Tonja Spencer v. Nancy A. Berryhill, No. 2:2017cv07592 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)
Download PDF
<![CDATA[
Tonja Spencer v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONJA CHURCH SPENCER, Plaintiff, 12 13 14 15 16 CASE NO. CV 17-7592 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 I. 19 INTRODUCTION 20 21 Tonja Church Spencer (“Plaintiff”) brings this action seeking 22 to overturn the decision of the Acting Commissioner of Social 23 Security (the “Commissioner” or “Agency”) denying her applications 24 for Disability Insurance Benefits and Supplemental Security Income. 25 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 26 jurisdiction of the undersigned United States Magistrate Judge. 27 (Dkt. Nos. 11, 20-21). 28 AFFIRMS the Commissioner’s decision. For the reasons stated below, the Court Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On August 14, 2014, Plaintiff filed applications for 5 Disability Insurance Benefits and Supplemental Security Income, 6 pursuant to Titles II and XVI of the Social Security Act (“Act”), 7 alleging a disability onset date of April 1, 2014. 8 The Commissioner denied Plaintiff’s applications initially. 9 117-18). (AR 185-94). (AR Plaintiff requested a hearing before an Administrative 10 Law Judge (“ALJ”), which took place on July 6, 2016. (AR 36-64, 11 123). 12 finding that Plaintiff was not disabled because there are jobs in 13 the national economy that she can perform. 14 18, 15 review. The ALJ issued an adverse decision on August 15, 2016, 2017, the Appeals (AR 1-6). Council denied (AR 22-31). Plaintiff’s On August request for This action followed on October 17, 2017. 16 17 III. 18 FACTUAL BACKGROUND 19 20 Plaintiff was born on February 2, 1963. (AR 39, 185). 21 was fifty-three (53) years old when she appeared before the ALJ on 22 July 6, 2016. 23 (AR 39). 24 Plaintiff last worked in December 2012 as a telemarketer. 25 225). 26 condition, depression, and memory loss. (AR 39). She Plaintiff has a ninth-grade education. She is divorced and lives with friends. (AR 39, 185). (AR She alleges disability due to epilepsy, arthritis, heart 27 28 2 (AR 224). 1 A. Plaintiff’s Statements and Testimony 2 3 On September 10, 2014, Plaintiff submitted an Adult Function 4 Report. 5 to chronic, constant pain. 6 her ability to sleep, dress, bathe, clean, feed herself, and take 7 medications timely. 8 shop, and manage her own funds. 9 reads, watches television, and socializes with friends and family. (AR 237-44). She asserted that she is unable to work due (AR 237, 244). (AR 238-39). Her impairments affect Plaintiff is able to drive, (AR 240). During the day, she 10 (AR 241). 11 ability to lift, squat, bend, stand, reach, finger, walk, sit, 12 kneel, climb, concentrate, understand, and remember. 13 Plaintiff uses a cane to ambulate and is able to walk only 10-20 14 steps before needing to rest for 10-20 minutes. Plaintiff asserted that her impairments affect her (AR 242). (AR 242-43). 15 16 On September 12, 2014, Plaintiff submitted a seizure 17 questionnaire. 18 she experiences two to three seizures every month, usually in her 19 sleep. 20 soreness, disorientation, and headaches. (AR 245). (AR 245). Her last seizure was in August 2014 and Following her seizures, she suffers from nausea, (AR 245). 21 22 At Plaintiff’s hearing, she testified that she is unable to 23 work because of pain in her neck, back, and feet from her arthritis 24 and spinal stenosis. 25 tightness in her chest and shortness of breath from her cardiac 26 issues, poor sleep, seizures, residuals from a stroke in 1995, 27 triggering of her right middle finger, frequent headaches, neck 28 tightness and pain, memory problems, COPD, kidney problems, and (AR 41,43). 3 Plaintiff also experiences 1 for the past six months, speech problems. (AR 43-47, 55-58). 2 Plaintiff’s feet are painful, particularly the heel and arch, which 3 feels like “pins and needles,” like her feet are “on fire.” 4 50). 5 and 2400mg of Neurontin daily. 6 effects. (AR 43). 7 marijuana for 8 prescribed by a doctor. (AR Plaintiff described her pain as 6-7/10 despite taking Tylenol (AR 43). She denied any side Plaintiff reported a history of smoking “medical” reasons but acknowledged it was not (AR 46-47). 9 10 Plaintiff initially testified that her seizures are fully 11 controlled with medication, but later testified that she had a 12 seizure the week prior, while in Georgia, and has had eight to ten 13 other seizures over the prior year, usually while she is sleeping. 14 (AR 44, 46, 52-54). 15 headaches for up to five hours. 16 referred her to a neurologist, who in turn referred her to a 17 cardiologist. 18 because they have not returned her call. Her seizures cause fear, uncertainty, and (AR 54). (AR 53). Her primary care doctor She has not followed up with neurology (AR 49). 19 20 Plaintiff asserted that she has to change positions frequently 21 to stay comfortable. (AR 49). She spends most of the day either 22 reclining or in bed. (AR 51). She needs a motorized cart to go 23 grocery shopping. 24 wheelchair to get to the gate, Plaintiff was able to take a nonstop 25 flight from Los Angeles to Georgia the week prior to her hearing. 26 (AR 58-59). (AR 50-51). Nevertheless, other than needing a 27 28 4 1 B. Treatment History 2 3 Plaintiff has a history of depressive disorder, polysubstance 4 abuse 5 strokes, and seizure disorder. 6 Plaintiff presented to the emergency room with suicidal ideations. 7 (AR 282). 8 the hospital from July 15-19 to undergo a cardiac cauterization 9 procedure. 10 with past use of marijuana and cocaine, (AR 285, 297). hypertension, In July 2013, She also complained of chest pain and was admitted to (AR 295). Plaintiff was hospitalized again from August 12-16, 2013, with complaints of chest pain. (AR 327, 332). 11 12 On July 18, 2014, Plaintiff presented with complaints of hip 13 pain. 14 motion, pain during motion of her right hip, tenderness, and 15 weakness in her left lower extremity. 16 revealed arthritis of the right hip. 17 Paul Bourgeois, M.D., prescribed medication and ordered a follow- 18 up in five weeks. 19 the emergency room on multiple occasions, complaining of bilateral 20 hip pain, which she reported as 10/10. 21 389). 22 unremarkable. (AR 392-93). While Plaintiff exhibited a left-sided 23 limp, she had full range of motion in her neck, back, and hips, 24 with normal strength and reflexes and no cranial nerve or sensory 25 deficits. 26 myalgias, back pain, arthralgias, and a gait problem. 27 On September 2, Plaintiff reported ongoing issues with back and 28 hip pain. (AR 356). On On examination, Plaintiff had normal range of (AR 381-83). August 5, (AR 392-93). (AR 422). a (AR 357-58). (AR 358). An x-ray On July 29, Lionel In August, Plaintiff presented to physical (AR 363, 365, 369, 376, examination was largely On August 16, she was positive for Dr. Bourgeois ordered an MRI. 5 (AR 370). (AR 401). A 1 urine drug screen was positive for cannabinoids. 2 MRI of the lumbar spine indicated scoliosis of the lumbar spine 3 with degenerative changes and spinal and foraminal stenosis. 4 431). 5 atrophied. 6 (AR 434). 7 radiating to her right leg. 8 normal range of motion, with the ability to leg raise and rise on 9 her toes and heels without pain. 10 (AR 406). An (AR The imaging also revealed that Plaintiff’s right kidney was (AR 431). Plaintiff was referred for neurosurgery. On September 30, Plaintiff reported lower back pain, her heels while standing. (AR 432). On examination, she had (AR 433). She had some pain in (AR 433). 11 12 On November 5, 2014, Carlos Kronberger, Ph.D., performed a 13 mental status examination on behalf of the Commissioner. (AR 436- 14 39). 15 chronic osteoarthritis. 16 since 17 examination. 18 aches, 19 Gabapentin, 20 Trazadone. 21 inability to care for herself physically. 22 acknowledged that she regularly consumes alcohol and marijuana. 23 (AR 437). 24 drive to work, and occasionally cooks. 25 to pay bills and manage funds but requires reminders. 26 She has no social activities and rarely does any household chores 27 because she cannot stand for very long. Plaintiff reported “constant pain” from her epilepsy and 1995, and with (AR 436). her most (AR 436). back recent one a month prior to the She reported frequent headaches, stomach pain. Lisinopril, (AR 436). She asserted periodic seizures (AR 438). Plaintiff Lovastatin, Baclofen, was prescribed Norco, and She complained of depression because of an (AR 436). Plaintiff Plaintiff is able to dress herself, shop for groceries, 28 6 (AR 437). She knows how (AR 437). (AR 437). Plaintiff 1 denied hallucinations, referential thoughts, paranoid ideations, 2 and suicidal thoughts. (AR 438). 