Valentin v. Saul, No. 3:2021cv00643 - Document 25 (S.D. Cal. 2022)

Court Description: ORDER RESOLVING JOINT MOTION FOR JUDICIAL REVIEW AND AFFIRMING THE COMMISSIONERS FINAL DECISION: Granting ECF 24 Motion. the Court ORDERS the Joint Motion be GRANTED in favor of Defendant. Accordingly, the final decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Mitchell D. Dembin on 9/8/2022. (exs)

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Valentin v. Saul Doc. 25 Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3072 Page 1 of 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 13 Case No.: 21cv0643-MDD PAUL V., 12 Plaintiff, v. 14 15 KILOLO KIJAKAZI,1 Acting Commissioner of Social Security, 16 ORDER RESOLVING JOINT MOTION FOR JUDICIAL REVIEW AND AFFIRMING THE COMMISSIONER’S FINAL DECISION Defendant. 17 [ECF No. 24] 18 19 Paul V. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) for 20 judicial review of the final administrative decision of the Commissioner of the 21 Social Security Administration (“Commissioner”) regarding Plaintiff’s Title 22 XVI application for Supplemental Security Income. (ECF No. 1). The 23 Administrative Law Judge (“ALJ”) found that Plaintiff was not disabled and 24 25 26 27 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is substituted for Andrew M. Saul as the Defendant in this action. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 1 21cv0643-MDD Dockets.Justia.com Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3073 Page 2 of 20 1 denied Plaintiff’s claim for benefits from September 1, 2011, through the date 2 of the decision, February 11, 2020. (AR at 44). On August 9, 2022, the 3 parties filed a Joint Motion for Judicial Review of the ALJ’s decision. (ECF 4 No. 24). For the reasons expressed herein, the Court AFFIRMS the 5 6 Commissioner’s decision. 7 I. BACKGROUND 8 A. Procedural History 9 Plaintiff applied for Title II Social Security Disability Insurance 10 benefits and subsequent Title XVI Supplemental Security Income benefits on 11 February 4, 2013. (Administrative Record “AR” at 136).2 His initial 12 application alleged disability beginning September 1, 2011, when he was 39 13 years old. (Id. at 42, 136). These claims were initially denied on July 31, 14 2013, and upon reconsideration on March 7, 2014. (AR at 163-82). On June 15 8, 2014, Plaintiff filed a written request for a hearing. (AR at 251). A 16 hearing date was set for May 16, 2016, but Plaintiff requested that the 17 hearing be rescheduled. (AR at 276, 288). Plaintiff’s request to reschedule 18 was denied on April 28, 2016, and Plaintiff subsequently failed to appear at 19 the hearing, which resulted in an Order of Dismissal on May 26, 2016. (AR 20 at 205-06). On January 27, 2017, upon written request for review, the 21 Appeals Council vacated the dismissal and remanded the matter back to the 22 ALJ to give Plaintiff an opportunity for a hearing. (AR at 209-10). The hearing on remand occurred October 5, 2017, before ALJ Robin 23 24 Henrie. (AR at 214-24). On January 31, 2018, ALJ Henrie issued an 25 26 2 27 “AR” refers to the Certified Administrative Record filed on November 16, 2021. (ECF Nos. 12-13). 2 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3074 Page 3 of 20 1 unfavorable decision and found that Plaintiff was not disabled under the 2 Social Security Act. (AR at 223-24). On February 12, 2019, upon written 3 request for review, the Appeals Council remanded the case for additional 4 proceedings. (AR at 234). The Appeals Council vacated the 2018 hearing 5 decision due to errors of law after ALJ Henrie failed to consider supplemental 6 evidence that Plaintiff provided. (Id.). 7 A subsequent hearing on remand was held on January 29, 2020, before 8 ALJ Kevin Messer. Plaintiff appeared at the hearing and was represented by 9 his attorney, Laura Krank. (AR at 31). Testimony was taken from Plaintiff 10 11 and Vocational Expert (“VE”) Connie Guillory. (AR at 55-96). On February 11, 2020, ALJ Messer issued an unfavorable decision, 12 concluding that Plaintiff was not disabled based on his capability “of making 13 a successful adjustment to other work that exists in significant numbers in 14 the national economy.” (AR at 31-44). Plaintiff requested Appeals Council 15 review, which was denied by notice on September 15, 2020. (AR at 12). 16 Therefore, ALJ Messer’s February 11, 2020, decision is the final decision of 17 the Commissioner. Having exhausted all administrative remedies, Plaintiff 18 brought this timely civil action, seeking judicial review pursuant to 42 U.S.C. 19 §§ 405(g) and 1383(c)(3). 