# Lee v. Berryhill

> District Court, S.D. California · November 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10080002

## Case

- **Court:** District Court, S.D. California
- **Decided:** November 19, 2019
- **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/10080002

## How later opinions describe it (automated extraction)

- affirming the ALJ’s rejection of a physician’s opinion where the physician’s 28 assessed limitations were inconsistent with the claimant’s observed improvement and 1 were “not supported by any findings made by any doctor”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MANAVY L. , Case No.: 3:17-cv-01398-JAH-KSC

12 Plaintiff,
REPORT & RECOMMENDATION
13 v.
14 ANDREW SAUL, Commissioner of
Social Security,
15
Defendant.
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20 This Report and Recommendation is submitted to the Honorable John A. Houston,
21 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule
22 72.1(c) of the United States District Court for the Southern District of California. On July
23 10, 2017, plaintiff Manavy L. filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking
24 judicial review of a decision by the Commissioner of Social Security denying his
25 application for a period of disability and disability insurance benefits. (Doc. No. 1.) Now
26 pending before the Court and ready for decision are the parties’ cross-motions
27 for summary judgment. For the reasons set forth herein, the Court RECOMMENDS
28 plaintiff’s motion for summary judgment be DENIED, the Commissioner’s cross-motion
1 for summary judgment be GRANTED, and Judgment be entered affirming the decision of
2 the Commissioner and dismissing this action with prejudice.
3 I. PROCEDURAL BACKGROUND
4 On March 21, 2014, plaintiff filed an application for a period of disability
5 insurance benefits under Title II of the Social Security Act, alleging disability beginning
6 on November 5, 2013. (Certified Administrative Record (“AR”) 138-39.) After her
7 application was denied initially and upon reconsideration (AR 54-64, 65-76), plaintiff
8 requested an administrative hearing before an administrative law judge (“ALJ”) (AR 91-
9 92). An administrative hearing was held on October 8, 2015. Plaintiff appeared at the
10 hearing with counsel, and testimony was taken from her and a vocational expert (“VE”).
11 (AR 32-53.)
12 As reflected in his December 21, 2015, hearing decision, the ALJ found plaintiff
13 had not been under a disability, as defined in the Social Security Act, from her alleged
14 onset date through the date of the ALJ’s decision. (AR 20-27.) The ALJ’s decision
15 became final on May 26, 2017, when the Appeals Council denied plaintiff’s request for
16 review. (AR 1-6.) This timely civil action followed.
17 II. SUMMARY OF THE ALJ’S FINDINGS
18 In rendering his decision, the ALJ followed the Commissioner’s five-step
19 sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ
20 found plaintiff did not engage in substantial gainful activity from November 5, 2013, her
21 alleged onset date, through the date of the ALJ’s decision. (AR 22.)
22 At step two, the ALJ found that plaintiff had the following severe impairment:
23 cervical radiculopathy. (Id.)
24 At step three, the ALJ found plaintiff did not have an impairment or combination
25 of impairments that met or medically equaled one of the impairments listed in the
26 Commissioner’s Listing of Impairments. (AR 25.)
27 Next, the ALJ determined plaintiff had the residual functional capacity (“RFC”) to
28 perform light work as defined in 20 C.F.R. § 404.1567(b), with no more than occasional
1 pushing and pulling with the bilateral upper extremities; no climbing of ladders, ropes, or
2 scaffolds; no more than frequent climbing or ramps, stairs, balancing, and kneeling; and
3 no more than occasional crawling or overhead use of the bilateral upper extremities. (AR
4 25.)
5 At step four, the ALJ determined plaintiff was able to perform her past relevant
6 work as a postmaster and mail supervisor and, thusly, he did not proceed to a
7 determination as to whether plaintiff is able to perform other relevant work, at step five.
8 (AR 27.)
9 III. DISPUTED ISSUES
10 The disputed issues plaintiff has raised as the grounds for reversal and remand are
11 as follows:
12 1. Whether the ALJ failed to properly evaluate the opinions of plaintiff’s
13 treating physician (Doc. No. 10, pp. 6-81);
14 2. Whether the ALJ failed to properly evaluate plaintiff’s subjective complaints
15 and credibility (Id., pp. 8-12);
16 3. Whether the ALJ adequately developed the record in his questioning of the
17 VE (Id., pp. 12-13);2 and
18 4. Whether the ALJ erred in finding plaintiff’s RFC will allow her to perform
19 her past relevant work (Id., pp. 13-14).
