To v. Saul

• Court: District Court, S.D. California
• Decided: September 14, 2020
• Docket: 3:19-cv-01541
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 . . □ 11 || HIEPDUC T., Case No.: 3:19-cv-01541-RBM 12 Plain, | ORDER AFFIRMING DECISION OF 13 || COMMISSIONER OF SOCIAL 14 || ANDREW SAUL, COMMISSIONER OF SECURITY . 15 SOCIAL SECURITY, - [Does. 12, 16] 16 Defendant. 17 . 18 19 I. INTRODUCTION 20 Plaintiff Hiepduc T. (“Plaintiff”) filed a Complaint under 42 U.S.C. § 405(g) seeking 21 || judicial review of the Commissioner of the Social Security Administration’s (“Defendant” 22 || or “Commissioner” or “SSA”) final decision denying Plaintiff's application for disability 23 || insurance benefits under Title II of the Social Security Act (“the Act’). (Doc. 1.) 24 Before the Court are Plaintiff’s Merits Brief (“Merits Brief”) (Doc. 12),' Defendant’s 25 |fcombined Motion for Summary Judgment and Opposition to Plaintiffs Merits Brief 26 27 || 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 2 || Defendant’s Cross-MSJ and Reply (Doc. 19). 3 The parties consented to the undersigned’s jurisdiction. (Doc. 5; Gen. Or. 707.) 4 || Considering the papers, the Administrative Record (“AR”), the facts, and the applicable 5 Plaintiff's Merits Brief is DENIED, Defendant’s Cross-MSJ is GRANTED, and the 6 || Administrative Law Judge’s (“ALJ”) decision is AFFIRMED. 7 Il. BACKGROUND & PROCEDURAL HISTORY 8 Prior to and concurrent with filing an application for a period of disability and 9 ||disability insurance benefits, Plaintiff participated in the state workers’ compensation 10 ||process. (AR at 40; see AR at 528-781, 806-07.’ During that process, Plaintiff was 11 ||examined and treated by David Kupfer, M.D. (“Dr. Kupfer”) from 2015 to 2018. (Ud. at 12 ||528; see id. at 40, 528-781, 806-07.) From review of the AR, the disposition of the 13 workers’ compensation process is unclear, although it is not determinative to any issue 14 ||here. (See id. at 40, 528-781, 806-07) 15 On January 21, 2016, Plaintiff filed an application for a period of disability and 16 disability insurance benefits under Title II of the Act. (AR at 35; see Doc. 12 at 2.) Plaintiff 17 initially alleged an onset of disability as of October 20, 2015, but later amended the onset 18 to May 8, 2017. (AR at 35, 37.) Plaintiff amended the alleged onset date because 19 ||there were records of substantial gainful activity earnings as a forklift operator for The 20 Coca-Cola Company from 2016 and 2017. (id. at 51,54, 67-68.) Plaintiff stopped working 21 || for Coca-Cola as of May 2017 due to layoffs. (Id at 41, 389-98.) 22 Plaintiff chiefly complains of bilateral carpal tunnel syndrome (“CTS”), ulcerative 23 colitis (“UC”), and diabetes mellitus (“DM”) with diabetic peripheral neuropathy. (See id. 24 37, 55, 60, 67.) Plaintiff alleges his conditions and symptoms continue to worsen, 25 . 26 || Decision” and inappropriately cited Federal Rule of Civil Procedure 56 (i.e., summary judgment). 27 Hereafter, Plaintiff's brief will be referred to as a Merits Brief. 28 * 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.) 2 || Plaintiff alleges pain in the shoulders, hands, abdomen, and numbness in his left foot. (Id. 3 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.) 5 The SSA denied Plaintiff's claim initially and on reconsideration. (/d. at 35.) Next, 6 || Plaintiff requested a hearing before an ALJ, which occurred on April 11, 2018. Ud.) At 7 || the hearing, the ALJ elicited testimony from Plaintiff and a vocational expert (“VE”). (/d.) 8 On August 7, 2018, the ALJ’s written decision found Plaintiff not disabled under the 9 || Act. Ud. at 36-43.) On July 26, 2019, after the Appeals Council denied review of the 10 || ALJ’s. decision, the decision became the final decision of the Commissioner under 42 11 U.S.C. § 405(h). Ud. at 1-6.) 