Michael Raby v. Commissioner of Social Security, No. 2:2019cv08689 - Document 27 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (es)
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Michael Raby v. Commissioner of Social Security Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:19-cv-08689-AFM MICHAEL R., 1 11 12 Plaintiff, 13 v. 14 COMMISSIONER OF SOCIAL SECURITY, 15 MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER Defendant. 16 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying his applications for disability insurance benefits and supplemental security 20 income. In accordance with the Court’s case management order, the parties have filed 21 briefs addressing the merits of the disputed issues. The matter is now ready for 22 decision. BACKGROUND 23 24 In October 2015, Plaintiff applied for disability insurance benefits and 25 supplemental security income, alleging disability since May 23, 2015. 26 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 27 28 Dockets.Justia.com 1 (Administrative Record [“AR”] 380-391.) Plaintiff’s applications were denied 2 initially and upon reconsideration. (AR 250-258, 261-267.) A hearing took place on 3 October 5, 2018 before an Administrative Law Judge (“ALJ”). Plaintiff, who was 4 represented by counsel, and a vocational expert (“VE”) testified at the hearing. (AR 5 111-144.) 6 In a decision dated October 26, 2018, the ALJ found that Plaintiff suffered 7 from the following severe impairments: bilateral status post-boxer’s fracture; status 8 post-right ankle gunshot wound and open reduction and internal fixation with 9 residual arthritis; obesity; left ankle degenerative arthritis; left hand 4th finger mallet 10 deformity; malunion of 5th left and 4th right fingers; right hand/wrist ganglion cysts; 11 back arthralgias; and depressive and anxiety disorders. (AR 78.) The ALJ determined 12 that Plaintiff had the residual functional capacity (“RFC”) to perform a range of light 13 work with the following restrictions: needing a cane to walk more than four blocks; 14 standing/walking no more than four hours in an eight-hour workday; occasionally 15 walking on uneven terrain; no climbing ladders or working at unprotected heights; 16 occasional postural activities; frequent handling and fingering and reaching 17 bilaterally; performance of simple and routine tasks; no more than incidental contact 18 with the public and co-workers; and no more than occasional contact with 19 supervisors. (AR 82.) Relying on the testimony of the VE, the ALJ concluded that 20 Plaintiff could perform jobs existing in significant numbers in the national economy. 21 Accordingly, the ALJ concluded that Plaintiff was not disabled. (AR 86-87.) 22 23 24 The Appeals Council subsequently denied Plaintiff’s request for review (AR 1-6), rendering the ALJ’s decision the final decision of the Commissioner. DISPUTED ISSUES 25 Plaintiff, who is proceeding pro se, has not presented any disputed issue with 26 specificity. In his brief supporting his complaint, Plaintiff alleges that he is “still 27 going to physical therapy” and “still dealing with major pain in both hands due to the 28 breakage of the bones.” He also states that the screws in his ankle make it “hard for 2 1 me to stand and walk to keep my balance” and that his conditions affect his ability to 2 perform “normal daily tasks,” which “can be very depressing.” (ECF No. 23 at 4-5.) 3 Finally, Plaintiff states that his mental health physician, Dr. Kopp, “has been helping 4 me with my issues.” (ECF No. 23 at 5.) 5 Generally, the Court need not consider claims that Plaintiff fails to present with 6 any specificity and that lack citation to evidence or legal authority. See, e.g., DeBerry 7 v. Comm’r of Soc. Sec. Admin., 352 F. App’x 173, 176 (9th Cir. 2009) (declining to 8 consider claim that ALJ failed properly to apply Social Security Ruling where 9 claimant did not argue the issue “with any specificity” in her opening brief and failed 10 to cite “any evidence or legal authority” in support of her position); Nazarian v. 11 Berryhill, 2018 WL 2938581, at *4 (C.D. Cal. June 7, 2018) (finding plaintiff 12 “provide[d] no specific argument regarding how the ALJ in this case specifically 13 erred in such respect, and thus fail[ed] to persuade the Court that a remand is 14 warranted on such conclusory grounds”). Nevertheless, the Court has liberally 15 construed Plaintiff’s memorandum in support of the complaint to raise the issues 16 discussed below. 