“Even when an agency “explains 4 its decision with ‘less than ideal clarity,’ we must uphold it ‘if the agency’s path may be 5 reasonably discerned.’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 6 461, 497 (2004))
How later courts described this case
- “Even when an agency “explains 4 its decision with ‘less than ideal clarity,’ we must uphold it ‘if the agency’s path may be 5 reasonably discerned.’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 6 461, 497 (2004))
- “Even if the treating doctor’s opinion is contradicted by another 6 doctor, the Commissioner may not reject this opinion without providing ‘specific and 7 legitimate reasons’ supported by substantial evidence in the record for doing so.”
- stating that a treating physician’s opinion may be “entitled to little if any 8 weight” where the physician “presents no support for her or his opinion.”
- declining 19 to afford greater weight to a more recent medical report when it was “far from clear that 20 [the plaintiff’s] condition was progressively deteriorating”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 LEON D., JR., Case No.: 18-cv-02624-LAB-JLB
12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION
14 ANDREW SAUL, Acting Commissioner
of Social Security,1
15
Defendant.
16
17 [ECF No. 15]
18
19 I. INTRODUCTION
20 Before the Court is Plaintiff Leon D., Jr.’s Motion for Summary Judgment. (ECF
21 No. 15.) Plaintiff moves under 42 U.S.C. § 405(g) for judicial review of the Commissioner
22 of Social Security’s final decision denying his application for a period of disability and
23 disability insurance benefits under Title II of the Social Security Act. The Commissioner
24 opposes Plaintiff’s motion. (ECF No. 16.)
25
26
27
1 Andrew Saul is hereby substituted as the defendant in this case pursuant to Federal
28 Rule of Civil Procedure 25(d).
1 This Report and Recommendation is submitted to United States District Judge Larry
2 Alan Burns pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United
3 States District Court for the Southern District of California. After a careful review of the
4 moving and opposing papers, the administrative record, and the applicable law, the Court
5 RECOMMENDS that the District Court DENY Plaintiff’s Motion for Summary
6 Judgment.
7 II. PROCEDURAL BACKGROUND
8 On April 6, 2015, Plaintiff filed a claim for a period of disability and disability
9 insurance benefits under Title II of the Social Security Act, alleging disability commencing
10 August 14, 2014, his amended onset date.2 (Administrative Record (“AR”) 30, 137.) After
11 his application was denied initially on August 14, 2015, and upon reconsideration on
12 October 23, 2015, Plaintiff timely requested a hearing before an administrative law judge
13 (“ALJ”) on October 26, 2015. (AR 50, 61, 82.) On November 8, 2017, Plaintiff, his
14 attorney, and vocational expert (“VE”) Erin Welsh appeared before ALJ Howard K.
15 Treblin (“the ALJ”). (AR 27.) In a decision dated January 31, 2018, the ALJ found that
16 Plaintiff was not disabled as defined by the Social Security Act. (AR 22.) The ALJ’s
17 decision became the final decision of the Commissioner on September 24, 2018, when the
18 Appeals Council denied Plaintiff’s request for review. (AR 1.) Plaintiff then commenced
19 this action for judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1.)
20 III. SUMMARY OF THE ALJ’S FINDINGS
21 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential
22 evaluation process. See 20 C.F.R. § 416.920. At Step One, the ALJ found that Plaintiff
23 had not engaged in substantial gainful activity from his alleged disability onset date of
24 August 14, 2014, through his date last insured of December 31, 2017. (AR 17.) At Step
25
26
2 Plaintiff initially alleged that he became disabled on August 14, 2012. (AR 137.)
27
However, at the administrative hearing, Plaintiff’s counsel amended the disability onset
28 date to August 14, 2014. (AR 30.)
1 Two, the ALJ found that Plaintiff had the following severe impairments: a spinal disorder,
2 dysfunction of major joints, hypertension, and sprains and strains. (Id.) At Step Three, the
3 ALJ found that Plaintiff did not have an impairment or combination of impairments that
4 met or medically equaled the severity of one of the impairments listed in the
5 Commissioner’s Listing of Impairments. (AR 20.)
6 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”):
7
to perform a wide range of medium work as defined in 20 C.F.R.
8 § 404.1567(c). Specifically, [Plaintiff] was able to lift and carry up to 50
pounds occasionally and up to 25 pounds frequently. He was able to sit, stand
9
or walk up to 6 hours each in an 8-hour workday. [Plaintiff was] able to
10 perform positional tasks such as climbing stairs, crouching, kneeling,
balancing, or stooping on a frequent, but not constant basis.
11
12 (Id.)
13 At Step Four, the ALJ compared the RFC assessed to the demands of Plaintiff’s past
14 relevant work as a motor coach operator, DOT 913.463-010.3 (AR 21–22.) The ALJ relied
15 on the VE’s testimony that work as a motor coach operator “did not require the
16 performance of work-related activities precluded” by Plaintiff’s RFC. (Id.) After
17 comparing Plaintiff’s RFC with the physical and mental demands of a motor coach
18 operator, the ALJ found that Plaintiff was able to perform past relevant work “as actually
19 and generally performed” and concurred with the VE’s testimony. (AR 22.) Accordingly,
20 the ALJ found that Plaintiff was not disabled under the Social Security Act and did not
21 proceed to Step Five of the sequential evaluation process—whether Plaintiff was able to
22 perform other types of substantial gainful work that exists in the national economy. (Id.)
23 ///
24 ///
25
26
3 The ALJ cites 913.452-010 as the DOT code for motor coach operator, which is
27
incorrect. 913.463-010—the code testified by the VE during the administrative hearing—
28 is correct. (See AR 36.)
1 IV. STANDARD OF REVIEW
2 The Social Security Act allows for unsuccessful applicants to seek judicial review
3 of the Commissioner’s final agency decision. See 42 U.S.C. § 405(g). The scope of
4 judicial review, however, is limited. The Commissioner’s final decision should not be
5 disturbed unless: (1) the ALJ’s findings are based on legal error; or (2) the ALJ’s
6 determinations are not supported by substantial evidence in the record as a whole. See
7 Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). Substantial
8 evidence is “more than a mere scintilla, but may be less than a preponderance.” Lewis v.
9 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Substantial evidence is “relevant evidence that,
10 considering the entire record, a reasonable person might accept as adequate to support a
11 conclusion.” Id.; accord Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir.
12 2003).
13 In making this determination, the Court must consider the record as a whole,
14 weighing both the evidence that supports and the evidence that detracts from the ALJ’s
15 conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Desrosiers v.
