1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KATHY JEAN T., Case No.: 20cv1090-RBB
14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. MOTION FOR SUMMARY JUDGMENT [ECF NO. 14] 16 ANDREW SAUL, Commissioner of Social Security, 17 Defendant. 18
19 On June 15, 2020, Plaintiff Kathy T.1 commenced this action against Defendant 20 Andrew Saul, Commissioner of Social Security, for judicial review under 42 U.S.C. § 21 405(g) of a final adverse decision for disability insurance benefits and supplemental 22 security income [ECF No. 1]. On July 10, 2020, Plaintiff consented to have a United 23 24 25 26 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the Court's Civil Local 27 Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 1 States Magistrate Judge conduct all proceedings in this case [ECF No. 6].2 Defendant 2 filed the Administrative Record on November 24, 2020 [ECF No. 12]. On December 29, 3 2020, Plaintiff’s Merits Brief, construed by the Court as a Motion for Summary 4 Judgment, was filed [ECF No. 14]. Defendant filed an Opposition to Plaintiff’s Motion 5 for Summary Judgment on March 22, 2021 [ECF No. 17]. Plaintiff’s Reply in Support of 6 Merits Brief was filed on April 5, 2021 [ECF No. 18]. The case was transferred to this 7 Court on April 8, 2021 [ECF No. 20]. 8 For the following reasons, Plaintiff's Motion for Summary Judgment is DENIED. 9 I. BACKGROUND 10 Plaintiff Kathy T. was born in 1958 and completed one year of college. (Admin. 11 R. 320, 343, ECF No. 12.)3 She previously worked as a medical caretaker and sustained 12 a work injury to her lower back on August 19, 2014, while lifting a patient into a 13 wheelchair. (Id. at 343, 509.) On or about November 1, 2017, Kathy T. filed 14 applications for disability insurance benefits and supplemental security income under 15 Titles II and XVI of the Social Security Act, respectively. (Id. at 320-32.) She alleged 16 that she had been disabled since September 19, 2014, due to severe arthritis in her neck, 17 disk injury in her neck, eczema on her feet and hands, and carpal tunnel. (Id. at 320, 342, 18 350.) Plaintiff’s applications were denied on initial review and again on reconsideration. 19 (Id. at 283-86, 290-95.) An administrative hearing was conducted on April 3, 2019, by 20 Administrative Law Judge ("ALJ") Louis M. Catanese; on May 9, 2019, he issued a 21 decision finding Plaintiff not disabled. (Id. at 17-29.) Plaintiff requested a review of the 22
23 24 2 The United States has informed the Court of its general consent to Magistrate Judge jurisdiction in cases of this nature. 25 3 The administrative record is filed on the Court’s docket as multiple attachments. The Court will cite to 26 the administrative record using the page references contained on the original document rather than the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). 27 For all other documents, the Court cites to the page numbers affixed by CM/ECF. 1 ALJ's decision; the Appeals Council denied the request on May 5, 2020. (Id. at 1-4.) 2 Plaintiff then commenced this action pursuant to 42 U.S.C. § 405(g). 3 A. ALJ’s Decision 4 On May 9, 2019, the ALJ issued a decision finding that Kathy T. was not disabled. 5 (Id. at 17-29.) Judge Catanese determined that Plaintiff had not engaged in substantial 6 gainful activity since September 19, 2014, her alleged onset date. (Id. at 20.) He found 7 that Plaintiff had severe impairments including degenerative disc disease of the cervical 8 and lumbar spine, obesity, and hypertension. (Id.) He considered the following 9 conditions as nonsevere impairments: bilateral carpal tunnel syndrome, venous 10 insufficiency, thoracic spine degenerative disc disease, hyperlipidemia, knee condition, 11 enlarged heart, exanthematous disorder, and eczema. (Id.) The ALJ determined that 12 Plaintiff did not have an impairment or combination of impairments that met or medically 13 equaled a listed impairment. (Id. at 21.) He stated that Kathy T. had the residual 14 functional capacity to perform no greater than medium work, with additional specified 15 limitations. (Id. at 21-22.) ALJ Catanese concluded that Plaintiff was capable of 16 performing her past relevant work as a caregiver, and had not been under a disability 17 from September 19, 2014, through the date of his decision. (Id. at 28-29.) 