Roberto Hernandez Perez v. Andrew Saul, No. 5:2019cv01543 - Document 21 (C.D. Cal. 2020)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Jean P. Rosenbluth. 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)
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Roberto Hernandez Perez v. Andrew Saul Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERTO H.P.,1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ) Case No. EDCV 19-1543-JPR ) Plaintiff, ) MEMORANDUM DECISION AND ORDER ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) Defendant. ) ) ________________________________ ) I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision denying his application for Social Security Disability Insurance benefits (“DIB”). The matter is before the Court on the parties’ Joint Stipulation, filed May 8, 2020, which the court has taken under submission without oral argument. For the reasons stated below, the Commissioner’s decision is affirmed. 26 1 27 28 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 1956. 2 (Administrative Record (“AR”) 69, 3 139.) He has a GED (AR 69, 155) and worked on a farm, in 4 construction, and as a janitor (AR 69-70, 156, 165-69). 5 for DIB on September 22, 2015, alleging that he had been unable to 6 work since September 10, 2014 (AR 139), because of left-knee pain 7 from having “no cartilage,” “[a]rthritis” throughout his body, and 8 back, hip, shoulder, neck, and right-knee “[p]roblems” (AR 154). 9 After his claim was denied initially and on reconsideration, he 10 requested a hearing. 11 27, 2018 (AR 64), at which Plaintiff, who was represented by 12 counsel, testified (AR 66, 68-71, 73-77), as did a vocational 13 expert (AR 71-73, 77-78). 14 2018, the ALJ found him not disabled. 15 requested review from the Appeals Council (AR 7), but it denied his 16 request (AR 1). 17 III. STANDARD OF REVIEW 18 (AR 118-19.) He applied A hearing was held on February In a written decision dated June 21, (AR 60.) Plaintiff Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner’s decision to deny benefits. The ALJ’s findings and 20 decision should be upheld if they are free of legal error and 21 supported by substantial evidence based on the record as a whole. 22 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 23 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 24 means such evidence as a reasonable person might accept as adequate 25 to support a conclusion. 26 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is “more than a 27 mere scintilla, but less than a preponderance.” Lingenfelter, 504 28 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 Substantial evidence Richardson, 402 U.S. at 401; Lingenfelter 2 1 (9th Cir. 2006)). “[W]hatever the meaning of ‘substantial’ in 2 other contexts, the threshold for such evidentiary sufficiency is 3 not high.” 4 determine whether substantial evidence supports a finding, the 5 reviewing court “must review the administrative record as a whole, 6 weighing both the evidence that supports and the evidence that 7 detracts from the Commissioner’s conclusion.” 8 157 F.3d 715, 720 (9th Cir. 1998). 9 support either affirming or reversing,” the reviewing court “may Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Reddick v. Chater, “If the evidence can reasonably 10 not substitute its judgment” for the Commissioner’s. 11 21. 12 IV. 13 To Id. at 720- THE EVALUATION OF DISABILITY People are “disabled” for Social Security purposes if they are 14 unable to engage in any substantial gainful activity owing to a 15 physical or mental impairment that is expected to result in death 16 or has lasted, or is expected to last, for a continuous period of 17 at least 12 months. 18 966 F.2d 1255, 1257 (9th Cir. 1992). 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 19 A. The Five-Step Evaluation Process 20 The ALJ follows a five-step sequential evaluation process in 21 assessing whether a claimant is disabled. 20 C.F.R. 22 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 23 1995) (as amended Apr. 9, 1996). 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is not 26 disabled and the claim must be denied. In the first step, the § 404.1520(a)(4)(i). 27 If the claimant is not engaged in substantial gainful 28 activity, the second step requires the Commissioner to determine 3 1 whether the claimant has a “severe” impairment or combination of 2 impairments significantly limiting his ability to do basic work 3 activities; if not, a finding of not disabled is made and the claim 4 must be denied. 5 § 404.1520(a)(4)(ii) & (c). If the claimant has a “severe” impairment or combination of 6 impairments, the third step requires the Commissioner to determine 7 whether the impairment or combination of impairments meets or 8 equals an impairment in the Listing of Impairments (“Listing”) set 9 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 10 disability is conclusively presumed and benefits are awarded. 11 § 404.1520(a)(4)(iii) & (d). 12 If the claimant’s impairment or combination of impairments 13 does not meet or equal an impairment in the Listing, the fourth 14 step requires the Commissioner to determine whether the claimant 15 has sufficient residual functional capacity (“RFC”)2 to perform his 16 past work; if so, the claimant is not disabled and the claim must 17 be denied. 