Andrews v. Saul

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 ANDREA A., Case No.: 19cv1873-BEN-MDD

11 Plaintiff,

REPORT AND

12 v. RECOMMENDATION ON CROSS

MOTIONS FOR SUMMARY

13 ANDREW SAUL, Commissioner of

JUDGMENT

Social Security,

14

Defendant.

15 [ECF Nos. 14, 15]

16

17 This Report and Recommendation is submitted to United States

18 District Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b)(1) and Local

19 Civil Rule 72.1(c) of the United States District Court for the Southern

20 District of California.

21 Plaintiff Andrea A. (“Plaintiff”) filed this action pursuant to 42 U.S.C.

22 § 405(g) for judicial review of the final administrative decision of the

23 Commissioner of the Social Security Administration (“Commissioner”)

24 denying Plaintiff’s application for Supplemental Security Income benefits

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1 under Title XVI of the Social Security Act (“Act”). (AR at 11, 14)1. For the

2 reasons expressed herein, the Court RECOMMENDS Plaintiff’s Motion for

3 Summary Judgment be DENIED and Defendant’s Cross-Motion for

4 Summary Judgment be GRANTED.

5 I. BACKGROUND

6 Plaintiff was born in March 1978. (AR at 373). At the time the instant

7 application was filed on April 26, 2016, Plaintiff was 38 years old which

8 categorized her as a younger individual. 20 C.F.R. § 404.1563, 416.963.

9 A. Procedural History

10 On April 26, 2016, Plaintiff protectively filed an application for

11 supplemental security income under Title XVI of the Act, alleging a disability

12 beginning January 1, 2010. (AR at 373). After her application was denied

13 initially and upon reconsideration, Plaintiff requested an administrative

14 hearing before an administrative law judge (“ALJ”). (AR at 11). An

15 administrative hearing was held on April 3, 2018. (See AR at 247-59).

16 Plaintiff appeared and was represented by attorney Christopher Reichman.

17 (Id.). Testimony was taken from Plaintiff and Bonnie Sinclair, an impartial

18 vocational expert (“VE”). (Id.). On August 30, 2018, the ALJ issued a

19 decision denying Plaintiff’s claim for supplemental security income. (AR at

20 11-19).

21 On November 9, 2018, Plaintiff sought review with the Appeals Council.

22 (AR at 490). On July 27, 2019, the Appeals Council denied Plaintiff’s request

23 for review and declared the ALJ’s decision to be the final decision of the

24 Commissioner of Social Security in Plaintiff’s case. (AR at 1). This timely

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1 “AR” refers to the Certified Administrative Record filed on February 11, 2020. (ECF No.

1 civil action followed.

2 II. DISCUSSION

3 A. Legal Standard

4 Sections 405(g) and 1383(c)(3) of the Social Security Act allow

5 unsuccessful applicants to seek judicial review of a final agency decision of

6 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial

7 review is limited in that a denial of benefits will not be disturbed if it is

8 supported by substantial evidence and contains no legal error. Id.; see also

9 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1993 (9th Cir. 2004).

10 Substantial evidence means “more than a mere scintilla” but less than a

11 preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “[I]t

12 is such relevant evidence as a reasonable mind might accept as adequate to

13 support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039

14 (9th Cir. 1995)). The court must consider the record as a whole, weighing

15 both the evidence that supports and detracts from the Commissioner’s

16 conclusions. Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576

17 (9th Cir. 1988). If the evidence supports more than one rational

18 interpretation, the court must uphold the ALJ’s decision. Batson, 359 F.3d at

19 1193. When the evidence is inconclusive, “questions of credibility and

20 resolution of conflicts in the testimony are functions solely of the Secretary.”

21 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

22 Even if a reviewing court finds that substantial evidence supports the

23 ALJ’s conclusions, the court must set aside the decision if the ALJ failed to

24 apply the proper legal standards in weighing the evidence and reaching his or

25 her decision. Batson, 359 F.3d at 1193. Section 405(g) permits a court to

26 enter a judgment affirming, modifying or reversing the Commissioner’s

1 matter to the Social Security Administration for further proceedings. Id.

2 B. Summary of the ALJ’s Findings

3 In rendering his decision, the ALJ followed the Commissioner’s five-step

4 sequential evaluation process. See C.F.R. § 404.1520. At step one, the ALJ

5 found that Plaintiff had not engaged in substantial gainful activity since

6 April 26, 2016. (AR at 12).

7 At step two, the ALJ found that Plaintiff had the following severe

8 impairments: postural orthostatic tachycardia syndrome; cervical spine, mild

9 bulging; bilateral hips, mild degenerative changes; ankylosing spondylitis;

10 asthma and other breathing problems; and a history of thyroid cancer status-

11 post thyroidectomy in 2014. (AR at 13).

12 At step three, the ALJ found that Plaintiff did not have an impairment

13 or combination of impairments that met or medically equaled one of the

14 impairments listed in the Commissioner’s Listing of Impairments. (AR at 14)

15 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d),

16 416.925 and 416.926)).

