Paulo Hernandez Rivas v. Kilolo Kijakazi, No. 8:2020cv01070 - Document 21 (C.D. Cal. 2022)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING ALJ'S DECISION by Magistrate Judge Patricia Donahue. For the reasons stated above, the ALJs decision is AFFIRMED. See Document for details. (es)
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Paulo Hernandez Rivas v. Kilolo Kijakazi Doc. 21 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 1 of 17 Page ID #:650 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 15 Case No. 8:20-cv-01070-PD Paulo H.R., v. MEMORANDUM OPINION AND ORDER AFFIRMING ALJ’S DECISION KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 18 19 I. SUMMARY OF RULING 20 Plaintiff challenges the denial of his applications for Social Security 21 Disability Insurance Benefits and Supplemental Security Income. 1 The Court 22 concludes that the Administrative Law Judge stated adequate reasons for 23 discounting Plaintiff’s symptom testimony and for assigning little weight to 24 25 26 27 28 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi, the current Acting Commissioner of the Social Security Administration, is hereby substituted in as the Defendant. Dockets.Justia.com Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 2 of 17 Page ID #:651 1 the treating physician’s opinion. For these reasons, the Court affirms the 2 agency’s decision. 3 II. PROCEEDINGS BELOW 4 5 On December 8, 2016, Plaintiff filed an application for social security 6 disability insurance benefits alleging disability since March 15, 2011. 7 [Administrative Record (“AR”) AR 171-74; Joint Stipulation (“JS”) 2.] 2 8 Plaintiff’s applications were denied administratively on April 13, 2017, and 9 upon reconsideration on June 13, 2017. [AR 98-102, 104-09.] Plaintiff 10 requested a hearing, which was held on July 21, 2017, before an 11 Administrative Law Judge (“ALJ”). Plaintiff appeared without counsel and 12 testified through an interpreter. A vocational expert also testified. [AR 42.] 13 On March 18, 2019, the ALJ issued a decision finding that Plaintiff was 14 not disabled. [AR 20-41.] The Appeals Council denied Plaintiff’s request for 15 review on April 20, 2020, rendering the ALJ’s decision the final decision of the 16 Commissioner. [AR 1-5.] 17 The ALJ followed the requisite five-step sequential evaluation process 18 to assess whether Plaintiff was disabled under the Social Security Act. Lester 19 v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); 20 C.F.R. § 416.920(a). At step 20 one, the ALJ found that Plaintiff had not engaged in substantial gainful 21 activity since March 15, 2011, the alleged onset date. [AR 28.] At step two, 22 the ALJ found that Plaintiff had the following severe impairments: “lumbar 23 spine degenerative disc disease (DDD) and right knee internal derangement.” 24 [AR 29 ¶ 3.] At step three, the ALJ found that Plaintiff does “not have an 25 impairment or combination of impairments that meets or medically equals the 26 27 28 2 The Administrative Record is CM/ECF Docket Numbers 16 through 16-9 and the Joint Stipulation is Docket Number 20. 2 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 3 of 17 Page ID #:652 1 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 2 Appendix 1.” [AR 30 ¶ 4.] Before proceeding to step four, the ALJ determined that Plaintiff has 3 4 the Residual Functional Capacity (“RFC”) to perform light work with the 5 following limitations: [L]ift, carry, push, or pull up to 20 pounds occasionally, 10 pounds frequently; stand/walk for four hours out of an eight-hour day; sit for six hours out of an eight-hour day; occasionally climb ramps, stairs, ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; and is limited to occasional exposure to hazards such as moving mechanical parts and unprotected heights. 6 7 8 9 10 [AR 30 ¶ 5.] 3 Based on this RFC and the testimony of a vocational expert, the 11 ALJ found that Plaintiff could not perform his past relevant work as a 12 production machine operator, but that there are jobs that exist in significant 13 numbers in the national economy that Plaintiff can perform. [AR 35-36.] The 14 ALJ concluded that Plaintiff was not disabled. [AR 37.] 