18 proving he is unable to perform past relevant work. 19 F.2d at 1257. 20 case of disability is established. 21 § 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 work, 22 the Commissioner then bears the burden of establishing that the 23 claimant is not disabled because he can perform other substantial 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 gainful work available in the national economy, the fifth and final 2 step of the sequential analysis. 3 404.1560(b). 4 B. 5 At step one, the ALJ found that Plaintiff had not engaged in §§ 404.1520(a)(4)(v), The ALJ’s Application of the Five-Step Process 6 substantial gainful activity since September 10, 2014, the alleged 7 onset date. 8 March 31, 2018. 9 Plaintiff had severe impairments of osteoarthritis3 of the left knee (AR 54 (citation omitted).) (Id.) His date last insured was At step two, the ALJ determined that 10 and spondylosis4 of the cervical spine. 11 At step three, he found that Plaintiff’s impairments did not meet 12 or equal a listing. 13 concluded that Plaintiff had the RFC to perform the full range of 14 medium work (AR 55), which “involves lifting no more than 50 pounds 15 at a time with frequent lifting or carrying of objects weighing up 16 to 25 pounds,” § 404.1567(c), and “standing or walking, off and on, 17 for a total of approximately 6 hours in an 8-hour workday,” SSR 83- 18 10, 1983 WL 31251 (Jan. 1, 1983). 19 past relevant work as a “fruit farm worker II,” DOT 403.687-010, 20 1991 WL 673305, and “industrial cleaner,” DOT 381.687-018, 1991 WL 21 673258, as actually and generally performed and his past work as a (Id. (citation omitted).) (Id. (citations omitted).) At step four, he Because he could perform his 22 23 3 24 25 26 27 28 Osteoarthritis is “arthritis characterized by erosion of articular cartilage” and results in “pain and loss of function.” Stedman’s Medical Dictionary 1282 (27th ed. 2000). 4 Spondylosis is the stiffening of the vertebrae and is “often applied nonspecifically to any lesion of the spine of a degenerative nature.” Stedman’s Medical Dictionary 1678 (27th ed. 2000). 5 1 “construction worker II,” DOT 869.687-026, 1991 WL 687635, as 2 actually performed (AR 59), the ALJ found him not disabled (AR 60).5 3 V. DISCUSSION6 Plaintiff argues that the ALJ “failed to acknowledge” that the 4 5 three medical opinions he relied on limited Plaintiff to six hours 6 of standing or walking in an eight-hour workday. 7 19.) 8 the full range of medium work the ALJ said he could. 9 21.) (J. Stip. at 18- He claims this restriction rendered him unable to complete (Id. at 18- Plaintiff also argues that the ALJ erred by failing to 10 consider his right-knee impairment at step two of the five-step 11 analysis (id. at 11) and in discounting his subjective symptom 12 testimony (id. at 6-9). 13 was harmless. For the reasons discussed below, any error 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The ALJ also determined, at step five, that there were unspecified “other jobs” existing in the national economy that Plaintiff could perform. (AR 59-60.) 6 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 64-80, 110, 118-19, 135-38); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019). 6 A. 1 Applicable Background 1. 2 Objective medical and other evidence On August 27, 2015, Plaintiff visited Anthony Smith, a 3 4 certified physician’s assistant, with complaints of left-knee pain.7 5 (AR 228.) 6 but reported later that the pain began after he fell from a ladder 7 while picking avocados in 1982 (AR 221). 8 osteoarthritic brace and was referred to a physical therapist for 9 treatment of his left-knee pain, “[s]tiffness,” “[i]nstability,” He attributed the pain to a “head on car crash” (id.) He was given an 10 and “[c]hronic” degenerative joint disease. (AR 230.) X-rays of 11 his left knee taken that month showed “[m]arked medial, moderate 12 patellofemoral and mild lateral joint compartment osteoarthritis 13 with genu varus.”8 (AR 215.) Plaintiff began physical therapy on September 9, 2015. 14 (AR 15 212.) He presented with an “[a]ntalgic gait pattern,” with 16 “decreased” weight bearing through his lower left leg.9 17 arrived using a quad cane but was instructed to switch to a single- 18 point one. 19 of extension in his left knee and 135 degrees of flexion and zero 20 degrees of extension in his right.10 (Id.) (Id.) He He had 127 degrees of flexion and zero degrees (Id.) Examination revealed 21 7 22 23 24 25 26 Although Plaintiff claimed disability beginning in September 2014, the earliest medical records in the record are from nearly a year later. Indeed, Plaintiff acknowledged that he stopped working in September 2014 because he was “laid off.” (AR 155.) 8 Genu varus is “an outward bowing of the legs.” Medical Dictionary 739 (27th ed. 2000). Stedman’s 9 An antalgic gait results from pain when bearing weight. Stedman’s Medical Dictionary 722 (27th ed. 2000). 27 10 28 Normal knee flexion for a male between ages 45 and 69 is 132.9 degrees. Normal Joint Range of Motion Study, CDC, 7 1 left-knee “impairments associated with osteoarthritis.” 2 He had “[g]ood” rehabilitation potential. 