Denise Fry v. Kilolo Kijakazi, No. 2:2020cv05211 - Document 24 (C.D. Cal. 2022)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym, IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (es)
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Denise Fry v. Kilolo Kijakazi Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DENISE F., 12 13 14 Plaintiff, v. KILOLO KIJAKAZI, Acting 15 Commissioner of the Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:20-cv-05211-SP MEMORANDUM OPINION AND ORDER 19 20 I. 21 INTRODUCTION 22 On June 11, 2020, plaintiff Denise F. filed a complaint against defendant, 23 the Commissioner of the Social Security Administration (“Commissioner”), 24 seeking review of a denial of a period of disability and disability insurance benefits 25 (“DIB”). The parties have fully briefed the issue in dispute, and the court deems 26 the matter suitable for adjudication without oral argument. 27 Plaintiff presents a single disputed issue for decision. She contends the 28 Administrative Law Judge (“ALJ”) impermissibly rejected Dr. Paul Johnson’s 1 Dockets.Justia.com 1 treating opinion. Plaintiff’s Mem. in Supp. of Compl. (“P. Mem.”) at 5-10; see 2 Defendant’s Mem. in Supp. of Answer (“D. Mem.”) at 1-16.. 3 Having carefully studied the parties’ memoranda, the Administrative Record 4 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 5 the ALJ properly evaluated the medical opinion of plaintiff’s treating physician. 6 The court therefore affirms the decision of the Commissioner denying DIB. 7 II. 8 FACTUAL AND PROCEDURAL BACKGROUND 9 Plaintiff, who was 50 years old on the alleged disability onset date, is a high 10 school graduate. AR at 206, 358. She has past relevant work as an order clerk, 11 technical writer, home helper, accounting clerk, and payroll clerk. AR at 133-34; 12 see AR at 27.. 13 On January 17, 2017, plaintiff protectively filed an application for a period 14 of disability and DIB, alleging an onset date of July 15, 2016. AR at 206. Plaintiff 15 claimed she suffered from post-traumatic stress disorder (“PTSD”), back problems, 16 and anxiety. AR at 206-07. Plaintiff’s application was initially denied on June 12, 17 2017. AR at 243. 18 Plaintiff requested a hearing, which the assigned ALJ held on February 26, 19 2019. AR at 107. Plaintiff, represented by counsel, appeared and testified at the 20 hearing. AR at 113-33. The ALJ also heard testimony from Alan Cummings, a 21 vocational expert. AR at 133-37. The ALJ denied plaintiff’s claim for benefits on 22 April 16, 2019. AR at 13-29. 23 Applying the well-established five-step sequential evaluation process, the 24 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 25 since July 15, 2016, the alleged onset date. AR at 15. 26 At step two, the ALJ found that plaintiff suffered from the following severe 27 impairments: cervical spine degenerative disc disease, lumbar spine degenerative 28 2 1 disc disease, left knee osteoarthritis, obesity, PTSD, and anxiety disorder (also 2 noted as depressive and bipolar disorder). AR at 16. 3 At step three, the ALJ found that plaintiff’s impairments, whether 4 individually or in combination, did not meet or medically equal one of the 5 impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 6 7 determined she had the ability to perform: 8 light work as defined in 20 C.F.R. 404.1567(b) except: can lift and 9 carry 20 pounds occasionally and 10 pounds frequently, stand and 10 walk 6 hours in an 8-hour day with normal breaks, and sit 6 hours in 11 an 8-hour day with normal breaks; can frequently push and pull; can 12 occasionally climb, balance, stoop, kneel, crouch, and crawl; can 13 frequently walk on uneven terrain, be exposed to hazards such as 14 dangerous moving machinery and unprotected heights, and operate 15 motor vehicles; can perform simple tasks in a routine work 16 environment; can have occasional, superficial contact with the public 17 and coworkers; can make simple decisions; can perform low-stress 18 work, which is defined as involving only occasional decision making 19 and occasional changes in work setting. 20 AR at 18-19. 21 The ALJ found, at step four, that plaintiff was unable to perform any past 22 relevant work. AR at 27. 