20 II. DISCUSSION 21 A. Legal Standard 22 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 23 unsuccessful applicants to seek judicial review of a final agency decision of 24 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 25 review is limited in that a denial of benefits will not be disturbed if it is 26 supported by substantial evidence and contains no legal error. Id.; see also 27 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (An 3 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3075 Page 4 of 20 1 “ALJ may discount treating physicians’ opinions that are conclusory, brief, 2 and unsupported by the record as a whole or by objective medical findings.”) 3 (citations omitted). 4 Substantial evidence “is a ‘term of art’ used throughout administrative 5 law to describe how courts are to review agency factfinding.” Biestek v. 6 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 7 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 8 support the agency’s factual determinations.” Id. “[T]he threshold for such 9 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 10 Court] has said, is ‘more than a mere scintilla.’ It means—and means only— 11 ‘such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.’” Id. The Ninth Circuit explains that substantial 13 evidence is “more than a mere scintilla but may be less than a 14 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) 15 (quotation marks and citations omitted), superseded by regulation on other 16 grounds. 17 An ALJ’s decision is reversed only if it “was not supported by 18 substantial evidence in the record as a whole or if the ALJ applied the wrong 19 legal standard.” Id. “To determine whether substantial evidence supports 20 the ALJ’s determination, [the Court] must assess the entire record, weighing 21 the evidence both supporting and detracting from the agency’s conclusion.” 22 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v. 23 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh 24 the evidence or substitute [its] judgment for that of the ALJ.” Id. “The ALJ 25 is responsible for determining credibility, resolving conflicts in medical 26 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). 4 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3076 Page 5 of 20 1 “When the evidence can rationally be interpreted in more than one way, 2 the court must uphold the [ALJ’s] decision.” Mayes, 276 F.3d at 459. Section 3 405(g) permits a court to enter a judgment affirming, modifying or reversing 4 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may 5 also remand the matter to the Social Security Administration for further 6 proceedings. Id. 7 B. 8 In rendering his decision, the ALJ followed the Commissioner’s five-step 9 Summary of the ALJ’s Findings sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, ALJ 10 Messer found that, aside from the period from February 2014 to March 2015, 11 Plaintiff had not engaged in substantial gainful activity since his alleged 12 onset date. (AR at 33-34). ALJ Messer found at step two that Plaintiff had 13 the following severe impairments: 14 17 morbid obesity; degenerative disc disease of the lumbar and cervical spine; diabetes mellitus type 1; degenerative joint disease of the left shoulder; status post left shoulder fracture; lumbar radiculopathy; cervicalgia; peripheral and central vestibular dysfunction; and cerebral concussion. 18 (AR at 34). Next, after considering the entire record, ALJ Messer determined 19 that Plaintiff had the residual functional capacity (“RFC”) to perform light 20 work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following 21 limitations: 15 16 22 23 24 25 occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, or crawl; and frequently perform overhead reaching with the left upper extremity. The claimant must avoid concentrated exposure to extreme heat, and to hazards such as operational control of moving machinery and unprotected heights. 26 27 5 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3077 Page 6 of 20 1 (Id. at 35).3 The ALJ stated that his RFC assessment was based on all the 2 evidence and the extent to which Plaintiff’s symptoms are consistent with the 3 objective medical evidence and other evidence. (Id.). The ALJ also stated 4 that he considered the opinion evidence and prior administrative medical 5 findings in accordance with the requirements of 20 C.F.R. §§ 404.1520(c) and 6 416.920(c). (Id. at 34). The ALJ then proceeded to step four of the sequential evaluation 7 8 process. He determined Plaintiff was unable to perform any past relevant 9 work as a chauffeur or sales route delivery driver, and the vocational expert 10 agreed with that assessment. (AR at 