3 (AR 213.) (AR 214.) Treatment notes throughout October 2015 reflect continued 4 reports of knee pain. 5 That month, Plaintiff visited Dr. Surya Reddy11 complaining of 6 right-knee pain. 7 “[g]eneralized osteoarthritis” and prescribed Tylenol and 8 exercise.12 9 he received a “[l]eft knee lateral joint line injection” to address 10 11 (See AR 207-10, 232-34, 240-41, 265-66.) (AR 207.) (AR 208.) his osteoarthritis. Dr. Reddy diagnosed Plaintiff with In a separate visit to PA Smith that month, (AR 234.) Plaintiff saw PA Smith again on January 7, 2016, complaining 12 of pain on his left side. (AR 235.) He had an antalgic gait and 13 135 degrees of flexion, zero degrees of extension, and an active 14 range of motion in his left knee. 15 “crepitation”13 in the left patella but did have a positive McMurray (AR 236.) He did not have 16 17 18 19 20 21 22 23 24 25 26 27 28 https://www.cdc.gov/ncbddd/jointrom/index.html (last visited July 21, 2020). Normal knee extension for a male of the same age is 0.5 degrees. Id. 11 Dr. Reddy practices primarily family medicine. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Reddy” under “Last Name”) (last visited July 20, 2020). 12 Records in connection with Plaintiff’s visits name Dr. Sharma Bishop as the treating doctor (see AR 82, 83, 94, 95), but corresponding treatment notes indicate that Plaintiff was treated by Dr. Reddy (see, e.g., AR 207-11). 13 Crepitus refers to the “[n]oise or vibration produced by rubbing bone or irregular degenerated cartilage surfaces together as in arthritis and other conditions.” Stedman’s Medical Dictionary 424 (27th ed. 2000). 8 1 test.14 2 daily as needed. (Id.) He was prescribed a narcotic painkiller to take (AR 237.) Plaintiff visited Dr. Reddy on February 10, 2016, with 3 4 shortness of breath and “mild” gastroesophageal reflux disease (AR 5 242) as well as pain in his right knee (AR 243.) 6 prescribed a narcotic painkiller. 7 right knee taken the following day showed “[m]arked medial and 8 moderate patellofemoral and lateral knee joint compartment 9 osteoarthritis,” “[g]enu varus,” and “[s]mall joint effusion.”15 10 (AR 243-44.) Dr. Reddy X-rays of his (AR 246.) Plaintiff complained to Dr. Hadia Ashraf16 on October 30, 2017, 11 12 of bilateral knee pain, decreased mobility, and joint tenderness. 13 (AR 290.) 14 and 100 degrees of flexion. 15 appear to have been assessed. 16 “[l]imp” (AR 288), he was able to “heel-and-toe-walk normally” (AR 17 289). 18 not the left. 19 lumbar spine, crepitus, or evident instability. 20 2017 x-rays of his cervical and lumbar spines showed His left knee had an “[a]ctive painful” range of motion (AR 289.) His right knee does not (See AR 287-90.) Despite having a He had tenderness on the right side of his sciatic notch but (AR 288.) He was able to move without pain in his (Id.) October 21 22 14 23 24 25 The McMurray test is a “rotation of the tibia on the femur to determine injury to meniscal structures.” Stedman’s Medical Dictionary 1805 (27th ed. 2000). 15 joint.” Joint effusion is “increased fluid in synovial cavity of a Stedman’s Medical Dictionary 570 (27th ed. 2000). 26 16 27 28 Dr. Ashraf is a family-medicine doctor. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Ashraf” under “Last Name”) (last visited July 20, 2020). 9 1 “[s]pondylosis” and “degenerative disc disease”17 (AR 283-84), and 2 x-rays of his left knee showed “[m]oderate osteoarthritic changes” 3 (AR 285). 4 No right-knee x-rays were taken. (See AR 282-86.) Plaintiff visited PA Smith again on November 1, 2017, 5 complaining of “moderate-severe” left-knee pain that was “chronic 6 non-traumatic,” “occur[ing] with mild activity,” and getting 7 “worse.” 8 flexion of 135 degrees, and extension of zero degrees. 9 His gait was “[a]ntalgic,” and he presented with mild effusion and 10 mild swelling of the left knee and maximum tenderness of the left 11 medial joint line. 12 Smith diagnosed him with “[c]hronic” osteoarthritis (id.), but his 13 reflexes, sensation, and pulse were normal (id.). 2. 14 15 (AR 251.) His left knee had an active range of motion, (Id.) (AR 253.) He had a positive McMurray test. (Id.) Medical-opinion evidence On December 9, 2015, Plaintiff underwent a complete orthopedic 16 examination by Vicente Bernabe, an orthopedic surgeon, at 17 Defendant’s request. 18 complaints of “left knee pain” and reported taking Tylenol for it. 19 (AR 221.) 20 “acute or chronic distress” and “moved freely . . . without the use 21 of any assistive device.” 22 antalgia, and he “was able to toe and heel walk.” 23 cervical-spine examination “revealed normal attitude and posture of 24 the head,” without “significant tenderness to palpation,” and his 25 26 27 28 (AR 221-27.) Plaintiff presented with Dr. Bernabe observed that he did not appear to be in (AR 222.) 17 His gait was normal, without (Id.) A Degenerative disc disease is “a condition where one or more discs in the back lose their strength” and “happens over time from wear and tear, or injury.” Everything You Should Know About Degenerative Disc Disease (DDD), Healthline, https:// www.healthline.com/health/degenerative-disc-disease (last visited July 21, 2020). 10 1 range of motion was “full and painless.” 2 spine, lumbar spine, and right knee appeared normal. 3 His “[m]otor strength was grossly intact in the upper and lower 4 extremities,” “[s]ensation” in the “lower extremities was well 5 preserved,” and his “[r]eflexes were physiologic throughout.” 