To v. Saul

Opinion

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. . □ HIEPDUC T., Case No.: 3:19-cv-01541-RBM Plain, | ORDER AFFIRMING DECISION OF COMMISSIONER OF SOCIAL ANDREW SAUL, COMMISSIONER OF SECURITY . SOCIAL SECURITY, - [Does. 12, 16] Defendant. . Plaintiff Hiepduc T. (“Plaintiff”) filed a Complaint under 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of the Social Security Administration’s (“Defendant” or “Commissioner” or “SSA”) final decision denying Plaintiff's application for disability insurance benefits under Title II of the Social Security Act (“the Act’). (Doc. 1.) Before the Court are Plaintiff’s Merits Brief (“Merits Brief”) (Doc. 12),' Defendant’s fcombined Motion for Summary Judgment and Opposition to Plaintiffs Merits Brief As set forth in the briefing schedule (Doc. 9), the undersigned ordered Plaintiff to file a merits brief pursuant to Civil Local Rule 7.1(e)(6)(e). Plaintiff, however, titled the brief “Plaintiff's Memorandum in Support of Motion for Summary Judgment, Reversal or Remand of Commissioner’s Administrative 1 □

1 (“Cross-MSJ’) (Doc. 16), and Plaintiff's combined Memorandum in Opposition to Defendant’s Cross-MSJ and Reply (Doc. 19). The parties consented to the undersigned’s jurisdiction. (Doc. 5; Gen. Or. 707.) Considering the papers, the Administrative Record (“AR”), the facts, and the applicable Plaintiff's Merits Brief is DENIED, Defendant’s Cross-MSJ is GRANTED, and the Administrative Law Judge’s (“ALJ”) decision is AFFIRMED. Il. BACKGROUND & PROCEDURAL HISTORY 8 Prior to and concurrent with filing an application for a period of disability and disability insurance benefits, Plaintiff participated in the state workers’ compensation process. (AR at 40; see AR at 528-781, 806-07.’ During that process, Plaintiff was examined and treated by David Kupfer, M.D. (“Dr. Kupfer”) from 2015 to 2018. (Ud. at 528; see id. at 40, 528-781, 806-07.) From review of the AR, the disposition of the workers’ compensation process is unclear, although it is not determinative to any issue here. (See id. at 40, 528-781, 806-07) On January 21, 2016, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (AR at 35; see Doc. 12 at 2.) Plaintiff initially alleged an onset of disability as of October 20, 2015, but later amended the onset to May 8, 2017. (AR at 35, 37.) Plaintiff amended the alleged onset date because there were records of substantial gainful activity earnings as a forklift operator for The Coca-Cola Company from 2016 and 2017. (id. at 51,54, 67-68.) Plaintiff stopped working for Coca-Cola as of May 2017 due to layoffs. (Id at 41, 389-98.) Plaintiff chiefly complains of bilateral carpal tunnel syndrome (“CTS”), ulcerative colitis (“UC”), and diabetes mellitus (“DM”) with diabetic peripheral neuropathy. (See id. 37, 55, 60, 67.) Plaintiff alleges his conditions and symptoms continue to worsen, . || Decision” and inappropriately cited Federal Rule of Civil Procedure 56 (i.e., summary judgment). Hereafter, Plaintiff's brief will be referred to as a Merits Brief. * All AR citations refer to the number on the bottom right-hand corner of the page, rather than page numbers assigned by the CM/ECF system.