18 II. LEGAL STANDARDS 19 Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful 20 applicants to seek judicial review of a final agency decision of the Commissioner. 42 21 U.S.C.A. §§ 405(g), 421(d) (West 2011). The scope of judicial review is limited, 22 however, and the denial of benefits "'will be disturbed only if it is not supported by 23 substantial evidence or is based on legal error.'" Brawner v. Sec'y of Health & Human 24 Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 25 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 26 Substantial evidence means "'more than a mere scintilla but less than a preponderance; it 27 1 is such relevant evidence as a reasonable mind might accept as adequate to support a 2 conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews 3 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); see also Biestek v. Berryhill, ___ U.S. 4 ____, ____, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019). The court must consider 5 the entire record, including the evidence that supports and detracts from the 6 Commissioner's conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 7 573, 576 (9th Cir. 1988). If the evidence supports more than one rational interpretation, 8 the court must uphold the ALJ's decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 9 2005); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The district court may affirm, 10 modify, or reverse the Commissioner's decision. 42 U.S.C.A. § 405(g). The matter may 11 also be remanded to the Social Security Administration for further proceedings. Id. 12 To qualify for disability benefits under the Social Security Act, a claimant must 13 show two things: (1) The applicant suffers from a medically determinable impairment 14 that can be expected to result in death or that has lasted or can be expected to last for a 15 continuous period of twelve months or more, and (2) the impairment renders the 16 applicant incapable of performing the work that he or she previously performed or any 17 other substantially gainful employment that exists in the national economy. See 42 18 U.S.C.A. §§ 423(d)(1)(A), (2)(A) (West 2011). An applicant must meet both 19 requirements to be classified as "disabled." Id. The applicant bears the burden of 20 proving he or she was either permanently disabled or subject to a condition which 21 became so severe as to disable the applicant prior to the date upon which his or her 22 disability insured status expired. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 23 The Commissioner makes this assessment by employing a five-step analysis 24 outlined in 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 25 (9th Cir. 1999) (describing five steps). First, the Commissioner determines whether a 26 claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. 27 1 20 C.F.R. § 404.1520(b) (2019). Second, the Commissioner determines whether the 2 claimant has a "severe impairment or combination of impairments" that significantly 3 limits the claimant's physical or mental ability to do basic work activities. If not, the 4 claimant is not disabled. Id. § 404.1520(c). Third, the medical evidence of the claimant's 5 impairment is compared to a list of impairments that are presumed severe enough to 6 preclude work; if the claimant's impairment meets or equals one of the listed 7 impairments, benefits are awarded. Id. § 404.1520(d). If not, the claimant’s residual 8 functional capacity is assessed and the evaluation proceeds to step four. Id. 9 § 404.1520(e). Fourth, the Commissioner determines whether the claimant can do his or 10 her past relevant work. If the claimant can do their past work, benefits are denied. Id. 11 § 404.1520(f). If the claimant cannot perform his or her past relevant work, the burden 12 shifts to the Commissioner. In step five, the Commissioner must establish that the 13 claimant can perform other work. Id. § 404.1520(g). If the Commissioner meets this 14 burden and proves that the claimant is able to perform other work that exists in the 15 national economy, benefits are denied. Id. 16 III. DISCUSSION 17 Plaintiff makes two arguments. First, she contends that the case should be 18 remanded for consideration of medical records submitted to the Appeals Council after the 19 ALJ’s decision. (Pl.’s Br. 8, ECF No. 14.) Second, she argues that ALJ Catanese failed 20 to properly evaluate two of the medical opinions in the record. (Id. at 9-11.) 