17 Next, after considering the entire record, the ALJ determined that

18 Plaintiff had the residual functional capacity (“RFC”) to perform light work

19 with the following limitations:

20 [T]he claimant can lift and/or carry 20 pounds occasionally and 10

pounds frequently; the claimant can sit for 6 hours in an 8-hour

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workday with normal breaks; the claimant can stand and/or walk

22 for 6 hours in an 8-hour workday with normal breaks; the claimant

can occasionally perform postural activity; and the claimant should

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avoid hazards and pulmonary irritants.

24 (AR at 14).

25 The ALJ said that his RFC assessment was based on all the evidence

26 and the extent to which Plaintiff’s symptoms are consistent with the objective

1 considered the opinion evidence in accordance with the requirements of 20

2 C.F.R. 416.927. (Id.).

3 The ALJ then proceeded to step four of the sequential evaluation

4 process. He found Plaintiff was able to perform her past relevant work. (AR

5 at 17). For the purposes of his step five determination, the ALJ found that

6 Plaintiff’s limitations had little to no effect on the occupational base of

7 unskilled light work. (AR at 18). Accordingly, using the Commissioner’s

8 Medical-Vocational Guidelines as a framework for his decision-making, the

9 ALJ determined that Plaintiff remained capable of performing unskilled light

10 work that existed in significant numbers in the national economy. (Id.). The

11 ALJ therefore found that Plaintiff was not disabled. (Id.).

12 C. Issues in Dispute

13 The issues in dispute in this case are: (1) whether the ALJ erred in

14 finding Plaintiff’s mental impairments non-severe; (2) whether the ALJ erred

15 in giving Mark Dilger, M.D.’s opinion less weight; (3) whether the ALJ erred

16 in giving less weight to Manorama Reddy, M.D.’s opinion, and (4) whether

17 the ALJ failed to develop the record. (ECF No. 14-1).

18 1. Mental Impairments

19 Plaintiff challenges the ALJ’s decision regarding Plaintiff’s mental

20 impairments in two ways. First, she contends the ALJ should have found her

21 mental impairments were severe. (Id. at 3). Second, she argues the ALJ

22 improperly accorded less weight to Dr. Dilger’s opinion. (Id. at 3-4).

23 a. Non-Severity Finding

24 At step two of the sequential analysis, the ALJ must determine whether

25 the claimant has a medically determinable impairment, or combination of

26 impairments, that is “severe.” The Commissioner defines a severe

1 significantly limit[s] your physical or mental ability to do basic work

2 activities” and lasted, or is expected to last, for a continuous period of at least

3 12 months. See 20 C.F.R. § 404.1522, 404.1520(a)(4)(ii). “Basic work

4 activities” means the “abilities and aptitudes necessary to do most jobs,”

5 including, “understanding, carrying out, and remembering simple

6 instructions; use of judgment; responding appropriately to supervision, co-

7 workers and usual work situations; and dealing with changes in a routine

8 setting.” 20 C.F.R. § 404.1522(b)(3)-(6).

9 “An impairment or combination of impairments may be found not

10 severe only if the evidence establishes a slight abnormality that has no more

11 than a minimal effect on an individual’s ability to work.” Webb v. Barnhart,

12 433 F.3d 683, 686 (9th Cir. 2005) (citations and internal quotation marks

13 omitted). If “an adjudicator is unable to determine clearly the effect of an

14 impairment or combination of impairments on the individual’s ability to do

15 basic work activities, the sequential evaluation should not end with the not

16 severe evaluation step.” Id. at 687 (citation and internal quotation marks

17 omitted). “Step two, then, is a de minimis screening device [used] to dispose

18 of groundless claims, and an ALJ may find that a claimant lacks a medically

19 severe impairment or combination of impairments only when his conclusion

20 is clearly established by medical evidence.” Id. (internal citations and

21 internal quotation marks omitted).

22 The ALJ found that Plaintiff had non-severe mental impairments of

23 depression, anxiety, and posttraumatic stress disorder. (AR at 13). In

24 evaluating the severity of Plaintiff’s mental impairments, the ALJ analyzed

25 each of the four functional areas2 that make up the paragraph B criteria and

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1 concluded Plaintiff only had mild limitations in each. (Id.). Plaintiff claims

2 that the ALJ erred in not finding her mental impairments to be severe based

3 on Dr. Dilger’s opinion. (ECF No. 14-1 at 3-4). Further, Plaintiff claims that

4 the ALJ failed to consider treatment notes from psychiatrist Dr. Luisa

5 Fijman. (Id.). Defendant argues that substantial evidence supports the

6 ALJ’s non-severity finding. (ECF No. 15-1 at 10-16).

7 As an initial matter, Dr. Dilger ultimately opined that Plaintiff’s

8 “degree of functional impairment does not meet or equal a listing level

9 severity” and that Plaintiff had “no significant psychological issues,” despite

10 having “some depression and anxiety symptoms” that were “showing

11 improvement in treatment.” (AR at 277). He noted that while Plaintiff had a

12 depressed mood with irritable and anxious affect, her mental status

13 examinations were “otherwise normal.” (AR at 271). However, Dr. Dilger did

14 find that Plaintiff had moderate limitations in difficulties in maintaining

15 social functioning, and maintaining concentration, persistence, or pace.3 (AR

16 at 271-72).