20 / /
21 / /
22 / /
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1 When referring to page numbers for documents filed with the Court, the Court uses the page
26 numbering assigned by the Court’s ECF system.

27 2 Plaintiff’s third claim is not enumerated in her brief but is raised in the body of her Motion. (See Doc.
No. 10 at 12-13.)
28
1 IV. STANDARD OF REVIEW
2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
3 determine whether the Commissioner’s findings are supported by substantial evidence
4 and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841,
5 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less
6 than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v.
7 Sec’y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial
8 evidence is “such relevant evidence as a reasonable mind might accept as adequate to
9 support a conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as
10 a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d
11 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational
12 interpretation, the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d
13 1450, 1452 (9th Cir. 1984).
14 V. DISCUSSION
15 A. Reversal is not warranted based on the ALJ’s alleged failure to properly
16 evaluate the opinion of Plaintiff’s treating physician, Dr. Muy.
17 Plaintiff contends the ALJ erred by failing to provide clear and convincing reasons
18 for rejecting the opinion of Dr. Madineth Muy, which plaintiff contends is clearly
19 supported by the record. (Doc. No. 10, pp. 6-8.)
20 To reject the uncontradicted opinion of an examining physician, an ALJ must
21 provide “clear and convincing” reasons. Where the examining physician’s opinion is
22 contradicted by that of another doctor, as is the case here, the ALJ must provide “specific
23 and legitimate” reasons that are supported by substantial evidence in the record. See
24 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999);
25 Lester v. Chater, 81 F.3d 821, 8301-31 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d
26 1041(9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
27 The opinions of Dr. Muy that are at issue are found in the Physical RFC
28 Questionnaire completed on September 15, 2015. (AR 427-31.) Dr. Muy concluded that
1 plaintiff is unable to sustain even most sedentary work activities, is precluded from even
2 low stress work and has pain “constantly” that interferes with her ability to be attentive
3 and to concentrate. (Id. at 428.) In Dr. Muy’s assessment, in an eight hour work day
4 plaintiff could only sit less than two hours and could only stand or walk for about two
5 hours. (Id. at 429.) She opined that plaintiff could lift less than ten pounds, but only
6 “rarely,” and must be able to shift positions at will and take unscheduled breaks. (Id. at
7 429.) Dr. Muy stated that plaintiff could perform postural activities no more than
8 occasionally and that plaintiff had marked limitations in using her right upper extremity
9 for manipulative activities. (Id. at 430.) Lastly, Dr. Muy concluded plaintiff would likely
10 miss more than four days of work per month. (Id.)
11 After conducting a thorough summary of the medical record, the ALJ gave Dr.
12 Muy’s assessment of plaintiff’s physical limitations “minimal to no weight,” finding it
13 was not well supported and was inconsistent with the weight of the medical record, which
14 showed improvement after prescribed medical treatment. (AR 26.) In doing so, the ALJ
15 specifically noted plaintiff reported 50% improvement following epidural steroid
16 injections and she no longer had symptoms running down her arms. (AR 26, citing AR
17 295-314.)
18 Plaintiff cites to three records in support of her argument the record supports Dr.
19 Muy’s assessment: 1) an MRI of plaintiff’s cervical spine, performed on October 13,
20 2013 (AR 207-09); 2) records from plaintiff’s application for leave under the Family and
21 Medical Leave Act (“FMLA”) in December 2013 (AR 217); and 3) notes by Nurse
22 Practitioner Laura Villasenor3 documenting a visit plaintiff made on August 12, 2014
23 (AR 336-39). These documents do not, however, show the ALJ erred in his analysis.
24 The MRI revealed plaintiff had some pathology in the cervical area, but overall the
25 findings were mild. (AR 207-09.) Similarly, the treatment notes by N.P. Villasenor also
26

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3 Plaintiff incorrectly credits the treatment notes from this visit to Dr. Stephen Barkow, however,
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1 do not tend to show plaintiff’s symptoms are as severe as Dr. Muy’s assessment. Plaintiff
2 was seen that day for an injection because pain in her cervical region (which she rated as
3 a 4/10) had returned since her last injection. (AR 336.) She reported the prior injection
4 had reduced her overall pain about 50%, and she was able to sleep and sit easier. (Id.)