15 16 III. STANDARD OF REVIEW 17 Under 42 U.S.C. § 405(g), a district court may review the agency’s 18 decision to deny benefits. A court will vacate the agency’s decision “only if the 19 ALJ’s decision was not supported by substantial evidence in the record as a 20 whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979 21 22 23 24 25 26 27 28 3 The regulations define light work as follows: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or he can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 416.967(b). 3 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 4 of 17 Page ID #:653 1 F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means 2 more than a mere scintilla but less than a preponderance; it is such relevant 3 evidence as a reasonable person might accept as adequate to support a 4 conclusion.” Id.; Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 5 (2019) (same). It is the ALJ’s responsibility to resolve conflicts in the medical evidence 6 7 and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 8 2020). Where this evidence is “susceptible to more than one rational 9 interpretation” the ALJ’s reasonable evaluation of the proof should be upheld. 10 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v. 11 Saul, 804 F. App’x 676, 678 (9th Cir. 2020). 12 Error in Social Security determinations is subject to harmless error 13 analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is 14 harmless if “it is inconsequential to the ultimate nondisability determination” 15 or, despite the legal error, “the agency’s path is reasonably discerned.” 16 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 17 IV. DISCUSSION 18 A. 19 20 The ALJ did not err in rejecting Plaintiff’s subjective symptom testimony Plaintiff contends that the ALJ failed to provide specific, clear and 21 convincing reasons for rejecting his testimony regarding his impairments, 22 symptoms, and resulting limitations in assessing the RFC. [JS 7-11.] 23 24 1. Relevant Law In the absence of proof of malingering, an ALJ may reject a litigant's 25 believability by identifying “specific, clear, and convincing” reasons supported 26 by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 27 2017). An ALJ may consider a variety of factors in analyzing the believability 28 of a claimant's symptom testimony, including “ordinary techniques of 4 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 5 of 17 Page ID #:654 1 credibility evaluation.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); 2 Evans v. Berryhill, 759 F. App’x 606, 608 (9th Cir. 2019) (same). 3 Inconsistent daily activities “may provide a justification for rejecting 4 symptom testimony,” but “the mere fact that a plaintiff has carried on certain 5 daily activities [ ] does not in any way detract from her credibility as to her 6 overall disability.” Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) 7 (citation and quotations omitted). Even when a claimant's activities “suggest 8 some difficulty functioning, they may be grounds for discrediting the 9 claimant's testimony to the extent that they contradict claims of a totally 10 debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 11 2012); Wennet v. Saul, 777 F. App'x 875, 877 (9th Cir. 2019) (citing Molina). 12 An ALJ may also consider whether there is a lack of objective medical 13 evidence supporting a claimant's allegations. However, this factor “cannot 14 form the sole basis” for discounting subjective symptom testimony. Burch, 400 15 F.3d at 681; Davis v. Berryhill, 736 F. App'x 662, 665 (9th Cir. 2018). 16 Even if an ALJ impermissibly relies “on one of several reasons in 17 support of an adverse credibility determination,” the error is harmless if “the 18 ALJ's remaining reasoning and ultimate credibility determination were 19 adequately supported by substantial evidence in the record.” Carmickle v. 20 Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation and 21 emphasis omitted). 22 23 24 2. Plaintiff’s Subjective Symptom Testimony a. Hearing testimony At the hearing, Plaintiff testified that he understood English and spoke 25 it in other settings but prefers to speak Spanish. [AR 48.] He testified that 26 he worked in his last job at Waste Management for 18 years where he was 27 promoted to supervisor at the landfill. [AR 49.] Plaintiff described his 28 principal duty as checking the machines to make sure that they worked and 5 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 6 of 17 Page ID #:655 1 working as a dispatcher to direct the trucks via radio where to dump the 2 garbage. [AR 50-51.] When other employees took time off, Plaintiff would 3 step in as a machine operator loading the trucks. [AR 52.] 