Fasagiaga v. Saul, No. 3:2020cv01420 - Document 17 (S.D. Cal. 2022)

Court Description: ORDER denying 14 Plaintiff's Motion for Summary Judgment. The Court directs the Clerk to enter Judgment affirming the decision of the Commissioner, and dismissing the action with prejudice. Signed by Magistrate Judge Nita L. Stormes on 3/28/2022. (jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RALPH ERVIN FESAGAIGA, Case No.: 20cv1420-NLS Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 16 17 18 19 20 21 22 23 24 25 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF No. 14] Defendant. Plaintiff Ralph Ervin Fesagaiga (“Plaintiff”) brings this action under the Social Security Act, 42 U.S.C. § 405(g), and seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his application for social security disability benefits under Title II of the Social Security Act. Plaintiff filed a motion for summary judgment, Defendant filed an Opposition, and Plaintiff filed a Reply. ECF Nos. 14, 15, and 16. After considering the papers submitted, the administrative record, and the applicable law, for the reasons set forth below, the Court DENIES Plaintiff’s motion for summary judgment, and directs the Clerk to enter Judgment affirming the decision of the Commissioner, and dismissing the action with 27 28 1 1 prejudice.1 2 I. 3 BACKGROUND A. 4 Procedural History Plaintiff filed a Title II application for Social Security Disability Insurance on 5 July 12, 2017. Administrative Record (“AR”) 178-179. He alleged an inability to work 6 since October 27, 2016. Id. The Commissioner initially denied Plaintiff’s claim on 7 October 5, 2017, AR 116-120, and on reconsideration on January 25, 2018. AR 122-127. 8 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was 9 held on March 19, 2019. AR 30-90. Plaintiff testified at the hearing where he was 10 represented by counsel. Id. An impartial vocational expert also testified at the hearing. 11 Id. On April 25, 2019, the ALJ issued a decision denying Plaintiff’s request for benefits, 12 finding that Plaintiff was not disabled under the Social Security Act. AR 15-26. The 13 Appeals Council denied Plaintiff’s request for review on May 29, 2020, AR 1-6, making 14 the ALJ’s decision the final decision of the Commissioner for purposes of judicial 15 review. AR 1-3. Plaintiff timely commenced this action in federal court. 16 B. 17 Personal History and Medical Treatment 1. 18 Personal History and Self-Reported Symptoms Plaintiff is a 62-year-old man with an 11th grade education. AR 47. He is married 19 with three grown children. AR 46. He lives in an apartment with his wife. Id. He most 20 recently worked as a big rig truck driver for six months in 2016. AR 48-50, 208-211. In 21 2015, he worked part-time for a shipping company. In the course of that employment, he 22 says he pulled some ligaments in his back. AR 59. His last full-time job was as a 23 security guard for U.S. Security Associates from 2009 through 2011. AR 53-55. 24 Plaintiff bases his claims of disability on a detached retina in his left eye, lumbar 25 degenerative disease, gout throughout his body, and curvature of the spine. AR 92. 26 1 27 28 The parties have expressly consented that all proceedings in this case may be heard and finally adjudicated by the undersigned magistrate judge. 28 U.S.C. § 646(c); Fed. R. Civ. P. 73; ECF No. 10. 2 1 Plaintiff testified at the hearing that he lost his job as a truck driver and stopped working 2 due to his vision problems. AR 57. He also testified that his medications for gout and 3 back pain make him feel sick, dizzy, and sleepy. AR 64. He said he generally takes 4 Ibuprofen 800mg for pain, but also takes Tramadol when the pain reaches an 8 out of 10. 5 AR 64-65. Plaintiff testified he has constant back pain on a level of 7-8 out of 10. Id. 6 When asked how he spends his days, Plaintiff stated that “he doesn’t do much,” but then 7 explained that he and his wife help with the care of their granddaughters (ages 8 and 10) 8 who live nearby with his daughter and son-in-law. AR 67-68. He picks up the girls from 9 home and drives them to school in the morning. Id. In the afternoon, he picks them up 10 and brings them to his house, where he and his wife watch them until 5:00 p.m. or 6:00 11 p.m. when his daughter gets home from work. Id. Then, he drops them off at his 12 daughter’s house. Id. He also helps with household chores, shopping, and paying bills. 13 AR 69. When his gout gets severe, he stays in bed and elevates his legs when his feet 14 swell. AR 70. Although he has carpal tunnel syndrome primarily in his right hand, that 15 does not interfere with his activities. AR 72. 16 C. 17 Medical Providers2 1. 18 Dr. Peter Custis (Ophthalmology) Plaintiff saw Dr. Peter Custis in October of 2016 for a retinal detachment of the 19 left eye. AR 323. On October 30, 2016, Dr. Custis performed a surgical repair of the left 20 eye with infusion of silicone oil and perfluoron.3 AR 316-318. During surgery, he found 21 a “giant retinal tear,” which he successfully repaired. Id. In a progress note from 22 December 5, 2016, Plaintiff reported seeing a bubble in his left eye and had some 23 24 25 26 27 2 Plaintiff received most of his medical treatment from providers at Kaiser Permanente. Liquid perfluorocarbons are used intraoperatively for various procedures, including the repair of giant retinal tears. Their properties make them helpful in proper positioning and reattachment of the retina. Perfluorocarbon liquids in ophthalmology, https:/pubmed.nlm.nih.gov. 3 28 3 1 distorted vision. AR 310. On January 20, 2017, Dr. Custis performed another surgery to 2 remove the silicone oil from Plaintiff’s left eye. AR 299-301, 419-424. On March 14, 3 2017, Dr. Custis removed a cataract from Plaintiff’s left eye. AR 274-278. At a follow- 4 up examination on May 30, 2017, Dr. Curtis noted that Plaintiff had a stable retina with 5 small bubbles of perfluoron. Dr. Curtis observed that the bubbles were not causing any 6 inflammation and the only way to remove them was through further surgery that could 7 adversely impact Plaintiff’s vision. AR 272. 