42). Considering Plaintiff’s age, 11 education, work experience, and RFC, ALJ Messer found Plaintiff was 12 “capable of making a successful adjustment to other work that exists in 13 significant numbers in the national economy.” (AR at 43). The ALJ 14 explained that transferability of job skills was not material because the 15 claimant was deemed not disabled. (Id.). For purposes of his step five determination, the ALJ accepted the 16 17 testimony of the VE. (AR at 43). The VE testified that Plaintiff could 18 perform the requirements of representative occupations such as Hand 19 Packager (DOT No. 920.687-018) (light/svp-1), Sub-assembler (DOT No. 20 729.684-054) (light/svp-2), and Inspector (DOT No. 559.687-074) (light/svp-2). 21 (Id.). The VE testified that those positions existed in significant numbers in 22 23 24 25 26 27 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.” See 20 C.F.R. §§ 404.1567 and 416.967. 3 6 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3078 Page 7 of 20 1 the national economy. (Id.). The ALJ, therefore, found that Plaintiff was not 2 disabled since his alleged onset date of September 1, 2011, through the date 3 of the decision on February 11, 2020. (AR at 43-44). 4 C. Issue in Dispute 5 The sole issue presented is whether the ALJ properly evaluated the 6 medical opinion evidence from Plaintiff’s treating physician, Dr. Stuart 7 Kramer, M.D. (“Dr. Kramer”). Plaintiff argues that in formulating the RFC, 8 the ALJ should have weighed the opinion of Dr. Kramer differently, or more 9 specifically, that the ALJ should have better explained his reasons for 10 11 12 affording Dr. Kramer’s medical opinion little weight. (ECF No. 24 at 5-7). 1. The Law Concerning Medical Opinion Evidence The Ninth Circuit distinguishes among the opinions of three types of 13 physicians: (1) those who treat the Plaintiff (“treating physicians”); (2) those 14 who examine but do not treat the Plaintiff (“examining physicians”); and (3) 15 those who neither examine nor treat the Plaintiff (“non-examining 16 physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996), superseded 17 for cases filed on or after March 27, 2017. As a general rule, more weight is 18 given to the opinions of a treating source than to that of a non-treating 19 physician. Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). 20 Likewise, the opinion of an examining physician is typically entitled to 21 greater weight than that of a non-examining physician. Pitzer v. Sullivan, 22 908 F.2d 502, 506 (9th Cir. 1990). 23 For claims filed before March 27, 2017, such as the case here, “the 24 treating source rule” set forth in 20 C.F.R. § 404.1527 applies. See 20 C.F.R. 25 § 404.1527(c). Under those provisions, an ALJ is to weigh medical source 26 opinions according to the following factors: (1) the examining relationship; (2) 27 the length, frequency, nature and extent of the treatment relationship; (3) 7 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3079 Page 8 of 20 1 supportability of the opinion; (4) consistency with the record; (5) 2 specialization of the provider; and (6) other factors a claimant brings to the 3 ALJ’s attention. Id. The ALJ does not need “to make an express statement 4 that [he] considered all the factors outlined in 20 C.F.R. § 404.1527(c).” See 5 Kelly v. Berryhill, 732 F. App’x 558, 562 n.4 (9th Cir. 2018). 6 The ALJ must consider all medical opinion evidence. 20 C.F.R. § 7 404.1527(b). Although the ALJ is not bound by the medical opinion of a 8 treating doctor on the ultimate question of disability, the treating source rule 9 “allowed an ALJ to reject a treating or examining physician’s uncontradicted 10 medical opinion only for ‘clear and convincing reasons,’ and allowed a 11 contradicted opinion to be rejected only for ‘specific and legitimate reasons’ 12 supported by substantial evidence in the record.” Kathy Jean T. v. Saul, No. 13 20cv1090-RBB, 2021 WL 2156179, at *5 (S.D. Cal. May 27, 2021) (citing 14 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)). 15 16 17 18 19 20 21 22 23 24 25 26 27 In Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), the Ninth Circuit held: If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-supported’ or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the ‘length of the treatment relationship and the frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment relationship’ between the patient and the treating physician. Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. at 631 (internal citations omitted). “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 8 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3080 Page 9 of 20 1 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 2 747, 751 (9th Cir. 1989) (citation omitted) (“We afford greater weight to a 3 treating physician’s opinion because ‘he is employed to cure and has a greater 4 opportunity to know and observe the patient as an individual.’”). 5 6 2. Dr. Kramer’s Medical Opinion On January 21, 2020, Plaintiff’s treating physician, Dr. Kramer, 7 completed a medical source statement, and made numerous findings that the 8 ALJ did not find controlling. (AR at 2725-27). Dr. Kramer concluded that 9 Plaintiff only had the capacity to sit for 15-20 minutes at one time; stand and 10 walk 5 minutes at one time; sit 4 hours in an 8-hour day; stand and/or walk 4 11 hours in an 8-hour day; take an unscheduled break every hour for 5-10 12 minutes; rarely hold his head up in a static position or twist; never stoop 13 (bend), crouch/squat, or climb ladders; lift and carry 10-20 pounds 14 occasionally, and less than 10 pounds frequently; and was limited in the use 15 of his hands, fingers, and arms from to 25% to 40% of an 8-hour workday. 16 (Id.). Dr. Kramer anticipated that the Plaintiff’s impairments or treatment 17 would cause him to be absent from work more than 4 days per month. (Id.). 18 The ALJ acknowledged Dr. Kramer’s ongoing treatment of Plaintiff, 19 including the doctor’s role in Plaintiff’s workers’ compensation claims, and 20 then the ALJ afforded only some weight to those opinions finding them (1) 21 not supported by Dr. Kramer’s own records, (2) unsupported by the totality of 22 the evidence, (3) too restrictive in light of the objective medical records, and 23 (4) overly reliant on Plaintiff’s subjective reports of symptoms and 24 limitations. (AR at 38-40). 25 Plaintiff argues the ALJ “did not provide any discussion or analysis in 26 assigning little weight to Dr. Kramer’s opinion.” (ECF No. 24 at 6). Plaintiff 27 interprets the ALJ’s findings as “conclusions without drawing any 9 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3081 Page 10 of 20 1 distinctions or specific inconsistencies between Dr. Kramer’s opinion and the 2 medical evidence.” (Id.). That, however, simply is not the case. 3 4 3. The ALJ Provided Specific and Legitimate Reasons for Affording Dr. Kramer’s Medical Opinion Little Weight 5 The ALJ’s opinion is replete with “specific and legitimate reasons” for 6 discounting Dr. Kramer’s opinion. The ALJ took issue with inconsistencies 7 between Dr. Kramer’s own records and his opinion, the way Dr. Kramer’s 8 opinions conflicted with other doctors’ medical reports and objective test 9 results, and several aspects of Plaintiff’s statements when compared to 10 evidence of his physical abilities and daily activities. The Court considers 11 each seriatim. 12 13 14 a. Dr. Kramer’s Medical Records Were Not Consistent with His Restrictive Limitations The ALJ pointed out incongruity between Dr. Kramer’s own treatment 15 records and the restrictive limitations he recommended. For example, 16 despite Plaintiff’s subjective complaints to Dr. Kramer, the doctor’s April 8, 17 2016, physical examination of Plaintiff, as well as several prior examinations, 18 revealed numerous normal findings. (See AR at 1275, 1285, 1289, 1319, 19 1331, 1462, 2398-99). Dr. Kramer opined that Plaintiff should be precluded 20 from “very heavy work” to prevent potentially dangerous hypoglycemic 21 episodes, with which the ALJ acknowledged and agreed, and thus restricted 22 Plaintiff’s lifting to 20 pounds. (AR at 40, 1279). Yet, Dr. Kramer’s opinion 23 limited Plaintiff to lifting and carrying 10 pounds frequently. That 24 inconsistency was one stated reason for affording only some weight to Dr. 25 Kramer’s opinion. (AR at 40). 26 As to Dr. Kramer’s medical reports for Plaintiff from 2016 to 2019, the 27 ALJ noted that Plaintiff had reported conditions of blackouts, dizziness, and 10 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3082 Page 11 of 20 1 severe neck and low-to-mid back pain and headaches. (AR at 40, 2601-76). 2 ALJ Messer explained, however, that those records did not provide 3 corresponding findings concerning Plaintiff’s range of motion, sensory 4 abilities, motor strength, or deep tendon reflexes in order to support a 5 disabling impairment. (Id. at 38-39). Other doctors did include such findings 6 in their reports, but their findings did not support such extreme restrictions. 