16 Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). Where the evidence
17 can reasonably be construed to support more than one rational interpretation, the Court
18 must uphold the ALJ’s decision. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
19 1190, 1193 (9th Cir. 2004). This includes deferring to the ALJ’s credibility determinations
20 and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.
21 V. PLAINTIFF’S CLAIMS OF ERROR
22 In his Motion for Summary Judgment, Plaintiff claims that the ALJ erred in
23 weighing the medical opinions of Plaintiff’s treating physician, Dr. Jeffrey Dysart, and two
24 orthopedic consultative examiners, Dr. Thomas J. Sabourin and Dr. Zaven Bilezikjian.
25 Specifically, Plaintiff argues that the ALJ improperly rejected Dr. Dysart’s opinion and
26 was required, but failed, to consider the factors set forth in 20 C.F.R. § 404.1527(c) when
27 giving Dr. Dysart’s opinion as a treating physician less than controlling weight. Plaintiff
28 ///
1 further argues that the ALJ improperly rejected Dr. Sabourin’s opinion and credited Dr.
2 Bilezikjian’s opinion over Dr. Sabourin’s without explanation.
3 VI. SUMMARY OF THE RELEVANT MEDICAL EVIDENCE
4 A. Dr. Dysart
5 Plaintiff testified at the administrative hearing that Dr. Dysart is his “primary doctor”
6 and, at that time, had been treating Plaintiff for approximately twenty-five years. (AR 34.)
7 Plaintiff has an appointment with Dr. Dysart “once [e]very couple of months . . . when the
8 need arises.” (Id.) Despite Plaintiff’s long treatment history with Dr. Dysart, the
9 administrative record contains few records from Dr. Dysart; only four treatment records
10 and a Physical Medical Source Statement (“MSS”) from Dr. Dysart are included, which
11 are summarized here.
12 • On October 30, 2012, Plaintiff visited Dr. Dysart for hypertension and a flu shot.
13 (AR 249.) Dr. Dysart refilled Plaintiff’s 10mg Amlodipine Besylate prescription,
14 which he was to take daily for blood pressure control. (AR 249, 251.) Dr. Dysart’s
15 physical exam of Plaintiff reported no abnormalities. (AR 249–50.)
16 • On July 30, 2015, Plaintiff saw Dr. Dysart for a follow-up visit after being treated in
17 an emergency room for GERD and an irregular heart rate with an EKG within
18 normal limits. (AR 293.) Dr. Dysart diagnosed Plaintiff with acid reflux and advised
19 that Plaintiff follow a healthy–heart diet for high cholesterol treatment. (AR 294–
20 95.) Dr. Dysart prescribed Plaintiff 40mg of Lisinopril to take daily for blood
21 pressure control, in addition to the 10mg of Amlodipine Besylate. (AR 295.) Dr.
22 Dysart’s physical exam of Plaintiff reported no abnormalities. (AR 293–94.)
23 • On August 8, 2015, Dr. Dysart ordered a TSH test, the results of which do not appear
24 in the record. (AR 302–03.)
25 • On August 17, 2015, Plaintiff visited Dr. Dysart for an irregular heartbeat and upper
26 GI problems. (AR 297.) Dr. Dysart prescribed Plaintiff 10mg of Propranolol Hcl
27 to take daily for recurrent palpitations. (AR 299.) Dr. Dysart’s physical exam of
28 Plaintiff reported no abnormalities. (AR 298–99.)
1 • On September 19, 2017, Dr. Dysart completed an MSS regarding Plaintiff’s ability
2 to do work-related activities on a day-to-day basis in a regular work setting. (AR
3 313–14.) In the MSS, Dr. Dysart opined that Plaintiff has had the following
4 limitations “since before 2013”: He could lift and carry only ten pounds, whether on
5 an occasional or frequent basis. (AR 313.) He could stand and walk for about six
6 hours during an eight-hour day but could sit less than two hours during an eight-hour
7 day. (Id.) He could sit for thirty minutes and stand for fifteen minutes before
8 changing position and would need to walk around every thirty minutes for ten
9 minutes. (Id.) He would need the opportunity to shift at will from sitting or
10 standing/walking. (Id.) The medical finding that supported these exertional
11 limitations was “limited [range of motion] of back.” (Id.) Additionally, he could
12 never twist, crouch, or climb stairs or ladders and could occasionally stoop (bend).”
13 (AR 314.) The medical finding that supported these positional limitations was
14 “limited back [range of motion].” (Id.) “[L]imited back [range of motion]” also
15 affected his ability to push and pull. (Id.) On average, he would be absent from
16 work about three days per month due to his impairments or treatment. (Id.)
17 B. Dr. Sabourin
18 Plaintiff saw Dr. Sabourin, a board-certified orthopedic surgeon, once on May 20,
19 2014, for a consultative examination. (AR 255, 259.) Plaintiff testified at the
20 administrative hearing that his appointment with Dr. Sabourin lasted at most thirty minutes.
21 (AR 35.)
22 Plaintiff’s chief complaints to Dr. Sabourin were of lower back pain that radiated to
23 his hips and pain in his left knee. (AR 255.) Upon examination of Plaintiff’s lower back,
24 Dr. Sabourin assessed a normal range of motion of the lumbar spine without pain and
25 minimal tenderness in the paralumbar area. (AR 257.) There was no palpable spasm,
26 swelling, or heat. (Id.) Straight leg raising tests in both the sitting and supine positions
27 were negative. (Id.) Plaintiff had a normal gait and was able to sit and stand with normal
28 posture and easily get on and off the examination table. (AR 256.) Dr. Sabourin’s
1 diagnostic impression of Plaintiff’s lower back pain was “[c]hronic lumbar strain and
2 sprain.” (AR 258.) Dr. Sabourin noted that Plaintiff, as a 61-year-old, “would have
3 degenerative changes in his spine at this point, which would give him some of his back
4 problems.” (Id.) Dr. Sabourin found that Plaintiff “most likely” had “early degenerative
5 disc disease of the lumbar spine, but without neurological deficit.” (Id.)
6 Upon examination of Plaintiff’s knees, Dr. Sabourin assessed a “slight warmth” and
7 “significant effusion” in the left knee and reduced range of motion in both knees. (AR
8 257–58.) A knee’s normal range of motion is 0–150, and Plaintiff’s range was 0–135 for
9 the right knee and 0–130 for the left knee. (AR 257.) Plaintiff’s knees otherwise showed
10 no instability, tenderness, crepitus, or gross deformities, and a McMurray test was negative.