affecting performance of activities of daily living. (AR at 39; see AR at 290-95, 298-3 03.) Plaintiff alleges pain in the shoulders, hands, abdomen, and numbness in his left foot. (Id. 39.) He also alleges he can only stand for fifteen minutes, walk for fifteen minutes, sit for one hour, and cannot lift more than ten pounds. Ud.) The SSA denied Plaintiff's claim initially and on reconsideration. (/d. at 35.) Next, Plaintiff requested a hearing before an ALJ, which occurred on April 11, 2018. Ud.) At the hearing, the ALJ elicited testimony from Plaintiff and a vocational expert (“VE”). (/d.) On August 7, 2018, the ALJ’s written decision found Plaintiff not disabled under the Act. Ud. at 36-43.) On July 26, 2019, after the Appeals Council denied review of the ALJ’s. decision, the decision became the final decision of the Commissioner under 42 U.S.C. § 405(h). Ud. at 1-6.) Tl. SUMMARY OF ALJ’S FINDINGS In the decision, the ALJ determined Plaintiff met the insured status requirements of Act through December 31, 2022. (AR at 37.) The ALJ then followed the five-step sequential evaluation process to determine Plaintiff s disability status. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since May 8, 2017, the amended alleged onset date. (AR at 37.) At step two, the ALI found Plaintiff suffers from the following severe impairments: CTS, UC, and DM. (/d.) The ALJ found Plaintiff’ s hypertension and anemia as not severe. Ud. at 37-38.) At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. (/d. at 38.) Next, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except he is unable to climb ladders, ropes, or scaffolds. Ud.) The RFC included the following limitations: [hJe is able to occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He is able to occasionally use his bilateral upper extremity for gross

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1 } manipulation, fine manipulation, and reaching overhead. He needs to. avoid _ concentrated exposure to unprotected heights, dangerous or fast moving machinery, and cold temperatures. . . (AR at 38.) In determining the RFC, the ALJ considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, as required by 20 C.F R. § 404.1529 and SSR 16-3p. Ud.) The ALJ also considered opinion evidence consistent with 20 C.F.R. § 404.1527. □□□□□ In analyzing the same, the ALJ assigned “[g]reat weight” to the opinion of an internal medicine consultative examiner, Phong Dao, D.O. (“Dr. Dao”), finding it consistent with record. (/d. at 40.) Dr. Dao examined Plaintiff in May 2016. Ud.) Dr. Dao found, in part, that Plaintiff had normal reflexes and coordination, positive bowel sounds, no acute distress, and opined Plaintiff can perform work at a light exertional level. (Id.) The ALJ only assigned “some weight” to the opinions of state agency medical consultants R. Jacobs, M.D. (“Dr. Jacobs”) and P.A. Talcherkar, M.D. (“Dr. Talcherkar’), finding their opinions as to RFC “less restricting than the record supports.” (Jd. at 41.) Both Dr. Jacobs and Dr: Talcherkar examined Plaintiff in 2016 and found him able to perform work at a medium exertional level. Ud.) As to Plaintiff's involvement in the workers’ compensation process, ALJ did not indicate any particular weight he assigned to Plaintiffs treating physician, Kupfer. (Ud. at 40.) The ALJ noted Dr. Kupfer’s opinions were not binding, as they were produced for the workers” compensation process and not for the SSA process. (/d.) But the ALJ considered Dr. Kupfer’s findings and found the evaluations relevant and useful analyzing Plaintiff's RFC. (/d.) Dr. Kupfer found Plaintiff limited from repetitive overhead lifting and reaching, carrying more than twenty-five pounds, and repetitive bending, stooping, twisting, and turning. (/d. at 40, 528-781, 806-07.) Ultimately, the ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (/d. at 39.) But the ALJ found his | □

1 statements concerning the intensity, persistence and limiting effects of these symptoms as entirely consistent with the medical evidence and other evidence of record. (AR at 39.) At step four, the ALJ found Plaintiff unable to perform any past relevant work as a forklift operator, a medium job. (/d. at 41.) At step five, after considering Plaintiff's age, education, work experience and RFC, the ALJ found there are jobs existing in significant numbers in the national economy that Plaintiff can perform. (/d.) Specifically, the ALJ found Plaintiff able to perform jobs at 8 the light exertional level such as a count clerk, furniture rental clerk, and recreational vehicle rental clerk. (Ud. at 4l -42.) Because the ALJ found Plaintiff capable of performing existing in significant numbers in the national economy, the ALJ determined Plaintiff not disabled under the Act. (AR at 41-42; 20 C.F.R. § 404. 1520(g)(1)). IV. ISSUE DISPUTE |

