# Drogitis v. Kijakazi

> District Court, N.D. California · September 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10072979

## Case

- **Court:** District Court, N.D. California
- **Decided:** September 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10072979

## How later opinions describe it (automated extraction)

- holding that ALJ can reject uncontradicted treating 21 physician’s opinion “by setting out a detailed and thorough summary of the facts and conflicting 22 medical evidence, stating his own interpretation thereof, and making findings”

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JERRY D., Case No. 21-cv-00817-SVK

8 Plaintiff,
ORDER ON CROSS-MOTIONS FOR
9 v. SUMMARY JUDGMENT

10 KILOLO KIJAKAZI, Re: Dkt. Nos. 21, 28, 31
11 Defendant.

12 Plaintiff appeals from the final decision of the Commissioner of Social Security, which
13 denied his application for disability insurance benefits. The Parties have consented to the
14 jurisdiction of a magistrate judge. Dkt. 4, 9. For the reasons discussed below, the Court DENIES
15 Plaintiff’s motion for summary judgment (Dkt. 21, 28) and GRANTS Defendant Commissioner’s
16 cross-motion for summary judgment (Dkt. 31).
17 I. BACKGROUND
18 On or about October 10, 2013, Plaintiff filed an application for Title II disability insurance
19 benefits. See Dkt. 14 (Administrative Record (“AR”)) 127-133.
On May 13, 2016, an Administrative Law Judge (“ALJ”) denied Plaintiff’s claim, and the
20
Appeals Council denied review. AR 1-6, 12-29 (the “2016 ALJ Decision”). Plaintiff then filed an
21
action in this District, seeking review of the 2016 ALJ Decision. Jerry D. v. Berryhill, U.S.
22
District Court for the Northern District of California, Case No. 18-cv-02506-SVK (the “First
23
Case”). On February 21, 2019, the undersigned granted Plaintiff’s motion for summary judgment
24
and remanded Plaintiff’s case for a new hearing. AR 888-897. The Court held that the ALJ had
25
erred by giving only “little weight” to the opinion of Plaintiff’s treating physician, Dr. Kwok,
26
without specifically identifying the physical examination findings upon which her decision to
27
discount Dr. Kwok’s opinion was based. AR 892-896. The Court also held that critical portions
1 of the ALJ’s evaluation of Plaintiff’s credibility was tied to the ALJ’s erroneous evaluation of the
2 medical evidence. AR 896-897. Accordingly, the Court remanded the case for: (1) proper
3 evaluation of the medical opinions under the applicable legal standard; and (2) reevaluation of
4 Plaintiff’s credibility upon reevaluation of the medical evidence. Id.
5 On remand, the ALJ conducted a hearing on September 24, 2019 (AR 1477-1499) and a
6 supplemental hearing on February 20, 2020 (AR 865-887). On April 7, 2020, the ALJ issued a
decision finding that Plaintiff was not disabled. AR 839-864 (the “2020 ALJ Decision”). The
7
ALJ concluded that through September 30, 2015 (Plaintiff’s date last insured), Plaintiff suffered
8
from the following severe impairment: degenerative disc disease of the lumbar spine with grade I
9
spondylolisthesis. AR 845. The ALJ found that through the date last insured, Plaintiff had the
10
residual functional capacity (“RFC”) to perform light work with certain limitations. Id. The ALJ
11
determined that Plaintiff was unable to perform his past relevant work as a ticket seller, snack bar
12
attendant, sales clerk, and video store sales clerk. AR 856. However, the ALJ found that there
13
were other jobs that existed in significant numbers in the national economy that Plaintiff could
14
have performed, such as document preparer, order clerk, and charge account clerk. AR 856-857.
15
Accordingly, the ALJ found that Plaintiff was not under a disability, as defined in the Social
16
Security Act, from January 1, 2012 (the alleged onset date) through September 30, 2015 (the date
17
last insured). AR 857-858.
18
Following the Appeals Council’s denial of Plaintiff’s request to review the ALJ Decision
19
(AR 832-838), Plaintiff timely appealed the 2020 ALJ Decision to this Court. Dkt. 1 (Complaint).
20
The Court related this case to the First Case. Dkt. 33.
21
In accordance with Civil Local Rule 16-5, the parties filed cross-motions for summary
22
judgment. Dkt. 21 (Plaintiff’s motion for summary judgment); Dkt. 28 (Plaintiff’s supplement to
23 motion for summary judgment)1; Dkt. 31 (Defendant’s cross-motion for summary judgment). The
24
cross-motions for summary judgment are now ready for decision without oral argument.
