Amandip Kaur v. Andrew Saul, No. 5:2019cv01346 - Document 22 (C.D. Cal. 2021)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),40 IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (es)
Download PDF
<![CDATA[
Amandip Kaur v. Andrew Saul Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AMANDIP K.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 16 17 18 19 20 21 22 23 Defendant. I. ) Case No. EDCV 19-1346-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision denying her application for Social Security disability insurance benefits (“DIB”). The matter is before the Court on the parties’ Joint Stipulation, filed June 8, 2020, which the Court has taken under submission without oral argument. For the reasons stated below, the Court recommends that the Commissioner’s decision be affirmed. 24 25 26 27 28 1 Plaintiff’s name is partially redacted in line 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 Dockets.Justia.com 1 II. BACKGROUND Plaintiff was born in 1976. 2 (Administrative Record (“AR”) 3 167.) 4 warehouse supervisor (AR 54, 159). 5 applied for DIB, alleging that she had been unable to work since 6 September 27, 2013 (AR 186), because of back, leg, feet, and neck 7 pain (AR 170). 8 9 She completed high school (AR 171) and worked as a On November 13, 2015, she After her application was denied initially (AR 79-82) and on reconsideration (AR 86-91), she requested a hearing before an 10 Administrative Law Judge (AR 92-97). 11 August 28, 2018, at which Plaintiff, represented by counsel, 12 testified, as did a vocational expert. 13 decision issued September 14, 2018, the ALJ found her not 14 disabled. 15 the Appeals Council review the ALJ’s decision. 16 June 6, 2019, the Appeals Council denied her request for review. 17 (AR 1-6.) 18 III. STANDARD OF REVIEW 19 (AR 12-30.) A hearing was held on (AR 31-58.) In a written On September 19, 2018, she requested that (AR 147-49.) On This action followed. Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 24 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 means such evidence as a reasonable person might accept as 26 adequate to support a conclusion. 27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 is “more than a mere scintilla, but less than a preponderance.” 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 3 meaning of ‘substantial’ in other contexts, the threshold for 4 such evidentiary sufficiency is not high.” 5 139 S. Ct. 1148, 1154 (2019). 6 evidence supports a finding, the court “must review the 7 administrative record as a whole, weighing both the evidence that 8 supports and the evidence that detracts from the Commissioner’s 9 conclusion.” “[W]hatever the Biestek v. Berryhill, To determine whether substantial Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 10 1998). “If the evidence can reasonably support either affirming 11 or reversing,” the reviewing court “may not substitute its 12 judgment” for the Commissioner’s. 13 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 14 People are “disabled” for purposes of receiving Social 15 Security benefits if they are unable to engage in any substantial 16 gainful activity owing to a physical or mental impairment that is 17 expected to result in death or has lasted, or is expected to 18 last, for a continuous period of at least 12 months. 19 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 20 1992). 42 U.S.C. 21 A. The Five-Step Evaluation Process 22 An ALJ follows a five-step sequential evaluation process to 23 assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); 24 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 25 amended Apr. 9, 1996). 26 determine whether the claimant is currently engaged in 27 substantial gainful activity; if so, the claimant is not disabled 28 and the claim must be denied. In the first step, the Commissioner must § 404.1520(a)(4)(i). 3 1 If the claimant is not engaged in substantial gainful 2 activity, the second step requires the Commissioner to determine 3 whether the claimant has a “severe” impairment or combination of 4 impairments significantly limiting her ability to do basic work 5 activities; if not, a finding of not disabled is made and the 6 claim must be denied. 7 § 404.1520(a)(4)(ii) & (c). If the claimant has a “severe” impairment or combination of 8 impairments, the third step requires the Commissioner to 9 determine whether the impairment or combination of impairments 10 meets or equals an impairment in the Listing of Impairments 11 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 12 1; if so, disability is conclusively presumed and benefits are 13 awarded. 14 § 404.1520(a)(4)(iii). If the claimant’s impairment or combination of impairments 15 does not meet or equal one in the Listing, the fourth step 16 requires the Commissioner to determine whether the claimant has 17 sufficient residual functional capacity (“RFC”)2 to perform her 18 past work; if so, she is not disabled and the claim must be 19 denied. 20 proving she is unable to perform past relevant work. 21 F.2d at 1257. 22 case of disability is established. 23 § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if the claimant has no past relevant 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 work, the Commissioner bears the burden of establishing that the 2 claimant is not disabled because she can perform other 3 substantial gainful work available in the national economy, the 4 fifth and final step of the sequential analysis. 5 §§ 404.1520(a)(4)(v), 404.1560(b). 6 B. The ALJ’s Application of the Five-Step Process 7 At step one, the ALJ found that Plaintiff had not engaged in 8 substantial gainful activity since September 27, 2013, the 9 alleged onset date. (Id.) (AR 17.) Her date last insured was December 10 31, 2019. 11 severe impairments of “degenerative disc disease of the lumbar 12 spine,” “spondylosis with sciatica,” and “bilateral venous 13 insufficiency.” 14 severe because it did “not cause more than minimal limitation in 15 [her] ability to perform basic mental work activities.” 16 At step three, she found that Plaintiff’s impairments did not 17 meet or equal any of the impairments in the Listing. 18 At step four, she determined that she had the RFC to perform 19 light work except that she could not “push or pull with the right 20 lower extremity”; could “occasionally climb ramps and stairs,” 21 “stoop, kneel, crouch and crawl”; could “never climb ladders, 22 ropes, or scaffolds”; and was “limited to simple tasks due to 23 pain.” 24 perform her past relevant work but could work as a hotel 25 housekeeper, cashier II, or fast-food worker, positions that 26 “exist[ed] in significant numbers in the national economy.” 27 25; see AR 24-26.) 28 26.) (AR 19.) At step two, she determined that Plaintiff had (Id.) She concluded that her depression was not (AR 18.) (AR 18-19.) The ALJ concluded that Plaintiff was unable to Accordingly, she found her not disabled. 5 (AR (AR 1 V. DISCUSSION 2 Plaintiff alleges that the ALJ erred in assessing her RFC 3 and her symptom statements. 4 the reasons discussed below, remand is not warranted. A. 5 For Medical Opinions and Evidence 1. 6 (See J. Stip. at 4-9, 15-18.) Wayne Cheng On April 24, 2013, Plaintiff saw Dr. Wayne Cheng,3 7 8 complaining of “[r]ight thigh pain.” (AR 283.) Dr. Cheng noted 9 that she had done well “from [a] 3 level” lumbar fusion in 2010 10 but “now ha[d] right hamstring, piriformis4 and lateral thigh 11 pain” (AR 284); “lying down” provided her “[o]nly relief” (id.). 12 He instructed her to “try [C]elebrex”5 and physical therapy. 13 (Id.) 14 Plaintiff reported on June 17, 2013, that “a few sessions” 15 of physical therapy “did not help,” she “did not take the 16 Celebrex due to insurance reasons,” she was in “so much pain she 17 [couldn’t] function, she [was] embarrassed at work” because “she 18 19 3 20 21 22 23 24 25 26 27 28 Dr. Cheng primarily practices spine surgery. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Wayne” with “Cheng” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 4 The piriformis muscle is a flat, bandlike muscle located in the buttocks near the top of the hip joint. See Piriformis Syndrome, WebMD, https://www.webmd.com/pain-management/guide/ piriformis-syndrome-causes-symptoms-treatments#1 (last visited Feb. 22, 2021). 5 Celebrex is name-brand celecoxib, a nonsteroidal antiinflammatory used to relieve pain, tenderness, swelling, and stiffness caused by arthritis and spondylitis. See Celecoxib, MedlinePlus, https://www.medlineplus.gov/druginfo/meds/ a699022.html (last visited Feb. 22, 2021). 6 1 [was] always in pain,” “she [was] in her bed” “[w]hen . . . not 2 at work,” her “leg . . . at times ‘fe[lt] like [it was] broken,’” 3 and she was “sedentary [and did] not exercise due to the pain.” 4 (AR 296.) 5 of her right lower leg were ordered. 6 A new MRI of her lumbar spine and an EMG and bone scan (AR 297.) On July 3, 2013, Plaintiff complained of “right buttock 7 pain, right thigh pain and pain in the middle of her right shin 8 and now starting in her left shin.” 9 with sitting/standing/walking,” but she found “relief with lying (AR 302.) It was “worse 10 down” and with “Norco/[L]ortab.”6 11 pain” with the FABERE test.7 12 noted that Dr. Cheng had reviewed a June 25 bone scan and MRI and 13 that they showed a “[s]mall posterior disc bulge at L2-3 and 14 right foraminal disc bulge at L3-4.” 15 a Flector patch8 were prescribed. 16 17 (Id.) (AR 303.) Plaintiff had “[n]o A physician’s assistant (Id.) Physical therapy and (AR 304.) Plaintiff saw Dr. Cheng’s physician’s assistant on October 21, 2013, for “follow up on her bilateral lower extremity pain.” 18 19 20 21 22 6 Norco and Lortab are opioid-based medications for treating moderate to severe pain, consisting of hydrocodone and acetaminophen. See Norco, WebMD, https://www.webmd.com/drugs/ 2/drug-63 /norco-oral/details (last visited Feb. 22, 2021); Hydrocodone-Acetaminophen, WebMD, https://www.webmd.com/drugs/2/ drug-251/hydrocodone-acetaminophen-oral/details (last visited Feb. 22, 2021). 23 7 24 25 26 27 28 The Patrick, or FABERE, test measures pain or dysfunction in the hip and sacroiliac joints. Patrick Test, The Free Dictionary, http://medical-dictionary.thefreedictionary.com/ Patrick+test (last visited Feb. 22, 2021). 8 Flector is a brand of diclofenac-transdermal patch used to treat pain from minor strains, sprains, and bruises. Diclofenac Transdermal Patch, MedlinePlus, https://medlineplus.gov/ druginfo/meds/a611001.html (last visited Feb. 22, 2021). 7 1 (AR 210.) 2 right lateral thigh pain ha[d] improved” with physical therapy 3 and that “the compression stockings . . . ha[d] really helped her 4 leg pain,” but “[s]he continue[d] to have bilateral shin pain.” 5 (Id.) 6 concerning “possible venous insufficiency,” have an “EMG 7 completed,” and get a “second opinion [about] her back.” 8 211.) 9 She “denie[d] any back” pain and reported that “her She was encouraged to follow up with another doctor (AR On November 27, 2013, Plaintiff saw Dr. Cheng for “follow up 10 on her bilateral lower extremity pain.” 11 she had done “fine for a couple of years” following her 2010 12 lumbar fusion. 13 leg pain ha[d] been progressively getting worse” and that she had 14 “not been able to work due to her pain.” 15 any back” pain and reported that “her right lateral thigh pain 16 ha[d] improved” with physical therapy, but she “continue[d] to 17 have bilateral shin pain.” 18 “possible venous insufficiency” and had been wearing the 19 recommended compression stockings, which “really helped her leg 20 pain out.” 21 showed “[i]nterval placement of anterior stabilization hardware 22 and disc spacers at L3-4, L4-5, and L5-S1” and a “[s]mall 23 posterior disc bulge at L2-3 and right foraminal disc bulge at 24 L3-4,” but “[n]o central spinal stenosis or significant neural 25 foraminal narrowing.” 26 “[l]ow back pain radiating to both legs,” “[l]umbar spondylosis,” 27 “[d]egenerative disc disease,” and “[l]umbago.” 28 that her “bilateral leg pain [was] not coming from her back” and (Id.) (Id.) (AR 212.) He noted that She reported that in the “last year her (Id.) (Id.) She “denie[d] She was being treated for Dr. Cheng noted that the June 25, 2013 MRI (AR 213.) He diagnosed “[n]europathy,” 8 (Id.) He opined 1 that “no further surgical intervention [was] warranted.” (AR 2 214.) 3 venous insufficiency” and “start on [L]yrica9 . . . for pain.” 4 (Id.) 5 but she “really [did] not want anything foreign in her body.” 6 (Id.) He encouraged her to follow her treatment for “possible He also “discussed [a] spinal cord stimulator” with her, 7 Plaintiff reported on January 27, 2014, that she 8 “continue[d] to have bilateral shin pain,” the “compression 9 stockings . . . [had] only helped out for a little,” “Lyrica 10 . . . [had] not help[ed],” “she felt depressed and tired,” and 11 “she ha[d] been out of work . . . for 4 months due to her leg 12 pain.” 13 physician’s assistant noted that the EMG “show[ed] neuropathy vs 14 [p]olyneuropathy”; Plaintiff had “min[imum b]ack pain,” and the 15 “[m]ajority of [her] pain [was] from [her] legs.” 16 physician’s assistant “suggest[ed that she] start on [L]yrica” 17 and “discussed [a] spinal cord stimulator” with her. 18 new MRI of the lumbar spine was ordered “to rule out spinal 19 stenosis,” and she was referred “to pain management for a spinal 20 stimulator” and instructed to “be off work for another 6 weeks.” 21 (AR 219.) 2. 22 23 (AR 217.) But she “denie[d] any back” pain. (Id.) (AR 218.) (Id.) The The A Gilbert P. Eng Plaintiff saw Dr. Gilbert P. Eng10 on May 7, 2013, for a 24 9 25 26 27 28 Lyrica treats pain and certain types of seizures. See Lyrica, WebMD, https://www.webmd.com/drugs/2/drug-93965/ lyrica-oral/details (last visited Feb. 22, 2021). 10 Dr. Eng primarily practices internal medicine. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (continued...) 9 1 “[r]outine general medical examination.” 2 “[e]sophageal reflux,” “[l]umbago,” “[d]egenerative disc 3 disease,” and “[o]besity, unspecified.” 4 she was currently prescribed Celebrex, Nexium,11 and Lortab 5 (id.); he ordered a urinalysis and blood work (AR 292). 3. 6 (AR 292.) (AR 290.) He diagnosed He noted that Lucas Korcek 7 Plaintiff saw Dr. Lucas Korcek12 on August 26, 2013, 8 complaining of “pain in [her right] buttocks, [right] thigh[,] 9 and [both] shins.” (AR 308.) She reported that her “[p]ain 10 [was] focused mostly over” her bilateral “anterior lower leg” and 11 was “aggravated with standing/walking and relieved with rest.” 12 (Id.) 13 and “denie[d] any associated back pain/leg weakness/decreased leg 14 sensation/edema.” 15 pain” with the FABERE test, “[n]o sensory deficits” in the 16 bilateral lower extremities, “[n]o edema,” “2+” foot pulses, and 17 “5/5 hip flexion/knee extension/ankle dorsiflexion/great toe 18 extension/ankle planar flexion” bilaterally. 19 Korcek noted that there was “[n]o clear etiology for She got “relief with lying down” and with “Norco/[L]ortab” (Id.) An examination that day showed “[n]o (AR 309.) Dr. 20 21 22 23 24 25 26 27 28 10 (...continued) (search for “Gilbert P.” with “Eng” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 11 Nexium treats stomach and esophagus problems by decreasing the amount of acid made by the stomach. See Nexium Capsule, Delayed Release, WebMD, https://www.webmd.com/drugs/ 2/drug-20536/nexium-oral/details (last visited Feb. 22, 2021). 12 Dr. Korcek primarily practices orthopedic surgery. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “Lucas” with “Korcek” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 10 1 [Plaintiff’s] pain,” prescribed stretching exercises and 2 swimming, gave her a “temporary 4 hour work restriction,” and 3 referred her to a sports-medicine doctor and a pain-management 4 clinic. (AR 310.) 4. 5 Cole W. Robinson On September 5, 2013, Plaintiff saw Dr. Cole W. Robinson,13 6 7 complaining of “bil[ateral] leg pain” and “left>right anterior 8 shin leg pain” that had started one year before after exercising 9 and “would resolve with rest/massage[] and raising the limb.” 10 (AR 314.) 