17 Conversely, the ALJ found Plaintiff had only mild limitations in

18 interacting with others and in concentration, persistence, or pace. (AR at 13).

19 The ALJ gave Dr. Dilger less weight because he assessed Plaintiff in 2016

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22 second area is interacting with others. The third functional area is concentrating,

persisting, or maintaining pace. The fourth functional area is adapting or managing

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oneself. (AR at 13).

24 3 Recent revisions to the Regulations regarding mental impairments, effective January 17,

2017, resulted in new paragraph B criteria. See Fed. Reg. 66138-01, 2016 WL 5341732, at

25 *661676 (Sept. 26, 2016). The Regulations in effect changed while Plaintiff’s application

was pending before the Social Security Administration. Dr. Dilger—who reviewed the

26 records in 2016—evaluated Plaintiff’s mental impairments using the B criteria set forth in

the previous version of the listings. (AR at 271-72). However, the ALJ applied the revised

1 and the overall record at the time of the administrative hearing in April of

2 2018 showed only mild mental limitations. (AR at 17). The ALJ did not

3 specifically cite any treatment or progress notes, but explained that

4 Plaintiff’s mental status examinations were “mostly unremarkable,” that she

5 was receiving non-emergency mental treatment, and that she received

6 “limited treatment that included medications.” (AR at 13, 17). The ALJ

7 stated that “[t]here is no evidence of psychiatric hospitalizations, suicidal

8 ideation, psychotic features or decompensations.” (AR at 13).

9 In the context of a claim under step two of the sequential analysis, the

10 Court’s inquiry focuses on whether the medical evidence clearly establishes

11 that, during the relevant period, Plaintiff did not develop mental limitations

12 that had “more than a minimal effect on” her ability to work for at least 12

13 continuous months. See Webb, 433 F.3d at 686; 20 C.F.R. § 404.1522. As

14 detailed below, Plaintiff saw various medical professionals from October 2014

15 to May 2018 for her mental impairments. These records support the ALJ’s

16 non-severity finding.

17 On October 15, 2014, Jennifer Jothen, DO, PC, noted that Plaintiff had

18 “no depressive symptoms” and “no changes in thought content.” (AR at

19 1537). On October 21, 2014, Plaintiff saw Dr. Zuhre N. Tutuncu and

20 mentioned anxiety relating to her physical pain. (AR at 1470). Dr. Tutuncu

21 recommended she “take it easy” and “not overdose on pain medication.” (Id.).

22 On October 29, 2014, Plaintiff saw Dr. Jeffrey A Sandler to obtain a refill on

23 an anxiety medication. (AR at 1835). Dr. Sandler noted that Plaintiff has

24 generalized anxiety disorder and has “chronically” required daily anxiety

25 medication. (Id.). Plaintiff also saw her psychiatrist, Dr. Fijman, on October

26 29, 2014. (AR at 746-51). Plaintiff reported to her that she was more anxious

1 Dr. Fijman noted that Plaintiff was cooperative, had effective eye control,

2 coherent speech, had a normal thought process, her judgment was “fair to

3 good,” and Plaintiff was mildly anxious. (AR at 749). She denied suicidal

4 and homicidal ideations. (Id.). Dr. Fijman explained that Plaintiff had “no

5 major disabilities based on [her] mental status exam.” (Id.).

6 On December 2, 2014, Plaintiff requested a refill on her anxiety

7 medication. (AR at 1821). On December 3, 2014, Plaintiff requested Dr.

8 Fijman refill several of her prescriptions and indicated she was seeing a

9 therapist. (AR at 746). On December 8, 2014, Plaintiff started taking

10 Temazepam for anxiety. (AR at 1818).

11 On January 1, 2015, Dr. Fijman prescribed Adderall because Plaintiff

12 was distracted and jumped from one task to the other. (AR at 743-44). On

13 March 26, 2015, Plaintiff requested an appointment with Dr. Fijman because

14 her Adderall prescription “fl[ew] out the window” and she needed another.

15 (AR at 742). On April 29, 2016, Dr. Fijman noted that Plaintiff seemed to be

16 in “good mood” and discussed the issue of controlled substances because

17 Plaintiff claimed her Adderall prescription flew out the window. (AR at 740).

18 On June 29, 2015, Dr. Fijman noted that Plaintiff’s affect was anxious,

19 but her judgment was good and she denied suicidal and homicidal ideations.

