(SS) Donna Murphy v. Commissioner of Social Security

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 DONNA MURPHY, No. 1:18-cv-00712-GSA

11 Plaintiff,

12 v. ORDER DIRECTING ENTRY OF

JUDGMENT IN FAVOR OF

13 ANDREW SAUL,1 Commissioner of COMMISSIONER OF SOCIAL SECURITY

Social Security, AND AGAINST PLAINTIFF

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15 Defendant.

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I. Introduction

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Plaintiff Donna Murphy (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for

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disability insurance benefits pursuant to Title II of the Social Security Act. The matter is

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currently before the Court on the parties’ briefs which were submitted without oral argument to

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the Honorable Gary S. Austin, United States Magistrate Judge.2 See Docs. 21 and 22. Having

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reviewed the record as a whole, the Court finds that the ALJ’s decision is supported by substantial

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evidence and applicable law. Accordingly, Plaintiff’s appeal is denied.

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1 Commissioner of Social Security Andrew Saul is substituted as Defendant pursuant to Fed. R. Civ. P. 25(d). See

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also Section 205(g) of the Social Security Act, 42 USC 405(g) (action survives regardless of any change in the

person occupying the office of Commissioner of Social Security).

28 2 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 8 and 12.

1 II. Procedural Background

2 On October 2, 2014, Plaintiff filed an application for disability insurance benefits alleging

3 disability beginning September 19, 2014. AR 46. The Commissioner denied the application

4 initially on October 31, 2014, and upon reconsideration on January 22, 2015. AR 46. On March

5 17, 2015, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR

6 46.

7 Administrative Law Judge Vincent A. Misenti presided over an administrative hearing on

8 January 26, 2017. AR 56-90. Plaintiff appeared and was represented by an attorney. AR 56.

9 Impartial vocational expert Alina Sala (the “VE”) also testified. AR 56. In the course of the

10 hearing, Plaintiff and her attorney amended the disability onset date to December 27, 2015. AR

11 64.

12 On April 27, 2017, the ALJ denied Plaintiff’s application. AR 46-52. The Appeals

13 Council denied review on March 19, 2018. AR 1-4. On May 23, 2018, Plaintiff filed a

14 complaint in this Court. Doc. 1.

15 III. Factual Background

16 A. Plaintiff’s Testimony

17 Plaintiff (born April 12, 1954) lived in an apartment with her husband and adult step-

18 daughter. AR 60, 91. Her husband, a truck driver, was not working following shoulder surgery.

19 AR 60. They supported the household on Plaintiff’s social security benefits and unspecified

20 disability assistance paid to her husband. AR 60-61.

21 Plaintiff stopped working because of her constant back pain, which was aggravated by

22 bending and twisting. AR 65. She relieved the pain with heat and medication (ibuprofen), which

23 reduced her pain to 4-5/10. AR 66, 78. Periodically her doctor administered cortisone injections,

24 which provided pain relief for several weeks. AR 66, 75. After a fall in July 2016, Plaintiff

25 underwent knee surgery to repair a torn meniscus. AR 69. Because her knee was still swollen

26 and painful, Plaintiff used a cane. AR 67. Resting with her feet elevated was helpful. AR 75-76.

27 Plaintiff completed high school and was able to drive and use the internet. AR 61, 71.

28 She could sit for 40 to 45 minutes at a time, stand for 30 to 35 minutes, walk for about 15 minutes

1 and lift a ten-pound bag of potatoes. AR 69-70. With her step-daughter’s help, Plaintiff

2 performed various household chores such as washing, cooking, mopping, making the beds,

3 sweeping, washing dishes and taking out the trash. AR 70. She stopped for frequent breaks to

4 accommodate her pain. AR 74. She left her home to pay bills and visit her mother. AR 71.

5 To support her family, Plaintiff returned to work after filing for disability in October

6 2014, working as a hotel housekeeper and performing unlicensed hair styling services at home.

7 AR 72. She forced herself to work despite her pain, leaving early when necessary. AR 71-72. In

8 particular, Plaintiff had trouble pushing the heavy cart of cleaning supplies. AR 79.