3 4 On examination, Plaintiff maintained a normal gait and 5 posture, with no tics, tremors, or involuntary movements. 6 437). 7 Her speech was intelligible and her language skills adequate for 8 communication. 9 logical and coherent, she maintained eye contact, she was able to 10 understand directions and exerted adequate effort, she did not 11 exhibit any unusual mannerisms, but she was moderately inattentive 12 on tasks. 13 despondent and anxious. 14 Plaintiff was “adequately oriented, although she did not know one 15 of three states that are adjacent to Louisiana.” 16 communications skills were adequate and she was able to understand 17 directions. 18 limited in her daily activities by physical condition and pain.” 19 (AR 439). 20 anxiety 21 condition, and cannabis use disorder. No pain-related postural adjustments were noted. (AR 437). (AR 437-38). (AR 438). (AR (AR 437). Plaintiff’s thought processes were Her affect was downcast and she was (AR 438). Dr. Kronberger concluded that (AR 438). Her Dr. Kronberger opined that Plaintiff “is He diagnosed major depressive disorder, unspecified disorder, psychological factors affecting physical (AR 439). 22 23 Plaintiff began treating with Eugene Soroka, M.D., in August 24 2015. (AR 457). Plaintiff complained of back and hip pain, but 25 otherwise 26 medications. 27 occasionally and smoking marijuana. 28 Plaintiff complained of worsening back pain and abnormal speech, feeling (AR the same 456). with She no adverse acknowledged 7 effects consuming (AR 456). from her alcohol On August 10, 1 associated with headaches. (AR 458). On examination, Dr. Soroka 2 noted mild lumbar tenderness. 3 referred Plaintiff to a neurologist and a pain specialist. 4 459). 5 right kidney was heterogeneous and mildly atrophic, her left kidney 6 was consistent with Plaintiff’s history of renal disease, and her 7 bladder was normal. 8 continuing back pain. 9 Neurontin dosage. (AR 461). 10 Plaintiff’s prescription. 11 Plaintiff complained of urinary incontinence. 12 assessed with chronic obstructive pulmonary disease (COPD) and 13 prescribed Advair. (AR 458). He prescribed Norco and (AR A renal and bladder ultrasound indicated that Plaintiff’s Norco (AR 475). On August 21, Plaintiff reported (AR 460). Dr. Soroka increased Plaintiff’s On August 26, Dr. Soroka refilled (AR 462). On December (AR 463). 9, She was (AR 464). 14 15 Plaintiff began treating with LAGS Spine and Sportscape in 16 September 2015. 17 right foot, which she assessed as 7/10 without medication, 4/10 18 with medication. 19 pain 20 aggravated by activity and relieved with rest, and denied any side 21 effects from her medications. 22 agreement and was prescribed the “lowest effective dose of pain 23 medication.” 24 for medication refills and injections. 25 1, a nurse practitioner found that Plaintiff was self-adjusting 26 her Norco dosage and denied Plaintiff’s request for an increased 27 prescription. 28 her medication as prescribed. radiating (AR 517). She complained of pain in her hips and (AR 517). to her (AR 517). Plaintiff reported disturbed sleep, bilateral lower extremities, (AR 517). which is She signed a pain Thereafter, Plaintiff was seen monthly (AR 477, 502). (AR 485-531). On December Plaintiff was instructed to take (AR 477). 8 On February 10, 2016, 1 Plaintiff reported pain in her hips and lower back. 2 examination, she had reduced range of motion in in her lumbar 3 spine. 4 and prescribed rehabilitation exercises. 5 2016, Plaintiff’s drug screen was negative, which was unexpected 6 given Plaintiff’s Norco prescription. (AR 489). Plaintiff’s Norco 7 dosage was decreased and she was warned that her pain treatment 8 would be stopped if this issue recurred. 9 2016, Plaintiff received a trigger finger injection. (AR 493-94). (AR 493). On She was diagnosed with a hip flexor strain (AR 494). (AR 489). On March 9, On April 7, (AR 487). 10 11 On October 30, 2015, Plaintiff presented to Ishu Rao, M.D., 12 for a cardiology consultation. (AR 441). 13 feeling “reasonably well” but noted some left-sided weakness, left 14 facial droop, and speech deficits. 15 implanted on November 11, 2015, to rule out cardiac problems. 16 443, 445). (AR 441). Plaintiff reported A loop recorder was (AR 17 18 On March 2, 2016, Plaintiff reported a change in her urine 19 smell. (AR 465). 20 7, 2016, Plaintiff complained of worsening insomnia. 21 Otherwise, she was feeling the same and taking all her medications 22 with 23 Trazodone. 24 loss, associated with poor sleep and increasing stress and anxiety. 25 (AR 469). 26 started Clonazepam and Fluticasone. no adverse A urinalysis was ordered. effects. (AR 468). (AR 467). Dr. (AR 466). Soroka On March (AR 467). prescribed On April 11, Plaintiff complained of memory Dr. Soroka increased Plaintiff’s Trazodone dosage and 27 28 9 1 On June 3, 2016, (AR Dr. Soroka impairments cause low back pain, shortness of breath, neck pain, 4 and 5 impairments would constantly interfere with the attention and 6 concentration necessary to perform even simple tasks. 7 Dr. Soroka concluded that Plaintiff can walk only ½ block before 8 needing to rest and can sit only five minutes and stand only ten 9 minutes before needing to switch positions. He opined that RFC 3 532-33). reported physical questionnaire. (AR He a 2 depression. 532-36). completed Plaintiff’s that Plaintiff’s (AR 533). (AR 533). Plaintiff 10 can sit, stand, or walk less than two hours in an eight-hour 11 workday. 12 “low stress” jobs. 13 ten pounds and can rarely twist, stoop, crouch, squat, or climb. 14 (AR 534-35). 15 more than four days a month due to her impairments. (AR 534). He opined that Plaintiff is incapable of even (AR 533). Plaintiff can rarely lift less than Dr. Soroka concluded that Plaintiff would likely miss (AR 535). 16 17 C. State Agency Consultants 18 19 On October 21, 2014, James Williams, M.D., a State agency 20 consultant, evaluated the physical health records and concluded 21 that Plaintiff’s epilepsy is a severe impairment. 22 concluded that Plaintiff can occasionally lift twenty pounds, 23 frequently lift ten pounds, and can stand, walk, or sit six hours 24 in an eight-hour workday. (AR 111-12). 25 climb kneel, and can 26 occasionally stoop, and climb ladders, ropes, or scaffolds. (AR 27 112). 28 range of light work. ramps or stairs, (AR 109). He Plaintiff can frequently crouch, and crawl, Dr. Williams opined that Plaintiff can perform a limited (AR 115). 10 1 On November 17, 2014, Robert McFarlain, Ph.D, another State 2 agency consultant, 3 concluded 4 impairments. 5 restriction of activities of daily living, mild difficulties in 6 maintaining 7 maintaining concentration, persistence or pace. 8 McFarlain concluded that Plaintiff is moderately limited in her 9 ability to perform activities within a schedule, maintain regular 10 attendance, and be punctual within customary tolerances; and to 11 complete a normal workday and workweek without interruptions from 12 psychologically based symptoms and to perform at a consistent pace 13 without an unreasonable number and length of rest periods. 14 113). 15 tasks and some semi-complex, non-repetitive tasks. 16 Plaintiff 17 environment, but probably can function adequately in a medium- 18 stress to low-stress environment. that evaluated Plaintiff’s (AR 109). social the mental anxiety and health depression records are and severe He opined that Plaintiff has a mild functioning, and moderate difficulties in (AR 110). Dr. (AR He opined that Plaintiff can perform routine, repetitive may have some difficulty working in a (AR 114). high stress (AR 114). 19 20 D. Vocational Expert 21 22 The vocational expert (“VE”) testified that Plaintiff’s past 23 relevant work as a telemarketer is classified as sedentary, semi- 24 skilled work. 25 residual functional capacity (RFC), she could no longer perform 26 work as a telemarketer, given that the job included quotas. 27 60-61). 28 work skills from her past work – using the telephone for business (AR 59). The VE opined that with the Plaintiff’s (AR Nevertheless, the VE concluded that Plaintiff has acquired 11 1 purposes; providing customer service; and providing, obtaining, 2 and 3 occupations 4 national 5 answering clerk. recording information – with jobs economy, that existing including in are transferable significant appointment to numbers clerk and other in the telephone (AR 61). 