccessful claimants to seek 14 judicial review of a final agency decision. 42 U.S.C. § 405(g). This Court has 15 jurisdiction to enter a judgment affirming, modifying, or reversing the Commissioner’s 16 decision. See id.; see also 20 C.F.R. § 404.900(a)(5). The matter may also be remanded 17 to the Social Security Administration for further proceedings. 42 U.S.C. § 405(g). 18 If the Court determines that the ALJ’s findings are not supported by substantial 19 evidence or are based on legal error, the Court may reject the findings and set aside the 20 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). 21 “Substantial evidence is ‘more than a mere scintilla,’ and means only ‘such relevant 22 evidence as a reasonable mind might accept as adequate to support a conclusion.’” Ford 23 v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Biestek v. Berryhill, 139 S. Ct. 24 1148, 1154 (2019)). “If the evidence ‘is susceptible to more than one rational 25 interpretation, it is the ALJ’s conclusion that must be upheld.’” Id. (quoting Burch v. 26 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 27 /// 28 /// 1 The Court “must consider the entire record as a whole and may not affirm simply 2 by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 3 466 F.3d 880, 882 (9th Cir. 2006) (citation omitted). The Court may “review only the 4 reasons provided by the ALJ in the disability determination and may not affirm the ALJ 5 on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th 6 Cir. 2014). However, “[w]hen evidence reasonably supports either confirming or 7 reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.” 8 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). 9 The ALJ’s decision may be affirmed “even if the ALJ made an error, so long as the 10 error was harmless, meaning it was ‘inconsequential to the ultimate nondisability 11 determination.’” Ford, 950 F.3d at 1154 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 12 1038 (9th Cir. 2008)). 13 2. Treating Physician Opinion 14 Here, the physician opinion at issue was provided by Plaintiff’s treating physician, 15 Dr. Hampshire. “‘As a general rule, more weight should be given to the opinion of a 16 treating source than to the opinion of doctors who do not treat the claimant,’” and “the 17 opinion of an examining physician is entitled to greater weight than that of a non- 18 examining physician.”5 Garrison, 759 F.3d at 1012 (quoting Lester, 81 F.3d at 830 and 19 citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “Because 20 treating physicians are employed to cure and thus have greater opportunity to know and 21 observe the patient as an individual their opinions are given greater weight than the 22 opinions of other physicians.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) 23 24 25 26 5 The Ninth Circuit “distinguishes among the opinions of three types of physicians: (1) 27 those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 28 1 (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989) and Sprague v. Bowen, 2 812 F.2d 1226, 1230 (9th Cir. 1987)).6 3 However, “the ALJ need not accept the opinion of a treating physician.” Ford, 950 4 F.3d at 1154; see also Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (“[W]e 5 have held that the opinion of the treating physician is not necessarily conclusive as to 6 either the physical condition or the ultimate issue of disability.”) (citations omitted). 7 “‘[I]f the treating doctor’s opinion is contradicted by another doctor,’ the ALJ may 8 discount the treating physician’s opinion by giving ‘specific and legitimate reasons’ that 9 are supported by substantial evidence in the record.” Ford, 950 F.3d at 1154 (quoting 10 Lester, 81 F.3d at 830); see also Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).7 11

12 13 6 Because Plaintiff’s “claim was filed prior to the Commissioner’s revision of the rules for evaluating medical evidence at the administrative level,” it is subject to the standards 14 set forth in § 404.1527. Smith v. Kijakazi, 14 F.4th 1108, 1114 n.3 (9th Cir. 2021); (see 15 also ECF 20 at 9 n.3 (Defendant’s brief noting the pre-March 27, 2017 standards apply).) The standards set forth here are the standards applicable to a claim filed before March 27, 16 2017. 20 C.F.R. § 404.1520c (“For claims filed before March 27, 2017, the rules in [20 17 C.F.R.] § 1527 apply.”) Claims filed on or after March 27, 2017 are subject to § 404.1520c’s revised rules which do “not defer or give any specific evidentiary weight, 18 including controlling weight, to any medical opinion(s).” § 404.1520c. 19 7 A higher standard applies when an ALJ rejects an uncontradicted treating physician opinion. “To reject the uncontradicted opinion of a treating or examining doctor, an ALJ 20 must state clear and convincing reasons that are supported by substantial evidence.” 