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 nn.5-7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the 27 ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 1 At step five, the ALJ considered plaintiff’s age, education, work experience, 2 and RFC, and found plaintiff could perform jobs that exist in significant numbers 3 in the national economy, including assembler, inspector, and packager. AR at 284 29. Accordingly, the ALJ concluded plaintiff was not under a disability, as defined 5 in the Social Security Act, at any time from July 15, 2016 through the date of her 6 decision. AR at 29. 7 Plaintiff filed a timely request for review of the ALJ’s decision, but the 8 Appeals Council denied the request for review on April 21, 2020. AR at 1. 9 Accordingly, the ALJ’s decision became the final decision of the Commissioner. 10 III. 11 STANDARD OF REVIEW 12 This court is empowered to review decisions by the Commissioner to deny 13 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 14 Administration (“SSA”) must be upheld if they are free of legal error and 15 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 16 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based 17 on legal error or are not supported by substantial evidence in the record, the court 18 may reject the findings and set aside the decision to deny benefits. Aukland v. 19 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 20 1144, 1147 (9th Cir. 2001). 21 “Substantial evidence is more than a mere scintilla, but less than a 22 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 23 evidence is such “relevant evidence which a reasonable person might accept as 24 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 25 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 26 substantial evidence supports the ALJ’s finding, the reviewing court must review 27 the administrative record as a whole, “weighing both the evidence that supports 28 4 1 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 2 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 3 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 4 marks and citation omitted). If the evidence can reasonably support either 5 affirming or reversing the ALJ’s decision, the reviewing court “may not substitute 6 its judgment for that of the ALJ.” Id. (internal quotation marks and citation 7 omitted). 8 IV. 9 DISCUSSION 10 Plaintiff contends the ALJ erred in discounting the opinion of her treating 11 physician, Dr. Johnson. Specifically, she contends the reason given by the ALJ for 12 giving little weight to Dr. Johnson’s opinion was not a specific and legitimate 13 reason supported by substantial evidence. P. Mem. at 8-10. 14 A. Legal Standard 15 To determine whether a claimant has a medically determinable impairment, 16 the ALJ considers different types of evidence, including medical evidence. 20 17 C.F.R. §§ 404.1527(b), 416.927(b).2 The regulations distinguish among three 18 types of physicians: (1) treating physicians; (2) examining physicians; and (3) non19 examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Lester v. 20 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating 21 physician’s opinion carries more weight than an examining physician’s, and an 22 examining physician’s opinion carries more weight than a reviewing physician’s.” 23 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 24 §§ 404.1527(c)(1)-(2), 416.027(c)(1)-(2). The opinion of the treating physician is 25 26 2 The SSA issued new regulations effective March 27, 2017. All regulations 27 cited in this section are effective for cases filed prior to March 27, 2017. See 20 28 C.F.R. §§ 404.1527(b), 416.927(b). 5 1 generally given the greatest weight because the treating physician is employed to 2 cure and has a greater opportunity to understand and observe a claimant. Smolen v. 3 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 4 751 (9th Cir. 1989). 5 Nevertheless, the ALJ is not bound by the opinion of a treating physician. 6 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 7 ALJ must provide clear and convincing reasons for giving it less weight. Id. If the 8 treating physician’s opinion is contradicted by other opinions, the ALJ must 9 provide specific and legitimate reasons, supported by substantial evidence, for 10 rejecting it. Id. “The opinion of a non-examining physician cannot by itself 11 constitute substantial evidence that justifies the rejection of the opinion of . . . a 12 treating physician.” Lester, 81 F.3d at 831 (citations omitted). Additionally, the 13 opinions of a specialist about medical issues related to his or her area of expertise 14 are entitled to more weight than the opinions of a non-specialist. Smolen, 80 F.3d 15 at 1285. 