9 B. Medical Records

10 Plaintiff first injured her back at work in 1995. AR 269. On July 17, 2014, Plaintiff

11 reported that her long-term lower back pain had worsened since a part-time job at Macy’s

12 required her to lift and hang clothing. AR 258. Maulik Narendra Shah, M.D., examined Plaintiff

13 and found no erythema, warmth, edema or tenderness. AR 258. Sensation was intact and

14 Plaintiff retained full motor strength in all four extremities. AR 259.

15 On September 18, 2014, Dr. Shah observed lower back tenderness but no erythema,

16 warmth or edema. AR 252. Plaintiff had intact sensation and full motor strength in all four

17 extremities. AR 252. Lumbosacral spine x-rays revealed degenerative changes mostly of the

18 lower lumbar sacral joints, normal alignment and no dynamic instability. AR 248-49.

19 Plaintiff stopped working before she next saw Dr. Shah on September 22, 2014. AR 270.

20 Dr. Shah noted that Plaintiff was in no acute distress and that her back pain was likely muscular.

21 AR 271. He described the x-rays as “negative” and showing “mild arthritic changes.” AR 271.

22 Dr. Shah referred Plaintiff to physical therapy once weekly for twelve weeks. AR 267-68.

23 On September 24, 2014, physical therapist Scott Haubursin evaluated Plaintiff’s range of motion

24 and flexibility, finding “mechanical low back pain with good overall mobility and function.” AR

25 270.

26 On October 20, 2014, Plaintiff complained of both lower back pain and left knee pain.

27 AR 396-98. Dr. Shah advised Plaintiff to use NSAIDs and physical therapy to address her knee

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1 pain and to try Aleve for her back pain. AR 397-98. On October 28, 2014, Plaintiff told

2 Haubursin that her lower back was feeling better. AR 400.

3 On January 23, 2015, Plaintiff saw Linda Carol Pauls, M.D., following lower left back

4 spasms that traveled up through her back and were not relieved by Aleve. AR 418. After

5 examining Plaintiff, Dr. Pauls noted tenderness in the lower left lumbar area. AR 419. A

6 straight-leg raising test was negative to 90 degrees. AR 419. Plaintiff had normal reflexes and

7 strength in her lower extremities. AR 419. Dr. Paul prescribed Methocarbamol (Robaxin) to be

8 taken as needed for back spasm. AR 420.

9 On March 29, 2015, Nicole Amelia Calvillo, M.D., characterized Plaintiff’s chronic

10 lumbar pain as moderate, non-radiating and consistent. AR 450. Medical and physical therapy

11 provided mild relief. AR 450. Dr. Calvillo directed Plaintiff to discontinue ibuprofen and Aleve,

12 and prescribed Meloxicam (Mobic). AR 451.

13 Magnetic resonance imaging performed on April 4, 2015, revealed:

14 1. L4-5 mild left eccentric broad-based disc bulge, prominent

ligamentum flavum and congenitally short pedicles with mild central

15 canal stenosis. Mild narrowing of the bilateral inferior neural

foramen.

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2. Minimal to mild disc bulges at L3-4 and L5-S1 with no significant

17 central canal stenosis. Mild narrowing of the bilateral inferior neural

foramen L5-S1.

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AR 471.

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The report cautioned that the conditions reported were common in persons aged 40 to 60 years

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whether or not they were experiencing any back pain. AR 471.

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On April 30, 2015, Marsa Moody White, M.D., performed a consultative evaluation of

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Plaintiff’s back pain at Dr. Calvillo’s request. AR 510-13. Dr. White diagnosed chronic lower

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back pain and arthropathy of lumbar facet. AR 513. She continued Plaintiff’s Mobic

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prescription, added Tramadol for pain and referred Plaintiff for additional physical therapy. AR

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513. Dr. White recommended facet injections if Plaintiff’s condition did not improve. AR 513.

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On September 25, 2015, Vivian Cayme Torio, O.D., noted little improvement with

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Tramadol, ibuprofen and physical therapy. AR 529. On November 13, 2015, Dr. White referred

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1 Plaintiff for bilateral lumbar facet injections at L4-5 and L5-S1. AR 534. When Plaintiff saw Dr.

2 White on February 16, 2016, she reported diffuse lower back pain and advised the doctor that she

3 had decided not to proceed with lumbar facet injections. AR 570. On April 6, 2016, Plaintiff

4 agreed to a consultation concerning lumbar facet injections after which she would decide whether

5 or not to try them. AR 602-04.

6 Eugene Huang, M.D. conducted the consultation on June 1, 2016. AR 613. Plaintiff

7 described her pain as constant tingling and cramping which moderately interfered with her usual

8 activities. AR 613. Following a discussion, Dr. Huang administered the injections. AR 615.