21 Trevizo, 871 F.3d at 675 (quoting Ryan, 528 F.3d at 1198). But here, Plaintiff argues the specific and legitimate reasons standard applies, and as discussed below, Dr. Hampshire’s 22 opinion was contradicted by the opinions of Dr. Ross, Dr. Naiman, and medical evidence 23 in the record cited and discussed by the ALJ. (ECF 19-1 at 6 (Plaintiff’s brief) (“Generally, an ALJ is not bound by the opinions of a treating physician. However, if an 24 ALJ chooses to reject the treating physician’s opinion, the ALJ must articulate specific 25 and legitimate reasons based on substantial evidence in the record.”) (emphasis added) (citing Lester, 81 F.3d at 830-31); ECF 19-1 at 7 (“The ALJ failed to articulate a single 26 reason let alone specific and legitimate reasons, for rejecting these treating opinions, 27 which is error.”) (citing Lester, 81 F.3d at 830-31 and Hill v. Astrue, 688 F.3d 1144, 1150-51 (9th Cir. 2012)); see supra III.E.2 (ALJ’s discussion of medical evidence 28 1 “The ALJ can meet this burden by setting out a detailed and thorough summary of the 2 facts and conflicting clinical evidence, stating [his] interpretation thereof, and making 3 findings.” Tommasetti, 533 F.3d at 1041 (quoting Magallanes v. Bowen, 881 F.2d 747, 4 751 (9th Cir. 1989)). “The opinions of non-treating or non-examining physicians may 5 also serve as substantial evidence when the opinions are consistent with independent 6 clinical findings or other evidence in the record.” Thomas, 278 F.3d at 957. The ALJ 7 “must set forth his own interpretations and explain why they, rather than the [treating or 8 examining] doctors, are correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 9 Additionally, “an ALJ may discredit treating physicians’ opinions that are 10 conclusory, brief, and unsupported by the record as a whole, or by objective medical 11 findings.” Batson, 359 F.3d at 1195 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th 12 Cir. 1992) and Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)); see also 13 Ford, 950 F.3d at 1154 (“The ALJ need not accept the opinion of any physician, 14 including a treating physician, if that opinion is brief, conclusory, and inadequately 15 supported by clinical findings.”) (quoting Thomas, 278 F.3d at 957). 16 B. Analysis 17 The Court first discusses the ALJ’s analysis and how it provides specific and 18 legitimate reasons supported by substantial evidence for discrediting Dr. Hampshire’s 19 opinion and not including every one of her restrictions in Plaintiff’s RFC. The Court then 20 addresses the particular restrictions at issue further. 21 1. ALJ’s Evaluation of the Medical Evidence and Physician 22 Opinions 23 The ALJ found Dr. Hampshire’s opinion lacked corroboration in the record and 24 failed to account for medical evidence of improvement and stable physical symptoms. 25 (AR 26.) The ALJ also evaluated two other physician opinions with lesser restrictions 26 27 symptoms); see infra IV.B.1 (discussing conflicts in the opinions and with the medical 28 1 than those assessed by Dr. Hampshire and evaluated the medical evidence as to Plaintiff’s 2 diabetes and peripheral neuropathy. (AR 24-26.) The ALJ’s analysis of the medical 3 records, the three opinions, and the conflicts among the opinions provide specific and 4 legitimate reasons supported by substantial evidence for discrediting Dr. Hampshire’s 5 opinion to the extent the ALJ did and for not including all of Dr. Hampshire’s restrictions 6 in Plaintiff’s RFC. 7 The Court first discusses the ALJ’s evaluation of the medical evidence because it 8 precedes and supports the ALJ’s evaluation of Dr. Hampshire’s opinion. The Court then 9 addresses the ALJ’s evaluation of the three medical opinions, conflicts among them, and 10 how the ALJ’s findings as to the medical evidence and conflicts in the opinions support 11 discrediting Dr. Hampshire’s opinion to the extent the ALJ did. 12 a) ALJ’s Evaluation of the Medical Evidence 13 The ALJ’s discussion of Plaintiff’s diabetes and peripheral neuropathy not only 14 supports the restrictions he imposed, but also not including more restrictive limitations in 15 Dr. Hampshire’s opinion. (AR 24-25; see supra III.E.) The ALJ summarized the 16 medical evidence and made findings as to Plaintiff’s diabetes and peripheral neuropathy 17 with citation to medical records in support of his findings. (AR 24-25.) The ALJ’s 18 findings as to peripheral neuropathy and diabetes8 are particularly significant because Dr. 19 Hampshire’s questionnaire lists only diabetes and peripheral neuropathy as diagnoses her 20 opinion is based on and Plaintiff testified that the neuropathy and its impact on her feet, 21 was the reason she could not work. (AR 1032 (question #2); AR 125, 127.9) 22 23 8 The ALJ also thoroughly considered all of Plaintiff’s other medical conditions and made 24 similarly specific findings based on the medical records to conclude that her other 25 conditions were resolved, improving, and stable, and support the RFC assessed. (AR 25; see supra III.E.2.) 26 9 When asked by her counsel at the hearing, “Any other medical reasons that prevent you 27 from working on a full-time basis? Plaintiff responded “No, just the neuropathy is my main problem.” (AR 125.) And, when asked “any problems using your hands . . . or was 28 1 As detailed below, the decision provides a “detailed and thorough summary” of 2 Plaintiff’s medical history with findings that include citation of relevant medical records, 3 the ALJ’s interpretation of them, and consideration of medical opinions. Tommasetti, 4 533 F.3d at 1041 (The ALJ can meet the specific and legitimate reasons standard by 5 “setting out a detailed and thorough summary of the facts and conflicting evidence, 6 stating [his] interpretation thereof, and making findings.”); see also Thomas, 278 F.3d at 7 957 (“The opinions of non-treating or non-examining physicians may also serve as 8 substantial evidence when opinions are consistent with independent clinical findings or 9 other evidence in the record.”). 