21 A. Post-Decision Records 22 At the administrative hearing held on April 3, 2019, Kathy T. testified that she 23 used a cane to walk “all the time,” including inside her home, because her “legs collapse 24 because of the veins.” (Admin. R. 230-31, 232, ECF No. 12.) In his May 9, 2019 25 decision, the ALJ recounted Plaintiff’s testimony but found that the evidence in the 26 record did not support that she regularly used a cane. (Id. at 28.) Judge Catanese noted 27 1 that Kathy T. was not described as using a cane or any assistive device at her medical 2 appointments, and she did not have a cane with her when she attended her consultative 3 examination in January 2018. (Id.) Plaintiff acknowledges that she did not need a cane 4 prior to 2019 but contends that additional records submitted to the Appeals Council in 5 conjunction with her request for review of the ALJ’s decision supported her April 3, 2019 6 testimony that she required the use of a cane. (Pl.’s Reply 2-3, ECF No. 18; see also 7 Admin. R. 2, 77-215, ECF No. 12.) She contends that the use of a cane precludes her 8 from performing her past relevant work as a caregiver, and the case should be remanded 9 to the ALJ for consideration of the supplemental records. (Pl.’s Br. 8, ECF No. 14, citing 10 Admin. R. 145-46, 123, 151, ECF No. 12.) The Commissioner responds that the Appeals 11 Council properly determined that these records did not pertain to the period at issue, that 12 is, the time up to the ALJ’s decision. (Def.’s Opp’n 24, ECF No. 17.) Defendant further 13 contends that Plaintiff was not prescribed a cane, the record lacks evidence that she 14 regularly required the use of a cane, and she can, as the Appeals Council indicated, file a 15 new claim for disability benefits if she contends that she was disabled after May 9, 2019, 16 the date of the ALJ’s decision. (Id. at 24-25 & n.11; see also Admin. R. 2, ECF No. 12.) 17 In Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157 (9th Cir. 2012), the Ninth 18 Circuit held that the administrative record includes evidence submitted for the first time 19 to the Appeals Council, and that such evidence is considered to be a part of the “record as 20 a whole.” (Id. at 1162-63.) In doing so, the circuit court observed that the 21 Commissioner’s regulations permit claimants to submit additional evidence to the 22 Appeals Council and require that it consider the evidence so long as it relates to the 23 period on or before the date of the ALJ’s decision. (Id. at 1162 (citing 20 C.F.R. § 24 404.970(b)).) Here, the records submitted to the Appeals Council and upon which 25 Plaintiff relies do not relate to the period before the ALJ’s decision; at best, they 26 demonstrate that Plaintiff’s physical therapist prescribed the use of a cane on May 28, 27 1 2019, after the ALJ’s decision. (See Admin. R. 145, ECF No. 12 (“patient demonstrated 2 mild limping during gait with no cane[,] currently using borrowed cane[,] will order SPC 3 [single-point cane]”.) Therefore, there is no need to remand to the ALJ for consideration 4 of these records. As set forth in the regulations, “If you submit additional evidence that 5 does not relate to the period on or before the date of the [ALJ] hearing decision . . . the 6 Appeals Council will . . . advise[] you of your right to file a new application.” 20 C.F.R. 7 § 404.970(b). 8 Plaintiff’s testimony at the April 3, 2019 hearing that she regularly used a cane was 9 not, without medical documentation establishing a need for it and the circumstances 10 surrounding that need, sufficient to show that it was medically necessary. See, e.g., 11 Harry B. v. Comm’r Soc. Sec., 3:20-CV-227 (ATB), 2021 WL 1198283, at *8-9 12 (N.D.N.Y. Mar. 30, 2021) (citing cases). The medical notes in the record indicated on 13 many occasions that Plaintiff’s gait and station were normal. (See, e.g., Admin. R. 449, 14 471, 668, 717, 1023, ECF No. 12.) Plaintiff points to no evidence in the medical 15 documentation that during the period before the ALJ’s decision she regularly used a cane 16 to ambulate or that a cane had been prescribed as medically necessary. The Court 17 concludes that substantial evidence supports the ALJ’s decision to not include the use of 18 an assistive device in Kathy T.’s residual functional capacity. 