25
26
1 Plaintiff’s original motion for summary judgment noted that the AR did not include the transcript
27
of the September 24, 2019 ALJ hearing on remand. Dkt. 21-1 at 8. Defendant subsequently
II. ISSUES FOR REVIEW2
1
1. Did the ALJ properly evaluate the medical evidence?
2
2. Did the ALJ properly evaluate Plaintiff’s credibility?
3
3. Did the ALJ properly evaluate lay witness testimony?
4
III. STANDARD OF REVIEW
5
This Court is authorized to review the Commissioner’s decision to deny disability benefits,
6
but “a federal court’s review of Social Security determinations is quite limited.” Brown-Hunter v.
7
Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts “leave it to
8
the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the
9
record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted).
10
The Commissioner’s decision will be disturbed only if it is not supported by substantial
11
evidence or if it is based on the application of improper legal standards. Id. at 492. “Under the
12
substantial-evidence standard, a court looks to an existing administrative record and asks whether
13
it contains sufficient evidence to support the agency’s factual determinations,” and this threshold
14
is “not high.” Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal quotation
15
marks, citation, and alteration omitted); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d
16
996, 1002 (9th Cir. 2015) (“Substantial evidence” means more than a mere scintilla but less than a
17
preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to
18
support a conclusion”) (internal quotation marks and citations omitted). The Court “must consider
19
the evidence as a whole, weighing both the evidence that supports and the evidence that detracts
20
from the Commissioner’s conclusion.” Rounds, 807 F.3d at 1002 (internal quotation marks and
21
citation omitted). Where the evidence is susceptible to more than one rational interpretation, the
22
Court must uphold the ALJ’s findings if supported by inferences reasonably drawn from the
23
record. Id.
24

25
2 In Plaintiff’s original motion for summary judgment, he argued that Defendant should be ordered
to file the missing September 24, 2019 hearing transcript or the case should be remanded because
26
the administrative record was incomplete. Dkt. 21-1 at 8. He also raise Issue 1 (medical
evidence) and Issue 2 (Plaintiff’s credibility). Id. at 7. As discussed above, Defendant
27
subsequently filed the missing transcript. Dkt. 25. Plaintiff then filed a supplement to his
1 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is
2 harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent
3 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless” and
4 is instead “constrained to review the reasons the ALJ asserts.” Id. (internal quotation marks and
5 citation omitted).
6 IV. DISCUSSION
7 A. Issue One: Evaluation of Medical Evidence
8 1. Standard for evaluating medical evidence
9 As stated above, Plaintiff’s application for Social Security disability benefits was filed in
10 October 2013. Under the Social Security Administration regulations that apply in this case,3
11 “[t]he ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035,
12 1041 (9th Cir. 2008). Generally, the opinion of a treating physician is entitled to more weight than
13 the opinion of an examining physician, and more weight is given to the opinion of an examining
14 physician than a non-examining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.
15 2014). Where a treating physician’s opinion is “well-supported by medically acceptable clinical
16 and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in
17 the record, it must be given controlling weight. 20 C.F.R. § 404.1527(c)(2). The ALJ must
18 provide clear and convincing reasons, supported by substantial evidence, for rejecting the
19 uncontradicted opinion of treating physicians. Ghanim, 763 F.3d at 1160; see also Thomas v.
20 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (holding that ALJ can reject uncontradicted treating
21 physician’s opinion “by setting out a detailed and thorough summary of the facts and conflicting
22 medical evidence, stating his own interpretation thereof, and making findings”) (internal quotation
23 marks and citation omitted). Where contradicted, the opinion of treating physicians may be
24 rejected only for “specific and legitimate reasons that are supported by substantial evidence.”
25 Ghanim, 763 F.3d at 1160.
26
3 New regulations went into effect on March 27, 2017, which include a change in how medical
27
evidence must be evaluated. See V.W. v. Comm'r of Soc. Sec., No. 18-cv-07297-JCS, 2020 WL
2. Analysis
1
Plaintiff challenges the ALJ’s weighing of medical evidence offered by his treating
2
physician, Joseph Kwok, M.D. Dkt. 21-1 at 8-14. On February 24, 2016, Dr. Kwok completed an
3
RFC questionnaire. AR 817-820. Dr. Kwok stated that Plaintiff had Grade 1 spondylolisthesis
4
and facet mediated low back pain with a “fair” prognosis. AR 817. Among other opinions,
5
Dr. Kwok indicated that Plaintiff’s experience of pain was occasionally severe enough to interfere
6
with attention and concentration. AR 818. Dr. Kwok estimated that Plaintiff could walk 4 city
7
blocks without rest or severe pain and could sit or stand 1 hour at a time. AR 818-819. Dr. Kwok
8
also estimated that Plaintiff could sit about 2 hours in an 8-hour work day, could stand about 4
9
hours in an 8-hour work day, would need to walk for 10 minutes every 90 minutes of the day, and
10
would need to take unscheduled 10-15-minute breaks approximately every 2 hours. AR 819.