10 The ALJ does not select a few positive medical records to the exclusion of the 11 negative or provide only a brief summary of medical history without any interpretation or 12 findings. Rather, the ALJ notes her history of type two diabetes and peripheral 13 neuropathy with citation to applicable medical records, but also discusses, with citation to 14 medical records, her improvement, stabilization of symptoms, and normal and intact 15 functions. (AR 24-25; see supra III.E.2.a).) The ALJ specifically discusses medication 16 changes and improvement while also acknowledging earlier periods when Plaintiff’s 17 diabetes was uncontrolled. (AR 24-25; see supra III.E.2.a).) The decision then goes on 18 to specifically note her recent A1c level improvement. (AR 25; see supra III.E.2.a).) 19 When discussing Plaintiff’s peripheral neuropathy, the ALJ identifies numerous 20 medical records that show Plaintiff has “grossly intact neurological functions, no joint or 21 muscle pains, no lower extremity edema, no weakness, . . . a normal gait,” and that 22 diagnostic imaging of her feet reveal no abnormality. (AR 25; see supra III.E.2.a).) 23 Additionally, again with citation to numerous medical records that support his findings, 24 the ALJ finds Plaintiff has reported in medical records that she is doing well with 25 diabetes control and finds and that her neuropathic pain has been somewhat controlled 26 through medications. (AR 25; see supra III.E.2.a).) However, the ALJ also finds 27 Plaintiff’s chronic peripheral neuropathy causes decreased sensation in her feet, 28 neuropathic pain, and restrictions on her ability to walk. (AR 25; see supra III.E.2.a).) 1 Plaintiff may view these findings differently, but “[t]he court will uphold the ALJ's 2 conclusion when the evidence is susceptible to more than one rational interpretation.” 3 Tommasetti, 533 F.3d at 1038. Here the ALJ’s interpretation is at a minimum a rational 4 one based on numerous cited medical records. 5 The ALJ then explains that “the residual functional capacity assessed herein 6 includes a sit/stand option, further restricts her standing and walking abilities, and 7 precludes her from using her lower extremities to push or pull.” (AR 25 (emphasis 8 added).) Having reviewed the ALJ’s analysis of the physician opinions and the opinions 9 themselves, discussed further below, it is clear the ALJ’s reference to “further” 10 restrictions is the ALJ finding Plaintiff’s RFC should include more restrictive standing 11 and walking limitations than Dr. Ross assessed. (See supra III.D (RFC – 3 hours 12 standing/walking with a sit stand option); see infra IV.B.1.b)(1) (Dr. Ross – 6 hours 13 standing/walking).) 14 The ALJ summarized the medical records concerning Plaintiff’s diabetes and 15 peripheral neuropathy, including records showing normal functions in key areas, recent 16 improvement, and stabilization of symptoms. (AR 25-26; see supra III.E.2.a).) The ALJ 17 finds she has improved in managing her diabetes and that her neuropathic pain is 18 somewhat controlled with medication, but her neuropathy still requires greater 19 restrictions than assessed by Dr. Ross in one respect, standing/walking limitations, 20 including a sit/stand option. (AR 25-26.) These findings reflect the ALJ thoroughly 21 considered the medical records that were the basis for Dr. Hampshire’s opinion and 22 concluded that they warranted some greater restrictions as to standing and walking, but 23 did not corroborate Dr. Hampshire’s more extreme restrictions. Based on this analysis of 24 the medical evidence, the ALJ concluded the chronic neuropathy and associated pain 25 supported only two greater restrictions than Dr. Ross found, i.e. 3 hours standing/walking 26 instead of 6 and a sit/stand option. 27 28 1 b) ALJ’s Evaluation of the Physician Opinions 2 The conflicts in the medical opinions of Dr. Naiman, Dr. Ross, and Dr. Hampshire, 3 and the ALJ’s analysis of them also provide specific and legitimate reasons for 4 discrediting Dr. Hampshire’s opinion to the extent the ALJ did and imposing less 5 restrictive limitations than those selected on Dr. Hampshire’s questionnaire. 6 (1) Analysis of Dr. Naiman and Dr. Ross’ Opinions 7 Dr. Naiman indicated Plaintiff could occasionally lift 50 pounds, frequently lift 25 8 pounds, and stand/walk 6 hours in an 8-hour workday with normal breaks. (AR 154 [Ex. 9 1A at 8]; 165 [Ex. 2A at 8].) These were the least restrictive limitations of the physician 10 opinions. The ALJ gave the opinion little weight because it failed to account for 11 Plaintiff’s chronic peripheral neuropathy and because it conflicted with Dr. Ross’ 12 opinion. (AR 26.) This is consistent with the ALJ’s earlier finding that Plaintiff’s 13 chronic peripheral neuropathy, neuropathic pain, and decreased sensation in her feet 14 required more restrictive standing/walking limitations. (See supra IV.B.1.a.) 15 As noted above, Dr. Ross’ opinion also contained a 6-hour standing/walking time 16 but more restrictive limits in the amount of weight Plaintiff could lift/carry. (AR 177 17 [Ex. 4A at 7] (Dr. Ross indicating Plaintiff could occasionally lift/carry 20 pounds, 18 frequently lift 10 pounds, and stand/walk 6 hours in an 8-hour workday with normal 19 breaks).) The ALJ gave it only partial weight because it failed to account for Plaintiff’s 20 persistent complaints of peripheral neuropathy in her feet and because Dr. Ross did not 21 have the opportunity to review medical records only made available at the hearing level. 22 (AR 25-26 (emphasis added).) The ALJ found Dr. Ross’ opinion “somewhat supported 23 by the evidence of claimant’s numerous medical issues and initial problems controlling 24 her diabetes.” (AR 25 (emphasis added).) 