affirming denial of application for disability insurance benefits
How later courts described this case
- affirming denial of application for disability insurance benefits
- residual functional capacity reflects current 17 “physical and mental capabilities”
- residual functional capacity 23 reflects current “physical and mental capabilities”
- reversing district court’s grant of 16 summary judgment to Commissioner concluding that the availability of jobs in the region that 17 claimant could do did not constitute a significant number of jobs
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DAWN K. MacLELLAN, No. 2:21-CV-0234-DMC
12 Plaintiff,
13 v. MEMORANDUM OPINION AND ORDER
14 COMMISSIONER OF SOCIAL
SECURITY,
15
Defendant.
16
17
18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial
19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).
20 Pursuant to the written consent of all parties, ECF Nos. 7 and 10, this case is before the
21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28
22 U.S.C. § 636(c); see also ECF No. 13 (minute order reassigning case to Magistrate Judge).
23 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 18 and 21.
24 The Court reviews the Commissioner’s final decision to determine whether it is:
25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a
26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support
1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must
3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s
5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the
8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of
10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th
13 Cir. 1988).
14 For the reasons discussed below, the Commissioner’s final decision is affirmed.
15
16 I. THE DISABILITY EVALUATION PROCESS
17 To achieve uniformity of decisions, the Commissioner employs a five-step
18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§
19 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:
20 Step 1 Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
21 not disabled and the claim is denied;
22 Step 2 If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
23 impairment; if not, the claimant is presumed not disabled
and the claim is denied;
24
Step 3 If the claimant has one or more severe impairments,
25 determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
26 if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;
27
28 / / /
1 Step 4 If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
2 claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
3 is presumed not disabled and the claim is denied;
4 Step 5 If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
5 residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
6 national economy; if so, the claimant is not disabled and
the claim is denied.
7
See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).
8
9 To qualify for benefits, the claimant must establish the inability to engage in
10 substantial gainful activity due to a medically determinable physical or mental impairment which
11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42
12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental
13 impairment of such severity the claimant is unable to engage in previous work and cannot,
14 considering the claimant’s age, education, and work experience, engage in any other kind of
15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,
16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence
17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
18 The claimant establishes a prima facie case by showing that a physical or mental
19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753
20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant
21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant
22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d
23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock
24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).
25 / / /
26 / / /
27 / / /
28 / / /
1 II. THE COMMISSIONER’S FINDINGS
2 Plaintiff applied for social security benefits on February 1, 2019. See CAR 19.1
3 In the application, Plaintiff claims disability began on June 1, 2016. See id. Plaintiff’s claim was
4 initially denied. Following denial of reconsideration, Plaintiff requested an administrative
5 hearing, which was held on October 8, 2020, before Administrative Law Judge (ALJ) E. Alis. In
6 an October 29, 2020 decision, the ALJ concluded Plaintiff is not disabled based on the following
7 relevant findings:
8 1. Through the date last insured – March 31, 2020 – the claimant had
the following severe impairment(s): status post right rotator cuff
9 tear and debridement, degenerative disc disease of the cervical
spine, fibromyalgia, obesity, bilateral carpal tunnel syndrome,
10 depressive disorder;
11 2. Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
12 equaled an impairment listed in the regulations;
13 3. Through the date last insured, the claimant had the following
residual functional capacity: light work, she can lift or carry 20
14 pounds occasionally and 10 pounds frequently, she can sit, stand,
or walk each for 6 hours in an 8-hour workday, she can push or
15 pull as much as she can lift or carry, she can frequently handle and
finger bilaterally, she could occasionally interact with supervisors,
16 coworkers, and the public, she would need to work in a low-stress
environment, meaning that there would be few, if any, changes in
17 the day-to-day work settings, or in the tools and work process used
to accomplish work;
18
4. Considering the claimant’s age, education, work experience, and
19 residual functional capacity, and vocational expert testimony,
through the date last insured, there were jobs that existed in
20 significant numbers in the national economy that the claimant
could have performed.
21
See id. at 22-31.
22
23 After the Appeals Council declined review on December 10, 2020, this appeal followed.
24 / / /
25 / / /
26 / / /
27
1 Citations are to the Certified Administrative Record (CAR) lodged on April 1,
28 2022, ECF No. 15.