19 B. Evaluation of Medical Opinions 20 Plaintiff takes issue with the ALJ’s finding that the opinions of Thomas J. 21 Sabourin, M.D., a consultative examiner, had more persuasive value than those of Larry 22 D. Dodge, M.D., her treating physician. 23 1. Dr. Dodge’s opinions 24 Dr. Dodge, an orthopedic surgeon, managed Plaintiff’s treatment in connection 25 with her worker’s compensation claim relating to her August 19, 2014 work injury. 26 (Admin. R. 508-09, ECF No. 12.) During the course of her treatment, he gave multiple 27 1 opinions regarding Plaintiff’s limitations, (see 20 C.F.R. §§ 404.1513(a)(2), 2 416.913(a)(2) (2017) (defining “medical opinion” as a statement from a medical source 3 as to a patient’s functional abilities and limitations)), including three discussed by the 4 ALJ.4 On January 30, 2015, the doctor found Kathy T. to be physically capable of 5 working with a thirty-pound lifting limitation. (Admin. R. 508, 511, ECF No. 12.) Nine 6 months later, on October 29, 2015, Dr. Dodge released Plaintiff to modified work duty, 7 including “no repetitive climbing, bending, or twisting and no lifting greater than 25 8 pounds.” (Id. at 482-83.) On June 30, 2016, the treating physician stated in a narrative 9 report that his patient could work with a twenty-five-pound lifting limitation and 10 avoidance of repetitive bending and stooping. (Id. at 451, 454.) That same day, Dr. 11 Dodge completed a one-page report setting forth more restrictive limitations, including 12 restrictions on prolonged sitting; prolonged standing and walking; repetitive climbing, 13 bending, or twisting; and lifting more than ten pounds. (Id. at 549.) 14 The ALJ found “no significant persuasiveness” in Dr. Dodge’s opinions regarding 15 Plaintiff’s limitations because he found the opinions were neither supported by the 16 doctor’s findings nor consistent with the overall evidence. (Id. at 25.) The ALJ reasoned 17 that Dr. Dodge’s reports of normal motor strength, intact sensation, no pathologic 18 reflexes, negative straight-leg raising tests, and no evidence of a limp or antalgic gait 19 were inconsistent with the extent of the functional limitations suggested by the doctor. 20 (Id. at 25-26.) Judge Catanese also observed that although medical evidence in the record 21 showed some abnormal findings, the overall evidence reflected primarily normal 22 findings. (Id. at 26.) 23 / / / 24 25 26 4 An ALJ may address multiple opinions from a single medical source in one analysis. See 20 C.F.R. §§ 27 404.1520c(b)(1); 416.920c(b)(1). 1 2. Dr. Sabourin’s opinions 2 The Plaintiff saw Dr. Sabourin for an orthopedic evaluation on January 8, 2018. 3 (Id. at 1021.) His diagnostic impression consisted of (1) history of degenerative arthritis, 4 cervical spine; (2) mild congenital stenosis and degenerative changes of the lumbar spine, 5 especially in the facets; and (3) history of carpal tunnel syndrome in the left wrist, with 6 no objective findings. (Id. at 1025.) He assessed Kathy T.’s functional limitations as 7 follows: lifting or carrying of fifty pounds occasionally and twenty-five pounds 8 frequently; standing and walking for six hours of an eight-hour workday; sitting for six 9 hours of an eight-hour workday; push and pull limitations equivalent to the lift and carry 10 limitations; climb, stoop, kneel, and crouch frequently; no manipulative limitations; and 11 no need for assistive devices to ambulate. (Id. at 1026.) 