25 Again, this analysis is supported by the ALJ’s earlier discussion of the medical 26 evidence and findings concerning Plaintiff’s peripheral neuropathy, both the positive and 27 negative. The ALJ’s imposition of restrictions similar to Dr. Ross’ is consistent with the 28 ALJ’s findings that Plaintiff’s medical records show largely intact and normal function 1 by Plaintiff, including normal neurological function, no joint or muscle pain, no lower 2 extremity edema, no weakness, and normal gait. (AR 25.) The only area where the ALJ 3 diverges from Dr. Ross’ opinion is on Dr. Ross’ standing/walking limitations. The ALJ 4 finds Plaintiff can only stand/walk three hours in an eight-hour workday with a sit/stand 5 option (AR 23) instead of standing/walking six hours in an eight-hour workday. (AR 177 6 (Dr. Ross’ opinion).) As noted above, the reason for this difference is also explained in 7 the ALJ evaluation of the medical evidence (finding further limits needed for decreased 8 sensation in feet and based on her ability to walk) and in evaluating Dr. Hampshire’s 9 opinion, as discussed further below. 10 The ALJ has identified a single area where he believes, based on Dr. Hampshire’s 11 opinion and Plaintiff’s testimony regarding neuropathy in her feet, that further restrictions 12 than those imposed by Dr. Ross are warranted. And he has reached this conclusion 13 through consideration of the medical evidence, Plaintiff’s complaints, and the other 14 opinions in the record. 15 (2) Analysis of Dr. Hampshire’s Opinion 16 Dr. Hampshire’s opinion indicates Plaintiff could only stand/walk less than 2 hours 17 in an 8-hour workday, would need to shift position from sitting, standing, or walking at 18 will, could occasionally lift less than 10 pounds and never lift any greater weight, would 19 be absent from work on average one day per month, is limited to low stress jobs, and 20 Plaintiff’s symptoms would be severe enough to interfere with the attention and 21 concentration needed for simple tasks occasionally (defined as 6-33% of the time on the 22 form). (AR 1033-34 [Ex. 9F at 4].) None of these restrictions includes any explanation 23 for them on the form even as to the question that specifically asks for an explanation. 24 (AR 1033-34.)10 25 26 27 10 As discussed further below, the only “clinical findings and objective signs” identified 28 1 The decision identifies the one area where the ALJ is giving Dr. Hampshire’s 2 opinion “some weight,” standing/walking limitations, and also explains why he is 3 discrediting it. (AR 26; see supra III.E.3.c).) The ALJ noted the lengthy treating 4 relationship and finds her “questionnaire” responses “somewhat supported by claimant’s 5 complaints of neuropathic pain.” (AR 26.) The ALJ then goes on to explain reasons for 6 discrediting it – the lack of corroborative support in the record for other restrictions. (AR 7 26.) The decision specifically singles out the restrictions “to less than two hours of 8 standing and walking, . . . only occasionally lift[ing] less than 10 pounds, and . . . one 9 absence a month.” (AR 26.) The ALJ indicates this is “especially [so] in light of recent 10 evidence documenting the claimant’s recently improved condition and stable physical 11 symptoms.” (AR 26.) 12 Again, the ALJ’s earlier findings as to what the medical evidence shows support 13 the ALJ’s rejection of Dr. Hampshire’s more restrictive limitations. First, the Court notes 14 that Dr. Hampshire’s opinion concerns diagnoses the ALJ has discussed and made 15 findings about, diabetes and peripheral neuropathy, and the neuropathy is Plaintiff’s 16 primary issue.11 (See supra IV.B.1.a) The ALJ has already discussed the medical 17 evidence regarding these conditions and identified the two additional restrictions he finds 18 appropriate for those conditions. Second, the ALJ gave some weight to only one portion 19 of Dr. Hampshire’s opinion. The ALJ found the opinion was “somewhat supported by 20 claimant’s complaints of neuropathic pain,” but lacking corroboration in the record and 21 that her opinion failed to account for initial noncompliance, improvement, and 22 stabilization of symptoms. (AR 26; see supra III.E.3.c).) This is completely consistent 23 with and supported by his analysis of Plaintiff’s peripheral neuropathy, i.e. his 24 25 and the only other explanations are listings of foot pain and lack of sensation affecting 26 walking. (AR 1032; see infra IV.B.2.) 27 11 When asked at her hearing, “Any other medical reasons that prevent you from working on a full-time basis? Plaintiff responded “No, just the neuropathy is my main problem.” 28 1 conclusion, after lengthy discussion, that her diabetes was controlled, neuropathic pain 2 somewhat controlled, and her records on these conditions largely in normal and intact 3 functions. (AR 24-25.) 4 He imposed greater restrictions than found by Dr. Ross, which did not include the 5 sit/stand option, based on Plaintiff’s peripheral neuropathy. However, the ALJ’s 6 restrictions do not go as far as Dr. Hampshire’s because greater restrictions from 7 neuropathy are not supported by the medical records he identified and discussed. This is 8 clear not only from his explanation that Dr. Hampshire’s opinion is not consistent with 9 Plaintiff’s improved condition and stable symptoms, but also from his finding that 10 Plaintiff’s diabetes is better controlled and improving, neuropathic pain somewhat 11 controlled, and otherwise normal and intact neurological functions, lack of joint or 12 muscle pain, lack of lower extremity edema, lack of weakness, and a normal gait. (AR 13 25.) 