6 7 IV. 8 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 9 10 To qualify for disability benefits, a claimant must 11 demonstrate a medically determinable physical or mental impairment 12 that prevents the claimant from engaging in substantial gainful 13 activity and that is expected to result in death or to last for a 14 continuous period of at least twelve months. 15 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 16 The impairment must render the claimant incapable of performing 17 work 18 employment that exists in the national economy. 19 180 20 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 21 22 To decide if a claimant is entitled to benefits, an ALJ 23 conducts a five-step inquiry. 24 20 C.F.R. §§ 404.1520, 416.920. The steps are: 25 26 (1) Is the claimant presently engaged in substantial gainful 27 activity? If so, the claimant is found not disabled. 28 not, proceed to step two. 12 If 1 (2) Is the claimant’s impairment severe? 2 claimant is found not disabled. 3 If not, the three. 4 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 5 specific impairments described in 20 C.F.R. Part 404, 6 Subpart P, Appendix 1? 7 disabled. 8 (4) 9 If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If so, the claimant is found not disabled. 10 If not, proceed to step five. 11 (5) Is the claimant able to do any other work? 12 claimant is found disabled. 13 If not, the If so, the claimant is found not disabled. 14 15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 16 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 17 (g)(1), 416.920(b)-(g)(1). 18 The claimant has the burden of proof at steps one through four 19 20 and the 21 Bustamante, 262 F.3d at 953-54. 22 affirmative duty to assist the claimant in developing the record 23 at every step of the inquiry. 24 claimant meets his or her burden of establishing an inability to 25 perform past work, the Commissioner must show that the claimant 26 can perform some other work that exists in “significant numbers” 27 in 28 residual functional capacity (“RFC”), age, education, and work the Commissioner national has economy, the burden of 13 at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s 1 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 2 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 3 may do so by the testimony of a VE or by reference to the Medical- 4 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 5 Appendix 2 (commonly known as “the grids”). 6 240 F.3d 1157, 1162 (9th Cir. 2001). 7 exertional (strength-related) and non-exertional limitations, the 8 Grids are inapplicable and the ALJ must take the testimony of a 9 vocational expert (“VE”). The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 10 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 11 1988)). 12 13 V. 14 THE ALJ’S DECISION 15 16 The ALJ employed the five-step sequential evaluation process 17 and concluded that Plaintiff was not disabled within the meaning 18 of the Social Security Act. 19 found 20 activity since April 1, 2014, her alleged onset date. 21 At 22 cardiovascular 23 degenerative changes, degenerative disc disease and degenerative 24 joint disease lumbar spine with stenosis, atrial fibrillation 25 status post implantation of cardiac loop recorder to rule out 26 cardiac embolism, anxiety disorder NOS, major depressive disorder, 27 psychological factors affecting physical condition, and cannabis 28 use disorder are severe impairments. that step Plaintiff two, the has ALJ accident, (AR 22-31). not found engaged that history 14 At step one, the ALJ in substantial Plaintiff’s C5-6 fusion (AR 24). (AR 24). remote and gainful history multilevel At step three, the 1 ALJ determined that Plaintiff does not have an impairment or 2 combination equal the 3 severity of any of the listings enumerated in the regulations. (AR 4 26-27). of impairments that meet or medically 5 6 The ALJ then assessed Plaintiff’s RFC and concluded that she 7 can perform light work1 except Plaintiff is further limited to: 8 “avoid 9 stooping; frequently climb stairs, balance, kneel, crouch, crawl; 10 and medium to low stress jobs, i.e., no rapid paced high quota 11 volume.” 12 unable to perform any past relevant work. 13 Plaintiff’s RFC, age, education, work experience, and the VE’s 14 testimony, the ALJ determined at step five that Plaintiff has 15 acquired work skills from past relevant work that are transferable 16 to other occupations with jobs existing in significant numbers in 17 the national economy, including appointment clerk and telephone 18 answering clerk. ladders or (AR 27). working at unprotected heights; occasional At step four, the ALJ found that Plaintiff is (AR 30-31). (AR 30). Based on Accordingly, the ALJ found that 19 20 21 22 23 24 25 26 27 28 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(a), 416.967(a). 1 15 1 Plaintiff was not under a disability, as defined by the Act, from 2 April 1, 2014, through the date of the decision. (AR 31). 3 4 VI. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner’s decision to deny benefits. The court may set aside 9 the Commissioner’s decision when the ALJ’s findings are based on 10 legal error or are not supported by substantial evidence in the 11 record as a whole. 12 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 13 1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035 14 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 15 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 16 885 F.2d 597, 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 17 18 “Substantial evidence is more than a scintilla, but less than 19 a preponderance.” 20 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 21 evidence which a reasonable person might accept as adequate to 22 support a conclusion.” 23 Smolen, 24 evidence supports a finding, the court must “ ’consider the record 25 as a whole, weighing both evidence that supports and evidence that 26 detracts from the [Commissioner’s] conclusion.’ ” 27 F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 28 1993)). 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To determine whether substantial Auckland, 257 If the evidence can reasonably support either affirming 16 1 or reversing that conclusion, the court may not substitute its 2 judgment for that of the Commissioner. 3 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720- 4 5 VII. 6 DISCUSSION 7 8 Plaintiff raises three claims for relief: (1) the ALJ failed 9 to properly consider Plaintiff’s subjective testimony; (2) the ALJ 10 improperly rejected the medical opinion evidence; and (3) the ALJ’s 11 step-five findings are not supported by substantial evidence. 12 (Dkt. No. 17 at 3-12). The Court addresses each claim in turn. 13 14 A. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Specific, Clear, and Convincing 15 16 17 Plaintiff asserted that she is unable to work due to chronic, 18 constant pain that affects her ability to sleep, dress, bathe, 19 clean, feed herself, and take medications timely. 20 244). 21 lift, squat, bend, stand, reach, finger, walk, sit, kneel, climb, 22 concentrate, 23 Plaintiff testified that she also experiences tightness in her 24 chest, 25 problems, and speech issues. 26 2400mg of Neurontin daily, she alleged pain of 6-7/10. (AR 237-39, The pain in her neck, back, and feet limit her ability to understand, shortness of and breath, remember. frequent (AR headaches, (AR 43-47, 55-58). 27 28 17 41, 43, COPD, 242). kidney Despite taking (AR 43). 1 Plaintiff asserted that she uses a cane to ambulate and is 2 able to walk only 10-20 steps before needing to rest for 10-20 3 minutes. 4 positions frequently in order to stay comfortable. 5 alleged that she spends most of the day either reclining or staying 6 in bed. 7 shopping. (AR 242-43). (AR 51). She testified that she has to change (AR 49). She She needs a motorized cart to go grocery (AR 50-51). 8 9 When assessing a claimant’s credibility regarding subjective 10 pain or intensity of symptoms, the ALJ must engage in a two-step 11 analysis. 12 First, the ALJ must determine if there is medical evidence of an 13 impairment that could reasonably produce the symptoms alleged. 14 Garrison, 759 F.3d at 1014. 15 not required to show that her impairment could reasonably be 16 expected to cause the severity of the symptom she has alleged; she 17 need only show that it could reasonably have caused some degree of 18 the symptom.” 