6 224.) 7 osteoarthritis” of the left knee. 8 was able to lift 50 pounds occasionally and 25 pounds frequently, 9 push and pull on a frequent basis, walk and stand six hours in an 10 eight-hour day, sit without restriction, and bend, crouch, stoop, 11 and crawl frequently. 12 (Id.) His thoracic (AR 222-23.) (AR Dr. Bernabe diagnosed him with “[m]ild to moderate (Id.) He opined that Plaintiff (AR 224-25.) On December 21, 2015, state-agency physician S. Brodsky18 13 reviewed Plaintiff’s records and found that his limitations did 14 “not prevent [him] from performing” his past work as a laborer as 15 generally performed in the national economy. 16 28, 2016, state-agency physician S. Lee19 reviewed Plaintiff’s 17 records and adopted Dr. Brodsky’s findings. 3. 18 (AR 89-90.) On March (AR 101-02.) Plaintiff’s statements and testimony 19 In Plaintiff’s undated initial Disability Report, he stated 20 that his ability to work was limited by the lack of cartilage in 21 22 23 24 25 26 27 28 18 Dr. Brodsky specializes in surgery. (See AR 85, 91 (showing signature code of 45)); Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), https://secure.ssa.gov/ apps10/poms.nsf/lnx/0424501004 (signature code 45 indicates surgery). 19 Dr. Lee specializes in ophthalmology. (See AR 102 (showing signature code of 28)); Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), https://secure.ssa.gov/ apps10/poms.nsf/lnx/0424501004 (signature code 28 indicates ophthalmology). 11 1 his left knee, “[a]rthritis” throughout his “[w]hole body,” and 2 back, hip, shoulder, right-knee, and neck “[p]roblems.” (AR 154.) At the February 27, 2018 hearing, Plaintiff testified that 3 4 problems with his knees “[m]ainly” prevented him from working, 5 characterizing his left knee as “worse” than his right. 6 He had “no cartilage” in his knees, which made it “very painful to 7 walk.” 8 before the pain forced him to sit down. 9 used a four-prong cane from his wife, but a “doctor” later gave him (Id.) (AR 73.) He could walk for “[p]robably” 15 or 20 minutes He initially 10 a single-point one. 11 half of a “regular eight-hour day” and likely only for “[a]bout two 12 hours.” 13 weighing “about 40 pounds,” a task he performed regularly as an 14 industrial cleaner. (AR 74.) (AR 75.) (AR 73-74.) He could not stand for more than He could not lift “buckets of cleaning solvent” (Id.) He testified that he lived with his wife, daughter, and two 15 16 grandchildren. 17 the time (id.), and both “stay[ed] with [him] in the mornings” 18 until he drove them to school (AR 75). 19 by “picking up” trash (id.) and doing a “little bit” of yard work 20 (AR 76), but he could not work all day because he’d “have to stay 21 on [his] feet” (id.). 22 shoulder pain that began two or three months before the hearing. 23 (Id.) 24 his knees, and it sometimes traveled “towards [his] shoulder.” 25 77.) 26 27 28 (AR 76.) His grandchildren were nine and five at He “tr[ied] to help clean” He had difficulty driving because of He also had pain in his neck, though “less than” the pain in 4. (AR The ALJ’s decision The ALJ determined that Plaintiff’s “statements concerning the intensity, persistence and limiting effects” of his symptoms were 12 1 “not entirely consistent” with the evidence in the record (AR 56), 2 including medical evidence and Plaintiff’s daily activities (AR 3 59). 4 from a medically determinable ‘severe’ impairment,” it also 5 “establishe[d] that [he] retain[ed] the capacity to function 6 adequately to perform many basic activities associated with work.” 7 (Id.) 8 9 Though the evidence demonstrated that Plaintiff “suffered The ALJ noted that his assessment of Plaintiff’s RFC as the full range of medium work was supported by objective medical 10 evidence. (Id.) Further, treatment notes did “not sustain” 11 Plaintiff’s allegations of disabling pain and limitations. 12 The ALJ reviewed August 2015 x-rays of Plaintiff’s left knee (AR 56 13 (citing AR 240-49)), February 2016 x-rays of his right knee (AR 57 14 (citing AR 240-49)), and October 2017 x-rays of his cervical spine, 15 lumbar spine, and left knee (AR 58 (citing AR 283-90)). 16 reviewed treatment notes from Plaintiff’s September 2015 physical- 17 therapy examination (AR 57 (citing AR 207-20)), an October 2015 18 examination showing “only mildly reduced range of motion of the 19 bilateral knees” (id. (citing AR 207-20)), and Dr. Bernabe’s 20 December 2015 examination report, finding that Plaintiff “was able 21 to toe and heel walk” and “did not use any assistive device to 22 ambulate” (id. (citing AR 221-27)). 23 treatment notes from a January 2016 doctor’s visit reflecting 24 “continued complaints of left knee pain” (id. (citing AR 228-39)), 25 an October 2017 visit at which Plaintiff “complain[ed] of bilateral 26 knee pain” (id.), and a November 2017 visit for left-knee pain (AR 27 58 (citing AR 250-82)). 28 13 (Id.) He also In addition, he reviewed 1 The ALJ further determined that the medical-opinion evidence 2 supported the RFC. (AR 58-59.) He gave the opinions “great 3 weight” because Dr. Bernabe had the opportunity to examine 4 Plaintiff (AR 58) and the state-agency opinions were “consistent 5 with the record” and “more recent evidence including that reflexes, 6 sensation, and pulses [were] within normal limits, and with his 7 reported activities” (AR 58-59 (citing AR 64-80, 250-82, 283-90)). 