9 On July 20, 2016, Sandip Jitendra Madhav, M.D., examined Plaintiff and observed both

10 right and left antalgic gait and reduced range of motion in flexion, right/left rotation and right/left

11 side bend. AR 672. Extension was normal. AR 672. Plaintiff reported 7/10 pain. AR 671. Dr.

12 Madhav administered a right lumbar facet joint injection. AR 672. On August 4, 2016, Dr.

13 Huang noted that Plaintiff had experienced only ten to fifteen percent relief for “a coup[le] days”

14 after the injection, and questioned whether Plaintiff was a candidate for further injections. AR

15 719.

16 On August 12, 2016, Nelson Antonio Rodriguez, M.D., examined Plaintiff’s right knee,

17 which had been injured in a fall two weeks earlier. AR 725. Dr. Rodriguez observed tenderness

18 and slight edema. AR 725. X-rays revealed no fracture. AR 725. Dr. Rodriguez provided a

19 knee sleeve and a prescription for acetaminophen with codeine. AR 726.

20 When Dr. White saw Plaintiff on August 22, 2016, Plaintiff reported constant aching and

21 sharp back pain that did not radiate. AR 740. Magnetic resonance imaging of Plaintiff’s right

22 knee revealed a large joint effusion, patellar chondromalacia, and lateral meniscal degeneration

23 and degenerative tearing. AR 746-47. Dr. White noted that the facet injections had reduced

24 Plaintiff’s pain by 50 per cent for two weeks. AR 740.

25 When orthopedist Christian Cameron Safian, M.D., performed a consultative examination

26 of Plaintiff’s right knee on August 30, 2016, Plaintiff continued to experience pain and the

27 swelling had not subsided. AR 757. On October 6, 2016, Dr. Safian performed a right knee

28 arthroscopy, partial lateral meniscectomy and chondroplasty patella. AR 820. Although

1 Plaintiff’s knee was stiff on October 19, 2016, Plaintiff was “doing fairly well” and had

2 discontinued using crutches. AR 1027. Dr. Safian removed Plaintiff’s stitches and encouraged

3 her to slowly increase activity as tolerated. AR 1028.

4 On September 4, 2016, a nuclear medicine body scan revealed osteophytes and arthritic

5 changes at L3, L4, L5 and sacrum, and arthritic changes in Plaintiff’s legs and feet. AR 774.

6 IV. Standard of Review

7 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the

8 Commissioner denying a claimant disability benefits. “This court may set aside the

9 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on

10 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v.

11 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence

12 within the record that could lead a reasonable mind to accept a conclusion regarding disability

13 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less

14 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation

15 omitted). When performing this analysis, the court must “consider the entire record as a whole

16 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v.

17 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks

18 omitted).

19 If the evidence reasonably could support two conclusions, the court “may not substitute its

20 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112

21 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s

22 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was

23 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d

24 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).

25 V. The Disability Standard

26 To qualify for benefits under the Social Security Act, a plaintiff must

establish that he or she is unable to engage in substantial gainful

27 activity due to a medically determinable physical or mental

impairment that has lasted or can be expected to last for a continuous

28 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A).

1 An individual shall be considered to have a disability only if . . . his

physical or mental impairment or impairments are of such severity

2 that he is not only unable to do his previous work, but cannot,

considering his age, education, and work experience, engage in any

3 other kind of substantial gainful work which exists in the national

economy, regardless of whether such work exists in the immediate

4 area in which he lives, or whether a specific job vacancy exists for

him, or whether he would be hired if he applied for work.

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42 U.S.C. §1382c(a)(3)(B).

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To achieve uniformity in the decision-making process, the Commissioner has established

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a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§

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416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding

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that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

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Specifically, the ALJ is required to determine: (1) whether a claimant engaged in

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substantial gainful activity during the period of alleged disability, (2) whether the claimant had

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medically determinable “severe impairments,” (3) whether these impairments meet or are

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medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P,

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Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to

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perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs

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existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f).

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VI. Summary of the ALJ’s Decision

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The ALJ found that Plaintiff had not engaged in substantial gainful activity since the

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amended onset date of December 27, 2015. AR 48. Her severe impairments included a right

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knee meniscus tear and degenerative disc disease of the lumbar spine. AR 48. None of the

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severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,

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Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). AR 49.

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The ALJ concluded that Plaintiff had the residual functional capacity to perform light

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work as defined in 20 C.F.R. § 404.1567(b); to frequently climb stairs and ramps; never to climb

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ropes, ladders or scaffolds; and, to stoop, crouch, crawl and kneel. AR 49.