11
Dr. Kwok stated that Plaintiff needed a job that permits shifting positions at will from sitting,
12
standing, or walking. Id. Dr. Kwok also indicated that Plaintiff could frequently lift less than 10
13
pounds, occasionally lift 10-20 pounds, and never lift 50 pounds. AR 820. Dr. Kwok opined that
14
Plaintiff could occasionally twist, stoop (bend), and crouch/squat, but only rarely climb ladders or
15
stairs. Id. Finally, Dr. Kwok stated that Plaintiff’s impairments were likely to produce “good
16
days” and “bad days” and that he was likely to be absent from work as a result of his impairments
17
or treatment about 3 days a month. Id. Dr. Kwok stated that the earliest date that these symptoms
18
and limitations applied was June 3, 2015. Id.
19
On January 2, 2020, following this Court’s remand of the First Case, Dr. Kwok wrote a
20
letter in which he stated that he had been treating Plaintiff since June 2015. AR 1418. Dr. Kwok
21
indicated that Plaintiff presented with axial back pain with intermittent radicular symptoms and
22
that his pain was worse with back flexion and extension and weight bearing. Id. Dr. Kwok also
23
stated that he had been treating the pain with facet joint injections along the L5 area and that
24
Plaintiff had tried pool therapy, acupuncture, and PT with limited relief of his symptoms. Id.
25
Dr. Kwok indicated that the most recent MRI, taken on June 2019, showed progressive
26
degenerative changes and spondylolisthesis at L4-5 and neuroforaminal narrowing of the lower
27
spine, and “[o]therwise, no significant change.” Id.
1 On approximately February 26, 2020, Dr. Kwok sent an email to Plaintiff and sent a letter
2 to his attorney indicating that in his opinion, Plaintiff was unable to sit continuously for 6 hours
3 and could only sit for 1 to 2 hours continuously. AR 1470. Dr. Kwok opined that facet pain is
4 worse with prolonged sitting and that this was confirmed by literature he reviewed. Id. Dr. Kwok
5 attached a PubMed medical journal article on facet joint disease to his letter. AR 1471-75.4
6 In the 2020 ALJ Decision, the ALJ found that Dr. Kwok’s opinions were entitled to “little
7 weight.” AR 851. The ALJ gave several reasons for discounting Dr. Kwok’s opinions, which the
8 Court will now discuss.
9 a. Inconsistency with Plaintiff’s self-reported symptoms and
activities
10
The ALJ found Dr. Kwok’s opinions about Plaintiff’s pain-related limitations to be
11
inconsistent with Plaintiff’s self-reported symptoms and his own reports of higher functioning.
12
AR 851-852. The ALJ discussed specific examples (with citations to specific pages in the record),
13
such as Plaintiff’s characterizations of his pain as “intermittent/mild,” “slight,” and “occasional”
14
and his reports that he could walk several miles, was taking a dance class, repeatedly traveled to
15
Greece, and engaged in other physical activities. AR 849-852; see also Ex. 8F/11, 19, 20 (AR
16
637, 645, 646); Ex. 6E/4-5 (AR190-191); Ex. 9F/66 and 108 (AR 712, 754), Ex. 13F/8 (AR 828);
17
AR 871-72.
18
Plaintiff argues that some of these statements cited by the ALJ are incomplete or taken out
19
of context. See Dkt. 21-1 at 15-16 (arguing that statements in the record that Plaintiff’s pain was
20
mild, intermittent, occasional, and slight may have been statements of his mother or statements
21
following epidural shots); id. at 16 (stating that Plaintiff claimed to need a 10-minute break during
22
dance class); Dkt. 28 at 1-2 (providing additional information about Plaintiff’s annual trips to
23
Greece). However, Plaintiff has not demonstrated that the ALJ erred in relying on such statements
24
to evaluate Dr. Kwok’s opinions. The ALJ noted many other instances in the record where
25
26
4 To be eligible for benefits, Plaintiff must show that he was disabled before his last insured date
27
of September 30, 2015. See Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017). The Court
1 Plaintiff’s pain was described in less serious terms than his testimony at the hearing. See, e.g., AR
2 849 (noting that with chiropractic treatment, Plaintiff was “much improved,” “improving slowly,”
3 and better from the last treatment (citing Ex. 8F 5, 11)); id. (discussing records revealing reports of
4 decreased levels of pain, down to five, four, and three in September 2015 (citing Ex. 2F/35, 8F/17,
5 and 9F/108)). Moreover, in evaluating the medical record, the ALJ discussed other facts cited by
6 Plaintiff in his summary judgment motion. For example, the ALJ noted Plaintiff’s statements that
7 during his trips to Greece, he does not walk far, tries to use a vehicle, and lays down, and that he
8 tries to stand on the flight. AR 846. However, after further discussion of the medical record, the
9 ALJ concluded that “[e]ven after considering the claimant’s allegations, the undersigned notes that
10 logically, if the pain was so severe and debilitating as to result in the limitations assessed by
11 Dr. Kwok, the claimant would not be able to fly to Greece as frequently as he reportedly does” and
12 “[a]ccording to Dr. Kwok’s assessed limitations, the claimant would be unable to manage a 14-
13 hour flight.” AR 851-852.