11 2 hours” and “seem[ed] to radiate proximally to the lateral 12 portion of her left knee, but . . . the radiating pain was not 13 severe.” 14 pain [was] now present with the activities associated with her 15 job.” 16 most consistent with chronic anterior compartment syndrome” and 17 instructed her to return “for compartment pressure measurements 18 . . . before and after exercise.” 21 (Id.) (Id.) 5. 19 20 She reported that the pain “always resolve[d] after 1- She had “stopped walking for exercise,” but “the Dr. Robinson noted that her “presentation [was] (AR 316.) Christopher M. Jobe On September 17, 2013, Plaintiff saw Dr. Christopher M. Jobe,14 who noted that “[a]fter reviewing [her] symptoms and 22 23 24 25 26 27 28 13 Dr. Robinson primarily practices pain medicine. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Cole W.” with “Robinson” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 14 Dr. Jobe primarily practices orthopedic surgery. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “Christopher M.” with “Jobe” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, (continued...) 11 1 physical exam, [he] believ[ed] that her problem [was] venous 2 congestion in the legs.” 3 her to use compression stockings. 6. 4 5 (AR 209; see AR 321.) He instructed (AR 209, 321.) Gurvinder Uppal On October 22, 2013, Plaintiff saw othopedist Gurvinder 6 Uppal for low-back pain. 7 before her fusion surgery showed “a herniated disc at L3-4 [and] 8 L4-5 and collapse of the L5-S1 disc space.” 9 performed after the surgery showed “adequate position of the (Id.) (AR 455.) Dr. Uppal noted that an MRI (Id.) An MRI 10 hardware.” A bone scan was “negative for any fractures or 11 infections.” 12 Norco or Lortab a day” when she was working, but since she was no 13 longer working she was “tak[ing] maybe one.” 14 “normal balance” and “[n]o gross muscle weakness.” 15 examination showed “60 degrees of flexion and 10 degrees of 16 extension,”15 a negative straight-leg-raise test,16 and “5/5” 17 muscle strength of the ankle dorsi, plantar flexors, quadriceps, (Id.) Plaintiff reported that she was taking “six+ (Id.) She had (Id.) An 18 19 20 21 22 23 24 25 26 27 28 14 (...continued) 2021). 15 Normal lumbar-spine range of motion is 60 degrees of flexion and 25 degrees of extension. See Range of Motion, Chiro.Org, https://chiro.org/forms/romchiro.html (last visited Feb. 22, 2021). 16 A straight-leg-raise test involves mechanical manipulation of the legs, stressing the neurological tissues in the spine; specific symptoms reported at different degrees of flexion can indicate nerve compression. See The Pain Clinic Manual 44-45 (Stephen E. Abram & J. David Haddox eds., 2d ed. 2000). 12 1 and iliopsoas.17 2 stretching exercises and noted that he was “placing her on 3 temporary disability.” 4 (AR 456.) Dr. Uppal instructed her to continue (Id.) Dr. Uppal noted at a March 25, 2014 follow-up visit that 5 Plaintiff had “had EMG/NCV studies done” that were “consistent 6 with abnormalities, but not diagnostic.” 7 that the abnormalities were “consistent with changes from [her] 8 previous surgery.” 9 gross muscle weakness.” (Id.) He opined She had “normal balance” and “[n]o (Id.) She exhibited “spasms” “[o]n But she had “60 degrees flexion and 10 10 examination.” 11 extension”; a negative straight-leg-raise test; and “5/5” muscle 12 strength in the ankle dorsi, plantar flexors, quadriceps, and 13 iliopsoas. 14 disability note for six months” and that he didn’t “feel she 15 [could] go back to work” because she was “on pain medicine and 16 [was] having significant spasms in her low back.” 17 (Id.) (AR 457.) (Id.) Dr. Uppal noted that he was “giving her a (AR 458.) On September 23, 2014, Plaintiff saw Dr. Uppal for low-back 18 and “bilateral buttock pain.” (AR 459.) She had “normal 19 balance” and “[n]o gross muscle weakness.” 20 exhibited “60 degrees flexion and 10 extension”; a negative 21 straight-leg-raise test; and “5/5” muscle strength in the ankle 22 dorsi, plantar flexors, quadriceps, and iliopsoas. 23 Uppal instructed her to “[c]ontinue home stretching exercises” 24 and noted that “[s]he [was] placed on disability.” (Id.) She again (Id.) Dr. (AR 460.) 25 26 27 28 17 The iliopsoas muscle is part of a group of muscles known as the hip flexors. See Hip Flexor Strain — Aftercare, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/ patientinstructions/000682.htm (last visited Feb. 22, 2021). 13 1 During a February 10, 2015 follow-up visit, Plaintiff 2 reported that she was “having more and more back and leg pain” in 3 the “low back, posterior buttock, thigh, calf[, and] all the way 4 to the feet.” 5 balance,” “[n]o gross muscle weakness,” “60 degrees flexion and 6 10 extension,” a negative straight-leg-raise test, and “5/5” 7 muscle strength in the ankle dorsi, plantar flexors, quadriceps, 8 and iliopsoas. 9 evaluate if there [was] any stenosis and spondylosis.” (AR 461.) (Id.) Examination again showed “normal Dr. Uppal recommended a “CAT scan to (AR 462.) 10 He gave “her an off work note for another four weeks,” noting 11 that he did “not feel she [could] do any significant bending, 12 stooping, [or] lifting” and that she was “on Norco which causes 13 further depression and lack of concentration.” (Id.) Dr. Uppal noted during a May 12, 2015 follow-up visit that a 14 15 report of a recent “myelogram and CAT scan of the lumbar spine” 16 showed “a 3 mm bulging disc at . . . L2-3.” 17 that “the reason she [was] having pain [was] because of adjacent 18 level degenerative changes because she ha[d] had L3-4, L4-5 and 19 L5-S1 decompression and fusion.” 20 were unchanged, except she had a positive straight-leg-raise 21 test. 22 films from the myelogram and CAT scan and that she was “continued 23 on her disability.” 24 (AR 463-64.) (Id.) (AR 463.) He opined Her examination findings Dr. Uppal noted that he wanted to see the (AR 464.) On June 9, 2015, Dr. Uppal found that the “CAT scan 25 myelogram” showed “no significant stenosis.” 26 Plaintiff’s examination showed “60 degrees of flexion and 10 27 degrees of extension,” a negative straight-leg-raise test, and 28 “5/5” muscle strength in the ankle dorsi, plantar flexors, 14 (AR 465.) 1 quadriceps, and iliopsoas. 2 pain-management specialist, noting that she had “some thickening 3 of the ligamentum flavum” but “no significant stenosis.” 4 He stated that “if her symptoms [got] much worse . . . she 5 [would] be a candidate for posterior decompression and fusion.” 6 (Id.) But the “risk benefit ratio [was] not [yet] in her favor.” 7 (Id.) He “continued [her] on disability” “because she [was] on 8 pain medication,” “it causes too much drowsiness,” and “she 9 [couldn’t] really take” doing “a lot of activities such as 10 (Id.) bending, stooping, [and] lifting.” Dr. Uppal referred her to a (Id.) (Id.) Dr. Uppal noted during a September 8, 2015 follow-up visit 11 12 that Plaintiff was “trying to hold off” on back surgery. 13 466.) 14 positive straight-leg-raise test. 15 that she undergo epidural injections. (AR Her examination findings were unchanged except she had a (Id.) Dr. Uppal recommended (AR 467.) Plantiff reported on December 8, 2015, that she had not had 16 17 the injections because of a communication issue with scheduling 18 them. 19 “junctional due to stress transference.” 20 leg-raise test was negative, and the other examination findings 21 were unchanged. 22 undergo epidural injections and “kept [her] on temporary total 23 disability for another three month[s].” (AR 468.) Dr. Uppal noted that her “stenosis at L2-3” was (Id.) (Id.) Her straight- Dr. Uppal again recommended that she (Id.) 24 On March 8, 2016, Plaintiff reported that she “never 25 underwent her epidurals because she had [a] urinary tract 26 infection.” 27 [her] back reveal[ed] spasms”; she had “40 degrees of flexion and 28 10 degrees of extension”; the straight-leg-raise test was (AR 470.) Dr. Uppal noted that an “[e]xamination of 15 1 positive; muscle strength was “5/5” for the ankle dorsi, plantar 2 flexors, quadriceps, and iliopsoas; and there was “tenderness 3 over the screw tops” hardware from her surgery. 