This Court’s review is limited to two issues: 1. Did the ALJ fail to consider Plaintiff's impairments in combination and thus err as a matter of law? (Doc. 12 at 8-9; Doc. 16-1 at 7-8; Doc. 19 at 2-3.) 2. Is the ALJ ’s decision supported by substantial evidence? (See Doc. 12 at 9; Doc. 16-1 at 4-9; Doc. 19 at 3.) The Act provides for judicial review of a final agency decision denying a claim for disability benefits in federal district court. 42 U.S.C. § 405(g). “[FJederal court review of social security determinations is limited.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A federal court will uphold the Commissioner’s disability determination if it is free of legal error and is supported by substantial evidence.” Garrison Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means “more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal citation omitted). In reviewing whether the ALJ’s decision 5 .

supported by substantial evidence, the Court must consider the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion... .” Lingenfelter, 504 F.3d at 1035 (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The ALJ is responsible for “determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” E.g., Garrison, 759 F.3d at 1010 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). When evidence supports more than one rational interpretation, the ALJ’s conclusion must be upheld. _E.g., Batson v. Comm’r Soc. Sec. Admin., 359-F.3d 1190, 1193 (9th Cir. 2004). Stated differently, when “the evidence can reasonably support either affirming or reversing a decision, [the Court] not substitute [its] judgment for that of the [ALJ].” Garrison, 759 F.3d at 1010 (internal citation omitted). Rather, the Court only reviews the reasons provided by the ALI and may not affirm the ALJ on other grounds. /d. (internal citation omitted). Plaintiff contends the ALJ’s decision should be reversed or remanded for /committing legal error by failing to consider Plaintiff's impairments in combination anywhere in the decision. (Doc. 12 at 6, 8-9.) Plaintiff also generally challenges the RFC determination, because it did not include postural limitations. (See Doc. 12 at 9; Doc. 19 3.) Defendant counters that the ALJ properly considered the medical opinions, each allegedly disabling condition, and how the alleged conditions affect Plaintif? s ability to work. (Doc. 16-1 at 8.) Defendant argues the ALJ’s RFC finding is properly supported by substantial evidence.. (/d.) A. The ALJ Did Not Commit Error as a Matter of Law As outlined below, the ALJ did not err as a matter of law, because he properly considered Plaintiff's impairments in combination at step three of the sequential evaluation. (AR at 39); Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (citing 20 C.F.R. § 404.1526(a)). Moreover, the portions of the ALJ decision that Plaintiff challenges for considering the impairments individually concern the RFC analysis which does not require

1 impairments to be considered in combination. (See Doc. 12 at 6, 8-9); see also Lester, 81 F.3d at 828; see also 20 C.F.R. § 404.1526(a); see also Burch v. Barnhart, 400 F.3d 676, (9th Cir. 2005).

i. The ALJ Properly Considered Plaintiff's Impairments in Combination In evaluating plaintiffs with multiple impairments, the ALJ “must consider ‘whether the combination of . . . impairments is medically equal to a listed impairment.’” Lester, 81 F.3d at 829. But the ALJ “is not required to discuss the combined effects of a [plaintiff]’s impairments or compare them to any listing in an equivalency determination unless the [plaintiff] presents evidence in an effort to establish equivalence.” Burch, 400 F.3d at 683 (citing Lewis v. Apfel, 236 F.3d 503, 514 (holding the ALJ’s failure to consider equivalence -11 not reversible error, because the plaintiff did not offer any theory, plausible or otherwise, as to how his impairments combined to equal a listing impairment)); Aguilar v. Colvin, 19-CV-891-BEN-NLS, 2014 WL 1653109, at *6 (S.D. Cal. April 22, 2014). Here, the ALJ properly considered Plaintiff's impairments in combination in his step-three analysis. The ALJ’s decision discusses the applicable standard, Plaintiffs combination of impairments, the medical record relied upon, and the specific listings Plaintiff did not meet or medically equal. (AR at 38 (stating, “[Plaintiff] does not have an impairment or combination of impairments that meets or medically equals the severity of of the listed impairments . . . The undersigned has reviewed the medical record and find[s] that .. . [Plaintiffs] impairments do not meet or medically equal listings 5.00, 9.00, 11.00 or any other listing.”’).) In the ALJ’s decision, he discussed and evaluated □□□□□□□□□□□ CTS, UC, and DM, the medical record, and the medical opinions making his decision. (See id. at 38-41.) The applicable law “simply requires an ALJ to discuss and evaluate the evidence that supports [his] conclusion; it does not specify that the ALJ must do so under [step three] heading” alone. See Lewis, 236 F.3d at 513. - Further, although the ALJ considered the impairments in combination, he was “not required to discuss the combined effects of [Plaintiff's] impairments or compare them to listing... See Burch, 400 F.3d at 683. This is because Plaintiff failed to □□□□□□□□□□ ,