8 9 At another follow up appointment with Dr. Curtis on August 14, 2017, Plaintiff continued to report limited vision in his left eye, but Dr. Curtis did not recommend any 10 further treatment. AR 708. At the hearing before the ALJ, Plaintiff reported he has 11 prescription glasses, but does not wear them. AR 74-75. He stated that his vision is 12 somewhat distorted, but he sees well enough to drive his grandchildren around in a car. 13 AR 75-77. 14 15 2. Dr. Cynthia Sierra (Primary Care) Dr. Cynthia Sierra saw Plaintiff in the Primary Care Clinic at Kaiser Permanente 16 on July 3, 2017, for a flare up of gout in his right knee. AR 626-628. Dr. Sierra advised 17 him to continue with Indomethacin 50mg, but she did not recommend any further 18 treatment at that time. Plaintiff saw Dr. Sierra for back pain and a gout flare up on July 19 27, 2017. AR 643. Her physical exam of the lumbosacral spine indicated no local 20 tenderness or mass. She documented decreased range of motion and painfulness in the 21 lumbosacral spine, but a straight leg raising test was negative on both sides, motor 22 strength and sensation were normal, and reflexes were normal, as well as normal heel and 23 toe gait. Id. Her impression was chronic low back pain. Id. She referred Plaintiff to 24 Physical Medicine for lumbar x-rays and evaluation. Id. 25 On January 20, 2019, Dr. Sierra completed a “Physical Residual Functional 26 Capacity Questionnaire” in which she opined that Plaintiff has lumbar spondylosis with a 27 fair prognosis. AR 1778. She noted he has “shooting pain in [the] bilateral lower lumbar 28 spine radiating down both legs, pain 4-7/10, daily precipitated by walking or standing for 4 1 long periods.” Id. She stated he has scoliosis, lumbar spondylosis, and disc herniation on 2 MRI, as well a slow, antalgic gait and decreased range of motion. AR 1778. In terms of 3 Plaintiff’s physical capabilities, she opined he can lift less than 10 pounds frequently and 4 up to 20 pounds occasionally; can sit, stand, and/or walk for less than 2 hours in an 8- 5 hour work day; can rarely bend and squat; occasionally climb ladders and stairs; 6 frequently twist; would have constant interference with attention and concentration 7 during the work day due to pain or other symptoms; and would be absent from work 8 more than 4 days per month. AR 1778-1781. 9 3. 10 Dr. Michael Christakos, D.O. (Osteopathy, Physical Medicine) On August 18, 2017, Dr. Michael Christakos evaluated Plaintiff for claims of low 11 back pain and leg numbness. At that time, Plaintiff reported he had shooting pains and 12 numbness throughout his legs. AR 652. He said his pain level was 4-7/10. Dr. 13 Christakos had the benefit of a lumbar spine x-ray taken July 27, 2017, that documented 14 mild osteoarthritic changes with minimal narrowing of the first through third disc spaces 15 but moderate to severe osteoarthritic changes in the fourth and fifth lumbar spaces with 16 moderate narrowing of the disc spaces. AR 645. He also had the benefit of a lumbar 17 spine MRI dated August 3, 2017, that showed moderate to severe central spinal canal 18 narrowing without contact or deformity with the L3 nerve roots bilaterally, AR 686, and 19 moderate to severe central canal narrowing at L4/5 with disc material contouring the 20 undersurface of the exiting right L4 nerve root without deformity. AR 374, 686. 21 Dr. Christakos performed a physical examination of Plaintiff on August 3, 2017. 22 He noted lumbar paraspinal tenderness to palpation and a positive Phalen test.4 The 23 examination also revealed normal posture, no scoliosis or deformity, no muscle spasms, 24 no pain with extension or flexion, no pain with bone percussion, normal lumbar range of 25 motion, normal lower extremity range of motion, normal motor strength, normal 26 4 27 28 A Phalen test is a test used to diagnose carpal tunnel syndrome (CTS), a condition that puts pressure on a nerve in the wrist that can cause tingling, pain, and numbness in your hand. Phalen’s Test-Physiopedia, http://www.physio-pedia.com. 5 1 sensation, symmetrical deep tendon reflexes, negative straight leg raise, and negative 2 Tinel’s sign.5 AR 654-655. Dr. Christakos recommended physical therapy, 3 interventional pain procedures, and a home exercise program. AR 656. He also 4 encouraged Plaintiff to maintain a healthy body weight and stay active. AR 656. Dr. 5 Christakos prescribed Tramadol for breakthrough pain, a nerve conduction study, MRI, 6 and physical therapy. Id. He also administered a lumbar paraspinal trigger point 7 injection at L4/L5. AR 656. 8 Thereafter, Plaintiff participated in two physical therapy sessions in August 2017. 9 AR 667-677. He was discharged from PT after he reported that he was able to manage 10 his pain. AR 677-678. He was given a TENS unit to use at home and instructions for a 11 home exercise program. Id. 12 Dr. Christakos saw Plaintiff again on January 24, 2018. At that appointment, 13 Plaintiff complained of continuing back pain and leg numbness. AR 786. Dr. Christakos 14 recommended the following: a bilateral lower lumbar steroid trigger point injection, 15 medial branch block of the lower lumbar spine, continued use of Tramadol which was 16 working well, exercising, losing weight, and wearing wrist splints at night. AR 790. 17 Dr. Christakos saw Plaintiff again on February 26, 2018. He noted that bilateral 18 trigger point injections were not helpful. AR 1487. He reordered Tramadol, encouraged 19 Plaintiff to lose weight, and suggested an Integrated Pain Management Plan and further 20 spinal workup if symptoms persist and plaintiff’s ability to walk long distances is 21 affected. AR 1487. 22 4. Dr. Timothy Armstrong (Neurologist) 23 On August 18, 2017, Plaintiff had a neurology consult with Dr. Timothy 24 Armstrong. AR 691-695. Dr. Armstrong’s examination revealed positive Tinel’s and 25 Phalen’s signs, normal cervical range of motion, normal motor functioning, intact 26 sensation, normal balance and gait, and a negative straight leg raising test. AR 692. Dr. 27 Tinel’s sign is another test used in diagnosing carpal tunnel syndrome. https://www.physio-pedia.com/Tinel%E2%80%99s_Test 5 28 6 1 Armstrong performed a nerve conduction study of the upper and lower extremities which 2 revealed normal findings of the right lower extremity, no evidence of polyneuropathy, 3 and mild carpal tunnel syndrome. AR 694-695. Dr. Armstrong recommended 4 conservative treatment and advised Plaintiff to wear wrist braces at night. AR 284. 