4 recommended “a lumbar corset on an as needed basis” and gave her 5 an “off-work note,” noting that he did “not feel she [was] going 6 to return back to work.” 7 He (Id.) (AR 470-71.) Dr. Uppal noted during a May 24, 2016 follow-up visit that 8 Plaintiff’s “symptoms [were] more due to scarring around the 9 nerves,” “she should get into pain management,” and she “may need 10 to have a switch of her medications.” 11 showed “tenderness over the screw tops,” “60 degrees of flexion 12 and 10 degrees of extension,” positive right- and negative left- 13 straight-leg-raise test, and a negative FABERE test, “which 14 indicate[d] no hip pathology.” 15 management and physical therapy and noted that he would 16 “recommend . . . remov[ing] the hardware” if those measures 17 failed and she had “unacceptable symptoms.” 18 “wish[ed] to hold off at [that] point.” 7. 19 20 (AR 472.) (Id.) Examination Dr. Uppal recommended pain (Id.) Plaintiff (Id.) Ook Kim On December 17, 2013, Plaintiff saw Dr. Ook Kim18 for a 21 medication refill and to reestablish care. (AR 214.) Plaintiff 22 reported her pain as “5 on a scale of 0-10.” 23 noted that her “[d]aily physical functioning” was “good,” and her 24 “[e]motional functioning” was “excellent.” (AR 215.) (Id.) Dr. Kim She was being 25 26 27 28 18 Dr. Kim primarily practices internal medicine. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Ook” with “Kim” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 16 1 “maintained on Lortab 7.5/500 3 tab(s) a day” (id.); she “[u]sed 2 to take 5 tabs a day while working” but no longer needed to since 3 being at home (id.). 4 “[p]ain controlled” with her medication and instructed her to 5 return in three months. 6 Dr. Kim found her “[l]umbar spondylosis” (AR 216.) Plaintiff saw Dr. Kim on July 1, 2014, for a medication 7 refill. (AR 222.) She again rated her pain as “5/10,” her daily 8 physical functioning as “good,” and her emotional functioning as 9 “excellent.” (Id.) An examination showed “no low back 10 tenderness” and “normal, atraumatic” extremities with “no 11 cyanosis or edema.” 12 radiculopathy” and found Plaintiff’s lumbar spondylosis 13 “[c]ontrolled.” 14 and started her on nortriptyline.19 15 (AR 223.) (AR 225.) Dr. Kim noted “[n]o evidence[] of She adjusted the dosage of her Norco (Id.) On October 16, 2014, Plaintiff saw Dr. Kim for a medication 16 refill and leg pain. (AR 232.) She denied any side effects from 17 her medications; reported her pain as “1 on a scale of 0-10”; and 18 said her daily physical functioning and social and emotional 19 functioning were “excellent.” 20 lumbar spondylosis “[c]ontrolled” and renewed her Norco 21 prescription. (AR 233.) Dr. Kim found her (AR 234-35.) 22 Plaintiff returned to Dr. Kim on February 19, 2015, for 23 another medication refill (AR 235) and reported that she had 24 19 25 26 27 28 Nortriptyline treats depression. See Nortriptyline HCL, WebMD, https://www.webmd.com/drugs/2/drug-10710/ nortriptyline-oral/details (last visited Feb. 22, 2021). It is occasionally used for treating neuropathic pain. See Nortriptyline for Neuropathic Pain in Adults, NCBI, https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC6485407/ (last visited Feb. 22, 2021). 17 1 “been well” (AR 236). 2 10” and said her social and emotional functioning was “good” and 3 her daily physical functioning was “fair.” 4 assessed her lumbar spondylosis as “[c]ontrolled,” continued her 5 on her medication regimen, and instructed her to “[f]ollow up 6 with orthopedics.” 7 She rated her pain as “5 on a scale of 0- (Id.) Dr. Kim (AR 237.) On June 15, 2015, Plaintiff denied back pain and rated her 8 right-leg pain as “5-7/10” and her back pain as “1 on a scale of 9 0-10.” (AR 242.) She said her social and emotional functioning 10 was “good” and her daily physical functioning was “fair due to 11 right buttock pain.” 12 she had “moderate tenderness to palpation of the right buttock 13 around the ischial tuberosity,”20 her straight-leg-raise and 14 FABERE tests were negative, and the neurological findings were 15 normal. 16 be scheduled for her right-buttock pain. 17 (AR 243.) (Id.) On examination, Dr. Kim noted that Dr. Kim noted that Kenalog21 injections would (AR 244.) Plaintiff underwent a Kenalog injection on July 15, 2015. 18 (AR 246.) On August 13, 2015, she reported to Dr. Kim that 19 “[h]er pain got better for a week” after the injection, but it 20 had returned. 21 7/10” (id.) and her back pain as “1 on a scale of 0-10” (AR 248). (AR 247.) She rated her right-buttock pain as “5- 22 23 24 25 26 27 28 20 The ischial tuberosity is a rounded bone that extends from the ischium — the curved bone that makes up the bottom of the pelvis. See Everything You Need to Know About Your Ischial Tuberosity, Healthline, https://www.healthline.com/health/ ischial-tuberosity (last visited Feb. 22, 2021). 21 Kenalog is name-brand triamcinolone acetonide, a corticosteroid hormone that decreases swelling. See Kenalog-40 Vial, WebMD, https://www.webmd.com/drugs/2/drug-9275/ kenalog-injection/details (last visited Feb. 22, 2021). 18 1 An examination showed “moderate tenderness to palpation of the 2 right buttock around the ischial tuberosity” and “moderate 3 tenderness to palpation of both . . . low[er] legs” but “no 4 swelling, erythema, or warmth.” 5 and FABERE tests were negative, and the neurological examination 6 was normal. (AR 249.) Straight-leg-raise (Id.) On September 10, 2015, Plaintiff rated her right buttock, 7 8 leg, and back pain as “3/10.” 9 and emotional functioning as “good” and her daily physical (Id.) (AR 252.) She reported her social 10 functioning as “fair.” Dr. Kim noted for both Plaintiff’s 11 lumbar spondylosis and her right-leg pain that her “current 12 medical regimen [was] effective.” (AR 254.) During a January 4, 2016 followup, Plaintiff rated her pain 13 14 as “3 on a scale of 0-10” and denied any side effects from her 15 medication. 16 regimen [was] effective,” instructed her to “continue [the] plan 17 and medications,” and added “axial muscle-strengthening 18 exercises.” (AR 262.) Dr. Kim found that her “current medical (AR 264.) Plaintiff saw Dr. Kim for a medication refill on March 18, 19 20 2016. 21 and denied any side effects from her medication. 22 Kim assessed her “medical regimen” as “effective” and instructed 23 her to “continue [the] plan and medications.” 24 (AR 504.) She rated her pain as “3 on a scale of 0-10” (AR 505.) Dr. (AR 507.) On April 15, 2016, Plaintiff again rated her pain as “3 on a 25 scale of 0-10.” 26 recommended that the hardware from her previous back surgery be 27 removed. 28 regimen” for her lumbar spondylosis was “effective” and (Id.) (AR 514.) She reported that Dr. Uppal had Dr. Kim again noted that her “current medical 19 1 instructed her to follow up with Dr. Uppal. 2 (AR 516.) Plaintiff saw Dr. Kim for a followup on her back pain and 3 radicular right-leg pain on July 20, 2016. 4 her pain as “2 on a scale of 0-10.” 5 that “Dr. Chen[g] . . . [didn’t] recommend surgery.” 6 neurological examination showed normal findings except “0+” on 7 the right-achilles deep-tendon reflexes and “[d]ecreased light 8 touch and vibration to [the] right foot through L4-S1.” 9 542.) 10 (AR 540.) (AR 541.) She rated Dr. Kim noted (Id.) A (AR On October 19, 2016, Plaintiff rated her pain as “2 on a 11 scale of 0-10” and denied any side effects from her medication. 12 (AR 581.) 13 Neurological examination findings were unchanged from July except 14 her straight-leg-raise test was positive, with the right greater 15 than the left. 16 spine with radiculopathy, lumbar region” and noted that Plaintiff 17 would “taper off Norco” and that it was “[u]nclear if” her leg 18 pain was “radiculopathy or [a] shin splint given [the] normal EMG 19 and positive” straight-leg-raise test. Her back-pain score was noted as “5.” 8. 20 (AR 583.) (AR 581-82.) Dr. Kim diagnosed “[o]steoarthritis of (AR 584.) Ranier E. Guiang 21 On January 8, 2014, Plaintiff saw Ranier E. Guiang,22 22 complaining of “back pain radiating down to the legs especially 23 on the right.” (AR 626.) She reported that Gabapentin23 and 24 22 25 26 27 28 Dr. Guiang primarily practices pain medicine. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Ranier E.” with “Guiang” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 23 Gabapentin is an anticonvulsant used sometimes to relieve (continued...) 20 1 Lyrica had been ineffective for her pain (id.), and Dr. Guiang 2 recommended epidural injections (AR 627). Plaintiff returned to Dr. Guiang on July 13, 2017, for 3 4 “lower back pain radiating to her right thigh” and “bilateral 5 shin pain.” 6 epidural steroid injections. 7 injections on August 15, 2017 (AR 643), and February 27, 2018 (AR 8 674). 9 on [her] current pain regimen,” with “[n]o . . . adverse 10 (AR 631.) Dr. Guiang prescribed Nucynta24 and (Id.) She underwent epidural On February 23, 2018, she reported “adequate pain relief reactions or over sedation.” 9. 11 (AR 669.) Frances Batin 12 On November 3, 2015, Plaintiff reported to Dr. Frances 13 Batin25 that she had “been having ‘bruise-like’ lesions on [her] 14 legs above and below [the] knees” “for one year.” 15 lesions “ha[d] never been painful” before, but the pain from “a 16 lesion on her right calf for 2 days” was “intolerable and 17 worsened with weight-bearing,” “driving the car, or . . . 18 dorsiflexion at rest.” 19 pain for 3 years that [was] undiagnosed” and for which she took (Id.) (AR 447.) The She also reported “right lower leg 20 21 22 23 (...continued) nerve pain. See Gabapentin, WebMD, https://www.webmd.com/ drugs/2/drug-14208-8217/gabapentin-oral/gabapentin-oral/details (last visited Feb. 22, 2021). 23 24 24 25 26 27 28 Nucynta is used to help relieve moderate to severe shortterm pain. See Nucynta, WebMD, https://webmd.com/drugs/2/ drug-152563/nucynta-oral/details (last visited Feb. 22, 2021). 25 Dr. Batin primarily practices internal medicine. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “Frances” with “Batin” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 21 1 Norco “every 5 hours.” 2 office”26 and “9/10” “[w]hen driving or when Norco w[ore] off.” 3 (Id.) 4 “[e]pidermal lesions likely vasculature in nature” (id.) and 5 scheduled a skin biopsy (AR 448), which she performed on November 6 13, 2015 (AR 453). 9 She rated her pain “6/10 in the Dr. Batin diagnosed “[m]yofascial pain in both legs” and 10. 7 8 (Id.) The results do not appear in the record. William Wang Plaintiff saw orthopedist William Wang for a complete orthopedic evaluation on May 11, 2016. (AR 266-71.) Dr. Wang 10 noted that she got into and out of a chair “without difficulty” 11 and had “no apparent ataxia or dyspnea.” 12 “mild tenderness to palpation in the midline of the lumbar spine” 13 and a “slight loss of lordosis.” 14 CVA27 tenderness,” “evidence of bruits,”28 or “muscle spasm” and 15 no “pain with range of motion,” “axial rotation of the trunk,” or 16 “axial loading of the spine at the head.” 17 leg-raise test was “positive at 40 degrees, both sitting and (AR 267-68.) (AR 268.) She had But there was “no (Id.) The straight- 18 19 26 20 21 22 23 24 25 26 27 28 Plaintiff apparently stopped working in late 2013, although she had fairly substantial unexplained income in 2014. (AR 153, 155.) It is unclear what “office” she was referring to in late 2015. 27 The costovertebral angle (“CVA”) is located on the back at the bottom of the ribcage. The Costovertebral Angle: What Is It and Why Can It Be Painful?, Healthline, https:// www.healthline.com/ health/costovertebral-angle (last visited Feb. 22, 2021). 28 A bruit is a sound heard over an artery or vascular channel, reflecting turbulence of flow and most commonly caused by abnormal narrowing of an artery. Medical Definition of Bruit, MedicineNet, https://www.medicinenet.com/bruit/definition.htm (last visited Feb. 22, 2021). 22 1 supine.” (Id.) Her “[r]ange of motion of the back [was] 60/90 2 degrees of forward flexion, 10/25 degrees of extension, 15/25 3 degrees of lateral flexion to the left, and 15/25 degrees of 4 lateral flexion to the right.” 5 cervical-spine examination revealed “normal curvature without 6 deformity or asymmetry,” “50/50 degrees of forward flexion, 60/60 7 degrees of extension, 45/45 degrees of lateral flexion, 8 bilaterally, and 80/80 rotation bilaterally.” 9 found “no tenderness to palpation in the midline or paraspinal (Id.) Dr. Wang noted that the (Id.) He also 10 areas”; “no evidence of swelling, palpable mass, or 11 inflammation”; and “no paracervical or bilateral trapezius muscle 12 spasm.” 13 perform [a] tandem gait,” “stand on [her] toes with some 14 difficulty,” “stand on [her] heels,” “squat,” “get on and off the 15 examination table without difficulty,” and “walk across the exam 16 room” without “the use of an assistive device.” 17 (Id.) Her “gait [was] antalgic,” but she was “able to (AR 269.) A hip examination revealed “no evidence of trochanteric 18 bursal tenderness to palpation” or “joint deformities.” 19 Range of motion testing revealed 100/100 degrees of forward 20 flexion, 30/30 degrees of backward extension, 25/25 degrees of 21 abduction, 15/15 degrees of adduction, 30/30 degrees of external 22 rotation bilaterally, and 20/20 degrees of internal rotation 23 bilaterally. 24 (Id.) (Id.) A neurological examination revealed “good active motion”; 25 “5/5” strength “in the bilateral lower extremities”; “intact” 26 sensation “to light touch, pinprick, and vibration in the upper 27 and lower extremities”; “2+” deep-tendon reflexes in the 28 bilateral biceps and ankles, “3+” bilateral knee reflexes; no 23 1 clonus,29 and a negative Babinski reflex.30 2 nose and heel-to-shin tests were normal, and a Romberg test31 was 3 negative. 4 Plaintiff could lift and carry 20 pounds occasionally and 10 5 pounds frequently, stand and walk for six hours in an eight-hour 6 workday, and sit for six hours in an eight-hour workday. 7 271.) 8 crouching, stooping, and kneeling activities.” 9 assessed “no manipulative, visual, communicative, or 10 Finger-to- Based on the examination, Dr. Wang opined that (AR She was “occasionally limited in performing climbing, environmental limitations.” 11. 11 12 (Id.) (AR 270.) (Id.) He (Id.) Anita Pai On June 21, 2016, Plaintiff saw Anita Pai, an orthopedist 13 with Dr. Uppal’s practice group. 14 showed “normal curvature,” “tenderness to palpation in the low 15 lumbar area,” and “no significant” [sacroiliac] joint 16 tenderness.” (AR 475.) (AR 473.) A back examination A neurological examination showed “[n]o 17 18 19 20 21 22 23 24 25 26 27 28 29 Clonus is a neurological condition that creates involuntary muscle contractions, primarily in muscles that control the knees and ankles. What Is Clonus, Healthline, https://www.healthline.com/health/clonus (last visited Feb. 22, 2021). 30 “The Babinski reflex occurs after the sole of the foot has been firmly stroked.” Babinski Reflex, MedlinePlus, https:// medlineplus.gov/ency/article/003294.htm (last visited Feb. 22, 2021). “The big toe then moves upward or toward the top surface of the foot.” (Id.) “The other toes fan out.” (Id.) “When the Babinski reflex is present in a child older than 2 years or in an adult, it is often a sign of a central nervous system disorder.” (Id.) 31 The Romberg test measures balance. Romberg Test, Physiopedia, https://www.physio-pedia.com/Romberg_Test (last visited Feb. 22, 2021). 24 1 abnormal movement” and “grossly normal” “strength in the 2 bilateral lower extremity,” but her “[s]ensation [was] decreased 3 to light touch in the L5 dermatome.” 4 for physical therapy for 12 visits and advised her to continue 5 her pain medication and follow up with Dr. Cheng. 6 noted that Plaintiff might benefit from repeat epidural 7 injections if the physical therapy didn’t help. 12. 8 9 (Id.) Dr. Pai referred her (AR 476.) She (Id.) Garrett Chapman On July 13, 2016, Plaintiff saw Dr. Garrett Chapman,32 10 complaining of “bilateral shin pain and right thigh pain for 11 . . . 3 years.” 12 experienced back pain until just 3 months” before physical 13 therapy, Lyrica had “not provided . . . significant relief,” and 14 a “workup was negative for shin splints.” 