1 III. DISCUSSION
2 Plaintiff raises three arguments, each associated with a different physical
3 impairment/limitation. In the opening brief, Plaintiff argues:
4 Right Shoulder Limitations As to Plaintiff’s right shoulder injury, the ALJ
failed to recognize this impairment as a continuous
5 disability lasting greater than 12 months and
subsequently failed to assess residual functional
6 capacity in light of Plaintiff’s right shoulder
impairment during that time period.
7
Dexterity Limitations As to Plaintiff’s carpal tunnel syndrome, the
8 ALJ failed to consider the consistency and
supportability of the medical opinions, and failed
9 to rely on substantial evidence while assessing
residual functional capacity in light of Plaintiff’s
10 carpal tunnel syndrome and limitations on dexterity.
11 Sit/Stand Limitations As to stand/walk limitations, the ALJ’s residual
functional capacity determination is flawed due to
12 improper analysis of the medical opinions.
13 All of Plaintiff’s arguments allege errors in the ALJ’s residual functional capacity
14 determination at Step 4.2 Residual functional capacity is what a person “can still do despite [the
15 individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v.
16 Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current
17 “physical and mental capabilities”). Thus, residual functional capacity describes a person’s
18 exertional capabilities in light of his or her limitations. An ALJ’s RFC finding must include all of
19 the limitations the ALJ has found to be supported by the evidence of record. See SSR 85-15. In
20 determining residual functional capacity, the ALJ must assess what the plaintiff can still do in
21 light of both physical and mental limitations. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003);
22 see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity
23 reflects current “physical and mental capabilities”).
24 / / /
25 / / /
26 2 While Plaintiff contends that the ALJ’s vocational findings at Step 5 are flawed
due to failure to include stand/walk limitation in hypothetical questions posed to the vocational
27 expert, the gravamen of Plaintiff’s argument is that the ALJ failed at Step 4 to properly evaluate
the medical opinion evidence relating to stand/walk limitations in assessing Plaintiff’s residual
28 functional capacity.
1 A. Right Shoulder Limitations
2 As to Plaintiff’s right shoulder impairment, the ALJ stated as follows at Step 4:
3 . . .With regard to the claimant’s right rotator cuff tear, the record shows
that she first reported right shoulder pain in April 2019, almost three years
4 after the alleged disability onset date. Exhibit 12F/4. At that time, the
claimant reported that she had not yet tried conservative measures for her
5 pain symptoms, and declined a referral for physical therapy. Id./7 (also
showing normal muscle tone without atrophy). The claimant received a
6 prescription for Ibuprofen along with a recommendation for conservative
therapies such as cold packs, NSAIDS, and maintaining range of motion.
7 Id. During the consultative examination a month later in May 2019, the
claimant demonstrated good range of motion in both shoulders and the
8 cervical spine region, as well as an unremarkable examination of the
elbows, wrists, and hands. Exhibit 11F/3. In addition, the examiner
9 reported normal strength, muscle bulk, and tone and intact sensation
throughout the extremities. Id. The examiner did not assess reaching or
10 other manipulative restrictions. Id./4.
11 The claimant sought treatment again for right shoulder pain in August
2019, at which a physical examination showed decreased strength with
12 extension against resistance, and increased pain with abduction and
resistance. Exhibit 14F/8, 10. Her provider then ordered imaging studies.
13 While a September 2019 X-ray of the right shoulder showed unremarkable
findings in the AC and glenohumeral joints, a November 2019 MRI
14 showed a full-thickness rotator cuff tear. Exhibit 15F/20, 24.
15 However, the record demonstrates that the claimant underwent surgery in
March 2020 to repair the tear, after which she attended physical therapy.
16 Exhibit 15F/25; see generally id. The claimant’s physical therapy records
indicate that her condition significantly improved with the surgery and
17 subsequent 12 sessions of therapy. At the time the claimant was
discharged from physical therapy in June 2020, she had met status goals,
18 and demonstrated right shoulder range of motion within functional limits,
decreased tenderness throughout the rotator cuff and shoulder girdle
19 musculature, and 4+/5 strength throughout planes of movement. Id./25
(also noting minimal symptom distress, and no specific apprehension with
20 reaching away from midline and overhead).