4 Plaintiff stated that on December 7, 2010, he hurt his back a hole while 5 working in a hole and mixing cement. [AR 53.] In 2011, he went through 6 surgery and afterward could no longer work. [AR 53.] He testified that his 7 back burns a lot, his leg hurts and that he cannot stand or sit for very long. 8 [AR 53.] He has received ten injections which did not help. [AR 55.] Plaintiff 9 stated that a surgeon told him he could not undergo any further surgery and 10 11 he was given pills that have helped for his arthritis. [AR 55.] Plaintiff testified that he takes his dog to the park three times a week. 12 [AR 55.] He lives with his wife and is unable to help with the chores. [AR 55.] 13 Plaintiff stated that he is unable to put his socks on when it is very cold and 14 experiences more pain during cold weather . [AR 57.] He takes walks, 15 sometimes as long as thirty minutes, and goes out to eat with his kids and 16 wife. [AR 57.] 17 3. 18 The ALJ’s Decision The ALJ provided three reasons for discounting Plaintiff’s subjective 19 symptom testimony: (1) there was a lack of objective medical evidence in 20 support; (2) the testimony was inconsistent with testimony of daily activities; 21 and (3) the testimony of the efficacy of the injections was inconsistent with the 22 record. [AR 32-33.] 23 The ALJ reviewed the record and found that Plaintiff’s medically 24 determinable impairments could reasonably be expected to cause the alleged 25 symptoms, but determined that Plaintiff’s statements concerning the 26 intensity, persistence, and limiting effects of the symptoms are “not fully 27 supported” for the reasons stated above. [AR 32.] 28 6 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 7 of 17 Page ID #:656 4. 1 2 Analysis The ALJ did not find that Plaintiff had engaged in any degree of 3 malingering – as evidenced by the ALJ’s statement to the effect that “the 4 claimant’s medically determinable impairments could reasonably be expected 5 to cause the alleged symptoms.” [AR 32.] Therefore, the ALJ was obliged to 6 provide at least one “specific, clear, and convincing”’ reason supported by 7 substantial evidence for rejecting Plaintiff’s testimony concerning the 8 intensity, persistence and limiting effects of his symptoms. Trevizo, 871 F.3d 9 at 678. 10 11 a. Objective Medical Evidence While inconsistencies with the objective medical evidence cannot be the 12 sole ground for rejecting a claimant’s subjective testimony, inconsistencies are 13 factors that the ALJ may consider when evaluating subjective symptom 14 testimony. Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853, 857 15 (9th Cir. 2001); see Soc. Sec. Ruling (“SSR”) 16-3p, at *5, 2017 WL 5180304 16 (March 2016) (“objective medical evidence is a useful indicator to help make 17 reasonable conclusions about the intensity and persistence of symptoms, 18 including the effects those symptoms may have on the ability to perform 19 work-related activities”). 20 Here, the ALJ summarized Plaintiff’s testimony including his back 21 injury and right knee problems, inability to stand or sit for anything other 22 than short periods of time, limitations on lifting and carrying no more than 10 23 pounds, and daily activities. [AR 31.] The ALJ then discussed the objective 24 medical findings and treatment records in detail. [AR 31-32.] The ALJ noted 25 that while Plaintiff described his back and leg pain as constant but varying in 26 intensity and preventing him from lifting heavy things, bending over or 27 walking fast, medical records revealed inconsistent pain ratings and contrary 28 objective findings. [AR 32.] The ALJ cited to records where Plaintiff rated his 7 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 8 of 17 Page ID #:657 1 back pain as 6/10 and right leg as 4 to 5/10, and described both as constant. 