5 N.P. Villasenor’s examination of plaintiff’s cervical area reflected mild limitations in
6 lateral flexion, flexion, extension and rotation. (AR 337.)
7 As for the FMLA records, plaintiff states she was granted a leave of absence from
8 work under the FMLA because “(t)hey found that ‘(i)t is medical necessary for the
9 employee to be absent from work during flare ups due to pain and inability to focus with
10 medication.’” (Doc. No. 10, p. 7, citing AR 215 (emphasis added).) This statement is
11 misleading in that it implies the cited document reflects a finding by the authority
12 reviewing her application for leave. In fact, the document cited to is an assessment that
13 was performed by Dr. Muy in support of plaintiff’s application for leave and the opinion
14 quoted is that of Dr. Muy. (AR 215.) Furthermore, Dr. Muy’s opinion at that time was
15 that plaintiff was incapacitated for a limited period of time, from November 5 to
16 December 31, 2013, not that her symptoms are so severe that she is permanently
17 precluded from working. (Id.)
18 In looking at the whole record, it is clear the ALJ provided legally sufficient
19 reasons for rejecting Dr. Muy’s conclusions about plaintiff’s physical limitations, which
20 are inconsistent with the totality of the objective medical evidence. (AR 26.) See 20
21 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as
22 a whole, the more weight we will give to that opinion”); Thomas v. Barnhart, 278 F.3d
23 947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion of any physician,
24 including a treating physician, if that opinion is brief, conclusory, and inadequately
25 supported by clinical findings”) (citation omitted).
26 The ALJ specifically noted the aforementioned MRI, performed on October 13,
27 2013, detected largely “mild” abnormalities, with no significant neural foramen
28 narrowing. (AR 23, 26, 207-08.) See Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th
1 Cir. 1992) (the ALJ properly rejected treating physicians’ opinions by noting that the
2 claimant had no evidence of significant motor loss, muscle weakness, or sensory or reflex
3 loss). He also noted that in November 2013, during an examination by K. Anthony Kim,
4 M.D., plaintiff had full 5/5 strength, normal sensation, and normal reflexes. (AR 23, 245.)
5 Dr. Kim observed plaintiff appeared to have a radiculitis of the left C5 and C6 nerve, a
6 corresponding very mild C5-6 disc bulge, and a little more pronounced C6-7 disc bulge
7 with irregularities in the left lateral recess, and opined that a transformal injection at left
8 C5-6 and C6-7 would be therapeutic. (AR 245.)
9 Moreover, as the Commissioner posits, while Dr. Muy concluded plaintiff was
10 largely unable to perform exertional or manipulative activities, the ALJ noted Stephen
11 Barkow, M.D. and N.P. Villasenor’s treatment records indicate plaintiff rated her pain as
12 5/10 during her initial consultation in December 2013, but subsequently reported
13 improvement with epidural steroid injections. (AR 23-24, 224, 227-232, 297, 301, 304,
14 336, 340.) The ALJ also remarked that on examination of plaintiff’s cervical spine, these
15 medical professionals found “no abnormal curvature, no skin changes or swelling, no
16 signs of meningismus, left positive Spurling’s, with radiation into the left extremity.
17 While there was trapezius spasm, left greater than right, examination of the upper
18 extremities was normal, without swelling, color change, temperature change or mottling.”
19 (AR 23, 225, 298, 302, 305, 333, 337, 341.) The ALJ further observed plaintiff’s
20 treatment records indicate she had normal manual strength of the bilateral upper
21 extremities, “strong and symmetric” grip strength, and a normal lumbar spine exam, with
22 negative straight leg raising in the seated position, normal gait, and no evidence of
23 muscular atrophy or abnormal movements. (Id.)
24 The ALJ correctly noted Dr. Muy’s conclusions about plaintiff’s physical
25 limitations were inconsistent with the documented improvement in plaintiff’s symptoms
26 and physical condition. (AR 26.) See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.
