An ALJ 19 may consider “unexplained or inadequately explained failure to seek treatment or to follow 20 a prescribed course of treatment” when evaluating a claimant’s credibility.
How later courts described this case
- An ALJ 19 may consider “unexplained or inadequately explained failure to seek treatment or to follow 20 a prescribed course of treatment” when evaluating a claimant’s credibility.
- “Although lack of medical evidence cannot 23 form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider 24 in his credibility analysis.”
- An error is harmless if it is “clear from the 26 record that [the] error was inconsequential to the ultimate nondisability determination.”
- ALJ may reject physician’s 3 opinion by “noting legitimate inconsistencies and ambiguities in the doctor’s analysis or 4 conflicting lab test results [or] reports . . . .”
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 NATHAN K., Case No.: 19-cv-2228-DEB
12 Plaintiff,
ORDER:
13 v.
DENYING PLAINTIFF’S MOTION
14 ANDREW H. SAUL, Commissioner of
FOR SUMMARY JUDGMENT
Social Security,
15 [DKT. NO. 17], AND
Defendant.
16
GRANTING DEFENDANT’S
17 MOTION FOR SUMMARY
JUDGMENT [DKT. NO. 19]
18
19
I. INTRODUCTION
20
On November 22, 2019, Plaintiff Nathan K. filed a Complaint pursuant to 42 U.S.C.
21
§ 405(g) seeking judicial review of a decision by the Commissioner of Social Security
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denying his application for disability insurance benefits. Dkt. No. 1. The parties filed
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Cross-Motions for Summary Judgment and Plaintiff filed a Reply. Dkt. Nos. 17, 19, 22.
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For the reasons set forth below, the Court DENIES Plaintiff’s Motion for Summary
25
Judgment and GRANTS Defendant’s Motion for Summary Judgment.
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/ /
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/ /
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1 II. PROCEDURAL BACKGROUND
2 On April 15, 2015, Plaintiff filed an application for disability insurance benefits
3 alleging disability beginning on April 28, 2014. AR 189-190.1 The Commissioner denied
4 Plaintiff’s claim initially on July 7, 2015 (AR 71-76), and on reconsideration on
5 September 15, 2015 (AR 78-83). At Plaintiff’s request, the ALJ held a hearing on
6 December 8, 2017 (AR 42-47), but, because Plaintiff’s counsel had recently withdrawn,
7 Plaintiff did not testify until the second hearing on July 31, 2018 (AR 48-69).
8 On August 10, 2018, the ALJ issued a decision denying Plaintiff’s claim. AR 22-41.
9 On May 31, 2019, the ALJ’s decision became final under 42 U.S.C. § 405(h) when the
10 Appeals Council denied Plaintiff’s request for review. AR 11-16. Plaintiff then filed the
11 present Complaint. Dkt. No. 1.
12 III. PLAINTIFF’S STATEMENTS
13 Plaintiff alleges disability due to long-term Lyme Disease.2 AR 86. He was forty
14 years old when he testified at the July 31, 2018 hearing. AR 51. He has a Master of Business
15 Administration. Id. Plaintiff held the following full-time jobs between 2003 and 2014:
16
17
1 “AR” refers to the Administrative Record lodged on March 10, 2020. Dkt. No. 10.
18
The Court’s citations to the AR use the page references on the original document rather
19 than the page numbers designated by the Court’s case management/electronic case filing
system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers
20
affixed by CM/ECF.
21
2 “Lyme disease is the most common vector-borne disease in the United States. Lyme
22
disease is caused by the bacterium Borrelia burgdorferi and rarely, Borrelia mayonii. It is
23 transmitted to humans through the bite of infected blacklegged ticks. Typical symptoms
include fever, headache, fatigue, and a characteristic skin rash called erythema migrans. If
24
left untreated, infection can spread to joints, the heart, and the nervous system. Lyme
25 disease is diagnosed based on symptoms, physical findings (e.g., rash), and the possibility
of exposure to infected ticks. Laboratory testing is helpful if used correctly and performed
26
with validated methods. Most cases of Lyme disease can be treated successfully with a few
27 weeks of antibiotics.” Centers for Disease Control and Prevention,
https://www.cdc.gov/lyme/index.html (last visited March 22, 2021)
28
1 account associate for Doner Advertising (2003-04); cell phone test technician for Kelly
2 Tech Services (2005-06); market research analyst for Progression Research (2007);
3 account executive for Western Wats Center (2008-09); and data analyst for Extend Health
4 (2009-14). AR 51-53. Plaintiff stopped working in 2014 due to his health issues. AR 53.
5 Plaintiff testified that he has lower back pain and “severe inflammation body-wide
6 internally and externally,” which he described as “burning, itching, stinging, stabbing,
7 squeezing, [and] clinching.” AR 54, 63. These symptoms have persisted for four and a half
8 years. AR 63. He also has “severe heart pain,” which he described as “stabbing.” AR 55.