1 evidence in an effort to establish equivalence” to a listing. /d. Plaintiff failed to offer any “theory, plausible or otherwise, as to how his [CTS, UC, and DM] combined to equal a listed impairment.” See Lewis, 236 F.3d at 512, 514 (upholding in part ALJ decision stating “[plaintiff] does not have an impairment or combination of impairments listed in or 5 medically equal to one listed in the regulations.”); see also Burch, 400 F.3d at 683. Nor has Plaintiff “pointed to evidence that shows that his combined impairments equal a listed |\|impairment.” Lewis, 236 F.3d at 514; (see Doc. 12 at 8-9; see also AR at 48-80.) Indeed, 8 the ALJ decision specifically noted this absence of argument: “[Plaintiff] does not argue his impairment or combination of impairments meet or medically equal .a listed /impairment.” (AR at 38.) Not only did the ALJ specifically analyze Plaintiff's combination of impairments at step three, but Plaintiff failed to offer any argument that his combination of impairments meets or equals a listing. (See Doc. 12.) Thus, there is no error in the ALJ’s decision as his step three determination. . ii. The Requirement to Consider Impairments in Combination is Limited to Step Three of the F ive-Step Sequential Analysis . Plaintiff attempts to impose the step three requirements to consider impairments in combination to the ALJ’s RFC analysis. (Doc. 12 at 8-9; AR at 38-41.) But the /requirement to consider impairments in combination is limited to step three of the five-step analysis. See Lester, 81 F.3d at 828; see also 20 C.F.R. § 404.1526(a); see also Burch, 400 F.3d at 679. It does not extend to the RFC analysis. See Lester, 81 F.3d at 828; see also 20 C.F.R. § 404.1526(a). Indeed, the RFC analysis has its own standard to which the ALJ bound. — If a plaintiff's impairments not meet or equal a listed impairment, then the ALJ will assess the RFC. 20 C.F.R. § 404.1520(e). In analyzing the RFC, “an ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence, and ‘the effects of symptoms. . . that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.

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1 2006); see SSR 96-8p; see also 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Careful consideration must be given to “any evidence about symptoms, ‘because subjective 3 descriptions may indicate more severe limitations or restrictions than can be shown by A medical evidence alone.” Robbins, 466 F.3d at 883 (citing SSR 96-8p). The RFC is used 5 to determine if the plaintiff can perform past relevant work or adjust to other work. 20 6 C.F.R. § 404.1520(e). 7 Here, Plaintiff generally alleges the ALJ failed to consider Plaintiff's impairments 8 combination. (See Doc. 12 at 8-9; Doc. 19 at 2-3.) And where Plaintiff cites to the 9 record, he questions the ALJ’s RFC and step-four analysis. (AR at 38; see Doc. 12 at 8- At that portion of the analysis, the ALJ analyzed Plaintiffs CTS, UC, and DM individually to determine Plaintiff's RFC. Ud.) □ Plaintiff does not offer any caselaw to support extending the requirement to consider impairments in combination to the RFC analysis. (See Docs. 12, 19.) The case law that Plaintiff cites, Lee v. Colvin, relies upon Ninth Circuit precedent which reiterates the requirement to consider impairments in combination at the step three listings stage. (Doc. } 12 at 8; Lee, 197 F. Supp. 3d 1237, 1247 (D. Or. 2016) (citing Lester, 81 F.3d at 830).) Specifically, the court in Lester held that “physical and mental impairments are so inextricably linked, the [ALJ] must consider whether these impairments taken together result in limitations equal in severity to .. . the listings.” Lester, 81 F.3d at 829-30 (emphasis added). Pursuant to Lester, the ALJ was not required to consider Plaintiffs impairments in combination in his RFC analysis. 81 F.3d at 828. As such, the ALJ did not err as a matter of law in this regard. B. The ALJ’s Decision is Supported by Substantial Evidence In addition to alleging legal error, Plaintiff challenges the ALJ’s RFC determination, including the ALJ’s imposition of postural limitations. See supra Part VI.A., pp. 6-9; (Doc. 12 at 9; Doc. 19 at 3.)