27 2001) (affirming the ALJ’s rejection of a physician’s opinion where the physician’s
28 assessed limitations were inconsistent with the claimant’s observed improvement and
1 were “not supported by any findings made by any doctor”). The ALJ further noted that
2 Dr. Muy’s opinion was also inconsistent with plaintiff’s own testimony that she no
3 longer experienced radicular symptoms in her upper extremities. (AR 26, 40-41.) See
4 Koch v. Berryhill, 720 F. App’x 361, 363 (9th Cir. 2017) (unpub.) (the ALJ properly
5 rejected a treating physician’s opinion where examination findings were “mild” and
6 treatment notes indicated that the claimant “continued to improve”).
7 Additionally, the assessment made by Leonard Naiman, M.D., the State agency
8 physician who reviewed the aforementioned medical evidence, supports the ALJ’s
9 discounting of Dr. Muy’s opinion. Thomas, 278 F.3d at 957 (“The opinions of non-
10 treating or non-examining physicians may also serve as substantial evidence when the
11 opinions are consistent with independent clinical findings or other evidence in the
12 record”). Dr. Naiman noted plaintiff did not claim her symptoms were worsening and
13 concluded that plaintiff could: occasionally lift and carry 20 pounds; frequently lift and
14 carry 10 pounds; stand and/or walk or sit about 6 hours in an 8 hour workday; and push
15 and/or pull without any limitation other then the limits assigned for lifting and carrying.
16 (AR 69, 71.) He opined she had no postural limitations; could climb ramps and stairs
17 frequently; climb ladders, ropes and scaffolds occasionally; and balance, stoop, kneel,
18 crouch and crawl frequently.4 (AR 71-72.) He also determined plaintiff did not have any
19 manipulative limitations. (AR 72.) Noting that plaintiff did not have any major neuro or
20 motor deficits at her examination on April 23, 2014, and that she had been on an active
21 treatment program, Dr. Naiman anticipated that by November 5, 2014, plaintiff would
22 have responded to the prescribed treatment program and be able to tolerate at least a light
23 level of activity. (AR 73.) Dr. Naiman’s assessment of plaintiff’s physical abilities is
24 consistent with the totality of the medical evidence and, thus, the ALJ’s assignment of
25
26

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4 Dr. Naiman expounded on the limitation assigned for crawling, stating that plaintiff’s ability to do so
28
1 “substantial weight” to Dr. Naiman’s assessment is legally sufficient. See 20 C.F.R. §
2 404.1527(c)(4).
3 B. Reversal is not warranted based on the ALJ’s alleged failure to properly
4 evaluate plaintiff’s subjective complaints and credibility.
5 Plaintiff next contends the ALJ erred in assessing her credibility and in failing to
6 fully accept her testimony regarding her subjective symptoms. (Doc. No. 10, pp. 8-12.)
7 The law is well established in this Circuit that, where the claimant has produced
8 objective medical evidence of an impairment or impairments which could reasonably be
9 expected to produce some degree of pain and/or other symptoms, and the record is devoid
10 of any affirmative evidence of malingering, the ALJ may reject the claimant’s testimony
11 regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ
12 makes specific findings stating clear and convincing reasons for doing so. See, e.g.,
13 Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Vasquez v. Astrue, 572
14 F.3d 586, 591 (9th Cir. 2009); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991);
15 Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). Since the ALJ did not make an
16 express finding of malingering or cite any evidence of malingering, the issue before the
17 Court is whether the provided reasons for his adverse credibility determination satisfy the
18 standard set forth above. See Vasquez, 572 F.3d at 592 (“clear and convincing’ standard
19 applies where ALJ did not cite any evidence of malingering); Robbins v. Social Sec.
20 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of
21 malingering based on affirmative evidence thereof, he or she may only find an applicant
22 not credible by making specific findings as to credibility and stating clear and convincing
23 reasons for each.”).
24 The ALJ found that while plaintiff’s physical impairments could reasonably be
25 expected to cause her alleged symptoms, her statements regarding the intensity,
26 persistence, and limiting effects of these symptoms are not entirely credible. (AR 26.) In
27 evaluating her credibility, the ALJ noted that although plaintiff testified she suffers from
28 chronic pain 24 hours per day, 7 days per week, she also goes to the gym 4-5 times per
1 week, does yoga 6-7 times per week, and is “constantly stretching.” (Id.) The ALJ
2 remarked that while plaintiff’s level of physical activity is not controlling, it is generally
3 inconsistent with disability because it indicates the capacity required to perform work
4 activity. (Id.)