17 STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 19 determine whether the Commissioner’s findings are supported by substantial 20 evidence and whether the proper legal standards were applied. See Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Under the 22 substantial-evidence standard, this Court asks whether the administrative record 23 contains sufficient evidence to support the Commissioner’s factual determinations. 24 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). As the Supreme Court stated in 25 Biestek, “whatever the meaning of “substantial” in other contexts, the threshold for 26 such evidentiary sufficiency is not high.” Id. It means “more than a mere scintilla” 27 but less than a preponderance and is “such relevant evidence as a reasonable mind 28 might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 3 1 389, 401 (1971). This Court must review the record as a whole, weighing both the 2 evidence that supports and the evidence that detracts from the Commissioner’s 3 conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Where 4 evidence is susceptible of more than one rational interpretation, the Commissioner’s 5 decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). DISCUSSION 6 7 I. Medical Record 8 The ALJ summarized the relevant medical record. With regard to Plaintiff’s 9 physical impairments, the ALJ began by discussing Plaintiff’s history of bilateral 10 status post-boxer’s fracture and status post-right ankle gunshot wound and open 11 reduction and internal fixation. (AR 78, citing AR 508-512.) The ALJ noted that 12 updated x-rays from June 2015 showed signs of old injuries but no acute fracture or 13 significant arthritis. (AR 617-620.) In July 2015, Plaintiff was prescribed ibuprofen 14 and Naproxen for relief of pain related to these “old injuries.” (AR 620-622.) 15 In January 2016, Plaintiff presented to the emergency room complaining of 16 residual pain related to his hand and ankle injuries. Plaintiff was found to have a cyst 17 on his right and some claw deformity but showed no tenderness. Plaintiff had some 18 diminished range of motion in his left ankle due to pain. No other physical deficits 19 were noted. Plaintiff was discharged with a prescription for pain medication (Norco). 20 (AR 686-691.) 21 In February 2016, Plaintiff was treated at South Bay Family Health Care for 22 complaints of chronic pain in left ankle and hands based upon his prior injuries. He 23 was diagnosed with osteoarthritis of his hands and left ankle and advised to continue 24 using pain medication. (AR 705-707.) The ALJ noted that Plaintiff made intermittent 25 reports of similar pain throughout 2016. (AR 709-724.) 26 In March 2016, Plaintiff underwent an orthopedic consultation with Samer 27 Alnajjar, M.D., at the California Orthopedic Institute. Dr. Alnajjar diagnosed 28 Plaintiff with right wrist ganglion cyst and a left mallet finger. His mallet finger was 4 1 treated with a splint and hand therapy. Plaintiff underwent surgical ganglion removal 2 in July 2016, followed by occupational therapy. (AR 727-755.) 3 4 The ALJ noted x-rays of Plaintiff’s left ankle taken in September 2016 and June 2018 revealed severe degenerative arthritis. (AR 1111, 1350.) 5 In January and April 2017, Plaintiff presented to the emergency room 6 complaining about the return of his right wrist ganglion cyst with mild tingling in his 7 fingers. The fluid was removed from the joint capsule without complication, and 8 Plaintiff was discharged. (AR 775-788, 789-798.) In September 2017, Dr. Alnajjar 9 performed a surgical excision of Plaintiff’s right wrist ganglion cyst. (AR 894.) 10 Thereafter, Plaintiff continued to participate in physical therapy. (AR 1120-1177, 11 1471-1552.) 12 Warren Yu, M.D., performed a consultative orthopedic evaluation of Plaintiff 13 in January 2018. Plaintiff reported residual bilateral wrist and left ankle pain. He 14 denied back pain. Examination revealed normal range of motion in back, neck and 15 extremities. Straight-leg raising was negative bilaterally in both the supine and seated 16 position. Plaintiff exhibited residual tenderness on palpation over the right wrist, but 17 range of motion was full and painless in all planes; there was no swelling or effusion; 18 and Tinel’s sign over the carpal tunnel, cubital tunnel, radial tunnel, and Guyon’s 19 tunnel were negative. Plaintiff showed pain in the fourth and fifth metacarpals of his 20 left hand and the