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1 i. The RFC Determination is Supported by Medical Evidence of Record, Plaintiff’s Statements, and Medical Opinions As outlined below, the ALJ’s RFC determination is supported by substantial evidence, as he relied upon the medical evidence of record, Plaintiff’ s own statements, and 5 the medical opinions of record. (AR at 37-41.) □ 6 1. Medical Evidence of Record 7 The ALJ reviewed Plaintiff's medical history regarding his severe impairments: 8 CTS, UC, and DM. (AR at 39-40.) The ALJ cited instances where Plaintiffs impairment 9 ; allegations were either partially or wholly unsupported by the medical records. First, the ALJ examined Plaintiffs CTS records. (Id. at 39, 528-781.) Testing and notes from 2015 revealed chronic right medial neuropathy, tenderness over carpal tunnels, limited range of motion, and positive Tinel, Phalen, and Durkin signs. (/d.) But the ALJ Jalso cited evidence where Plaintiff exhibited intact hand strength and reported no loss of muscle bulk in the upper extremities. (/d.) Further, despite allegations of disabling CTS, notes from March 2016 and September 2017 revealed Plaintiff had full range of motion in the extremities without weakness or limitations and 5/5 strength. (/d. at 39, 782-805.) Next, the ALJ examined Plaintiff's UC records. (Id. at 39, 409-72, 484-92, 506-14, 783-94, 809-14, 851-56.) The ALJ determined—despite allegations of worsening symptoms—the record revealed medication stabilized Plaintiff's symptoms. (Id. at 39.) Specifically, the ALJ cited notes from a 2016 medical visit where Plaintiff denied concerns reported his UC controlled with medication. (/d. at 39, 809-14, 851-56.) The ALJ also cited treatment notes from September to November 2017 where, despite allegations of frequent UC flare-ups, Plaintiff denied any gastrointestinal symptoms. (Id. at 39, 786-94.) Lastly, the ALJ cited a January 2018 doctor’s visit documenting complaints of abdominal pain, but March 2018 notes indicated Plaintiff had no abdominal tenderness. (/d. at 39, 783-85.) Finally, the ALJ reviewed Plaintiff's DM records. (Ud. at 40, 377-407, 501-781 , 808- 14, 851-56.) The ALJ found the record did not support a finding that Plaintiffs DM is so 10

1 severe as to be disabling. (AR at 40.) The ALJ cited treatment notes from 2017 and 2018, where Plaintiff reported feeling better with no limitations on daily living and compliance with medication. (/d. at 40, 782-805.) These examinations revealed normal physical exams, sensation, and 5/5 strength. Ud.) The ALJ also cited treatment notes from other providers which revealed no DM complaints. (/d. at 40.) The ALJ concluded no evidence of record revealed complications or end organ damage resulting from Plaintiff's DM, except foot numbness. (/d. at 40, 377-407, 501-781.) _

As stated above, the ALJ found Plaintiff's impairment allegations as either partially wholly unsupported by the medical evidence. (/d. at 39.) Given the foregoing medical evidence of record cited by the ALJ, (See id. at 39-40, 377-407, 409-72, 484-92, 501-781, 783-85, 782-805, 808-14, 851-56); see also Taber v. Astrue, 383 F. App’x 664, 664 (9th Cir. 2010) (upholding ALJ determination as supported by substantial evidence where medical records indicated malingering and allegations lacked supporting medical evidence.).