16 B. Dr. Johnson’s Findings and Treating Opinion 17 Dr. Johnson states he began treating plaintiff on October 1, 2015. See AR at 18 705. On November 13, 2017, he completed a “Lumbar Spine Medical Source 19 Statement.” See AR at 705-08. He diagnosed plaintiff with cervical disc disease, 20 lumbar disc disease, PTSD, and chronic anxiety. AR at 705. He noted that 21 plaintiff complained of severe constant back and neck pain made worse with 22 movement, severe anxiety, and an inability to concentrate due to PTSD. Id. 23 Dr. Johnson concluded that MRIs showed plaintiff had severe multilevel 24 cervical and lumbar disc disease. Id. He also found she had neuro-anatomic 25 distribution of pain to her arms and legs. Id. He reported that she showed positive 26 objective signs, including a positive seated, straight leg raising test, abnormal gait, 27 reflex loss, muscle spasms, muscle weakness, impaired appetite, and impaired 28 6 1 sleep. See AR at 706. He determined that emotional factors contributed to the 2 severity of her symptoms and functional limitations. Id. Finally, he found she 3 suffered from side effects of medication, including sleepiness and impeded muscle 4 control. See id. 5 Because of these impairments, Dr. Johnson opined that plaintiff could only: 6 walk one city block without rest or severe pain; sit for 30 minutes at a time before 7 needing to get up; stand for 15 minutes at a time before needing to sit down or 8 walk around; sit, stand, or walk less than two hours total in an eight-hour workday; 9 and work in a job that permits shifting positions at will from sitting, standing, or 10 walking. See id. 11 Dr. Johnson also opined that plaintiff would need to take unscheduled breaks 12 of half an hour every hour during the workday. See AR at 707. He concluded that 13 she would need to have her legs elevated at a 90 degree angle for 80 percent of the 14 workday. See id. He also opined that she would need to use a cane or other 15 assistive device while standing or walking. See id. 16 Additionally, Dr. Johnson opined that plaintiff could never lift and carry 10 17 pounds or more in a competitive work situation. Id. Instead, she could only rarely 18 lift and carry less than 10 pounds. See id. He concluded that she could never twist, 19 stoop, crouch, squat, or climb stairs and ladders. Id. He found that she could 20 grasp, turn, or twist objects, perform fine finger manipulations, and reach in front 21 of her body and overhead with her arms only 30 percent of the time during an 22 eight-hour workday. See id. He opined that she would likely be off task 25 23 percent or more of an eight-hour workday. See AR at 708. He concluded by 24 opining that her severe anxiety and PTSD would make her unable to tolerate even 25 “low stress” work. See id. 26 C. The ALJ’s Findings 27 The ALJ considered Dr. Johnson’s treating opinion and described it in detail. 28 7 1 See AR at 25. The ALJ then stated: “I give little weight to Dr. Johnson’s opinions 2 as I find such extreme limitations are not consistent with or supported by the mild 3 to moderate findings on imaging and in the medical evidence record (Infra).” Id. 4 As an initial matter, the ALJ cited the opinions of one examining physician 5 (Dr. Warren Yu) and two reviewing physicians (Drs. H. Jone and D. Chan), which 6 contradicted Dr. Johnson’s opinion to varying degrees.3 See AR at 24-25. The 7 ALJ gave great weight to Dr. Yu’s opinion, little weight to Dr. Jone’s, and some 8 weight to Dr. Chan’s. See id. 9 It is well-established that when a treating or examining doctor’s opinion is 10 contradicted by another doctor’s opinion, the ALJ need only provide specific and 11 legitimate reasons, supported by substantial evidence, to reject it. See Smolen, 80 12 F.3d at 1285. Plaintiff acknowledges that this is the correct standard for purposes 13 of her challenge. See P. Mem. at 10. 