12 ALJ Catanese found Dr. Sabourin’s opinions to have “greater persuasiveness” than 13 other medical opinions in the record, including Dr. Dodge’s. (Id. at 26.) He explained 14 that Dr. Sabourin’s opinions were supported by his objective findings and were more 15 consistent with the overall evidence in the record. (Id.) The ALJ noted that Dr. 16 Sabourin’s examination findings, including normal gait and station, diminished cervical 17 and lumbar range of motion, negative straight-leg raising test, full motor strength, intact 18 sensation, and intact deep tendon reflexes, supported the doctor’s opinions regarding 19 Kathy T.’s functional limitations. (Id. at 28, citing id. at 1023-35.) Judge Catanese also 20 determined that Dr. Sabourin’s conclusions were consistent with “the generally 21 unremarkable findings in the overall evidence[.]” (Id. at 28.) 22 3. 2017 revised regulations 23 Plaintiff filed for disability after March 27, 2017. Therefore, the Social Security 24 Administration’s 2017 revised regulations governing the consideration of medical 25 opinions apply. See 20 C.F.R. §§ 404.1520c, 416.920c (2017). Under the updated 26 regulations, an ALJ need “not defer or give any specific evidentiary weight, including 27 1 controlling weight, to any medical opinion(s) or prior administrative finding(s)[5], 2 including those from [a claimant’s] medical sources.” See 20 C.F.R. §§ 404.1520c(a), 3 416.920c(a). Instead, an ALJ is to evaluate medical opinions and prior administrative 4 medical findings by evaluating their “persuasiveness.” Id. In determining how 5 “persuasive” a medical source’s opinions are, an ALJ must consider the following 6 factors: supportability, consistency, treatment or examining relationship, specialization, 7 and “other factors.” Id. §§ 404.1520c(c)(1)-(5); 416.920c(c)(1)-(5). The supportability 8 and consistency factors are “the most important factors.” Id. §§ 404.1520c(b)(2); 9 416.920c(b)(2).6 10 4. Analysis 11 Plaintiff makes several arguments contesting the ALJ’s finding that Dr. Sabourin’s 12 opinions were more persuasive than Dr. Dodge’s opinions. She first contends that the 13 ALJ was required to articulate “specific and legitimate reasons” supported by substantial 14 evidence to reject Dr. Dodge’s opinions that Plaintiff was capable of engaging in more 15 than light work but less than the full range of medium work. (Pl.’s Br. 9, ECF No. 14.)7 16 The “treating source rule” in the prior version of the regulations allowed an ALJ to reject 17
18 19 5 A “prior administrative medical finding” consists of a finding about a medical issue by a “Federal or State agency medical or psychological consultant[] at a prior level of review.” 20 C.F.R. §§ 20 404.1513(a)(4), 416.913(a)(4). 6 Under the prior regulations, an ALJ generally accorded controlling weight to a treating physician when 21 the doctor utilized medically approved diagnostic techniques to support the offered opinion, and where 22 the opinion was not inconsistent with other substantial evidence. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Under the new regulations, a 23 treating source is not entitled to the same presumption, particularly when another medical opinion is more consistent with or better supported by evidence in the record. 20 C.F.R. §§ 404.1520c(a), 24 416.920c(a). 7 Occupations are classified as sedentary, light, medium, heavy, and very heavy under the Social 25 Security regulations. 20 C.F.R. §§ 404.1567, 416.967. “Light work involves lifting no more than 20 26 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” Id. §§ 404.1567(b), 416.967(b). “Medium work involves lifting no more than 50 pounds at a time with 27 frequent lifting or carrying of objects weighing up to 25 pounds.” Id. §§ 404.1567(c), 416.967(c). 1 a treating or examining physician’s uncontradicted medical opinion only for “clear and 2 convincing reasons,” and allowed a contradicted opinion to be rejected only for “specific 3 and legitimate reasons” supported by substantial evidence in the record. See, e.g., 4 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). This measure of deference to a 5 treating physician is no longer applicable under the 2017 revised regulations. See 6 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 7 5853) (Jan. 18, 2017) (available at 2017 WL 168819) (“[W]e are not retaining the 8 treating source rule . . . for claims filed on or after March 27, 2017.”); see also Jones v. 9 Saul, No. 2:19-cv-01273 AC, 2021 WL 620475, at *6 (E.D. Cal. Feb. 17, 2021) (finding 10 the revised regulations valid, entitled to deference, and supersede prior Ninth Circuit case 11 authority interpreting the treating physician rule); Allen T. v. Saul, No. EDCV 19-1066- 12 KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 2020) (“[T]he Court is mindful that it 13 must defer to the new regulations, even where they conflict with prior judicial precedent, 14 unless the prior judicial construction ‘follows from the unambiguous terms of the statute 15 and thus leaves no room for agency discretion.’”) (citing Nat’l Cable & Telecomms. 