20 (AR at 739). On July 2, 2015, Plaintiff Saw Dr. Brunsting after experiencing

21 a panic attack induced by anxiety. (AR at 1787). Dr. Brunsting suggested a

22 follow-up exam. (Id.). On July 22, 2015, Dr. Fijman indicated that Plaintiff’s

23 mood and affect were sad and recommended she “put more effort” into

24 “everyday life experiences” and “how they affect her.” (AR at 736-37). She

25 also recommended Plaintiff increase the frequency of appointments with her

26 therapist. (Id.).

1 86). Plaintiff reported feeling stressed and overwhelmed, but denied suicidal

2 or homicidal ideation. (AR at 1784). Dr. Brunsting recommended she

3 continue with her current medications and follow up with psychiatry and a

4 psychologist. (Id.). On September 9, 2015, Dr. Fijman noted that Plaintiff’s

5 mood was subdued. (AR at 735).

6 On October 20, 2015, Plaintiff requested and received a Xanax refill

7 from her primary care physician instead of Dr. Fijman. (AR at 1779). On

8 October 21, 2015, Plaintiff told Dr. Fijman she was hospitalized recently.

9 (AR at 732). Dr. Fijman advised Plaintiff to “return to therapy” as soon as

10 possible. (Id.). Dr. Fijman otherwise noted that Plaintiff “appear[ed] happy.”

11 (Id.). On December 7, 2015, Dr. Fijman noted that Plaintiff’ attention and

12 concentration were intact and that she denied suicidal and homicidal

13 ideations. (AR at 729).

14 On February 3, 2016, Plaintiff reported to her primary care physician

15 that she had been upset and crying for four days. (AR at 1759). She was told

16 to continue with her medications and schedule a follow-up with psychiatry.

17 (AR at 1758). Plaintiff also saw Dr. Fijman on February 3, 2016. (AR at 726-

18 27). Her mood was subdued and her affect was sad, but Dr. Fijman noted

19 that her attention and concentration were intact and Plaintiff denied suicidal

20 and homicidal ideations. (AR at 727). Dr. Puja Chitkara saw Plaintiff on

21 February 8, 2016 and noted that her depression and anxiety were “flaring,”

22 but that Plaintiff denied suicidal or homicidal ideation. (AR at 1506). Dr.

23 Chitkara spoke to Plaintiff’s psychiatrist at length and noted that Plaintiff’s

24 depression may play a role in her arthritic pain. (Id.). Dr. Fijman saw

25 Plaintiff two days later on February 10, 2016. (AR at 725). Dr. Fijman

26 observed that Plaintiff’s affect was subudued and her affect was mildly

1 On February 18, 2016, Plaintiff saw Dr. Brunsting for depression. (AR

2 at 1753). Dr. Brunsting educated Plaintiff “regarding hospitalization as a

3 treatment modality” and recommended she follow-up with him in three

4 weeks. (Id.). Plaintiff went to the emergency room the next day and

5 explained that Dr. Brunsting recommended she come in. (AR at 1664). The

6 emergency room doctor was unclear as to why Plaintiff was admitted because

7 she was not suicidal, homicidal, or in any severe distress. (Id.). She was

8 ultimately discharged a short time later.

9 On March 10, 2016, Plaintiff saw Dr. David Brunsting regarding

10 posttraumatic stress disorder, anxiety, and depression. (AR at 1748). He

11 noted that Plaintiff’s symptoms improved with therapy and that she was

12 feeling more hopeful. (Id.). On April 7, 2016, Dr. Chitkara noted that

13 Plaintiff’s depression and anxiety were “stable” and that she was seeing a

14 new psychiatrist. (AR at 175). On May 2, 2016, Plaintiff reported to Dr.

15 Bradley A. Eli that her anxiety and depression had increased. (AR at 1504).

16 However, on May 12, 2016, Dr. Brunsting noted that Plaintiff’s “chronic

17 major depression [is] stable, especially in light of recent trauma in her life.”

18 (AR at 2186). He noted that she did not have suicidal or homicidal ideation

19 and was to continue on her current medications. (Id.). Dr. Brunsting

20 recommended she follow-up with him in two to three months. (Id.).