11 (Id.) Dr. Sabourin’s diagnostic impression of Plaintiff’s left knee pain was a “large
12 effusion” with “undetermined etiology.” (AR 258.) Dr. Sabourin found Plaintiff’s left
13 knee impairment “more significant” than his back impairment, for his left knee showed
14 “chronic effusion and synovitis,” and Plaintiff had a “problem with his left knee extending
15 for over a year.” (Id.)
16 Dr. Sabourin assessed Plaintiff to have the following work-related limitations:
17
[H]e could only lift or carry 20 pounds occasionally and 10 pounds frequently.
18 He could stand and walk up to six hours of an eight-hour workday with those
lightweights and sit for six hours of an eight-hour workday. Push and pull
19
limitations will be 50 pounds occasionally and 25 pounds frequently. He is
20 unable to walk on uneven terrain except occasionally[,] and he can climb,
kneel and crouch only occasionally. He could stoop frequently. He has no
21
manipulative limitations. He does not use assistive devices to ambulate.
22
23 (Id.) Dr. Sabourin opined that Plaintiff’s limitations were “mainly due to the chronic left
24 knee problem,” which at that time had “been present for more than a year.” (Id.)
25 Following his consultation with Dr. Sabourin, x-rays were taken of Plaintiff’s left
26 knee on June 20, 2014. (AR 264.) The x-rays showed osteopenia, “[s]mall spurs. . . from
27 the medical articular margins of the femur and tibia and minimally from the dorsal margin
28 of the patella,” “mild narrowing of the medical compartment joint space,” “a small joint
1 effusion,” and “[m]ultiple small oval calcifications . . . in the dorsal aspect of the joint.”
2 (Id.) The radiologist’s diagnostic impression was early osteoarthritis with “[s]oft tissue
3 calcifications dorsally.” (Id.)
4 C. Dr. Bilezikjian
5 Plaintiff saw Dr. Bilezikjian, a diplomate of the American Board of Orthopaedic
6 Surgery, for a second consultative examination on July 24, 2015. (AR 280.) Plaintiff
7 testified at the administrative hearing that his appointment with Dr. Sabourin lasted at most
8 thirty minutes. (AR 35.)
9 Plaintiff’s chief complaints to Dr. Bilezikjian were of pain in his back and left knee.
10 (AR 280.) Plaintiff provided Dr. Bilezikjian with a history of his back and knee issues,
11 which Dr. Bilezikjian summarized as follows:
12
The back pain started 10 years ago without any injury. The pain is
13 intermittent. It occurs when he does the wrong motion such as twisting his
back or lifting or bending, and he feels a severe catching in his back. The pain
14
lasts 3-5 days and then subsides. In between these episodes he is fine. He has
15 had x-rays done which showed degenerative changes there. He is not taking
any medications at the present time for pain. He has no pain at all.
16
17
He had a twisting injury of the left knee in 2013 when the left knee became
18 very swollen and painful. Since then he has had repeated giving way of the
left knee, occasional swelling, pain with prolonged standing and walking, and
19
sometimes there is some discomfort posteriorly but most of the time it is
20 anterior and anteromedial. He has had no specific evaluations. The only x-
rays done were the ones that were done by Dr. Soverin [sic].
21
22 (Id. at 280–81.)
23 Upon examination of Plaintiff’s lumbar spine, Plaintiff did not “complain of
24 tenderness to palpation throughout the lower back” and there was no evidence of increased
25 muscle tone or spasm. (AR 282.) Straight leg raising tests in both the sitting and supine
26 positions were negative bilaterally. (Id.) Dr. Bilezikjian’s diagnostic impressions were of
27 “[d]egenerative arthritis, lumbosacral spine, with intermittent low back pain, superimposed
28 over degenerative changes with no radiculitis or radiculopathy.” (AR 283.)
1 Upon examination of Plaintiff’s lower extremities, there was “no evidence of
2 swelling, effusion, erythema, warmth, or deformity of any joints.” (AR 282.) Plaintiff
3 displayed full range of motion in his knees but some crepitus in the left knee was noted
4 along with minimal joint line tenderness. (Id.) There was no ligamentous instability, and
5 a McMurray test “did not cause any pain or clicking.” (Id.) Dr. Bilezikjian’s diagnostic
6 impressions were of “early to moderate degenerative arthritis with possible torn meniscus”
7 in the left knee and “intermittent giving way of the left knee.” (AR 283.)
8 Dr. Bilezikjian assessed Plaintiff as having the following work-related limitations:
9
[T]he claimant is able to push, pull, lift, and carry 50 pounds occasionally and
10 25 pounds frequently. Walking and standing can be done 6 hours per day with
regular rest periods. No assistive device is required for ambulation. Postural
11
activities such as bending and stooping can be done on a frequent basis.
12 Kneeling and squatting can be done on an occasional basis. The claimant can
walk on uneven terrain and occasionally climb ladders. Sitting can be done
13
6-8 hours per day. Fine and gross manipulative movements can be done
14 without restrictions.
15 (Id.)
16 D. Plaintiff’s Testimony Concerning Pain
17 At the administrative hearing, Plaintiff testified that he had pain in his left knee, left
18 shoulder, and lower back but did not take any medication to relieve his pain “because of
19 the delirious side effects.” (AR 32.) Plaintiff further testified that he did not try to relieve
20 his pain by other means, such as lying down, taking hot baths, or using ice. (Id.) Plaintiff
21 also testified that he rejected a suggestion by Dr. Dysart that he take pain medication for
22 his arthritis because “aspirin upsets [his] stomach” and because of “addictive issues” with
23 narcotics generally and ibuprofen’s “link[] to liver and kidney failure.” (AR 34–35.)
24 ///
25 ///
26 ///
27 ///
28 ///
1 VII. DISCUSSION
2 A. Whether the ALJ properly rejected Dr. Dysart’s opinion and satisfied his duty
3 to consider the 20 C.F.R. § 404.1527(c) factors
4 1. Parties’ Arguments
5 In his Motion for Summary Judgment, Plaintiff’s predominant argument is that the
6 ALJ was required, but failed, to consider the factors set forth in 20 C.F.R. § 404.1527(c)
7 when assigning less than controlling weight to Dr. Dysart’s opinion as Plaintiff’s treating
8 physician. (ECF No. 15-1 at 4.) Plaintiff maintains that the ALJ did not discuss any of the
9 § 404.1527(c) factors, or even mention § 404.1527, and the only factor the ALJ arguably
10 raised is consistency with the record. (Id.) Plaintiff emphasizes that the ALJ did not
11 discuss his “long treatment history with Dr. Dysart,” the first
12 § 404.1527(c) factor, and Dr. Dysart treated him “since at least 2012.” (Id. at 4–5.)