2 [Id. (citing (AR 527, 537, 539, 541, 544, 546, 550, 552.] Rather than indicating 3 severe pain, even if only intermittently, these ratings show that Plaintiff 4 reported moderate pain to his physicians. These inconsistent statements of 5 pain are valid grounds to discredit testimony. See Arellano v. Colvin, Case 6 No. 5:15-cv-00192-FFM, 2016 U.S. Dist. LEXIS 68854, at *11 (C.D. Cal. 2016) 7 (testimony of pain conflicted with prior pain rating reports to doctors). 8 9 Additionally, the ALJ acknowledged that the objective medical evidence contained positive findings which would tend to support some of Plaintiff’s 10 assertions, including decreased range of motion in Plaintiff’s back and knee. 11 However, the ALJ also observed that many physical examination findings 12 contradicted statements of severe pain. [AR 34.] In particular, the ALJ cited 13 to findings that Plaintiff had grossly intact cranial nerves, only slightly 14 diminished sensation and muscle strength, normal thoracic and cervical 15 spine, and normal physical examination of shoulders, elbows, wrists, hands, 16 and hips. [AR 477-79.] That the examinations that did not reveal muscular 17 atrophy or other physical signs of inactivity is relevant evidence in assessing 18 credibility in light of Plaintiff’s testimony. See Meanel v. Apfel, 172 F.3d 1111, 19 1114 (9th Cir. 1999) (ALJ entitled to discount testimony of near total 20 inactivity where claimant “did not exhibit muscular atrophy or any other 21 physical signs of an inactive, totally incapacitated individual”). The ALJ also 22 cited to records which did not reveal acute distress and noted that Plaintiff 23 was well-developed and well-nourished [AR 418, 477, 503, 555], all 24 inconsistent with Plaintiff’s testimony that he was largely inactive and 25 debilitated. See Noah v. Berryhill, 732 F. App’x 520, 522 (9th Cir. 2018). 26 In sum, the ALJ did not assert that the medical record revealed no 27 physical limitations, but rather that there was evidence which did not support 28 the significant limitations claimed by Plaintiff. 8 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 9 of 17 Page ID #:658 1 2 b. Daily Activities The ALJ’s second reason for discounting Plaintiff’s subjective symptom 3 testimony was due to inconsistencies with testimony related about his daily 4 activities. The ALJ stated that while Plaintiff “testified he could not stand or 5 sit for long periods, and had difficulty walking, he also noted that he would 6 drive his wife to and from work and son to and from school, walk his dog to 7 the park, and sometimes go out to eat with his children.” [AR 33.] The ALJ 8 also observed that despite the severity of pain alleged in his knee and back, 9 Plaintiff stated he could climb about 20 stairs. [AR 32.] 10 Here, the ALJ reasonably found that Plaintiff’s admitted activities 11 suggest a greater functional ability than other testimony which suggested 12 near total inactivity and alleged that Plaintiff must alternate from sitting and 13 standing to laying down on his carpet due to the pain. See Wennet v. Saul, 14 777 F. App'x 875, 877 (9th Cir. 2019) (where statements of daily activity 15 “suggest some difficulty functioning, they may be grounds for discrediting the 16 claimant's testimony to the extent that they contradict claims of a totally 17 debilitating impairment”). Plaintiff takes issue with the ALJ’s lack of 18 explanation regarding the immediate transferability of activities such as 19 climbing stairs, walking a dog, or driving to a work setting. [JS 9.] However, 20 it is clear from the decision that the ALJ found that each of these activities 21 contradicted a limitation asserted by Plaintiff which, if true, would preclude 22 work. As the ALJ found, walking a dog for up to 30 minutes would contradict 23 statements about having difficulty walking or not being able to stand for long 24 periods. This a reasonable conclusion and an example of an ordinary 25 technique of credibility evaluation of statements regarding pain and daily 26 limitations, which directly implicate Plaintiff’s ability to work. See Ghanim v. 27 Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014); see also Jack P. v. Saul, 2021 WL 28 4295753, at *3 (C.D. Cal. 2021) (ALJ reasonably concluded that ability to take 9 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 10 of 17 Page ID #:659 1 a dog for a long walk conflicted with testimony that the plaintiff could only 2 walk for short distances and provided a basis to discount the testimony). 