21 On June 2, 2016 and June 16, 2016, Plaintiff was seen by Nurse

22 Practitioner Kristin Preiser at Achieve Medical Center for depression,

23 posttraumatic stress disorder, and anxiety disorder. (AR at 1110-21). On

24 June 2, 2016, Plaintiff reported feelings of depression and anxiety and that it

25 has been difficult for her to leave the house due to “significantly decreased

26 motivation.” (AR at 1119). Plaintiff stated that her sleep is interrupted and

1 ideations. (Id.). On June 16, 2016, Plaintiff reported that “things have been

2 crazy,” but indicated she was taking less Xanax and was sleeping better with

3 less nightmares. (AR at 1113). She reported feelings of depression at a

4 “9/10,” but “adamantly” denied suicidal or homicidal ideation. (Id.). Her

5 mental status examinations on both days revealed no evidence of a cognitive

6 impairment; her behavior was cooperative, friendly, well-related, and she had

7 good eye contact; her speech was normal; her thought content was normal,

8 her thought processes were linear, logical, future oriented, non-responsive to

9 internal stimuli, and her reality testing appeared intact; her judgment was

10 good and intact; and her impulse control was also intact. However, her mood

11 was depressed and anxious and her affect was somewhat irritable and

12 anxious, restricted ranging, but reactive and congruent with mood and

13 thought content. (AR at 1113, 1120). At both appointments, Nurse

14 Practitioner Preiser noted that Plaintiff was “able to be managed at current

15 outpatient level of care.” (AR at 1115, 1120). Dr. Brunsting also saw

16 Plaintiff on June 16, 2016 for her anxiety disorder and noted that Plaintiff

17 felt well with no specific complaints and that she was compliant with her

18 medication. (AR at 2176).

19 Plaintiff reported to Dr. Brunsting that she saw psychiatrist Dr. Ivan

20 Baroya on September 23, 2016, and that he told her to stop taking Xanax and

21 to check into a detoxification program. (AR at 2018). She reportedly went to

22 Sharp Memorial on September 24, 2016, was given Ativan and Dilaudid, and

23 subsequently sent to “Mesa Vista BH.” (Id.). However, Plaintiff felt

24 mistreated there and left at 3am. (Id.). On September 25, 2016, Plaintiff

25 went to Scripps Mercy Hospital for a “Xanax detox.” (AR at 2028). Plaintiff

26 stated she did not feel like hurting herself or others, but that that she had

1 three days. (Id.). Plaintiff further reported increasing emotional lability and

2 crying for the last few weeks. (AR at 2018). She was discharged home and

3 referred to Aurora, but Plaintiff felt that program was not appropriate for her

4 because “she’s not an addict.” (Id.). Plaintiff saw Dr. Brunsting on

5 September 30, 2016, who recommended she continue to follow-up with her

6 psychologist and psychiatrist and to report to an outpatient detoxification

7 program. (AR at 2144).

8 On October 12, 2016, Plaintiff saw Dr. Brunsting to discuss her

9 posttraumatic stress disorder with night terrors, major depression, and

10 anxiety. (AR at 2139). Plaintiff reported that she was “in between

11 psychiatrists” and was told that detoxifying from Xanax was not a good idea.

12 (Id.). On October 20, 2016, Dr. Chitkara noted that Plaintiff was “not

13 currently seeing a psychiatrist.” (AR at 118).

14 On November 16, 2017, Plaintiff saw a Nurse Practitioner, who noted

15 that Plaintiff’s posttraumatic stress disorder was stable on current

16 medication. (AR at 2065). On December 21, 2016, Dr. Chitkara noted that

17 Plaintiff still was not currently seeing a psychiatrist and was receiving

18 medication from her primary care provider. (AR at 218). Dr. Chitkara

19 advised Plaintiff to “establish with [a] psychiatrist.” (Id.). By May 8, 2018,

20 Dr. Chitkara noted that Plaintiff was seeing a psychologist, but was “still

21 having issues” with depression and anxiety. (AR at 196).

22 Having carefully reviewed the objective medical evidence, the Court

23 finds that it does clearly establish that Plaintiff did not have mental

24 impairments that did, or were likely to, cause more than minimal limitations

25 on her ability to perform any basic work activity for a continuous period of 12

26 months or more. See Webb, 433 F.3d at 686. To the contrary, Plaintiff’s

1 intact and that her mental impairments were generally well controlled with

2 treatment.

3 b. Weight Accorded to Dr. Dilger

4 Plaintiff also challenges the weight accorded to Dr. Dilger’s opinion

5 because the ALJ’s finding is not supported by substantial evidence and he did

6 not consider any treating physicians’ opinions. (ECF No. 14-1 at 3-4).

7 Defendant contends the ALJ’s finding is supported by substantial evidence.

8 (ECF No. 15-1 at 11-16).

9 The opinion of a non-examining physician, such as Dr. Dilger, may

10 serve as substantial evidence if it is supported by other evidence in the record

11 and is consistent with it. Andrews, 53 F.3d at 1041. Plaintiff essentially

12 argues that Dr. Dilger’s opinion that Plaintiff had moderate mental

13 limitations is supported by substantial evidence and therefore the ALJ

14 improperly accorded “less weight” to it. (See ECF No. 14-1 at 3-4). As

15 discussed previously in great detail, the ALJ correctly found that the overall

16 record at the time of the hearing—which included an additional 2 years of

17 records—showed only mild mental limitations. (See AR at 17). As such, Dr.

18 Dilger’s opinion cannot serve as substantial evidence because it is not

19 supported by the overall record and the ALJ correctly gave less weight to his

20 opinion. See Andrews, 53 F.3d at 1041; see also Gallant v. Heckler, 753 F.2d

21 1450, 1454 (9th Cir. 1984) (holding that a non-examining physician’s opinion

22 does not constitute substantial evidence when the opinion is contradicted by

23 all other evidence in the record).