19 must a claimant produce objective medical evidence of the pain or 20 fatigue itself, or the severity thereof.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “In this analysis, the claimant is Id. (emphasis in original) (citation omitted). “Nor Id. (citation omitted). 21 22 If the claimant satisfies this first step, and there is no 23 evidence of malingering, the ALJ must provide specific, clear and 24 convincing reasons for rejecting the claimant’s testimony about 25 the symptom severity. 26 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 27 claimant’s testimony regarding the severity of her symptoms only 28 if he makes specific findings stating clear and convincing reasons Trevizo, 871 F.3d at 678 (citation omitted); 18 1 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 2 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 3 based on affirmative evidence thereof, he or she may only find an 4 applicant 5 credibility and stating clear and convincing reasons for each.”). 6 “This is not an easy requirement to meet: The clear and convincing 7 standard is the most demanding required in Social Security cases.” 8 Garrison, 759 F.3d at 1015 (citation omitted). not credible by making specific findings as to 9 10 11 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 12 13 (1) ordinary techniques of credibility evaluation, such 14 as 15 inconsistent 16 other testimony by the claimant that appears less than 17 candid; 18 failure to seek treatment or to follow a prescribed 19 course 20 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) the lying, symptoms, inadequately the prior and explained claimant’s daily 21 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 23 omitted). 24 conduct, or internal contradictions in the claimant’s testimony, 25 also may be relevant. 26 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 27 1997). 28 treating and examining physicians regarding, among other matters, Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th In addition, the ALJ may consider the observations of 19 1 the functional restrictions caused by the claimant’s symptoms. 2 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 3 it is improper for an ALJ to reject subjective testimony based 4 “solely” on its inconsistencies with the objective medical evidence 5 presented. 6 (9th Cir. 2009) (citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 7 8 Further, the ALJ must make a credibility determination with 9 findings that are “sufficiently specific to permit the court to 10 conclude that the ALJ did not arbitrarily discredit claimant’s 11 testimony.” 12 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 13 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 14 credible must be sufficiently specific to allow a reviewing court 15 to conclude the adjudicator rejected the claimant’s testimony on 16 permissible grounds and did not arbitrarily discredit a claimant’s 17 testimony regarding pain.”) (citation omitted). 18 interpretation of a claimant’s testimony may not be the only 19 reasonable one, if it is supported by substantial evidence, “it is 20 not [the court’s] role to second-guess it.” 21 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Although an ALJ’s Rollins v. Massanari, 22 23 The ALJ provided multiple, specific, clear, and convincing 24 reasons, supported by evidence in the record, to find Plaintiff’s 25 complaints of disabling pain and mental symptomology only partially 26 credible. 27 the Commissioner’s decision. (AR 28-29). These reasons are sufficient to support 28 20 1 First, the ALJ found inconsistent. that “[T]he 3 inconsistencies either in the claimant’s testimony or between the 4 testimony and the claimant’s conduct.” 5 1104, 1112 (9th Cir. 2012); see Burch v. Barnhart, 400 F.3d 676, 6 680 (9th Cir. 2005) (“ALJ may engage in ordinary techniques of 7 credibility 8 claimant’s 9 416.929(c)(4). such 20 may consider Molina v. Astrue, 674 F.3d as . . . accord ALJ were internally testimony”); 28). statements 2 evaluation, (AR Plaintiff’s inconsistencies C.F.R. in §§ 404.1529(c)(4), Plaintiff initially testified that her seizures 10 are fully controlled with medication, but later testified that she 11 had a seizure the week before, while in Georgia, and has had eight 12 to ten other seizures over the prior year, usually while she is 13 sleeping. 14 seizure questionnaire, Plaintiff asserted that she experiences two 15 to three seizures every month, usually in her sleep. 16 Nevertheless, as the ALJ noted, the medical record contains no 17 reports 18 providers. 19 credibility. (AR 28, 44, 46, 52-54). of any seizure (AR 29). Further, in a September 2014 activities to any of her (AR 245). treatment These inconsistencies diminish Plaintiff’s (AR 28-29). 20 21 Second, Plaintiff’s allegations were inconsistent with her acknowledged activities of daily living. 23 be especially cautious in concluding that daily activities are 24 inconsistent with testimony about pain, because impairments that 25 would unquestionably preclude work and all the pressures of a 26 workplace environment will often be consistent with doing more than 27 merely resting in bed all day.” 28 Nevertheless, an ALJ properly may consider the claimant’s daily 21 (AR 26, 28). “ALJs must 22 Garrison, 759 F.3d at 1016. 1 activities in weighing credibility. 2 If 3 claimant’s asserted limitations, it has a bearing on credibility. 4 Garrison, 759 F.3d at 1016. 5 pain, arthritis, spinal stenosis, COPD, incontinence, and seizures 6 significantly limit her ability to ambulate, restricts her to 7 spending her day either reclining with her feet up and sitting 8 sideways or staying in bed, and affects her ability to concentrate, 9 remember, and understand. a claimant’s level of Tommasetti, 533 F.3d at 1039. activity is inconsistent with the Here, Plaintiff asserted that her (AR 41, 43-47, 50-51, 55-58, 237, 242, 10 244; see id. 28). 11 nonstop flight from Los Angeles to Georgia the week prior to her 12 hearing. 13 consultative examiner being able to dress herself and prepare 14 meals. 15 with memory, concentration, and understanding, Plaintiff reported 16 to the consultative examiner being able to use the internet and 17 cell phone, and having no difficulties paying bills and managing 18 her own funds. (AR 437; see id. 26). These acknowledged activities 19 of daily living undermine Plaintiff’s assertions of debilitating 20 symptoms. 21 that are incompatible with the severity of symptoms alleged can 22 support an adverse credibility determination.”). Nevertheless, Plaintiff was able to take a (AR 58-59; see id. 28). (AR 437; see id. 26). She also acknowledged to the Further, despite alleging problems Ghanim, 763 F.3d at 1165 (“Engaging in daily activities 23 Third, 24 the ALJ found that Plaintiff 25 conservative treatment and medications. 26 that 27 disabling 28 benefits.” can be for controlled the effectively purpose of responded (AR 28-29). with determining well to “Impairments medication are not eligibility for SSI Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 22 1 1006 (9th Cir. 2006). 2 medicine, her symptoms are largely ameliorated. 3 336-37, 403, 405, 407, 409, 422, 423, 427, 446-47, 450). 4 response to treatment supports an adverse credibility finding. 5 Tommasetti, 533 F.3d at 1040 (“The record reflects that Tommasetti 6 responded favorably to conservative treatment including . . . the 7 use 8 electrical nerve stimulation unit . . . . 9 conservative treatment undermines Tommasetti’s reports regarding 10 the disabling nature of his pain.”); Crane v. Shalala, 76 F.3d 251, 11 254 (9th Cir. 1996) (“evidence suggesting that [the claimant] 12 responded 13 finding). 14 there is no record of Plaintiff being evaluated by orthopedic 15 specialists 16 Plaintiff’s treatment at LAGS consisted primarily of medication 17 refills and injections. 18 acknowledged that her medications partially alleviated her pain 19 and denied any adverse side effects. (AR 517). Indeed, Plaintiff’s 20 medication dosages were reduced after she needed less of them to 21 alleviate her pain. 22 mental health impairments (AR 242), she is not in treatment for 23 mental health issues and did not complain of depression or anxiety 24 symptoms to her treating physicians during the relevant period. 