Yacoobali v. Saul Acting Commissioner of Social Security

• Court: District Court, N.D. California
• Decided: March 20, 2020
• Docket: 4:19-cv-00682
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ISMAIL Y YACOOBALI, Case No. 19-cv-00682-HSG

8 Plaintiff, ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY 9 v. JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR 10 ANDREW SAUL, SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 16, 21

12 13 Defendant Andrew Saul is the Acting Commissioner of the Social Security Administration 14 (“SSA”). The former Acting Commissioner, Nancy Berryhill, acting in her official capacity, 15 denied Plaintiff Ismail Y. Yacoobali’s application for disability insurance benefits (“DIB”). Dkt. 16 No. 1. Plaintiff seeks judicial review of that decision. 17 On May 24, 2019, Defendant lodged the administrative record with the Court. Dkt. No. 12 18 (“AR”). Plaintiff filed his motion for summary judgment on July 19, 2019, Dkt. No. 16 (“Pl. 19 Mot.”); Defendant filed a cross-motion for summary judgment and opposition on August 30, 20 2019, Dkt. No. 21 (“Def. Mot.”). For the reasons set forth below, the Court DENIES Plaintiff’s 21 motion for summary judgment and GRANTS Defendant’s motion for summary judgment. 22 BACKGROUND 23 A. Factual Background 24 On November 25, 2014, Plaintiff filed an application for DIB pursuant to Title II of the 25 Social Security Act (the “Act”), alleging that he became disabled and unable to work as of May 3, 26 2013. (AR 179-80). The agency denied Plaintiff’s application. (AR 110-14, 117-22). Plaintiff 27 then appeared before an Administrative Law Judge (“ALJ”) on September 26, 2017. (AR 33-76). 1 Plaintiff requested review of the ALJ’s decision with the Appeals Council. (AR 178). On 2 December 14, 2018, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s 3 decision a final decision. (AR 1-6). Plaintiff then filed this action pursuant to 42 U.S.C. § 405(g). 4 i. Plaintiff’s Medical Condition 5 Plaintiff alleged that he became disabled and unable to work beginning on May 3, 2013 6 due to a neck and left shoulder injury. (AR 216). Plaintiff alleged that he is unable to carry or lift 7 items, or reach overhead without pain. (AR 249, 254). Plaintiff testified that he could use his left 8 upper extremity to move small items, but not larger items such as a chair. (AR 45). Plaintiff also 9 suffers from hearing loss and headaches. (AR 17). Plaintiff explained that he has pain on his left 10 side, down his left hand to the last three fingers, and that he does not have a solid grip on the left 11 side. (AR 44, 58). Plaintiff also testified that his anxiety and depression make it so that he is 12 unable to socialize. (AR 50-51). Plaintiff was diagnosed with physical and mental impairments 13 that include cervical disc disease, radiculopathy, chronic pain syndrome, migraines, major 14 depression and anxiety. (AR 622, 782, 893, 900). 15 B. Legal Framework of the Social Security Act 16 To qualify for DIB, a claimant must be “disabled” as defined by the Act. Both benefit 17 programs define disabled as an individual’s inability “to engage in any substantial gainful activity 18 by reason of any medically determinable physical or mental impairment which can be expected to 19 result in death or which has lasted or can be expected to last for a continuous period of not less 20 than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505; 21 id. § 416.905. The SSA deems a person disabled only if: 22 [H]is physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, 23 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 24 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 25 him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), 26 “work which exists in the national economy” means work which exists in significant numbers either in the region where such 27 individual lives or in several regions of the country. i. Five-Step Process for Evaluating Claimant’s Disability Claim 1 When the claimant is dissatisfied with the initial and reconsidered decisions by the SSA, 2 the claimant may request a hearing in front of an ALJ. 20 C.F.R. §§ 404.929, 416.1429. The ALJ 3 will issue a new decision based on the preponderance of the evidence developed in the hearing 4 record and in the file. Id. §§ 404.929, 416.1429. To determine whether the claimant qualifies for 5 disability benefits, the ALJ utilizes a five-step sequential evaluation process. See 20 C.F.R. §§ 6 404.1520(a)(4), 416.920(a)(4). 