24 Plaintiff next contends the ALJ should have considered Dr. Fijman’s

25 opinion. (ECF No. 14-1 at 4). The ALJ did not discuss any treating medical

26 opinions in his decision. (See AR at 11-19). The record in this case is over

1 generally AR). However, as detailed above, Dr. Fijman’s treatment records do

2 not contain opinions addressing what limitations in mental functioning

3 Plaintiff experiences as a result of her symptoms. (See AR at 725-51). It was

4 therefore not error for the ALJ to not consider any treating opinions with

5 respect to Plaintiff’s mental limitations. See Tamara N. v. Berryhill, No.

6 3:17-cv-05840-TLF, 2018 WL 6804317, at *2-3 (W.D. Wash. Dec. 27, 2018)

7 (finding no error where there were no treating or examining opinions and the

8 ALJ relied on the plaintiff’s treatment records to find mild limitations in

9 mental functioning).

10 2. Physical Impairments

11 Plaintiff argues the ALJ erred in according less weight to the opinion of

12 Dr. Reddy, the only examining physician. (ECF No. 14-1 at 5). Further,

13 Plaintiff contends the ALJ erred by not discussing any treating physicians’

14 opinions. (Id.). Defendant contends the ALJ appropriately assigned less

15 weight to Dr. Reddy’s opinion. (ECF No. 15-1). Defendant did not address

16 Plaintiff’s argument regarding treating physicians. (See id.).

17 a. Dr. Reddy

18 Plaintiff first argues that the ALJ erred by not giving controlling weight

19 to the opinion of Dr. Reddy, a consultative examiner. (ECF No. 14-1 at 5-6).

20 Dr. Reddy’s less than sedentary exertional capacity opinion is contradicted by

21 Drs. Amado and Kanner, who opined that Plaintiff had a medium residual

22 functional capacity. (AR at 17). An ALJ may reject the contradicted opinion

23 of an examining doctor for “specific and legitimate” reasons supported by

24 substantial evidence in the record. Trevizo v. Berryhill, 871 F.3d 664, 675

25 (9th Cir. 2017).

26 Plaintiff was examined by Dr. Reddy on April 30, 2018. (AR at 2198).

1 wheelchair for 2 years, a walker for 2 years before that, and a cane for 2

2 years prior. (AR at 2199). Dr. Reddy reported that most of the medical

3 history was obtained from Plaintiff and some from her medical records. (Id.).

4 Plaintiff’s strength in all extremities was “5/5” and she had full range of

5 motion in her cervical spine. (AR at 2200). Dr. Reddy could not examine

6 Plaintiff’s range of motion in her lumbar spine or hips because Plaintiff did

7 not get out of her wheelchair. (AR at 2201). However, Dr. Reddy noted that

8 Plaintiff had moderate tenderness and some stiffness in her lumbar spine,

9 and mild-to-moderate tenderness present in her left hip. (Id.). Plaintiff

10 experienced pain in both legs when Dr. Reddy conducted a straight leg test,

11 which was “positive at 60 degrees.” (Id.). Dr. Reddy assessed Plaintiff with

12 a less than sedentary exertional capacity. (AR at 2201-02). While Plaintiff

13 told Dr. Reddy that “she cannot walk at all and she can sit four hours without

14 interruption and she can sit six hours total in [an] eight hour work day with

15 15 minute break[s] in between,” Dr. Reddy opined that Plaintiff could stand

16 for “maybe one hour” and could walk “maybe less than one hour.” (AR at

17 2201). Dr. Reddy explained that the large number of medications that

18 Plaintiff took were causing several side effects, possibly including her

19 blackouts. (AR at 2202). Dr. Reddy opined that Plaintiff should stop taking

20 many of the medications, some of which counteract each other. (Id.).

21 The ALJ gave “less weight” to Dr. Reddy’s less than sedentary

22 exertional capacity because “it is not consistent with [Plaintiff’s] upper and

23 lower extremity strength, her overmedication with prescription medications,

24 and the overall treatment record that does not support such restrictive

25 exertional limitations.” (AR at 17). In support, the ALJ points to normal x-

26 rays and MRIs and notes that Plaintiff was prescribed several medications to

1 show no abnormalities, including those of her right femur, right knee, right

2 ankle, bilateral hips, cervical spine, lumbar spine, and bilateral shoulders”

3 and “[t]he x-rays on December 28, 2015 of the claimant’s bilateral hips

4 showed stable mild degenerative changes.” (AR at 16, 616-17, 755-64, 2157-

5 60). Additionally, the ALJ noted that “[a]n MRI of the claimant’s cervical

6 spine on August 19, 2015, showed mild bulging at C5-C6.” (AR at 16, 759).

7 Further, the ALJ explained that Plaintiff’s wheelchair use was not stated in

8 earlier records. (AR at 17). As noted by Defendant, Plaintiff reported that

9 she walked for exercise as late as December 5, 2017 and Plaintiff’s use of a

10 wheelchair is not otherwise indicated in the record. (AR at 2071).