21 In sum, the evidence does not demonstrate right shoulder pain complaints
before April 2019, and does not show positive clinical findings supportive
22 of limitation prior to August 2019. Exhibits 11F/3; 12F/7; 14F/10. The
evidence after August 2019 indicates that the claimant underwent an
23 uncomplicated surgical repair of the rotator cuff tear, and successfully
recovered her functioning as of June 2020. Exhibit 15F.
24
CAR 28.
25
26 / / /
27 / / /
28 / / /
1 Plaintiff contends she developed right shoulder pain in April 2019 and received
2 medical treatment of the right shoulder through June 2020. See ECF No. 18, pg. 5. The
3 gravamen of Plaintiff’s argument is that the time period from April 2019 to June 2020 constitutes
4 a continuous disability period of not less than 12 months and, therefore, the ALJ erred by failing
5 to complete a residual functional capacity analysis of the right shoulder. See id. at 6. According
6 to Plaintiff:
7 The ALJ did not address [Plaintiff’s] residual functional capacity
during the period of April 2019 to June 2020. That failure constitutes
8 error.
9 Id.
10 For purposes of social security disability insurance benefits, disability is defined as
11 the “inability to engage in any substantial gainful activity by reason of any medically
12 determinable physical or mental impairment which can be expected to result in death or which
13 has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
14 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for SSI);
15 Beltran v. Astrue, 700 F.3d 386, 388-89 (9th Cir. 2012) (reversing district court’s grant of
16 summary judgment to Commissioner concluding that the availability of jobs in the region that
17 claimant could do did not constitute a significant number of jobs); Ludwig v. Astrue, 681 F.3d
18 1047, 1048 n.1 (9th Cir. 2012) (affirming denial of application for disability insurance benefits);
19 Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005) (considering whether claimant
20 established the existence of a medically determinable impairment).
21 According to Plaintiff: “The period April 2019 to June 2020 qualifies for a period
22 of disability.” Id. Defendant does not dispute that the period from August 2019 to June 2020
23 constituted a period of disability, however, Defendant takes issue with Plaintiff’s allegation that
24 the disability period began in April 2019. ECF No. 21, pgs. 4-5. Accordingly, Defendant asserts
25 that the time period from August 2019 to June 2020 does not satisfy the continuous 12-month
26 time period required to received social security disability insurance benefits. Id. pg. 8.
27 / / /
28 / / /
1 Plaintiff’s argument is unpersuasive. While Plaintiff identifies that she sought
2 medical advice for her right shoulder pain in April 2019, Plaintiff concedes “Dr. Ali did not
3 diagnose a shoulder impairment, finding only a history of fibromyalgia.” ECF No. 18, pg. 5. The
4 ALJ was accurate in concluding the evidence did not demonstrate Plaintiff’s right should injury
5 constituted a continuous disability satisfying the continuous 12-month disability period required
6 to receive social security disability benefits. In making their decision, the ALJ reviewed evidence
7 that Plaintiff’s right shoulder injury was not diagnosed until August 2019. See CAR 28.
8 While Plaintiff contends the ALJ was mistaken by reporting Plaintiff had “good”
9 range of motion in the right shoulder during the May 2019 medical appointment, the Court finds
10 the ALJ’s conclusion is supported by substantial evidence as the ALJ relied on Dr. Ali’s report,
11 an examining physician. ECF No. 18, pg. 5; CAR 507-09; see CAR 28-30. Because the ALJ’s
12 conclusions are supported by substantial evidence, the Court is not persuaded by Plaintiff’s
13 contentions. Thus, Plaintiff’s right shoulder pain did not constitute a disability as the statutory
14 continuous 12-month disability period is unsatisfied.
15 In any event, the Court finds the ALJ properly evaluated Plaintiff’s right shoulder
16 impairment assuming it did meet the 12-month duration requirement. Plaintiff states: “The ALJ
17 did not address [Plaintiff’s] residual functional capacity during the period of April 2019 to June
18 2020. That failure constitutes error.” ECF No. 18, pg. 6. The Court finds Plaintiff’s argument
19 unpersuasive.