3 c. Efficacy of Injections 4 The final reason the ALJ gave to discount Plaintiff’s subjective symptom 5 testimony was an inconsistency between Plaintiff’s hearing testimony that the 6 10 injections he received did not help and medical records indicating 7 otherwise. [AR 33.] In doing so, the ALJ cited to evidence in the record which 8 reflected that Plaintiff stated the injections provided relief. Specifically, the 9 ALJ cited to a May 6, 2015 treatment record in which Plaintiff stated that the 10 injection “gave temporary relief.” [AR 498.] The ALJ also cited to a December 11 9, 2014 record in which Plaintiff responded to an injection of Toradol 60 mg 12 with Marcaine 1 cc and Lidocaine 1 cc as by starting to have immediate relief. 13 [AR 509.] Most significantly, the ALJ’s cited to a January 6, 2015 record 14 reflecting that Plaintiff stated that the Toradol injection helped and the 15 physician described the injection as effective. [AR 511.] 16 In response, Plaintiff draws an analogy to a leaking tire, describing the 17 injections as being a temporary repair that eventually gives way to a flat tire, 18 with the tire being the pain Plaintiff experiences. [JS 18.] That may be an 19 appropriate analogy, but the issue before the Court is whether the ALJ 20 reasonably found inconsistencies in Plaintiff’s testimony and the record. If so, 21 then the ALJ was entitled to assess credibility by factoring in that 22 discrepancy. Here, Plaintiff may have continued to feel pain after the 23 injections or the pain may have returned; the ALJ never stated otherwise. 24 However, Plaintiff stated that the injections “did not help” at the hearing 25 when records show he had made statements indicating the opposite. The ALJ 26 employed an ordinary technique of credibility assessment in comparing the 27 unambiguous statements. See Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 28 10 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 11 of 17 Page ID #:660 1 1989) (prior inconsistent statements about pain may be taken into account 2 during credibility assessment). 3 Accordingly, the ALJ stated sufficient valid reasons to allow this Court 4 to conclude that the ALJ discounted Plaintiff’s subjective symptom testimony 5 on permissible grounds. 6 B. 1. 7 8 9 The ALJ properly considered Dr. Mays’ opinion Relevant Law In assessing a claimant’s RFC, the ALJ is required to consider all limitations and restrictions imposed by all impairments, even those deemed 10 not severe. See SSR 96-8p, 1996 WL 374184, at *5 (July 1996) (requiring 11 ALJ’s RFC assessment to “consider limitations and restrictions imposed by all 12 of an individual’s impairments, even those that are not ‘severe’”). The RFC 13 reflects the most a claimant can do despite his limitations. See Smolen v. 14 Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). The ALJ assesses a claimant’s 15 RFC “based on all of the relevant medical and other evidence,” including any 16 statements provided by medical sources. 20 C.F.R. §§ 404.1513(a), 17 404.1545(a)(3), 404.1546(c). An ALJ’s determination of a claimant’s RFC 18 must be affirmed if the ALJ has applied the proper legal standard and 19 substantial evidence in the record as a whole supports the decision. See 20 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 21 An ALJ must consider all medical opinions of record. 20 C.F.R. 22 § 404.1527(b). 4 Courts give varying degrees of deference to medical opinions 23 based on the provider: (1) treating physicians who examine and treat; (2) 24 25 26 27 28 4 Section 404.1527 applies because Plaintiff filed his application before March 27, 2017. For an application filed on or after March 27, 2017, 20 C.F.R. § 404.1520c would apply. The new regulations changed how the Social Security Administration considers medical opinions and prior administrative medical findings, eliminated the use of the term “treating source,” and eliminated deference to treating source medical opinions. See 20 C.F.R. § 404.1520c(a); see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). 