fourth metacarpal of his right hand, but there was no atrophy or 21 tenderness. Plaintiff had no loss of fine or gross manipulative functioning and range 22 of motion of the fingers was full and painless. Plaintiff also showed some left ankle 23 tenderness and reduced ranges of motion, but retained normal neurological 24 functioning. Dr. Yu diagnosed Plaintiff with mild posttraumatic arthritis of the left 25 ankle; malunion of the fifth metacarpal on the left hand and fourth metacarpal on the 26 right hand; mallet finger of the fourth digit on the left hand; and myofascial low back 27 pain. In Dr. Yu’s opinion, Plaintiff retained the ability to lift/carry 10-20 pounds; 28 stand/walk for four hours in an eight-hour workday; sit for six hours in an eight-hour 5 1 workday; perform occasional postural movements; and frequent manipulative tasks. 2 (AR 762- 772.) 3 4 Throughout 2018, Plaintiff continued to complain of left ankle arthralgias. (AR 1558, 1564-1565, 1568-1572, 1581-1583.) 5 In treatment notes from July 2018, Dr. Alnajjar observed that Plaintiff had 6 developed a new right wrist cyst near his previously treated lesion. The cyst limited 7 full extension and flexion of the wrist and Tinel’s test as positive with percussion 8 over the main and radial nerve. Dr. Alnajjar recommended another procedure to 9 aspirate the new cyst and the use of a short-arm splint until Plaintiff could be 10 scheduled for surgery to excise the cyst. (AR 1600-1601.) 11 With regard to Plaintiff’s mental impairments, the ALJ noted that he was 12 treated at Gateway Homeless Services between 2014 and 2017. At his initial 13 assessment in September 2014, Plaintiff reported a history of depression with 14 paranoia, insomnia, low energy, anxiety, and hallucinations but had not previously 15 sought formal mental health treatment. Plaintiff indicated he self-medicated with 16 marijuana and alcohol. He was diagnosed with major depressive disorder with 17 psychotic features and alcohol and cannabis abuse. (AR 514-515, 518-530.) 18 Plaintiff’s treating psychiatrist, Arthur Kopp, M.D, prescribed Remeron, an anti- 19 depressant medication. (AR 518, 525-526.) 20 Every one or two months from 2015 through 2017, Plaintiff continued follow- 21 up outpatient therapy treatment with Dr. Kopp. (AR 803-886.) Treatment notes from 22 November 2014, January 2015, and February 2015 all reflect that Plaintiff was 23 compliant with his medication and denied side effects. Mental status examination 24 revealed a sad mood and blunted affect. Plaintiff’s thought process was well 25 organized, his speech was normal, his personal hygiene was good, he denied audio 26 or visual hallucinations and denied suicide ideation. (AR 594, 596, 599.) 27 Notes from a March 2015 follow-up revealed Plaintiff to be alert, cooperative, 28 and clean. No abnormal movements were observed. Plaintiff’s speech was normal; 6 1 his mood was euthymic; his memory, attention, and concentration were intact. His 2 thought process exhibited no delusions and his cognitive functions appeared to be 3 grossly intact. Plaintiff reported that he was doing “much better” and his mood was 4 not as irritable as before. He denied suicidal ideation, auditory or visual 5 hallucinations. Dr. Kopp continued Plaintiff’s medication. (AR 611-613.) 6 Dr. Kopp next saw Plaintiff in June 2015. Plaintiff had missed several 7 appointments and presented with exacerbation of depressed mood and irritability. As 8 a result of missed appointments, Plaintiff’s medication compliance was noted to be 9 poor. Nevertheless, other than dysphoric mood and blunted affect, Plaintiff’s mental 10 status examination was essentially normal. (AR 806-807.) Later that month, Plaintiff 11 reported paranoia. Mental status examination revealed Plaintiff’s speech was low and 12 slow; his mood was dysphoric; his affect was blunted; his attention and concentration 13 were impaired; his thought content exhibited paranoid - persecutory delusions; and 14 his insight and judgment were poor. Dr. Kopp prescribed Seroquel. (AR 809-811.) 