20 First, the ALJ relied on Dr. Ali’s medical opinion which stated:
21 At the time of the examination, the claimant demonstrated good ranges of
motion per Dr. Ali’s report, as well as the ability to squat, a normal gait,
22 and no tenderness noted in the back or knees. Id./3. The claimant’s
treatment records likewise show no evidence of low back impairment,
23 minimal treatment for knee pain, and improved functioning in the neck
and upper extremities with treatment.
24
CAR 30.
25
26 / / /
27 / / /
28 / / /
1 Further, the ALJ relied on opinions from the state agency medical consultants, Drs.
2 Allen and Rosenstock. The ALJ concluded: “I find the opinions of the state agency medical
3 consultants generally persuasive insofar as they also found the claimant capable of light exertion.
4 Exhibits 2A; 4A.” Id.
5 Thus, and assuming Plaintiff’s right shoulder impairment met the 12-month
6 duration requirement, the ALJ did in fact account for this impairment in assessing Plaintiff’s
7 residual functional capacity, finding Plaintiff had a limited ability to “lift or carry 20 pounds
8 occasionally and 10 pounds frequently.” CAR 24. In making this finding, the ALJ relied on Dr.
9 Ali’s medical opinion that Plaintiff’s upper extremities improved with treatment and in
10 concluding Plaintiff demonstrated a good range of motion. The ALJ also relied on the opinions
11 of Drs. Allen and Rosenstock in concluding Plaintiff was able to perform light exertion. The
12 Court agrees with Defendant that the ALJ relied on substantial evidence “[b]ecause these three
13 physicians reviewed Plaintiff’s medical records and cited evidence in support of their
14 conclusions.” ECF No. 21, pg. 7. Therefore, the Court finds the ALJ did not err in evaluating the
15 medical opinions with respect to Plaintiff’s right shoulder impairment.
16 B. Carpel Tunnel Syndrome and Dexterity Limitations
17 Addressing both degenerative changes of the cervical spine as well as carpel
18 tunnel syndrome, the ALJ provided the following discussion of the objective medical evidence at
19 Step 4:
20 The remaining record is largely comprised of treatment for left (non-
dominant) upper extremity symptoms associated with degenerative
21 changes in the cervical spine and carpal tunnel syndrome. While imaging
studies of the cervical spine show disc degeneration and spurring, they
22 do not show evidence of nerve root involvement. Exhibits 3F/6-7; 16F/11.
Viewing the evidence in the light most favorable to the claimant, I find
23 that the evidence is sufficient to support a limitation to light exertion with
frequent bilateral fingering and handling.
24
However, the record does not fully support the alleged severity of the
25 claimant’s symptoms. The record demonstrates that the claimant had
EMG/NCV studies in May 2017 and again in September 2019. Exhibits
26 9F/10; 14F/14. The 2017 studies showed mild bilateral median
neuropathies consistent with carpal tunnel syndrome, as well as findings
27 suggestive of but not clearly diagnostic for left C8 radiculopathy. Exhibit
9F/10. At the time of the May 2017 studies, the claimant had reported left
28
1 hand numbness, weakness, and tingling for 3 months. Id./9, 13. The
September 2019 studies, which tested only the left upper extremity, more
2 clearly indicated a left C8 radiculopathy, but with only mild chronic
denervation changes. Exhibit 14F/14. In addition, the studies continued to
3 show only mild left median neuropathy at the wrist consistent with carpal
tunnel syndrome. Id. In other words, electrodiagnostic studies do not show
4 significant worsening of the mild left upper extremity median neuropathy
from 2017 to 2019, or more than mild left C8 radiculopathy. Exhibits
5 9F/10; 14F/14.