15 noted that an x-ray of the spine showed “[n]o scoliosis” and 16 “[m]ild los[s] of lumbar lordosis.” 17 “it d[id] not appear [that] her bilateral shin pain [was] from 18 any spinal pathology,” concluded that “[n]o surgical intervention 19 [was] recommended at [that] time,” and referred “her to neurology 20 for evaluation of neuropathy vs polyneuropathy which was shown on 21 a previous” EMG. 13. 22 23 24 (AR 531.) She reported that she had “not (Id.) (AR 532.) Dr. Chapman He stated that (AR 533.) Jeffrey Rosenfeld On August 16, 2016, Plaintiff saw neurologist Jeffrey Rosenfeld for an evaluation. (AR 555.) She reported that she 25 26 27 28 32 Dr. Chapman primarily practices orthopedic surgery. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “Garrett” with “Chapman” under “License Type,” “Physicians and Surgeons”) (last visited Feb. 22, 2021). 25 1 had right “buttocks ‘sciatic’ pain with some radiation to the 2 thigh” and “[s]evere pain in the ‘shins’ bilaterally.” 3 Dr. Rosenfeld noted that an examination revealed “5/5” muscle 4 strength in all areas; “2+” deep-tendon reflexes bilaterally in 5 the biceps, triceps, brachrad,33 and ankle; and “3+” deep-tendon 6 reflexes bilaterally in the patellar. 7 Hoffman’s34 reflexes were absent bilaterally. 8 that the “distribution, myalgia and chronicity implicat[ed] 9 possible myopathy (distal) superimposed on [left-sided] 10 radiculopathy.” 11 EMG. (Id.) (AR 558.) (Id.) Babinski and (Id.) He opined He ordered several tests, including an (AR 558-59.) Plaintiff saw Dr. Rosenfeld for a follow-up evaluation on 12 13 September 20, 2016. 14 had “started radiating to the bottom of both feet”; it was 15 “exacerbated by palpation of the tibial bone”; and it was reduced 16 by “elevating legs, heat pads, and [N]orco . . . 4-5 times per 17 day.” 18 . . . to her shins.” 19 the right lower limb was “mildly abnormal,” with 20 “electrophysiologic evidence of chronic neurogenic changes in two 21 limb muscles of the right L5 myotome that [was] very subtle and (AR 570.) (AR 570-72.) She complained that her pain She “denie[d] any shooting pain from her back (Id.) Dr. Rosenfeld noted that the EMG of 22 23 24 25 26 27 28 33 The brachioradialis is a forearm muscle that extends from the lower part of the humerus to the radius. Brachioradialis Pain, Healthline, https://www.healthline.com/health/ brachioradialis-pain (last visited Feb. 22, 2021). 34 A Hoffman’s reflex response can indicate spinal-cord compression or another nerve condition. See What Does a Positive or Negative Hoffman Sign Mean?, Med. News Today, https:// www.medicalnewstoday.com/articles/322106.php (last visited Feb. 22, 2021). 26 1 non-diagnostic for a lumbosacral radiculopathy.” 2 concluded that there was “no electrophysiologic evidence of 3 myopathy, polyneuropathy, or mononeuropathy in the extensively 4 tested lower limbs” (id.); the EMG did not “account[] for 5 [Plaintiff’s] pain” (AR 571); and the “[e]xam[ination] and prior 6 imaging [were] also under[]whelming” (id.). 7 signs [of] plantar fascitis” and gave Plaintiff an “[a]mbulatory 8 referral to Orthotics.” B. 9 (Id.) He He noted “[s]ome (AR 571-72.) Plaintiff’s Testimony and Statements In Plaintiff’s December 16, 2015 Disability Report, she 10 11 stated that she was unable to work because of back, leg, feet, 12 and neck pain. 13 testified that she had to spend between 75 and 80 percent of the 14 day on her sofa with her feet elevated (AR 46-48) and that on bad 15 days, which she had six days a week (AR 50), she could not “even 16 get up and go to the restroom” (AR 46). 17 was able to microwave food, make coffee, grocery shop, and drive 18 short distances to the store, however. 19 that although she previously got pain relief by elevating her 20 legs, that no longer worked and she now also needed a heating pad 21 and compression socks. 22 drowsy. 23 C. 24 Plaintiff alleges that the ALJ erred in assessing her RFC by (AR 170.) At the August 28, 2018 hearing, she (AR 45.) She testified that she (AR 47-50.) She claimed Her medications made her (AR 52-53.) The ALJ Properly Assessed Plaintiff’s RFC 25 failing “to properly consider significant medical evidence of 26 record which is supportive of her claim of disability” (J. Stip. 27 at 4) and improperly assessing physicians’ opinions (id. at 5, 28 9). For the reasons discussed below, remand is not warranted on 27 1 2 3 this issue. 1. Medical evidence of Plaintiff’s impairments Plaintiff complains that the ALJ failed to properly consider 4 medical evidence documenting “severe impairments which would 5 prevent Plaintiff from persisting at any full time employment.” 6 (J. Stip. at 4.) 7 had treatment for venous insufficiency in her legs, degenerative 8 disc disease and degenerative joint disease in the spine, lower- 9 extremity neuropathy/polyneuropathy, and decreased reflexes and She notes that the record demonstrates that she (Id. at 4-5.) But the ALJ 10 sensation in the lower extremities. 11 recognized and discussed these conditions and the treatment 12 Plaintiff underwent for them — including spine surgery, physical 13 therapy, pain medication, and injections. 14 simply summarizes portions of the record evidencing her treatment 15 for these conditions; she offers no argument, much less evidence, 16 as to what specific treatment the ALJ failed to consider or how 17 any of these conditions caused limitations greater than those 18 included in her RFC. 19 that she needed to elevate her legs, she offers no evidence that 20 any doctor assigned any such limitation. 21 in section V.D., the ALJ properly discounted Plaintiff’s 22 subjective symptom statements. 23 Plaintiff’s failure to identify any flaw in the ALJ’s reasoning, 24 the ALJ adequately considered the medical evidence of Plaintiff’s 25 impairments. 26 Cir. 2005) (ALJ not required to include in RFC limitations based 27 on plaintiff’s properly discounted subjective complaints); 28 Figueroa v. Colvin, No. CV 12-067420-OP., 2013 WL 1859073, at *9 (AR 20-22.) Plaintiff Although she points to her own statements Moreover, as discussed Based on the record and See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 28 1 (C.D. Cal. May 2, 2013) (no error in failing to include 2 limitations in RFC when ALJ properly rejected plaintiff’s 3 subjective complaints of impairment). 4 5 2. Medical opinions Plaintiff argues that the ALJ erred in assessing the 6 physicians’ opinions. 7 discussed below, remand is not warranted. a. 8 9 (J. Stip. at 5, 9.) For the reasons Applicable law Three types of physicians may offer opinions in Social 10 Security cases: those who directly treated plaintiff, those who 11 examined but did not treat her, and those who did neither. 12 Lester, 81 F.3d at 830. 13 generally entitled to more weight than an examining physician’s, 14 and an examining physician’s opinion is generally entitled to 15 more weight than a nonexamining physician’s. 16 § 404.1527(c)(1)-(2).35 17 nonexamining physician can amount to substantial evidence, so 18 long as other evidence in the record supports those findings.” 19 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 20 (as amended). 21 See A treating physician’s opinion is Id.; see But “the findings of a nontreating, The ALJ may discount a physician’s opinion regardless of 22 whether it is contradicted. 23 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. Admin., 533 24 F.3d 1155, 1164 (9th Cir. 2008). Magallanes v. Bowen, 881 F.2d 747, 751 When a doctor’s opinion is not 25 26 27 28 35 For claims filed on or after March 27, 2017, the rules in § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). Plaintiff’s claims were filed before March 27, 2017, however, and the Court therefore analyzes them under former § 404.1527. 29 1 contradicted by other medical-opinion evidence, however, it may be 2 rejected only for a “clear and convincing” reason. 3 F.2d at 751 (citations omitted); Carmickle, 533 F.3d at 1164 (citing 4 Lester, 81 F.3d at 830-31). 