11 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 12 of 17 Page ID #:661 1 examining physicians who examine, but do not treat; and (3) non-examining 2 physicians who do not examine or treat. Valentine v. Comm’r Soc. Sec. 3 Admin., 574 F.3d 685, 692 (9th Cir. 2009). A treating physician’s opinion is 4 generally given the most weight and may be “controlling” if it is “well- 5 supported by medically acceptable clinical and laboratory diagnostic 6 techniques and is not inconsistent with the other substantial evidence in [the 7 claimant’s] case record[.]” 20 C.F.R. § 404.1527(c)(2); Revels v. Berryhill, 874 8 F.3d 648, 654 (9th Cir. 2017) (citation omitted). Most often, the opinion of a 9 treating physician is given greater weight than the opinion of a non-treating 10 physician, and the opinion of an examining physician is given greater weight 11 than the opinion of a non-examining physician. See Garrison v. Colvin, 759 12 F.3d 995, 1012 (9th Cir. 2014). 13 The ALJ must provide “clear and convincing” reasons to reject the 14 ultimate conclusions of a treating or examining physician. Embrey v. Bowen, 15 849 F.2d 418, 422 (9th Cir. 1988); Lester, 81 F.3d at 830-31. When a treating 16 or examining physician’s opinion is contradicted by another opinion, the ALJ 17 may reject it only by providing specific and legitimate reasons supported by 18 substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 19 2007); Lester, 81 F.3d at 830; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 20 1155, 1164 (9th Cir. 2008). “An ALJ can satisfy the ‘substantial evidence’ 21 requirement by ‘setting out a detailed and thorough summary of the facts and 22 conflicting evidence, stating his interpretation thereof, and making findings.’” 23 Garrison, 759 F.3d at 1012 (citation omitted). 24 25 2. Dr. Mays’ opinion Archie R. Mays, M.D., treated Plaintiff at the Tri-City Health Group 26 beginning December 2014. [AR 506.] In his Disability Impairment 27 Questionnaire dated July 13, 2017, Dr. Mays diagnosed Plaintiff with right 28 knee internal derangement, right knee medial meniscal tear, chronic lumbar 12 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 13 of 17 Page ID #:662 1 sprain/strain, herniated nucleus pulposus, failed back syndrome, and lumbar 2 redispatch. [AR 554.] Dr. Mays opined that Plaintiff could sit for 1 to 2 3 hours, stand/walk for 1 to 2 hours, and occasionally lift and carry up to 10 4 pounds during an 8 hour workday. [AR 557-58.] He further opined that 5 Plaintiff should not sit, stand, or walk continuously in a work setting, and 6 would have to get up and move around approximately every 10 to 15 minutes 7 for 20 to 30 minutes before sitting down again. [Id.] Dr. Mays opined that 8 Plaintiff has no significant limitations in doing repetitive reaching, handling, 9 fingering or lifting and would have minimal limitations grasping, turning and 10 twisting objects, using fingers/hands for fine manipulations, and using arms 11 for reaching (including overhead) in an 8 hour workday. [AR 558-59.] 12 Finally, he opined that Plaintiff could not push, pull, kneel, bend, stoop or 13 remain in a stable and constant position more than a few minutes at a time. 14 [AR 560-61.] 15 16 3. The ALJ assigned little weight to Dr. Mays’ opinion The ALJ assigned little weight to the opinion of Dr. Mays. [AR 33.] The 17 ALJ observed that Dr. Mays’ findings were internally inconsistent and 18 contradicted by his own treatment records. [Id.] Specifically, the ALJ noted 19 that Dr. Mays’ own documentation of pain complaints and functional abilities 20 revealed a less severe assessment than his opinion reflected in the Disability 21 Impairment Questionnaire. [AR 34.] Finally, the ALJ cited a lack of 22 comparable objective findings in finding that the objective medical record did 23 not support Dr. Mays’ opinion and concluding that the opinion warranted 24 little weight. 