7 8 9 b. Dr. Kramer’s Opinion Was Not Consistent with the Totality of the Medical Record The ALJ pointed to many specific medical reports for Plaintiff that were 10 inconsistent with Dr. Kramer’s restrictive opinion. For example, doctors’ 11 reports from ENT Associates of San Diego, who examined Plaintiff from April 12 3, 2014, through July 10, 2019, recorded multiple physical examinations of 13 Plaintiff that demonstrated he had “a normal gait and stance and no edema 14 or cyanosis of the extremities.” (AR at 2261, 2307, 2320-21, 2323-24, 2333, 15 2337-38, 2341-42, 2346, 2351-52). The ALJ explained that those records were 16 inconsistent with a finding of significant limitations in walking and standing, 17 but they aptly supported an RFC of light work. (AR at 38). 18 The ALJ further explained that another physician, neurologist Dr. 19 Thomas A. Schweller, M.D., issued a neurological consultation report after 20 examining Plaintiff on December 19, 2018, and monitoring Plaintiff through 21 July 2019. That 2018 exam revealed unremarkable findings, which also did 22 not support significant limitations on sitting, standing, and walking as Dr. 23 Kramer suggested. (AR at 2251-55, 2261). Those medical examinations are 24 many of the same reports that Dr. Kramer used in formulating his opinion. 25 (AR at 2399-2419). 26 27 Dr. Schweller also recorded that Plaintiff’s vital signs were normal, and his mental status revealed an ability to remember two of three objects, 11 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3083 Page 12 of 20 1 confabulating a pear. (Id.). Plaintiff also remembered the street address of 2 the President; his affect was appropriate, and communication skills were 3 intact. (Id.). Plaintiff’s station and gait were unremarkable, including heel 4 walking, toe walking, tandem walking, and Romberg testing. (AR at 2253). 5 Plaintiff’s cranial nerves II through XII were within normal limits (noting 6 slight discomfort with optic kinetic testing). (Id. at 2254). Plaintiff’s motor 7 strength was 5/5 in the upper and lower extremities, and his Jamar grip on 8 the right (dominant extremity) was 50 pounds and left 40 pounds. (Id.). 9 Sensory findings revealed decreased touch along both palms and the anterior 10 thighs, and deep tendon reflexes were 1+ and symmetric at both biceps, both 11 brachioradialis, and both triceps, with both knee jerks and ankle jerks 12 absent. (Id. at 2253-54). The plantar responses were flexor bilaterally. (AR 13 at 38). Plaintiff’s neck range of motion was full, and lumbar range revealed 14 tenderness in lumbar paraspinal muscles. (AR at 38, 2252-55). Dr. 15 Schweller continued to assess Plaintiff through July 24, 2019, finding normal 16 and clear vitals, general alert assessments, clear eyes and lungs, no jugular 17 venous distention, a regular heart, and no clubbing, cyanosis or significant 18 edema. (AR at 2282). 19 The ALJ explained that a February 22, 2019, MRI of Plaintiff’s brain 20 was unmarkable, with “No evidence of hemorrhage, mass, or acute infarction. 21 No other parenchymal abnormality. Ventricles within normal limits.” (AR at 22 2737). ALJ Messer also referenced diagnostic imaging of Plaintiff’s spine 23 that took place on December 12, 2019. (AR at 2736). Those findings showed 24 that Plaintiff’s alignment was “anatomic” with “No abnormal motion. No 25 fracture. No prevertebral soft tissue swelling.” (AR at 38, 2736). The ALJ 26 cited those studies to conclude that Plaintiff’s spine did not show significant 27 objective findings to support a more restrictive RFC. (AR at 40). 12 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3084 Page 13 of 20 1 The ALJ also cited earlier medical reports concerning Plaintiff’s cervical 2 and lumbar spine impairments and concluded that those records also did not 3 establish significant functional limitations in walking, standing and other 4 activities. Dr. John Cleary, M.D., examined Plaintiff three times before he 5 provided a March 26, 2012, neurosurgical consultation for him; those prior 6 appointments were in 1998, 2003, and 2010. (AR at 37, 644, 648). Dr. 7 Cleary’s 2012 opinion relied in part upon a diagnosis from an MRI that Dr. J. 8 Kaiser ordered on October 28, 2010, which found only mild to moderate 9 multi-level facet arthropathy. (AR at 648). The ALJ noted that Plaintiff’s 10 lumbar spine shoulder flexion was 80 degrees (with 120 being normal). (AR 11 at 647). Lateral flexion and rotation to either side was full. (AR at 646-47). 12 Concerning Plaintiff’s diabetes, in 2012, Plaintiff was receiving 13 Humalog by pump, and his blood sugars were under control. (Id. at 645). 14 During the same time-period, a medical report for Plaintiff reflected that he 15 was walking twice a week for an hour. (AR at 706). 