5 5. Dr. Xuong Tang (D.O./Pain Management) 6 Dr. Xuong Tang examined Plaintiff on July 26, 2018. AR 955-964. He noted that 7 Plaintiff’s MRI showed moderate to severe stenosis but most of his symptoms suggested 8 that he was not a great surgical candidate. Id. He also noted that the epidural steroid 9 injection was not helpful, the medial branch block failed, and the steroid trigger point 10 injection failed. Id. On physical examination, he observed tenderness to palpation in the 11 muscles of the low back and decreased extension due to pain. AR 962. However, 12 Plaintiff also showed normal flexion of the spine, no scoliosis, normal strength and tone 13 of the paraspinal musculature, no crepitus, tenderness, or effusion, stable joints, intact 14 sensation, and normal range of motion of the extremities. Id. 15 Dr. Tang recommended cognitive behavioral therapy which Plaintiff declined. AR 16 963. He also recommended a course of Gabapentin, repeat epidural injection, core work 17 and weight loss. AR 964. During a follow up appointment on December 6, 2018, Dr. 18 Tang noted that Plaintiff had continued lumbar pain for which he was taking Tramadol. 19 AR 949. He recommended Gabapentin again but Plaintiff wanted to wait. Id. He also 20 recommended acupuncture, exercise, heat and ice, TENS, and cognitive behavioral 21 therapy. AR 949-950. 22 23 6. Dr. David Easley (Consulting Orthopedic Examiner) On December 18, 2017, Dr. Easley performed an orthopedic evaluation of Plaintiff 24 for low back pain. AR 398-403. Dr. Easley noted some tenderness to palpation at the 25 base of the lumbar spine and at the bilateral sacroiliac joints. AR 400. He also noted no 26 pain with axial rotation of the trunk and none with axial loading of the spine at the head. 27 Id. The straight leg raising test was negative at 90 degrees, both sitting and supine. Id. 28 Range of motion of the back was 70/90 degrees of forward flexion, 10/25 degrees of 7 1 extension, and 15/25 degrees of lateral flexion bilaterally. Id. He also observed that 2 Plaintiff could get into and out of a chair without difficulty and that his gait is normal. 3 AR 401. He did not require an assistive device to walk across the room. Id. Dr. Easley’s 4 neurological assessment revealed no apparent abnormality. AR 402. He did not have the 5 benefit of any diagnostic tests, but his diagnostic impression at the time was 6 “degenerative disc disease of the lumbosacral spine without radiculopathy.” Id. 7 Based on his assessment, Dr. Easley opined that Plaintiff could lift and/or carry 50 8 pounds occasionally and 25 pounds frequently; he can stand and/or walk for 6 hours of an 9 8-hour workday; and sit for 6 hours of an 8-hour workday; there are no other postural, 10 manipulative, visual, communicative, or environmental limitations. AR 402. At the time 11 of his examination, Dr. Easley did not have the lumbar MRI results. 12 13 7. State Agency Consultants (K. Vu DO, Kim Rowlands, M.D.) The state agency physical consultants opined the claimant can lift and/or carry 50 14 pounds occasionally and 25 pounds frequently; stand and/or walk for 6 hours of an 8- 15 hour work day; sit for 6 hours of an 8-hour work day; frequently climb ramps and stairs; 16 occasionally climb ladders, scaffolds or ropes; frequently balance, kneel, crouch, and 17 crawl; occasionally stoop; and has limited vision, precluding work requiring acute vision 18 for public safety and work with machinery moving left to right. AR 95-97, 109-110. 19 D. Vocational Expert’s Testimony 20 The ALJ asked the vocational expert to assume a person with the same age, 21 education, and work experience as the Plaintiff, with the residual functional capacity to 22 do light work as defined in 20 C.F.R. 404.1567(b), except that: he can lift and/or carry 20 23 pounds occasionally and 10 pounds frequently; he can stand and/or walk for 6 hours of an 24 8-hour work day, but requires the ability to sit for 3 to 5 minutes after every hour of 25 standing or walking; he can sit for 6 hours of an 8-hour work day; he is unlimited in 26 pushing and/or pulling other than as shown for lifting and carrying; he can frequently 27 climb ramps and stairs; occasionally climb ladders, scaffolds or ropes; frequently 28 balance, occasionally stoop, kneel, crouch and crawl; he has limited vision in the left eye 8 1 so he can do no work requiring acute vision for public safety or any left to right conveyor 2 belt work. AR 20, 78-81. Additionally, the ALJ asked the vocational expert to assume 3 the person could not drive heavy equipment but can drive a car. AR 80. The vocational 4 expert testified that such a person would be able to perform past relevant work as a 5 security guard, as actually performed by Plaintiff and as generally performed in the 6 national economy. AR 81. 7 When questioned by Plaintiff’s counsel, the vocational expert testified that in her 8 professional experience, the position of security guard allows for a sit/stand option. AR 9 86-88. She further said it is reasonable to assume that a security guard can sit or stand at 10 will for 3 to 5 minutes after every hour of standing or walking. AR 81. She 11 acknowledged that the sit/stand option is not in the Dictionary of Occupational Titles, but 12 she based her opinion on her experience and research. Plaintiff corroborated the expert’s 13 opinion by testifying that when he worked as a security guard at a bank, he was able to sit 14 down for approximately 5 minutes of every hour. AR 88. 15 16 17 II. THE ALJ DECISION A. The Sequential Process To qualify for disability benefits under the Social Security Act, an applicant must 18 show that he or she cannot engage in any substantial gainful activity because of a 19 medically determinable physical or mental impairment that has lasted or can be expected 20 to last at least twelve months. 