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1 Plaintiff was able to perform her past relevant work as a Cleaner, Housekeeping. AR 51.

2 Accordingly, the ALJ found that Plaintiff was not disabled from December 27, 2015, through

3 April 27, 2017 (the date of the hearing decision). AR 52.

4 VII. Evaluation of Plaintiff’s Alleged Symptoms

5 Plaintiff challenges the ALJ’s determination that Plaintiff’s testimony was not fully

6 credible contending that the determination was not supported by clear and convincing reasoning.

7 Relying on Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), Plaintiff contends that the

8 ALJ did nothing more than parse the agency’s boilerplate introductory statement that Plaintiff’s

9 testimony was not fully credible without articulating specifically “what testimony is not credible

10 and what evidence undermines the claimant’s complaints.” See Brown-Hunter, 806 F.3d at 493

11 (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).

12 The Commissioner counters that the hearing decision in this case can be distinguished

13 from Brown-Hunter, in which the ALJ “did not specifically identify any inconsistencies” but

14 “simply stated her non-credibility conclusion and then summarized the medical evidence

15 supporting her RFC determination.” See Brown-Hunter, 806 F.3d at 494. The Commissioner

16 emphasizes that the ALJ in this case tied his determination that Plaintiff was not fully credible

17 with the summary of the objective medical evidence as follows:

18 After careful consideration of the evidence, the undersigned finds

that the claimant’s medically determinable impairments could

19 reasonably be expected to cause the alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and

20 limiting effects of these symptoms are not entirely consistent with

the medical evidence and other evidence in the record for the reasons

21 explained in this decision.

22 AR 50.

23 The Court declines to disturb the agency’s determination that Plaintiff’s subjective

24 representations of her back and knee pain were inconsistent with objective medical evidence of

25 (1) minimal to mild degenerative disc disease with (2) generally normal functional assessments

26 including multiple negative straight leg raising tests, multiple assessments revealing normal or

27 minimally decreased range of motion of the lumbar spine, normal gait and alignment, and no

28 dynamic instability. See AR 50. In reaching this determination the Court focuses primarily on

1 the guide to evaluating symptoms in disability claims, as set forth in S.S.R. 16-3p, which applies

2 to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p

3 eliminated the use of the term “credibility” to emphasize that subjective symptom evaluation is

4 not “an examination of an individual’s character” but an endeavor to “determine how symptoms

5 limit ability to perform work-related activities.” S.S.R. 16-3p at 1-2.

6 An ALJ is responsible for determining credibility, resolving conflicts in medical

7 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

8 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v.

9 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014).

10 To determine whether the ALJ’s findings are supported by sufficient evidence a court

11 must consider the record as a whole, weighing both the evidence that supports the ALJ’s

12 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.

13 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown-

14 Hunter, 806 F.3d at 492 (9th Cir. 2015). “For highly fact-intensive individualized determinations

15 like a claimant’s entitlement to disability benefits, Congress places a premium upon agency

16 expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for

17 reviewing courts to substitute their discretion for that of the agency.” Id. (quoting Treichler v.

18 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. Fed. Mar.

19 Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts should

20 generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and

21 resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 F.3d

22 at 1098).

23 A claimant’s statement of pain or other symptoms is not conclusive evidence of a physical

24 or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. “An ALJ

25 cannot be required to believe every allegation of [disability], or else disability benefits would be

26 available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. Bowen,

27 885 F.2d 597, 603 (9th Cir. 1989).

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1 An ALJ performs a two-step analysis to determine whether a claimant’s testimony

2 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014

3 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the

4 claimant must produce objective medical evidence of an impairment that could reasonably be

5 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014;

6 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that

7 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the

8 alleged symptoms.” AR 50. The ALJ did not find Plaintiff to be malingering.

9 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ

10 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent

11 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R.

12 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by

13 symptoms to a greater or lesser extent than other individuals with the same medical impairments,

14 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In

15 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical

16 evidence, the claimant’s representations of the intensity, persistence and limiting effects of her

17 symptoms, statements and other information from medical providers and other third parties and

18 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5.

19 “The determination or decision must contain specific reasons for the weight given to the

20 individual’s symptoms, be consistent with and supported by the evidence, and be clearly

21 articulated so the individual and any subsequent reviewer can assess how the adjudicator

22 evaluated the individual’s symptoms.” SSR 16-3p at *10.