5 The ALJ also found plaintiff’s credibility was undermined because the weight of
6 the objective medical evidence does not support her alleged degree of limitation. (AR 26-
7 27.) On this point, he commented on the fact plaintiff is able to manage her pain with the
8 occasional use of non-narcotic medications (Aleve and Flexeril), noting the need to
9 regularly take narcotic medication is expected at the level of pain alleged. (AR 26.) He
10 further noted plaintiff’s treating physicians provided limited and conservative treatment,
11 which is inconsistent with what would be expected if they had observed the level of
12 severity of symptoms alleged by plaintiff. (AR 27.) The State agency physician’s
13 findings as to plaintiff’s physical limitations, summarized in the prior section, also
14 support the ALJ’s credibility determination.
15 Plaintiff’s documented level of activity is a clear and convincing basis for the
16 ALJ’s finding that plaintiff’s allegations of disabling pain and physical limitations are not
17 fully credible. See 20 C.F.R. § 404.1529(c)(3)(i); Tommasetti, 533 F.3d at 1039 (“The
18 ALJ may consider many factors in weighing a claimant’s credibility,” including “the
19 claimant’s daily activities”). Plaintiff’s admitted capacity to exercise at the gym four to
20 five times per week and take gentle yoga classes six to seven days per week, as a means
21 of managing her pain, supports the ALJ’s finding that plaintiff’s claim of constant
22 disabling pain is not fully credible. (AR 39, 45); See also Molina v. Astrue, 674 F.3d
23 1104, 1113 (9th Cir. 2012) (the claimant’s daily activities may be grounds for rejecting
24 “claims of a totally debilitating impairment,” even if the daily activities suggest some
25 difficulty in the claimant’s functioning); Thomas, 278 F.3d at 959 (the ALJ properly
26 rejected the claimant’s allegations of disabling pain by citing her ability to perform
27 various household chores, such as cooking, laundry, washing dishes, and shopping); see
28 also Trisdale v. Astrue, 334 F. App’x 85, 87 (9th Cir. 2009) (unpub.) (the ALJ properly
1 rejected claims of disabling pain and fatigue, in part, by noting that the claimant
2 “regularly takes yoga and exercise classes”).
3 Second, the ALJ’s finding the objective medical evidence does not corroborate
4 plaintiff’s statements regarding the severity of her pain and physical limitations is also
5 well-supported by the record. See 20 C.F.R. § 404.1529(c)(2); Rollins, 261 F.3d at 857
6 (“While subjective pain testimony cannot be rejected on the sole ground that it is not
7 fully corroborated by objective medical evidence, the medical evidence is still a relevant
8 factor in determining the severity of the claimant’s pain and its disabling effects”). As
9 discussed in the previous section, as well as by the ALJ, the MRI performed on October
10 13, 2013, showed some pathology in the cervical region, but overall the findings were
11 predominately mild. (AR 26, 207-08.) Additionally, Dr. Kim, Dr. Barkow and N.P.
12 Villasenor’s treatment records, which were considered by the ALJ, indicate plaintiff had
13 normal manual strength of the bilateral upper extremities, “strong and symmetric” grip
14 strength, and a normal lumbar spine exam, with negative straight leg raising in the seated
15 position, normal gait, no evidence of muscular atrophy or abnormal movements, “no
16 abnormal curvature, no skin changes or swelling, no signs of meningismus, left positive
17 Spurling’s, with radiation into the left extremity.” (AR 23, 225, 245, 298, 302, 305, 333,
18 337, 341.)