42 U.S.C. §§ 423(d), 1382(c)(a)(3). The Social Security 21 regulations establish a five-step sequential evaluation to determine whether an applicant 22 is disabled under this standard. 20 C.F.R. §§ 404.1520(a), 416.920(a); Batson v. Comm’r 23 of the Social Security Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 24 At step one, the ALJ determines whether the applicant is engaged in substantial 25 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(b). If not, then at step two the 26 ALJ must determine whether the applicant suffers from a severe impairment or a 27 combination of impairments. Id. §§ 404.1520(a)(4)(ii), 416.920(c). If the impairment is 28 severe, at step three the ALJ must determine whether the applicant’s impairment or 9 1 combination of impairments meets or equals an impairment contained under 20 C.F.R. 2 Part 404, Subpart P, Appendix 1. Id. §§ 404.1520(a)(4)(iii), 416.920(d). If the 3 applicant’s impairment meets or equals a listing, he or she must be found disabled. Id. 4 If the impairment does not meet or equal a listing, the ALJ must determine the 5 applicant’s residual functional capacity (“RFC”). 6 20 C.F.R. §§ 404.1520(a)(4)(iv), 6 416.920(e). Then, the ALJ must determine at step four whether the applicant retains the 7 residual functional capacity to perform past relevant work. Id. §§ 404.1520(a)(4)(iv), 8 416.920(f). If the applicant cannot perform past relevant work, at step five the ALJ must 9 consider whether the applicant can perform any other work that exists in the national 10 economy. Id. §§ 404.1520(a)(4)(v), 416.920(g). 11 The applicant carries the burden to prove eligibility from steps one through four 12 but the burden at step five is on the agency. Celaya v. Halter, 332 F.3d 1177, 1180 (9th 13 Cir. 2003). Applicants not disqualified at step five are eligible for disability benefits. Id. 14 B. 15 Substance of the ALJ’s Decision At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 16 activity during the period from his alleged disability onset date of October 27, 2016, 17 through his date last insured of March 31, 2019. AR 17. 18 At step two, the ALJ determined Plaintiff had the following severe impairments: 19 left eye low vision with history of retinal detachment, status post-operative repair and 20 subsequent cataract surgery; degenerative disc disease of the spine; and gout. AR 17. 21 The ALJ found that the Plaintiff’s other medically determinable impairments of obesity; 22 obstructive sleep apnea; mild carpal tunnel syndrome and TMJ cause only slight 23 abnormalities that would have minimal effect on his ability to work. AR 17-18. The ALJ 24 further found that the claimant’s medically determinable mental impairments of major 25 depressive disorder; anxiety disorder; and history of polysubstance abuse in remission; 26 considered singly and in combination caused no more than minimal limitation in his 27 A claimant’s residual functional capacity (“RFC”) is the most he can still do in a work setting despite impairments. See, 20 C.F.R. § 404.1545(a). 6 28 10 1 2 ability to perform basic mental work and was therefore not severe. AR 18-19. At step three, the ALJ found Plaintiff did not have an impairment or combination 3 of impairments that met or medically equaled the severity of one of the listed 4 impairments. AR 19. Specifically, the ALJ found that Plaintiff did not meet or medically 5 equal Listings 1.04, 2.02, 2.03, 2.04, and 14.09. Id. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 1547(b) except: The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and/or walk for six hours in an eight-hour workday, but requires the ability to sit for 3 to 5 minutes every hour of standing or walking; he can sit for 6 hours of an 8-hour workday; he is unlimited in pushing and/or pulling other than as shown for lifting and carrying; he can frequently climb ramps and stairs; occasionally climb ladders, scaffolds or ropes; frequently balance; occasionally stoop, kneel, crouch, and crawl; he has limited vision in the left eye so he can do no work requiring acute vision for public safety or any left to right conveyer belt work. AR 19-20. In making his RFC assessment, the ALJ noted he had considered all of Plaintiff’s symptoms along with the objective medical evidence and other evidence in the record. At step four, the ALJ determined that Plaintiff could perform his past relevant work as a security guard. AR 25. As such, the ALJ concluded Plaintiff is not disabled as defined in the Social Security Act. AR 26. III. LEGAL STANDARD OF REVIEW The Social Security Act provides for judicial review of a final agency decision denying a claim for disability benefits. 42 U.S.C. § 405(g). A reviewing court will set 24 aside a denial of benefits only when the ALJ decision is “based on legal error or not 25 supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 664, 675 26 27 (9th Cir. 2017) (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). Substantial evidence is “more than a mere scintilla” and means “such relevant 28 11 1 evidence as a reasonable mind might accept as adequate to support a conclusion.” 2 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); see Molina v. Astrue, 674 F.3d 1104, 3 1110 (9th Cir. 2012) (quotation and citation omitted). It is a “highly deferential” standard 4 of review. Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009). However, the Court 5 must consider the entire record, weighing both the evidence that supports and the 6 evidence that detracts from the Commissioner’s conclusion, and it “may not affirm 7 simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 8 F3d. 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 9 Cir. 2007)). 10 “The ALJ is responsible for determining credibility, resolving conflicts in medical 11 testimony, and for resolving ambiguities.” Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th 12 Cir. 2008) (internal quotations and citation omitted). If the evidence is susceptible to 13 more than one reasonable interpretation, the agency’s decision must be upheld. Molina, 14 674 F.3d at 1111. It is not the Court’s role to reinterpret or re-evaluate the evidence, even 15 if a re-evaluation may reasonably result in a favorable outcome for the plaintiff. Batson, 16 359 F.3d at 1193. Moreover, the Court may not uphold an ALJ’s decision on a ground 17 not actually relied on by the ALJ. Molina, 674 F.3d at 1121. 