16 The ALJ cited six weeks of acupuncture treatment that Plaintiff had 17 with the Shandong Acupuncture Center in August 2019, where reports 18 showed that Plaintiff complained of constant neck pain and back pain, with 19 muscle spasm and constant pain radiation across the low back and into his 20 buttocks and lower extremities. (AR at 2741). Plaintiff told them his pain 21 was exacerbated by prolonged sitting, standing, walking and lifting. (Id. at 22 2742). Despite his complaints, Plaintiff reported that he was walking 100 23 yards, and he denied weakness in the lower extremities. (Id.). That 2019 24 physical exam revealed no edema, clubbing, or cyanosis of the extremities; 25 Plaintiff had a 5/5 motor strength in the lower extremities, full range of 26 motion and no tenderness in the thoracic spine, and 20% limited range of 27 motion on extension of the cervical spine. (AR at 2744). 13 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3085 Page 14 of 20 1 Plaintiff’s Licensed Acupuncturist, Ying Jiang, noted moderate 2 tenderness to palpation along Plaintiff’s upper trapezius muscles, moderate 3 tenderness bilaterally around the thoracic spine region, moderate tenderness 4 to palpation in the low back, muscle spasms bilaterally, and range of motion 5 at the lower lumbar region limited 25% forward, and in backward and lateral 6 bending. (Id.). The acupuncturist diagnosed Plaintiff with low back pain, 7 radiculopathy in the lumbar region and cervicalgia, and ordered acupuncture 8 twice a week, for 6 weeks. (Id. at 2747). After those sessions, the “frequency 9 and intensity” of Plaintiff’s chronic neck and lower back pain improved 15%. 10 (Id.). After an additional month of treatment, Plaintiff’s muscle strength in 11 both lower extremities was 5/5. (Id. at 2749). 12 ALJ Messer considered Plaintiff’s impairments related to peripheral 13 and central vestibular dysfunction and cerebral concussion causing dizziness 14 and blackouts, and a neurological exam from September 2015 that reported a 15 normal EEG, no cranial nerve abnormalities, normal sensation to pain, no 16 motor function abnormalities, no gait and stance abnormalities, normal 17 reflexes of the biceps, brachioradialis, triceps, biceps, and knees, and no 18 peripheral nerve problems. (AR at 2364-65). The medical recommendations 19 included vestibular rehabilitation, Xanax, and a return appointment. (Id.). 20 The record also cites to appointments with ENT, Dr. Tarek Hassanein, 21 in May 2017, which affirmed that “Cranial Nerves II-XII” were “grossly intact 22 and symmetrical,” with gait and station normal as well. (AR at 2333). ALJ 23 Messer further explained that in July 2019, Dr. Jeremiah J. Moles, M.D., an 24 ENT, similarly concluded that all testing “including cardiology work up, 25 carotid, and vertebral arteries” were normal, and “MRI of IAC, brain, and C- 26 spine are normal.” (AR at 2346). The ALJ cited and concluded that multiple 27 14 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3086 Page 15 of 20 1 physical exams “showed normal HEENT4 (including normal ability to 2 communicate)” and “no neurological findings to support disabling limitations 3 due to the peripheral and central vestibular dysfunction and cerebral 4 concussion.” (AR at 40). 5 The ALJ incorporated findings from December 12, 2014, through 6 September 11, 2015, reflecting that Plaintiff had an unsteady tandem gait, 7 sensation loss of vibration, and a positive Romberg’s sign (i.e., loss of balance 8 test when a claimant stands still). (AR at 2365-66). The ALJ credited Dr. 9 Kramer’s environmental limitations, secondary to Plaintiff’s hypoglycemic 10 episodes. (AR at 39-40). He explained that that he had incorporated all such 11 findings into his RFC. (Id. at 40). And, while the state agency medical 12 consultants opined that Plaintiff could perform medium work with fewer 13 restrictions, ALJ Messer rejected those opinions because the overall medical 14 evidence was more consistent with an RFC for light work, and those opinions 15 were more remote in time. (Id.). The ALJ expressly recognized that 16 Plaintiff’s conditions had worsened since those state examinations. (Id.). The ALJ said that Plaintiff’s RFC considered his workers’ compensation 17 18 impairments, which concluded that he would be “precluded from the 19 performance of very heavy work5 . . . not work at heights or around 20 dangerous equipment, including moving vehicles [and] to prevent diabetes 21 aggravation, any employment will need to be in an environment which does 22 not expose the claimant to undue emotional stress.” (AR at 1279). The 23 24 HEENT stands for the head, ears, eyes, nose, and throat portion of the doctor’s examination. 5 Heavy work involves “lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds.” See 20 C.F.R. §§ 404.1567 and 416.967. 