23 Because a “claimant’s subjective statements may tell of greater limitations than can

24 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her

25 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter,

26 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602 (9th Cir. 1989)). See also Bunnell

27 v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an

28 underlying medical impairment, the ALJ may not discredit the claimant’s testimony regarding the

1 severity of his symptoms solely because they are unsupported by medical evidence). “Congress

2 clearly meant that so long as the pain is associated with a clinically demonstrated impairment,

3 credible pain testimony should contribute to a determination of disability.” Id. (internal quotation

4 marks and citations omitted).

5 However, the law does not require an ALJ simply to ignore inconsistencies between

6 objective medical evidence and a claimant’s testimony. “While subjective pain testimony cannot

7 be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the

8 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its

9 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20

10 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly

11 considers whether the objective medical evidence supports or is consistent with a claimant’s pain

12 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to

13 diminish residual functional capacity only to the extent that the alleged functional limitations and

14 restrictions “can reasonably be accepted as consistent with the objective medical evidence and

15 other evidence”).

16 The ALJ did so here, finding that Plaintiff’s “statements concerning the intensity,

17 persistence and limiting effects of these symptoms are not entirely consistent with medical

18 evidence and other evidence in the record for the reasons explained in this decision.” AR 50.

19 “If the ALJ finds that the claimant's testimony as to the severity of her pain and

20 impairments is unreliable, the ALJ must make a credibility determination with findings

21 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit

22 claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). “[A] reviewing

23 court should not be forced to speculate as to the grounds for an adjudicator’s rejection of a

24 claimant’s allegations of disabling pain.” Bunnell, 947 F.2d at 346. On the other hand, if the

25 ALJ’s credibility finding is supported by substantial evidence in the record, courts “may not

26 engage in second-guessing.” Thomas, 278 F.3d at 959. As long as the agency decision clearly

27 expresses the basis for the agency’s decision, a federal court will not reverse simply because the

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1 agency decision is explained with “less than ideal clarity.” Brown-Hunter, 806 F.3d at 492;

2 Treichler, 775 F.3d at 1099.

3 After indicating his conclusion that Plaintiff’s testimony was not fully consistent with

4 other evidence in the record, the ALJ reviewed the evidence of Plaintiff’s back pain and

5 treatment:

6 In terms of the claimant’s alleged degenerative disc disease of the

lumbar spine, September 2014 x-rays of the claimant’s lumbar spine

7 showed degenerative changes, mostly in the lower lumbar facet

joints, but normal alignment and no dynamic instability. An April

8 2015 MRI of her lumbar spine revealed a mild left eccentric broad-

based disc bulge at L4-5 with mild central canal stenosis and mild

9 narrowing of the bilateral inferior neural foramen, as well as,

minimal to mild disc bulges at L3-4 and L5-S1 without stenosis but

10 with mild narrowing of the bilateral inferior neural foramen at L5-

S1. X-rays, completed later that month, showed diffused

11 demineralization of the claimant’s lumbosacral spine with lower

lumbar facet arthropathy. In November 2015, the claimant was

12 referred for bilateral L4-5 and L5-S1 facet injections. However, in

February 2016, her physician, Marsa White, M.D., noted that the

13 claimant had decided not to proceed with the lumbar facet injections.

At this time, Dr. White observed that the claimant’s gait was normal

14 and straight leg raise tests were negative but she showed decreased

range of motion in her lumbar spine and tenderness to palpation. At

15 an April 2016 return visit to Dr. White, the claimant reported diffuse

low back pain and agreed to proceed with an informational

16 consultation for lumbar facet injections. Straight leg tests were again

negative. On July 20, 2016, the claimant underwent a right lumbar

17 facet joint injection. At an August 2016 follow up appointment, the

claimant reported 10-15% pain relief for a few days. Straight leg

18 raises tests were again negative. In September 2016, the claimant

underwent a whole body bone scan with [SPECT] based on her

19 history of low lumbar pain. The scan indicated osteophytes/arthritic

changes at L3, L4, L5, and sacrum. At an October 2016 visit, Dr.

20 White noted that straight leg raise tests were negative and prescribed

800 mg. of ibuprofen for back pain.