16 Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005)).8 Therefore, Plaintiff’s 17 argument that the ALJ erred by failing to articulate specific and legitimate reasons 18 supported by substantial evidence to reject Dr. Dodge’s opinions is without merit. 19 Second, Plaintiff contends that Dr. Sabourin’s opinions were not based on 20 substantial evidence in the record because the doctor characterized Plaintiff’s central 21 canal stenosis as “mild” while the other medical evidence in the record considered it to be 22 23 8 Other than superseding the treating physician rule, it is not yet clear how much the revised regulations 24 impact other Ninth Circuit principles applicable to Social Security cases, as appeals of ALJ decisions applying the amended regulations are just starting to reach district courts. In the absence of Ninth 25 Circuit authority interpreting the revised regulations, this Court joins other district courts in “concluding 26 that longstanding general principles of judicial review—especially those rooted in the text of the Social Security Act—still apply to cases filed on or after March 27, 2017.” See, e.g., Thompson v. Comm’r 27 Soc. Sec., No. 2:20-CV-0003 KJN, 2021 WL 1118656, at *3 n.3 (E.D. Cal. Mar. 23, 2021). 1 “moderate.” (Pl.’s Br. 10, ECF No. 14.) Lumbar spinal stenosis is the narrowing of the 2 spaces within the spine which can put pressure on the nerves that travel through the spine. 3 See Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/spinal- 4 stenosis/symptoms-causes/syc-20352961 (last visited May 26, 2021). Some individuals 5 may show evidence of spinal stenosis on an MRI or CT scan but may not have 6 symptoms, while others may experience pain, numbness, tingling, or muscle weakness. 7 Id. Kathy T.’s lumbar MRI showed “congenitally short pedicles with moderate central 8 canal stenosis” and “facet arthropathy, with facet effusions” at L4-L5 and “mild facet 9 arthroplasty” at L5-S1. (Admin. R. 485, ECF No. 12.) 10 Drs. Dodge and Sabourin each acknowledged that the MRI was read as showing 11 “moderate” central canal stenosis at L4-L5. (See id. at 452, 1025.) Dr. Dodge observed 12 that Plaintiff’s radicular symptoms had diminished following an epidural steroid 13 injection, but she would “likely always experience” low back “soreness and tightness” 14 because of her stenosis at L4-L5. (Id. at 483.) He opined that his patient’s lumbar 15 condition required a lifting limitation of twenty-five pounds (i.e., less than the 16 requirement for medium work but more than required for light work). (Id. at 454, 483.)9 17 Dr. Sabourin, on the other hand, determined that Plaintiff remained capable of 18 performing work at a medium level (lifting up to fifty pounds occasionally and twenty- 19 five pounds frequently) and considered her lumbar stenosis to be “mild” notwithstanding 20 her MRI results. (See id. at 1025-26.) He explained, “[Kathy T.] comes in today with the 21 severity and duration of her complaints in some disproportion to the determinable 22 condition. Her lumbar spine has some changes one would expect at her age [fifty-nine], 23 but nothing would seemingly cause compromise to the nerves and she had no 24 25 26 9 Dr. Dodge’s January 30, 2015 opinion that Plaintiff was limited to lifting thirty pounds was rendered 27 prior the lumbar MRI, which was performed on February 14, 2015. (Admin. R. 485, ECF No. 12.) 