6 Imaging studies of the hands also show no evidence of lesion or arthritis.
Exhibit 16F/3, 20. Clinical findings in the left upper extremity are also
7 varied and relatively sparse. In February 2017, for example, the claimant
sought urgent care for left trapezius pain and arm numbness, but apart
8 from tenderness and muscle spasm in the trapezius, a physical
examination was unremarkable, showing negative Hawkins, empty can,
9 and drop arm signs on the left. Exhibit 13F/5. The claimant demonstrated
no tenderness over the left AC joint, clavicle, or proximal humerus. Id. A
10 March 2018 examination showed a positive Tinel’s test of the medial left
elbow, but negative Tinel’s tests in both wrists. Exhibit 5F/7. In November
11 2018 and May 2019, the claimant reported numbness in the 4th and 5th
digits of the left hand; however, examinations not only showed negative
12 Tinel’s tests in both wrists, but also in the left elbow. Exhibits 5F/2; 17F/8.
13 CAR 26-27.
14 At Step 4 of the sequential evaluation, the ALJ also considered the medical
15 opinions of record. See CAR 29-30. Regarding physical limitations, the ALJ discussed opinions
16 provided by: (1) consultative examining physician, Dr. Shahid Ali; (2) state agency medical
17 consultant, Dr. J. Allen; and (3) state agency medical consultant, Dr. Robin Rosenstock. See id.
18 The ALJ found Dr. Ali’s opinion “generally persuasive.” Id. The ALJ found the opinions of
19 Drs. Allen and Rosenstock “generally persuasive.” Id. None of the three opined that Plaintiff had
20 manipulative limitations relating to carpel tunnel syndrome.
21 As to Drs. Ali, Allen, and Rosenstock, the ALJ stated:
22 In assessing the claimant’s residual functional capacity, I find the opinion
of Dr. Ali, the consultative examiner, generally persuasive. Exhibit 11F.
23 Dr. Ali concluded that the claimant is capable of light work with frequent
climbing, balancing, stooping, kneeling, crouching, and crawling. He did
24 not find any limitation in sitting, standing, or walking or with regard to
manipulative activities. In this case, however, I find that the weight of the
25 evidence supports the additional manipulative restrictions identified above
and discussed at length in the body of this decision. By contrast, I do not
26 find support for the postural limitations assessed by Dr. Ali. At the
time of the examination, the claimant demonstrated good ranges of motion
27 per Dr. Ali’s report, as well as the ability to squat, a normal gait, and no
tenderness noted in the back or knees. Id./3. The claimant’s treatment
28 records likewise show no evidence of low back impairment, minimal
1 treatment for knee pain, and improved functioning in the neck and upper
extremities with treatment. While the postural limitations assessed during
2 the consultative examination do not conflict with the disposition of this
case, I nonetheless find that the evidence before me does not support them.
3
* * *
4
I find the opinions of the state agency medical consultants generally
5 persuasive insofar as they also found the claimant capable of light
exertion. Exhibits 2A; 4A. Their opinions, which do not include postural
6 limitations, are consistent with the claimant’s residual functional capacity
assessment. However, for the reasons discussed above, I find that the
7 weight of the evidence, including updated EMG/NCV studies submitted
after the reconsideration determination, supports limitation to frequent
8 handling and fingering bilaterally.
9 CAR 29-30.
10 Plaintiff contends: “The ALJ did not assess the consistency and supportability of
11 the medical evidence as to the presence of carpal tunnel syndrome in assessing the frequency of
12 manipulation or the unaddressed issue of dexterity.” ECF No. 18, pg. 9.
13 Plaintiff’s argument that the ALJ failed to address limitations associated with
14 carpel tunnel syndrome is not persuasive. As the record outlined above reflects, the ALJ
15 considered the objective evidence regarding manipulative limitations, as well as the opinion
16 evidence from Drs. Ali, Allen, and Rosenstock who all opined that Plaintiff had no manipulative
17 limitations. Nonetheless, the ALJ limited Plaintiff to only frequent manipulative activities,
18 thereby accounting for some restriction to the extent Plaintiff was not found to be able to
19 constantly engage in such activities.
20 Here, the Court finds the ALJ properly assessed the consultants’ opinions
21 against the other evidence in concluding Plaintiff was capable of light exertion.
22 Additionally, where a discrepancy existed with the updated EMG/NCV studies and the
23 consultants’ opinion, the ALJ resolved the conflict in Plaintiff’s favor. Even though the
24 ALJ resolved the EMG/NCV studies conflict in Plaintiff’s favor by finding a limitation,
25 the ALJ did not conclude Plaintiff’s carpal tunnel syndrome constituted a disability. Id.