25 Any mental health issues appear have been successfully addressed 26 by the Paxil Plaintiff received from her primary care physician, 27 who on examination noted only a “mild” depressed mood. 28 42, 477, 487, 489, 491, 493-94, 496-97). of When Plaintiff is compliant with her anti-inflammatory well to medication treatment” supports [and] an (AR 27-28, 317, a A good See transcutaneous Such a response to adverse credibility Despite Plaintiff’s claims of debilitating symptoms, or referred for physical therapy. (AR (AR 485-531; see id. 29). (AR 477, 489, 502). 23 28-29). Plaintiff While Plaintiff alleged (AR 441- 1 Plaintiff argues that her “failure to pursue more aggressive 2 or specialized [mental health] treatment that she cannot afford, 3 or seek referral to specialists while not covered by insurance, is 4 not a sufficiently clear and convincing reason to support the ALJ’s 5 adverse credibility finding.” 6 ALJ did not reject her subjective mental health statements because 7 she was not seeing a specialist. 8 allegations of debilitating mental impairments incredible because 9 her 10 treating physicians (Dkt. No. 19 at 3). found Instead, the ALJ found her that adequately addressed with Paxil. However, the her “mild” symptoms were (AR 29). 11 12 Finally, pain the ALJ and found objective medical evidence, which indicated that Plaintiff “has 15 overstated 16 inconsistencies with the objective medical evidence cannot be the 17 sole ground for rejecting a claimant’s subjective testimony, it is 18 a factor that the ALJ may consider when evaluating credibility. 19 Bray, 554 F.3d at 1227; Burch, 400 F.3d at 681; Rollins, 261 F.3d 20 at 857; see SSR 16-3p, at *5 (“objective medical evidence is a 21 useful indicator to help make reasonable conclusions about the 22 intensity and persistence of symptoms, including the effects those 23 symptoms 24 activities”). 25 three seizures per month (AR 52-54, 245), she submitted no records 26 from her neurologist evaluating her seizures (AR 28-29). 27 are there any records from her treatment providers documenting any 28 seizure activity. have on the and inconsistent findings.” ability to (AR perform with of 14 diagnoses were allegations disabling may symptoms Plaintiff’s 13 [her] other that 28). the While work-related While Plaintiff asserted experiencing up to two or (AR 29). Neither As for Plaintiff’s alleged urinary 24 1 incontinence, she made passing complaints in December 2015 and 2 March 2016, but her complaints apparently did not concern Dr. 3 Soroka, as no treatment was recommended. 4 29). 5 observed a facial droop in October 2015, but no evidence of left- 6 sided weakness or speech deficits. 7 examination was largely unremarkable. Plaintiff’s gait was normal, 8 she was neurologically intact, she had full strength in her upper 9 and lower extremities bilaterally, and her mood, affect, judgment, 10 (AR 463, 465; see id. As the ALJ also noted, Plaintiff’s treating cardiologist and insight were all normal. (AR 29, 441). Further, an (AR 444-46). 11 12 Plaintiff does not identify any relevant medical evidence Instead, she contends that “there are 13 overlooked by the ALJ. 14 objective bases for her reports of pain and incontinence, seen by 15 MRI, ultrasound, and by the extensive treatment she has had.” (Dkt. 16 No. 17 at 8). 17 consistent with the law and supported by specific, clear, and 18 convincing reasons for rejecting Plaintiff’s testimony. 19 “evidence” cited by Plaintiff supports the various diagnoses she 20 has received, it does not support her allegations of debilitating 21 symptoms. 22 any support for the disabling limitations alleged by Plaintiff. 23 Indeed, “[t]he mere existence of an impairment is insufficient 24 proof of a disability.” 25 Cir. 1993); see Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) 26 (“The mere diagnosis of an impairment . . . is not sufficient to 27 sustain a finding of disability.”). However, as discussed above, the ALJ’s analysis was While the The mere existence of these impairments does not provide Matthews v. Shalala, 10 F.3d 678, 680 (9th 28 25 1 Furthermore, the ALJ did not completely reject Plaintiff’s 2 testimony. (AR 28-29). 3 statements, the ALJ found that Plaintiff has moderate difficulties 4 with regard to concentration, persistence, or pace. 5 (citing Plaintiff’s statements to the consultative examiner). The 6 ALJ her 7 moderate difficulties in social functioning and in concentration, 8 persistence, or pace by restricting her to medium- to low-stress 9 jobs. accommodated Based partially on Plaintiff’s subjective Plaintiff’s (AR 24, 26, 27). anxiety and depression (AR 26) and The ALJ also accommodated the credible 10 symptoms related to her degenerative disc disease and degenerative 11 joint disease by restricting her to a limited range of light work. 12 (AR 13 performing any past relevant work, the VE opined that there are 14 jobs in the national economy that Plaintiff can perform. 15 31, 60-61).2 24-26). While these limitations preclude Plaintiff from (AR 30- 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff also contends that the ALJ erred in rejecting the third-party statement from Plaintiff’s niece, Ivy McDonald. (Dkt. No. 17 at 7). An ALJ is required to give germane reasons to reject lay witness testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Here, the ALJ considered McDonald’s statements and found they were duplicative of Plaintiff’s testimony and contrary to the objective medical evidence. (AR 29). Indeed, McDonald’s ThirdParty Function Report largely mirror’s Plaintiff’s Adult Function Report. (Compare AR 246-53, with id. 237-44). This is a germane reason for rejecting McDonald’s statements. Valentine v. Comm’’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided clear and convincing reasons for rejecting Valentine’s own subjective complaints, and because Ms. Valentine’s testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting her testimony.”). Further, “[i]nconsistency with medical evidence” is also a valid and germane reason for discounting McDonald’s statements. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 26 1 In sum, the ALJ offered clear and convincing reasons, 2 supported by substantial evidence in the record, for her adverse 3 credibility findings. 4 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 5 is required. Accordingly, because substantial evidence 6 7 B. The ALJ Properly Weighed the Treating and Examining Doctors’ Opinions 8 9 Plaintiff 10 asserts that the ALJ erred in rejecting the 11 functional assessments of the treating and examining physicians in 12 favor of the State agency consultants. (Dkt. No. 17 at 8-11). 13 14 An ALJ must take into account all medical opinions of record. 15 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish 16 among the opinions of three types of physicians: (1) those who 17 treat the claimant (treating physicians); (2) those who examine 18 but do not treat the claimant (examining physicians); and (3) those 19 who 20 physicians).” 21 as amended (Apr. 9, 1996). 22 opinion carries more weight than an examining physician’s, and an 23 examining physician’s opinion carries more weight than a reviewing 24 [(nonexamining)] physician’s.” 25 1195, 1202 (9th Cir. 2001); accord Garrison, 759 F.3d at 1012. 26 “The weight afforded a non-examining physician’s testimony depends 27 ‘on the degree to which they provide supporting explanations for neither examine nor treat the claimant (nonexamining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), “Generally, a treating physician’s Holohan v. Massanari, 246 F.3d 28 27 1 their opinions.’ ” 2 1201 (9th Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(3)). Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 3 4 The medical opinion of a claimant’s treating physician is 5 given “controlling weight” so long as it “is well-supported by 6 medically acceptable clinical and laboratory diagnostic techniques 7 and is not inconsistent with the other substantial evidence in [the 8 claimant’s] 9 416.927(c)(2). case record.” “When a 20 C.F.R. treating §§ doctor’s 404.1527(c)(2), opinion is not 10 controlling, it is weighted according to factors such as the length 11 of the treatment relationship and the frequency of examination, 12 the 13 supportability, 14 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. 15 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). 16 given to the “opinion of a specialist about medical issues related 17 to his or her area of specialty.” 18 416.927(c)(5). nature and extent and of the consistency treatment with the relationship, record.” Revels v. Greater weight is also 20 C.F.R. §§ 404.1527(c)(5), 19 “To 20 reject an uncontradicted opinion of a treating or 21 examining doctor, an ALJ must state clear and convincing reasons 22 that are supported by substantial evidence.” 