14 The parties’ dispute stems from a single word at the end of the paragraph on 15 Dr. Johnson’s opinion – “infra.” See AR at 25. Infra is defined as “later in this 16 text” and is used “as a citational signal to refer to a later-cited authority.” Infra, 17 Black’s Law Dictionary (11th ed. 2019). Plaintiff argues that the medical record 18 discussed by the ALJ after the paragraph at issue does not provide any legitimate 19 reasons, backed by substantial evidence, to reject the physical limitations assessed 20 by Dr. Johnson. See P. Mem. at 8-10. Defendant argues that the ALJ’s use of the 21 term infra was a scrivener’s error, and that she meant to use supra. See D. Mem. at 22 14; Supra, Black’s Law Dictionary (11th ed. 2019) (supra means “earlier in this 23 text” and is used “as a citational signal to refer to a previously cited authority”). In 24 25 3 In her decision, the ALJ also discussed the opinions of Dr. Bong Doan, an 26 examining source, Dr. M. D. Morgan, a reviewing source, and Dr. Sandip Sen, a reviewing source. AR at 25-26. For the reasons discussed below, however, the 27 court finds that the ALJ intended to reject Dr. Johnson’s opinion based solely on 28 her discussion prior to the paragraph dedicated to Dr. Johnson’s opinion at AR 25. 8 1 a footnote, plaintiff contends that even if the ALJ made a scrivener’s error, it 2 would be “demonstrative as to why the Ninth Circuit requires ‘specific and 3 legitimate reasons’ and more than just a recitation of the medical record and a 4 conclusion.” P. Mem. at 9 (citing Alcaraz v. Comm’r of Soc. Sec., 2020 WL 5 5652314, at *5 (E.D. Cal. Sept. 23, 2020)). 6 Courts may remand an ALJ’s decision if it fails to clearly express the ALJ’s 7 conclusion as to disability. See, e.g., De Gonzalez v. Berryhill, 2017 WL 3224548, 8 at *3 (C.D. Cal. July 28, 2017); Hernandez v. Saul, 2021 WL 84397, at *4 (E.D. 9 Cal. Jan. 11, 2021). Here, however, the court finds the ALJ’s use of the term 10 “infra” was a harmless scrivener’s error. If “infra” is removed, even if not replaced 11 with “supra” (as was likely intended), the ALJ’s reasoning and intent are apparent, 12 and her detailed decision is internally consistent. See McKenzie v. Kijakazi, 2021 13 WL 4279015, at *15 (E.D. Cal. Sept. 21, 2021) (even inconsistent statements may 14 be excused if the ALJ’s intent is clear). Prior to the paragraph on Dr. Johnson’s 15 opinion, the ALJ provided several reasons for rejecting it, which the court can 16 reasonably infer the ALJ intended to reference in referring to “the mild to moderate 17 findings on imaging and in the medical evidence record.” Notably, plaintiff does 18 not challenge any of the ALJ’s reasoning found before the paragraph at issue. 19 Thus, she waived any such arguments. See Greger v. Barnhart, 464 F.3d 968, 973 20 (9th Cir. 2006) (arguments not raised before the district court are generally 21 waived). But even if she had properly challenged the ALJ’s reasons, the court 22 finds the ALJ provided specific and legitimate reasons, backed by substantial 23 evidence, to reject Dr. Johnson’s controverted opinion. 24 1. 25 The ALJ determined that the physical limitations assessed by Dr. Johnson Inconsistencies With the Medical Record 26 were inconsistent with the medical evidence record. See AR at 25. For instance, 27 Dr. Johnson concluded in November 2017 that plaintiff’s spine MRIs showed 28 9 1 severe disc disease (AR at 25, 705), but the ALJ cited medical records from 2017 2 and the first half of 2018 in which different physicians concluded that those same 3 MRIs showed some degenerative changes but no significant nerve root 4 compression or spinal cord impingement, compression, or stenosis. See AR at 20 5 (citing AR at 552, 560, 578, 587, 605, 614, 623, 641, 650, 659, 676, 679, 688-92, 6 775-80). Notably, in April 2018, Dr. Onechang Lee reviewed plaintiff’s spine 7 MRIs and found a tarlov cyst. See AR at 780. However, Dr. Lee concluded that 8 the cyst was likely asymptomatic, and reported otherwise mild findings. See id. 9 Months later, in January 2019, Dr. Lee examined plaintiff again and reiterated that 10 “there is no surgical pathology on the MRI C/L spines and I do not believe that she 11 is symptomatic from the tarlov cyst.”4 AR at 679. 12 The medical record also shows largely normal findings from plaintiff’s 13 knees, which contradicts many of the physical limitations assessed by Dr. Johnson. 