13 Plaintiff suggests that his treatment history with Dr. Dysart “should be important enough
14 to at least be discussed in the decision” when there is “so little objective evidence” in the
15 record. (Id. at 5.)
16 In his opposition, the Commissioner argues that Plaintiff’s position is undermined
17 by “relevant legal authority” and cites to Ninth Circuit authority that provides that an ALJ
18 need not “make an express statement that she considered all the factors outlined in 20
19 C.F.R. § 404.1527(c).” (ECF No. 16 at 9–10 (quoting Kelly v. Berryhill, 732 F. App’x
20 558, 562 n.4 (9th Cir. 2008)).) The Commissioner asserts that, nevertheless, the ALJ
21 “expressly considered treating and examining relationships and the specialties of the
22 examining physicians.” (Id. at 10.)
23 Additionally, the Commissioner argues that the ALJ properly rejected Dr. Dysart’s
24 opinion. (Id. at 5.) The Commissioner contends that the ALJ “expressly noted” that Dr.
25 Dysart’s earlier treatment records, which “consistently had full range of motion,” “belied”
26 his later opinion in the MSS that Plaintiff was “largely unable to sustain basic work
27 activities due to limited range of motion in his back.” (Id. at 7.) The Commissioner also
28 contends that the ALJ noted that Plaintiff had “largely intact range of motion (as well as
1 normal gait, strength, sensation reflexes, and straight leg raise testing) during his
2 consultative physical examinations.” (Id. at 8.)
3 In reply, Plaintiff argues that the Commissioner “completely ignores [his] main
4 position” that the ALJ failed to “provide specific and detailed reasoning for rejecting the
5 treating physician’s opinion.” (ECF No. 17 at 1.) Plaintiff states that, “as previously
6 argued,”4 the ALJ was required to provided “specific and legitimate reasons that are
7 supported by substantial evidence” to reject Dr. Dysart’s opinion. (Id.)
8 2. Legal Standard
9 Three types of physicians may offer opinions in Social Security cases: (1) those who
10 directly treated the claimant; (2) those who examined but did not treat the claimant; and
11 (3) those who did neither. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating
12 physician’s opinion is generally entitled to more weight than an examining physician’s
13 opinion, and an examining physician’s opinion is generally entitled to more weight than a
14 non-examining physician’s opinion. Id. This is so because treating physicians are
15 employed to cure and have a greater opportunity to know and observe the claimant. Smolen
16 v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
17 Under the regulations governing claims filed before March 27, 2017, such as here,
18 if a treating physician’s opinion is well supported by medically acceptable clinical and
19 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
20 in the record, it should be given controlling weight. 20 C.F.R. § 404.1527(c)(2). Where
21 substantial evidence in the record contradicts the treating physician’s opinion, or the
22 opinion is not well supported by medically acceptable clinical and laboratory diagnostic
23 techniques, it is no longer entitled to controlling weight. Id.; see also Orn v. Astrue, 495
24
25
26 4 This protestation is confusing, as Plaintiff’s Motion for Summary Judgment contains
no argument that the ALJ failed to provide specific and legitimate reasons supported by
27
substantial evidence for rejecting Dr. Dysart’s opinion; this argument is first made in the
28 Reply.
1 F.3d 625, 632 (9th Cir. 2007). That does not mean, however, that the opinion should be
2 rejected, for “[t]reating source medical opinions are still entitled to deference and must be
3 weighed using all of the factors provided in 20 C.F.R. § 404.1527.” SSR 96-2p, 1996 WL
4 374188, at *4 (July 2, 1996); see also Orn, 495 F.3d at 632–33 (“Even when contradicted
5 by an opinion of an examining physician that constitutes substantial evidence, the treating
6 physician’s opinion is ‘still entitled to deference.’” (quoting SSR 96-2p, 1996 WL 374188,
7 at *4)). The factors an ALJ must consider when weighing the opinion include: (1) the
8 length of the treatment relationship and frequency of examination; (2) the nature and extent
9 of the treatment relationship; (3) the amount of evidence supporting the opinion; (4) the
10 consistency with the record as a whole; (5) the physician’s area of specialization; and (6)
11 and a catch-all category of “other factors” brought to the ALJ’s attention. 20 C.F.R.
12 § 404.1527(c)(2)–(3).
13 The law is well established in the Ninth Circuit that, if the treating physician’s
14 opinion is uncontroverted by another doctor, it may be rejected only for “clear and
15 convincing” reasons. Lester, 81 F.3d at 830. Where a treating physician’s opinion is
16 controverted, it may be rejected only if the ALJ makes findings setting forth “specific and
17 legitimate reasons” that are based on “substantial evidence in the record” for rejecting the
18 opinion. Id. (citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
19 3. Discussion
20 As noted above, Dr. Dysart completed an MSS opining on Plaintiff’s ability to do
21 work-related activities. (AR 313–14.) The ALJ addressed Dr. Dysart’s opinion as follows:
22 Of note, the claimant’s treating physician[], Jeffrey Dysart, M.D., submitted
a Physical Medical Source Statement (MSS), dated September 19, 2017.
23
(Exhibit 9F). Dr. Dysart opined that the claimant could only lift or carry up
24 to 10 pounds whether occasionally or frequently. He found that the claimant
could stand or walk for 6 hours in an 8-hour workday, but would have a
25
maximum ability to sit[] “less than 2 hours” in an 8[-]hour workday. He
26 indicated that the claimant could sit up to 30 minutes at one time, but less than
2 hours in an 8[-]hour workday. Dr. Dysart stated that the claimant could
27
stand up to 15 minutes at one time, and walk for 30 minutes at one time, and
28
1 do both for up to six hours in an 8[-]hour workday. He further stated that the
claimant would need to shift positions at will from sitting or standing/
2
walking. When asked what medical findings would undergird these rather
3 severe assertions, he stated “limited range of motion of back.”
4
Positionally, he found the claimant could essentially never twist, crouch, or
5 climb stairs or ladders, again, due to “limited back range of motion.”
6
Dr. Dysart finished the form by stating that his patient’s impairments or
7 treatment would cause him to be absent from work about three days per
month. (Exhibit 9F, page 2). The undersigned ALJ has reviewed this form,
8
and gives Dr. Dysart’s assessment minimal weight. The undersigned ALJ
9 does not find that Dr. Dysart’s assertions are supported by the evidence. As
an example of this, in examinations found at Exhibit 6F, the claimant has full
10
range of motion of all joints. Additionally, on both of the claimant’s
11 Orthopedic Examinations, he had minimal restricted ranges of motion, and
minimal pain, described as “tenderness.” Accordingly, the undersigned finds
12
that Dr. Dysart’ s assessment is not consistent with the record as a whole,
13 including clinical examinations and findings.