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AR 50 (citations to appellate record omitted).3

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The ALJ also summarized the evidence of Plaintiff knee injury and subsequent surgery,

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including the assessment that despite some stiffness, Plaintiff was “doing fairly well” two weeks

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3 “Single photon emission computed tomography (SPECT) is a medical imaging technique that is based on

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conventional nuclear medicine imaging and tomographic reconstruction methods.” Nat’l Research Council (U.S.)

and Institute of Medicine (U.S.) Committee on the Mathematics and Physics of Emerging Dynamic Biomedical

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Imaging, Mathematics and Physics of Emerging Biomedical Imaging (National Academies Press, 1996),

ncbi.nlm.nih.gov/books/NBK232492 (recovered August 12, 2019). The instrumentation and technology used in

28 SPECT provides 3D information of the scanned area. Id.

1 after surgery and had stopped using crutches. AR 51. Plaintiff was directed to slowly increase

2 activity and begin physical therapy. AR 51.

3 The ALJ concluded that the medical treatment evidence as a whole indicated a good range

4 of motion and normal gait with minimal to mild lumbar findings. AR 51. The ALJ declined to

5 assess any limitations attributable to Plaintiff’s knee surgery, which had been performed less than

6 eight months earlier and from which Plaintiff was still recovering. AR 51.

7 “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions

8 about the intensity and persistence of symptoms, including the effects those symptoms may have

9 on the ability to perform work-related activities.” S.S.R. 16-3p at 6. Because objective medical

10 evidence may reveal the intensity, persistence and limiting effects of a claimant’s symptoms, an

11 ALJ must consider whether the symptoms reported by a claimant are consistent with medical

12 signs and laboratory findings of record. Id. For example, “reduced joint motion, muscle spasm,

13 sensory deficit, and motor disruption illustrate findings that may result from, or be associated

14 with, pain.” Id. Conversely, records indicating that a claimant has no muscle wasting bely a

15 claimant’s representation that he or she has been unable to walk no more than a few steps per day.

16 Id. As the ALJ found in this case, Plaintiff’s claims of disabling pain were inconsistent with

17 imaging showing minimal to mild disc degeneration, normal gait and alignment, absence of

18 dynamic instability, and repeatedly normal straight leg raises.

19 As is always the case in an appeal of the Commissioner’s denial of disability benefits,

20 Plaintiff would construe the evidence differently than the ALJ. Nonetheless, the hearing decision

21 sets forth sufficient evidence in the record to support the ALJ’s determination that Plaintiff’s

22 representations to the agency were not fully credible. The Court will not second guess the ALJ’s

23 assessment of Plaintiff’s credibility.

24 VIII. Sufficiency of Evidence to Support Residual Functional Capacity

Determination

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Plaintiff also contends that the ALJ erred in determining Plaintiff’s residual functional

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capacity in the absence of a medical opinion to support his conclusions. Emphasizing that

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determining residual functional capacity is a legal decision properly made by an administrative

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1 law judge, the Commissioner responds that the ALJ properly determined Plaintiff’s residual

2 functional capacity with reference to the record as a whole. The Court agrees that the ALJ

3 properly relied on the existing administrative record to determine Plaintiff’s residual functional

4 capacity as follows.

5 A. Agency Physicians’ Opinions

6 In remarks dated October 28, 2014, I. Ocrant, M.D., agreed with the observations of an

7 agency analyst that Plaintiff’s back pain was unremarkable with mild arthritic changes and was

8 improved with physical therapy and exercises. AR 93. Dr. Ocrant opined that Plaintiff had the

9 residual functional capacity to lift, carry, push and pull fifty pounds occasionally and twenty-five

10 pounds frequently. AR 94. She could sit, stand and walk for six hours in an eight-hour workday.

11 AR 94. Plaintiff could frequently stoop and bend at the waist, and had unlimited ability to climb

12 ramps, stairs, ropes, ladders and scaffolds, and to balance, kneel, crouch, and crawl. AR 95. On

13 reconsideration (January 22, 2015), A. Nasrabadi, M.D., agreed with Dr. Ocrant’s assessment.

14 AR 103-04.

15 No other physicians opined on Plaintiff’s residual functional capacity.

16 B. Hearing Decision

17 As summarized above, the ALJ concluded that Plaintiff had the residual functional

18 capacity perform light work as defined in 20 C.F.R. § 404.1567(b); to frequently climb stairs and

19 ramps; never climb ropes, ladders or scaffolds; and, stoop, crouch, crawl and kneel. AR 49. The

20 ALJ gave little weight to the agency physicians’ opinions since they did not personally have an

21 opportunity to examine Plaintiff and had issued their opinions before much of the evidence of

22 Plaintiff’s medical treatment had been incorporated into the record. AR 51. The ALJ concluded

23 that the agency physicians’ “determinations are not consistent with more recent medical evidence

24 of record, which indicate[s] that further restrictions are warranted.” AR 51.