9 Plaintiff wakes up feeling fatigued and stiff, with pain in his lower back and
10 throughout the rest of his body. AR 58. Even minor activity causes him to feel “tired and
11 in more pain.” AR 58-59. Attending doctor’s appointments exhausts him and he needs
12 several days of rest to recuperate after each appointment. AR 59-60. His condition is “all-
13 consuming,” and he lacks energy for hobbies or recreational activities. AR 61. His wife
14 “handl[es] pretty much everything.” AR 60.
15 Plaintiff has experienced fatigue for several years but reported that it was more
16 severe in the two months prior to the hearing due to a reaction to Itraconazole. AR 57-58,
17 64. Plaintiff reported that he has irregular sleep patterns, “feel[s] like. . . a hazard[,]” is
18 unable to concentrate or focus, and is forgetful, clumsy, and disoriented. AR 60. He leaves
19 himself reminders to pay bills and has missed doctor’s appointments and picked up his son
20 late from day care due to his forgetfulness. AR 62.
21 He attempted to obtain relief through homeopathic remedies, but he stopped taking
22 medications completely about one and a half months prior to the hearing because his body
23 no longer tolerates them. AR 64. He uses natural therapies including massage, cupping,
24 acupuncture, and sauna detoxes. AR 64-65. He also uses coffee and salt water enemas one
25 to three times each week, and he previously used them several times a day. AR 65.
26 Plaintiff has neither received regular care by a psychologist or psychiatrist nor taken
27 any medications for a mental health condition. AR 57.
28
1 IV. SUMMARY OF THE ALJ’S FINDINGS
2 The ALJ followed the Commissioner’s five-step sequential evaluation process. See
3 20 C.F.R. §§ 404.1520; AR 26-27. At step one, the ALJ found that Plaintiff had not
4 engaged in substantial gainful activity since the onset of his alleged disability. AR 27.
5 At step two, the ALJ found that Plaintiff had the following severe impairments:
6 spondylolisthesis of the lumbar spine; non-specific myositis, myalgias and arthropathies;
7 and fatigue. AR 27-28. He also found that Plaintiff had non-severe depression and a mild
8 neurocognitive disorder. AR 28.
9 At step three, the ALJ found that Plaintiff did not have an impairment or combination
10 of impairments that met or medically equaled those listed in the Commissioner’s Listing
11 of Impairments. AR 28-29.
12 Before proceeding to step four, the ALJ determined that Plaintiff had the “residual
13 functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b),
14 except the [Plaintiff could] lift and/or carry twenty pounds occasionally and ten pounds
15 frequently; stand and/or walk for six hours of an eight-hour workday; sit for six hours of
16 an eight-hour workday; occasionally climb ramps and stairs; never climb ladders, scaffolds
17 or ropes; and should avoid concentrated exposure to extreme cold, unprotected heights,
18 and moving and dangerous machinery.” AR 29. In reaching this conclusion, the ALJ gave
19 partial weight to Plaintiff’s treating physician Andrew Petersen’s opinions and no weight
20 to treating physicians Raphael Stricker or Mary Ackerley’s opinions or those of
21 Christopher Snell, Ph.D. AR 31-33. The ALJ also found that Plaintiff’s testimony
22 regarding the intensity, persistence, and limiting effects of his symptoms was not credible.
23 AR 30–31.
24 At step four, the ALJ concluded that Plaintiff was able to perform his past relevant
25 work as a data communications analyst, market research analyst, account executive, and
26 electronics tester. AR 33-34. The ALJ, therefore, concluded that Plaintiff was not disabled
27 and did not proceed to step five. AR 34.
28
1 V. ISSUES IN DISPUTE
2 Plaintiff raises multiple issues as grounds for reversal and remand:
3 1. Whether the ALJ erred at step two by finding that Lyme disease was not a severe
4 impairment (Dkt. No. 17 at 15-17);
5 2. Whether the ALJ erred by discounting or rejecting the opinions of Plaintiff’s
6 treating physicians (id. at 17-23);
7 3. Whether the ALJ erred by rejecting Plaintiff’s subjective symptom testimony as
8 not credible (id. at 23-25); and
9 4. Whether the ALJ’s RFC determination was adequately supported by a medical
10 opinion. Id. at 23.
11 VI. STANDARD OF REVIEW
12 The Court reviews the ALJ’s decision to determine if it is supported by substantial
13 evidence and whether the ALJ applied the proper legal standards. 42 U.S.C. § 405(g);
14 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is “such
15 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
16 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” but less
17 than a preponderance. Id.
18 The Court “must consider the entire record as a whole and may not affirm simply by
19 isolating a specific quantum of supporting evidence.” Ghanim v. Colvin, 763 F.3d 1154,
20 1160 (9th Cir. 2014) (internal quotation omitted). “[I]f evidence exists to support more than
21 one rational interpretation, [the Court] must defer to the Commissioner’s decision.” Batson
22 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
23 VII. DISCUSSION
24 A. Lyme Disease as a Severe Impairment
25 Plaintiff argues the ALJ erred at step two by not identifying Lyme disease as a severe
26 impairment. Dkt. No. 17 at 15-17. Plaintiff argues that the ALJ’s finding is inconsistent
27 with objective medical evidence in the record. Id. The Court finds no error.