4 25 26 27 15 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3087 Page 16 of 20 1 workers’ compensation whole-person impairment rating was 35%. (AR at 2 1042, 1088). The ALJ explained, however, that on July 18, 2016, Plaintiff’s 3 treating doctor, Blake Thompson, M.D., concluded that Plaintiff’s whole 4 person impairment was only 4%. (AR at 1042, 1188). The ALJ found Dr. 5 Thompson’s report more credible than the worker’s compensation evaluation 6 because Dr. Thompson made a thorough review of the medical record, which 7 was included in his report, and it supported the limitation on Plaintiff’s 8 ability to lift at least 20 pounds. (Id.). 9 Dr. Thompson’s subsequent April 25, 2017, examination showed that 10 Plaintiff’s shoulder surgery was well-healed, and he had regained good 11 strength, with mild tenderness and a decreased range of motion. (AR at 41, 12 1188, 1245). The ALJ explained that workers’ compensation 13 recommendations were not dispositive of Plaintiff’s capability to work 14 because they are calculated in a different manner than social security 15 benefits. (AR at 41). The ALJ accommodated the decreased range of motion 16 by limiting Plaintiff to frequent overhead reaching with the left upper 17 extremity. (AR at 35). The ALJ also discussed findings and reports related 18 to Plaintiff’s obesity and his few psychiatric symptoms, noting that the RFC 19 more than adequately accounted for those issues. (AR at 39-41). 20 In summary, the ALJ has explained and sufficiently established that he 21 considered all the medical opinion evidence in accordance with the 22 requirements of §§ 404.1527 and 416.927 (opinion evidence for claims filed 23 before March 27, 2017). The contradictory opinions of other treating and 24 examining physicians, as well as the objective medical test results cited, are 25 well articulated and supported reasons for affording Dr. Kramer’s opinion 26 only some weight. See Weiss v. Astrue, No. 12CV0719-CAB WMC, 2013 WL 27 4517863, at *11 (S.D. Cal. Aug. 19, 2013) (“Contrary opinions of examining 16 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3088 Page 17 of 20 1 physicians may serve as additional specific and legitimate reasons for 2 assigning a lower weight to the opinion of a treating physician.”) (citing 3 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (“Although the 4 contrary opinion of a non-examining medical expert does not alone constitute 5 a specific, legitimate reason for rejecting a treating or examining physician’s 6 opinion, it may constitute substantial evidence when it is consistent with 7 other independent evidence in the record.”). 8 c. 9 10 Treatment Gaps and Inconsistent Reports About Plaintiff’s Physical Abilities The ALJ also took issue with significant gaps in Plaintiff’s history of 11 treatment. (AR at 37). Notably, in April 2016, Plaintiff reported he had not 12 seen a pain specialist since 2013. (AR at 1274). The ALJ also described how 13 Plaintiff’s physical capabilities exceeded his reported limitations. (AR at 37). 14 Contrary to the limitations Dr. Kramer suggested, Plaintiff testified that in 15 March 2017, he traveled by plane across the country to see his nephew 16 perform at Carnegie Hall and that Plaintiff needed no assistance during that 17 trip, except for help lifting his suitcase. (AR at 113-15). Plaintiff also 18 described traveling 5.5 hours by car to Mexico without incident in October 19 2017. (Id.). 20 The ALJ specified that evidence of Plaintiff’s physical abilities and 21 activity level contributed to affording Dr. Kramer’s opinion only some weight. 22 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (affirming 23 ALJ’s crediting of objective evidence, contradictory statements that plaintiff 24 offered regarding his capabilities, and factual evidence of plaintiff’s 25 functional abilities in rejecting treating physician’s opinion), superseded on 26 other grounds by 20 C.F.R. § 404.1502(a). 27 17 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3089 Page 18 of 20 1 d. Plaintiff’s Activity Level 2 ALJ Messer stated that, throughout the period under adjudication, 3 Plaintiff reported that he had been able to complete a wide range of daily 4 living activities that supported light work, such as taking care of his basic 5 needs, doing household chores, including laundry and cooking, as well as 6 walking, sitting for long hours, traveling, driving, watching television, and 7 grocery shopping, while also having gainful activity during one of the years at 8 issue, February 2014 to March 2015. (AR at 33, 42, 113-14, 706, 932-35, 993). 