8 Ultimately, he agreed with all three doctors that Plaintiff was 9 able to perform the full range of medium work. (AR 55.) As for 10 Plaintiff’s daily activities, the ALJ found that they were not 11 consistent with his allegations of total impairment. 12 B. Analysis20 1. 13 The ALJ properly considered the examining and reviewing medical opinions 14 15 (AR 59.) Plaintiff argues that the ALJ “failed to acknowledge” that the 16 three medical opinions to which he gave great weight “restricted 17 standing/walking to six hours” and therefore rendered him incapable 18 of performing the full range of medium work. 19 He further alleges that the ALJ should not have relied on these 20 opinions because the doctors did not review “probative evidence,” 21 including x-rays of his right knee and cervical and lumbar spines. 22 (Id. at 9-12.) 23 failing to include his right-knee impairment as a “severe” 24 impairment at step two of the five-step evaluation process. 25 at 11.) (J. Stip. at 18-19.) Finally, Plaintiff argues that the ALJ erred by (Id. 26 27 28 20 The Court addresses the issues in an order different from that briefed by the parties, for clarity and other reasons. 14 a. 1 2 Applicable Law Three types of physicians may offer opinions in Social 3 Security cases: those who directly treated the plaintiff, those who 4 examined but did not treat the plaintiff, and those who did 5 neither. 6 opinion is generally entitled to more weight than an examining 7 physician’s, and an examining physician’s opinion is generally 8 entitled to more weight than a nonexamining physician’s. 9 § 404.1527(c)(1)-(2).21 See Lester, 81 F.3d at 830. A treating physician’s Id.; see This is so because treating physicians are 10 employed to cure and have a greater opportunity to know and observe 11 the claimant. 12 (citation omitted). 13 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) The ALJ may discount a physician’s opinion regardless of 14 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 751 15 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. Admin., 16 533 F.3d 1155, 1164 (9th Cir. 2008). 17 not contradicted by other medical-opinion evidence, however, it may 18 be rejected only for a “clear and convincing” reason. 19 881 F.2d at 751 (citations omitted); Carmickle, 533 F.3d at 1164 When a doctor’s opinion is Magallanes, 20 21 22 23 24 25 26 27 28 21 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). The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” § 404.1520c(a). Thus, the new regulations eliminate the term “treating source” as well as what is customarily known as the treating-source or treating-physician rule. See § 404.1520c. Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it under the treating-source rule in § 404.1527. 15 1 (citing Lester, 81 F.3d at 830-31). 2 ALJ need provide only a “specific and legitimate” reason for 3 discounting it. 4 F.3d at 830-31). 5 depends on whether it is consistent with the record and accompanied 6 by adequate explanation, among other things. 7 see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors 8 in assessing physician’s opinion include length of treatment 9 relationship, frequency of examination, and nature and extent of 10 11 When it is contradicted, the Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a doctor’s opinion, moreover, See § 404.1527(c); treatment relationship). Medium work “involves lifting no more than 50 pounds at a time 12 with frequent lifting or carrying of objects weighing up to 25 13 pounds.” 14 Cir. 1986) (citations omitted). 15 the standing and walking limitations that accompany light and 16 medium work. 17 3017755, at *1 (C.D. Cal. July 10, 2019).22 18 “full range of medium work requires standing or walking, off and 19 on, for a total of approximately 6 hours in an 8-hour workday in 20 order to meet the requirements of frequent lifting or carrying 21 objects weighing up to 25 pounds.” 22 “[a]s in light work, sitting may occur intermittently during the 23 remaining time.” § 404.1567(c); Villa v. Heckler, 797 F.2d 794, 798 (9th SSR 83-10 provides descriptions of James T. v. Saul, No. 2:18-cv-08794-KES, 2019 WL SSR 83-10 states that a 1983 WL 31251, at *6. Further, Id. 24 25 26 27 28 22 Though SSRs lack the “force of law,” they are the SSA’s “‘interpretations of the statute it administers and of its own regulations,’ and are given deference ‘unless they are plainly erroneous or inconsistent with the [Social Security] Act or regulations.’” James T., 2019 WL 3017755, at *1. 16 b. 1 Analysis 2 Plaintiff argues that SSR 83-10 makes a limitation of standing 3 or walking no more than six hours which was included in all three 4 medical opinions the ALJ relied on inconsistent with medium work. 5 (J. Stip. at 18-21.) 6 language implies that some standing must occur in the remaining two 7 hours of the workday. 8 SSR 83-10 is not as clear as one would hope, this interpretation is 9 incorrect. According to him, the intermittent-sitting (Id. at 20-21.) Although the language of See James T., 2019 WL 3017755, at *2 (“ALJs . . . with 10 experience conducting social security disability benefits hearings 11 have understood medium work as requiring the ability to stand or 12 walk for up to 6 hours.”). 