28
1 “[T]he step-two inquiry is a de minimis screening device to dispose of groundless
2 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The Court reviews an ALJ’s
3 step-two finding for substantial evidence. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir.
4 2005).
5 A disability finding requires that the claimant have a “severe impairment,” which
6 the regulations explain is an “impairment or combination of impairments which
7 significantly limits [the claimant’s] physical or mental ability to do basic work
8 activities. . . .” 20 C.F.R. § 404.1520(c). The claimant must prove the impairment by
9 providing relevant evidence. See 20 C.F.R. § 404.1512(a). Objective medical evidence
10 includes “medical signs, laboratory findings, or both.” 20 C.F.R. §§ 404.1513(a)(1),
11 404.1502(f). An impairment is not severe if clearly established objective medical evidence
12 shows only slight abnormalities that minimally affect a claimant’s ability to do basic work
13 activities. Webb, 433 F.3d at 687; Smolen, 80 F.3d at 1290.
14 Plaintiff contends the following objective medical evidence supports a Lyme disease
15 diagnosis: a positive IgM Western Blot and Babesia duncani test results, a diagnosis that
16 is predicated on these test results, and medical treatment notes referencing these test results
17 as “partial positive results.” Dkt. No. 17 at 15 (citing AR 278, 289, 366-67, 369). The ALJ
18 considered these test results but determined they were not objective evidence of Lyme
19 disease because they were not Food and Drug Administration (FDA) approved. AR 30
20 (citing AR 326, 359, 367, 369, 371, 404, 433, 496, 702, 796, 831, 1215, 1244). The ALJ
21 also rejected the tests because they were not intended for diagnostic use or as conclusive
22 evidence of the presence or absence of malignant disease. Id.
23 Plaintiff argues that the ALJ erred because courts have regarded a positive IgM
24 Western blot test result as “objective medical evidence” of Lyme disease. See Dkt. No. 17
25 at 15-17 (citing Lujan v. Berryhill, 298 F. Supp. 3d 1323, 1329-30 (E.D. Cal. 2018);
26 Moores v. Colvin, 173 F. Supp. 3d 989, 997 (E.D. Cal. 2016); and Morgan v. Colvin, 12-
27 cv-01235-AA, 2013 WL 6074119, at *11 (D. Or. Nov. 13, 2013)). But at least one other
28 court has evaluated IgM Western blot test results in a broader context. See Cannon v. Soc.
1 Sec. Admin., 15-cv-05014-NC, 2017 WL 605076, at *2 (N.D. Cal. Feb. 15. 2017)
2 (affirming the ALJ’s finding that there was no objective medical evidence to establish
3 Lyme disease at step two where: the plaintiff had both positive and negative test results;
4 there was no consistency in the medical opinions about the objective bases for diagnosing
5 Lyme disease; and the testing methods used were not FDA approved).
6 Here, as in Cannon, most of Plaintiff’s tests for Lyme disease resulted in negative
7 or inconclusive findings. Plaintiff’s August 18, 2014 Lyme IgM Western Blot test had
8 positive results at band 31 and 41, but indeterminate findings. AR 310, 327. Other tests
9 were negative. AR 343 (iSpot Lyme test); AR 395 (Lyme (B. burgdorferi) PCR); AR 396
10 (Q Fever Phase); and AR 397 (brucella antibody IgM). Additionally, as the ALJ noted, the
11 testing methodologies used for Plaintiff’s Lyme disease diagnosis were neither FDA
12 approved nor intended for diagnostic use. AR 30 (citing AR 326, 359, 367, 369, 371, 404,
13 433, 496, 702, 796, 831, 1215, 1244).
14 The record here also contains no consistent or objective basis for supporting a Lyme
15 disease diagnosis. In addition to the multiple negative and inconclusive tests, numerous
16 physicians who examined Plaintiff questioned his Lyme disease diagnosis and the testing
17 procedures upon which it was based. See AR 1391-92 (Dr. Mansour, Scripps Health,
18 December 21, 2017: documenting normal examination findings and noting “no evidence
19 of any acute illness” and that test results for a possible parasite infection or systemic
20 symptom were “unremarkable”); AR 1442 (Dr. Noord, Scripps Health, April 13, 2018:
21 noting “unclear validity” of Lyme Western blot testing); AR 1656 (Dr. Reidl, U.C. San
22 Diego Health, March 4, 2018: “[Patient’s] clinical history is not strongly suggestive of any
23 specific described immunodeficiency and his previously reported testing appears to largely
24 consist of non-traditional and non-validated assays so it is very difficult to determine any
25 specific diagnosis. . . .”); AR 1150 (Dr. Ander, December 14, 2017: “I don’t suspect any
26 significant (central nervous system) disease . . . . It is possible that there is a psychosomatic
27 contribution in part or in total that may explain his symptoms.”); AR 1353 (Dr. Modena,
28 Scripps Health, December 14, 2017: “[Patient] has an extensive array of concerns,
1 symptoms, and diagnoses without clear unifying diagnosis or clue. . . . I am re-assured by
2 normal examination, no major hospitalization records, normal CBC, normal CMP, and no
3 major symptoms of major illness. . . . [A]lthough patient is unwilling to discuss, [there] is
4 the possibility of psychiatric disease in someone with a family history of mental illness,
5 and maintains a poor, slightly flat affect.”).
