Malinosky v. Commissioner of Social Security, No. 1:2021cv03060 - Document 23 (E.D. Wash. 2022)

Court Description: ORDER denying Plaintiff's 17 Motion for Summary Judgment and granting Defendant's 21 Motion for Summary Judgment. Signed by Judge Thomas O. Rice. (BF, Paralegal)
Download PDF
Malinosky v. Commissioner of Social Security Case 1:21-cv-03060-TOR Doc. 23 ECF No. 23 filed 01/07/22 PageID.790 Page 1 of 22 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JEANNE M., NO: 1:21-CV-3060-TOR Plaintiff, 8 v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 BEFORE THE COURT are the parties’ cross motions for summary 13 14 judgment (ECF Nos. 17, 21). The motions were submitted for consideration 15 without oral argument. The Court has reviewed the administrative record and the 16 parties’ completed briefing and is fully informed. For the reasons discussed below, 17 Plaintiff’s Motion for Summary Judgment (ECF No. 17) is DENIED, and 18 Defendant’s Motion for Summary Judgment (ECF No. 21) is GRANTED. 19 // 20 // ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 1:21-cv-03060-TOR 1 2 3 4 ECF No. 23 filed 01/07/22 PageID.791 Page 2 of 22 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited: the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 9 relevant evidence that “a reasonable mind might accept as adequate to support a 10 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 11 substantial evidence equates to “more than a mere scintilla[,] but less than a 12 preponderance.” Id. In determining whether this standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. If the evidence in the record “is 17 susceptible to more than one rational interpretation, [the court] must uphold the 18 ALJ’s findings if they are supported by inferences reasonably drawn from the 19 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted). 20 Further, a district court “may not reverse an ALJ’s decision on account of an error ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.792 Page 3 of 22 1 that is harmless.” Id. An error is harmless “where it is inconsequential to the 2 [ALJ’s] ultimate nondisability determination.” Id. at 1115 (quotation and citation 3 omitted). The party appealing the ALJ’s decision generally bears the burden of 4 establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 5 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 A claimant must satisfy two conditions to be considered “disabled” within 7 the meaning of the Social Security Act. First, the claimant must be “unable to 8 engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of not less than twelve 11 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 12 “of such severity that he is not only unable to do his previous work[,] but cannot, 13 considering his age, education, and work experience, engage in any other kind of 14 substantial gainful work which exists in the national economy.” 42 U.S.C. 15 § 423(d)(2)(A). 16 The Commissioner has established a five-step sequential analysis to 17 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 18 404.1520(a)(4)(i)–(v). At step one, the Commissioner considers the claimant’s 19 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 20 “substantial gainful activity,” the Commissioner must find that the claimant is not ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 1:21-cv-03060-TOR 1 2 ECF No. 23 filed 01/07/22 PageID.793 Page 4 of 22 disabled. 20 C.F.R. § 404.1520(b). If the claimant is not engaged in substantial gainful activities, the analysis 3 proceeds to step two. At this step, the Commissioner considers the severity of the 4 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 5 from “any impairment or combination of impairments which significantly limits 6 [his or her] physical or mental ability to do basic work activities,” the analysis 7 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 8 does not satisfy this severity threshold, however, the Commissioner must find that 9 the claimant is not disabled. Id. 10 At step three, the Commissioner compares the claimant’s impairment to 11 several impairments recognized by the Commissioner to be so severe as to 12 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 13 404.1520(a)(4)(iii). If the impairment is as severe, or more severe than one of the 14 enumerated impairments, the Commissioner must find the claimant disabled and 15 award benefits. 20 C.F.R. § 404.1520(d). 