14 (AR 19.)
15 a. Whether the ALJ provided legally sufficient reasons for rejecting Dr.
16 Dysart’s opinion
17 Dr. Dysart’s opinion that Plaintiff could perform at essentially a sedentary5 level of
18 work was not uncontroverted—both orthopedic consultative examiners opined that
19 Plaintiff could work at higher exertional levels. Dr. Sabourin opined that Plaintiff “could
20 only lift or carry 20 pounds occasionally and 10 pounds frequently” and therefore could
21 perform light work.6 (AR 258.) Dr. Bilezikjian opined that Plaintiff was “able to push,
22
23
24 5 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary
25
job is defined as one which involves sitting, a certain amount of walking and standing is
26 often necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
27
6 “Light work involves lifting no more than 20 pounds at a time with frequent lifting
28 or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
1 pull, lift, and carry 50 pounds occasionally and 25 pounds frequently” and therefore could
2 perform medium work.7 (AR 283.) Because Dr. Dysart’s opinion was contradicted by the
3 examining physicians’ opinions, the ALJ was required to provide specific and legitimate
4 reasons based on the substantial evidence in the record for rejecting Dr. Dysart’s opinion.
5 See Lester, 81 F.3d at 830 (“Even if the treating doctor’s opinion is contradicted by another
6 doctor, the Commissioner may not reject this opinion without providing ‘specific and
7 legitimate reasons’ supported by substantial evidence in the record for doing so.”).
8 The Commissioner would seem to suggest that the ALJ gave two specific and
9 legitimate reasons for rejecting Dr. Dysart’s opinion: (1) Dr. Dysart’s earlier treatment
10 records, which consistently noted that Plaintiff “had full range of motion,” were
11 inconsistent with Dr. Dysart’s opinion in the MSS that Plaintiff was “largely unable to
12 sustain basic work activities due to limited range of motion in his back”; and (2) Drs.
13 Sabourin’s and Bilezikjian’s consultative examinations reported “largely intact range of
14 motion.” (ECF No. 16 at 7–8.) The Court agrees with the Commissioner in part and finds
15 that the ALJ provided at least one specific and legitimate reason supported by substantial
16 evidence for rejecting Dr. Dysart’s opinion.
17 The first reason offered by the Commissioner, that the ALJ found Dr. Dysart’s earlier
18 treatment records inconsistent with the MSS,8 was expressed by the ALJ in the hearing
19
20
21
very little, a job is in this category when it requires a good deal of walking or standing, or
22 when it involves sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 404.1567(b).
23
7 “Medium work involves lifting no more than 50 pounds at a time with frequent
24 lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
8 The Court notes that the Commissioner’s specific argument—that Dr. Dysart had
25
consistently reported “full range of motion and no evidence of spinal deformity”—strips
26 Dr. Dysart’s findings of their context. Dr. Dysart’s treatment notes show that he completed
a physical examination of Plaintiff and reported “full range of motion of all joints” under
27
the entry for “extremities.” (AR 250, 294, 299 (emphasis added).) None of Dr. Dysart’s
28 records address Plaintiff’s range of motion in his lower back/lumbar spine. Even the ALJ
1 decision. More precisely, the ALJ reasoned that Dr. Dysart’s assertions were not
2 “supported by the evidence” because Dr. Dysart previously reported that Plaintiff “had a
3 full range of motion of all joints.” (AR 19.) Although specific, the Court does not find
4 that this rationale constitutes a legitimate reason to reject Dr. Dysart’s opinion.
5 It is true, as highlighted by the ALJ, that the single medical finding undergirding the
6 entirety of Dr. Dysart’s opinion was that Plaintiff had a limited range of motion in his back.
7 If Dr. Dysart’s treatment notes for the physical examinations of Plaintiff prior to the MSS
8 had indicated full range of motion in Plaintiff’s back, this would readily have served as a
9 specific and legitimate reason for rejecting the opinion. However, Dr. Dysart’s treatment
10 notes for the three physical examinations of Plaintiff prior to the MSS indicated “full range
11 of motion in all joints” under the entry for “extremities” and are not probative of whether
12 or not Dr. Dysart previously found Plaintiff to have limited range of motion in his back.
13 Therefore, the Court finds that the ALJ’s rationale—that Dr. Dysart’s assertions were not
14 supported by the evidence because Dr. Dysart previously found that Plaintiff had a full
15 range of motion of all joints—is not a legally sufficient reason to reject Dr. Dysart’s
16 opinion.
17 The second reason offered by the Commissioner, that Dr. Sabourin’s and Dr.
18 Bilezikjian’s consultative examinations reported “largely intact range of motion,” was also
19 proffered by the ALJ. Specifically, the ALJ reasoned that Dr. Dysart’s assertions were not
20 supported by the evidence because “on both of the claimant’s Orthopedic examinations, he
21 had minimal restricted ranges of motion, and minimal pain, described as tenderness.” (AR
22 19.) The ALJ previously noted that, upon examination, Dr. Sabourin found that Plaintiff’s
23 “lumbar spine range of motion was normal and painless,” and Dr. Bilezikjian found “some
24 reduced ranges of motion [in the lumbar spine], but no tenderness to palpation, and no
25
26
expressly noted that Dr. Dysart had previously found that Plaintiff had “full range of
27
motion of all joints.” (AR 19.)
28
1 evidence of increased muscle tone or spasm.” (AR 18.) The Court therefore finds that this
2 stated reason for rejecting Dr. Dysart’s opinion is legally sufficient. See Orn, 495 F.3d at
3 632 (“When an examining physician provides ‘independent clinical findings that differ
4 from the findings of the treating physician,’ such findings are substantial evidence.”
5 (quoting Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985))).
6 As set forth above, Plaintiff argues for the first time in his reply that the ALJ failed
7 to articulate specific and legitimate reasons for rejecting Dr. Dysart’s opinion. Plaintiff
8 criticizes the ALJ for relying on Dr. Bilezikjian’s findings when rejecting Dr. Dysart’s
9 opinion because Dr. Bilezikjian examined Plaintiff two years before Dr. Dysart completed
10 the MSS. (See ECF No. 17 at 2.) The Court is mindful of authority that, as a general
11 matter, a more recent medical opinion may have more probative value than an older opinion
12 about a plaintiff’s abilities. See, e.g., Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986)
13 (“Where a claimant’s condition is progressively deteriorating, the most recent medical
14 report is the most probative.” (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985))).