6 Moreover, the state agency medical consultants, Ralph McKay, M.D., and David O.
7 Peterson, M.D., both concluded that Plaintiff did not have a severe impairment after
8 reviewing Plaintiff’s test results and other medical records. AR 71-76, 79-82. Dr. McKay
9 opined that Lyme disease “does not seem to limit functional status” (AR 74), and
10 Dr. Peterson likewise found that Plaintiff’s “exams are normal and there is no evidence of
11 a severe (medically determinable impairment) that would reasonably cause alleged
12 limitations/symptoms” (AR 81).
13 Furthermore, Plaintiff’s Scripps Health and U.C. Irvine Health medical records
14 (including an endoscopy, colonoscopy, ultrasound, CT scan, and multiple laboratory tests)
15 showed no evidence of any acute illness. See AR 1353 (noting normal examination, normal
16 testing, no symptoms of major illness, no evidence of mold infection or mold allergy);
17 AR 1391 (normal examination and review of testing showed “no evidence of any acute
18 illness that can be documented”); AR 1411-12 (normal examination, “outside testing”
19 results unclear); AR 1442-43 (review of testing showed no evidence of muscle disease and
20 neuropathy); AR 1772 (no evidence of a neuromuscular disorder).
21 Finally, any error in failing to identify Lyme disease as a severe impairment at step
22 two is harmless because the ALJ included the symptoms associated with Lyme disease
23 (non-specific myositis, myalgias, arthropathies, and fatigue) as severe impairments
24 (AR 27), and considered all of the symptoms in the RFC (AR 29-33). See Robbins v. Soc.
25 Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (An error is harmless if it is “clear from the
26 record that [the] error was inconsequential to the ultimate nondisability determination.”)
27 (internal quotation omitted); Miner v. Berryhill, 722 F. App’x 632, 633 (9th Cir. 2018)
28 (“The ALJ’s failure to list fibromyalgia as a severe impairment at step two is at most
1 harmless error. . . . Even without considering [plaintiff’s] fibromyalgia a severe
2 impairment, the ALJ found that other of [plaintiff’s] ailments constituted serious
3 impairments, and consequently. . . moved on to the subsequent evaluation steps.”).
4 B. Rejection of Plaintiff’s Treating Physicians’ Opinions
5 Plaintiff also challenges the ALJ’s decision to discount and reject opinions rendered
6 by professionals whom Plaintiff identifies as his treating physicians. Dkt. No. 17 at 17-23.
7 The opinions in question were rendered by Dr. Raphael Stricker, Dr. Andrew Peterson,
8 Christopher R. Snell, Ph.D., and Dr. Mary Ackerley.
9 Where, as here, “a treating . . . doctor’s opinion is contradicted by another doctor’s
10 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are
11 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
12 2005). “The ALJ can meet this burden by setting out a detailed and thorough summary of
13 the facts and conflicting clinical evidence, stating his interpretation thereof, and making
14 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Applying this standard,
15 the Court finds no error regarding the ALJ’s treatment of the opinions at issue.
16 Raphael Stricker, M.D.
17 Raphael Stricker, M.D. is an internal medicine specialist who examined Plaintiff
18 several times in 2014 and reviewed numerous lab reports. AR 361-451. On November 12,
19 2014, Dr. Stricker opined that Plaintiff was “completely disabled and cannot perform his
20 duties at work” due to joint pain, muscle aches, severe fatigue, memory loss, cognitive
21 problems, chest pain, and other pain resulting from “disabling musculoskeletal and
22 neurological symptoms of Lyme disease, Babesiosis and Ehrlichiosis.” AR 1116. As the
23 ALJ correctly observed, Dr. Stricker opined on the ultimate disability issue without
24 providing supporting information regarding Plaintiff’s work-related functional limitations.
25 AR 32. Because opinions on the ultimate issue (i.e., whether the claimant is disabled) are
26 reserved for the Commissioner, the ALJ’s rejection of Dr. Stricker’s conclusory opinion
27 was proper. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999), as amended (June
28 22, 1999) (affirming ALJ’s rejection of opinion that was “conclusory and unsubstantiated
1 by the relevant medical documentation”); see also 20 C.F.R. § 404.1527(d)(1) (“A
2 statement by a medical source that [claimant is] ‘disabled’ or ‘unable to work’ does not
3 mean that [the Commissioner] will determine [the claimant is] disabled.”).