16 If the severity of the claimant’s impairment does meet or exceed the severity 17 of the enumerated impairments, the Commissioner must pause to assess the 18 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 19 defined generally as the claimant’s ability to perform physical and mental work 20 activities on a sustained basis despite his or her limitations (20 C.F.R. § ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 1:21-cv-03060-TOR 1 2 ECF No. 23 filed 01/07/22 PageID.794 Page 5 of 22 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. At step four, the Commissioner considers whether, in view of the claimant’s 3 RFC, the claimant is capable of performing work that he or she has performed in 4 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 5 capable of performing past relevant work, the Commissioner must find that the 6 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 7 performing such work, the analysis proceeds to step five. 8 At step five, the Commissioner considers whether, in view of the claimant’s 9 RFC, the claimant is capable of performing other work in the national economy. 10 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 11 must also consider vocational factors such as the claimant’s age, education and 12 work experience. Id. If the claimant is capable of adjusting to other work, the 13 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 14 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 15 analysis concludes with a finding that the claimant is disabled and is therefore 16 entitled to benefits. Id. 17 The claimant bears the burden of proof at steps one through four above. 18 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the 19 analysis proceeds to step five, the burden shifts to the Commissioner to establish 20 that (1) the claimant is capable of performing other work; and (2) such work ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.795 Page 6 of 22 1 “exists in significant numbers in the national economy.” 20 C.F.R. § 416.1560(c); 2 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 3 4 ALJ’S FINDINGS Plaintiff applied for a period of disability and disability insurance benefits on 5 September 25, 2018, alleging disability beginning November 26, 2016. Tr. 15. 6 The claim was denied initially on March 1, 2019, and upon reconsideration on May 7 29, 2019. Id. Plaintiff requested a hearing. Id. A telephonic hearing was held 8 before an administrative law judge (“ALJ”) on August 4, 2020. Id. On August 31, 9 2020, the ALJ denied Plaintiff’s claim. Tr. 30. The Appeals Council denied 10 review on March 9, 2021. Tr. 1. 11 As a threshold matter, the ALJ found Plaintiff met the insured status 12 requirements of the Social Security Act through December 31, 2021. Tr. 17. At 13 step one, the ALJ found that Plaintiff had not engaged in substantial gainful 14 activity since November 26, 2016, the alleged onset date. Id. At step two, the ALJ 15 found that Plaintiff had the following severe impairments: fibromyalgia; congenital 16 heart defect, causing premature ventricular contractions; post-traumatic stress 17 disorder; dysthymia; and panic disorder. Id. At step three, the ALJ found Plaintiff 18 did not have an impairment or combination of impairments that meets or medically 19 equals the severity of one of the listed impairments. Tr. 18. The ALJ then 20 determined Plaintiff has the residual functioning capacity to perform light work ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 1:21-cv-03060-TOR 1 2 3 4 5 6 7 8 ECF No. 23 filed 01/07/22 PageID.796 Page 7 of 22 except as follows: The claimant is able to lift and/or carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk about 6 hours in an 8-hour workday and can sit about 6 hours. She can frequently climb ramps and stairs but only occasionally ladders, ropes, and scaffolds. She can occasionally stoop and frequently balance, kneel, crouch, and crawl. She should have only occasional exposure to extreme cold, excessive vibrations, hazardous machinery, and unprotected heights. She is able to understand, remember, and carryout simple, routine instructions. She can have brief and superficial interactions with supervisors, coworkers, and the public. Tr. 20. At step four, the ALJ found Plaintiff could not perform past relevant work. 9 Tr. 28. At step five, the ALJ found that, considering Plaintiff’s age, education, 10 work experience, residual functional capacity, and testimony from a vocational 11 expert, there were other jobs that existed in significant numbers in the national 12 economy that Plaintiff could perform, such as a small products assembler, marking 13 clerk, and office helper. Tr. 28–29. The ALJ concluded Plaintiff was not under a 14 disability, as defined in the Social Security Act, from November 26, 2016, the 15 alleged onset date, through August 31, 2020, the date of the ALJ’s decision. Tr. 16 29–30. 