12 Tl. SUMMARY OF ALJ’S FINDINGS 13 | In the decision, the ALJ determined Plaintiff met the insured status requirements of 14 Act through December 31, 2022. (AR at 37.) The ALJ then followed the five-step 15 sequential evaluation process to determine Plaintiff s disability status. See 20 C.F.R. § 16 || 404.1520(a). 17 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 18 || since May 8, 2017, the amended alleged onset date. (AR at 37.) 19 At step two, the ALI found Plaintiff suffers from the following severe impairments: 20 ||CTS, UC, and DM. (/d.) The ALJ found Plaintiff’ s hypertension and anemia as not severe. 21 || Ud. at 37-38.) 22 At step three, the ALJ found Plaintiff did not have an impairment or combination of 23 impairments that met or medically equaled one of the listed impairments. (/d. at 38.) 24 Next, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to 25 || perform light work as defined in 20 C.F.R. § 404.1567(b), except he is unable to climb 26 || ladders, ropes, or scaffolds. Ud.) The RFC included the following limitations: 27 [hJe is able to occasionally climb ramps and stairs, balance, stoop, kneel, crouch, 28 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. . 3 . 4 ||(AR at 38.) 5 In determining the RFC, the ALJ considered all symptoms and the extent to which 6 ||these symptoms can reasonably be accepted as consistent with the objective medical 7 || evidence and other evidence, as required by 20 C.F R. § 404.1529 and SSR 16-3p. Ud.) 8 The ALJ also considered opinion evidence consistent with 20 C.F.R. § 404.1527. □□□□□ 9 In analyzing the same, the ALJ assigned “[g]reat weight” to the opinion of an internal 10 medicine consultative examiner, Phong Dao, D.O. (“Dr. Dao”), finding it consistent with 11 record. (/d. at 40.) Dr. Dao examined Plaintiff in May 2016. Ud.) Dr. Dao found, in 12 || part, that Plaintiff had normal reflexes and coordination, positive bowel sounds, no acute 13 || distress, and opined Plaintiff can perform work at a light exertional level. (Id.) The ALJ 14 only assigned “some weight” to the opinions of state agency medical consultants R. Jacobs, 15 ||M.D. (“Dr. Jacobs”) and P.A. Talcherkar, M.D. (“Dr. Talcherkar’), finding their opinions 16 ||as to RFC “less restricting than the record supports.” (Jd. at 41.) Both Dr. Jacobs and Dr: 17 || Talcherkar examined Plaintiff in 2016 and found him able to perform work at a medium 18 exertional level. Ud.) As to Plaintiff's involvement in the workers’ compensation process, 19 ALJ did not indicate any particular weight he assigned to Plaintiffs treating physician, 20 Kupfer. (Ud. at 40.) The ALJ noted Dr. Kupfer’s opinions were not binding, as they 21 || were produced for the workers” compensation process and not for the SSA process. (/d.) 22 || But the ALJ considered Dr. Kupfer’s findings and found the evaluations relevant and useful 23 analyzing Plaintiff's RFC. (/d.) Dr. Kupfer found Plaintiff limited from repetitive 24 ||overhead lifting and reaching, carrying more than twenty-five pounds, and repetitive 25 || bending, stooping, twisting, and turning. (/d. at 40, 528-781, 806-07.) 26 Ultimately, the ALJ found Plaintiff's medically determinable impairments could 27 ||reasonably be expected to cause the alleged symptoms. (/d. at 39.) But the ALJ found his 28 | □