25 The ALJ supported his determination with multiple citations to the record: 4F-65 (MRI

26 report concerning mild disc bulges at L4-5, L3-4, L5-S1 and mild foraminal narrowing at L5-S1

27 (AR 471)); 4F-107 (x-ray findings of diffuse lumbosacral demineralization, normal spacing and

28 alignment, small endplate marginal osteophytes at lower thoracic spine and lower lumbar facet

1 arthropathy (AR 513)); 4F128 (Dr. Moody’s report diagnosing chronic back pain and arthropathy

2 of lumbar facet, which referred Plaintiff for L4-5 and L5-S1 facet injections (AR 534)); 4F164

3 (Dr. Moody’s report noting tender bilateral lumbar paraspinals, decreased range of motion in

4 standing extension and pain with facet loading (AR 570)); 4F197 (Dr. Moody’s report noting

5 chronic axial low back pain and Plaintiff’s reconsideration of facet injections and willingness to

6 proceed with consultation for information (AR 603)); 5F20-32 (record of lumbar facet joint

7 injections (AR 663-75)); 5F76 (report that right lumbar medial branch injection provided ten to

8 fifteen percent relief for a couple of days (AR 719)); 5F82-83 (initial diagnosis of knee injury

9 (AR 725-26)); 5F92 (x-ray report showing small joint effusion at knee (AR 735)); 5F98 (Dr.

10 Moody’s report of low back and knee pain with referrals for MRI of knee and updated back

11 imaging (AR 741)); 5F104 (MRI report of lateral meniscal degeneration and degenerative tearing

12 (AR 747)); 5F109 (Dr. Moody referral to orthopedist for knee treatment (AR 752)); 5F126-27

13 (report of full body scan with SPECT reporting various arthritic changes to lower back and lower

14 extremities (AR 769-70)); 5F177 (operative note for right knee arthroscopy, partial lateral

15 meniscectomy and chondromalacia lateral compartment (AR 820)); 6F138-39 (postoperative

16 exam of right knee (AR 1027-28)); and, 6F143 (Dr. White’s report of temporary back relief with

17 facet injections and referral for RFA (radio frequency ablation) (AR 1032)).

18 The ALJ concluded:

19 In sum, the above residual functional capacity assessment is

supported by the objective medical evidence and longitudinal

20 treatment record. Regarding her degenerative disc disease of the

lumbar spine, the treatment notes show a good range of motion and

21 a normal gait, and neurological testing and imaging studies reveal

minimal to mild lumbar findings. As for her right knee meniscal tear,

22 she underwent surgery in October 2016 and is set to undergo physical

therapy, so it is too early to derive limitations from this condition

23 while she is recovering. Therefore, the above-described residual

functional capacity is an accurate reflection of the claimant’s abilities

24 and limitations.

25 AR 51 (citations to record omitted).

26 C. Determining Residual Functional Capacity

27 “Residual functional capacity is an assessment of an individual’s ability to do sustained

28 work-related physical and mental activities in a work setting on a regular and continuing basis.”

1 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and

2 restrictions which result from an individual’s medically determinable impairment or combination

3 of impairments. SSR 96-8p.

4 A determination of residual functional capacity is not a medical opinion, but a legal

5 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC

6 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC).

7 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual

8 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so the

9 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary

10 ambiguities. Andrews, 53 F.3d at 1039-40.

11 “In determining a claimant's RFC, an ALJ must consider all relevant evidence in the

12 record such as medical records, lay evidence and the effects of symptoms, including pain, that are

13 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See

14 also 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant

15 medical and other evidence). “The ALJ can meet this burden by setting out a detailed and

16 thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and

17 making findings.” Magallanes, 881 F.2d at 751 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408

18 (9th Cir. 1986). “[A]n ALJ is responsible for determining credibility and resolving conflicts in

19 medical testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to

20 opinions that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4),

21 416.927(c)(4) (“the more consistent an opinion is with the record as a whole, the more weight we

22 will give to that opinion”).

23 D. The ALJ Was Not Required to Obtain A Medical Opinion to

Determine Plaintiff’s Residual Functional Capacity

24

25 Plaintiff contends that even if the ALJ’s decisions was drawn from the record as a whole,

26 the ALJ erred by not securing the opinion of a physician to determine Plaintiff’s residual

27 functional capacity. No legal authority required the ALJ to secure an additional opinion.