17 ISSUES 18 Plaintiff seeks judicial review of the ALJ’s final decision denying her 19 disability insurance benefits under Title II of the Social Security Act. Plaintiff 20 raises the following issues: ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 1:21-cv-03060-TOR 1 4 7 PageID.797 Page 8 of 22 testimony; and 2. Whether the ALJ properly evaluated the medical opinion evidence. ECF No. 17 at 4, at 17. DISCUSSION 5 6 filed 01/07/22 1. Whether the ALJ properly considered Plaintiff’s subjective symptom 2 3 ECF No. 23 A. Plaintiff’s Subjective Symptom Testimony Plaintiff contends the ALJ failed to provide clear and convincing reasons for 8 rejecting Plaintiff’s subjective symptom testimony. ECF Nos. 17 at 17; 22 at 6. 9 An ALJ engages in a two-step analysis to determine whether to discount a 10 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 11 1119029, at *2. “First, the ALJ must determine whether there is ‘objective 12 medical evidence of an underlying impairment which could reasonably be 13 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at 14 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 15 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 16 be expected to cause the severity of the symptom [the claimant] has alleged; [the 17 claimant] need only show that it could reasonably have caused some degree of the 18 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 19 1028, 1035–36 (9th Cir. 2007)). 20 Second, “[i]f the claimant meets the first test and there is no evidence of ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.798 Page 9 of 22 1 malingering, the ALJ can only reject the claimant’s testimony about the severity of 2 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 3 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 4 omitted). General findings are insufficient; rather, the ALJ must identify what 5 symptom claims are being discounted and what evidence undermines these claims. 6 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 7 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 8 explain why he or she discounted claimant’s symptom claims). “The clear and 9 convincing [evidence] standard is the most demanding required in Social Security 10 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 11 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 12 Factors to be considered in evaluating the intensity, persistence, and limiting 13 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 14 duration, frequency, and intensity of pain or other symptoms; (3) factors that 15 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 16 side effects of any medication an individual takes or has taken to alleviate pain or 17 other symptoms; (5) treatment, other than medication, an individual receives or has 18 received for relief of pain or other symptoms; (6) any measures other than 19 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 20 any other factors concerning an individual’s functional limitations and restrictions ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.799 Page 10 of 22 1 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7–8; 20 C.F.R. 2 § 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 3 individual’s record,” “to determine how symptoms limit ability to perform work- 4 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 5 The ALJ found Plaintiff’s impairments could reasonably be expected to 6 cause the alleged symptoms; however, Plaintiff’s statements concerning the 7 intensity, persistence, and limiting effects of those symptoms were not entirely 8 consistent with the evidence. Tr. 21. In arriving at this conclusion, the ALJ 9 considered several of the factors described above. 10 As to Plaintiff’s daily activities, the ALJ noted Plaintiff acknowledged she 11 could care for her young son and their pets. Tr. 21. Plaintiff was also able to 12 perform personal care tasks, prepare meals, complete basic housework, drive a car, 13 walk, and shop in stores. Id. Plaintiff reported meeting other new moms at the 14 library and socializing with them frequently. Tr. 24. Plaintiff also attended a 15 mom’s group and story time at the library. Id. While the Ninth Circuit has 16 cautioned against reliance on “certain daily activities, such as grocery shopping, 17 driving a car, or limited walking for exercise” to discount a plaintiff’s symptom 18 allegations, the ALJ here considered other factors and found additional reasons for 19 discrediting Plaintiff’s subjective symptom testimony. Vertigan v. Halter, 260 20 F.3d 1044, 1050 (9th Cir. 2001). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 1:21-cv-03060-TOR 1 ECF No. 23 filed 01/07/22 PageID.800 Page 11 of 22 As to the intensity and persistence of Plaintiff’s impairments, the ALJ found 2 the objective medical evidence did not support the degree of impairment Plaintiff 3 alleges. Tr. 21. Plaintiff alleges an onset date of November 26, 2016, but the ALJ 4 noted the medical records did not reflect treatment related to Plaintiff’s cardiac 5 impairments prior to May 2017 or for her musculoskeletal issues prior to 6 December 2017. Tr. 21. Additionally, Plaintiff denied back pain, joint pain, and 7 headaches during a May 2017 visit and did not appear in acute distress, presented 8 with normal motor strength and tone, and normal movement of all extremities. Id. 9 One month later, Plaintiff again denied dyspnea, joint pain, or muscle weakness. 10 Id. In July 2017, Plaintiff denied chronic pain or headache and her physical exam 11 revealed normal findings. Id. Despite alleging neck pain and headaches, exam 12 findings revealed intact cranial nerves, negative Tinel’s and Phanel’s bilaterally, 13 and minimal facet arthrosis and disc desiccation. Tr. 21–22. Additionally, 14 imaging of Plaintiff’s lumbar and cervical spine was unremarkable. Tr. 22. 15 Finally, the ALJ observed that since October 2018, Plaintiff’s treatment has 16 consisted primarily of infrequent visits to one care provider, and during those 17 visits, she reported few physical complaints other than worsening fibromyalgia 18 during the COVID-19 pandemic; the records did not reflect ongoing complaints of 19 other physical pain or headaches. Id. Specifically, in January, March, and 20 September 2019, Plaintiff was noted to have normal range of motion and strength ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.801 Page 12 of 22 1 with no tenderness or swelling. Tr. 22. Similarly, a February 2020 examination 2 showed no tenderness or swelling. Id. While an ALJ may not discredit a 3 claimant’s symptom testimony and deny benefits solely because the degree of the 4 symptoms alleged is not supported by objective medical evidence, such objective 5 medical evidence is still a relevant factor. Rollins v. Massanari, 261 F.3d 853, 857 6 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346–47 (9th Cir. 1991); Fair v. 7 Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676, 680 8 (9th Cir. 2005). 9 Regarding the type, dosage, efficacy, and side effects of any medication 10 Plaintiff took to alleviate her symptoms, the ALJ noted Plaintiff’s mental health 11 symptoms were controlled with medication. Tr. 22–25. For example, in March 12 2017, Plaintiff was prescribed Ativan to help with her sleep and anxiety. Tr. 23. 13 Plaintiff later reported she could not sleep unless she took the Ativan. Tr. 24. In 14 June 2017, Plaintiff was prescribed sertraline and hydroxyzine to address her 15 depression. Id. Plaintiff reported improved symptoms the following month. Id. 16 In October 2018, Plaintiff was prescribed Paxil and reported some success. Tr. 22, 17 24. Throughout 2019, Plaintiff also took Lorazepam for anxiety and reported 18 improved symptoms. Tr. 25. More recently, Plaintiff was prescribed naltrexone in 19 June 2020 for her fibromyalgia and reported no complications. Tr. 22. 20 “Impairments that can be controlled effectively with medication are not disabling.” ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.802 Page 13 of 22 1 Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) (citations omitted). 2 Relatedly, the ALJ considered factors that precipitated or aggravated 3 Plaintiff’s limitations. In particular, the ALJ noted that Plaintiff’s medical records 4 reflected success with medication, but also indicated Plaintiff was resistant to 5 medication and held “very anti-drug” opinions, often switching or discontinuing 6 her medication after short periods of time. Tr. 23–24. To illustrate, Plaintiff was 7 prescribed Paxil for her mental health conditions in October 2018 and reported 8 sleeping, feeling calmer, and was not crying. Tr. 22. However, one week later, 9 Plaintiff requested she be switched to Cymbalta. Id. One week after switching to 10 Cymbalta, Plaintiff reported having difficulty sleeping and requested she be 11 switched back to Paxil. Id. In June 2019, Plaintiff complained that Paxil was 12 causing her to gain weight and requested a prescription for Zoloft. Tr. 22. 