4 Andrew Petersen, D. O.
5 Andrew Petersen, D.O. treated Plaintiff for hyperthyroidism from July 31, 2014 to
6 March 25, 2015. AR 293-359. In his March 21, 2015 Attending Physician’s Report,
7 Dr. Petersen opined that Plaintiff suffers from chronic fatigue syndrome, fibromyalgia,
8 neuropathy, chronic pain, irritable bowel syndrome, heavy metal toxicity, depression, and
9 anxiety. AR 1087-88. On May 6, 2015, he added a diagnosis of long-term Lyme disease.
10 AR 1118.
11 Regarding specific impairments, Dr. Petersen opined that Plaintiff could sit for about
12 thirty minutes but not more than one hour (AR 1087-88); stand for two hours (AR 1088);
13 walk for ten minutes (id.); and lift or carry about thirty pounds for less than two minutes.
14 Id. He also stated Plaintiff could not bend or stoop without pain, had impaired manual
15 dexterity, and that Plaintiff’s impairments were permanent. Id.
16 In his March 21, 2015 report, Dr. Petersen offered two conflicting opinions
17 regarding Plaintiff’s ability to work: (1) Plaintiff’s physical impairments rendered him
18 capable of doing only light or sedentary work (id.); and (2) Plaintiff is incapable of
19 performing any work on either a limited or full-time basis (AR 1089). On May 6, 2015,
20 Dr. Peterson opined that Plaintiff was “currently disabled because of the severity of his
21 symptoms.” AR 1118.
22 The ALJ rejected Dr. Petersen’s statements that Plaintiff was “currently disabled.”
23 AR 32. As discussed above, this ultimate issue is reserved for the Commissioner.
24 The ALJ gave partial weight to the remainder of Dr. Petersen’s opinions, but found
25 that Dr. Petersen inconsistently opined that Plaintiff both was capable of light or sedentary
26 work and could not work at all. AR 31 (citing AR 1088, 1089). The ALJ also noted that
27 Dr. Peterson inconsistently opined that Plaintiff could not walk for more than ten minutes
28 but could stand for two hours. Id. (citing AR 1088). These inconsistencies are specific and
1 legitimate reasons for the ALJ to discount Dr. Petersen’s opinions. See Shavin v. Comm’r
2 Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject physician’s
3 opinion by “noting legitimate inconsistencies and ambiguities in the doctor’s analysis or
4 conflicting lab test results [or] reports . . . .”) (internal citation omitted).
5 Moreover, and as the ALJ also found, Dr. Petersen’s conclusions are not supported
6 by the medical record. AR 31. The ALJ identified numerous normal physical examinations
7 and test results in the record that conflicted with Dr. Petersen’s opinions. Id. (citing AR
8 289-90 (Dr. Johnson, Advanced Wound Care Systems of America, January 25, 2015:
9 Although Plaintiff complained of dizziness, fainting, chest, abdominal, joint, and spinal
10 pain, he appeared awake, well developed, well groomed, and well nourished, and exam
11 findings were normal for his head, eyes, ears, nose and throat, neck, and extremities, and
12 his respiratory, cardiovascular, gastrointestinal, lymphatic, dermatologic, and neurological
13 systems.); AR 441-42 (Dr. Gin, U.C. San Diego Health System, May 12, 2014: normal
14 findings except for minor gastrointestinal and urological issues); AR 457-58, 752-53 (Dr.
15 Schmultz, Integrative Medica, April 13, 2015 and May 6, 2015: treatment notes
16 documenting no apparent distress, stable respirations, normal gait, appropriate judgment,
17 appropriate orientation, extremities moved freely and with purpose); AR 752-53; AR 1003-
18 04, 1001-02, 999-1000 (Dr. Novak, Novak Medical Group, June 26, 2016,
19 August 31, 2016, and September 20, 2016: treatment notes documenting that Plaintiff was
20 not in acute distress and examination of his head, eyes, ears, mouth, throat, neck and
21 thyroid, skin, heart, lungs, abdomen, musculoskeletal system, extremities, and neurological
22 system yielded normal findings); AR 982-83, 958-59, 898-99, 882-83, 880-81, 878-79,
23 876-77, 874-75, 872-73, 870-71, 868-69, 866-67, 864-65, 862-63, 860-61, 858-59, 855-57,
24 853-54, 851-52, 849-50, 846-48 (Dr. Novak’s notes from twenty-one examinations
25 between October 20, 2016 and October 11, 2017: documenting that Plaintiff was not in
26 acute distress and had normal findings for his heart, lungs, abdomen, and extremities);
27 AR 1134-36 (Dr. Learn, Arch Health Medical Group, December 6, 2017: normal findings
28 during review of Plaintiff’s constitutional, ENMT (ears, nose, mouth and throat), eyes,
1 respiratory, cardio, gastrointestinal, urologic, endocrine, psychological and integumentary
2 systems, but noting fatigue and nasal congestion and discharge); AR 1148-53 (Dr. Ander,
3 December 14, 2017 and December 20, 2017: documenting intact memory and cognition,
4 normal muscle tone and bulk, normal gait, normal coordination, and supple neck, and
5 writing, “I don’t suspect any significant (central nervous system) disease . . . . It is possible
6 that there is a psychosomatic contribution in part or in total that may explain [Plaintiff’s]
7 symptoms.”); AR 1305-06 (Dr. Berenter, May 11, 2018: documenting normal muscle
8 strength, ranges of motion, and gait); AR 1332 (Dr. Mansour, Scripps Health,
9 December 7, 2017: documenting normal findings for constitutional, head, mouth and
10 throat, eye, neck, cardiovascular, pulmonary, abdominal, musculoskeletal, lymphatic,
11 neurological, and psychiatric systems; unremarkable endoscopy and colonoscopy results;