28

1 A claimant generally bears the burden of proving his or her entitlement to disability

2 benefits. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 20 C.F.R § 404.1512(c). But

3

Social Security hearings are not adversarial proceedings. DeLorme v. Sullivan, 924 F.2d 841, 849

4

(9th Cir. 1991). Whether or not the claimant is represented by counsel, the ALJ “must inform

5

himself about the facts relevant to his decision.” Heckler v. Campbell, 461 U.S. 458, 471 n. 1

6

7 (1983). “The ALJ has a special duty to fully and fairly develop the record and to assure that the

8 claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).

9 Accord Tonapetyan, 242 F.3d at 1150; Smolen, 80 F.3d at 1288. Nonetheless, the ALJ’s

10

obligation to obtain additional evidence is triggered only when the evidence from the treating

11

medical source is inadequate to determine the claimant's disability. Thomas, 278 F.3d at 958;

12

Tonapetyan, 242 F.3d at 1150 (holding that ALJs have a duty fully and fairly to develop the

13

record when the evidence is ambiguous or "the record is inadequate" to allow for proper

14

15 evaluation of the evidence). When the ALJ finds support in the record adequate to determine the

16 claimant’s disability, he is not required to secure an additional or consultative opinion. Bayliss v.

17 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

18

F. The ALJ Did Not Improperly Rely on His Own Opinion

19

Plaintiff contends that by not securing a physician’s opinion concerning Plaintiff’s

20

residual functional capacity, the ALJ improperly relied on his own evaluation of the medical

21

records. An ALJ’s determination of a claimant’s residual functional capacity through analysis of

22

the medical record is distinguishable from an ALJ’s usurping the role of the medical expert.

23

“[A]n ALJ may not act as his own medical expert as he is “simply not qualified to

24 interpret raw medical data in functional terms.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.

25

1999). Decisions addressing this issue frequently speak of an ALJ’s “play[ing] doctor and

26

making [his] own independent medical findings.” See, e.g., Banks v. Barnhart, 434 F.Supp.2d

27

800, 805 (C.D. Cal. 2006). Such cases encompass multiple factual scenarios. See, e.g. Nguyen,

28

1 172 F.3d at 35 (ALJ formulated claimant’s residual functional capacity based on magnetic

2 resonance images without the benefit of any medical opinion about the functional limitations

3 attributable to the impairments depicted in the images); Rohan v. Chater, 98 F.3d 966, 970 (7th

4 Cir. 1996) (ALJ erred in rejecting medical opinion based on the ALJ’s belief that claimant’s

5 attempts to operate a small business were inconsistent with a diagnosis of major depression);

6 Manso-Pizarro v. Sec’y of Health and Human Servs., 76 F.3d 15, 17 (1st Cir. 1996) (ALJ’s

7 common sense determination of residual functional capacity was not supported by substantial

8 evidence where the largely illegible record revealed little physical impairment and included no

9 functional analysis by a treating or expert physician); Day v. Weinberger, 522 F.2d 1154, 1155-56

10 (9th Cir. 1975) (ALJ rejected opinions of treating physicians in favor of criteria set forth in a

11 leading medical textbook identified by the ALJ in his independent medical research).

12 Although these cases encompass multiple factual situations in which an ALJ determined a

13 claimant’s residual functional capacity based on her own medical evaluation, none of them apply

14 to the ALJ’s determination of Plaintiff’s residual functional capacity in this case. In this case, the

15 ALJ’s analysis began with an assessment of the residual functional capacity determined by the

16 agency physicians, which he found to overstate Plaintiff’s capacity when considered with the

17 added information available from medical records summarizing Plaintiff’s later diagnosis and

18 treatment.

19 The ALJ’s determination of Plaintiff’s residual functional capacity was based on

20 substantial evidence in the record and applicable law. The administrative law judge “is entitled to

21 draw inferences logically flowing from the evidence.” Sample, 694 F.2d at 642. Although the

22 ALJ must consider the opinions from medical sources concerning a claimant’s impairments or

23 residual functional capacity, the ALJ has the final responsibility for deciding these issues. 20

24 C.F.R. § 404.1527. The ALJ appropriately determined Plaintiff’s residual functional capacity in

25 this case.

26 ///

27 ///

28 IX. Conclusion and Order

1 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not

2 disabled is supported by substantial evidence in the record as a whole and based on proper legal

3 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of

4 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of

5 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Donna Murphy.

6

IT IS SO ORDERED.

7

8 Dated: August 21, 2019 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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