1 || statements concerning the intensity, persistence and limiting effects of these symptoms as 2 entirely consistent with the medical evidence and other evidence of record. (AR at 39.) 3 At step four, the ALJ found Plaintiff unable to perform any past relevant work as a 4 || forklift operator, a medium job. (/d. at 41.) 5 At step five, after considering Plaintiff's age, education, work experience and RFC, 6 ||the ALJ found there are jobs existing in significant numbers in the national economy that 7 || 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 9 || vehicle rental clerk. (Ud. at 4l -42.) Because the ALJ found Plaintiff capable of performing 10 existing in significant numbers in the national economy, the ALJ determined Plaintiff 11 ||not disabled under the Act. (AR at 41-42; 20 C.F.R. § 404. 1520(g)(1)). 12 IV. ISSUE DISPUTE |

13 This Court’s review is limited to two issues: 14 1. Did the ALJ fail to consider Plaintiff's impairments in combination and thus err 15 ||as a matter of law? (Doc. 12 at 8-9; Doc. 16-1 at 7-8; Doc. 19 at 2-3.) 16 2. Is the ALJ ’s decision supported by substantial evidence? (See Doc. 12 at 9; Doc. 17 || 16-1 at 4-9; Doc. 19 at 3.) 18 V. STANDARD OF REVIEW 19 The Act provides for judicial review of a final agency decision denying a claim for 20 || disability benefits in federal district court. 42 U.S.C. § 405(g). “[FJederal court review of 21 ||social security determinations is limited.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 22 ||1090, 1098 (9th Cir. 2014). A federal court will uphold the Commissioner’s disability 23 || determination if it is free of legal error and is supported by substantial evidence.” Garrison 24 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm’r Soc. Sec. Admin., 25 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means “more than a mere 26 ||scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person 27 ||might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 28 || 1035 (9th Cir. 2007) (internal citation omitted). In reviewing whether the ALJ’s decision 5 .

1 supported by substantial evidence, the Court must consider the record as a whole, 2 ||“weighing both the evidence that supports and the evidence that detracts from the 3 Commissioner’s conclusion... .” Lingenfelter, 504 F.3d at 1035 (quoting Reddick v. 4 || Chater, 157 F.3d 715, 720 (9th Cir. 1998)). 5 The ALJ is responsible for “determining credibility, resolving conflicts in medical 6 ||testimony, and for resolving ambiguities.” E.g., Garrison, 759 F.3d at 1010 (quoting 7 || Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). When evidence supports more 8 ||than one rational interpretation, the ALJ’s conclusion must be upheld. _E.g., Batson v. 9 ||Comm’r Soc. Sec. Admin., 359-F.3d 1190, 1193 (9th Cir. 2004). Stated differently, when 10 || “the evidence can reasonably support either affirming or reversing a decision, [the Court] 11 not substitute [its] judgment for that of the [ALJ].” Garrison, 759 F.3d at 1010 12 || (internal citation omitted). Rather, the Court only reviews the reasons provided by the ALI 13 ||and may not affirm the ALJ on other grounds. /d. (internal citation omitted). 14 VI. DISCUSSION 15 Plaintiff contends the ALJ’s decision should be reversed or remanded for |/committing legal error by failing to consider Plaintiff's impairments in combination 17 ||anywhere in the decision. (Doc. 12 at 6, 8-9.) Plaintiff also generally challenges the RFC 18 || determination, because it did not include postural limitations. (See Doc. 12 at 9; Doc. 19 19 3.) Defendant counters that the ALJ properly considered the medical opinions, each 20 allegedly disabling condition, and how the alleged conditions affect Plaintif? s ability to 21 || work. (Doc. 16-1 at 8.) Defendant argues the ALJ’s RFC finding is properly supported by 22 substantial evidence.. (/d.) 23 A. The ALJ Did Not Commit Error as a Matter of Law 24 As outlined below, the ALJ did not err as a matter of law, because he properly 25 ||considered Plaintiff's impairments in combination at step three of the sequential 26 || evaluation. (AR at 39); Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (citing 20 C.F.R. 27 ||§ 404.1526(a)). Moreover, the portions of the ALJ decision that Plaintiff challenges for 28 || 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 2 || F.3d at 828; see also 20 C.F.R. § 404.1526(a); see also Burch v. Barnhart, 400 F.3d 676, 3 (9th Cir. 2005).