2. Plaintiff's Statements The ALJ also assessed the credibility of Plaintiffs statements in the record and at the hearing in finding Plaintiff capable of performing work at the light level. (AR at 41.) In assessing credibility, the ALJ chiefly relied upon Plaintiff's July 2017 medical report. at 41, 389-98.) There, Plaintiff told the doctor he was laid off in May 2017 due toa warehouse closure at Coca-Cola. (See id. (record stating “[h]e was laid off on [May 17, 2017] due to the warehouse closing; he was not fired for cause.”).) This is in direct conflict with Plaintiffs hearing testimony: “Q: why did you stop working in 2017? A: My hand, my shoulder, my leg, and my hip, my neck was [sic] hurting . . . Q: Did you quit or were lyou let go... 2 A: I just retired.” (Id. at 54, 68-69.) Given Plaintiffs conflicting claims as to his reason for stopping work, the ALJ is permitted to resolve conflicts in the testimony and discredit Plaintiffs statements. Garrison, 759 F.3d at 110. Moreover, an ALJ may rely upon a plaintiff's own statements that he stopped working for non-medical reasons. See Bruton v. Massanari, 268 F.3d 824, ay

1 (9th Cir. 2001); see also Williams v. Colvin, 609 F. App’x 495, 496 (9th Cir. 2015) \(stating, “[s]ubstantial evidence supports [the ALJ °s finding,] ...” in part because he ‘“permissibly relied on [Plaintiffs] own report that he had stopped working . . . not because medical problems but, rather, because he was laid off.”). Similar to Bruton and Williams, the ALJ’s RFC determination is supported by substantial evidence as he properly relied upon Plaintiff's own report that he stopped working due to non-medical reasons. 8 3. Medical Opinions Finally, the ALJ properly relied upon examining and non-examining medical opinions and treatment history, in making his RFC determination. (AR at 39-41.) The ALJ reviewed the opinions and/or treatment records from examining physician Dr. Dao, treating physician Dr. Kupfer, and two state agency medical consultants. (/d. at 528-781, 806-07, 869-84.) The ALJ gave Dr. Dao’s opinion “lolreat weight,” finding consistent with the record. (Id. at 40; see id. at 869-84.) Dr. Dao’s opinion was the most recent and found Plaintiff able to perform work at the light exertional level, including frequent use of the upper extremities. (Id. at 40, 869-84.) Dr. Dao found Plaintiff in no acute distress and he exhibited normal results for bowel sounds, reflexes, gait, tone, and 5/5 strength. (/d.) The ALJ also considered Dr. Kupfer’s findings and conclusions regarding Plaintiffs functional limitations, but did not give specific weight to the opinion. (Id. at 40, 528-781, 806.) The ALJ noted Dr. Kupfer’s opinion was not binding because it 21 generated for Plaintiff's workers’ compensation case. (/d. at 40.) The ALJ also lexamined and cited the opinions of state agency medical consultants Dr. Jacobs and Dr. Talcherkar. (/d. at 40, 82-91, 93-102.) Both doctor’s opinions found Plaintiff able to perform work at the medium exertional level, with limitations on bilateral upper extremities and exposure to extreme cold. (Id. at 41, 82-102.) The ALJ, however, only gave these doctors’ opinions “some weight,” finding their determined RFCs “less restricting than the record supports.” (/d.) □ □