19 Furthermore, there is no error with respect to the ALJ’s finding that plaintiff’s
20 treatment history was inconsistent with her allegations of disabling pain and physical
21 limitations. (AR 23-27.) See 20 C.F.R. §§404.1529(c)(3)(iv), (v). Plaintiff’s treatment
22 consisted primarily of conservative measures, such as over-the-counter pain medication,
23 yoga and stretching, and periodic epidural steroid injections, all of which she reported
24 helped to alleviate her symptoms. (AR 39-41, 45, 227-32, 299, 303, 306, 334-35, 338,
25 342.) See Tommasetti, 533 F.3d at 1040 (the ALJ properly rejected the claimant’s
26 allegations of disabling pain where he responded favorably to conservative treatment,
27 including physical therapy and anti-inflammatory medication); see also Hanes v. Colvin,
28 651 F. App’x 703, 705 (9th Cir. 2016) (unpub.) (the ALJ properly discredited the
1 claimant’s subjective symptom testimony by citing her “conservative treatment plan,
2 which consisted primarily of minimal medication, limited injections, physical therapy,
3 and gentle exercise”). As discussed earlier, plaintiff reported that epidural injections were
4 “very helpful” and substantially improved her pain and functioning. (AR 297, 301, 304,
5 332, 336, 340) and she testified that yoga and stretching relieved her pain and radicular
6 symptoms (AR 39-41). See Stewart v. Colvin, 674 F. App’x 634, 636 (9th Cir. 2017)
7 (unpub.) (the ALJ properly discounted the claimant’s symptom testimony by noting the
8 claimant’s improvement following his epidural injections and physical therapy
9 treatment).
10 C. Reversal is not warranted based on the ALJ’s alleged failure develop the
11 record upon examination of the VE.
12 Plaintiff next argues the ALJ erred because neither of the two hypotheticals he
13 presented to the VE were predicated on the physical limitations assigned by Dr. Muy.
14 (Doc. No. 10, p. 13.)
15 As discussed above, the ALJ properly rejected Dr. Muy’s conclusions about the
16 extent of plaintiff’s physical limitations and sufficiently discounted plaintiff’s subjective
17 complaints of limitations beyond those set forth in the ALJ’s RFC assessment. The ALJ
18 did not owe a duty, therefore, to propose a hypothetical based on this discounted evidence
19 as a vocational expert’s testimony has no evidentiary value if the record does not support
20 the underlying assumptions in the hypothetical question posed. See Magallanes, 881 F.2d
21 at 756 (“The testimony of a vocational expert ‘is valuable only to the extent that it is
22 supported by medical evidence’”) (citation omitted); Batson, 359 F.3d at 1197 (an ALJ is
23 not required to accept VE testimony based upon properly discounted medical opinion
24 evidence); Rollins, 261 F.3d at 857 (“the ALJ did not err in omitting the other limitations
25 that [the claimant] had claimed, but had failed to prove” because the ALJ's findings were
26 supported by substantial evidence).
27 If the ALJ poses a hypothetical question to the vocational expert that captures all
28 of the claimant’s established functional limitations, the vocational expert’s responsive
1 testimony about plaintiff’s ability to perform her past relevant work is substantial
2 evidence. See Bayliss, 427 F.3d at 1217; Thomas, 278 F.3d at 956. Here, the ALJ posited
3 two hypotheticals to the VE. The first one assumed a younger individual with greater
4 than a high school education and plaintiff’s work history. (AR 48.) The VE was asked to
5 assume this individual could perform work at a light exertional level, limited to
6 occasional pushing, pulling kneeling, crawling and overhead bilateral use of the upper
7 extremities, no climbing of ropes, ladders or scaffolds, and frequent climbing of stairs
8 and ramps, as well as of balancing. (Id.) The VE opined an individual with these
9 limitations could perform plaintiff’s prior work as a postmaster, as well as a mail
10 supervisor. (AR 48-49.) The second hypothetical assumed an individual with the same
11 limitations, except she would be limited to sedentary work. (AR 49.) The VE testified
12 that this individual could also perform plaintiff’s prior work as a postmaster, but could
13 not work as a mail supervisor. (Id.) These hypotheticals capture all of plaintiff’s
14 established functional limitations and, thus, are legally sufficient.
15 D. Reversal is not warranted based on the ALJ’s alleged error in finding
16 plaintiff’s RFC will allow her to perform her past relevant work.
17 Lastly, plaintiff contends the ALJ’s RFC assessment is deficient because it is
18 inconsistent with Dr. Muy’s RFC assessment and the medical evidence in the record.
19 (Doc. No. 10, p. 14.) The evidence plaintiff cites in support of this assertion is derived
20 from plaintiff’s testimony, specifically her testimony that: 1) starting in 2013 she could
21 no longer raise her arms (Id., citing AR 40); 2) she opted to treat her symptoms by doing
22 yoga, as opposed to taking medication (Id., citing AR 45); and 3) she was still unable to
23 complete a workday in her prior occupation despite being able to set her own pace and
24 work limitations (Id. citing AR 37.)