13 single case to support his view. 14 routinely interpreted SSR 83-10 as meaning medium work requires the 15 ability to stand or walk for up to six hours. 16 Candia v. Sullivan, 959 F.2d 239, 239 (9th Cir. 1992) (recognizing 17 that “medium work requires that a person be able to stand for six 18 hours during an eight hour work day”); Christopher P. v. Saul, No. 19 CV 18-6484-SP, 2020 WL 551596, at *3 (C.D. Cal. Jan. 31, 2020) 20 (noting that “full range of medium work involves . . . standing or 21 walking up to approximately six hours in an eight-hour workday” 22 (citing SSR 83-10)); Campos v. Astrue, 656 F. Supp. 2d 1179, 1189 23 (C.D. Cal. 2009) (explaining that “[a] full range of medium work 24 requires standing or walking, off and on, for a total of 25 approximately 6 hours in an 8–hour workday” (citing SSR 83-10)). 26 27 Tellingly, Plaintiff does not cite a To the contrary, courts have See, e.g., id.; Contrary to Plaintiff’s argument, limiting standing or walking to six hours a workday is not inconsistent with medium work. 28 17 The 1 medical opinions therefore support the ALJ’s assessment of him as 2 being capable of performing the full range of medium work.23 3 Plaintiff further alleges that the ALJ erred in relying on the 4 medical opinions because the opining doctors did not review x-rays 5 of his right knee, cervical spine, and lumbar spine taken in 6 February 2016 and October 2017. 7 correct that the opining doctors did not review those x-rays (see 8 generally AR 82-86, 93-95, 221-27), which were taken after he 9 submitted his DIB application, the ALJ did not err in discussing (J. Stip. at 10-12.) Though he is 10 and relying on the opinions in determining the RFC. 11 an orthopedic specialist, performed a complete examination, 12 including of Plaintiff’s right knee and cervical, thoracic, and 13 lumbar spines. 14 normal and unrevealing,” with “normal alignment and contour” and 15 “no tenderness on palpation.” 16 spine examination was “unrevealing” and the cervical-spine 17 examination “revealed normal attitude and posture of the head,” 18 with “full and painless” range of motion. 19 spine examination showed that “[r]ange of motion was full in all 20 planes without pain.” 21 reviewed Dr. Bernabe’s report in making their assessments. (AR 222-23.) Dr. Bernabe, “The right knee examination was (AR 223.) (AR 223.) Further, the thoracic- (AR 222.) The lumbar- The two state-agency physicians (See AR 22 23 23 24 25 26 27 28 It appears, however, that the ALJ erred in finding that Plaintiff could perform his past relevant work as a fruit farm worker II and industrial cleaner as actually performed because Plaintiff did those jobs without ever sitting. (See AR 70, 166, 168.) Any error was harmless, however, because he could perform those medium-work jobs as generally performed. See Romo v. Berryhill, 731 F. App’x 574, 579 (9th Cir. 2018) (finding that ALJ’s error in determining claimant could perform certain past relevant work as actually performed was harmless because ALJ properly found claimant capable of performing other past relevant work as generally performed). 18 1 86-87, 97-98.) 2 three physicians assessed or evaluated Plaintiff’s right-knee and 3 spine ailments. 4 Given this, despite not reviewing the x-rays, all More importantly, the ALJ is ultimately responsible for 5 assessing a claimant’s RFC. See § 404.1527; Vertigan v. Halter, 6 260 F.3d 1044, 1049 (9th Cir. 2001). 7 review evidence of Plaintiff’s right-knee and spine ailments past 8 early 2016, the ALJ separately evaluated Plaintiff’s complete 9 treatment record in determining that he was capable of the full Though the physicians did not 10 range of medium work. (See generally AR 56-58.) Plaintiff’s 11 complaints of right-knee pain were limited. 12 287-90). 13 application (AR 154), he complained of pain from it only on three 14 occasions over approximately 26 months (see AR 207-08, 240-44, 287- 15 90), with numerous doctor or physical-therapy appointments where he 16 never mentioned it (see, e.g., AR 212, 221, 228, 232, 235). 17 complaints of back pain were even less frequent. 18 id. & AR 207-08, 240-44 (complaining of right-knee pain but not 19 back pain).) 20 treatment notes throughout Plaintiff’s course of treatment. 21 generally AR 56-58.) 22 an October 2015 examination, noting that Plaintiff had “only mildly 23 reduced range of motion of the bilateral knees” and was told to 24 take Tylenol and to exercise, indicating that he was capable of 25 weight-bearing activity. 26 ALJ discussed the February 2016 x-rays of Plaintiff’s right knee 27 (id. (citing AR 240-49)) and treatment notes from his October 2017 28 visit with Dr. Ashraf, at which he complained of bilateral knee (See AR 207-08, 240-44 Though he listed right-knee “[p]roblems” in his DIB His (See generally The ALJ reviewed all the x-rays, as well as the (See For example, he reviewed treatment notes from (AR 57 (citing AR 207-20).) 19 Further, the 1 pain (AR 57-58). The ALJ noted that “he was able to heel and toe 2 walk normal[ly]” during that visit (AR 57), which was only a few 3 months before the hearing. Plaintiff points out that his February 2016 right-knee x-ray 4 5 “revealed findings similar to his left knee,” including “marked 6 medial and moderate patellofemoral and lateral knee joint 7 compartment osteoarthrosis, genus varus, and small joint effusion.” 