1 neurological findings.” (Id. at 1025.) Dr. Sabourin acknowledged that on February 14, 2 2015, Dr. Burdeny performed an MRI on Kathy T.’s lumbar spine and Dr. Burdeny noted 3 “moderate central canal stenosis” and facet arthropathy, “mild facet arthropathy at L5- 4 S1,” and “mild desiccation of the L5-S1 disk.” (Id.) Dr. Sabourin concluded that 5 Plaintiff had “[m]ild congenital stenosis and degenerative changes of the lumbar spine, 6 especially in the facets.” (Id.) Dr. Sabourin does not appear to have mistakenly read 7 Plaintiff’s MRI findings as “mild” rather than “moderate” or misstate the evidence in the 8 record. Rather, based on his clinical findings and medical evidence, including the MRI 9 report, Dr. Sabourin reached differing opinions than Dr. Dodge regarding the severity of 10 Plaintiff’s lumbar stenosis and the functional limitations imposed by it. 11 The ALJ found that Dr. Sabourin’s opinions had greater persuasiveness because 12 they were supported by the doctor’s objective findings and were more consistent with the 13 overall evidence in the record. (Id. at 26.) He thus addressed the two key factors 14 identified in the 2017 revised regulations. See 20 C.F.R. §§ 404.1520c(b)(2), 15 416.920c(b)(2) (providing that supportability and consistency are the most important 16 factors when evaluating medical opinion evidence). Plaintiff exhibited some abnormal 17 findings during her examination with Dr. Sabourin, including neck pain at the extremes 18 of motion and with axial load testing, back pain with flexion, and diminished range of 19 motion in both the cervical and lumbar spines. (Admin. R. 1023, ECF No. 12.) Yet, 20 there was no evidence of spasm and her straight-leg raising and other tests were normal. 21 (Id.) The doctor explained that Plaintiff’s lumbar spine changes were expected for her 22 age and that she had no neurological findings suggesting compromise to her nerves. (Id. 23 at 1025.) Substantial evidence substantiates the ALJ’s determination that Dr. Sabourin’s 24 opinions were supported by his objective findings. See, e.g., McKenzie v. Comm’r Soc. 25 Sec., No. 2:19-CV-0138-DMC, 2020 WL 916872, at *4 (E.D. Cal. Feb. 25, 2020) 26 (“While the evidence . . . demonstrates that plaintiff was in fact diagnosed with spinal 27 1 stenosis, the record is also devoid of any statement which particularly confirms that 2 plaintiff had some form of nerve root compromise.”); see also 20 C.F.R. §§ 3 404.1520c(c)(1), 416.920c(c)(1) (“The more relevant the objective medical evidence and 4 supporting explanations presented by a medical source are to support his or her medical 5 opinion(s) . . . , the more persuasive the medical opinion(s) . . . will be.”). 6 The ALJ also reasonably found that Dr. Sabourin’s opinions were more consistent 7 with the evidence from other sources. See id. at §§ 404.1520c(c)(2), 416.920c(c)(2) 8 (“The more consistent a medical opinion(s) . . . is with the evidence from other medical 9 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) 10 . . . will be.”). As ALJ Catanese pointed out, Dr. Sabourin’s opinions were more 11 consistent with findings by other medical sources including Hung Vu, M.D., Evan 12 Minkoff, D.O., Russell J. Trepanier, P.A., and Ebrahim Mohamedy, M.D. (Admin. R. 13 27, ECF No. 12, citing id. at 397, 668-71, 717, 1115, 1118.) During an emergency room 14 visit on November 7, 2015, Dr. Vu’s findings reflected that Kathy T.’s neurological 15 examination was normal. (Id. at 397.) On December 1, 2014, Plaintiff’s physical 16 medicine and rehabilitation consultation with Dr. Minkoff revealed a normal neurologic 17 examination, normal gait pattern, unrestricted lumbar range of motion, no evidence of 18 radiating pain, and a negative straight-leg raising test. (Id. at 668-72.) Dr. Minkoff 19 opined that Kathy T. did not require any specific work restrictions. (Id. at 672.) 20 Similarly, on October 23, 2014, Physician Assistant Trepanier found that Plaintiff had 21 normal gait and posture, no lower extremity or back weakness, and no restriction in the 22 range of motion in her back. (Id. at 717.) These opinions from other medical sources 23 reflect Kathy T.’s condition in 2014 and 2015. Dr. Sabourin assessed Plaintiff’s 24 condition more recently, on January 5, 2018. (Id. at 1021.) And Dr. Mohamedy, whose 25 assessment of Kathy T. was the most recent, detected only non-focal findings during 26 27 1 neurological examinations on December 10, 2018, and January 10, 2019. (Id. at 1115, 2 1118.) 