23 427 F.3d 1211, 1216 (9th Cir. 2005). 24 doctor’s opinion is contradicted by another doctor’s opinion, an 25 ALJ may only reject it by providing specific and legitimate reasons 26 that 27 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating 28 doctor’s credible opinion on disability are comparable to those are supported by substantial 28 Bayliss v. Barnhart, “If a treating or examining evidence.” Id.; see also 1 required for rejecting a treating doctor’s medical opinion.”). 2 “The ALJ can meet this burden by setting out a detailed and thorough 3 summary of the facts and conflicting clinical evidence, stating 4 his interpretation thereof, and making findings.” 5 F.3d at 675 (citation omitted). 6 relies on the same clinical findings as a treating physician, but 7 differs only in his or her conclusions, the conclusions of the 8 examining physician are not ‘substantial evidence.’ ” 9 Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Trevizo, 871 “When an examining physician Orn v. Additionally, “[t]he 10 opinion of a nonexamining physician cannot by itself constitute 11 substantial evidence that justifies the rejection of the opinion 12 of either an examining physician or a treating physician.” 13 81 F.3d at 831 (emphasis in original). 14 conflicting medical opinions, an ALJ may reject an opinion that is 15 conclusory, brief, and unsupported by clinical findings. 16 427 F.3d at 1216; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 17 Cir. 2001). Lester, Finally, when weighing Bayliss, 18 1. 19 Dr. Soroka 20 In June 2016, Dr. Soroka, Plaintiff’s treating physician, 21 22 submitted a physical RFC questionnaire. (AR 532-36). He opined 23 that Plaintiff’s impairments would constantly interfere with the 24 attention and concentration necessary to perform even simple tasks. 25 (AR 533). 26 block before needing to rest and can sit only five minutes and 27 stand only ten minutes before needing to switch positions. 28 533). Dr. Soroka concluded that Plaintiff can walk only ½ (AR Plaintiff can sit, stand, or walk less than two hours in an 29 1 eight-hour workday. 2 lift less than ten pounds and can rarely twist, stoop, crouch, 3 squat, or climb. 4 would 5 impairments. likely (AR 534). (AR 534-35). miss more He opined that Plaintiff can rarely Dr. Soroka concluded that Plaintiff than four days a month due to her (AR 535). 6 7 The ALJ gave Dr. Soroka’s assessment “little weight” because 8 “it is overly restrictive and unsupported by the objective evidence 9 of record.” (AR 29). Because Dr. Soroka’s opinion was contradicted 10 by the State agency consultants’ opinions, the Court reviews the 11 ALJ’s 12 legitimate reasons that are supported by substantial evidence.” 13 Bayliss, 427 F.3d at 1216; see Moore v. Comm’r of Soc. Sec. Admin., 14 278 F.3d 920, 924 (9th Cir. 2002) (“The ALJ could reject the 15 opinions 16 nonexamining physician, only for specific and legitimate reasons 17 that 18 (citation omitted). 19 and legitimate reasons, supported by substantial evidence, for 20 rejecting Dr. Soroka’s opinion. rejection are of of Dr. Moore’s supported Soroka’s examining by opinion physicians, substantial evidence for “specific contradicted in the and by a record.”) The Court finds that the ALJ provided specific 21 22 Dr. Soroka’s largely “check-off” opinion was not supported by 23 objective or 24 inadequately explained or lack supporting clinical or laboratory 25 findings are entitled to less weight. 26 properly rejected “check-off reports that did not contain any 27 explanation 28 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ properly rejected of clinical the evidence. bases of their 30 Medical opinions that are Crane, 76 F.3d at 253 (ALJ conclusions”); Johnson v. 1 physician’s opinion where it was “conclusory and unsubstantiated 2 by 3 § 416.927(c)(3) (“The more a medical source presents relevant 4 evidence to support a medical opinion, particularly medical signs 5 and laboratory findings, the more weight we will give that medical 6 opinion. 7 opinion, the more weight we will give that medical opinion.”). 8 Soroka largely addressed Plaintiff’s symptoms with medications, 9 adjusting them as necessary to alleviate her pain. relevant medical documentation”); see also 20 C.F.R. The better an explanation a source provides for a medical Dr. (AR 456-84). 10 Physical examinations were generally unremarkable, with only mild 11 symptoms 12 deformities), 458 (same), 467 (mild slurred speech), 469 (mood 13 stable, judgment fair)). 14 Soroka’s opinion limiting Plaintiff to rarely lifting ten pounds 15 and being able to sit for only five minutes and walk for only ten 16 minutes 17 examinations 18 incapable of even low-stress jobs. being before noted. (AR needing support 456 (mild lumbar tenderness, no These examinations do not support Dr. to Dr. switch Soroka’s positions. opinion that Nor do these Plaintiff is 19 20 The ALJ also found that Dr. Soroka’s opinion was inconsistent 21 with Plaintiff’s admission that she travelled nonstop from Los 22 Angeles to Georgia the week before the hearing. 23 Soroka states that [Plaintiff] can only sit 5 minutes at a time, 24 for less than two hours in an 8-hour day; however, were such a 25 limitation accurate, [Plaintiff] would have been unable to travel 26 to Georgia by air travel.”). 27 Plaintiff’s 28 functional limitations weakened the value of his opinion. admitted ability (AR 29) (“Dr. The ALJ reasonable found that to 31 exceed Dr. Soroka’s assessed See 1 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600–02 (9th 2 Cir. 1999) (recognizing that an inconsistency between a treating 3 physician’s opinion and a claimant’s daily activities is a specific 4 and 5 opinion). legitimate reason to discount the treating physician’s 6 Nevertheless, Plaintiff contends that the ALJ “failed to take 7 8 into 9 § 404.1527 for analyzing an opinion of a treating doctor.” account any of the factors contained within 20 C.F.R. (Dkt. 10 No. 17 at 9). “When a treating doctor’s opinion is not controlling, 11 it is weighted according to factors such as the length of the 12 treatment relationship and the frequency of examination, the nature 13 and extent of the treatment relationship, supportability, and 14 consistency with the record.” 15 the ALJ is not required to make an express statement that she 16 considered all the factors outlined in 20 C.F.R. § 404.1527(c). 17 see Harris v. Colvin, 584 F. App’x 526, 528 n.1 (9th Cir. 2014) 18 (“The agency was not required to specifically reference each factor 19 listed in 20 C.F.R. § 404.1527(c).”) (citing SSR 06-03p, at *5) 20 (“Not every factor for weighing opinion evidence will apply in 21 every 22 supportability of Dr. Soroka’s opinion and its consistency with 23 the record. (AR 29). Moreover, the ALJ acknowledged that Plaintiff 24 began treating with Dr. Soroka in August 2015 and that she made 25 multiple, periodic visits prior to Dr. Soroka’s assessment in June 26 2016. case.”). Here, the Revels, 874 F.3d at 654. ALJ (AR 25-26, 29). 27 28 32 explicitly However, considered the 1 Plaintiff also argues that an MRI indicating stenosis and 2 right kidney atrophy “supports Dr. Soroka’s opinions regarding 3 [Plaintiff’s] limitations. 4 mere diagnosis of an impairment . . . is not sufficient to sustain 5 a finding of disability.” 6 claimant receives a particular diagnosis, it does not necessarily 7 follow that the claimant is disabled, because it is the claimant’s 8 symptoms and true limitations that generally determine whether she 9 is disabled. 10 (Dkt. No. 17 at 9). However, “[t]he Key, 754 F.2d at 1549. See Rollins, 261 F.3d at 856. Even if a Dr. Soroka cites no clinical tests in support of his extreme limitations. 11 Finally, Plaintiff contends that the ALJ erred by giving the 12 13 greatest weight to the State agency physicians. (Dkt. No. 17 at 14 11). 15 physician cannot by itself constitute substantial evidence that 16 justifies the rejection of the opinion of either an examining 17 physician or a treating physician.” 18 Lester, 81 F.3d at 831). 19 Dr. Soroka’s opinion because it was contradicted by the State 20 agency physicians. 21 discounted Dr. Soroka’s opinion because it was unsupported by the 22 record and inconsistent with Plaintiff’s admitted ability to travel 23 nonstop from California to Georgia. 24 non-treating 25 substantial 26 independent clinical findings or other evidence in the record.” 