8 (J. Stip. at 10 (citation omitted).) 9 that the condition of his right knee was physiologically similar to 10 his left, treatment notes provide substantial support for the ALJ’s 11 assessment that he was able to perform the full range of medium 12 work. 13 over the course of his treatment. 14 Indeed, Dr. Bernabe’s December 2015 report indicated that he could 15 “toe and heel walk,” “move[] freely,” and walk without the use of 16 any assistive device. 17 preserved” in the lower extremities. 18 from his visit to Dr. Ashraf in October 2017, over a year after his 19 February 2016 right-knee x-rays, show that though he had a “[l]imp” 20 (AR 288), he was able to “heel-and-toe-walk normally” (AR 289). 21 Dr. Ashraf ordered x-rays of his cervical spine, lumbar spine, left 22 knee, and shoulder but not of his right knee, suggesting that his 23 right-knee pain was not a pressing concern. 24 Plaintiff did not complain of right-knee pain at his November 2017 25 visit to PA Smith (AR 251), and he conceded during his hearing 26 testimony that his “left knee [was] worse” than his right (AR 73). 27 Though this evidence does demonstrate a right-knee impairment, it 28 also provides substantial evidence for the ALJ’s assessment of Though those x-rays do show As the ALJ noted, Plaintiff was able to toe and heel walk (AR 222.) (See generally AR 56-58.) Further, sensation was “well 20 (AR 224.) Treatment notes (AR 283-86.) And 1 Plaintiff’s RFC. 2 Cir. 2005) (“Where evidence is susceptible to more than one 3 rational interpretation, it is the ALJ's conclusion that must be 4 upheld.” (citation omitted)). 5 basis.24 2. 6 Remand is not warranted on this The ALJ permissibly discounted Plaintiff’s subjective symptom statements and testimony 7 Plaintiff contends that the ALJ erred in rejecting his 8 9 See Burch v. Barnhart, 400 F.3d 676, 679 (9th subjective symptom testimony as inconsistent with the objective and 10 other medical evidence and his daily activities. 11 8.) a. 12 13 (J. Stip. at 5- Applicable Law An ALJ’s assessment of a claimant’s allegations concerning the 14 severity of his symptoms is entitled to “great weight.” 15 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) (citation 16 omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as 17 amended Feb. 24, 1986). 18 every allegation of disabling pain, or else disability benefits 19 would be available for the asking, a result plainly contrary to 42 20 U.S.C. § 423(d)(5)(A).’” 21 22 23 24 25 26 27 28 Weetman v. “[T]he ALJ is not ‘required to believe Molina v. Astrue, 674 F.3d 1104, 1112 24 Any error in not including Plaintiff’s right knee as a “severe” impairment at step two (J. Stip. at 11) was harmless because “[s]tep two is merely a threshold determination” that “screen[s] out weak claims” and “is not meant to identify the impairments that should be taken into account when determining the RFC,” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (citations omitted). In assessing a claimant’s RFC, an ALJ “must consider limitations and restrictions imposed by all of an individual’s impairments, even those that are not ‘severe,’” so impairments not listed in step two must be addressed in the evaluation process. Id. (citations omitted). Here, as discussed, the ALJ fully considered treatment records reflecting Plaintiff’s right-knee impairment. (See AR 56-58.) 21 1 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 2 1989)). 3 the ALJ engages in a two-step analysis. 4 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 5 2016). 6 presented “objective medical evidence of an underlying impairment 7 ‘[that] could reasonably be expected to produce the pain or other 8 symptoms alleged.’” 9 omitted). In evaluating a claimant’s subjective symptom testimony, See Lingenfelter, 504 F.3d 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 10 not reject a claimant’s testimony “simply because there is no 11 showing that the impairment can reasonably produce the degree of 12 symptom alleged.” 13 Id. (citation omitted; emphasis in original). If the claimant meets the first test, the ALJ may discount the 14 claimant’s subjective symptom testimony only if he makes specific 15 findings that support the conclusion. 16 F.3d 1228, 1234 (9th Cir. 2010). 17 evidence of malingering, the ALJ must provide a “clear and 18 convincing” reason for rejecting the claimant’s testimony. 19 Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended) 20 (citing Lingenfelter, 504 F.3d at 1036); Treichler v. Comm’r of 21 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). 22 consider, among other factors, the claimant’s (1) reputation for 23 truthfulness, prior inconsistent statements, and other testimony 24 that appears less than candid; (2) unexplained or inadequately 25 explained failure to seek treatment or follow a prescribed course 26 of treatment; (3) daily activities; (4) work record; and (5) 27 physicians’ and third parties’ statements. 