14 An ALJ may reject a treating physician’s opinion if it conflicts with the claimant’s own
15 statements. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999).
16 Similarly, “[a] conflict between a treating physician’s opinion and a claimant’s activity level is a
17 specific and legitimate reason for rejecting the opinion.” Ford v. Saul, 950 F.3d 1141, 1155 (9th
18 Cir. 2020). The ALJ’s 2020 Decision, when read in its entirety, reflects her consideration of and
19 reasonable conclusion, supported by the record, that Plaintiff’s own self-reported symptoms and
20 activities are inconsistent with the limitations found by Dr. Kwok.
21 b. Inconsistency with other medical records
22 The ALJ also found Dr. Kwok’s opinions to be inconsistent with opinions of other medical
23 providers that Plaintiff could perform light exertional work and could sit, stand, walk, and engage
24 in other activities to a greater extent than reflected in Dr. Kwok’s opinion. AR 851-854. Plaintiff
25 criticizes this portion of the 2020 ALJ Decision as being inconsistent with this Court’s instructions
26 on remand because “the ALJ still cited to hundreds of pages of medical records” Dkt. 21-1 at 8.
27 However, the Court finds that the 2020 ALJ Decision does not suffer from the same deficiency as
1 exhibits [Exs. 2F, 3F, 9F, 10F, and 11F] for her opinion that Dr. Kwok’s opinion was
2 inconsistent.” Dkt. 21-1 at 11. Unlike the 2016 ALJ Decision, in multiple places the 2020 ALJ
3 Decision cites specific page numbers in the medical record to support the ALJ’s conclusion that
4 “Dr. Kwok’s opinions are inconsistent with the other medical opinions in the record.” See AR
5 852-854 and evidence cited therein. The ALJ discussed the opinions of medical consultants
6 Calvin Pon, M.D.; L. Sauer, M.D.; and A. Blando, M.D., all of whom opined that Plaintiff could
7 perform light work and that he could sit about 6 hours in an 8-hour workday. AR 854-855; see
8 also Exs. 3F (AR 319-322), 2A (AR 55-64) and 3A (AR 65-78). The ALJ gave these opinions
9 “great weight” because “they are generally consistent with the other medical opinions in the record
10 and the overall record. AR 854. The ALJ further explained that “these opinions are supported by
11 the generally unremarkable findings noted during examination” and are “consistent with the
12 claimant’s reports of improvement and decreased pain and the evidence of higher functioning, as
13 discussed above.” Id. Although in this paragraph, the ALJ cites “Ex. 2F; 3F; 9F” without specific
14 page cites, this paragraph is preceded by several pages of discussion of the referenced topics with
15 many such specific citations. See AR 846-854.
16 Although the opinion of a nonexamining physician cannot, by itself, provide substantial
17 evidence justifying rejection of the opinion of a treating physician, such testimony can be
18 considered in combination with other evidence such as conflicting test results, contrary reports
19 from other examining physicians, and the claimant’s testimony. Lester v. Chater, 81 F.3d 821,
20 731 (9th Cir. 1995); see also Morgan, 169 F.3d at 601 (“we have consistently upheld the
21 Commissioner’s rejection of the opinion of a treating or examining physician, based in part on the
22 testimony of a nontreating, nonexamining medical advisor”). Here, the ALJ’s evaluation of the
23 opinions of Drs. Pon, Sauer, and Blondo, in combination with the other medical record evidence
24 cited by the ALJ (as well as other factors such as Plaintiff’s activities and self-reported severity, as
25 discussed above), provides substantial evidence justifying rejection of Dr. Kwok’s opinions
26 regarding the severity of Plaintiff’s limitations.
27 c. Internal inconsistency
1 stated that whereas in February 2016, Dr. Kwok limited Plaintiff to sitting 2 hours total in an 8-
2 hour day, Dr. Kwok opined in March 2020 that Plaintiff could sit for only 1 to 2 hours at a time.