11 In light of the inconsistencies between Dr. Reddy’s less than sedentary

12 exertional capacity outlined in Dr. Reddy’s opinion, and Plaintiff’s more

13 benign treatment history, the Court concludes that the ALJ’s decision to give

14 Dr. Reddy “less weight” is based on specific and legitimate reasons supported

15 by substantial evidence. See Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir.

16 2017) (holding that an ALJ may properly reject the opinion that is

17 inconsistent with the physician’s own examination); see also Morgan v.

18 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999) (holding

19 that an ALJ may reject the opinions of a physician where the opinions are

20 inconsistent with the overall record). The Court also concludes that the ALJ

21 sufficiently summarized and detailed facts and conflicting evidence to

22 support his findings. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)

23 (finding that an ALJ must “do more than offer his conclusions” to reject an

24 opinion as inconsistent with the overall record); see also Magallanes v.

25 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (finding the ALJ must “set[] out a

26 detailed and thorough summary of the facts and conflicting evidence, stating

1 Plaintiff next argues that the ALJ did not appropriately consider the

2 factors articulated in 20 C.F.R. § 404.1527 in deciding whether to give the

3 opinion greater weight than the other medical evidence in the record. (ECF

4 No. 14-1). The Ninth Circuit recently held that an opinion that is not

5 controlling must be “weighted according to factors such as the length of the

6 treatment relationship and the frequency of the examination, the nature and

7 extent of the treatment relationship, supportability, consistency with the

8 record, and specialization of the physician.” Trevizo v. Berryhill, 871 F.3d

9 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)-(6)). An ALJ’s

10 failure to consider these factors “constitutes reversible legal error.” Id. at

11 676. In assessing an ALJ’s compliance with these factors, district courts

12 must only consider “the ALJ’s stated bases” for discounting the opinion and

13 may not “look[] to the remainder of the record to support the ALJ’s decision.”

14 Id. at 677 n.4. However, “Trevizo does not demand a full-blown written

15 analysis of all the factors; it merely requires some indication that the ALJ

16 considered them.” Torres v. Berryhill, No. 3:17-cv-01273-H-PCL, 2018 WL

17 1245106, at *5 (S.D. Cal. Mar. 9, 2018) (internal quotation marks and

18 citations omitted) (collecting cases). As such, the ALJ’s decision must be

19 affirmed if “the record sufficiently shows the ALJ considered the necessary

20 elements. See id. (internal quotation marks and citations omitted).

21 The ALJ did consider the necessary elements. The nature and length

22 treatment relationship were limited, as Dr. Reddy examined Plaintiff on one

23 occasion and because Plaintiff did not get out of her wheelchair. (AR at 16-

24 17). The ALJ acknowledged Dr. Reddy’s specialization as a “Board certified

25 physician.” (AR at 16). Finally, the ALJ assessed the supportability and

26 consistency of Dr. Reddy’s opinion with the overall record. (AR at 17). For

1 inconsistent with Dr. Reddy’s own finding of full lower and upper extremity

2 strength and inconsistent with Plaintiff’s repeated x-rays showing no

3 abnormalities. (Id.) The Court therefore concludes that the ALJ did not

4 commit legal error in according Dr. Reddy’s opinion less weight for failure to

5 weigh the factors outlined in 20 C.F.R. § 404.1527. In summation, the ALJ

6 did not err in assigning “less weight” to Dr. Reddy.

7 b. Treating Physician Opinions

8 Next, Plaintiff argues the ALJ erred in not considering any treating

9 physicians’ opinions. (ECF No. 14-1 at 5-6). As discussed earlier, the ALJ

10 did not discuss any treating medical opinions in his decision. (See AR at 11-

11 19). The treatment records do not contain opinions addressing what

12 limitations in physical functioning Plaintiff experiences as a result of her

13 symptoms. (See generally, id.). The Court notes that Plaintiff refers to

14 opinions proffered by physical therapists. (ECF No. 14-1 at 5). Medical

15 opinions can only be issued by an “acceptable medical source.” 20 C.F.R. §

16 404.1527(a)(1). Physical therapists do not qualify as an “acceptable medical

17 source.” 20 C.F.R. § 404.1502(a); see SSR 06-03p, 2006 SSR LEXIS 5.

18 Additionally, only acceptable medical sources can be considered treating

19 sources. SSR 06-03p, 2006 SSR LEXIS 5. Accordingly, there were no

20 treating opinions to consider and therefore no error.4

21 //

22

23

24 4 Further, as noted by Defendant, Plaintiff’s physical therapists merely state that Plaintiff

“has difficulty dressing, cooking and cleaning independently” as a historical reference.