27 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Plaintiff is correct that “[t]he opinion of a nonexamining or (Dkt. No. 17 at 11) (quoting Here, however, the ALJ did not reject Instead, as discussed above, the ALJ properly non-examining evidence when Further, “[t]he opinions of physicians the 28 33 opinions may are also serve consistent as with 1 The Court finds that the ALJ provided specific and legitimate 2 reasons, supported by substantial evidence in the record, for 3 giving 4 required. Dr. Soroka’s opinion little weight, and no remand is 5 2. 6 Dr. Kronberger 7 8 9 In November 2014, Dr. Kronberger, performed a mental status examination on behalf of the Commissioner. (AR 436-39). He opined 10 that Plaintiff was moderately inattentive on tasks and limited in 11 her daily activities by physical condition and pain. 12 The ALJ gave Dr. Kronberger’s opinion “little weight” because “the 13 extreme 14 showing very little mental health treatment and it appears that 15 the 16 reported symptoms, which are inconsistent with other evidence . . . 17 in the record.” 18 contradicted by the State agency consultants’ opinions, the Court 19 reviews the ALJ’s rejection of Dr. Soroka’s opinion for “specific 20 and 21 evidence.”3 22 The Court finds that the ALJ provided specific and legitimate limitations consultative legitimate therein examiner (AR 29). reasons are inconsistent relied heavily (AR 438-39). with upon the record [Plaintiff’s] Because Dr. Kronberger’s opinion was that are supported by substantial Bayliss, 427 F.3d at 1216; see Moore, 278 F.3d at 924. 23 24 25 26 27 28 Plaintiff argues that Dr. Kronberger’s opinion was uncontradicted. (Dkt. No. 17 at 10). To the contrary, Dr. Kronberger’s opinion was contradicted by the State agency consultant, who found that Plaintiff was only mildly limited in activities of daily living and was capable of both simple and semicomplex tasks. (AR 110-14). 3 34 1 reasons, supported by substantial evidence, for rejecting Dr. 2 Kronberger’s opinion. 3 4 Dr. Kronberger’s opinion was not supported by objective or 5 clinical evidence. Medical opinions that are inadequately 6 explained or lack supporting clinical or laboratory findings are 7 entitled to less weight. 8 §§ 404.1527(c)(3), 416.927(c)(3). 9 postural adjustments were noted. Johnson, 60 F.3d at 1432; 20 C.F.R. On examination, no pain-related (AR 437). Plaintiff’s speech 10 was 11 communication. 12 coherent, she maintained eye contact, she was able to understand 13 directions and exerted adequate effort, she did not exhibit any 14 unusual mannerisms, but she was moderately inattentive on tasks. 15 (AR 437-38). As the ALJ emphasized, Dr. Kronberger’s opinion was 16 inconsistent with 17 specialized mental 18 Plaintiff’s “mild” depressed mood” was successfully addressed by 19 the Paxil Plaintiff received from her primary care physician. 20 29, 441-42, 477, 487, 489, 491, 493-94, 496-97). intelligible and (AR 437). the her language skills adequate for Her thought processes were logical and treatment health record, treatment and which included demonstrated no that (AR 21 22 The ALJ properly concluded that Dr. Kronberger “relied heavily “An ALJ may reject 23 on [Plaintiff’s] reported symptoms.” 24 a treating physician’s opinion if it is based to a large extent on 25 a claimant’s self-reports that have been properly discounted as 26 incredible.” 27 discussed above, the ALJ’s rejection of Plaintiff’s subjective 28 complaints was supported by substantial evidence. (AR 29). Tommasetti, 533 F.3d at 1041 (citation omitted). 35 As Here, given that 1 Plaintiff’s allegations 2 unsupported in the record, it appears that Dr. Kronberger’s opinion 3 was based to a large extent on Plaintiff’s self-reports and was, 4 therefore, 5 Kronberger’s 6 stressors . . . have aggravated her physical conditions” was based 7 only on Plaintiff’s subjective statements. 8 Dr. Kronberger’s conclusion that Plaintiff was limited in her daily 9 activities was not based on any clinical testing but was instead properly of rejected conclusion disabling by the that symptoms ALJ. are For Plaintiff’s otherwise example, “wide range (AR 439). Dr. of Similarly, 10 based entirely on Plaintiff’s subjective statements. (AR 436-39). 11 While Plaintiff contends that Dr. Kronberger’s assessed limitations 12 were “based on pain” (Dkt. No. 17 at 10), on examination, Dr. 13 Kronberger observed “[n]o pain-related postural adjustments” (AR 14 437). 15 16 Plaintiff argues that the IQ test administered Dr. 17 Kronberger supported his opinion. 18 Dr. Kronberger administered only the “information” subtest of the 19 WAIS-IV IQ test (AR 438), which merely tests the “degree of general 20 information acquired from culture.” 21 wiki/Wechsler_Adult_Intelligence_Scale#Verbal_IQ_(VIQ) 22 visited Aug. 20, 2018). 23 was in the “borderline” range on this information subtest, he also 24 found that Plaintiff was able to understand directions, remember 25 5/5 words immediately and 3/5 words after a three-minute interval, 26 and 27 conceptualization skills, and understanding of social norms. 28 438). had an adequate (Dkt. No. 17 at 10). by However, <https://en.wikipedia.org/ (last While Dr. Kronberger found that Plaintiff insight, comprehension, attention span, (AR Further, Dr. Kronberger did not diagnose Plaintiff with any 36 1 intellectual disorder or limit the complexity of tasks she could 2 perform. 3 as she suggests. Thus, Dr. Kronberger did not find Plaintiff as limited 4 5 The Court finds that the ALJ provided clear and convincing 6 reasons, supported by substantial evidence in the record, for 7 giving Dr. Kronberger’s opinion little weight, and no remand is 8 required. 9 3. 10 Dr. Rao 11 12 Plaintiff contends that “[t]he ALJ further erred by ignoring 13 [treatment] notes from Dr. Rao, treating provider,” who “documented 14 [Plaintiff’s] speech impairment.” 15 because Dr. Rao did not provide a medical opinion, the ALJ was not 16 required to explain what probative value she gave to Dr. Rao’s 17 treatment notes. 18 are 19 judgments about the nature and severity of your impairment(s), 20 including your symptoms, diagnosis and prognosis, what you can 21 still 22 restrictions.”). Further, the ALJ did not “ignore” Dr. Rao’s 23 treatment notes. Indeed, the ALJ specifically discussed Dr. Rao’s 24 cardiology 25 reasonably well in October 2015 and that a physical examination 26 was generally unremarkable. 27 Finally, with regard to Plaintiff’s alleged speech impairment, Dr. 28 Rao explicitly observed no speech deficits on October 30, 2015. statements do (Dkt. No. 17 at 9). However, Cf. 20 C.F.R. § 404.1527(a)(1) (“Medical opinions from despite acceptable impairment(s), consultation, medical and including sources your that that physical Plaintiff or was reflect mental feeling (AR 24, 29; see id. 441, 443, 445). 37 1 (AR 441). Moreover, Dr. Kronberger observed that Plaintiff’s 2 speech was intelligible and concluded that Plaintiff’s “expressive 3 language skills were adequate for communication.” 4 remand is required based upon the ALJ's consideration of Dr. Rao's 5 opinions. (AR 437). No 6 7 C. ALJ’s Step Five Finding Is Supported By Substantial Evidence 8 9 Based on the VE’s testimony, the ALJ found that Plaintiff 10 could not perform her past relevant work as a telemarketer, but 11 that she had transferable skills - using the telephone for business 12 purposes; providing customer service; and providing, obtaining, 13 and recording information - to two other occupations: appointment 14 clerk and telephone answering clerk. 15 Plaintiff contends that the ALJ and the VE “did not employ the 16 standard for evaluating transferable skills.” (AR 30-31; see id. 59-61). (Dkt. No. 17 at 11). 17 18 At step five of the sequential evaluation process, “the 19 Commissioner has the burden to identify specific jobs existing in 20 substantial numbers in the national economy that a claimant can 21 perform despite his identified limitations.” 22 778 F.3d 842, 845 (9th Cir. 2015) (citation omitted). 23 this finding, the ALJ determines “whether, given the claimant’s 24 RFC, age, education, and work experience, he actually can find some 25 work in the national economy.” 26 omitted); see also 20 C.F.R. § 404.1520(g) (“we will consider [your 27 RFC] together with your vocational factors (your age, education, 28 and work experience) to determine if you can make an adjustment to Zavalin v. Colvin, In making Zavalin, 778 F.3d at 846 (citation 38 1 other work”). The Commissioner may meet this burden by adopting 2 the testimony of a VE or by reference to the Grids. 