14 The ALJ’s analysis of the medical opinions collectively reflects the ALJ found the 15 least restrictive opinion provided by Dr. Naiman failed to account for Plaintiff’s chronic 16 neuropathy and the most restrictive opinion provided by Dr. Hampshire, lacked 17 corroboration in the record and failed to account for Plaintiff’s improvement and stability 18 of symptoms. (AR 25-26.) And, the ALJ has weighted and discredited the opinions 19 according to those findings. (AR 25-26.) When viewed in the context of the entire ALJ 20 decision, it is apparent the ALJ discredited Dr. Hampshire’s opinion not only because it 21 “lack corroborative support” as to her restrictions but also because the collective medical 22 opinions and medical records did not support any further limitations. The ALJ relied on 23 differences in the medical opinions and lack of support or corroboration in the medical 24 records in determining how much weight to give to each one, including Dr. Hampshire’s, 25 and which restrictions to impose. In addition to providing a detailed and thorough 26 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 27 and making findings,” the ALJ has relied on non-examining physician opinions 28 consistent with other evidence in the record, and the ALJ has “set forth his own 1 interpretations and explain[ed] why they, rather than [Dr. Hampshire’s] are correct.” 2 Tomasetti, 533 F.3d at 1041 (detailed and thorough summary); Thomas, 278 F.3d at 957 3 (non-examining physician opinions); Reddick, 157 F.3d at 725 (own interpretation). 4 2. Restrictions 5 The parties both asserted additional arguments regarding some of the specific 6 restrictions identified in Dr. Hampshire’s opinion. For ease of analysis, the Court groups 7 them as follows : (1) the standing/walking, lift/carry, and one absence per month 8 restrictions and (2) the low stress and symptoms severe enough to interfere with attention 9 and concentration needed for simple tasks occasionally. 10 a) Standing/Walking, Lift/Carry, and Absence Limitations 11 As detailed above, the ALJ’s limitations on Plaintiff’s ability to lift/carry weight, 12 her standing/walking limitations, and her average absences per month were less 13 restrictive than the limitations in Dr. Hampshire’s opinion. (See supra IV.B.1.b)) The 14 ALJ found Plaintiff could lift or carry 20 pounds occasionally and 10 pounds frequently,” 15 while Dr. Hampshire indicated Plaintiff could never lift 10 pounds or more and only 16 occasionally lift less than 10 pounds. (AR 23 (ALJ RFC); AR 1034 (Dr. Hampshire 17 opinion).) The ALJ found Plaintiff could “stand and/or walk for 3 hours in a normal 8- 18 hour day,” and required a “sit/stand option from standing or walking after every 15 19 minutes to sitting for at least 15 minutes.” (AR 23 (ALJ decision).) Dr. Hampshire 20 indicated Plaintiff could only stand/walk less than 2 hours in an 8-hour workday” and 21 would need a “job that permits shifting positions at will from sitting, standing, or 22 walking.” (AR 1033 (emphasis in original).) And, Dr. Hampshire indicated Plaintiff 23 would likely be absent from work one day per month as a result of her impairments or 24 treatment (AR 1034), while the ALJ did not include an absence restriction. (AR 23.) 25 The Court first individually addresses Plaintiff’s assertion that the ALJ substituted 26 his own interpretation of the medical evidence for Dr. Hampshire’s in determining 27 Plaintiff could stand/walk 3 hours in an 8-hour workday with a sit stand option every 15 28 minutes. Plaintiff argues that the “the ALJ’s assessment that [Plaintiff] could stand/walk 1 three hours per workday, and would need a sit/stand option are unsupported by any 2 medical source in the record.” (ECF 19-1 at 8.) However, it is apparent the ALJ’s 3 limitations fall squarely between the opinion of Dr. Ross (six hours standing/walking in 4 an 8-hour workday) and Dr. Hampshire (2 hours standing/walking in an 8-hour workday 5 with sitting, standing, and walking at will) and take into account Plaintiff’s complaints 6 regarding neuropathic pain and Plaintiff’s medical records, as discussed at length above. 7 The ALJ was not required to pick one opinion to the exclusion of every other 8 opinion provided. Rather, the ALJ, must consider all the evidence before it and 9 determine what the ALJ assesses, based on all the evidence, is the most a claimant is 10 capable of doing. 20 C.F.R. § 404.1545(a)(1)(2) (Claimant’s RFC is “the most [they] can 11 still do despite [their] limitations” considering “all the relevant evidence,” including “all 12 medically determinable impairments of which [the Social Security Administration] is 13 aware.”) (emphasis added). And, this Court is not permitted to “substitute [its] judgment 14 for that of the ALJ . . . [w]hen evidence reasonably supports either confirming or 15 reversing the ALJ’s decision.” Batson, 359 F.3d at 1196; see also Ford, 950 F.3d at 1154 16 (“If the evidence is susceptible to more than one rational interpretation, it is the ALJ’s 17 conclusion that must be upheld.”) (citations omitted). 