15 However, this authority is applicable only if the record reflects that the plaintiff’s condition
16 had worsened in the period between the two opinions. See Stone, 761 F.2d at 532 (finding
17 that the most recent medical opinion was the most probative because the claimant’s
18 condition “was progressively deteriorating”); see also Young, 803 F.2d at 968 (declining
19 to afford greater weight to a more recent medical report when it was “far from clear that
20 [the plaintiff’s] condition was progressively deteriorating”). Here, the record provides no
21 indication that Plaintiff’s lower back impairment worsened in the two years between Dr.
22 Bilezikjian’s and Dr. Dysart’s opinions such that the more recent opinion should
23 necessarily be afforded more weight. There is no evidence relating to Plaintiff’s lower
24 back impairment in the time period between the two opinions. The only medical records
25 during this time are Dr. Dysart’s treatment notes from July 30 and August 7, 2015, which.
26 provide that Plaintiff had “full range of motion of all joints” but which say nothing about
27 Plaintiff’s lower back. (AR 294, 299.) The ALJ’s failure to comment on or consider the
28 ///
1 length of time between Dr. Dysart’s MSS and Dr. Bilezikjian’s opinion does not negate his
2 stated rationale for rejecting Dr. Dysart’s opinion, as Plaintiff seems to contend.
3 b. Whether the ALJ considered the § 404.1527(c) factors and
4 appropriately weighed Dr. Dysart’s opinion
5 “In addition to providing specific reasons for rejecting a treating doctor’s opinion,
6 the ALJ must consider the factors provided in 20 C.F.R. § 404.1527[(c)].” Quinones v.
7 Comm’r of Soc. Sec., Case No.: 19CV274-W (BLM), 2019 WL 3817997, at *8 (S.D. Cal.
8 Aug. 14, 2019), adopted by 2019 WL 3817997 (S.D. Cal. Sept. 4, 2019). As stated above,
9 Plaintiff maintains that the ALJ did not discuss any of the § 404.1527(c) factors, or even
10 mention § 404.1527. (ECF No. 15-1 at 6.) Plaintiff particularly focuses his argument on
11 the ALJ’s failure to discuss the first § 404.1527(c) factor—the length of Dr. Dysart’s
12 treating relationship with Plaintiff—in the hearing decision. (See id. at 5.)
13 Plaintiff is correct that the ALJ did not explicitly analyze each of the § 404.1527(c)
14 factors when assigning Dr. Dysart’s opinion minimal weight. However, the Ninth Circuit
15 has never held that an ALJ must do so. Although the Ninth Circuit held in Trevizo v.
16 Berryhill that a failure to “consider” the § 404.1527(c) factors “alone constitutes reversible
17 error,” 871 F.3d 664, 676 (9th Cir. 2017), courts in this District have held that Trevizo does
18 not “demand a full-blown written analysis of all the regulatory factors.” Hoffman v.
19 Berryhill, Case No.: 16-cv-1976-JM-AGS, 2017 WL 3641881, *4 (S.D. Cal. Aug. 24,
20 2017), adopted by 2017 WL 4844545 (S.D. Cal. Sept. 14, 2017); e.g., Guzman v. Berryhill,
21 356 F. Supp. 3d 1025, 1034 (S.D. Cal. 2018) (“Although an ALJ need not explicitly go
22 through the list of regulatory factors, there must be some indication that he considered each
23 in his analysis.”); Yantos v. Berryhill, Case No.: 15cv02733 JAH-BGS, 2018 WL 899126,
24 at *6 (S.D. Cal. Feb. 14, 2018) (“The ALJ is certainly required to consider all of the
25 [§ 404.1527(c)] factors, but the regulations and rulings contain no requirement that each
26 and every factor be specifically analyzed in an ALJ’s decision.”). Additionally, in an
27 unpublished decision decided after Trevizo, the Ninth Circuit clarified that an ALJ “is not
28 ///
1 required ‘to make an express statement that she considered all the factors outlined in 20
2 C.F.R. § 404.1527(c).’” Kelly, 732 F. App’x at 562 n.4.
3 The hearing decision sufficiently indicates that the ALJ considered the § 404.1527(c)
4 factors when weighing Dr. Dysart’s opinion. Contrary to Plaintiff’s assertion that the ALJ
5 did “not discuss any factor or even mention 20 C.F.R. § 4041527,” (ECF No. 15-1 at 4),
6 the ALJ expressly stated that he “considered [the] opinion evidence in accordance with the
7 requirements of 20 C.F.R. [§] 404.1527,” (AR 20). See, e.g., Timothy K. v. Saul, Case No.:
8 3:18-cv-1859-AJB-RBM, 2019 WL 5654116, at *11 (S.D. Cal. Oct. 30, 2019) (finding that
9 the ALJ properly considered the § 404.1527(c) factors where he “specifically wrote that he
10 ‘considered opinion evidence in accordance with the requirements of [§ 404.1527]’”),
11 adopted by 2020 WL 42771 (S.D. Cal. Jan. 3, 2020). Although the ALJ made this
12 statement at the RFC stage, the Court finds that the statement sufficiently indicates that the
13 ALJ considered the § 404.1527(c) factors when weighing Dr. Dysart’s opinion at Step
14 Two.
15 Moreover, evidence of the ALJ’s consideration of the factors appears in the ALJ’s
16 analysis of Dr. Dysart’s opinion. The ALJ acknowledged that Dr. Dysart was Plaintiff’s
17 treating physician9 and considered the supportability10 of his opinion, observing that Dr.
18
19
20 9 The Court recognizes that an ALJ’s “cursory acknowledgment” of a physician as a
treating physician is not, by itself, enough to show that the ALJ properly considered the
21
§ 404.1527 factors. See Kelly, 732 F. App’x at 562 n.4. Here, however, the ALJ expressly
22 stated that he considered the opinion evidence with the requirements of § 404.1527, and
there are other indications that the ALJ considered the § 404.1527(c) factors besides his
23
acknowledgment that Dr. Dysart was Plaintiff’s treating physician.
24 10 With respect to the supportability factor, § 404.1527(c) provides in pertinent part
that:
25
26 [t]he more a source presents relevant evidence to support a medical opinion,
particularly medical signs and laboratory findings, the more weight we will
27
give that medical opinion. The better an explanation a source provides for a
28 medical opinion, the more weight we will give that medical opinion.