7 a. Step One: Substantial Gainful Work Activity 8 At step one, the ALJ determines whether the claimant is currently engaged in work activity 9 that is substantial and gainful. Id. § 404.1520(a)(4)(i), (b); id. § 416.920(a)(4)(i), (b). Substantial 10 work activity “involves doing significant physical or mental activities . . . even if it is done on a 11 part-time basis” or requires “do[ing] less, get[ting] paid less, or hav[ing] less responsibility than 12 when [the claimant] worked before.” Id. §§ 404.1572(a), 416.972(a). “Gainful work activity is 13 work activity that [the claimant] do[es] for pay or profit . . . whether or not a profit is realized.” 14 Id. §§ 404.1572(b), 416.972(b). If the claimant is engaged in substantial gainful activity, then the 15 claimant is not disabled, regardless of any medical condition or the claimant’s age, education, or 16 work experience. Id. § 404.1520(a)(4)(i), (b); id. § 416.920(a)(4)(i), (b). 17 b. Step Two: Medical Severity of Impairment 18 If the claimant is not presently engaged in substantial gainful activity, then the ALJ 19 determines whether the claimant’s alleged impairments are medically severe. Id. § 20 404.1520(a)(4)(ii), (c); id. § 416.920(a)(4)(ii), (c). If the claimant lacks “any impairment or 21 combination of impairments which significantly limits [the claimant’s] physical or mental ability 22 to do basic work activities,” then the impairments are not severe. Id. §§ 404.1520(c), 404.1521(a), 23 416.920(c), 416.921(a). “Basic work activities” are “the abilities and aptitudes necessary to do 24 most jobs,” including physical functioning, sensory capacity, following instructions, use of 25 judgment, and responding appropriately to routine work situations (including supervision and 26 interactions with coworkers), and dealing with changes to work routines. Id. §§ 404.1521(b), 27 416.921(b). Additionally, “[u]nless [the claimant’s] impairment is expected to result in death, it 1 must have lasted or must be expected to last for a continuous period of at least 12 months.” Id. 2 §§ 404.1509, 404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). If the claimant does not meet these 3 requirements, then he is not disabled, regardless of any medical condition or the claimant’s age, 4 education, or work experience. Id. § 404.1520(a)(4)(ii), (c); id. § 416.920(a)(4)(ii), (c). 5 c. Step Three: Listed Impairment 6 If the claimant has a severe impairment, the ALJ proceeds to step three and determines 7 whether the claimant’s impairment, or combination of impairments, medically “meets or equals” 8 an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1 (“App. 1”). Id. § 404.1520(a)(4)(iii), 9 (d); id. § 416.920(a)(4)(iii), (d); see also id. §§ 404.1525, 416.925 (describing Appendix 1’s 10 purpose, organization, and use). A claimant’s impairment is medically equivalent to a listed 11 impairment if it is “at least equal in severity and duration to the criteria of any listed impairment.” 12 Id. §§ 404.1526(a), 416.926(a). If the claimant’s impairment meets or exceeds the requirements of 13 a listed impairment, the claimant is disabled, regardless of age, education, and work experience. 14 Id. § 404.1520(a)(4)(iii), (d); id. § 416.920(a)(4)(iii), (d). 15 d. Step Four: Residual Functioning Capacity and Past Relevant Work 16 At step four, if the claimant does not have a listed impairment, the ALJ assesses the 17 claimant’s residual functional capacity (“RFC”) and ability to perform past relevant work. 20 18 C.F.R. § 404.1520(a)(4)(iv), (e); id. § 416.920(a)(4)(iv), (e). The ALJ assesses all relevant 19 evidence in the record to determine the claimant’s RFC. Id. §§ 404.1520(e), 416.920(e). The 20 claimant’s RFC gauges the most the claimant can do despite the limitations. Id. §§ 21 404.1545(a)(1), 416.945(a)(1). Before making a determination, the SSA is responsible for 22 developing the claimant’s complete medical history. Id. §§ 404.1545(a)(3), 416.945(a)(3). 