18 Here, it is clear that the ALJ was giving some weight to Dr. Hampshire’s 19 questionnaire response regarding how much Plaintiff could stand/walk in an 8-hour 20 workday and the need to switch from sitting to standing at will. The ALJ’s analysis of 21 both opinions gave some weight to Dr. Hampshire and Dr. Ross which indicates he took 22 into consideration Plaintiff’s persistent complaints regarding pain from peripheral 23 neuropathy. (AR 26 (“further standing and walking limitations warranted based on 24 claimant’s persistent complaints of peripheral neuropathy affecting her feet”) (analyzing 25 Dr. Ross’ opinion); AR 26 (“[O]pinion regarding . . . decreased standing and walking 26 limitations somewhat supported by the claimant’s complaints of neuropathic pain”) 27 (analyzing Dr. Hampshire opinion) (emphasis added).) It is also clear from this 28 explanation that he considered Plaintiff’s self-described “main problem,” peripheral 1 neuropathy. (AR 125 (When asked “[a]ny other medical reasons that prevent you from 2 working on a full-time basis?” she responded “[n]o, just the neuropathy is my main 3 problem.”).) 4 The ALJ did not substitute his own opinion in place of any of the physician 5 opinions, including Dr. Hampshire’s. Rather, he arrived at limitations that took into 6 consideration the two medical opinions in the record that he gave some weight to, 7 Plaintiff’s medical records, and Plaintiff’s complaints regarding her primary issue, 8 peripheral neuropathy. 9 The same is true for the lift/carry and absence limitations. Dr. Ross found Plaintiff 10 could occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds and did not 11 indicate Plaintiff would be absent from work once a month. (AR 117 (Dr. Ross).) These 12 are the same limitations imposed in the RFC. (AR 23 (ALJ RFC); see supra III.D. 13 (Court’s discussion of RFC).) This is supported not only by Dr. Ross’ opinion, but also 14 by the medical evidence, Plaintiff’s testimony, and Dr. Hampshire’s opinion itself. 15 The ALJ notes Dr. Hampshire’s more limited restriction to less than 10 pounds 16 occasionally and one absence per month, along with her standing/walking limitations, 17 and then explains those restrictions are not corroborated by the record, specifically noting 18 recent evidence documenting Plaintiff’s improved condition and stable physical 19 symptoms. (AR 26.) As discussed above, (see supra IV.B.1.a)), the ALJ evaluated the 20 medical evidence regarding Plaintiff’s diabetes and neuropathy (the two diagnoses 21 identified on Dr. Hampshire’s questionnaire) and found Plaintiff diabetes control had 22 been improving and her neuropathic pain was somewhat controlled with medication.12 23 24 25 12 As discussed above, Dr. Hampshire’s restrictions were based on Plaintiff’s diabetes and 26 neuropathy, the only diagnoses identified in Dr. Hampshire’s opinion. But, to the extent 27 any of her restrictions were based on any of Plaintiff’s other disorders without identifying them, the ALJ’s discussion of the lack of current disabling symptoms or complications 28 1 As discussed above, the ALJ’s evaluation of the medical evidence supports discrediting 2 Dr. Hampshire’s opinion and not adopting her restrictions. (See supra IV.B.1.) This 3 analysis is particularly persuasive on the lift/carry and absence restrictions because the 4 ALJ explicitly stated they were not corroborated by the record and identified 5 improvement and stabilization of physical symptoms as a basis. (See supra IV.B.1.; AR 6 26.) 7 Additionally, there is no support for these limitations in Dr. Hampshire’s opinion 8 or in the record. Defendant accurately notes that Dr. Hampshire’s opinion does not 9 identify any records or even provide any explanation supporting Plaintiff only being able 10 to lift 10 pounds occasionally or being absent once a month. (ECF 20 at 11 (citing AR 11 1034).) These items are simply checked off on the form without any explanation or 12 identification of records in support. (AR 1034.) The same is true of the stand/walk 13 limitations, but at least the stand/walk limitations are related to Plaintiff’s neuropathy in 14 her feet, as discussed by the ALJ. As noted above, the opinion states “decreased 15 sensation [in] feet . . . on exam . . . pain is neuropathic” in response to the question 16 “[i]dentify the clinical findings and objective signs:” (AR 1032 (emphasis added).) The 17 only explanations in the opinion, brief as they are, regard Plaintiff’s feet and walking. 18 (AR 1032-33 (questions 4-6, 13-14).) However, there is nothing in the questionnaire 19 related to Plaintiff’s hands, arms, or anything else that might explain such an extreme 20 limitation in the weight she could lift or carry or the absence limitation. The opinion 21 itself and Plaintiff’s own testimony actually suggests the opposite as to the lift/carry 22 restriction. The opinion indicates she has normal grip strength and fine dexterity and 23 Plaintiff herself testified she had no problems using her hands and that was just her feet 24 25 26 27 substantial evidence for not including any additional restrictions associated with those 28 1 that precluded work. (AR 127; see also ECF 20 at 11 (citing AR 1034 and AR 127).) 2 The ALJ noted the same in his discussion of Plaintiff’s testimony.13 (See supra III.E.1.) 3 The ALJ did not err in not including these limitations from Dr. Hampshire’s 4 opinion in the RFC. The ALJ arrived at sitting/standing, lift/carry, and absence 5 limitations based on his evaluation of the medical evidence and the opinions of Dr. Ross 6 and Dr. Hampshire and, as discussed above, the ALJ’s analysis provides specific and 7 legitimate reasons supported by substantial evidence for discrediting Dr. Hampshire’s 8 opinion to the extent he did. (See supra IV.B.1.) 