1 Dysart provided little in the way of clinical findings to support the extreme conclusion that
2 Plaintiff was limited to sedentary work with significant postural limitations. The ALJ
3 wrote, “When asked what medical findings would undergird [Dr. Dysart’s] rather severe
4 assertions, [Dr. Dysart] stated ‘limited range of motion of back.’ Positionally, he found
5 that claimant could essentially never twist, crouch, or climb stairs or ladders, again, due to
6 ‘limited back range of motion.’” See also Holohan v. Massanari, 246 F.3d 1195, 1202 n.2
7 (9th Cir. 2001) (stating that a treating physician’s opinion may be “entitled to little if any
8 weight” where the physician “presents no support for her or his opinion.”); SSR 96-2P,
9 1996 WL 374188, at *2 (“It is an error to give an opinion controlling weight simply because
10 it is the opinion of a treating source if it is not well-supported by medically acceptable
11 clinical and laboratory diagnostic techniques . . . .”). The ALJ also stated that he found Dr.
12 Dysart’s opinion inconsistent11 with the record, for Plaintiff’s lower back showed only
13 “minimal restricted ranges of motion, and minimal pain, described as ‘tenderness’” at both
14 orthopedic examinations. (AR 19.) Thus, the Court finds that the hearing decision
15 sufficiently indicates that the ALJ followed the appropriate methodology when weighing
16 Dr. Dysart’s opinion and that he considered the § 404.1527(c) factors.
17 For the forgoing reasons, the Court finds that the ALJ did not err in rejecting Dr.
18 Dysart’s opinion as a treating physician or in assigning it less than controlling weight. The
19 ALJ provided at least one specific and legitimate reason supported by substantial evidence
20 for rejecting Dr. Dysart’s opinion and expressly stated that he considered the opinion
21 evidence in accordance with 20 C.F.R. § 404.1527.
22 ///
23 ///
24
25
26 20 C.F.R. § 404.1527(c)(3).
11 With respect to the consistency factor, § 404.1527 instructs that “[g]enerally, the
27
more consistent a medical opinion is with the record as a whole, the more weight we will
28 give to that medical opinion.” 20 C.F.R. § 404.1527(c)(3).
1 B. Whether the ALJ improperly rejected Dr. Sabourin’s opinion that Plaintiff was
2 restricted to light work
3 1. Parties’ Arguments
4 As addressed above, Plaintiff’s Motion for Summary Judgment focuses
5 predominantly on the minimal weight the ALJ gave to Dr. Dysart’s opinion and the ALJ’s
6 duty to consider the factors set forth in § 404.1527(c) when giving Dr. Dysart’s opinion
7 less than controlling weight. However, Plaintiff also argues briefly that the ALJ erred in
8 weighing the opinion of consultative examiner Dr. Sabourin. Plaintiff contends that the
9 ALJ failed to “provide any reasoning what so ever [sic] as to why he gives greater weight
10 to Dr. Bilezikj[ia]n than to Dr. Sabourin” when both doctors are “board certified
11 orthopedist[s]” who “only saw [Plaintiff] once.” (ECF No. 15-1 at 5.)
12 In opposition, the Commissioner argues that the ALJ “did not wholly reject Dr.
13 Sabourin’s assessed restrictions” but “properly afforded them less weight” because “they
14 were inconsistent with the normal clinical findings from subsequent physical
15 examinations.” (ECF No. 16 at 8.) The Commissioner acknowledges that Dr. Sabourin
16 observed, and the ALJ noted, that “Plaintiff had significant effusions and reduced range of
17 motion in his knees during the May 2014 consultative examination.” (Id.) The
18 Commissioner argues, however, that “Plaintiff consistently had full (or nearly full) range
19 of motion and no evidence of effusion or swelling during physical examinations performed
20 after Plaintiff’s alleged onset date of disability in August 2014,” and thus, “the positive
21 clinical findings underlying Dr. Sabourin’s May 2014 conclusions were isolated.” (Id.
22 (emphasis omitted).) The Commissioner contends that “the ALJ reasonably found that the
23 subsequent normal examinations undercut the probative value of [Dr. Sabourin’s] opinion
24 about Plaintiff’s restriction to a range of light work.” (Id.)
25 2. Legal Standard
26 As previously stated, the weight given to medical opinions depends in part on
27 whether they are proffered by treating, examining, or non-examining professionals. Lester,
28 81 F.3d at 834.
1 Those physicians with the most significant clinical relationship with the
claimant are generally entitled to more weight than those physicians with
2
lesser relationships. As such, the ALJ may only reject a treating or examining
3 physician’s uncontradicted medical opinion based on clear and convincing
reasons. Where such an opinion is contradicted, however, it may be rejected
4
for specific and legitimate reasons that are supported by substantial evidence
5 in the record.
6 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (internal
7 citations omitted) (citing 20 C.F.R. §§ 404.1527(d), 416.927(d); Lester, 81 F.3d at 830).
8 When the ALJ resolves conflicts by rejecting the opinion of an examining physician in
9 favor of the conflicting opinion of another physician—including another examining
10 physician—he must give “specific and legitimate reasons” for doing so. Regennitter v.
11 Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298–99 (9th Cir. 1999). Thus, “[w]here an
12 ALJ does not explicitly . . . set forth specific, legitimate reasons for crediting one medical
13 opinion over another, he errs.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
14 3. Discussion
15 At Step Two, the ALJ provided a detailed summary of Dr. Sabourin’s findings, after
16 which he stated as follows:
17 [Dr. Sabourin] found the claimant could perform a wide range of light level
18 exertional tasks, with medium exertional level pushing and pulling. He
opined that the claimant could stand, walk or sit up to six hours in an 8-hour
19 workday. (Exhibit 3F). The undersigned ALJ has taken this evaluation and
20 assessment into consideration and . . . concurs in part. The undersigned ALJ
does find that the claimant could perform medium level tasks pertaining to
21 lifting and carrying per the record as a whole. Accordingly, the undersigned
22 gives this assessment some to substantial weight, but not great weight.
23 (AR 18.) The ALJ went on to provide a detailed summary of Dr. Bilezikjian’s findings,
24 after which he stated: “Dr. Bilez[i]kjian opined that the claimant could perform a while
25 [sic] range of medium level exertional tasks with some modifications pertaining to
26 positional tasks such as kneeling and squatting on an occasional basis. The undersigned
27 essentially concurs and gives this assessment significant weight.” (AR 19.)