5 provide only a “specific and legitimate” reason for discounting it. 6 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 7 weight given a doctor’s opinion, moreover, depends on whether it is 8 consistent with the record and accompanied by adequate explanation, 9 among other things. Magallanes, 881 When it is contradicted, the ALJ need See § 404.1527(c); see also Orn v. Astrue, 495 10 F.3d 625, 631 (9th Cir. 2007) (factors in assessing physician’s 11 opinion include length of treatment relationship, frequency of 12 examination, and nature and extent of treatment relationship). 13 14 b. The Dr. Uppal On March 25, 2014, Dr. Uppal opined that Plaintiff should be 15 on disability for six months. 16 he said she should be on disability for four weeks and should not 17 “do any significant bending, stooping, [or] lifting” (AR 462); he 18 also noted that she was on Norco, which caused “further 19 depression and lack of concentration” (id.). 20 8, 2016, he stated that he did “not feel she [was] going to 21 return . . . to work.” 22 opinions “little weight.” 23 (AR 458.) (AR 471.) On February 10, 2015, Finally, on March The ALJ afforded these (AR 24.) As the ALJ noted, Dr. Uppal did not include any function-by- 24 function limitations that would prevent Plaintiff from working 25 except in the February 2015 opinion. 26 functional limitations included in that opinion were vague 27 because they restricted only “significant” performance of those 28 activities without defining the term. 30 (See id.) (AR 462.) And the This alone was 1 sufficient to reject Dr. Uppal’s disability findings. 2 v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“ALJ found that 3 [physician’s] descriptions of [plaintiff’s] ability to perform in 4 the workplace as ‘limited’ or ‘fair’ were not useful because they 5 failed to specify [his] functional limits,” and therefore ALJ 6 could “reasonably conclude these characterizations were 7 inadequate for determining RFC”). 8 Plaintiff to “occasional” posturals and lifting of up to 20 9 pounds, thereby essentially adopting much of Dr. Uppal’s 10 11 See Ford In any event, the ALJ limited “significant” restriction. The ALJ also noted that Dr. Uppal’s opinions were “not 12 supported by objective evidence,” were “inconsistent with the 13 record as a whole,” and “demonstrate[d] a lack of understanding 14 of social security disability programs and evidentiary 15 requirements.” 16 opinion that Plaintiff was disabled with any explanation other 17 than to state that she was on pain medication and having back 18 spasms. 19 any physician, including a treating physician, if that opinion is 20 brief, conclusory, and inadequately supported by clinical 21 findings.” 22 (citation omitted); see also Ford, 950 F.3d at 1155 (“An ALJ is 23 not required to take medical opinions at face value, but may take 24 into account the quality of the explanation when determining how 25 much weight to give a medical opinion.”). 26 27 (AR 24.) (See AR 458.) Indeed, Dr. Uppal did not support his An ALJ “need not accept the opinion of Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) Plaintiff offers no meaningful challenge to the ALJ’s assessment of Dr. Uppal’s opinions. 28 31 No error occurred. 1 2 c. State-agency doctors On May 11, 2016, Plaintiff attended an orthopedic evaluation 3 with Dr. Wang. (AR 266-71.) He opined that she could lift and 4 carry 20 pounds occasionally and 10 pounds frequently; could 5 stand and walk for six hours in an eight-hour workday; could sit 6 for six hours in an eight-hour workday; was occasionally limited 7 in climbing, crouching, stooping, and kneeling activities; and 8 had no manipulative, visual, communicative, or environmental 9 limitations. (AR 271.) 10 On May 26, 2016, D. Haaland, a state-agency reviewing 11 physician,36 evaluated portions of Plaintiff’s medical records, 12 including some of Dr. Kim’s treatment records and Dr. Wang’s May 13 11 report. 14 occasionally lift and/or carry 20 pounds; could frequently lift 15 and/or carry 10 pounds; could stand and/or walk for a total of 16 about six hours in an eight-hour workday; could sit for a total 17 of about six hours in an eight-hour workday; had no pushing, 18 pulling, balancing, manipulative, visual, communicative, or 19 environmental limitations; could occasionally climb ramps or 20 stairs, stoop, kneel, crouch, or crawl; and could never climb 21 ladders, ropes, or scaffolds. (AR 60-63.) Dr. Haaland opined that Plaintiff could (AR 64-65.) 22 23 24 25 26 27 28 36 Dr. Haaland used a medical specialty code of 29 (AR 68), indicating orthopedics, see Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), https:// secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (last visited Feb. 22, 2021). 32 1 On July 15, 2016, H.M. Estrin, also a state-agency reviewing 2 physician,37 reviewed the same records as Dr. Haaland and assessed 3 the same limitations. (AR 74-75.) 4 The ALJ gave the assessments of Dr. Wang and the state- 5 agency reviewing physicians “significant weight” (AR 23), finding 6 that they were 7 generally reasonable and consistent with the objective 8 medical evidence, which shows a history of treatment for 9 degenerative disc disease with some evidence of radicular 10 pain, 11 indication of significant neurological deficits, gait 12 abnormalities, or significant physical limitations caused 13 by these impairments. 14 worse in the right lower extremity, with no (AR 24.) Plaintiff again offers no meaningful challenge to the ALJ’s 15 16 assessment of these opinions. She merely argues that the medical 17 evidence of record does not support the opinion that Plaintiff 18 had the ability to persist at light-work activity. 19 9.) 20 conflicts with that opinion. 21 on his own objective medical tests, including straight leg raise, 22 range of motion, strength, sensation, and reflex. 23 The state-agency physicians relied on Dr. Wang’s objective 24 medical tests and opinion and reviewed other medical evidence as 25 well. (J. Stip. at But she does not explain what evidence in the record (AR 60, 70.) And Dr. Wang performed and relied (AR 268-70.) Those opinions, therefore, constituted 26 27 28 37 Dr. Estrin used a medical specialty code of 19 (AR 78), indicating internal medicine, see POMS DI 24501.004, https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004. 33 1 substantial evidence that the ALJ appropriately credited. 2 Saelee, 94 F.3d at 522. 3 which the ALJ erred. 4 D. Remand is not required on this issue. The ALJ Properly Assessed Plaintiff’s Subjective Symptom Statements 5 6 Plaintiff has not pointed to any way in Plaintiff asserts that the ALJ failed to properly evaluate 7 her subjective symptom statements. 8 reasons discussed below, the ALJ did not err. 1. 9 10 (J. Stip. at 15-18.) For the Applicable law An ALJ’s assessment of a claimant’s allegations concerning 11 the severity of her symptoms is entitled to “great weight.” 12 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 13 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 14 1985) (as amended Feb. 24, 1986). 15 believe every allegation of disabling pain, or else disability 16 benefits would be available for the asking, a result plainly 17 contrary to 42 U.S.C. § 423(d)(5)(A).’” 18 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 19 597, 603 (9th Cir. 1989)). 20 “[T]he ALJ is not ‘required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 21 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 22 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 23 2016). 24 presented objective medical evidence of an underlying impairment 25 ‘[that] could reasonably be expected to produce the pain or other 26 symptoms alleged.’” 27 omitted). 28 not reject a claimant’s testimony “simply because there is no “First, the ALJ must determine whether the claimant has Lingenfelter, 504 F.3d at 1036 (citation If such objective medical evidence exists, the ALJ may 34 1 showing that the impairment can reasonably produce the degree of 2 symptom alleged.” 