3 Turning to the ALJ’s consideration of Dr. Dodge’s opinions from 2015 through 4 March 29, 2017, Judge Catanese accurately summarized the physician’s findings, 5 including normal motor strength, intact sensation, no pathologic reflexes, negative 6 straight-leg raising tests, and lack of evidence of a limp or antalgic gait. (Id. at 25-26, 7 citing id. at 470-71, 483.) Dr. Dodge’s observations that Plaintiff’s lumbar symptoms 8 were generally “slight to moderate” in nature, were controlled with occasional 9 medications and home exercise, her “moderate” stenosis would result only in “soreness 10 and tightness” in her low back, and a lumbar steroid injection had eliminated her 11 radicular symptoms, support the ALJ’s determination that Dr. Dodge’s opinions and 12 limitations for Kathy T. were not substantiated by his findings and had less persuasive 13 value. (See id. at 470, 473, 476, 482, 483; see also 20 C.F.R. §§ 404.1520c(b)(2), 14 416.920c(b)(2) (explaining supportability factor).) The ALJ also reasonably found that 15 Dr. Dodge’s opinions were not consistent with the findings of other medical sources in 16 the record. (See id. at 27 (citing the same findings by Drs. Vu, Minkoff, Hoang, and 17 Mohamedy discussed above).) The ALJ was entitled to consider the doctors’ opinions, 18 including their interpretation of the MRI findings, and to resolve conflicts in the medical 19 evidence. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Where evidence is 20 susceptible to more than one rational interpretation, the ALJ’s decision should be 21 upheld.” Trevizo, 871 F.3d 664, 674-75 (citing Orn v. Astrue, 495 F.3d 625, 630 (9th 22 Cir. 2007)). The Court finds that the ALJ properly evaluated the conflicting medical 23 opinions of Drs. Sabourin and Dodge, and ALJ Catanese’s determination that Dr. 24 Sabourin’s opinion was more persuasive was supported by substantial evidence. 25 Finally, Kathy T. argues that the ALJ should have granted Dr. Dodge’s opinions 26 greater weight because he examined Plaintiff more frequently than Dr. Sabourin. (Pl.’s 27 1 Br. 11, ECF No. 14 (citing 20 C.F.R. § 404.1520c(c)(3)(ii)).) She contends that the 2 frequency of examinations factor, with “all else being equal, weighs in favor of Dr. 3 Dodge.” (Id.) Again, the 2017 amended regulations clearly provide that the 4 supportability and consistency factors are “the most important factors.” 20 C.F.R. §§ 5 404.1520c(b)(2); 416.920c(b)(2). Even if the “consistency” factor can be interpreted to 6 include Dr. Dodge drawing similar conclusions at other times he treated the plaintiff, that 7 does not change the result. As discussed above, the ALJ could properly find Dr. 8 Sabourin’s opinions were more persuasive than Dr. Dodge’s on the basis that Dr. 9 Sabourin’s opinions had greater support and were more consistent with the overall 10 evidence in the record. See id., §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). Therefore, 11 as the Commissioner observes, the basis for Plaintiff’s argument—that the physicians 12 “agree[d] on the findings” and their opinions had “equal” supportability and 13 consistency—is incorrect. (See Def.’s Opp’n 23 n.10, ECF No. 17.) Moreover, the 14 revised regulations do not require the ALJ to explicitly address the treatment relationship; 15 rather, he may discuss this factor if he finds it appropriate to do so. See 20 C.F.R. §§ 16 404.1520c(b)(2), 416.920c(b)(2) (emphasis added); see also id. §§ 404.1520c(b)(3), 17 416.920c(b)(3) (requiring ALJ to articulate how he considered factors other than 18 supportability and consistency, including the treatment relationship, only when he finds 19 two or more medical opinions about the same issue equally well-supported and consistent 20 with the record). Plaintiff’s argument does not meet this threshold. Therefore, this 21 argument fails. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 1 IV. CONCLUSION 2 For the reasons stated above, Plaintiff's Motion for Summary Judgment is 3 || DENIED. 4 This Order concludes the litigation in this matter. The Clerk shall close the file. 5 IT IS SO ORDERED. 6 || Dated: May 26, 2021 ( ) ! Hon. Ruben B. Brooks 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 17 28 20cv1090-RBB