9 b) Low Stress and Attention/Concentration Limitations 10 Plaintiff does not explain what if any medical condition supports limiting Plaintiff 11 to low-stress jobs or would cause symptoms severe enough to occasionally (6%-33% of 12 the time) interfere with the attention and concentration needed to perform simple work 13 tasks. Plaintiff argues the ALJ ignored these limitations and asserts there would not be 14 jobs available for Plaintiff if these restrictions were imposed, but does not provide any 15 basis for the restrictions. (ECF 19-1 at 7 (ignored), 5-6 (no jobs available).) Even when 16 faced with Defendant’s argument that where was no support for them in Dr. Hampshire’s 17 opinion or the record, Plaintiff did not address this point. (ECF 20 at 11.) 18 Defendant argues the ALJ was permitted to reject these restrictions because 19 Plaintiff did not allege a disabling mental health condition, there is no support for them in 20 Plaintiff’s medical records, they were provided on a check-box form, and Dr. Hampshire 21 provided no further explanation in support of these restrictions. (ECF 20 at 11.) The 22 Court largely agrees and also finds the ALJ’s analysis of Plaintiff’s diabetes and 23 peripheral neuropathy, the only possible basis for these restrictions, supports not 24 including these limitations in Plaintiff’s RFC. 25 26 27 13 When asked by her counsel “any problems using your hands then or was it just your 28 1 First, as noted by Defendant in Opposition, and not addressed in a reply from 2 Plaintiff, Plaintiff identifies no explanation in Dr. Hampshire’s opinion or medical 3 records that support these restrictions. (ECF 20 at 7.) In fact, Plaintiff does not even 4 explain any basis, even without citation, for either of these limitations. They seem 5 completely untethered from any of the medical records or medical opinions. 6 Additionally, Dr. Hampshire’s opinion also provides no explanation for either of these 7 restrictions. (AR 1033.) As to the low-stress limitation, she is specifically requested to 8 “Please explain the reasons for your conclusion” on the form, but provides none. (AR 9 1033.) This in itself would be a sufficient basis to exclude these limitations. Batson, 359 10 F.3d at 1195 (“[A]n ALJ may discredit treating physician opinions that are conclusory, 11 brief, an unsupported by the record as a whole, or by objective findings.”). As to these 12 restrictions, Dr. Hampshire’s opinion is conclusory, brief, and unsupported by the record 13 or objective findings. 14 Second, to the extent Plaintiff is suggesting that the ALJ was required to 15 specifically address these restrictions despite no support or explanation for them in the 16 opinion or by Plaintiff, the Court disagrees. “The record must demonstrate that the ALJ 17 considered all of the evidence, but an ALJ is not required to discuss every piece of 18 evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (9th Cir. 1996) (citing Vincent v. 19 Heckler, 739 F.2d 1393, 1394–95 (9th Cir.1984)). “Rather, in addition to discussing the 20 evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence 21 he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id. 22 (citing Vincent, 739 F.2d at 1394-95 and Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 23 1984) (“a minimal level of articulation of the ALJ’s assessment of the evidence is 24 required in cases in which considerable evidence is presented to counter the agency’s 25 position”). 26 As detailed above, the ALJ thoroughly discussed the medical evidence and medical 27 opinions regarding Plaintiff’s neuropathy. The record reflects he considered all the 28 evidence, significantly here regarding her neuropathy, as well as Dr. Hampshire’s 1 opinion. Further analysis regarding restrictions that have no support or explanation was 2 not required. These checked off restrictions with no further explanation or even a 3 reference to the diagnosis they are based on are not significant probative evidence the 4 ALJ was required to discuss to reject. Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 5 1995) (“[I]n reaching [a] decision, the Secretary may not reject ‘significant probative 6 evidence’ without explanation.”) (quoting Vincent, 739 F.2d at 1395); see also Batson, 7 359 F.3d at 1195 (“ALJ may discredit treating physician opinions that are conclusory, 8 brief, and unsupported by the record as a whole, or by objective medical evidence.”). 9 Defendant also notes the lack of explanation from Dr. Hampshire on these 10 limitations is significant because Plaintiff never asserted at any point in the proceedings 11 that she had any mental impairments that would limit her to low-stress jobs or cause 12 symptoms severe enough to interfere with the attention and concentration needed for 13 simple work task 6-33% of the time. The only reference the Court can find to a mental 14 health impairment is Dr. Hampshire checking off “Depression” on the form, but it is 15 followed by “pain causing depression” written next to it, suggesting it is associated with 16 Plaintiff’s neuropathy. (AR 1032.) The only references to pain in the opinion or in 17 Plaintiff’s testimony are associated with the neuropathy. (AR 1032-33.) However, even 18 if the Court puts aside the lack of depression or any mental health condition asserted as a 19 condition limiting her ability to work at any point in the disability proceedings,14 20 Defendant accurately points out that Plaintiff’s medical records would not support work 21 restrictions based on depression. (ECF 20 at 11.) Plaintiff rarely if ever even complained 22 of symptoms associated with depression. (ECF 20 at 11 (citing AR 581, 1136, 1143, and 23 1752) (medical records noting either no depression or mood only slightly depressed).) 24 Even if the Court assumed a diagnosis not claimed by Plaintiff in the disability 25