18 IV. 19 Plaintiff contends the ALJ erred in three respects: (1) by failing to articulate legally DISCUSSION 20 sufficient reasons for rejecting the opinion of Cynthia Sierra, M.D., a treating physician, 21 as to Plaintiff’s residual functional capacity; (2) by failing to properly assess Plaintiff’s 22 RFC based on the objective medical evidence and other physician opinion evidence; and 23 (3) by failing to articulate “clear and convincing reasons” for rejecting Plaintiff’s 24 subjective complaints. ECF No. 14 at 5-12. The Court will address each of these 25 arguments in turn. 26 27 28 A. The ALJ Properly Considered Dr. Sierra’s Opinion Under the Revised Regulations for Evaluating Medical Evidence On January 18, 2017, the Social Security Administration (“SSA”) revised the 12 1 regulations that apply to evaluation of medical evidence, effectively abolishing the 2 “treating physician rule” for cases filed on or after March 27, 2017. This changed 3 regulation applies to Plaintiff’s case, as it was filed on July 12, 2017. This means that an 4 ALJ no longer must assign a certain weight to a medical practitioner’s opinion. Rather, 5 ALJs are now to “consider” the “persuasiveness” of opinions from all medical sources. 6 20 C.F.R. § 1520c(a).7 7 8 The ALJ is required to focus on the persuasiveness of a medical opinion or prior administrative finding(s) using the following five factors: 9 (1) Supportability 10 (2) Consistency 11 (3) Relationship with the claimant (including) 12 a. Lengthy of treatment relationship 13 b. Frequency of examinations 14 c. Purpose of the treatment relationship 15 d. Extent of the treatment relationship 16 e. Examination relationship 17 (4) Specialization 18 (5) Other factors 19 20 C.F.R. § 404.1520c(a)-(c) (2017). Supportability and consistency are the two most 20 important factors to be considered by the ALJ in determining the persuasiveness of a 21 medical source’s opinion. 20 C.F.R. § 404.1520c(b)(2). The ALJ must explain in his 22 decision how persuasive he finds a medical opinion based on these two factors. Id. The 23 ALJ may, but is not required to, explain how he considered the other remaining factors, 24 25 26 27 28 7 For Social Security applications filed before March 27, 2017, the medical opinion of a treating physician was given controlling weight so long as it was well-supported by medically acceptable clinical and laboratory techniques and was not inconsistent with the other substantial evidence in claimant’s medical record. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting 20 CFR §§ 404.1527(c)(2)). 13 1 unless the ALJ finds that two medical opinions on the same issue are equally well 2 supported and consistent with the record, but are not identical. 20 C.F.R. § 3 404.1520c(b)(3). 4 Departing from prior case law, under the new regulations, an ALJ is not required to 5 “defer or give any specific evidentiary weight, including controlling weight, to any 6 medical opinion(s) or prior administrative finding(s), including those from [a claimant’s] 7 medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The new regulations 8 override the treating physician rule, which automatically gave greater weight to the 9 medical opinions of treating physicians, required clear and convincing reasons for 10 rejecting an uncontradicted medical opinion of a treating physician, and required specific 11 and legitimate reasons supported by substantial evidence in the record for rejecting the 12 contradicted medical opinion of a treating physician. Jones v. Saul, No. 2:19-cv-01273- 13 AC, 2021 WL 620475, at *6-*10 (E.D. Cal. Feb. 17, 2021) (concluding that “the new 14 regulations regarding the evaluation of medical opinion evidence displace the Ninth 15 Circuit’s prior precedents implementing the [Treating Physician Rule]”). 16 The Ninth Circuit has not yet addressed whether, and to what extent, ALJs are still 17 held to the “clear and convincing” and “specific and legitimate” standards when rejecting 18 a medical opinion. Deborah K. v. Kijakazi, No. 320CV02065GPCAHG, 2022 WL 19 486528, at *8 (S.D. Cal. Feb. 16, 2022). There is a split amongst district courts in the 20 Ninth Circuit as to whether the Circuit’s prior case law regarding deference to treating 21 physicians still applies. Compare id.; Kathy Jean T. v. Saul, No. 20cv1090-RBB, 2021 22 WL 2156179, at *5 (S.D. Cal. May 27, 2021) (“This measure of deference to a treating 23 physician is no longer applicable under the 2017 revised regulations.”), with Robert D. v. 24 Kijakazi, No. 20cv2132-AJB-MSB, 2021 WL 5905734, at *3 (S.D. Cal. Dec. 14, 2021); 25 Kathleen G. v. Comm’r of Soc. Sec., No. C20-461-RSM, 2020 WL 6581012, at *3 (W.D. 26 Wash. Nov. 10, 2020) (finding that the “specific and legitimate” standard for rejecting 27 contradicted opinions of a treating doctor continues to serve as a “benchmark against 28 which the Court evaluates [the ALJ’s] reasoning”). 14 This Court “agrees with the numerous district courts that found the treating source 1 2 rule is inconsistent with the SSA’s 2017 regulations, which effectively displace or 3 override it.” Julie R. M. v. Kijakazi, No. 20cv1608-LL-MDD, 2021 WL 4993034, at *4 4 (S.D. Cal. Oct. 26, 2021); see Allen T. v. Saul, No. 19-1066, 2020 WL 3510871, at *3 5 (C.D. Cal. June 29, 2020) (“Nevertheless, the Court is mindful that it must defer to the 6 new regulations, even where they conflict with prior judicial precedent, unless the prior 7 judicial construction ‘follows from the unambiguous terms of the statute and thus leaves 8 no room for agency discretion.’ The Court defers to the new rules here.”) (quoting Nat’l 9 Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)); see, 10 e.g., Jones, 2021 WL 620475, at *6–*10; Joseph Perry B. v. Saul, No. SACV 20-1196- 11 KS, 2021 U.S. Dist. LEXIS 59742, at *7 (C.D. Cal. Mar. 29, 2021).8 Accordingly, the 12 Court will address the ALJ’s evaluation of the medical opinions at issue here under the 13 2017 regulations. Here, the ALJ properly determined that Dr. Cynthia Sierra’s opinion as to 14 15 Plaintiff’s RFC is not “persuasive.” AR 24. On January 20, 2019, Dr. Sierra completed a 16 Residual Functional Capacity (RFC) questionnaire. AR 1778-1781. Her responses 17 indicated that Plaintiff could sit, stand, and walk for less than 2 hours total in an 8-hour 18 workday, would constantly experience pain or other symptoms severe enough to interfere 19 with attention and concentration, and would likely miss more than 4 days of work a 20 month. Id. She diagnosed Plaintiff as having lumbar spondylosis with “shooting pain in 21 bilateral lumbar radiating down both legs, pain 4-7/10 daily, precipitated by walking or 22 sitting long periods.” AR 1778. She noted the objective findings as being scoliosis, 23 lumbar spondylosis, and disc herniation on MRI with a slow gait and decreased range of 24 25 26 27 28 The Court is particularly persuaded by the court’s analysis in Jones, which actually considered and analyzed whether the new regulations are valid and should be afforded deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 2021 WL 620475, at *6–*10. Jones concluded that the new regulations were valid, should be entitled to deference, and overrode the prior Ninth Circuit caselaw establishing the Treating Physician Rule. Id. 8 15 1 motion. Id. 2 The ALJ determined that Dr. Sierra’s opinion was not well-supported by or 3 consistent with the record. AR 24. As noted in the new regulations, supportability and 4 consistency are the two most important factors to be considered by the ALJ in 5 determining the persuasiveness of a medical source’s opinion. 20 C.F.R. § 6 404.1520c(b)(2). The other factors do not have to be discussed in every situation. See 20 7 C.F.R. § 404.1520c(b)(3). 8 9 Discussing inconsistency, the ALJ gave a few reasons for why he found Dr. Sierra’s opinion inconsistent. First, he noted that her opinion was “inconsistent with 10 findings on physical examinations, documenting some abnormalities such as tenderness 11 to palpitation of the spine and some pain with motion, but otherwise mostly normal 12 findings such as normal range of motion, symmetrical deep tendon reflexes, negative 13 straight leg raise testing, intact sensation, and normal balance and gait.” For support, the 14 ALJ pointed to progress notes from Dr. Christakos, dated August 3, 2017, where Plaintiff 15 was observed as follows: 16 • Normal gait and posture, 17 • No scoliosis 18 • No pain with extension or flexion, 19 • No pain with bone percussion, 20 • Lumbar range of motion within normal limits 21 • Lower extremity range of motion normal for age, 22 • 5/5 motor strength in lower extremities, 23 • No muscle atrophy in lower extremities, 24 • Intact sensation. 25 26 27 AR 24 (citing Exhibit 1F/7 (AR 263)). In addition, the ALJ also pointed to progress notes from Dr. Timothy Armstrong, a neurologist, dated August 18, 2017. AR 24 (citing Exhibit 5F/281 (AR 692)). Dr. Armstrong’s examination revealed positive Tinel’s and 28 16 1 Phalen’s signs, normal cervical range of motion, normal motor functioning, intact 2 sensation, normal balance and gait, and a negative straight leg raising test. AR 692. Dr. 3 Armstrong performed a nerve conduction study of the upper and lower extremities which 4 revealed normal findings of the right lower extremity, no evidence of polyneuropathy, no 5 evidence of right lumbosacral radiculopathy and mild carpal tunnel syndrome. AR 694- 6 695. Finally, the ALJ pointed to progress notes from Dr. Xuong Tang from a 7 comprehensive pain consultation on July 26, 2018. AR 24 (citing 5F/551)). Dr. Tang 8 noted that Plaintiff “display[ed] no overt pain behaviors,” that his “cervical, lumbar 9 spine, ribs and pelvis reveals no scoliosis,” normal strength and tone of the paraspinal 10 musculature, full hip joint range of motion without pain and negative stress tests 11 bilaterally, no crepitus, tenderness or effusion of the bilateral shoulders, elbows, wrists, 12 knees and angles, and stable joints and normal range of motion. AR 962. Second, on 13 inconsistency, the ALJ also noted that Dr. Sierra’s opinion of Plaintiff’s limited 14 functional capacity is also inconsistent with other physicians who recommended 15 primarily conservative treatment, including physical therapy, weight loss, home exercise, 16 medical management, acupuncture, and spinal injections. AR 24 (citing various 17 testimony); see AR 264, 358, 377, 790, 944, 963-964, 1051. 18 In addition, the ALJ addressed the supportability of Dr. Sienna’s opinion. He 19 noted that “Dr. Sierra noted the claimant has a slow and antalgic gait, but this is not 20 supported by the medical records.” AR 24. For support, the ALJ cited to various records 21 from Kaiser Permanente, suggesting otherwise. See AR 643 (noting normal deep tendon 22 reflex, motor strength and sensation, including heel and toe gait and full range of motion 23 for hips and knees without pain); AR 654 (normal gait); AR 692 (noting normal balance 24 and gait); AR 743 (“Gait: non-antalgic”); AR 788 (noting no gait changes); AR 963 25 (noting narrow based gait but wnl (within normal limits)); AR 985 (noting Plaintiff was 26 “ambulatory with gait steady”). The ALJ found that “Dr. Sierra also noted that the 27 claimant complained of shooting pain in his bilateral lower lumbar spine radiating down 28 both legs, which is contradicted by a nerve conduction study indicating no 17 1 polyneuropathy of the lower extremities.” AR 24. The nerve conduction study 2 conducted by Dr. Armstrong on August 18, 2017 concluded that “[t]here is no evidence 3 of a polyneuropathy” of the lower extremities. AR 694-95. 4 The ALJ also observed that, based on the medical record and the issues with 5 supportability and inconsistency, Dr. Sienna may have relied heavily on Plaintiff’s 6 subjective reports as to his pain level and difficulty with sitting and walking. AR 24. 7 The ALJ is permitted to consider “other factors” that he or she deems relevant when 8 determining whether a physician’s opinion is persuasive. 20 C.F.R. § 404.1520c(a)-(c). 9 Thus, the Court concludes that the ALJ properly followed what was required of 10 him under the regulations in finding that Dr. Sienna’s opinion was not persuasive and 11 finds no error on this ground. 