12 and “no significant symptoms that would warrant any further evaluation or workup”);
13 AR 1353 (Dr. Modena, Scripps Health, December 14, 2017: “[Patient] has an extensive
14 array of concerns and diagnoses without clear unifying diagnosis or clue. . . . I am re-
15 assured by normal examination, no major hospitalization records, normal CBC, normal
16 CMP, and no major symptoms of major illness. . . . [A]lthough patient is unwilling to
17 discuss, [there] is the possibility of psychiatric disease in someone with a family history of
18 mental illness,” and noting that Plaintiff “maintains a poor, slightly flat affect.”); AR 1391-
19 92 (Dr. Mansour, Scripps Health, December 21, 2017: normal examination findings and
20 noting that test results for a possible parasite infection or systemic symptom were
21 “unremarkable”); AR 1411-12 (Dr. Mansour, Scripps Health, February 23, 2018: normal
22 examination findings except some abdominal tenderness with palpitation); AR 1427
23 (Dr. Simon, Scripps Health, April 3, 2018: “Nathan provided extensive past medical
24 records to me. Everything I saw was completely normal. This included the presence of
25 mycotoxins but not at what I would interpret as significant levels. He also had positive IgG
26 and IgG titers. . . but not what I interpret as significant. He then showed me normal labs
27 with his description of them being abnormal.”); AR 1439-42 (Dr. Van Noord, Scripps
28 Health, April 13, 2018: noting “unclear validity” of Lyme Western blot testing and
1 documenting normal examination findings); AR 1770-71 (Dr. Kak, U.C. Irvine Health,
2 April 19, 2019: normal examination findings)).
3 These numerous examinations and test results further support the ALJ’s decision to
4 discount Dr. Petersen’s opinions regarding Plaintiff’s exertional limits. Magallanes, 881
5 F.2d at 751-55 (finding the ALJ properly rejected a treating physician’s opinion that
6 conflicted with other examining physicians’ reports, laboratory test results, and the
7 consulting physician’s opinions).
8 Finally, in rejecting Dr. Petersen’s opinions, the ALJ also properly relied upon the
9 state medical consultants’ opinions that Plaintiff had no workplace limitations. AR 31-32
10 (citing AR 72-75, 81-82). The ALJ specifically found the state agency consultants’
11 opinions were reasonably consistent with the medical record, including the numerous test
12 results and generally unremarkable physical examinations. AR 32 (citing AR 289-90, 326,
13 359, 367, 369, 371, 404, 433, 442, 457-58, 496, 702, 752, 796, 831, 844-967, 1003-04,
14 1135-36, 1149, 1152, 1215, 1244, 1305-06, 1351-53, 1391-92, 1412, 1427, 1441-43, 1469-
15 41, 1770-71, 1772). The Court agrees that the state agency consultants’ opinions are more
16 consistent with the record and, therefore, provided an additional basis for the ALJ to reject
17 Dr. Petersen’s assessment. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)
18 (“The opinions of non-treating or non-examining physicians may also serve as substantial
19 evidence when the opinions are consistent with independent clinical findings or other
20 evidence in the record.”).
21 Christopher R. Snell, Ph.D.
22 Christopher R. Snell, Ph.D. conducted a two-day cardiopulmonary exercise test
23 (“CPET”) on Plaintiff in May 2018. AR 1818-47. The CPET showed below normal
24 metabolic responses, workload, cardiovascular responses, and recovery time, but normal
25 respiratory response. AR 1820. From this, Mr. Snell concluded that Plaintiff’s oxygen
26 consumption was too poor for him to perform any work, even sedentary. AR 1823.
27 The parties analyze the ALJ’s rejection of Mr. Snell’s opinion under the treating
28 physician standard, which is not the proper standard. Mr. Snell has a Ph.D. in Exercise and
1 Movement Science (AR 1840), which is not one of the “acceptable medical source[s]”
2 listed in 20 C.F.R. §§ 404.1502(a) and 416.902(a). Although the ALJ was required to
3 consider Mr. Snell’s findings, the ALJ could discount them for “germane” reasons
4 supported by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
5 The ALJ gave Mr. Snell’s opinion no weight because he performed testing for two
6 days only and was not qualified to render a medical opinion. AR 33. The ALJ also noted
7 that, although Mr. Snell concluded “the claimant exhibited anomalies so severe that it
8 precluded all work,” none of Plaintiff’s clinical or treatment records from established
9 medical facilities, such as University of California, San Diego Medical Center, or Scripps
10 Health, corroborated Mr. Snell’s opinion. Id. As the ALJ noted, one would expect to see
11 significant work-up and treatment of a heart condition that is so severe that it precludes all
12 work, but Plaintiff’s medical records are devoid of any such treatment. Id. Supporting the
13 ALJ’s conclusion, the Court has reviewed the approximately 1,600-page medical record,
14 and nothing in it reflects any major cardiac concerns that caused any of the multiple doctors
15 who examined Plaintiff to order a heart study. Additionally, although the CPET showed
16 evidence of reduced oxygen consumption, it is inconsistent with other medical evidence in
17 the record, including multiple normal physical examinations recording normal oxygen
18 saturation levels. AR 846, 849, 851, 853, 855, 876, 894, 926, 932, 934, 936.