3 Id. According to the ALJ, “[t]here is a significant difference between only being able to sit for
4 two hours total in an eight-hour day versus one to two hours continuously,” and “if the claimant is
5 able to sit for two hours continuously, this would form natural boundaries at the end of each two
6 hour period. AR 851. However, the Court does not find an inconsistency rising to the level
7 suggested by the ALJ. Dr. Kwok’s February 2016 opinion was that Plaintiff could sit 1 hour at a
8 time for a total of about 2 hours in an 8-hour day. AR 818-819 (questions 13b and 13c).
9 Dr. Kwok’s February 2020 opinion was that Plaintiff “is unable to sit continuously for 6 hours
10 during the work day” and that Dr. Kwok thought “he can only sit 1 to 2 hours continuously at one
11 time.” AR 1470. The ALJ’s conclusion that these two opinions were inconsistent appears to
12 ignore the portion of Dr. Kwok’s February 2016 assessment that Plaintiff could sit for one hour at
13 a time. See AR 818 (question 13b). However, because inconsistencies between Dr. Kwok’s
14 opinions and Plaintiffs’ activities, self-reported symptoms, and other portions of the medical
15 record support the ALJ’s assignment of little weight to Dr. Kwok’s opinions, as discussed above,
16 the Court finds any error with respect to the ALJ’s conclusion that Dr. Kwok’s opinions were
17 internally inconsistent to be harmless. See Brown-Hunter, 806 F.3d at 492.
18 d. Dr. Schmitter’s testimony
19 Another reason cited by the ALJ in giving Dr. Kwok’s opinions little weight is the
20 testimony of Eric D. Schmitter, M.D., a medical expert who testified at the February 2020 hearing
21 on remand. AR 852-854. In its opinion remanding the First Case, this Court noted deficiencies in
22 the ALJ’s evaluation of Dr. Kwok’s opinions. See AR 895-896. On remand, the ALJ called
23 Dr. Schmitter, a consultant who had not testified at the original hearing, and informed him at the
24 outset of his testimony that “this case is before me on a District Court remand” in which “the
25 District Court wrote that the opinion of Dr. Kwok was rejected without providing specific and
26 legitimate reasons.” AR 873. The ALJ stated that “I’m focused on Dr. Kwok’s opinion as well,
27 of course, as all the other evidence.” Id. Dr. Schmitter then testified that he found Dr. Kwok’s
1 AR 874. As to whether Plaintiff would have sitting limitations, Dr. Schmitter testified:

2
I don’t see any reason why sitting is limited [INAUDIBLE] out of eight-hour day.
3 I, I don’t see any limits to sitting all, because when they’re sitting, they’re not
really putting any [INAUDIBLE] on their back. That makes no sense at all, so I
4 would disagree that (sic).
5 AR 875; see also AR 883-884. Dr. Schmitter went on to explain the typical symptoms of and
6 effective treatments for spondylolisthesis, particularly spinal fusion and epidural shots. AR 874-
7 878, 879.
8 After summarizing Dr. Schmitter’s testimony on these points, the ALJ stated that she gave
9 his opinion “great weight because it is consistent with the overall record, supported by the
10 objective medical testing results and findings, and because it was supported by an extensive
11 explanation.” AR 854. The ALJ noted that “this opinion is related to Dr. Schmitter’s specialty as
12 an orthopedic surgeon.” Id. She also noted that Dr. Schmitter was able to explain how the
13 imaging results were consistent with Plaintiff’s spondylolisthesis diagnosis, and he also provided a
14 “thorough explanation as to why Dr. Kwok’s opinions were overly restrictive and not supported
15 by medical evidence of record.” Id. The ALJ also found Dr. Schmitter’s opinion more consistent
16 with Plaintiff’s self-reported improvement and higher functioning. Id.
17 Plaintiff criticizes the ALJ’s decision to give Dr. Schmitter’s opinion more weight than the
18 opinion of the treating physician, Dr. Kwok, arguing that Dr. Schmitter was not qualified to testify
19 as a medical expert and that parts of his opinion were not substantiated or were overstated. Dkt.
20 21-1 at 9-10.
21 “The opinion of a nonexamining physician cannot by itself constitute substantial evidence
22 that justifies the rejection of the opinion of either an examining physician or a treating physician.”