26 / / /
27 / / /
28 / / /
1 The ALJ’s determination that a disability did not exist was based on Dr.
2 Ali’s medical opinion. In considering Dr. Ali’s opinion the ALJ stated: “The claimant’s
3 treatment records likewise show no evidence of low back impairment, minimal treatment
4 for knee pain, and improved functioning in the neck and upper extremities with
5 treatment.” Id. Because Dr. Ali was an examining physician, Dr. Ali’s medical opinion
6 constitutes substantial evidence because Dr. Ali performed his own independent
7 examination of Plaintiff. See Tonapetyan, 242 F.3d 1144, 1149. Therefore, the ALJ’s
8 reliance on Dr. Ali’s examination and findings that Plaintiff’s carpal tunnel syndrome
9 improved with treatment constitutes substantial evidence.
10 C. Stand/Walk Limitations
11 Plaintiff argues that the ALJ’s vocational findings at Step 5 are unsupported by
12 substantial evidence because they are based on answers to hypothetical questions posed to the
13 vocational expert which did not account for stand/walk limitations. See CAR 18, pgs. 10-12. In
14 making this argument, Plaintiff asserts that the ALJ erred by failing to provide any reasons for
15 rejecting stand/walk limitations opened by Dr. Rosenstock. See id. According to Plaintiff, the
16 ALJ erred by not addressing Dr. Rosenstock’s opinion that Plaintiff could stand/walk for six
17 hours in the aggregate. See id.
18 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,
19 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not
20 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
21 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical
22 opinion over another. See id.
23 Under the regulations, only “licensed physicians and certain qualified specialists”
24 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue,
25 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on
26 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it
27 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144,
28 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute
1 substantial evidence when the opinions are consistent with independent clinical findings or other
2 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social
3 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec.
4 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants
5 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016).
6 Opinions from “other sources” such as nurse practitioners, physician assistants, and social
7 workers may be discounted provided the ALJ provides reasons germane to each source for doing
8 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874
9 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance
10 when opinions from “other sources” may be considered acceptable medical opinions).
11 The Commissioner has promulgated revised regulations concerning how ALJs
12 must evaluate medical opinions for claims filed, as here, on or after March 27, 2017. See 20
13 C.F.R. §§ 404.1520c, 416.920c. These regulations supersede prior caselaw establishing the
14 treating physician rule which established a hierarchy of weight to be given medical opinions
15 depending on their source. See id.; see also Jones v. Saul, 2021 WL 620475, at *9 (E.D. Cal.
16 Feb. 17, 2021) (“In sum, because (1) the 2017 regulations are not arbitrary and capricious or
17 manifestly contrary to statute, (2) the prior judicial construction was not mandated by the
18 governing statutory language to the exclusion of a differing agency interpretation, and (3) the
19 [treating-physician rule] is inconsistent with the new regulation, the court concludes that the 2017
20 regulations effectively displace or override [prior caselaw.]”). Thus, ALJs are no longer required
21 to “defer to or give any specific evidentiary weight to” treating physicians over medical opinions
22 from other sources. See Carr v. Comm’r of Soc. Sec., 2021 WL 1721692, at *7 (E.D. Cal. Apr.
23 30, 2021).
24 Under the revised regulations, the ALJ must evaluate opinions and prior
25 administrative medical findings by considering their “persuasiveness.” See Buethe v. Comm’r of
26 Soc. Sec., 2021 WL 1966202, at *3 (E.D. Cal, May 17, 2021) (citing 20 C.F.R. § 404.1520c(a)).
27 In determining how persuasive the opinion of a medical source is, an ALJ must consider the
28 following factors: supportability, consistency, treatment relationship, specialization, and “other
1 factors.” See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(b), (c)(1)-(5)). Despite a
2 requirement to consider all factors, the ALJ’s duty to articulate a rationale for each factor varies.