25 (AR at 517, 521, 525, 529, 533, 537, 541). While in some cases it may be appropriate to

give more weight to the opinion of an “other source,” it is typically not appropriate to do so

26 unless, for example, the other source provided better evidence and a better explanation for

his or her opinion. SSR 06-03p, 2006 SSR LEXIS 5, at *12-13. Plaintiff’s physical

1 3. Development of the Record

2 Finally, Plaintiff argues the ALJ did not fully and fairly develop the

3 record. (ECF No. 14-1 at 6). Plaintiff contends the ALJ admitted “that he

4 [was] confused by the record and that he believe[d] that the record [was]

5 incomplete.” (Id. at 7). In support, Plaintiff points out that she submitted an

6 additional 800 pages of medical records after the administrative hearing and

7 the ALJ noted that they provided “little guidance” on her conditions. (Id. at

8 6). Additionally, Plaintiff explains that she told the ALJ at the

9 administrative hearing that she had undergone 14 surgeries in the past 2

10 years and the ALJ noted that those surgeries could not be identified from the

11 file. (Id.). Defendant contends that the ALJ’s statements show that “the

12 record failed to corroborate Plaintiff’s testimony.” (ECF No. 15-1).

13 It is well established in the Ninth Circuit that the ALJ has a special

14 duty to fully and fairly develop the record and to assure that the claimant’s

15 interests are considered, and that this special duty exists. Garcia v. Comm’r

16 of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014). However, it remains the

17 claimant’s duty to prove that he/she is disabled. See Mayes v. Massanari, 276

18 F.3d 453, 459 (9th Cir. 2001). An ALJ’s duty to develop the record further is

19 triggered only when there is ambiguous evidence or when the record is

20 inadequate to allow for proper evaluation of the evidence. Id.

21 Here, Plaintiff has failed to articulate her argument that the ALJ failed

22 to develop the record. Plaintiff asserts that her testimony at the

23 administrative hearing that she underwent 14 surgeries in the past 2 years

24 shows that the record is incomplete. She likewise contends that the ALJ’s

25 statement that the additional 800 pages submitted after the hearing were of

26 “little guidance” show an incomplete record. Plaintiff is incorrect, these

1 statements show that Plaintiff’s statement regarding surgeries was

2 unsupported by the record and that the additional 800 pages were of minimal

3 relevance. These statements do not constitute ambiguous evidence that

4 supposedly triggered the duty to further develop the record. Of import,

5 Plaintiff does not argue additional medical evidence relating to her

6 impairments existed but were omitted from the record. (See ECF Nos. 14-1,

7 17). Instead, her argument is premised on the misconception that the ALJ

8 was “confused by the record” and believed “the record is incomplete.” (ECF

9 No. 14-1 at 7). Plaintiff also does not specify in what respects the record

10 supposedly was inadequate to allow for proper evaluation of the evidence.

11 (See id.).

12 In any event, the Court finds that the ALJ fulfilled his duty to develop

13 the record when he sent Plaintiff a pre-hearing notice instructing her to

14 submit all evidence known to her that related to her disability claim and

15 advising her of her right to request a subpoena for additional records (AR at

16 345), and when he acceded to Plaintiff’s counsel’s request to hold the record

17 open following the administrative hearing to allow Plaintiff to submit

18 additional medical records (AR at 11, 257-59). See Connor v. Colvin, 674 F.

19 App’x 629, 630 (9th Cir. 2017) (holding the ALJ satisfied the duty to develop

20 the record where the ALJ sent notices prior to the hearing instructing the

21 claimant to submit probative evidence and left the record open for 30-days

22 post-hearing to give the claimant a chance to supplement the record); Tidwell

23 v. Apfel, 161 F.3d 599, 602 (9th Cir. 1988) (holding that the ALJ satisfied any

24 duty to develop the record by requesting additional records from claimant

25 and her counsel, and by keeping post-hearing record open for supplemental

26 medical evidence). Accordingly, the Court finds that reversal is not

1 CONCLUSION

2 Based on the foregoing, the Court RECOMMENDS that the District

3 Court AFFIRM the ALJ’s decision finding Plaintiff not disabled and denying

4 ||Supplemental Security Income, DENY Plaintiff's Motion for Summary

5 || Judgment (ECF No. 14), and GRANT Defendant’s Cross-Motion for

6 ||Summary Judgment (ECF No. 15). This Report and Recommendation of the

7 ||}undersigned Magistrate Judge is submitted to the United States District

g || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. §

9 ||636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for

10 ||the Southern District of California.

11 IT IS HEREBY ORDERED that any written objection to this report

12 ||must be filed with the court and served on all parties no later than

13 ||September 8, 2020. The document should be captioned “Objections to

14 Report and Recommendations.”

15 IT IS FURTHER ORDERED that any reply to the objections shall be

16 || filed with the Court and served on all parties no later than September 15,

17 2020. The parties are advised that failure to file objections within the

18 specified time may waive the right to raise those objections on appeal of the

19 || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

20 IT IS SO ORDERED.

Dated: August 25, 2020 uk s | [

Hon. Mitchell D. Dembin

23 United States Magistrate Judge

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