3 Id. (citation omitted; emphasis in original). If the claimant meets the first test, the ALJ may discount 4 the claimant’s subjective symptom testimony only if she makes 5 specific findings that support the conclusion. 6 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 7 affirmative evidence of malingering, the ALJ must provide a 8 “clear and convincing” reason for rejecting the claimant’s 9 testimony. See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 10 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 11 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 12 Cir. 2014). 13 claimant’s (1) reputation for truthfulness, prior inconsistent 14 statements, and other testimony that appears less than candid; 15 (2) unexplained or inadequately explained failure to seek 16 treatment or to follow a prescribed course of treatment; (3) 17 daily activities; (4) work record; and (5) physicians’ and third 18 parties’ statements. 19 996, 1006 (9th Cir. 2015) (as amended); Thomas, 278 F.3d at 958- 20 59 (citation omitted). 21 alleged symptoms is supported by substantial evidence in the 22 record, the reviewing court “may not engage in second-guessing.” 23 Thomas, 278 F.3d at 959. 24 25 2. The ALJ may consider, among other factors, the Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d If the ALJ’s evaluation of a plaintiff’s The ALJ’s decision The ALJ reviewed Plaintiff’s claimed limitations and found 26 that her “medically determinable impairments could reasonably be 27 expected to cause some of the alleged symptoms; however, [her] 28 statements concerning the intensity, persistence and limiting 35 1 effects of these symptoms [were] not entirely consistent with the 2 medical evidence and other evidence in the record[.]” 3 The ALJ discounted Plaintiff’s subjective symptom statements 4 because they were inconsistent with the objective medical 5 evidence (id.); she had received routine, conservative, 6 nonemergency treatment (AR 20, 22-23); her treatment had been 7 “relatively effective” in controlling her symptoms (AR 23); and 8 she had made statements to her doctor regarding her functioning 9 and symptoms that were inconsistent with her allegations of 10 11 12 13 (AR 20.) disability (id.). 3. Analysis a. Medical and other evidence To start, the ALJ properly concluded that Plaintiff’s 14 subjective symptom statements were inconsistent with the 15 objective medical evidence in the record, a finding Plaintiff has 16 not challenged on appeal other than to point out that that can’t 17 serve as the only reason for an ALJ to discount a plaintiff’s 18 statements and testimony. 19 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 20 1999) (finding “conflict” with “objective medical evidence in the 21 record” to be “specific and substantial reason” undermining 22 plaintiff’s allegations); § 404.1529(c)(2); see also Ruiz v. 23 Comm’r of Soc. Sec., 490 F. App’x 907, 908 (9th Cir. 2012) 24 (plaintiff conceded four of five reasons ALJ gave for rejecting 25 examining doctor’s opinion by not addressing them in briefing). 26 Among other things, the ALJ noted that although Plaintiff claimed 27 she had difficulty walking because of pain (see, e.g., AR 267), 28 she was often noted to ambulate with a normal gait and was never (AR 20-23; see also J. Stip. at 16); 36 1 prescribed an assistive device (AR 22-23 (citing AR 637)). 2 ALJ also correctly noted that there was no evidence of loss of 3 motor strength in the lower extremities or muscle atrophy, and 4 examination findings were generally mild to moderate. 5 see AR 223, 558.) 6 b. 7 The (AR 22-23; Effective treatment The ALJ also discounted Plaintiff’s subjective symptom 8 statements because they were inconsistent with evidence 9 demonstrating that her treatment and medications had been 10 “relatively effective.” 11 regularly reported that compression stockings, physical therapy, 12 and medication improved her pain. 13 254).) 14 between one and three out of 10 and denied medication side 15 effects. 16 682).) 17 generally said she had fair to excellent functioning. 18 (citing AR 236-37, 242, 252).) 19 (AR 23.) As the ALJ noted, Plaintiff (AR 20-21 (citing AR 212, 225, On numerous occasions, she rated her pain from none to (AR 21-23 (citing AR 233, 252, 254, 421, 541, 669, And even when she reported more serious pain, she (AR 21-23 Plaintiff argues that her epidural injections demonstrate 20 that her treatment was not effective. 21 needed more aggressive treatment does not diminish the numerous 22 times when she acknowledged that her medication was working. 23 most, the records cited by Plaintiff establish that the medical 24 evidence was susceptible of more than one rational 25 interpretation, which is insufficient to warrant reversal. 26 Molina, 674 F.3d at 1111; Tommasetti v. Astrue, 533 F.3d 1035, 27 1041 (9th Cir. 2008) (ALJ is “final arbiter with respect to 28 resolving ambiguities in the medical evidence”). 37 But that she occasionally The ALJ At See 1 properly considered this evidence in discounting Plaintiff’s 2 symptom statements. 3 4 c. Plaintiff’s inconsistent statements Finally, the ALJ properly discounted Plaintiff’s subjective 5 symptom statements because some of them were inconsistent with 6 other statements she made to her treatment providers. 7 807 F.3d at 1006 (listing prior inconsistent statement as factor 8 ALJ may consider in assessing claimant’s testimony). 9 Plaintiff testified that she had to spend between 75 and 80 Rounds, To start, 10 percent of the day on her sofa with her feet elevated (AR 46-48) 11 and that on bad days — which occurred six days a week (AR 50) — 12 she could not “even get up and go to the restroom” (AR 46), but 13 she often reported fair or good physical functioning to her 14 treatment providers (see AR 215, 222, 236, 242, 252, 541). 15 although she testified that she got drowsy and slept after taking 16 her pain medication (AR 52-53), which was the same Norco she had 17 been taking for years (AR 45, 455),38 she repeatedly denied to her 18 treatment providers that she had any medication side effects 19 (see, e.g., AR 233, 262, 505, 581). 20 And Substantial evidence supported the ALJ’s discounting of 21 Plaintiff’s subjective symptom statements. 22 warranted on this basis.39 Remand is not 23 24 25 26 27 28 38 Indeed, at the time of the hearing Plaintiff was taking fewer Norco than she had when she was working. (See AR 52, 455.) 39 The ALJ also discounted Plaintiff’s subjective symptom statements because they were inconsistent with her “conservative” treatment. (AR 20, 22-23.) Plaintiff’s treatment was likely not conservative. See, e.g., Lapeirre–Gutt v. Astrue, 382 F. App’x (continued...) 38 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),40 IT IS ORDERED that judgment be entered 4 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 7 February 23, 2021 DATED: __________________ 8 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39 (...continued) 662, 664 (9th Cir. 2010) (treatment with narcotic pain medication, occipital nerve blocks, trigger-point injections, and cervical-fusion surgery not conservative); Samaniego v. Astrue, No. EDCV 11–865 JC, 2012 WL 254030, at *4 (C.D. Cal. Jan. 27, 2012) (treatment not conservative when claimant was treated “on a continuing basis” with steroid and anesthetic “trigger point injections,” occasional epidural injections, and narcotic medication and doctor recommended surgery); Ruiz v. Berryhill, No. CV 16–2580–SP, 2017 WL 4570811, at *5–6 (C.D. Cal. Oct. 11, 2017) (treatment by “narcotic medication, facet joint injections, and epidural steroid injections” not conservative). Because the ALJ provided other clear and convincing reasons for discounting her statements, however, remand is not necessary. See Larkins v. Colvin, 674 F. App’x 632, 633 (9th Cir. 2017) (“[B]ecause the ALJ gave specific, clear and convincing reasons [for discounting plaintiff’s symptom statements], any error in the additional reasons the ALJ provided . . . was harmless.” (citation omitted)). 40 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 39
]]>
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.