28 Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); See Berry v. Astrue, 622 Absent a finding or affirmative 22 Brown- The ALJ may See Rounds v. Comm’r 1 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 2 ALJ’s evaluation of a plaintiff’s alleged symptoms is supported by 3 substantial evidence in the record, the reviewing court “may not 4 engage in second-guessing.” 5 If the Thomas, 278 F.3d at 959. In evaluating a claimant’s subjective symptoms, the ALJ 6 considers “all of the available evidence” in the record, 7 § 404.1529(c)(1), including the “objective medical evidence,” 8 § 404.1529(c)(2), and “other evidence” from medical sources, 9 § 404.1529(c)(3). Objective medical evidence is obtained through 10 “medically acceptable clinical and laboratory diagnostic 11 techniques.” 12 else relevant to evaluating symptoms, including, for example, 13 “medical opinions about the individual’s symptoms and their 14 effects” and the “longitudinal record of any treatment and its 15 success or failure.” 16 § 404.1529(c)(3) (evidence from medical sources about what 17 precipitates or aggravates pain, medications or treatments 18 prescribed or used to alleviate it, and how it affects claimant’s 19 daily life are all “other evidence”). 20 “objective medical evidence” is a “specific and legitimate” basis 21 for rejecting a claimant’s subjective symptom testimony. 22 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); see 23 § 404.1529(c)(2). 24 discounting” it. 25 F.3d 853, 857 (9th Cir. 2001) (applying earlier version of 26 § 404.1529(c)(2)). § 404.1529(c)(2). “[O]ther evidence” is everything SSR 16-3p, 2016 WL 1119029, at *6; see Contradiction with the Morgan v. But it “cannot form the sole basis for Burch, 400 F.3d at 681; Rollins v. Massanari, 261 27 28 23 b. 1 2 Analysis The ALJ outlined clear and convincing reasons supported by 3 substantial evidence for discounting Plaintiff’s subjective symptom 4 testimony. 5 First, the ALJ properly concluded that Plaintiff’s claims were 6 inconsistent with the objective medical evidence (AR 56), which is 7 a valid basis for discounting a claimant’s subjective symptom 8 testimony, Morgan, 169 F.3d at 600; § 404.1529(c)(2). 9 claimed he was able to walk for only about 15 to 20 minutes without 10 pain (AR 73-74), but as the ALJ noted, treatment notes showed that 11 he was able to toe and heel walk normally over the course of 12 treatment (see generally AR 56-58), even after his February 2016 x- 13 ray showing osteoarthritis, genu varus, and small joint effusion in 14 his right knee (see AR 246). 15 active range of motion in his left knee (see generally AR 56-58), 16 and October 2017 treatment notes from an examination of his lumbar 17 spine noted that “motion was without pain, crepitus, or evident 18 instability” (AR 57 (citing AR 283-90)). 19 physical-therapy examination found “[g]ood” rehabilitation 20 potential (AR 214), and November 2017 treatment notes indicated 21 that he had flexion of 135 degrees in his left knee (AR 253), which 22 is higher than normal for a male his age, see Normal Joint Range of 23 Motion Study, CDC, https://www.cdc.gov/ncbddd/jointrom/index.html 24 (last visited July 21, 2020). 25 Plaintiff Further, Plaintiff had a painful but Also, a September 2015 The ALJ also noted that the medical opinions contradicted 26 Plaintiff’s claims that his symptoms prevented him from working. 27 (AR 58.) 28 discounting Plaintiff’s subjective symptom statements was proper. The ALJ’s reliance on these medical opinions in 24 1 See Molina, 674 F.3d at 1113 (examining doctor’s opinion that 2 condition “was not severe” and could be “controlled” was “specific, 3 clear, and convincing reason[]” to reject subjective symptom 4 testimony); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) 5 (per curiam) (examining doctor’s assessment that plaintiff “could 6 do sedentary work” was “specific” and “valid” reason to reject his 7 “claims of excessive pain”). 8 specific and legitimate reasons for giving great weight to the 9 three opinions, and no doctor opined contrary to them. As explained above, the ALJ gave Plaintiff argues that the “ALJ failed to explain how [his] 10 11 reported activities . . . demonstrated the ability to perform 12 medium work.” 13 discounting Plaintiff’s testimony as inconsistent with his daily 14 activities, the error was harmless because he provided two other 15 valid reasons for discounting the testimony. 16 804 F. App’x 467, 471 (9th Cir. 2020) (holding that ALJ’s error in 17 relying on claimant’s daily activities to discount her subjective 18 symptom testimony was harmless because “the ALJ offered other 19 specific, clear and convincing reasons” for doing so (citation 20 omitted)). (J. Stip. at 7.) But even if the ALJ did err in See Howland v. Saul, The ALJ stated clear and convincing reasons, supported by 21 22 substantial evidence, for discounting Plaintiff’s subjective 23 symptom testimony. 24 VI. 25 26 Remand is not warranted on this basis. CONCLUSION Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),25 IT IS ORDERED that judgment be entered 27 25 28 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a 25 1 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 2 request for remand, and DISMISSING this action with prejudice. 3 4 5 DATED: -XO\ JEAN J EAN ROSENBLUTH U.S. U S MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 26
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