4 i. The ALJ Properly Considered Plaintiff's Impairments in Combination 5 In evaluating plaintiffs with multiple impairments, the ALJ “must consider ‘whether 6 ||the combination of . . . impairments is medically equal to a listed impairment.’” Lester, 81 7 || F.3d at 829. But the ALJ “is not required to discuss the combined effects of a [plaintiff]’s 8 ||impairments or compare them to any listing in an equivalency determination unless the 9 || [plaintiff] presents evidence in an effort to establish equivalence.” Burch, 400 F.3d at 683 10 || (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 12 || otherwise, as to how his impairments combined to equal a listing impairment)); Aguilar v. 13 || Colvin, 19-CV-891-BEN-NLS, 2014 WL 1653109, at *6 (S.D. Cal. April 22, 2014). 14 Here, the ALJ properly considered Plaintiff's impairments in combination in his 15 step-three analysis. The ALJ’s decision discusses the applicable standard, Plaintiffs 16 combination of impairments, the medical record relied upon, and the specific listings 17 || Plaintiff did not meet or medically equal. (AR at 38 (stating, “[Plaintiff] does not have an 18 ||impairment or combination of impairments that meets or medically equals the severity of 19 of the listed impairments . . . The undersigned has reviewed the medical record and 20 || find[s] that .. . [Plaintiffs] impairments do not meet or medically equal listings 5.00, 9.00, 21 || 11.00 or any other listing.”’).) In the ALJ’s decision, he discussed and evaluated □□□□□□□□□□□ 22 CTS, UC, and DM, the medical record, and the medical opinions making his decision. 23 ||(See id. at 38-41.) The applicable law “simply requires an ALJ to discuss and evaluate the 24 || evidence that supports [his] conclusion; it does not specify that the ALJ must do so under 25 [step three] heading” alone. See Lewis, 236 F.3d at 513. - 26 || Further, although the ALJ considered the impairments in combination, he was “not 27 ||required to discuss the combined effects of [Plaintiff's] impairments or compare them to 28 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 2 ||“theory, plausible or otherwise, as to how his [CTS, UC, and DM] combined to equal a 3 || listed impairment.” See Lewis, 236 F.3d at 512, 514 (upholding in part ALJ decision stating 4 ||“[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 6 || has Plaintiff “pointed to evidence that shows that his combined impairments equal a listed 7 |\|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 9 his impairment or combination of impairments meet or medically equal .a listed 10 |/impairment.” (AR at 38.) 11 Not only did the ALJ specifically analyze Plaintiff's combination of impairments at 12 ||step three, but Plaintiff failed to offer any argument that his combination of impairments 13 ||meets or equals a listing. (See Doc. 12.) Thus, there is no error in the ALJ’s decision as 14 his step three determination. . 15 ii. The Requirement to Consider Impairments in Combination is Limited to 16 Step Three of the F ive-Step Sequential Analysis . 17 Plaintiff attempts to impose the step three requirements to consider impairments in 18 ||combination to the ALJ’s RFC analysis. (Doc. 12 at 8-9; AR at 38-41.) But the 19 ||/requirement to consider impairments in combination is limited to step three of the five-step 20 analysis. See Lester, 81 F.3d at 828; see also 20 C.F.R. § 404.1526(a); see also Burch, 400 21 ||F.3d at 679. It does not extend to the RFC analysis. See Lester, 81 F.3d at 828; see also 22 ||20 C.F.R. § 404.1526(a). Indeed, the RFC analysis has its own standard to which the ALJ 23 bound. — 24 If a plaintiff's impairments not meet or equal a listed impairment, then the ALJ 25 || will assess the RFC. 20 C.F.R. § 404.1520(e). In analyzing the RFC, “an ALJ must 26 ||consider all relevant evidence in the record, including, inter alia, medical records, lay 27 ||evidence, and ‘the effects of symptoms. . . that are reasonably attributed to a medically 28 ||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 2 ||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 11 ||individually to determine Plaintiff's RFC. Ud.) □ 12 Plaintiff does not offer any caselaw to support extending the requirement to consider 13 ||impairments in combination to the RFC analysis. (See Docs. 12, 19.) The case law that 14 || Plaintiff cites, Lee v. Colvin, relies upon Ninth Circuit precedent which reiterates the 15 ||requirement to consider impairments in combination at the step three listings stage. (Doc. 16 |} 12 at 8; Lee, 197 F. Supp. 3d 1237, 1247 (D. Or. 2016) (citing Lester, 81 F.3d at 830).) 17 ||Specifically, the court in Lester held that “physical and mental impairments are so 18 inextricably linked, the [ALJ] must consider whether these impairments taken together 19 result in limitations equal in severity to .. . the listings.” Lester, 81 F.3d at 829-30 20 || (emphasis added). 21 Pursuant to Lester, the ALJ was not required to consider Plaintiffs impairments in 22 ||combination in his RFC analysis. 81 F.3d at 828. As such, the ALJ did not err as a matter 23 || of law in this regard. 24 B. The ALJ’s Decision is Supported by Substantial Evidence 25 In addition to alleging legal error, Plaintiff challenges the ALJ’s RFC determination, 26 || including the ALJ’s imposition of postural limitations. See supra Part VI.A., pp. 6-9; (Doc. 27 || 12 at 9; Doc. 19 at 3.) 28