25 As discussed previously, the ALJ properly discounted Dr. Muy’s assessment of
26 plaintiff’s physical limitations because it is inconsistent with the totality of the medical
27 evidence. Furthermore, plaintiff’s description of her testimony regarding her symptoms in
28
1 2013, when she was still employed in her prior occupation omits the fact plaintiff also
2 testified her symptoms have improved since that time.5 (AR 40-41.)
3 The ALJ’s RFC is consistent with the limitations assigned by the State agency
4 physician, which is consistent with the totality of the medical evidence. Dr. Naiman’s
5 opinion, based on his review of the medical record, constitutes substantial evidence upon
6 which the ALJ could properly rely for purposes of his RFC determination. See Thomas,
7 278 F.3d at 957 (“The opinions of non-treating or non-examining physicians may also
8 serve as substantial evidence when the opinions are consistent with independent clinical
9 findings or other evidence in the record.”).
10 VI. CONCLUSION
11 In sum, the four arguments raised in plaintiff’s Motion are essentially a request for
12 this Court to reinterpret the evidence and reject the ALJ’s interpretation in favor of
13 plaintiff’s preferred result. Ninth Circuit precedent is well-established that evaluating
14

15
5 During the hearing held on October 8, 2015, plaintiff provided the following testimony:
16

17 Q: Okay. Do you ever have any symptoms going down your arms?
A: I did.
18 Q: You did at one time?
A: I did in early 2013. I woke up one day, but I still have to go to work as a postmaster. It’s
19 just like I couldn’t raise my arm, tingling down. I went to work and not even a whole day,
a few hours. After the telecon’s over, I had to go to the doctor and they put me off like a
20
week or so. And of course, they gave me lots of medications.
21 Q: Did you have any other episodes like that?
A: Lately, after I start doing yoga, it help. I don’t really have that many episodes with the
22 tingling down the arm. So the stretching, constant stretching yoga is –
Q: It’s good for you.
23 A: It’s helped. But if I skip it --
Q: So this one time where you had the symptoms down your arm, that was before you even
24
left the post office?
25 A: Right. That was when I was still working.
Q: And then you haven’t really had those symptoms since?
26 A: Not as bad.
Q: Well, but you have had them, I guess?
27 A: Yes.
Q: If you’re saying not as bad, was it like frequently, I mean like once or twice?
28
1 || conflicts in the evidence is the sole province of the ALJ, and this Court is obliged to
2 uphold the ALJ’s reasonable interpretation of this evidence, even if plaintiff's preferred
3 interpretation is valid. See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir.
4 ||2014) (“The court must consider the record as a whole and weigh ‘both the evidence that
5 supports and the evidence that detracts from the ALJ’s’ factual conclusions” and ““[i]f
6 || the evidence can reasonably support either affirming or reversing,’ the reviewing court
7 || ‘may not substitute its judgment’ for that of the Commissioner’) (citation omitted);
8 || Magallanes, 881 F.2d at 750 (“The ALJ is responsible for determining credibility and
9 || resolving conflicts in medical testimony”; “[t]he ALJ is likewise responsible for
10 resolving ambiguities”) (citation omitted); Winans v. Bowen, 853 F.2d 643, 644 (9th Cir.
11 || 1987) (a reviewing court “may not reweigh the evidence’).
12 For the reasons set forth above, plaintiff's Motion for Summary Judgment should be
13 || DENIED and defendant’s cross-motion for summary judgment should be GRANTED.
14 This report and recommendation is submitted to the Honorable John A. Houston,
15 || United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C.
16 || § 636(b)(1). Any party may file written objections with the Court and serve a copy on all
17 || parties on or before December 4, 2019. The document should be captioned “Objections to
18 || Report and Recommendation.” Any reply to the Objections shall be served and filed on or
19 || before December 11, 2019. The parties are advised that failure to file objections within the
20 || specified time may waive the right to appeal the district court’s order. Martinez v. YIst, 951
21 || F.2d 1153 (9th Cir. 1991).
22 ||Dated: November 19, 2019 Yy JA
23 Mfc fe
Hori. Karen 8S. Crawford
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10080002. Public record. Not legal advice.