23 In the RFC assessment, the ALJ assesses the claimant’s physical and mental abilities, as 24 well as other abilities affected by the claimant’s impairments. Id. §§ 404.1545(b)–(d), 25 416.945(b)–(d). With respect to a claimant’s physical abilities, “[a] limited ability to perform 26 certain physical demands of work activity, such as sitting, standing, walking, lifting, carrying, 27 pushing, pulling, or other physical functions (including manipulative or postural functions, such as 1 other work.” Id. §§ 404.1545(b), 416.945(b). Regarding a claimant’s mental abilities, “[a] limited 2 ability to carry out certain mental activities, such as limitations in understanding, remembering, 3 and carrying out instructions, and in responding appropriately to supervision, coworkers, and work 4 pressures in a work setting, may reduce [the claimant’s] ability to do past work and other work.” 5 Id. §§ 404.1545(c), 416.945(c). Additionally, “[s]ome medically determinable impairment(s), 6 such as skin impairment(s), epilepsy, impairment(s) of vision, hearing or other senses, and 7 impairment(s) which impose environmental restrictions, may cause limitations and restrictions 8 which affect other work-related abilities.” Id. §§ 404.1545(d), 416.945(d). 9 Next, the ALJ compares the claimant’s RFC with the physical and mental demands of the 10 claimant’s past relevant work. Id. §§ 404.1520(f), 416.920(f). If the ALJ determines that the 11 claimant can still perform the past relevant work, then the claimant is not disabled. Id. 12 §§ 404.1520(f), 416.920(f). “Past relevant work” is work that the claimant has done in the past 15 13 years, that qualifies as substantial gainful activity, and that has “lasted long enough for [the 14 claimant] to learn to do it.” Id. §§ 404.1560(b)(1), 416.960(b)(1). The ALJ will determine 15 whether the claimant can do her past relevant work by evaluating the claimant’s testimony on 16 work performed in the past. Id. §§ 404.1560(b)(2), 416.960(b)(2). In addition, the ALJ may 17 evaluate the testimony of other people familiar with the claimant’s past work, the opinions of a 18 vocational expert (“VE”), or other resources, such as the Department of Labor’s Dictionary of 19 Occupational Titles (“DOT”). Id. §§ 404.1560(b)(2), 416.960(b)(2). If the claimant is found not 20 capable of performing past relevant work at step four, then the burden of proof shifts to the 21 Commissioner of the SSA (“Commissioner”) to prove that the claimant is not disabled at step five. 22 See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 23 e. Step Five: Adjustment to Other Work 24 If the claimant cannot perform past relevant work, then at step five the ALJ determines 25 whether the claimant can adjust to other work based on the claimant’s age, education, work 26 experience, and RFC. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The ALJ uses the RFC 27 assessment from step four to determine whether the claimant can adjust to other work. Id. §§ 1 numbers in the national economy that [the claimant] can do,” then the claimant is not disabled. Id. 2 §§ 404.1560(c)(2), 416.920(c)(2). The ALJ may meet the step five burden in two ways: “(1) the 3 testimony of a VE or (2) by reference to the Medical–Vocational Guidelines at 20 C.F.R. pt. 404, 4 subpt. P, app. 2.” See Osenbrock v. Apfel, 240 F.3d 1157, 1161 (9th Cir. 2001). 5 C. Procedural History 6 The ALJ applied the five-step sequential analysis under 20 C.F.R. § 404.1520(a). At step 7 one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged 8 onset date of May 3, 2013. (AR 17). At step two, the ALJ found that Plaintiff had severe 9 impairments, including degenerative disc disease of the cervical spine, depression, and generalized 10 anxiety disorder. (AR 17). At step three, the ALJ found that Plaintiff’s impairments did not meet 11 or equal in severity one of the listed impairments set forth in 20 C.F.R. Part 404, Subpart P, 12 Appendix 1. (AR 18). Between steps three and four, the ALJ found that Plaintiff retained the 13 RFC to perform a reduced level of light work as defined in 20 C.F.R. § 404.1567(b). (AR 19-20). 14 At step four, the ALJ found that Plaintiff could not perform his past relevant work given the 15 limitations in the RFC findings. (AR 25). At step five, the ALJ relied on VE testimony and found 16 that, given Plaintiff’s age, education, work experience, and residual function, there were other jobs 17 that exist in significant numbers that Plaintiff could perform. (AR 25-26). Therefore, the ALJ 18 found that Plaintiff was “not disabled” as defined in the Social Security Act. (AR 26). 