15 In July 2015, Plaintiff complained of depression, and Dr. Kopp increased the dosage 16 of Plaintiff’s anti-depressant medication. (AR 812-814.) In August 2015, Dr. Kopp 17 noted that Plaintiff was alert, cooperative, and clean. He did not exhibit abnormal 18 movements; he was oriented; his memory, attention, and concentration were intact; 19 he denied suicidal ideation and hallucinations; and his through content did not exhibit 20 delusions. However, Plaintiff’s mood was dysphoric; his affect was blunted; his 21 speech rate, tone, and volume were abnormal; and Dr. Kopp noted that Plaintiff’s 22 cognitive functions “appeared to be impaired.” (AR 815-816.) By September 2015, 23 Plaintiff reported medication compliance with no side effects. His mental status 24 examination returned to essentially normal but for dysphoric mood and blunted 25 affect. Notably, Plaintiff’s speech was normal; he was alert and oriented; his memory, 26 attention, and concentration were intact; and his cognitive functions were grossly 27 intact. (AR 818-819.) 28 7 1 In an April 2016 Mental Disorder Questionnaire Form, Dr. Kopp diagnosed 2 Plaintiff with major depressive episode, and noted that Plaintiff had no deficits of 3 behavior, memory, or intelligence. Dr. Kopp also indicated that Plaintiff was able to 4 independently perform daily living activities and public transportation. However, he 5 noted that Plaintiff had poor judgment and was generally paranoid, fearful and 6 delusional. In Dr. Kopp’s opinion, Plaintiff was able to follow simple instructions, 7 but had problems accepting direction or supervision. (AR 700-704.) In December 8 2016, Dr. Kopp completed a form entitled “Medical Opinion Re: Ability to Do Work- 9 Related Activities (Mental).” At that time, Dr. Kopp assessed Plaintiff’s ability to 10 perform all but two work-related activities as either “seriously limited” or “unable to 11 meet competitive standards.” (AR 756-757.) 12 In February 2016, Plaintiff underwent a consultative psychiatric evaluation 13 conducted by Larisa Levin, M.D. Plaintiff complained of depression, mood swings, 14 low motivation, and ongoing marijuana and alcohol use. He indicated that he received 15 outpatient therapy and took medications including Remeron and Seroquel. He stated 16 that he was “doing fairly stable on his medications,” experienced “fewer mood 17 swings,” “sleeps and eats well,” has no perceptual disturbances, suicidal or homicidal 18 ideations. Plaintiff denied problems caring for his personal needs, performing 19 household chores or daily activities, getting along with others, maintaining attention, 20 or completing household tasks. Plaintiff’s mental status examination revealed him to 21 be appropriately dressed and groomed; cooperative; oriented; with intact memory, 22 concentration, judgment, and cognitive functioning. Plaintiff’s mood was dysphoric 23 and showed no signs of psychosis. Dr. Levin diagnosed Plaintiff with mood disorder, 24 not otherwise specified and cannabis and alcohol abuse. She opined that Plaintiff’s 25 mental impairments resulted in no work-related mental functional deficits. (AR 692- 26 697.) 27 The ALJ noted that in January 2017, Dr. Kopp found Plaintiff was calm and 28 cooperative. Plaintiff reported good medication compliance and no side effects. 8 1 Other than a dysphoric mood and blunted affect, Plaintiff’s mental status examination 2 was normal. (AR 80, citing AR 861-862.) The ALJ observed that “[l]ittle change was 3 noted during 2017, and as of a December 2017 visit to Dr. Kopp, [Plaintiff] again 4 generally performed well upon mental status testing, but for a dysphoric mood.” (AR 5 80, citing AR 761.) 6 In March 2016, a State agency medical evaluator reviewed the medical record 7 and found that there had been no material change since the prior ALJ’s unfavorable 8 determination. The physician opined that Plaintiff suffered from a medically severe 9 impairment of osteoarthrosis and allied disorders, but that his mental impairment was 10 not severe. In the State agency physician’s opinion, Plaintiff could lift/carry 25-50 11 pounds; sit/stand/walk for six hours each in an eight-hour workday; and perform 12 frequent postural movements. (AR 169-184, 187-203.) On reconsideration, a State 13 agency physician reached the same conclusion regarding Plaintiff’s physical 14 impairments. After considering Dr. Kopp’s latest report, the State agency physician 15 found Plaintiff’s affective disorder severe and opined that it resulted in a moderate 16 concentration deficit. (AR 205-223, 225-244.) 17 II. The ALJ’s Decision 18 At the outset, the ALJ noted that Plaintiff had filed a prior claim for disability: 19 In a decision dated May 22, 2015, another ALJ had found Plaintiff not disabled. (AR 20 75; see AR 145-161.) As the ALJ recognized, a final determination that a claimant is 21 not disabled creates a presumption that the claimant continued to be able to work 22 after that date. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009). While a 23 claimant can rebut this presumption by establishing changed circumstances 24 indicating a greater disability, the ALJ concluded that Plaintiff had failed to do so. 25 (AR 75-76, citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988).) 26 As set forth in detail above, the ALJ considered all of the medical evidence as 27 well as the medical opinions. (AR 78-81.) With respect to Plaintiff’s physical 28 impairments, the ALJ noted there was no evidence of new injuries, trauma, or 9 1 significant changes in Plaintiff’s physical health since the prior unfavorable hearing 2 decision. (AR 83-84.) The ALJ stated that Plaintiff was primarily treated with pain 3 medications and underwent various procedures to treat recurrent ganglion cysts on 4 his right hand, used splints to treat finger contracture, and received intermittent 5 occupational/physical therapy for his hands and ankles. Nevertheless, the ALJ found 6 it significant that Plaintiff had not required major orthopedic surgical procedures on 7 his hands, wrists, ankles or back or ongoing pain management treatment. Plaintiff’s 8 treating surgeon, Dr. Alnajjar, did not assess Plaintiff as being wholly precluded from 9 using his hands/wrists/fingers, and Plaintiff generally performed well during 10 Dr. Yu’s 2018 examination. The ALJ noted that Dr. Yu opined that Plaintiff was able 11 to perform a reduced range of light work and that no treating or examining medical 12 source assessed Plaintiff with more restricted than Dr. Yu had. (AR 84.) Accordingly, 13 the ALJ determined Plaintiff could perform light work with the restrictions set out 14 above – namely, standing/walking up to four hours in an eight-hour workday; 15 frequent handling and fingering and reaching bilaterally; occasional postural 16 activities; no climbing ladders or working at unprotected heights; and required a cane 17 to walk more than four blocks. (AR 85.) 18 With respect to Plaintiff’s mental impairments, the ALJ concluded that the 19 medical record did not demonstrate any significant change or deterioration in 20 Plaintiff’s mental health since the prior unfavorable decision. In particular, the ALJ 21 noted that Plaintiff had not required inpatient psychiatric care or intensive outpatient 22 therapy. Instead, Plaintiff’s mental health treatment consisted of “intermittent” 23 treatment at the Gateway Homeless services between 2014 and 2017, during which 24 time he “performed well upon mental status testing, particularly after being 25 prescribed various anti-depressant medications.” (AR 84.) The ALJ observed that 26 Dr. Kopp’s November 2016 assessment was inconsistent with Plaintiff’s presentation 27 to Dr. Levin, with Dr. Kopp’s own assessment from a few months earlier in which 28 he found Plaintiff capable of performing simple tasks, with Dr. Kopp’s 2017 10 1 treatment notes revealing Plaintiff’s mental status examinations were generally 2 unremarkable, and with the medical record which lacked any referral for more 3 significant mental health treatment or the use of stronger psychiatric medication. (AR 4 84-85.) Accordingly, the ALJ determined that Plaintiff could perform work involving 5 simple and routine tasks, no more than incidental contact with the public and 6 coworkers, and no more than occasional contact with supervisors. (AR 85-86.) 7 The ALJ found the opinions of the State agency physicians were consistent 8 with the record and restricted Plaintiff to simple routine tasks. The ALJ gave 9 Plaintiff’s allegations of isolation and problems with people “the benefit of the 10 doubt” and incorporated into the RFC additional limitations in interacting with 11 others. (AR 22.) 12 III. 13 14 Analysis A. The ALJ did not commit error at Steps One, Two, or Three of the Sequential Evaluation 15 At Step One of the Sequential Evaluation, the ALJ determined that Plaintiff 16 had not engaged in substantial gainful activity since the alleged onset date of May 22, 17 2015. (AR 77.) In addition, the ALJ noted that despite having performed past work 18 activity, Plaintiff’s earnings had never risen to the level of presumptive substantial 19 gainful activity. (AR 77-78.) Plaintiff does not contend that the ALJ committed error 20 in this regard. See 20 C.F.R. §§ 404.1520(b), 416.920(b). 