26 27 14 The only conditions identified as a basis for Plaintiff not being able to work throughout the disability application process were diabetes, high cholesterol, neuropathy, and high 28 1 application process or advanced as a basis in her briefing before this Court, it would not 2 be supported by medical evidence or Dr. Hampshire’s opinion. 3 A conclusive opinion not based on evidence is not entitled to any weight. See Buxton 4 v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (“[T]he ALJ is not bound by conclusory 5 statements of doctors, particularly where they are unsupported by detailed objective criteria 6 and documentation.”); see also Farris v. Comm’r of Soc. Sec., No. 1:11-CV-258, 2012 WL 7 1552634, at *8 (S.D. Ohio Apr. 30, 2012) (“Dr. Swope’s opinion was not based on this 8 evidence and the ALJ was not required to give his opinion any greater weight due to its 9 lack of supporting evidence.”), report and recommendation adopted sub nom. Farris v. 10 Comm’n of Soc. Sec., No. 1:11-CV-258, 2012 WL 1884232 (S.D. Ohio May 22, 2012). 11 The Court is not going to manufacture an explanation or cobble together evidence in 12 support of restrictions neither Dr. Hampshire nor Plaintiff has explained or supported. 13 Even if the Court presumes the limitations to low-stress and having severe enough 14 symptoms to interfere with attention and concentration occasionally are a result of 15 Plaintiff’s peripheral neuropathy and diabetes, the ALJ did not err in not including them. 16 (AR 1032 (question #2 – Diagnoses).) As discussed above, the ALJ discussed Plaintiff’s 17 peripheral neuropathy in detail in discrediting Dr. Hampshire’s opinion and in 18 determining what restrictions were necessary and did not include these. (See supra 19 IV.B.1.) To the extent these restrictions were based on Plaintiff’s neuropathy, they were 20 properly excluded by the ALJ. As discussed at length above, the ALJ thoroughly 21 analyzed Plaintiff’s medical records concerning her diabetes and neuropathy, made 22 findings, considered the medical opinions based on those conditions and determined 23 which restrictions were supported. (See supra IV.B.1.) As detailed above, there is no 24 support for these restrictions in the medical records or any physician opinion15 and the 25 26 27 15 These types of restrictions might have been addressed by Dr. Ross or Dr. Naiman had 28 1 ALJ is not required to “accept the opinion of any physician, including a treating 2 physician, if that opinion is brief, conclusory, and inadequately supported by clinical 3 findings. Ford, 950 F.3d at 1154 (citations omitted) (emphasis added). 4 V. Notice of New Authority 5 After the summary judgment briefing was complete, Plaintiff filed a two page 6 “Notice of New Authority” with citation to Collins v. Yellen, 141 S. Ct. 1761, 1783-84 7 (2021) and Seila Law LLC v CFPB, 140 S. Ct. 2183, 2192 (2020). (ECF 21). 8 Plaintiff notes these decisions and an Office of Legal Counsel (OLC) decision “cast 9 significant doubt onto the constitutionality of the appointment of the Commissioner of 10 Social Security.” (ECF 21 at 1 (citing Constitutionality of the Commissioner of Social 11 Security’s Tenure Protection, 45 Op. O.L.C. (July 8, 2021).) Plaintiff indicates that 12 “Andrew Saul held the office of Commissioner of Social Security as the sole person 13 dischargeable only for cause between July 17, 2019 and July 11, 2021” and that Plaintiff 14 “filed this claim on October 27, 2016, participated in a hearing on September 4, 2018, 15 received a decision dated January 9, 2019, and received a denial of request for review dated 16 December 10, 2019.” (ECF 21 at 1-2.) 17 Although not explicitly stated, the Court can deduce Plaintiff is arguing that 18 because Andrew Saul’s appointment was unconstitutional, he lacked the authority to 19 issue decisions, like the one issued here, as to eligibility for benefits. The Ninth Circuit 20 addressed this issue in an opinion issued on April 27, 2022. Kaufman v. Kijakazi, 32 21 F.4th 843 (9th Cir. 2022). While the court found the removal provision “violates 22 separation of powers principles,” it also found it severable and that a “[c]laimant . . . must 23 demonstrate that the unconstitutional provision actually caused her harm.” Id. at 849 24 (“[U]nless a claimant demonstrates actual harm, the unconstitutional provision has no 25 effect on the claimant’s case.”). 26 27 but understandably, neither opined on them given the only conditions identified as the 28 1 Plaintiff has relied only on Andrew Saul being Commissioner at the time decisions 2 || were made regarding her claim for disability. (ECF 21 at 1-2.) There is no basis for 3 || finding actual harm to claimant from the removal provision. When, as here, “[n]Jothing in 4 ||the record suggests any link whatsoever between the removal provision and the 5 ||claimant’s case,” the removal provision does not impact the validity of the ALJ decision. 6 || VI. CONCLUSION 7 Based on the above reasoning, Plaintiff's motion for summary judgment (ECF No. 8 || 19) is DENIED and the Commissioner’s cross-motion for summary judgment (ECF No. 9 is GRANTED. 10 IT IS SO ORDERED. 11 ||Dated: May 23, 2022 p / / 12 on. Bernard G. Skomal 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21