19 STANDARD OF REVIEW 20 The Court has jurisdiction to review final decisions of the Commissioner. See 42 U.S.C. § 21 405(g) (“The [district] court shall have power to enter, upon the pleadings and transcript of the 22 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 23 Security, with or without remanding the cause for a rehearing.”). The Court may disturb the 24 Commissioner’s decision to deny benefits only if the decision is not supported by substantial 25 evidence, or is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 26 “Substantial evidence means such relevant evidence as a reasonable mind might accept as 27 adequate to support a conclusion. The evidence must be more than a mere scintilla, but may be 1 quotation marks and citations omitted). “Where the evidence is susceptible to more than one 2 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 3 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 4 The Court must consider the administrative record as a whole, weighing both the evidence 5 that supports and the evidence that detracts from the ALJ’s conclusion. McAllister v. Sullivan, 6 888 F.2d 599, 602 (9th Cir. 1989). The ALJ is responsible for making determinations of 7 credibility and for resolving evidentiary ambiguities, including conflicting medical testimony. 8 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Additionally, the Court “may not 9 reverse an ALJ’s decision on account of an error that is harmless. The burden of showing that an 10 error is harmful normally falls upon the party attacking the agency’s determination.” Molina, 674 11 F.3d at 1111 (internal quotation marks, brackets, and citations omitted). 12 DISCUSSION 13 Plaintiff does not dispute various findings in the record cited by the ALJ. Pl. Mot. at 3. 14 The Court will only address Plaintiff’s contentions regarding the ALJ’s finding of non-disability, 15 specifically the ALJ’s: (1) evaluation of Plaintiff’s credibility; (2) evaluation of medical opinion 16 evidence, namely Dr. Rose Lewis, M.D. and Dr. Tania Shertock, Ph.D; and (3) step five findings. 17 A. The ALJ’s Credibility Analysis 18 First, the ALJ’s primary consideration is the consistency of Plaintiff’s statements with the 19 objective medical evidence. 20 C.F.R. § 404.1529(c)(2). The ALJ did not discount the entirety of 20 Plaintiff’s allegations, and considered Plaintiff’s testimony and the medical opinion evidence in 21 the record. (AR 20-22). However, the ALJ found that elements of Plaintiff’s statements regarding 22 his symptoms were not fully supported by the record. (AR 19-20). The ALJ also found that the 23 objective medical evidence was not entirely consistent with Plaintiff’s alleged limitations. (AR 20- 24 22). 25 The ALJ found that despite Plaintiff’s allegations that he had debilitating neck and left side 26 upper extremity pain, his medical records highlighted that he often exhibited no distress, no 27 swelling or deformity of the cervical area, that his grip strength was normal and his sensation was 1 341-42, 345, 351, 359, 362). The ALJ considered diagnostic imaging, including an August 1, 2 2014 x-ray of Plaintiff’s cervical spine that showed “unremarkable pre-vertebral soft tissues, 3 reversed cervical lordosis, unremarkable disc heights, unremarkable facets, and normal odontoid 4 process.” (AR 21, 479). The ALJ also considered Plaintiff’s September 30, 2014 MRI which 5 showed “no evidence of severe central canal or neural foraminal stenosis.” (AR 21, 883). 6 The ALJ cited to the examination of neurologist Dr. Tarun Arora, M.D., noting that 7 Plaintiff’s left upper extremity showed clear weakness, deltoid strength was 4/5, bicep strength 8 was 5-/5, hand grip was 4/5, thumb opposition was 4/5, and finger abduction was 5/5. (AR 21 9 (citing AR 870)). Nonetheless, Dr. Arora concluded that Plaintiff’s cervical MRI and cervical 10 flexion extension x-rays were relatively unremarkable, and that Plaintiff’s reported degree of 11 muscle weakness and wasting were disproportionate to his imaging studies. (AR 873). The ALJ 12 found that “such motor strength deficits are not of an extreme nature and are not supportive of 13 [Plaintiff’s] assertion that he has no [left hand] grip strength.” (AR 21). The ALJ also considered 14 a December 2015 electromyography test and nerve conduction which found that both were within 15 the normal limits and contained no evidence of electrical instability or radiculopathy. (AR 21, 16 720). The ALJ noted that these diagnostic findings were near contemporaneous with Plaintiff’s 17 subjective statements of a new onset of right upper extremity tremors and worsening left upper 18 extremity pain. (AR 21, 887).1 19 With respect to Plaintiff’s mental impairments, the ALJ noted that “[t]he evidence for the 20 extent and severity of the [Plaintiff’s] mental impairments is similarly mixed,” and that