13 Additionally, Plaintiff took Ativan to help her sleep, and reported improved 14 symptoms, but self-discontinued the medication in July 2018. Tr. 24. At least one 15 care provider expressed concern about Plaintiff’s self-discontinuance of 16 medication. Id. 17 The ALJ also considered other treatments or measures Plaintiff tried to 18 reduce her symptoms. Plaintiff reported having success with an anti-inflammatory 19 diet in May 2018. Tr. 23. In September 2018, Plaintiff reported improved 20 symptoms after losing weight. Id. Throughout the relevant period, Plaintiff also ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.803 Page 14 of 22 1 tried naturopathic treatments, and had tried chiropractic and acupressure treatments 2 in the past. Tr. 21–22. Plaintiff sought counseling for her anxiety, which she 3 stated helped control the anxiety. Tr. 24. The Ninth Circuit has “previously 4 indicated that evidence of conservative treatment is sufficient to discount a 5 claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 6 F.3d 742, 751 (9th Cir. 2007) (internal quotations omitted). 7 Finally, the ALJ noted Plaintiff continued to work as late as June 2017, after 8 the alleged onset date. Tr. 23. Plaintiff’s argument that the ALJ’s findings are not 9 supported by substantial evidence is unpersuasive. Plaintiff cites only to her 10 subjective testimony to support her assertions; she does not cite to any additional 11 evidence in the record. ECF No. 17 at 18. Plaintiff’s disagreement with the ALJ’s 12 conclusions is insufficient to overturn the ALJ’s decision. “[T]he key question is 13 not whether there is substantial evidence that could support a finding of disability, 14 but whether there is substantial evidence to support the Commissioner’s actual 15 finding.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). The Court 16 finds the ALJ provided clear and convincing reasons supported by substantial 17 evidence in the record to discount Plaintiff’s subjective symptom testimony. 18 B. Medical Opinion Evidence 19 Plaintiff argues the ALJ improperly evaluated the medical opinion evidence 20 of Dr. Byrd, Dr. Drenguis, and two DDS consultants. ECF No. 17 at 4–16. As an ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.804 Page 15 of 22 1 initial matter, for claims filed on or after March 27, 2017, new regulations apply 2 that change the framework for how an ALJ must evaluate medical opinion 3 evidence. 20 C.F.R. § 404.1520c; see also Revisions to Rules Regarding the 4 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 5 2017). The ALJ applied the new regulations because Plaintiff filed her Title II 6 claim after March 27, 2017. See Tr. 15. 7 Under the new regulations, the ALJ will no longer “give any specific 8 evidentiary weight . . . to any medical opinion(s).” Revisions to Rules, 2017 WL 9 168819, 82 Fed. Reg. 5844-01, 5867–68. Instead, an ALJ must consider and 10 evaluate the persuasiveness of all medical opinions or prior administrative medical 11 findings from medical sources. 20 C.F.R. § 404.1520c(a)–(b). The factors for 12 evaluating the persuasiveness of medical opinions and prior administrative medical 13 findings include supportability, consistency, relationship with the claimant, 14 specialization, and “other factors that tend to support or contradict a medical 15 opinion or prior administrative medical finding” including but not limited to 16 “evidence showing a medical source has familiarity with the other evidence in the 17 claim or an understanding of our disability program’s policies and evidentiary 18 requirements.” 20 C.F.R. § 404.1520c(c)(1)–(5). 19 20 The ALJ is required to explain how the most important factors, supportability and consistency, were considered. 20 C.F.R. § 404.1520c(b)(2). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 1:21-cv-03060-TOR 1 2 3 4 5 6 ECF No. 23 filed 01/07/22 PageID.805 Page 16 of 22 These factors are explained as follows: (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 7 8 9 20 C.F.R. § 404.1520c(c)(1)–(2). The ALJ may, but is not required to, explain how “the other most persuasive 10 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 11 § 404.1520c(b)(2). However, where two or more medical opinions or prior 12 administrative findings “about the same issue are both equally well-supported . . . 