12 B. 13 14 The ALJ Properly Assessed Plaintiff’s Residual Functional Capacity The ALJ is the sole determiner of a claimant’s RFC after consideration of “all the 15 relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 16 404.1546(c); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is the 17 responsibility of the ALJ, not the claimant’s physician to determine residual functional 18 capacity.”); McLeod v. Astrue, 640 F.3d 881, 884-885 (9th Cir. 2011). “In formulating 19 an RFC, the ALJ weighs medical and other source opinions, including lay opinions, as 20 well as the claimant's credibility. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 21 1219, 1226 (9th Cir. 2009); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 22 1995) (“The ALJ is responsible for determining credibility, resolving conflicts in medical 23 testimony, and for resolving ambiguities.”). “An ALJ is not required to adopt any one 24 medical opinion, but instead must translate Plaintiff's limitations into work-related 25 restrictions and functions.” Ly v. Colvin, No. 1:13-CV-01242-SKO, 2014 WL 4795044, 26 at *11 (E.D. Cal. Sept. 25, 2014) (citing Stubbs–Danielson v. Astrue, 539 F.3d 1169, 27 1174–1176 (9th Cir. 2008)). 28 What the ALJ is not permitted to do is to make his own determinations and 18 1 interpretations of the medical evidence. See, e.g., Day v. Weinberger, 522 F.2d 1154, 2 1156 (9th Cir. 1975) (ALJ is forbidden from making his or her own medical assessment 3 beyond that demonstrated by the record); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 4 1996) (“ALJs must not succumb to the temptation to play doctor and make their own 5 independent medical findings.”); Javier A. G. v. Saul, No. SACV 19-2341 PVC, 2020 6 WL 6940042, at *9 (C.D. Cal. Nov. 25, 2020) (“[A]n ALJ may not substitute his or her 7 lay interpretation of raw medical data in making an RFC assessment in lieu of a qualified 8 expert’s medical opinion.”). 9 Here, the ALJ properly considered all the medical and other evidence in making 10 his assessment of Plaintiff’s RFC. He did not make his own independent interpretations 11 of raw medical data but instead he weighed the various doctors’ opinions, as he is 12 permitted to do. 13 The ALJ did not wholesale adopt the opinion of any one physician. In fact, he 14 found Plaintiff more limited in function than three of the other doctors who examined 15 him. Specifically, on December 18, 2017, Dr. Easley’s orthopedic evaluation of Plaintiff 16 for low back pain noted some tenderness to palpation at the base of the lumbar spine and 17 at the bilateral sacroiliac joints. AR 400. However, he also noted no pain with axial 18 rotation of the trunk and none with axial loading of the spine at the head. Id. The 19 straight leg raising test was negative at 90 degrees, both sitting and supine. Id. He also 20 observed that Plaintiff could get into and out of a chair without difficulty and that his gait 21 is normal. AR 401. Based on his assessment, Dr. Easley opined that Plaintiff could 22 perform a full range of medium work—that is, he can lift and/or carry 50 pounds 23 occasionally and 25 pounds frequently; he can stand and/or walk for 6 hours of an 8-hour 24 workday; and sit for 6 hours of an 8-hour workday; there are no other postural, 25 manipulative, visual, communicative, or environmental limitations. AR 402; see Social 26 Security Ruling (SSR) 83-10. The State Agency consultants, K. Vu, D.O. and Kim 27 Rowlands, M.D. likewise determined Plaintiff could do medium work, but with postural, 28 visual, and environmental limitations. AR 95-97, 109-110. 19 1 By contrast, the ALJ found Plaintiff could only perform a reduced range of light 2 work. AR 19-20. In so finding, the ALJ considered the opinions of Drs. Easley, Vu, and 3 Rowlands only partially persuasive because they were reasonably consistent with the 4 objective medical evidence in the record and the recommendations for conservative 5 treatment, but they did not sufficiently account for Plaintiff’s subjective symptoms or the 6 abnormal lumbar MRI. AR 24-25; 955-964. Thus, contrary to Plaintiff’s assertions 7 (ECF No. 14 at 7), the ALJ’s RFC assessment is not his own lay opinion. Rather, it was 8 guided by the medical opinions of the various physicians of record. 9 Plaintiff’s suggestion that the ALJ should have more fully developed the record by 10 obtaining additional medical consults and expert testimony is not tenable. In Social 11 Security cases, the ALJ does have a “special duty to fully and fairly develop the record 12 and to assure that the claimant’s interests are considered.” Smolen v. Chater, 80 F.3d 13 1273, 1288 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). 14 However, this duty is triggered by “ambiguous evidence” or when the ALJ finds that “the 15 record is inadequate to allow for proper evaluation of the evidence.” Tonapetyan v. 16 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The record here was neither ambiguous nor 17 inadequate. The record consisted of over 1500 pages of medical records, AR 258-1781, 18 and four different physicians opined on Plaintiff’s functional limitations. Three of them 19 found Plaintiff less limited than the ALJ. Plaintiff was represented at the hearing and his 20 counsel never suggested the need for supplemental evidence. AR 30-90. 