Plaintiff’s 21 mental status examinations in the record did not support the claimed extent of Plaintiff’s reported 22 symptoms. (AR 21). The ALJ noted that, while Plaintiff sometimes exhibited a flat affect or a sad 23 mood, he was often observed to have a normal mood and affect. (AR 21, 484, 486, 672, 702, 810, 24 815, 870). The ALJ also noted that Plaintiff’s depression screenings indicated no symptoms on 25 1 The record also reflects that Plaintiff was referred to Jeffery Ralph, M.D., who performed a 26 neuromuscular subspecialty consultation to assess whether Plaintiff had an underlying myopathy or neuromuscular disorder. (AR 726). In April 2016, Dr. Ralph concluded that neurologically, 27 Plaintiff’s strength is preserved and that the results on the imaging study were “underwhelming.” 1 repeated occasions. (AR 21, 498, 635, 760, 784, 787, 796). The ALJ cited to several mental 2 status examinations that were “normal or near normal,” and highlighted that Plaintiff was alert and 3 oriented, had normal mood and affect, linear and logical thought processes, was “grossly 4 attentive,” and his memory was intact. (AR 21, 491, 493, 495, 627, 629, 631, 633, 702, 728, 882). 5 The ALJ discussed a number of Plaintiff’s activities as part of the basis for her conclusion 6 that Plaintiff’s reporting of symptoms was not entirely consistent with the medical evidence. (AR 7 20-22); see 20 C.F.R. § 404.1529(c)(3)(i) (ALJ may consider daily activities); Molina, 674 F.3d at 8 1112 (ALJ entitled to consider “whether the claimant engages in daily activities inconsistent with 9 the alleged symptoms”). For example, Plaintiff alleged that his depression and anxiety were so 10 severe that he was unable to socialize, and that he could not reach overhead or carry or lift objects. 11 (AR 20-22, 50-51, 249, 254). However, the ALJ found that Plaintiff was able to travel 12 internationally on a 15-hour flight to India where he stayed for six weeks without medical care. 13 (AR 21). The ALJ found that “the record is devoid of any mention of problems resulting from that 14 extensive trip.” (AR 21). The ALJ also noted that Plaintiff was able to drive, perform 15 academically, participate in services at his mosque and attend an interfaith gathering at a local 16 synagogue. (AR 22). The ALJ similarly found that Plaintiff wanted to become an accountant, 17 “which would not be expected of an individual who believes himself to be substantially limited in 18 his mental functioning.” (AR 22). 19 Plaintiff contends that, in assessing the above activities, the ALJ failed to consider 20 testimony that Plaintiff had a difficult time on the plane to India, had to walk up and down the 21 aisle of the plane, could not sleep, and was not “happy.” (Pl. Mot. at 4-5; AR 61-62). Plaintiff 22 contends he testified that he went to India only to visit his sick mother (AR 61), and there was no 23 indication in the record that this was a vacation. Pl. Mot. at 5. Plaintiff similarly contends that 24 “[s]itting (or pacing around) on a plane or even being at his mother’s house for a number of weeks 25 does not contradict any claims nor reflect an ability to perform full time work.” Id. 26 However, the ALJ was entitled to consider whether Plaintiff’s activities were inconsistent 27 with the physical or mental symptoms alleged. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th 1 sufficient reasons for rejecting the claimant’s testimony); Tommasetti v. Astrue, 533 F.3d 1035, 2 1040 (9th Cir. 2008) (ALJ properly doubted the claimant’s testimony about the extent of his pain 3 and limitations based on his ability to travel to Venezuela for an extended time to care for an ailing 4 sister, even though the claimant asserted the need to see a physician for exacerbation of his back 5 pain while traveling). Therefore, in reaching its RFC finding, the ALJ could assess these 6 inconsistencies between Plaintiff’s account and the totality of the record. 7 Lastly, the ALJ cited Plaintiff’s improvement with treatment to show that Plaintiff’s 8 subjective symptom testimony was not supported by the record. (AR 20-22); see 20 C.F.R. § 9 404.1529(c)(3)(iv)(v) (an ALJ considers the nature and effectiveness of treatment a claimant 10 receives). Specifically, the ALJ noted that Plaintiff was engaged in mental health therapy with 11 Patrina Anacker, Psy.D. (AR 21, 738-793). The ALJ found that Plaintiff had made progress 12 working with Dr. Anacker, Psy.D., which had reduced some of Plaintiff’s fears. (AR 21, 51). The 13 ALJ considered chart notes which indicated that Plaintiff was able to remain calm in public or at 14 school, although he was easily upset at home when his kids left things out of order. (AR 21, 758). 