19 In sum, the ALJ gave germane reasons supported by substantial evidence for
20 rejecting Mr. Snell’s opinion. For these same reasons, the ALJ’s rejection of Mr. Snell’s
21 opinion was proper even under the higher “treating physician” standard. The Court finds
22 no error.
23 Mary Ackerley, M.D.
24 Plaintiff consulted with Mary Ackerley, M.D., a psychiatrist and integrative
25 physician, on eight occasions beginning May 17, 2017. AR 809-36, 1873. Her opinions
26 appear in a letter dated July 22, 2018 (AR 1873-76) and a Medical Information
27 Questionnaire dated July 26, 2018 (AR 1877-78). She opined that Plaintiff had chronic
28 fatigue syndrome with post exertional malaise “due to a multi-symptom, multi-system
1 immunological disturbance.” AR 1874-75. Relying on Mr. Snell’s CPET test results,
2 Dr. Ackerley also opined that, due to poor oxygen consumption, Plaintiff could not
3 consistently do anything more strenuous than sit quietly and was incapable of even a “low
4 stress” job. AR 1874, 1877-78. She estimated that Plaintiff could occasionally lift up to ten
5 pounds, walk ten to twenty minutes, sometimes sit for thirty to forty minutes, sometimes
6 stand twenty minutes, and could sit, stand, and walk for a total of less than two hours in an
7 eight-hour workday. AR 1877-78. She stated he would need four to five twenty-minute rest
8 periods during a work day and likely would miss work four days a month. AR 1877. She
9 also opined that Plaintiff had cognitive issues, including issues with focus, processing
10 speed, memory, and word finding difficulties. AR 1873.
11 The ALJ gave no weight to Dr. Ackerley’s opinions because they were inconsistent
12 with the many normal test and physical examination results in the record. AR 31-33. For
13 example, the ALJ found that Dr. Ackerley’s opinions regarding Plaintiff’s cognitive
14 abilities were inconsistent with neurocognitive test results that found only mild difficulties
15 with auditory processing and processing speed. AR 31 (citing AR 1175). He also concluded
16 that Dr. Ackerley’s assessment of Plaintiff’s physical capabilities is also inconsistent with
17 the voluminous other medical reports and findings discussed above in connection with
18 Dr. Petersen’s opinions. AR 32. When weighing the medical opinion evidence, the ALJ
19 also reasonably found the state agency consultants’ opinions that Plaintiff had no
20 workplace limitations are more consistent with the medical record than Dr. Ackerley’s.
21 AR 31-32. These opinions, in combination with the inconsistency between Dr. Ackerley’s
22 assessment and the medical record (discussed above in connection with Dr. Petersen), are
23 substantial evidence that supports the ALJ’s rejection of Dr. Ackerley’s extremely
24 restrictive assessment. Magallanes, 881 F.2d at 751-55; Thomas, 278 F.3d at 957.
25 C. Plaintiff’s Subjective Symptom Testimony
26 As discussed in detail above, Plaintiff testified that he suffered from chronic body-
27 wide pain and inflammation, including his lower back and heart, cognitive impairment, and
28 gastrointestinal problems (which he attributed to Lyme disease) toxic mold exposure, and
1 chronic fatigue syndrome. Plaintiff challenges the ALJ’s finding that his testimony was not
2 fully credible. Dkt. No. 17 at 21-23. The Court finds no error.
3 In evaluating a claimant’s subjective symptom testimony, an ALJ must perform a
4 two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ
5 must determine whether the claimant has presented objective medical evidence of an
6 underlying impairment which could reasonably be expected to produce the pain or other
7 symptoms alleged.” Id. (internal quotation omitted). Second, “[i]f the claimant meets the
8 first test and there is no evidence of malingering, the ALJ can only reject the claimant’s
9 testimony about the severity of her symptoms if she gives specific, clear and convincing
10 reasons for the rejection.” Id. (internal quotation omitted); see also Robbins, 466 F.3d at
11 883 (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence
12 thereof, he or she may only find an applicant not credible by making specific findings as
13 to credibility and stating clear and convincing reasons for each.”). “This is not an easy
14 requirement to meet: [t]he clear and convincing standard is the most demanding required
15 in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (internal
16 quotation omitted).