3 See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(a)-(b)).
4 Specifically, in all cases the ALJ must at least “explain how [she] considered the
5 supportability and consistency factors,” as they are “the most important factors.” See Buethe,
6 2021 WL 1966202, at *4 (citing § 404.1520c(b)(2)). For supportability, the regulations state:
7 “[t]he more relevant the objective medical evidence and supporting explanations presented by a
8 medical source are to support his or her medical opinion(s) or prior administrative medical
9 finding(s), the more persuasive [the opinion] will be.” See Buethe, 2021 WL 1966202, at *4
10 (quoting § 404.1520c(c)(1)). “For consistency, the regulations state: ‘[t]he more consistent a
11 medical opinion(s) or prior administrative medical finding(s) is with the evidence from other
12 medical sources and nonmedical sources in the claim, the more persuasive [the opinion] will be.’”
13 Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(c)(2)). “The ALJ is required to articulate
14 findings on the remaining factors (relationship with claimant, specialization, and ‘other’) only
15 when ‘two or more medical opinions or prior administrative medical findings about the same
16 issue’ are ‘not exactly the same,’ and both are ‘equally well-supported [and] consistent with the
17 record.’” Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(b)(2) & (3)).
18 At Step 5, the ALJ concluded Plaintiff could perform light work and noted
19 Plaintiff “can sit, stand, or walk each for 6 hours in an 8-hour workday.” CAR 24. The ALJ,
20 however, also concluded that Plaintiff’s ability to engage in the full range of light work is eroded
21 by additional limitations. See id. The ALJ examined a vocational expert to determine the extent
22 to which additional limitations impact the occupational base. See id. pg. 30-31. Based on a
23 hypothetical question presuming someone with the residual functional capacity described by the
24 ALJ, as well as Plaintiff’s past work experience, education, and age, the vocational expert
25 identified various jobs which exist in the national economy the hypothetical claimant can
26 perform. See id. pg. 31-32. Accepting this testimony, the ALJ concluded Plaintiff is not
27 disabled. Id.
28 / / /
1 Plaintiff contends that the ALJ’s vocational findings at Step 5 are flawed
2 because the ALJ relied on answers to hypothetical questions that did not accurately
3 describe Plaintiff’s residual functional capacity. See ECF No. 18, pg. 11. In challenging
4 the ALJ’s analysis of the medical opinion evidence, Plaintiff argues more specifically
5 that the ALJ’s vocational findings are inconsistent with Dr. Rosenstock’s opinions. See
6 id. According to Plaintiff, Dr. Rosenstock’s conclusion, that Plaintiff had an aggregate
7 limit to standing and/or walking for about six hours in an eight-hour workday “requires
8 more standing and/or walking than a limit to six hours in the aggregate for both
9 activities.” Id. pgs. 10-12. Defendant asserts that “Plaintiff’s argument to its logical
10 conclusion would assume that the RFC assessed she could work for 12 hours in a single
11 workday – i.e., she could perform work while standing for six hours, followed by work
12 involving walking for six hours.” ECF No. 21, pg. 16.
13 The Court agrees with Defendant. Dr. Rosenstock limited Plaintiff to no
14 more than six hours of standing or walking in an eight-hour workday, and no more than
15 six hours of siting in an eight-hour workday. CAR 91-92. While Dr. Rosenstock’s
16 evaluation states: “Stand and/or walk: (with normal breaks),” it appears clear that Dr.
17 Rosenstock’s assessment of no more than six hours in an eight-hour workday means
18 Plaintiff is limited to only six hours of a combination of standing and walking. See id.
19 Thus, the ALJ’s assessment that Plaintiff “can sit, stand, or walk each for 6 hours in an 8-
20 hour workday” does not reject Dr. Rosenstock’s assessment nor does it present the
21 residual functional capacity to the vocational expert differently than as assessed by Dr.
22 Rosenstock. CAR 24.
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
1 IV. CONCLUSION
2 Based on the foregoing, the Court concludes that the Commissioner’s final
3 || decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY
4 | ORDERED that:
5 1. Plaintiff's motion for summary judgment, ECF No. 18, is denied;
6 2. Defendant’s motion for summary judgment, ECF No. 21, is granted;
7 3. The Commissioner’s final decision is affirmed; and
8 4. The Clerk of the Court is directed to enter judgment and close this file.
9
10 || Dated: March 28, 2023 Ss..c0_,
DENNIS M. COTA
2 UNITED STATES MAGISTRATE JUDGE
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