15 The ALJ also cited chart notes from 2017 which showed that Plaintiff reported fewer mood 16 swings, felt optimistic about his medication, reported doing well in his classes, was driving more 17 despite his anxiety, and was asked to say a prayer at his mosque on Fridays. (AR 22, 755). The 18 ALJ reasonably concluded that a restriction to occasional public interaction and work that is 19 simple and repetitive would reasonably accommodate Plaintiff’s mental limitations. (AR 22). 20 The Court finds that the ALJ reviewed the above evidence in detail, and provided specific 21 reasons to support the conclusion that Plaintiff’s testimony was contradicted by objective findings 22 in the record. Contrary to Plaintiff’s argument, the ALJ did not simply choose isolated instances 23 of improvement of mental health. See Pl. Mot. at 3 (citing Garrison v. Colvin, 759 F.3d, 995, 24 1017 (9th Cir. 2014)). The ALJ’s decision was properly supported, and Plaintiff fails to meet his 25 burden of showing that the ALJ’s findings lacked substantial evidence. 26 B. Evaluation of Medical Evidence 27 The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. § 1 of examining doctors Rose Lewis, M.D., and Tania Shertock, Ph.D. Pl. Mot. at 6-8. The Court 2 addresses each examining doctor at issue in turn. 3 i. Dr. Rose Lewis, M.D. 4 Dr. Rose Lewis, M.D., a consultative examiner, noted that Plaintiff could stand and walk 5 for four hours, sit for six hours, frequently lift and carry less than 10 pounds, frequently handle 6 and occasionally perform all other manipulative activities. (AR 682). Dr. Lewis concluded that 7 Plaintiff “can frequently stoop, crouch, or kneel, and only occasionally crawl or climb ramps or 8 stairs, and never climb ladders, ropes, or scaffolds. (AR 24). The ALJ assigned this “partial 9 weight” because her opinion was not consistent with her own test results or the record. (AR 24). 10 The ALJ noted that Dr. Lewis’ standing and walking limitations were inconsistent with her 11 testing that showed a negative Romberg test, and normal ambulation without an assistive device. 12 (AR 680). Plaintiff had pain on the left with the straight leg raising test, but had no pain on the 13 right (AR 681), and his motor strength was mostly normal in the bilateral lower extremities (AR 14 681-82). Plaintiff’s sensory exam was grossly intact and his deep tendon reflexes were normal. 15 (AR 682). The ALJ thus found Plaintiff capable of meeting the standing and walking 16 requirements of light work. (AR 21, 24). 17 Although Plaintiff argues that Dr. Lewis found that Plaintiff had difficulty toe-heel 18 walking, Pl. Mot. at 6, that alone does not undermine the ALJ’s findings. The ALJ cited to 19 medical evidence in the record which showed that Plaintiff’s walking pace was within normal 20 limits. (AR 24, 351, 622, 723). The ALJ also noted that the exam of Plaintiff’s right upper 21 extremity was essentially normal, while his left upper extremity and cervical spine showed some 22 limitations. (AR 24). Specifically, although Plaintiff was unable to pick up a paperclip with his 23 left hand, he was able to do so with his right hand. (AR 670). The ALJ cited to Dr. Lewis’ 24 conclusions that Plaintiff had limited range of motion in the cervical region, his range of motion 25 was worse in his left shoulder, and his grip strength on the right was normal but reduced on the 26 left. (AR 24 (citing AR 680-82)). 27 Instead of fully adopting Dr. Lewis’ assessed limitations for the right upper extremity, the 1 frequent handling, fingering, and feeling. (AR 19-20). As to the left side, the ALJ adopted Dr. 2 Lewis’ opinion with respect to manipulative activities and, in some instances, included greater 3 limitations than assessed. (Compare AR 19-20 (ALJ finding that “the claimant . . . can 4 occasionally balance, stoop, kneel, crouch, and crawl) with AR 682 (Dr. Lewis assessment that 5 “stooping, crouching, and kneeling are frequently.”)). The Court finds that the ALJ’s decision 6 was supported by substantial evidence, and the ALJ did not commit legal error in weighing Dr. 7 Lewis’ medical opinion. See Magallanes, 881 F.2d at 753 (when weighing a medical opinion, the 8 ALJ need not agree with the entirety of the opinion, and