9 The ALJ pointed out that in a January 31, 2014, adult function report, 10 Plaintiff self-reported that he could use a computer, do paperwork, watch 11 television, make telephone calls as needed, pick-up the grandkids from 12 school, wash dishes, do laundry and some household cleaning, prepare simple 13 meals, and handle his personal care and hygiene. (AR at 42, 521-28). 14 Although Plaintiff was laid off work in 2011, the ALJ recognized that 15 was not because of an impairment, and that Plaintiff began looking for and 16 acquired a more flexible position as a limousine driver. (Id. at 37, 108-09). 17 Plaintiff’s ability to perform easier work than he historically did, after his 18 alleged onset date, was “one factor of many” the ALJ said showed Plaintiff 19 could perform work at substantial gainful activity levels. (AR at 37). 20 Conflict between a medical opinion and a plaintiff’s activity level is a 21 valid basis for rejecting a medical opinion. 20 C.F.R. § 404.1520c(b)(2); 22 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (inconsistencies 23 between the limitations a treating physician assigned and a claimant’s daily 24 activities “may justify rejecting a treating provider’s opinion.”) (citing Morgan 25 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600–02 (9th Cir. 1999) 26 (considering an inconsistency between a treating physician’s opinion and a 27 claimant’s daily activities as a specific and legitimate reason to discount the 18 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3090 Page 19 of 20 1 treating physician’s opinion)); Rollins v. Massanari, 261 F.3d 853, 856 (9th 2 Cir. 2001) (finding a medical source’s proposed restrictions inconsistent with 3 the level of activity in which plaintiff engaged); see also 20 C.F.R. § 4 404.1529(c)(3)(i) (ALJ may consider daily activities); Molina, 674 F.3d at 1112 5 (ALJ may consider “whether the claimant engages in daily activities 6 inconsistent with the alleged symptoms”). e. 7 8 9 Evidence of Plaintiff’s Exaggerated Statements The ALJ also explained that Plaintiff’s allegations and testimony were inconsistent with the totality of the record, highly suggesting Plaintiff 10 exaggerated his allegations of cognitive and physical limitations.6 (AR at 42). 11 The ALJ appropriately concluded that Dr. Kramer’s opinion was overly 12 reliant on Plaintiff’s subjective symptom reports where multiple physical 13 examinations revealed results and conclusions that were inconsistent with 14 those subjective reports, as described throughout the ALJ’s decision and 15 summarized herein. See Salerno v. Astrue, 266 F. App’x 570, 573 (9th Cir. 16 2008) (the ALJ appropriately gave less weight to treating doctor’s assessment 17 of claimant’s RFC because it was premised on claimant’s “exaggerated” and 18 “not fully credible” subjective complaints) (citing Fair v. Bowen, 885 F.2d 597, 19 604–05 (9th Cir. 1989) (Where a treating physician’s medical opinion is based 20 on the subjective complaints of the claimant and the ALJ has found the 21 claimant’s subjective reports of pain not fully credible, the ALJ is justified in 22 23 24 25 26 27 Plaintiff does not challenge the ALJ’s negative credibility finding; therefore, any challenge to that finding is waived. Goodwin v. Colvin, No. 2:15-CV00319-MKD, 2016 WL 7478966, at *5 (E.D. Wash. Dec. 29, 2016) (citing Hughes v. Astrue, 357 F. App’x 864, 866 (9th Cir. 2009) (holding failure to challenge the ALJ’s credibility finding in the district court waives any challenge to that finding on appeal). 6 19 21cv0643-MDD Case 3:21-cv-00643-MDD Document 25 Filed 09/08/22 PageID.3091 Page 20 of 20 1 discounting the treating physician’s opinion.)); see also Britton v. Colvin, 787 2 F.3d 1011, 1014 (9th Cir. 2015) (ALJ properly discounted medical expert’s 3 opinion that was based on claimant’s exaggerated testimony). 4 On this record, the Court concludes the ALJ did not err when he gave 5 only some weight to Dr. Kramer’s opinion because the ALJ provided specific 6 and legitimate reasons for doing so based on substantial evidence in the 7 record as expressly stated herein. See generally Montoya v. Colvin, 649 F. 8 App’x 429, 430 (9th Cir. 2016) (The ALJ gave sufficiently “specific and 9 legitimate reasons” for giving little weight to the opinion of the plaintiff’s 10 treating physician). 11 III. CONCLUSION 12 Based on the foregoing, the Court ORDERS the Joint Motion be 13 GRANTED in favor of Defendant. Accordingly, the final decision of the 14 Commissioner of Social Security is AFFIRMED. 15 16 IT IS SO ORDERED. Dated: September 8, 2022 17 18 19 20 21 22 23 24 25 26 27 20 21cv0643-MDD

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