21 At Step Two, the ALJ determined that Plaintiff suffered from numerous severe 22 medically determinable impairments: bilateral status post-boxer’s fracture; status 23 post-right ankle gunshot wound and open reduction and internal fixation with 24 residual arthritis; obesity; left ankle degenerative arthritis; left hand fourth finger 25 mallet deformity; malunion of the fifth left and fourth right fingers; right hand/wrist 26 ganglion cysts; back arthralgias; and depressive and anxiety disorders. (AR 78.) 27 Plaintiff does not allege that he suffered from an additional severe medically 28 11 1 determinable impairment that the ALJ failed to address. See 20 C.F.R. 2 §§ 404.1520(c), 416.920(c). 3 At Step Three, the ALJ found that Plaintiff’s impairments did not meet or equal 4 any listed impairment. (AR 81.) Plaintiff does not contend that the ALJ erred in this 5 determination. See 20 C.F.R. §§ 404.1520(d), 416.920(d). 6 B. The ALJ’s RFC determination is supported by substantial evidence 7 Prior to reaching Step Four of the sequential evaluation process, the ALJ was 8 required to assess Plaintiff’s RFC. An RFC is the most a claimant can do despite his 9 or her limitations. See 20 C.F.R. §§404.1545(a)(1), 416.945(a)(1). In determining a 10 claimant’s RFC, an ALJ must consider all relevant evidence in the record. Robbins 11 v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The ALJ need not include 12 properly rejected evidence or subjective complaints. See Bayliss v. Barnhart, 427 13 F.3d 1211, 1217 (9th Cir. 2005); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 14 1190, 1197 (9th Cir. 2004). The Court considers the ALJ’s determination in the 15 context of “the entire record as a whole,” and if the “evidence is susceptible to more 16 than one rational interpretation, the ALJ’s decision should be upheld.” Ryan v. 17 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 18 omitted). 19 As set out above, the ALJ considered all of the medical evidence and 20 determined that Plaintiff retained the ability to perform light work except he would 21 need to use a cane to walk more than four blocks; could stand/walk up to four hours 22 in an eight-hour workday; could occasionally walk on uneven terrain; could not climb 23 ladders or work at unprotected heights; could occasionally perform postural 24 activities; could frequently handle and finger and reach bilaterally; and could perform 25 simple, routine tasks with no more than incidental contact with the public and co- 26 workers and no more than occasional contact with supervisors. (AR 82.) In reaching 27 the determination regarding the functional limitations imposed by Plaintiff’s physical 28 impairments, the ALJ considered and essentially adopted the opinion of Dr. Yu, who 12 1 performed an orthopedic examination of Plaintiff in January 2018. (AR 79, 762-766.) 2 In assessing the limitations imposed by Plaintiff’s mental impairments, the ALJ 3 relied upon the psychiatric evaluation performed by Dr. Levin – although the ALJ 4 imposed additional limitations beyond those opined by Dr. Levin. (AR 80, 692-697.) 5 The ALJ properly relied upon the opinions of examining physicians, and these 6 opinions constitute substantial evidence supporting the ALJ’s RFC determination. 7 See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“opinions of non-treating 8 or non-examining physicians may also serve as substantial evidence when the 9 opinions are consistent with independent clinical findings or other evidence in the 10 record”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 11 examiner’s opinion on its own constituted substantial evidence, because it rested on 12 independent examination of claimant). 13 At best, Plaintiff’s arguments about his bilateral hand pain and the limitations 14 caused by his ankle impairment amount to a disagreement as to how the evidence 15 should be interpreted. So long as the ALJ’s interpretation of the record is rational and 16 supported by substantial evidence, which it is here, the Court may not disturb it. See 17 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“[I]f evidence is susceptible of 18 more than one rational interpretation, the decision of the ALJ must be upheld”); see 19 generally Biestek, 139 S. Ct. at 1154 (observing that in the social security context, 20 the threshold for “substantial evidence” is “not high”). 21 For the foregoing reasons, the ALJ’s RFC assessment must be affirmed. See 22 Bayliss, 427 F.3d at 1217 (“We will affirm the ALJ’s determination of Bayliss’s RFC 23 if the ALJ applied the proper legal standard and his decision is supported by 24 substantial evidence.”). 