may consider some sections less 9 significant than others when evaluated against the other evidence of record); 20 C.F.R. § 10 404.1527(3) (“The more a medical source presents relevant evidence to support a medical opinion, 11 particularly medical signs and laboratory findings, the more weight we will give that medical 12 opinion.”); 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a medical opinion is with 13 the record as a whole, the more weight we will give to that medical opinion.”).2 14 ii. Dr. Tania Shertock, Ph.D. 15 The ALJ assigned “partial weight” to the opinion of consultative examiner Dr. Tania 16 Shertock, Ph.D., who opined that Plaintiff is capable of understanding, remembering, and carrying 17 out simple instructions, and moderately limited in understanding, remembering, and carrying out 18 complex instructions, maintaining attention, concentration, persistence and adequate pace, and 19 withstanding the stress of an eight-hour day. (AR 24, 673). Dr. Shertock also noted that Plaintiff 20 is impaired in his ability to adapt to changes in routine work-related settings, and his ability to 21 interact with the public, supervisors, and coworkers was adequate with limitations. (AR 24). 22 The ALJ found Plaintiff capable of performing work involving simple, repetitive tasks 23 with only occasional public contact. (AR 19-20). The ALJ explained that an assessment of 24

25 2 Plaintiff contends that it was also error for the ALJ to assign more weight to the opinion of Janine Marinos, Ph.D., who did not use medical records in formulating her opinion. Pl. Mot. at 7. 26 However, Dr. Marinos did not provide any opinion as to Plaintiff’s physical functional limitations. (AR 685-87). Dr. Marinos stated that “an additional obstacle to adequate work performance may 27 be the claimant’s medical condition. This matter is beyond the scope of today’s evaluation, and is 1 “moderate” in the categories assessed by Dr. Shertock does not directly translate to appropriate 2 language for an RFC finding. (AR 24). The Social Security regulations use the term “moderate” 3 to rate the degree of mental functioning deficits at steps two and three of the sequential evaluation 4 as part of the psychiatric review technique. See 20 C.F.R. § 404.1520a(a), (c)(4) (explaining the 5 use of a five point scale of none, mild, moderate, marked, and extreme). Thus, in articulating the 6 RFC findings, the ALJ was required to translate Dr. Shertock’s assessed limitations of “moderate” 7 into functional limitations. The ALJ explained that Dr. Shertock’s assessment of marked 8 impairment in adaptability is not consistent with Plaintiff’s ability to take an extended 9 international trip, or his successful academic performance in school (AR 24, 61, 747), or Dr. 10 Shertock’s own findings that Plaintiff is able to function adequately, including demonstrating a 11 logical, organized, and coherent thought process and normal insight and judgment. (AR 672). 12 These are proper reasons for discounting parts of Dr. Shertock’s opinion under the regulations. 13 See 20 C.F.R. § 404.1527(c)(4) (consistency) and 20 C.F.R. § 404.1527(c)(3) (supportability); 14 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly discounted doctor’s 15 limitations for being inconsistent with Plaintiff’s level of activity). 16 Plaintiff contends that the ALJ did not consider Dr. Shertock’s opinion that Plaintiff is 17 moderately limited in the areas of maintaining adequate pace or withstanding stress during an 18 eight-hour workday. Pl. Mot. at 7. However, the ALJ reasonably translated Dr. Shertock’s 19 proffered moderate limitations in those areas into her RFC findings when she found Plaintiff to be 20 limited to simple, repetitive tasks, and occasional public contact. See Stubbs-Danielson v. Astrue, 21 539 F.3d 1169, 1173- 74 (9th Cir. 2008) (an RFC for simple, routine, and repetitive work 22 adequately addresses moderate limitations in concentration, persistence, and pace.). The ALJ was 23 not required to accept every aspect of any medical opinion, but instead was simply required to 24 explain findings and support them with substantial evidence, as the ALJ did here. Batson v. 25 Comm. of Social Security Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the evidence 26 before the ALJ is subject to more than one rational interpretation, [the court] must defer to the 27 ALJ’s conclusion.”). The Court thus finds the ALJ’s decision to assign Dr. Shertock’s opinion C. Step Five Findings 1 Lastly, at step five the ALJ made a factual finding that a significant number of jobs exist in 2 the national economy that Plaintiff could perform. (AR 26). That factual finding is “‘conclusive’ 3 in judicial review” of a disability decision so long as it is “supported by ‘substantial evidence.’” 