14 The record starts with a January 2017 MRI of the left knee, which was reportedly 15 normal. See AR at 20 (citing AR at 559-60). The following month, an 16 examination of her right knee also revealed unremarkable findings. See AR at 21 17 (citing AR at 523). Nonetheless, although largely normal, X-rays of the left knee 18 taken that same month showed mild medial compartment narrowing and a 19 diagnosis of left knee osteoarthritis. See AR at 20 (citing AR at 524). An April 20 2017 examination of the left knee revealed no effusion, mild edema, range of 21 4 22 23 24 25 26 27 28 The ALJ also indicated that plaintiff’s back symptoms were generally controlled with prescription medication, physical therapy, and injections, without the need for more aggressive treatment like surgery. See AR at 20. To the extent the ALJ believed these treatments were conservative, she is incorrect. The use of narcotics and steroid injections, such as those prescribed to plaintiff (see AR at 552), are not considered conservative treatments. See Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011). The ALJ does not actually characterize this treatment as conservative, but to the extent that may be read as implicit, this does not invalidate the rest of the ALJ’s analysis regarding the consistency of Dr. Johnson’s opinion with the medical record. 10 1 motion of 3-125 degrees, no varus/valgus instability at 0/30, moderate tenderness, 2 mild crepitus, negative McMurray’s, and Lachman grade 1A. AR at 21 (citing AR 3 at 516). A June 2018 MRI of the left knee indicated mild to moderate joint 4 effusion, but otherwise revealed many normal findings consistent with prior 5 examinations. See AR at 20 (citing AR at 680). The ALJ also noted that the 6 orthopedist who diagnosed plaintiff with left knee osteoarthritis recommended 7 conservative care, including anti-inflammatory medications, activity modification, 8 weight loss, home exercise, physical therapy, and a hinged knee brace for 9 additional stability and comfort. Id. (citing AR at 524); Tommasetti v. Astrue, 533 10 F.3d 1035, 1040 (9th Cir. 2008) (characterizing physical therapy and anti11 inflammatories as conservative); Ayala v. Berryhill, 2018 WL 3968229, at *4 (C.D. 12 Cal. Aug. 16, 2018) (knee braces constitute conservative treatment); Gutierrez v. 13 Comm’r Soc. Sec. Admin., 2014 WL 1225118, at *5 (D. Or. Mar. 24, 2014), aff’d, 14 2016 WL 7187397 (9th Cir. Dec. 12, 2016) (recommendation to lose weight to 15 alleviate knee pain constitutes conservative treatment). 16 Next, the ALJ noted that objective findings from many physical 17 examinations were negative for any neurologic deficit, and instead generally 18 showed normal findings. See AR at 20-21. Examinations from February and May 19 of 2017 revealed intact sensation, strength (5/5) bilaterally, normal ranges of 20 motion of the extremities, and a negative straight leg raise. See AR at 21 (citing 21 AR at 514, 523). During examinations in April 2018 and January 2019, plaintiff 22 exhibited intact sensation, strength in all muscle groups, DTR 2+ throughout, 23 negative Hoffman, downgoing Babinski, normal-appearing extremities, full range 24 of motion, good capillary refill, and no edema. See id. (citing AR at 780, 782). 25 The ALJ also determined that the medical evidence reflected many normal 26 or mild psychiatric findings. See AR at 21. The ALJ acknowledged that, at times, 27 plaintiff appeared dysphoric, tense, anxious, distracted, and restless, and apparent 28 11 1 psychomotor retardation was noted. See id. (citing AR at 443, 445, 447, 449, 451). 2 Plaintiff also exhibited circumstantiality in her thought process. Id. But no 3 delusions or hallucinations were noted or reported during examinations. Id. In 4 general, mental status exams from October 2014 through April 2018 showed that 5 plaintiff appeared clean, neat, alert, oriented in all four spheres, and well-groomed, 6 and had an attitude that was appropriate to the setting, normal speech, normal 7 insight, normal judgment, normal perception of reality, and normal thought 8 content. See id. (citing AR at 443, 445, 447, 449, 451, 453, 455, 457, 463, 465, 9 467, 469, 471, 473, 475, 477, 479, 490-91, 509, 513, 518, 522, 549, 557, 562, 566, 10 571, 575, 580, 584, 589, 593, 598, 607, 611, 616, 620, 625, 629, 638). Plaintiff 11 also appeared to be stable with medications. See AR at 22 (citing AR at 443, 445, 12 447, 449, 451). This record contradicted Dr. Johnson’s opinion that plaintiff’s 13 severe anxiety and PTSD would make her unable to tolerate even “low stress” 14 work. See AR at 25, 708. 