23 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995); see also Ryan v. Comm’r of Soc. Sec. Admin.,
24 528 F.3d 1194, 1202 (9th Cir. 2008). However, State agency medical consultants are considered
25 “highly qualified physicians ... who are also experts in Social Security disability evaluations.” 20
26 C.F.R. § 404.1527(f)(2)(I); see also Cabibi v. Astrue, No. 5:09-CV-03768-LHK, 2011 WL
27 6303401, at *5 (N.D. Cal. Dec. 16, 2011). Moreover, their opinions may serve as substantial
1 other evidence in the record.” Edwards v. Astrue, No. 5:11-CV-00320-LHK 2012 WL 1029390,
2 at *7 (N.D. Cal. Mar. 26, 2012).
3 Although in ordinary circumstances, the ALJ might have been justified in relying in part
4 on Dr. Schmitter’s testimony as a reason to discount Dr. Kwok’s opinions, the Court does not find
5 the ALJ’s reliance on Dr. Schmitter’s testimony to be appropriate in this case. As explained
6 above, at the outset of Dr. Schmitter’s testimony, the ALJ called his attention to the reasons for
7 this Court remanding this case and essentially invited him to critique Dr. Kwok’s opinions, which
8 he then did. The ALJ then cited Dr. Schmitter’s testimony as a basis for discounting Dr. Kwok’s
9 opinions. AR 852-854. In the context of this case, the ALJ’s conduct could be seen as an
10 improper effort to bolster her previous conclusions about Dr. Kwok’s opinions by obtaining new
11 evidence on remand in the form of testimony from Dr. Schmitter. As such, the Court concludes
12 that Dr. Schmitter’s testimony does not provided a basis for discounting Dr. Kwok’s opinions.
13 Ameliorating this conclusion somewhat is the fact that the ALJ incorporated a 6-hour sitting
14 limitation (AR 845), whereas Dr. Schmitter opined that Plaintiff would have no limitation on
15 sitting (AR 875). In addition, as discussed above, any error with regard to the ALJ’s reliance on
16 Dr. Schmitter is harmless given that other factors that the ALJ appropriately considered support
17 her rejection on of Dr. Kwok’s opinions. See Brown-Hunter, 806 F.3d at 492.
18 e. Conclusion on evaluation of medical evidence
19 As discussed, several reasons the ALJ offered for discounting Dr. Kwok’s opinions would
20 not, by themselves, constitute specific and legitimate reasons that are supported by substantial
21 evidence for rejecting Dr. Kwok’s opinions. However, considering the record as a whole, the first
22 two reasons given by the ALJ—the inconsistency between Dr. Kwok’s opinions and Plaintiff’s
23 own self-reported symptoms/activities and the inconsistency between Dr. Kwok’s opinions and
24 other medical record evidence—are sufficiently specific, clear, and convincing to support the
25 ALJ’s decision to discount Dr. Kwok’s opinion.
26 Plaintiff’s remaining arguments simply identify reasons the ALJ could have come to
27 different conclusion about Plaintiff’s condition. See Dkt. 28-1 at 17-18. However, the ALJ is
1 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court must defer to the decision of
2 the ALJ where evidence exists to support more than one rational interpretation. Drouin v.
3 Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992); Bennett v. Colvin, 202 F. Supp. 3d 1119, 1127
4 (N.D. Cal. 2016). For the reasons discussed above, the Court finds the conclusions drawn by the
5 ALJ are supported by substantial evidence.
6 Accordingly, for the reasons discussed above, on the issue of the ALJ’s evaluation of the
7 medical evidence, the Court DENIES Plaintiff’s motion and GRANTS the Commissioner’s cross-
8 motion.
9 B. Issue Two: Plaintiff’s Credibility
10 “Where, as here, an ALJ concludes that a claimant is not malingering, and that she has
11 provided objective medical evidence of an underlying impairment which might reasonably
12 produce the pain or other symptoms alleged, the ALJ may ‘reject the claimant’s testimony about
13 the severity of her symptoms only by offering specific, clear and convincing reasons for doing
14 so.’” Brown-Hunter, 806 F.3d at 492-93 (emphasis added) (quoting Lingenfelter v. Astrue, 504
15 F.3d 1028, 1036 (9th Cir. 2007)). “In weighing a claimant’s credibility, the ALJ may consider his
16 reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his
17 conduct, his daily activities, his work record, and testimony from physicians and third parties
18 concerning the nature, severity, and effect of the symptoms of which he complains.” Light
19 v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (citations omitted).
20 Plaintiff testified that he has constant daily pain in his lower back, at a level of 8 on a scale
21 from 1 to 10, that requires him to lay down for a couple hours each day and interferes with his
22 ability to stand for more than 15 minutes or walk for more than 20 minutes. AR 1482-1488. He
23 also testified that he could not perform a full-time job, even one where he could sit all day or
24 switch at will between sitting and standing, because he would have to lay down. AR 1484. He
25 testified that various treatments, such as over-the-counter pain medications, ice, physical therapy,
26 and epidural injections helped, if at all, only temporarily. AR 869; AR 1485-1487.