3 240 F.3d at 1162. 4 on the [Dictionary of Occupational Titles (DOT)], which is the 5 [Agency’s] primary source of reliable job information regarding 6 jobs that exist in the national economy.” 7 845–46 (citation omitted); see 20 C.F.R. § 404.1566(d)(1) (noting 8 that the Agency “will take administrative notice of reliable job 9 information Osenbrock, “In making this determination, the ALJ relies available from various Zavalin, 778 F.3d at governmental and other 10 publications,” including the DOT); SSR 00-4p, at *2 (“In making 11 disability determinations, [the Agency relies] primarily on the 12 DOT . . . for information about the requirements of work in the 13 national economy.”). Further, “[w]hen a VE . . . provides evidence 14 about the requirements of a job or occupation, the [ALJ] has an 15 affirmative responsibility to ask about any possible conflict 16 between that VE . . . evidence and information provided in the 17 DOT.” SSR 00-4p, at *4. 18 19 The regulations provide that skills will be considered 20 transferable “when the skilled or semi-skilled work activities you 21 did in past work can be used to meet the requirements of skilled 22 or 23 § 404.1568(d)(1). 24 among jobs that involve: (1) the same or lesser degree of skill; 25 (2) a similarity of tools; and (3) a similarity of services or 26 products.” 27 (citing 20 C.F.R. § 404.1568(d)(2)). 28 skills, however, is not necessary.” semi-skilled work activities of other jobs.” 20 C.F.R. “A finding of transferability is most probable Renner v. Heckler, 786 F.2d 1421, 1423 (9th Cir. 1986) 39 “Complete similarity of Renner, 786 F.2d at 1423 “When the issue of skills 1 (citing 20 C.F.R. § 404.1568(d)(3)). 2 and 3 required to make certain findings of fact and include them in the 4 written decision.” their transferability must be decided, the . . . ALJ is SSR 82-41, at *7. 5 6 Here, the ALJ’s determination that Plaintiff’s skills are 7 transferable to the positions of appointment clerk and telephone 8 answering 9 appointment clerk and telephone answering clerk positions would 10 not require Plaintiff to use a greater degree of skill than the 11 telemarketer position previously held. 12 three occupations as SVP 3, or “semi-skilled.”4 13 see Aldrich v. Barnhart, 151 F. App’x 561, 562–63 (9th Cir. 2005) 14 (“The credit clerk and mortgage clerk positions would not require 15 Aldrich to use a greater degree of skill than jobs that she has 16 previously held. A credit clerk is an SVP4 position, and a mortgage 17 clerk is an SVP5 position. 18 her skills in part while working as a customer service supervisor, 19 and stated that this was an SVP7 position.”) (citation and footnote 20 omitted). 21 the VE’s testimony, she offered no evidence to contradict the VE’s. 22 Osenbrock, 240 F.3d at 1163 (uncontradicted evidence by VE of 23 transferable skills constitutes substantial evidence); see also clerk is supported by substantial evidence. The The DOT classifies all (AR 30-31, 59-61); The VE testified that Aldrich developed Further, although Plaintiff contests the sufficiency of 24 25 26 27 28 A job’s specific vocational preparation (“SVP”) rating “speak[s] to the issue of the level of vocational preparation necessary to perform the job.” Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005) (citation omitted); see Bray, 554 F.3d at 1233 (noting that an SVP level of “3” corresponds to a “semiskilled position). 4 40 1 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s 2 recognized expertise provides the necessary foundation for his or 3 her testimony.”). 4 5 Plaintiff contends that “the VE did not specifically testify 6 to and the ALJ did not state whether being an appointment clerk or 7 telephone answering clerk uses the same or similar tools and 8 machines; and whether the same or similar raw materials, product, 9 processes, or services are involved.” (Dkt. No. 17 at 11). 10 Plaintiff arguably waived this issue by not raising it at the 11 administrative level, where it could have been addressed by the 12 VE. 13 amended (June 22, 1999) (“We now hold that, at least when claimants 14 are represented by counsel, they must raise all issues and evidence 15 at their administrative hearings in order to preserve them on 16 appeal.”). 17 the 18 telemarketer, DOT 299.357-014 (soliciting orders over telephone, 19 calling prospective customers, recording information), and the 20 appointment 21 recording information, calling with reminders of appointments), 22 and telephone answering clerk, DOT 235.662-026 (greeting callers, 23 recording messages, placing telephone calls), occupations. 24 http://www.govtusa.com/dot last visited Aug. 20, 2018). 25 to Plaintiff’s argument, the mere fact that the positions have some 26 differences and do not have identical skill sets does not undermine 27 the 28 similarity Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), as In any event, a plain reading of the DOT demonstrates multiple ALJ’s similarities clerk, DOT all Plaintiff’s 237.367-010 transferability of between three finding. factors 41 past (scheduling Indeed, is not work as a appointments, “[a] See Contrary complete necessary for 1 transferability.” 20 C.F.R. § 404.1568(d)(3); see Volkerts v. 2 Comm’r Soc. Sec. Admin., 158 F. App’x 916, 917–18 (9th Cir. 2005) 3 (“The similarities in skills between past and potential jobs need 4 not be very close in every possible aspect.”). 5 6 Plaintiff also asserts a conflict between the ALJ’s assessed 7 RFC and her ability to perform either the appointment clerk or the 8 telephone answering clerk. 9 these two positions would be too stressful for someone limited to (Dkt. No. 17 at 12). She argues that 10 medium- to low-stress jobs. 11 defined “medium to low stress jobs” as those with “rapid paced high 12 quota volume.” 13 Plaintiff’s past relevant work as a telemarketer involved quotas, 14 she explicitly determined that neither the appointment clerk nor 15 the telephone answering clerk position involved rapid paced, high 16 quota 17 (uncontradicted testimony by VE constitutes substantial evidence). (AR 27, 60). volume. (AR 61). (Id.). However, the ALJ specifically Accordingly, while the VE found that See Osenbrock, 240 F.3d at 1163 18 19 Plaintiff has not identified any “apparent or obvious” 20 conflict in the step-five analysis. 21 discrepancy only where there is an “obvious or apparent” conflict 22 between the VE’s testimony and the DOT. 23 F.3d 804, 808 (9th Cir. 2016) 24 VE’s] testimony and the [DOT’s] listings to be fairly characterized 25 as a conflict, it must be obvious or apparent. 26 the testimony must be at odds with the [DOT’s] listing of job 27 requirements 28 Plaintiff that argues are that Gutierrez v. Colvin, 844 (“For a difference between [the essential, because The ALJ must address a the 42 integral, appointment This means that or expected.”). clerk position 1 involves “scheduling” and the telephone clerk involves “locating 2 client in emergencies,” these occupations are “higher stress than 3 [her RFC] could accommodate.” 4 job descriptions do not “obviously” involve “rapid paced, high 5 quota volume.” 6 by the VE's testimony and any alleged error constituted harmless 7 error. 8 (“Accordingly, there were no unexplained inconsistencies, and the 9 ALJ’s failure to ask the VE about potential conflicts with the DOT 10 constituted harmless error.”) (citing Massachi v. Astrue, 486 F.3d 11 1149, 1154 n.19 (9th Cir. 2007)). (Dkt. No. 17 at 12). However, these As such, there was no apparent conflict presented Hartley v. Colvin, 672 F. App’x 743, 744 (9th Cir. 2017) 12 13 In sum, the ALJ did not err in finding, at step five, that 14 Plaintiff had acquired skills from her past telemarketing position 15 that were transferable to other occupations with specific jobs 16 existing in substantial numbers in the national economy. 17 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 18 2015). 19 evidence, by identifying the specific transferable work skills that 20 Plaintiff had acquired and the specific occupations to which they 21 were 22 conflict between the VE’s testimony and that the DOT, and no remand 23 is required. See The ALJ made sufficient findings, supported by substantial transferable. Plaintiff has 24 25 26 27 28 43 failed to show an obvious 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: August 20, 2018 10 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 44 IN WESTLAW,
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