17 The ALJ provided multiple reasons for finding Plaintiff’s subjective symptom
18 testimony regarding the intensity, persistence, and limiting effects of his symptoms was
19 not fully credible. AR 30-31. Many of the reasons the ALJ provided for discounting
20 Plaintiff’s subjective symptom testimony are based upon a lack of supporting medical
21 evidence, which is a proper consideration when evaluating credibility. See Burch v.
22 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot
23 form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider
24 in his credibility analysis.”). For example, the ALJ noted that while Plaintiff “routinely
25 complained of significant symptoms such as headaches; cognitive impairment; feelings of
26 shock in his body; and a stabbing and burning pain in the neck and chest,” Plaintiff’s
27 multiple physical examinations were generally normal (AR 30 (citing AR 289-290, 442,
28 457-58, 752, 1003-04, 1135-36, 1149, 1152, 1306, 1391, 1439-41, 1770-71)); treating
1 physicians from Scripps Health and U.C. Irvine Health did not find any evidence of acute
2 illness despite extensive testing (id. (citing AR 1353, 1392, 1412, 1427, 1441-43)); and an
3 electromyography and nerve conduction study found only mild left side carpal tunnel
4 syndrome, but no significant radiculopathy or peripheral neuropathy (id. (citing AR 1160)).
5 The ALJ further noted that a brain MRI did not support Plaintiff’s claimed cognitive
6 impairment (id. (citing AR 1271), that the findings of an abdominal ultrasound,
7 colonoscopy, and upper endoscopy were “unremarkable,” and Dr. Barnett’s treatment
8 notes did not support Plaintiff’s claimed gastrointestinal problems (AR 30-31 (citing
9 AR 524, 1218)).
10 The ALJ also found that Plaintiff did not attempt to alleviate his symptoms by
11 consistently following a medically prescribed treatment (AR 30); specifically, Plaintiff did
12 not follow his doctor’s recommended treatment plan of epidural injections and home
13 exercise (AR 31 (citing AR 1295)); and, despite multiple physicians expressing an opinion
14 that Plaintiff’s symptoms may be partly or completely psychosomatic, Plaintiff did not seek
15 mental health treatment (AR 31 (citing 1150, 1353, 1392)). The ALJ’s finding that Plaintiff
16 did not attempt to alleviate his symptoms by following medical advice and obtaining
17 recommended treatment is also a clear and convincing reason to uphold the ALJ’s
18 credibility finding. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (An ALJ
19 may consider “unexplained or inadequately explained failure to seek treatment or to follow
20 a prescribed course of treatment” when evaluating a claimant’s credibility.).
21 Based on the foregoing, the Court finds the ALJ gave clear and convincing reasons,
22 supported by substantial evidence, for discounting Plaintiff’s testimony regarding the
23 intensity, persistence, and limiting effects of his symptoms.
24 D. The ALJ’s RFC Determination
25 Plaintiff also urges reversal because he claims the ALJ’s RFC determination was not
26 supported by any medical opinion. Dkt. No. 17 at 23. The Court finds no error.
27
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1 The ALJ must base his RFC determination on the totality of the record. 20 C.F.R.
2 404.1527(d), 404.1546(c). The ALJ must consider all relevant evidence, including
3 medical evidence, the claimant’s testimony, and lay evidence. 20 C.F.R. § 404.1545(a)(3).
4 The ALJ properly formulated the RFC here. The ALJ considered and evaluated
5 || Plaintiff’s testimony (AR 29-31) and reviewed and considered the entire medical record,
6 including the opinions of Plaintiffs treating physicians (AR 31-33) and the state agency
7 || physicians (AR 31-32).
8 Plaintiff's argument that the ALJ failed to rely on any medical opinion evidence
9 || regarding Plaintiffs functional abilities is incorrect. Dkt. Nos. 17 at 23, 22 at 3-4. The ALJ
10 balanced Dr. Petersen’s opinions (i.e., that Plaintiff could sit for about thirty minutes but
11 more than one hour (AR 1087-88), stand for two hours (AR 1088), walk for ten minutes
12 || (id.), and lift or carry about thirty pounds for less than two minutes (id.)) against those of
13 || the two state agency physicians opinions (i.e., that Plaintiff was not limited in his ability to
14 ||perform basic work activities (AR 72-74, 79-82)). By doing so, the ALJ properly
15 || formulated the RFC. See Davis v. Berryhill, 17-cv-01018-BAM, 2019 WL 852117, at *7
16 ||(E.D. Cal. Feb. 22, 2019) (affirming RFC determination where the ALJ reviewed and
17 || weighed all the evidence in the record, including medical treatment records, physician’s
18 || opinions, and claimant’s subjective complaint testimony).
19 CONCLUSION
20 For the reasons set forth above, the Court DENIES Plaintiff's Motion for Summary
21 Judgment (Dkt. No. 17) and GRANTS Defendant’s Cross-Motion for Summary Judgment
22 ||(Dkt. No. 19). The Clerk of Court shall enter judgment accordingly.
23 IT IS SO ORDERED.
24 ||Dated: March 30, 2021 —
Dando oa
6 Honorable Daniel E. Butcher
United States Magistrate Judge
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