25 26 4. Analysis While the ALJ credited Dr. Mays’ general physical exam in July 2017 as 27 consistent with his diagnoses on the questionnaire, she observed that the 28 findings of Plaintiff’s functional abilities were internally inconsistent. [AR 13 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 14 of 17 Page ID #:663 1 34.] In assigning little weight to Dr. Mays’ opinion, the ALJ pointed to an 2 inconsistency regarding the doctor’s assessment of Plaintiff’s ability to lift. 3 The ALJ noted that in one portion of the report Dr. Mays indicated that 4 Plaintiff could only occasionally lift up to 10 pounds. However, in the next 5 section, the doctor assessed that Plaintiff had no significant limitations for 6 repetitive lifting and only minimal limitations in using upper extremities, 7 bilaterally. [Id.; see AR 558-59 ¶¶ 12-13.] 8 9 Additionally, the ALJ also found that the doctor’s July 2017 estimates regarding the severity of Plaintiff’s pain (8-9/10) were inconsistent with his 10 own treatment notes which had routinely documented the reported pain level 11 as 6/10 (back pain) and 4-5/10 (right leg pain). [AR 33-34 (citing 527, 537, 12 539, 541, 546, 550, 552, 563).] Notably, Dr. Mays indicated that Plaintiff 13 reported to him that the back pain was a constant 6/10 and the right knee 14 pain was a constant 5/10 in a report completed only two months prior to the 15 July 2017 questionnaire. [AR 552.] In an August 2018 report also cited by 16 the ALJ, Dr. Mays indicated again that Plaintiff reported 6/10 constant back 17 pain and 5/10 constant right knee pain. [AR 564.] The inconsistency in the 18 pain level reports and the doctor’s differing assessments about Plaintiff’s 19 limitations for lifting within the same questionnaire were proper bases upon 20 which the ALJ discounted Dr. Mays’ opinion. Matrunich v. Comm'r of SSA, 21 478 F. App’x 370, 371 (9th Cir. 2021) (ALJ did not err in discounting opinion 22 where reporting was internally inconsistent); see also Khan v. Colvin, 2014 23 WL 285173, at *7 (C.D. Cal. 2014) (no error in finding that inconsistency 24 between two portions of the same report was reason to discount treating 25 physician’s opinion). 26 Citations to Dr. Mays’ treatment notes also reveal complaints and 27 observations of decreased sensation of the right big toe and decreased range of 28 motion with pain. [AR 531, 533, 537, 539, 544, 546.] Yet, these notations do 14 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 15 of 17 Page ID #:664 1 not support Dr. Mays’ July 2017 physical examination which noted 2 substantial sensory and motor deficits, including gross reduction of sensation 3 to his back and neck, moderate to severe tenderness in his knee, and 4 significant reduction in range of motion to his back and knee. [AR 555.] The 5 inconsistencies between the July 2017 examination and Dr. Mays’ own 6 treatment notes were a valid reason to discount his opinion and further 7 support the ALJ’s finding that the doctor’s records were inconsistent with his 8 July 2017 opinion. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) 9 (inconsistencies between doctor’s notes and later opinion provide reason to not 10 fully credit treating physician’s opinion). 11 The other reason the ALJ gave for assigning little weight to Dr. Mays’ 12 opinion was that there was a lack of comparable objective findings. [AR 34] 13 However, the ALJ failed to elaborate on this reasoning and indicate what 14 portions of the overall record, aside from Dr. Mays’ own notes, specifically 15 conflicted with the doctor’s opinion. 5 16 Accordingly, while the ALJ did not properly discount Dr. Mays’ opinion 17 based on a comparison with the overall medical record, the internal 18 inconsistencies of Dr. Mays’ own findings provide a clear and convincing 19 reason to affirm the ALJ’s decision on this ground. 20 21 22 23 24 25 26 27 28 5 The Commissioner points to portions of the records that could support the ALJ’s reasoning [JS 23], but this post hoc argument is not sufficient. Bray v. Comm’r of Social Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”). 15 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 16 of 17 Page ID #:665 1 V. CONCLUSION 2 For the reasons stated above, the ALJ’s decision is AFFIRMED. 3 IT IS SO ORDERED. 4 5 Dated: March 2, 2022 6 7 8 9 ____________________________________ PATRICIA DONAHUE UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Case 8:20-cv-01070-PD Document 21 Filed 03/02/22 Page 17 of 17 Page ID #:666 1 NOTICE: THIS DECISION IS NOT INTENDED FOR PUBLICATION IN 2 WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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