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1 i. The RFC Determination is Supported by Medical Evidence of Record, 2 Plaintiff’s Statements, and Medical Opinions 3 As outlined below, the ALJ’s RFC determination is supported by substantial 4 || 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. 10 First, the ALJ examined Plaintiffs CTS records. (Id. at 39, 528-781.) Testing and 11 ||notes from 2015 revealed chronic right medial neuropathy, tenderness over carpal tunnels, 12 || limited range of motion, and positive Tinel, Phalen, and Durkin signs. (/d.) But the ALJ 13 |Jalso cited evidence where Plaintiff exhibited intact hand strength and reported no loss of 14 muscle bulk in the upper extremities. (/d.) Further, despite allegations of disabling CTS, 15 ||notes from March 2016 and September 2017 revealed Plaintiff had full range of motion in 16 || the extremities without weakness or limitations and 5/5 strength. (/d. at 39, 782-805.) 17 Next, the ALJ examined Plaintiff's UC records. (Id. at 39, 409-72, 484-92, 506-14, 18 || 783-94, 809-14, 851-56.) The ALJ determined—despite allegations of worsening 19 symptoms—the record revealed medication stabilized Plaintiff's symptoms. (Id. at 39.) 20 || Specifically, the ALJ cited notes from a 2016 medical visit where Plaintiff denied concerns 21 reported his UC controlled with medication. (/d. at 39, 809-14, 851-56.) The ALJ also 22 cited treatment notes from September to November 2017 where, despite allegations of 23 frequent UC flare-ups, Plaintiff denied any gastrointestinal symptoms. (Id. at 39, 786-94.) 24 ||Lastly, the ALJ cited a January 2018 doctor’s visit documenting complaints of abdominal 25 pain, but March 2018 notes indicated Plaintiff had no abdominal tenderness. (/d. at 39, 26 783-85.) 27 Finally, the ALJ reviewed Plaintiff's DM records. (Ud. at 40, 377-407, 501-781 , 808- 28 || 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, 2 || where Plaintiff reported feeling better with no limitations on daily living and compliance 3 with medication. (/d. at 40, 782-805.) These examinations revealed normal physical 4 ||exams, sensation, and 5/5 strength. Ud.) The ALJ also cited treatment notes from other 5 || providers which revealed no DM complaints. (/d. at 40.) The ALJ concluded no evidence 6 ||of record revealed complications or end organ damage resulting from Plaintiff's DM, 7 ||except foot numbness. (/d. at 40, 377-407, 501-781.) _

As stated above, the ALJ found Plaintiff's impairment allegations as either partially 9 wholly unsupported by the medical evidence. (/d. at 39.) Given the foregoing medical 10 || evidence of record cited by the ALJ, (See id. at 39-40, 377-407, 409-72, 484-92, 501-781, 11 || 783-85, 782-805, 808-14, 851-56); see also Taber v. Astrue, 383 F. App’x 664, 664 (9th 12 || Cir. 2010) (upholding ALJ determination as supported by substantial evidence where 13 ||medical records indicated malingering and allegations lacked supporting medical 14 || evidence.).