25 C. The ALJ did not err at Steps Four or Five of the Sequential Evaluation 26 At Step Four, the ALJ is required to determine whether Plaintiff’s RFC enabled 27 him to perform his past relevant work. See 20 C.F.R. §§ 404.1520(f), 416.920(f). 28 13 1 Here, the ALJ concluded Plaintiff did not have any past relevant work, and Plaintiff 2 does not challenge this finding. (AR 77-78, 86.) 3 At Step Five, the ALJ considered Plaintiff’s age, education, work experience, 4 and RFC in order to determine whether Plaintiff could perform work existing in 5 significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(g), 6 416.920(g). At the hearing, the ALJ asked the VE whether an individual with 7 Plaintiff’s vocational profile and RFC could perform work existing in significant 8 numbers in the national economy. The VE testified in the affirmative, and identified 9 representative jobs of assembler, inspector, and sorter. (AR 141-142.) The 10 hypothetical that the ALJ posed to the VE contained all of the limitations that the 11 ALJ found credible and supported by substantial evidence in the record. Accordingly, 12 the ALJ’s reliance on the VE’s testimony was proper. See Bayliss, 427 F.3d at 1217- 13 1218 (ALJ properly relied on VE testimony where hypothetical posed to VE 14 contained all limitations the ALJ found credible and supported). 15 D. Plaintiff’s assertions do not fairly raise any other claim of error 16 Plaintiff states that he is “still dealing with major pain in both hands,” his ankle 17 impairment makes it “hard for [him] to stand and walk to keep [his] balance,” and 18 “just normal daily tasks affects me to the highest [sic] exchange.” (ECF No. 23 at 4- 19 5.) Even liberally construed, these assertions do not fairly present a claim that the 20 ALJ erred in discounting Plaintiff’s testimony. See, e.g., DeBerry, 352 F. App’x at 21 176 (declining to consider claim that ALJ failed properly to apply Social Security 22 Ruling where claimant did not argue the issue “with any specificity” in her opening 23 brief and failed to cite “any evidence or legal authority” in support of her position); 24 Nazarian, 2018 WL 2938581, at *4 (plaintiff “provides no specific argument 25 regarding how the ALJ in this case specifically erred in such respect, and thus fails 26 to persuade the Court that a remand is warranted on such conclusory grounds”); 27 Moody v. Berryhill, 245 F. Supp. 3d 1028, 1033 (C.D. Ill. 2017) (where plaintiff does 28 14 1 not clearly identify the ALJ’s problematic findings or legal support, court “cannot fill 2 the void by crafting arguments and performing the necessary legal research”). 3 The ALJ discussed Plaintiff’s subjective complaints (including his allegations 4 of pain and limitations) and rejected them. The ALJ provided several reasons for 5 discounting Plaintiff’s credibility, including (a) the absence of significant clinical or 6 diagnostic findings supporting the degree of disability Plaintiff alleged; (b) the 7 inconsistency between Plaintiff’s allegations and his statements to Dr. Levin that he 8 had no difficulties getting along with others, making decisions, maintain attention or 9 concentration, following instructions, or completing tasks; (d) the fact that Plaintiff 10 had not experienced any new trauma or injuries since the prior unfavorable decision, 11 nor had he required any significant additional medical procedures apart from some 12 draining/removal of his hand cysts; and (e) the inconsistency between Plaintiff’s 13 allegations of disabling symptoms and his ability to perform daily activities including 14 light household chores, care for his personal needs, and use public transportation. 15 (AR 84-85.) Plaintiff has not presented a legitimate challenge to the ALJ’s credibility 16 determination, and the Court’s review does not suggest that the ALJ erred. See 17 generally Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (factors ALJ may 18 consider when making credibility determination include lack of objective medical 19 evidence, 20 inconsistencies in testimony). claimant’s history, claimant’s daily activities, and ORDER 21 22 treatment IT IS THEREFORE ORDERED that Judgment be entered affirming the 23 decision of the Commissioner and dismissing this action with prejudice. 24 DATED: 3/4/2021 25 26 27 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 28 15
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