13 and consistent with the record . . . but are not exactly the same,” the ALJ is 14 required to explain how “the most persuasive factors” were considered. 20 C.F.R. 15 § 404.1520c(b)(2). 16 The parties dispute whether Ninth Circuit law that predates the new 17 regulations apply. ECF Nos. 17 at 5; 21 at 12. The Ninth Circuit currently 18 requires the ALJ to provide “clear and convincing” reasons for rejecting the 19 uncontradicted opinion of either a treating or examining physician. Lester v. 20 Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating or examining ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.806 Page 17 of 22 1 physician’s opinion is contradicted, the Ninth Circuit has held the medical opinion 2 can only “be rejected for specific and legitimate reasons that are supported by 3 substantial evidence in the record.” Id. at 830–31 (internal citation omitted). 4 At this time, the Ninth Circuit has not addressed whether these standards still 5 apply when analyzing medical opinions under the new regulations. For purposes 6 of the present case, the Court finds that resolution of this issue is unnecessary. See 7 Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 8 29, 2020) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services, 9 545 U.S. 967, 981–82 (2005) (“[T]he Court is mindful that it must defer to the new 10 regulations, even where they conflict with prior judicial precedent, unless the prior 11 judicial construction ‘follows from unambiguous terms of the statute and thus 12 leaves no room for agency discretion.’”)). 13 14 1. Dr. Byrd Plaintiff essentially argues the ALJ erroneously rejected the opinion of Dr. 15 Byrd by failing to appreciate the “waxing and waning” nature of fibromyalgia. 16 ECF No. 17 at 6–11. Dr. Bryd filled out Medical Report forms in October 2018 17 and August 2020. Tr. 26. In both assessments, Dr. Byrd opined that Plaintiff 18 would have to lie down for one hour at a time and that regular and continuous 19 working would cause Plaintiff’s condition to worsen. Id. He further stated 20 Plaintiff would miss four or more days from work per month. Id. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.807 Page 18 of 22 1 The ALJ did not find Dr. Byrd’s assessment well-supported by his own 2 treatment records or consistent with Plaintiff’s overall medical history. Tr. 26. For 3 example, in February 2019, Dr. Byrd noted Plaintiff was doing well on Paxil. Id. 4 In June 2019, Plaintiff complained of certain side effects from the medication, but 5 no other complaints were reported. Id. Dr. Byrd then indicated Plaintiff did not 6 need to be seen for three to four months. Id. Thus, Dr. Byrd’s Medical Report 7 opinions were not supported by his own exam findings during the same time 8 period. Additionally, Plaintiff’s primary care records showed normal range of 9 motion and strength, no tenderness, and no swelling. Id. The records further 10 indicated Plaintiff’s symptoms were well controlled with medication. Id. 11 Therefore, Dr. Byrd’s opinion that Plaintiff would miss significant work or that 12 work would worsen her condition was inconsistent with Plaintiff’s medical record 13 as a whole. Id. 14 Plaintiff’s argument that the ALJ did not consider Dr. Byrd’s opinions in 15 conjunction with records from other medical care providers is contrary to what is 16 stated in the ALJ’s opinion. ECF No. 7. As noted, the ALJ specifically found Dr. 17 Byrd’s opinion was inconsistent with other records in Plaintiff’s file. Tr. 26. 18 Additionally, Plaintiff’s allegation that the ALJ failed to appreciate the nature of 19 fibromyalgia is also incorrect. Rather, the ALJ concluded that Dr. Byrd’s opinion 20 regarding the severity of Plaintiff’s fibromyalgia simply did not comport with the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.808 Page 19 of 22 1 weight of the evidence. Id. Where the ALJ’s interpretation of the record is 2 reasonable, as it is here, it should not be second-guessed. Rollins, 261 F.3d at 857. 3 Additionally, the ALJ’s finding is consistent with Ninth Circuit law that a medical 4 opinion may be rejected by the ALJ if it is brief, conclusory, or inadequately 5 supported. Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1228 (9th Cir. 6 2009). The Court finds the ALJ’s conclusion is supported by substantial evidence. 