27 The ALJ found that “[a]fter careful consideration of the evidence, the undersigned finds
1 alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and
2 limiting effects of these symptoms are not entirely consistent with the medical evidence and other
3 evidence in the record for the reasons explained in this decision.” AR 846. This statement was
4 followed by an extensive discussion, in most instances with specific citations to the record, of
5 medical evidence, test results, and treatment efforts. AR 846-849. Following this discussion, the
6 ALJ stated that “[d]espite the claimant’s allegations, the overall record reveals that the claimant’s
7 condition is not as debilitating as alleged.” AR 849. The ALJ articulated at least seven reasons
8 for this conclusion, again with citations to specific portions of the record, including that:
9 (1) during the time period at issue, most of Plaintiff’s treatment records evidenced vision care, and
10 the treatment he received for his lower back was generally conservative; (2) Plaintiff reported (and
11 records reflected) improvement with treatment such as Tylenol, PT, massage, and chiropractic
12 treatment; (3) Plaintiff characterized his pain as “intermittent/mild,” “slight,” and “occasional”;
13 (4) Plaintiff could walk several miles and was taking a dance class; (5) Plaintiff reported no
14 problems with personal care and engaged in a number of daily activities, as well as repeated visits
15 to Greece; (6) the medical record revealed generally unremarkable findings; and (7) there was
16 evidence of noncompliance. AR 849-850.
17 The ALJ’s reasons for discounting Plaintiff’s testimony are all variations on the same
18 theme: the record evidence shows that Plaintiff’s back problems are not as severe as stated in his
19 testimony, and he is more functional than alleged. See AR 849-850. The ALJ gave detailed
20 descriptions of the record to support her reasons for discounting Plaintiff’s testimony. See, e.g.,
21 id. It is true, as Plaintiff argues, that in places the ALJ referred to large portions of the record
22 without pinpointing specific pages. See, e.g., AR 849 (“[T]he treatment the claimant did receive
23 for his lower back was generally conservative, as discussed above” (citing “Ex. 2F; 5F; 8F; 9F;
24 13F”). However, most of these general citations were preceded and/or followed by a discussion
25 of, and citations to, specific portions of the record. See, e.g., AR 847 (noting discussions with Dr.
26 Kwok of treatment modalities of oral medication, physical therapy, acupuncture, surgery, and
27 home exercises (citing Ex. 9F/98-99); AR 848 (noting that Plaintiff attended physical therapy
1 treatment (citing Ex. 8F/2-20; 13F/6-8)); AR 849 (noting that Plaintiff reported pain relief from
2 sleeping, laying down, massage, a waist belt, heating pad, Tylenol, physical therapy, chiropractic
3 treatment (citing Ex. 5E/2; 2F/37, 44, 51; 5F/44; 8F/ 5, 11, 19, 20; 9F/66, 72).
4 Plaintiff also argues that some of the specific medical evidence cited by the ALJ is taken
5 out of context. See Dkt. 21-1 at 15-16 (arguing that statements in the record that Plaintiff’s pain
6 was mild, intermittent, occasional, and slight may have been statements of his mother or
7 statements following epidural shots). This argument is discussed in more detail in
8 Section IV.A.2.a., supra. Plaintiff has not demonstrated that the ALJ erred in relying on such
9 statements in the medical record to evaluate Plaintiff’s credibility, particularly where the ALJ
10 noted many other instances in the record where Plaintiff’s pain was described in less serious terms
11 than his testimony at the hearing. See, e.g., AR 849 (noting that with chiropractic treatment,
12 Plaintiff was “much improved,” “improving slowly,” and better from the last treatment (citing Ex.
13 8F 5, 11)); id. (discussing records revealing reports of decreased levels of pain, down to five, four,
14 and three in September 2015 (citing Ex. 2F/35, 8F/17, and 9F/108)).
15 Plaintiff argues that he “has done everything that has been recommended to him,” which
16 involved a wide range of treatment. Dkt. 21-1 at 15-16. Plaintiff also criticizes the ALJ for noting
17 that he takes a dance class and walks several miles, for “includ[ing] every single daily activity
18 [Plaintiff] did,” and for emphasizing his trips to Greece. Id. at 18. Plaintiff argues that “there is
19 nothing in the activities that [he] does or to which the ALJ cited that indicates he could
20 consistently report to the workplace and perform productively in a work setting on a continuous
21 basis.” Dkt. 21-1 at 18.