15 Furthermore, the ALJ noted that the medical record showed normal findings 16 for plaintiff’s eyes, ears, nose, throat, cardiovascular system, respiratory system, 17 lymphatic system, and skin. AR at 21 (citing AR at 509, 513, 518, 519, 522). 18 Plaintiff had no excessive kyphosis or scoliosis, no palpable abnormal masses or 19 nodules, and no point tenderness. Id. (citing AR at 509, 513, 518, 522). There was 20 no obvious pathology of the shoulders, elbows, wrists, hips, knees, or ankles, and 21 plaintiff’s balance and straight leg raise tests were within normal limits. See id. 22 (citing AR at 510, 514, 519). 23 Finally, the ALJ discussed the results of the independent consultative 24 examinations conducted by Drs. Yu and Doan, which were largely consistent with 25 the medical record discussed above. In May 2017, Dr. Doan conducted an 26 independent psychiatric consultative exam, during which plaintiff claimed, among 27 other things, to hear her deceased son speak to her and that she was traumatized 28 12 1 when, four years earlier, her then-fourteen-year-old daughter accused plaintiff’s 2 then-husband of molestation. See AR at 23 (citing AR at 488). Despite these 3 issues, Dr. Doan reported that plaintiff’s mental status exams were generally 4 normal, which is consistent with the mental health findings previously discussed. 5 See AR at 23-24 (citing AR at 490-91). And, despite plaintiff’s allegations of 6 hearing voices, Dr. Doan concluded that she showed no overt signs or symptoms of 7 mental illness. AR at 24 (citing AR at 489). Plaintiff also denied a history of 8 psychiatric hospitalization and engaged in many activities of daily living 9 (“ADLs”). See id. (citing AR at 489-90). 10 In December 2018, Dr. Yu conducted an orthopedic examination, which 11 revealed many normal to mild findings from plaintiff’s cervical spine, thoracic 12 spine, lumbar spine, knees, shoulders, elbows, wrists, hands, hips, ankles, and feet. 13 See AR at 22-23 (citing AR at 535-37). A neurologic exam also demonstrated 14 normal reflexes, well-preserved sensation, and grossly intact motor strength in all 15 extremities. See AR at 23 (citing AR at 537). 16 In sum, the reason the ALJ gave for discounting Dr. Johnson’s opinion – 17 that it was not supported by the mild to moderate findings in the medical evidence 18 record – was specific, legitimate, and supported by substantial evidence. See 19 Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (ALJ may reject treating 20 opinion if unsupported by the record as a whole or objective medical findings). 21 The ALJ satisfied the substantial evidence requirement by “setting out a detailed 22 and thorough summary of the facts and conflicting clinical evidence, stating [her] 23 interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 24 1012 (9th Cir. 2014) (cleaned up). 25 2. 26 As previously noted, the ALJ also discussed three medical source opinions Inconsistencies With Other Medical Opinions 27 that contradicted Dr. Johnson’s opinion. These opinions are also part of the 28 13 1 medical evidence record. 2 First, in April 2017, Disability Determination Services (“DDS”) medical 3 consultant Dr. Jone reviewed plaintiff’s medical file and opined that she: could 4 frequently lift and carry, including upward pulling, 25 pounds; could stand or walk, 5 with normal breaks, for a total of about six hours in an eight-hour workday; had an 6 unlimited ability to push or pull, including operation of hand and foot controls; and 7 had frequent to occasional postural limitations, but not manipulative, visual, 8 communicative, or environmental limitations. See AR at 24-25 (citing AR at 2159 16). 10 Second, in July 2017, DDS medical consultant Dr. Chan reconsidered Dr. 11 Jone’s assessed limitations, and opined that plaintiff: could lift and carry, including 12 upward pulling, 25 pounds occasionally and 10 pounds frequently; could stand, 13 walk, or sit, with normal breaks, for a total of six hours in an eight-hour workday; 14 had an unlimited ability to push or pull, including operation of hand and foot 15 controls; and had occasional postural limitations, but not manipulative, visual, 16 communicative, or environmental limitations. See AR at 25 (citing AR at 231-32). 