15 2. Plaintiff's Statements 16 The ALJ also assessed the credibility of Plaintiffs statements in the record and at 17 ||the hearing in finding Plaintiff capable of performing work at the light level. (AR at 41.) 18 ||In assessing credibility, the ALJ chiefly relied upon Plaintiff's July 2017 medical report. 19 at 41, 389-98.) There, Plaintiff told the doctor he was laid off in May 2017 due toa 20 || warehouse closure at Coca-Cola. (See id. (record stating “[h]e was laid off on [May 17, 21 || 2017] due to the warehouse closing; he was not fired for cause.”).) This is in direct conflict 22 || with Plaintiffs hearing testimony: “Q: why did you stop working in 2017? A: My hand, 23 ||my shoulder, my leg, and my hip, my neck was [sic] hurting . . . Q: Did you quit or were 24 |lyou let go... 2 A: I just retired.” (Id. at 54, 68-69.) 25 Given Plaintiffs conflicting claims as to his reason for stopping work, the ALJ is 26 ||permitted to resolve conflicts in the testimony and discredit Plaintiffs statements. 27 || Garrison, 759 F.3d at 110. Moreover, an ALJ may rely upon a plaintiff's own statements 28 || 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) 2 |\(stating, “[s]ubstantial evidence supports [the ALJ °s finding,] ...” in part because he 3 ||‘“permissibly relied on [Plaintiffs] own report that he had stopped working . . . not because 4 medical problems but, rather, because he was laid off.”). 5 Similar to Bruton and Williams, the ALJ’s RFC determination is supported by 6 ||substantial evidence as he properly relied upon Plaintiff's own report that he stopped 7 working due to non-medical reasons. 8 3. Medical Opinions 9 Finally, the ALJ properly relied upon examining and non-examining medical 10 || opinions and treatment history, in making his RFC determination. (AR at 39-41.) 11 The ALJ reviewed the opinions and/or treatment records from examining physician 12 ||Dr. Dao, treating physician Dr. Kupfer, and two state agency medical consultants. (/d. at 13 528-781, 806-07, 869-84.) The ALJ gave Dr. Dao’s opinion “lolreat weight,” finding 14 consistent with the record. (Id. at 40; see id. at 869-84.) Dr. Dao’s opinion was the most 15 ||recent and found Plaintiff able to perform work at the light exertional level, including 16 || frequent use of the upper extremities. (Id. at 40, 869-84.) Dr. Dao found Plaintiff in no 17 acute distress and he exhibited normal results for bowel sounds, reflexes, gait, tone, and 18 ||5/5 strength. (/d.) The ALJ also considered Dr. Kupfer’s findings and conclusions 19 ||regarding Plaintiffs functional limitations, but did not give specific weight to the opinion. 20 || (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 22 |lexamined and cited the opinions of state agency medical consultants Dr. Jacobs and Dr. 23 ||Talcherkar. (/d. at 40, 82-91, 93-102.) Both doctor’s opinions found Plaintiff able to 24 perform work at the medium exertional level, with limitations on bilateral upper extremities 25 ||and exposure to extreme cold. (Id. at 41, 82-102.) The ALJ, however, only gave these 26 doctors’ opinions “some weight,” finding their determined RFCs “less restricting than the 27 ||record supports.” (/d.) 28 □ □