1 The ALJ’s reliance on Dr. Dao’s opinion—as an examining source—is substantial fevidence. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An examining source’s “opinion[,] alone constitutes substantial evidence, because it rests on his own independent examination of [the Plaintiff].” /d. As to Dr. Kupfer’s workers’ compensation 5 }examination, this assessment is analogous to that of a second examining physician conducting an independent examination and “thus qualifies as substantial evidence.” See 7 Ragudo v. Saul, 411 F. Supp. 3d 1125, 1131 (S.D. Cal. 2019) (citing Tonapetyan, 242 F.3d 8 1149; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (stating, “to the extent that [a physician’s] opinion rests on objective clinical tests, it [is] substantial evidence.”)). Both Dr. Dao’s and Dr. Kupfer’s last examinations occurred after Plaintiff's alleged onset date disability, and thus both doctors analyzed Plaintiff during the period relevant to the ALJ’s determination. (See AR at 528-781, 806, 869-84.) Although the ALJ found the state agency medical consultants opinions’ not wholly consistent with the record, their determinations also contribute to the ALJ’s findings. and in part constitute substantial evidence. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“[t]he opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record”); see also Garcia v. Berryhill, 765 F. App’x 176, 176 (9th Cir. 2019) (“[the ALJ] reasonably determined that the opinions of the examining and non-examining physicians regarding [plaintiff's] capacity were consistent with the medical record as a whole and were entitled to significant weight” and served as substantial evidence.) (citations omitted). ~ The ALJ properly analyzed all available medical opinions and cited to the same to support his RFC determination. This is yet another basis to find the ALJ’s decision is supported by substantial evidence. ii. The RFC Determination Properly Included Postural Limitations Plaintiff cites to the ALJ’s alleged failure to include postural limitations in his RFC determination as another ground for reversal or remand. (See Doc. 12 at 9.) The ALJ, however, properly included postural limitations in his RFC determination. (AR at 38.) 13

1 “When the limitations and restrictions imposed by [a plaintiff's] impairments and related symptoms . . . affect only [the] ability to meet the demands of jobs other than the strength demands,” the plaintiff has “only non-exertional limitations or restrictions.” See C.F.R. § 416.969a(c)(1). Postural limitations are non-exertional limitations. See 5 Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). “Postural limitations or restrictions 6 [are] related to such activities as climbing ladders, ropes, or scaffolds, balancing, kneeling, 7 crouching, or crawling ... SSR 96-9p; see Grigsby v. Colvin, No. CV 12-07062-VBK, 8 2013 WL 3070999 at *3 (C.D. Cal. June 18, 2013); see also.20 C.F.R. § 416.969a(c)(vi) 9 (stating, “some examples of nonexertional limitations include . . . [y]ou have difficulty performing the manipulative or postural functions of some work such: as reaching, /handling, stooping, climbing, crawling, or crouching.”).

Here, Plaintiff contends the ALJ “makes no such findings,” because “[p]ostural limitations are generally considered to be limitations on posture, i.e., the requirement for a sit/stand option.” (Doc. 12 at 9.) But Plaintiff's proposed definition is too limiting, runs contrary to SSA rulings, regulations, and case law. The RFC determination properly included postural limitations. The ALJ determined Plaintiff could “occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl|[,] . . . [and] use his bilateral upper extremity for gross manipulation, fine manipulation, and reaching overhead.” (AR at 38.) These limitations are of the same kind explicitly contemplated by applicable SSA rulings, regulations, and case law. See SSR 96-9p; see Grigsby, 2013 WL 3070999, at *3; Tackett, 1/180 F.3d at 1102; see also 20 C.F.R. § 416.969a(c)(vi). As such, Plaintiff's postural limitations argument is rejected. In sum, the undersigned finds the ALJ properly considered Plaintiffs impairments in combination and the RFC determination is supported by substantial evidence. Lester, F.3d at 829; Burch, 400 F.3d at 683; SSR 96-9p; see Grigsby, 2013 WL 3070999, at *3; 20 C.F.R. § 416.969a(c)(vi); Robbins, 466 F.3d at 883; Tonapetyan, 242 F.3d at 1149. As such, Plaintiff’s Merits Brief is DENIED, Defendant’s Cross-MSJ is GRANTED, and the ALJ’s decision is AFFIRMED.

I . Vil. CONCLUSION _ For the reasons given, the Court finds the ALJ’s decision is supported by substantial evidence and free of legal error. Accordingly, IT IS HEREBY ORDERED: (1) □□□□□□□□□□□ Merits Brief is DENIED; (2) Defendant’s Cross-MSJ is GRANTED; and (3) the ALJ’s decision is AF FIRMED. The Clerk of Court shall enter Judgment accordingly. Dated: September 14, 2020 □

ON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE >

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