28 ///
1 The ALJ thereafter determined that Plaintiff had the RFC to perform a wide range
2 of medium work as defined in 20 C.F.R. § 404.1567(c). (AR 20.) Before moving on to
3 Step Four, the ALJ concluded as follows:
4
In sum, the above residual functional capacity assessment is supported by the
5 medical evidence as a whole. The claimant’s X-rays show early osteoarthritis
and later on “early to moderate” degenerative disease. The claimant is not on
6
pain management protocol. Additionally, during two orthopedic consultative
7 examinations, he had minimal positive findings regarding restricted ranges of
motion or pain. The claimant has normal, non-antalgic gait, and negative
8
straight leg raising tests and Drawer tests. The undersigned is therefore
9 persuaded that the claimant is able to perform a wide range of medium level
exertional tasks.
10
11 (AR 21.)
12 Because Dr. Sabourin’s opinion that Plaintiff was restricted to light work was
13 controverted by Dr. Bilezikjian’s opinion that Plaintiff could perform medium work, the
14 ALJ was required to set forth specific and legitimate reasons based on substantial evidence
15 in the record for rejecting Dr. Sabourin’s opinion. See Lester, 81 F.3d at 830–31 (“[T]he
16 opinion of an examining doctor, even if contradicted by another doctor, can only be
17 rejected for specific and legitimate reasons that are supported by substantial evidence in
18 the record.”). The Court finds that the ALJ provided legally sufficient reasons for rejecting
19 Dr. Sabourin’s opinion, but not for the reasons argued by the Commissioner.
20 As stated above, the Commissioner defends the ALJ’s rejection of Dr. Sabourin’s
21 opinion that Plaintiff was restricted to light work by arguing that Dr. Sabourin’s findings
22 as to the significant effusion and swelling of Plaintiff’s left knee were “isolated” and that
23 “the ALJ reasonably found that the subsequent normal examinations undercut the probative
24 value of [Dr. Sabourin’s] opinion.” (ECF No. 16 at 8.) These arguments, however, were
25 not proffered by the ALJ, and the Court is “constrained to review [only] the reasons the
26 ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); accord Orn, 495
27 F.3d at 630 (“We review only the reasons provided by the ALJ in the disability
28 determination and may not affirm the ALJ on a ground upon which he did not rely.”). The
1 Court cannot affirm the ALJ’s rejection of Dr. Sabourin’s opinion based on the post hoc
2 rationalizations offered by the Commissioner. Bray, 554 F.3d at 1125. Nowhere in the
3 hearing decision does the ALJ reason that Dr. Sabourin’s findings were “isolated” or that
4 “subsequent normal examinations”12 undercut Dr. Sabourin’s opinion restricting Plaintiff
5 to light work.
6 Instead, the ALJ stated that he rejected Dr. Sabourin’s opinion that Plaintiff could
7 perform light work because “the record as a whole,” including Dr. Sabourin’s own
8 findings, supported a conclusion that Plaintiff could “perform medium level tasks
9 pertaining to lifting and carrying.” (AR 18.) After rejecting Dr. Sabourin’s opinion, the
10 ALJ did not then immediately identify examples of evidence in the record that supported a
11 finding adverse to Dr. Sabourin’s. However, before proceeding to Step Four, the ALJ
12 reasoned that his assessment that Plaintiff could perform medium level work was supported
13 by the record as a whole because: Plaintiff’s left knee x-rays showed only early to moderate
14 degenerative disease; Plaintiff was “not on a pain management protocol”; and both
15 orthopedic examinations reported minimal restricted ranges of motion, a normal gait,
16 negative straight leg raising tests, and negative Drawer tests. (AR 21.) The Court
17 recognizes that ALJ did not explicitly tie this reasoning to his earlier rejection of Dr.
18 Sabourin’s opinion. Nevertheless, the Court finds that it may appropriately credit the
19
20
12 For the proposition that there were multiple “subsequent normal examinations”
21
following Dr. Sabourin’s examination of Plaintiff, the Commissioner cites to Dr.
22 Bilezikjian’s finding that, upon examination, “there was no evidence of swelling, effusion,
erythema, warmth, or deformity of any of the joints of the lower extremities” and Plaintiff’s
23
knees showed a full range of motion. (ECF No. 16 at 8 (citing AR 282–83.) The other
24 “subsequent normal examinations” the Commissioner cites to are two office visits with Dr.
Dysart on July 30 and August 7, 2015, where Plaintiff saw Dr. Dysart for hypertension,
25
acid reflux, and an irregular heartbeat. (Id. (citing AR 294, 299).) At both appointments,
26 Dr. Dysart completed a physical exam and noted under extremities: “normal full range of
motion of all joints.” (AR 294, 299.) The Commissioner otherwise cites to an office visit
27
with Dr. Dysart on October 30, 2012, which was well before Dr. Sabourin’s examination
28 of Plaintiff on May 20, 2014. (ECF No. 16 at 8 (citing AR 275).)
1 ALJ’s stated reasons for assigning Plaintiff a medium RFC as the specific and legitimate
2 reasons for rejecting Dr. Sabourin’s opinion that Plaintiff was limited to light work. See
3 Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“Even when an agency “explains
4 its decision with ‘less than ideal clarity,’ we must uphold it ‘if the agency’s path may be
5 reasonably discerned.’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S.
6 461, 497 (2004))); cf. Lewis, 236 F.3d at 512 (upholding rejection of lay witness testimony
7 where “the ALJ at least noted arguably germane reasons for dismissing the family
8 members’ testimony, even if he did not clearly link the determination to those reasons”).
9 An ALJ meets his burden of providing specific, legitimate reasons for rejecting a medical
10 opinion “by setting out a detailed and thorough summary of the facts and conflicting
11 clinical evidence, stating his interpretation thereof, and making findings.” Tommasetti v.
12 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Magallanes v. Bowen, 881 F.2d 747,
13 751 (9th Cir. 1989)). And here, the ALJ has done just that. Accordingly, the Court finds
14 that the ALJ did not err in rejecting Dr. Sabourin’s opinion that Plaintiff was restricted to
15 light work or in weighing his opinion.
16 VIII. CONCLUSION
17 For the foregoing reasons, the Court RECOMMENDS that Plaintiff’s Motion for
18 Summary Judgment (ECF No. 15) be DENIED and judgment be entered affirming the
19 decision of the Commissioner. IT IS HEREBY ORDERED that any written objections
20 to this Report and Recommendation must be filed with the Court and served on all parties
21 no later than November 30, 2020. The document should be captioned “Objections to
22 Report and Recommendation.”
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
2 || the Court and served on all parties no later than December 7, 2020. The parties are advised
3 || that a failure to file objections within the specified time may waive the right to raise those
4 || objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir.
5 || 1991).
6 || Dated: November 10, 2020 -
i Uh Burkhardt
n. Jill L. Burkhardt
8 ited States Magistrate Judge
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