7 8 9 2. Dr. Drenguis Plaintiff argues the ALJ improperly rejected Dr. Drenguis’s opinion by failing to accept Dr. Drenguis’s assessment of Plaintiff’s ability to walk and stand 10 and her limited ability to manipulate with her left hand. ECF No. 17 at 11–16. 11 Dr. Drenguis conducted a consultative exam of Plaintiff in April 2019. Tr. 25. 12 With regard to Plaintiff’s ability to walk and stand, Dr. Drenguis opined that 13 Plaintiff would be able to stand and walk for at least four-hour in a workday and 14 could sit for at least six. Id. The ALJ rejected Dr. Drenguis’s opinion, finding it 15 was inconsistent with his other exam findings. Specifically, while Dr. Drenguis 16 noted Plaintiff was positive for 15 tender points and could perform only two-thirds 17 of a squat, he otherwise found Plaintiff’s physical condition within normal limits. 18 Tr. 26. Dr. Drenguis also found Plaintiff could move normally without obvious 19 discomfort, had normal gait and station, could walk on her heels, toes, and in 20 tandem, had full strength, and a normal range of motion. Id. The ALJ concluded ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.809 Page 20 of 22 1 such findings did not support Dr. Drenguis’s conclusion that Plaintiff had limited 2 walking and standing abilities. Id. 3 As to Plaintiff’s hand limitations, Dr. Drenguis noted some decreased 4 sensation in Plaintiff’s left hand with positive Tinel’s. Id. However, he also noted 5 Plaintiff had full strength in her bilateral upper extremities, including grip, full 6 range of motion in the upper extremities, and was able to perform fine motor 7 activities without problems. Id. Thus, the ALJ found Dr. Drenguis’s opinion that 8 Plaintiff was limited in her ability to manipulate with her left hand was 9 unsupported by his exam findings. 10 Finally, the ALJ found Dr. Drenguis’s opinion was inconsistent with other 11 records in Plaintiff’s medical file because the record as whole generally reflected 12 normal exam findings and few subjective complaints. Id. The Court finds the 13 ALJ’s rejection of Dr. Drenguis’s opinion is supported by substantial evidence. 14 15 3. DDS Consultants—Dr. Platter and Dr. Virji Plaintiff argues the ALJ erred in finding the opinions of Dr. Platter and Dr. 16 Virji persuasive. ECF No. 17 at 16. Dr. Platter and Dr. Virji provided consultative 17 assessments of Plaintiff’s alleged impairments after reviewing Plaintiff’s medical 18 records. Tr. 27. Both assessments concluded that Plaintiff was capable of 19 performing light work, with frequent climbing of ramps, stairs, balancing, 20 kneeling, crouching, and crawling; occasional climbing of ropes, ladders, and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 1:21-cv-03060-TOR ECF No. 23 filed 01/07/22 PageID.810 Page 21 of 22 1 scaffolds, and stooping. Id. The assessments indicated Plaintiff should avoid 2 concentrated exposure to extreme cold, vibrations, and hazards. Id. The ALJ 3 noted that neither consultation included an examination of Plaintiff, but both 4 assessments were based on a review of the available medical records and a 5 comprehensive understanding of agency rules and regulations. Id. Plaintiff’s argument that the ALJ gave “greater weight” to Dr. Platter and 6 7 Dr. Virji is unpersuasive. Id. The ALJ concluded the assessments were well 8 supported by, and consistent with, the medical records in evidence, particularly the 9 finding that Plaintiff’s fibromyalgia was controlled by medication. Id. “Where 10 evidence is susceptible to more than one rational interpretation, it is the ALJ’s 11 conclusion that must be upheld.” Burch, 400 F.3d at 679 (citation omitted). The 12 Court finds the ALJ’s findings were supported by substantial evidence. CONCLUSION 13 14 Having reviewed the record and the ALJ’s findings, this Court concludes 15 that the ALJ’s decision is supported by substantial evidence and free of harmful 16 legal error. 17 // 18 // 19 // 20 // ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 Case 1:21-cv-03060-TOR 1 ECF No. 23 filed 01/07/22 PageID.811 Page 22 of 22 ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment (ECF No. 17) is DENIED 3 2. Defendant’s Motion for Summary Judgment (ECF No. 22) is 4 5 6 7 GRANTED. The District Court Executive is directed to file this Order, enter judgment for Defendant accordingly, provide copies to counsel, and CLOSE this file. DATED January 7, 2022. 8 9 THOMAS O. RICE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22