1 The ALJ’s reliance on Dr. Dao’s opinion—as an examining source—is substantial 2 |fevidence. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An examining 3 ||source’s “opinion[,] alone constitutes substantial evidence, because it rests on his own 4 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 6 || 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 9 || physician’s] opinion rests on objective clinical tests, it [is] substantial evidence.”)). Both 10 ||Dr. Dao’s and Dr. Kupfer’s last examinations occurred after Plaintiff's alleged onset date 11 disability, and thus both doctors analyzed Plaintiff during the period relevant to the 12 || ALJ’s determination. (See AR at 528-781, 806, 869-84.) Although the ALJ found the state 13 ||agency medical consultants opinions’ not wholly consistent with the record, their 14 determinations also contribute to the ALJ’s findings. and in part constitute substantial 15 ||evidence. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“[t]he opinions of 16 ||non-treating or non-examining physicians may also serve as substantial evidence when the 17 || opinions are consistent with independent clinical findings or other evidence in the record”); 18 || see also Garcia v. Berryhill, 765 F. App’x 176, 176 (9th Cir. 2019) (“[the ALJ] reasonably 19 ||determined that the opinions of the examining and non-examining physicians regarding 20 || [plaintiff's] capacity were consistent with the medical record as a whole and were entitled 21 || to significant weight” and served as substantial evidence.) (citations omitted). 22 ~ The ALJ properly analyzed all available medical opinions and cited to the same to 23 ||support his RFC determination. This is yet another basis to find the ALJ’s decision is 24 supported by substantial evidence. 25 ii. The RFC Determination Properly Included Postural Limitations 26 | Plaintiff cites to the ALJ’s alleged failure to include postural limitations in his RFC 27 || determination as another ground for reversal or remand. (See Doc. 12 at 9.) The ALJ, 28 || 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 2 ||related symptoms . . . affect only [the] ability to meet the demands of jobs other than the 3 strength demands,” the plaintiff has “only non-exertional limitations or restrictions.” See 4 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 10 ||performing the manipulative or postural functions of some work such: as reaching, 11 |/handling, stooping, climbing, crawling, or crouching.”).

12 Here, Plaintiff contends the ALJ “makes no such findings,” because “[p]ostural 13 limitations are generally considered to be limitations on posture, i.e., the requirement for a 14 || sit/stand option.” (Doc. 12 at 9.) But Plaintiff's proposed definition is too limiting, runs 15 ||contrary to SSA rulings, regulations, and case law. The RFC determination properly 16 ||included postural limitations. The ALJ determined Plaintiff could “occasionally climb 17 ramps and stairs, balance, stoop, kneel, crouch and crawl|[,] . . . [and] use his bilateral upper 18 ||extremity for gross manipulation, fine manipulation, and reaching overhead.” (AR at 38.) 19 || These limitations are of the same kind explicitly contemplated by applicable SSA rulings, 20 ||regulations, and case law. See SSR 96-9p; see Grigsby, 2013 WL 3070999, at *3; Tackett, 21 1/180 F.3d at 1102; see also 20 C.F.R. § 416.969a(c)(vi). As such, Plaintiff's postural 22 || limitations argument is rejected. 23 In sum, the undersigned finds the ALJ properly considered Plaintiffs impairments 24 ||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; 26 ||20 C.F.R. § 416.969a(c)(vi); Robbins, 466 F.3d at 883; Tonapetyan, 242 F.3d at 1149. As 27 ||such, Plaintiff’s Merits Brief is DENIED, Defendant’s Cross-MSJ is GRANTED, and the 28 || ALJ’s decision is AFFIRMED.

I . Vil. CONCLUSION 2 _ For the reasons given, the Court finds the ALJ’s decision is supported by substantial 3 || evidence and free of legal error. Accordingly, IT IS HEREBY ORDERED: (1) □□□□□□□□□□□ 4 ||Merits Brief is DENIED; (2) Defendant’s Cross-MSJ is GRANTED; and (3) the ALJ’s 5 || decision is AF FIRMED. The Clerk of Court shall enter Judgment accordingly. 6 IT ISSO ORDERED. 7 ||Dated: September 14, 2020 □

9 ON. RUTH BERMUDEZ MONTENEGRO 10 UNITED STATES MAGISTRATE JUDGE >

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