21 22 23 24 Thus, the Court concludes that the ALJ properly arrived at his RFC determination based on the medical opinions in the record and finds no error on this ground. C. The ALJ Properly Assessed Plaintiff’s Subjective Symptom Testimony 25 The ALJ must engage in a two-step analysis in determining how much to credit the 26 claimant’s symptom testimony. First, the claimant must show that the impairment can be 27 expected to cause some degree of pain, or other symptoms alleged, and second, if there is 28 no evidence of malingering, the ALJ can reject the claimant’s testimony about the 20 1 severity of her symptoms only by offering clear and convincing reasons for doing so. 2 Trevizo, 871 F.3d at 678 (citing Garrison, 759 F.3d at 1014-15). “The clear and 3 convincing standard is the most demanding required in Social Security cases.” Garrison, 4 759 F.3d at 1015. “An ALJ does not provide specific, clear, and convincing reasons for 5 rejecting a claimant’s testimony by simply reciting the medical evidence in support of his 6 or her residual functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 7 487, 489 (9th Cir. 2015). The ALJ is required to “specify which testimony [he] finds not 8 credible, and then provide clear and convincing reasons, supported by evidence in the 9 record, to support that credibility determination.” Id. A “line-by-line exegesis of the 10 claimant’s testimony” is not required, but the ALJ must do more than offer “non-specific 11 conclusions that [the claimant’s] testimony was inconsistent with her medical treatment.” 12 Lambert v. Saul, 980 F.3d 1266, 1268, 1277 (9th Cir. 2020). 13 Here, the ALJ stated the following with regard to Plaintiff’s testimony: 14 The claimant testified he stopped working due to his vision problems. He also said his medications for gout and back pain made him feel sick, dizzy, and sleepy. The claimant indicated he generally only takes Ibuprofen 800mg for pain, but also takes Tramadol when his pain gets to about an 8 out of 10. During his testimony, the claimant stated that he “doesn’t do much,” but then went on to testify that he and his wife assist their daughter with the care of their grandchildren ( approximately 8 and 10 years old); he picks them up from home and drives them to school; picks them up later from school; helps his wife watch them in the afternoon; and then drops them off at his daughter's house after she gets home from work. He also assists with household chores, shops at stores, and pays bills. He said he elevates his legs because his feet swell up, but he does not use an assistive device. (Hearing Testimony). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. AR 20-21. The ALJ then proceeds to spend the next three pages explaining the reasons 21 1 2 3 4 5 6 7 8 9 for why he found Plaintiff’s testimony not to be entirely consistent. First, the ALJ discusses the statements Plaintiff made regarding his vision, back pain, and gout. AR 21-23. The ALJ stated: The claimant was treated by a number of physicians for his allegations of left eye vision loss, back pain, and gout. Although the claimant exhibited some abnormal findings during physical examinations, these findings are not fully consistent with his allegations of completely disabling symptoms. In addition, the claimant's physicians recommended only conservative treatment for his impairments. Nevertheless, the undersigned considered the claimant’s abnormal findings during physical examinations and the multiple conservative treatment modalities pursued by the claimant in determining the residual functional capacity determined herein. 10 11 AR 21. Regarding Plaintiff’s vision, the ALJ noted that although he continued to report 12 limited vision in his left eye, his ophthalmologist Dr. Custis did not recommend any 13 further treatment, and Plaintiff testified he sees well enough to drive his grandchildren in 14 a car. AR 21 (citing AR 368-369). As for his gout, the ALJ noted that Plaintiff did seek 15 treatment for that condition in 2017 and 2018, it appears his doctors generally managed 16 that condition effectively with medication. AR 22-23 (citing AR 626, 628, 809-811). 17 Regarding back pain, the ALJ noted that “[o]bjective imaging is not fully consistent with 18 the claimant’s allegations of disabling back pain.” AR 21. The ALJ went on to go 19 through Plaintiff’s imaging x-rays and MRI and noted the findings. AR 21 (citing AR 20 260; 645; 682-83). The ALJ continued to review and cited to notes from throughout the 21 record regarding Plaintiff’s back pain. AR 21-23 (citing notes and findings with Dr. 22 Christakos, Dr. Armstrong, Dr. Kim, Dr. Tang, and Dr. Easley from administrative 23 record). As previously noted, his doctors treated him conservatively with recommended 24 exercise, weight loss, physical therapy, a TENS unit, and pain medication. Id. Plaintiff 25 participated in only two physical therapy sessions in August 2017. AR 667-678. He was 26 discharged from PT after he reported he was able to manage his pain. Id. 27 Finally, the ALJ explained that Plaintiff’s self-reported activities were inconsistent 28 with his complaints of disabling limitations. AR 23. He noted that Plaintiff could climb 22 1 two flights of stairs without chest pain or significant dyspnea, that he exercised for 30 2 minutes a day, three days a week, that he and his wife cared for their granddaughters 3 while their daughter was at work, and he drove them to and from school. AR 23 (citing 4 AR 450, 642, 667-668). The ALJ also observed that Plaintiff helps with household 5 chores, shops, and pays bills. AR 29, 69; see Ahearn v. Saul, 988 F.3d 1111, 1117 (9th 6 Cir. 2021) (finding that the ALJ’s citation to the medical record provided specific, clear, 7 and convincing reasons for why the claimants testimony was not as severe as he claimed 8 and his reported daily activities further supported the decision); Molina, 674 F.3d at 1104 9 (even where activities show some difficulty functioning, they may be grounds for 10 discounting the claimant’s testimony to the extent that they contradict claims of total 11 disability). 12 Thus, the Court finds that the ALJ provided sufficient reasons for discounting 13 certain of Plaintiff’s subjective testimony. Moreover, the ALJ validly concluded that 14 Plaintiff’s daily activities contradicted his claims of disability. Consequently, the ALJ 15 considered and properly discounted Plaintiff’s complaints of disabling limitations. The 16 Court finds no error on this ground. 17 V. 18 For the foregoing reasons, the Court DENIES Plaintiff’s motion for summary CONCLUSION 19 judgment, and directs the Clerk to enter Judgment affirming the decision of the 20 Commissioner, and dismissing the action with prejudice. 21 IT IS SO ORDERED. Dated: March 28, 2022 22 23 24 25 26 27 28 23 1 2 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 24

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