17 Third, in December 2018, Dr. Yu, an independent orthopedic consultative 18 examiner, opined that plaintiff: could lift and carry 20 pounds occasionally and 10 19 pounds frequently; could push and pull frequently; could sit, stand, or walk for up 20 to four hours at a time or a total of six out of eight hours; did not need an assistive 21 device; could bend, crouch, stoop, and crawl frequently; could walk on uneven 22 terrain, climb ladders, and work at heights frequently; had no limitations for 23 fingering, handling, feeling, and reaching; could frequently perform postural 24 activities; and could be exposed to various environmental conditions. See AR at 24 25 (citing AR at 537-38, 540). 26 The ALJ gave great weight to Dr. Yu’s opinion, some weight to Dr. Chan’s, 27 and little weight to Dr. Jone’s. AR at 24-25. Specifically, the ALJ found that Dr. 28 14 1 Yu’s assessments were generally reflective of plaintiff’s abilities and supported by 2 the overall record. See AR at 24. As for Dr. Chan’s opinion, the ALJ determined 3 that it was more consistent with the overall record and plaintiff’s ability to engage 4 in ADLs. See AR at 25. The ALJ’s conclusions are supported by the ALJ’s 5 careful summary of the record. Accordingly, the opinions of at least Drs. Yu and 6 Chan also serve as substantial evidence to discount Dr. Johnson’s opinion. See 7 Tonapetyan, 242 F.3d at 1149 (opinion of examining source alone constitutes 8 substantial evidence because it rests on the source’s own independent 9 examination); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 10 1999) (opinion of non-examining source may serve as substantial evidence to 11 reject a treating opinion if it is consistent with and supported by other evidence in 12 the record). 13 3. 14 Finally, defendant argues that the ALJ provided other reasons to discount Other Reasons Raised by Defendant 15 Dr. Johnson’s opinion, including: (1) evidence of plaintiff’s ability to perform 16 many ADLs; (2) inconsistencies between Dr. Johnson’s opinion and his own 17 treatment records; and (3) other contrary medical opinions from Drs. Doan, 18 Morgan, and Sen. See D. Mem. at 2, 6. The court disagrees. 19 First, the ALJ discounted Dr. Johnson’s opinion because it was inconsistent 20 with “mild to moderate findings on imaging and in the medical evidence record.” 21 AR at 25. Although the ALJ discussed plaintiff’s ability to perform certain ADLs 22 in her decision, she did not specifically rely on that discussion in discounting Dr. 23 Johnson’s opinion. See Burrell, 775 F.3d at 1141 (courts “are constrained to 24 review the reasons the ALJ asserts” (cleaned up)). 25 Second, the ALJ did not expressly consider any inconsistencies between Dr. 26 Johnson’s opinion and his own treatment records. See id. Thus, this reason is also 27 not applicable. 28 15 1 Third, as previously noted, the court finds the ALJ’s reference to the medical 2 evidence record in discounting Dr. Johnson’s opinion is, in context, implicitly to 3 that medical evidence already then discussed by the ALJ, despite the erroneous use 4 of “infra” at the end of the paragraph dedicated to Dr. Johnson’s opinion. 5 Accordingly, the court considered the three opinions the ALJ discussed prior to 6 that paragraph. The ALJ’s discussion of the rest of the medical source opinions 7 cited by defendant comes after that paragraph. The court concludes the ALJ did 8 not specifically rely on her findings after the paragraph at issue in rejecting Dr. 9 Johnson’s opinion. 10 Although the court rejects these arguments, the ALJ nonetheless provided a 11 specific and legitimate reason, supported by substantial evidence, to discount Dr. 12 Johnson’s opinion. Accordingly, the ALJ did not err in giving Dr. Johnson’s 13 opinion little weight. 14 V. 15 CONCLUSION 16 IT IS THEREFORE ORDERED that Judgment shall be entered 17 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 18 this action with prejudice. 19 20 21 DATED: March 25, 2022 22 SHERI PYM United States Magistrate Judge 23 24 25 26 27 28 16
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