4 Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019) (quoting 42 U.S.C. § 405(g)). 5 Plaintiff contends that the ALJ erred in failing to fully develop the record consistent with 6 the requirement of SSR-00-4p. Pl. Mot. at 8. SSR 00-4p requires that the adjudicator “[i]dentify 7 and obtain a reasonable explanation for any conflicts between occupational evidence provided by 8 VEs or VSs and information in the Dictionary of Occupational Titles (DOT), including its 9 companion publication, the Selected Characteristics of Occupations Defined in the Revised 10 Dictionary of Occupational Titles (SCO), published by the Department of Labor.” 11 At the hearing, the ALJ asked VE Robin Scher to identify light work positions that a 12 hypothetical person who had the same age, education, and work experience and limitations as 13 Plaintiff could perform. (AR 68-69). VE Scher listed jobs such as Office Helper (DOT 239.567- 14 010) with 50,000 jobs nationally; and Photo Copy Machine Operator (DOT 207.685-014) with 15 60,000 jobs nationally. (AR 67). VE Scher explained that the DOT does not address overhead 16 reaching, handedness, or flexion and rotation of the neck. (AR 66). The ALJ found that because 17 the DOT addresses neither dominant hand nor neck flexion, VE Scher could rely on education and 18 experience to render her opinion. (AR 26). VE Scher noted that the information used in providing 19 her testimony concerning those limitations came from her 27 years of experience as a vocational 20 rehabilitation counselor in which she has analyzed “hundreds of jobs.” (AR 66-67). “An ALJ 21 may take administrative notice of any reliable job information, including information provided by 22 a VE. A VE’s recognized expertise provides the necessary foundation for his or her testimony.” 23 Bayliss v. Barnhart, 427 F. 3d 1211, 1218 (9th Cir. 2005) (citing Johnson v. Shalala 60 F.3d. 24 1428, 1435 (9th Cir. 1995)). 25 VE Scher’s experience properly provided substantial evidence to support the step five 26 finding, even without any accompanying data. See Biestek, 139 S. Ct. at 1148 (“A vocational 27 expert’s refusal to provide private market-survey data upon the applicant’s request does not 1 categorically preclude the testimony from counting as “substantial evidence.”); Dewey v. Colvin, 2 650 Fed. App’x 512, 514 (9th Cir. 2016) (finding that because the DOT was silent on whether or 3 || not the jobs in question allowed for a sit/stand option, there was no conflict). Because there was 4 || no potential conflict to resolve, nothing more was required of VE Scher beyond providing her 5 testimony. See Bayliss, 427 F.3d at 1218 (‘A VE’s recognized expertise provides the necessary 6 foundation for his or her testimony” and, therefore, “no additional foundation is required”). 7 The Court finds that VE Scher was not required to provide further support as to how the 8 || representative jobs could be performed, given that she took into account the ALJ’s RFC findings 9 || limiting use of the upper extremities. VE Scher’s testimony was sufficient to meet the substantial 10 || evidence standard, and Plaintiff has failed to identify reversible error in the ALJ’s findings. 3 11 IV. CONCLUSION 12 For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment

13 || and GRANTS Defendant’s Motion for Summary Judgment. The ALJ’s decision is affirmed. The

v 14 || Clerk is directed to enter judgment in favor of Defendant and close the case. © 15 16 IT IS SO ORDERED.

17 || Dated: 3/20/2020

Z 18 Aaiprerd 8 hdl HAYWOOD S. GILLIAM, JR. 19 United States District Judge 20 21 22 23 24 25 26 3 Plaintiff contends that VE Scher created a conflict with the ALJ’s hypothetical question that limited Plaintiff to “occasional” pushing and pulling with the left upper extremity, by testifying 97 || that “these days lots of offices have carts, so the person is not really lifting.” See Dkt. No. 24 at 1- 2 (citing AR 65, 69). The Court finds that the testimony did not create any conflict because VE 2g || Scher unambiguously testified that Plaintiff could perform these types of light work occupations (i.e., office helper and photocopier) as defined in the DOT. (AR 67).