22 Although Plaintiff is correct that “one does not need to be utterly incapacitated in order to
23 be disabled” (Dkt. 21-1 at 17 (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)), the
24 Court concludes that when the 2020 ALJ Decision is read in its entirety, it adequately identifies
25 portions of the record that are at least in tension with, if not directly contradictory to, Plaintiff’s
26 testimony, and provides specific, clear, and convincing reasons for discounting Plaintiff’s
27 testimony. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (ALJ must “specifically
1 evidence undermines the testimony”). Even if any particular reason offered by the ALJ for
2 discounting Plaintiff’s testimony is not by itself an adequate basis to find Plaintiff not credible,
3 that error would be harmless, given the numerous other specific, clear, and convincing reasons
4 cited by the ALJ. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[S]everal of our
5 cases have held that an ALJ’s error was harmless where the ALJ provided one or more invalid
6 reasons for disbelieving a claimant’s testimony, but also provided valid reasons that were
7 supported by the record.”) (citations omitted), superseded by regulation on other grounds.
8 Accordingly, for the reasons discussed above, on the issue of Plaintiff’s credibility, the
9 Court DENIES Plaintiff’s motion and GRANTS the Commissioner’s cross-motion.
10 C. Issue Three: Lay Witness Testimony
11 Plaintiff argues that the ALJ failed to consider the testimony of his brother, whom this
12 order will refer to as “N.D.,” at the hearing on remand. Dkt. 28 at 2-3. N.D. testified that
13 Plaintiff’s back condition has worsened, that Plaintiff gave up a job at Big 5 because of the pain,
14 and that N.D. had observed his brother limit his activities because of back pain. See AR 1491-
15 1495.
16 The ALJ summarized and addressed N.D.’s testimony in the 2020 ALJ Decision as
17 follows:
This opinion is given little weight as [sic] because it is a lay opinion based upon
18
casual observation, rather than objective medical [sic] and testing. The
19 observations of such a layperson certainly do not outweigh the accumulated
medical evidence regarding the extent to which the claimant’s limitations can
20 reasonably be considered severe. Ultimately this opinion is unpersuasive for the
same reasons that the claimant’s own allegations do not fully persuade the
21 undersigned as they lack substantial support from objective findings in the record.
22 AR 855.
23 The Ninth Circuit has held that “[l]ay testimony as to a claimant’s symptoms is competent
24 evidence that an ALJ must take into account, unless he or she expressly determines to disregard
25 such testimony and gives reasons germane to each witness for doing so.” Tobeler v. Colvin, 749
26 F.3d 830, 832 (9th Cir. 2014). (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Stout v.
27 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). “[L]ay witness testimony is
1 competence of lay witnesses’ to make.” Tobeler, 749 F.3d at 833 (citing Nguyen v. Chater, 100
2 |} F.3d 1462, 1467 (9th Cir. 1996)). But “lay witness testimony as to a claimant’s symptoms or how
3 an impairment affects ability to work is competent evidence and therefore cannot be disregarded
4 || without comment.” 7d. (citations and internal quotation marks omitted).
5 Where a lay witness’ testimony is similar to the claimant's own testimony regarding her
6 subjective complaints, the ALJ's reasons given to reject the claimant's testimony are deemed
7 sufficiently germane reasons to reject the lay witness testimony. See Valentine v. Comm'r of Soc.
8 || Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“Tn light of our conclusion that the ALJ provided
9 clear and convincing reasons for rejecting Valentine's own subjective complaints, and because Ms.
10 || Valentine's testimony was similar to such complaints, it follows that the ALJ also gave germane
11 reasons for rejecting her testimony."); see also Molina v. Astrue, 674 F.3d 1104, 1111, 1122 (9th
12 || Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a) (finding an ALJ's failure to
5 13 address a nonmedical source at all harmless where ALJ addressed claimant's similar testimony).
14 As discussed above, the ALJ’s reasons for finding Plaintiff's symptom testimony not
3 15 entirely consistent with the record are supported by the record, and therefore the ALJ was justified
a 16 || in giving his brother’s similar testimony little weight for the same reasons.
3 17 Accordingly, for the reasons discussed above, on the issue of the ALJ’s evaluation of the
18 || lay witness testimony, the Court DENIES Plaintiff's motion and GRANTS the Commissioner’s
19 |] cross-motion.
20 || V. | CONCLUSION
21 For the foregoing reasons, the Court DENIES Plaintiff's motion for summary judgment
22 || and GRANTS Defendant Commissioner’s cross-motion for summary judgment.
23 SO ORDERED.
24 || Dated: September 26, 2022
25
26 Sess vaYul—
7 SUSAN VAN KEULEN
United States Magistrate Judge
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10072979. Public record. Not legal advice.