The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON M.,1 1:19-cv-00697-BR
Plaintiff, OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
JOHN E. HAAPALA, JR.
401 E. 10th Avenue
Suite 240
Eugene, OR 97401
(541) 345-8474
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
JUSTIN LANE MARTIN
Social Security Administration
Office of the General Counsel
701 Fifth Avenue
Suite 2900 M/S221A
Seattle, WA 98104-7075
(206) 615-2531
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Jason M. seeks judicial review of a final decision
of the Commissioner of the Social Security Administration (SSA)
in which he denied Plaintiff's applications for Supplemental
Security Income (SSI) and Disability Insurance Benefits (DIB)
under Titles XVI and II of the Social Security Act.
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed his applications for DIB and SSI on June 28,
2016. Tr. 156, 160.2 Plaintiff alleged a disability onset date
of September 1, 2015. His applications were denied initially and
on reconsideration. An Administrative Law Judge (ALJ) held a
hearing on May 25, 2018. Tr. 23-43. Plaintiff and a vocational
2 Citations to the official transcript of record filed by the
Commissioner on September 10, 2019, are referred to as "Tr."
2 - OPINION AND ORDER
expert (VE) testified at the hearing, and Plaintiff was
represented by an attorney.
On June 28, 2018, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 10-18. Pursuant to 20 C.F.R. § 404.984(d),
those decisions became the final decisions of the Commissioner on
March 11, 2019, when the Appeals Council denied Plaintiff's
request for review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
BACKGROUND
Plaintiff was born on December 22, 1975. Tr. 53. Plaintiff
was 42 years old at the time of the hearing. Plaintiff has a
GED. Tr. 186. Plaintiff has past relevant work experience as a
furniture mover, construction worker, and kitchen helper.
Tr. 16.
Plaintiff alleges disability due to low-back pain with
right-side sciatica, lumbar-disc herniation, anteriolischesis,
stenosis of lumbar spine, narrowing of the spinal canal, “bulging
disc of backbone,” and an “abnormal neurological examination.”
Tr. 44-45.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
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medical evidence. See Tr. 14-15.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012). To meet this burden, a claimant must demonstrate his
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months." 42 U.S.C.
§ 423(d)(1)(A). The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)). "It is more than a mere scintilla [of
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evidence] but less than a preponderance." Id. (citing Valentine,
574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009). The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision. Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I. The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See
also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
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Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648
F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648
F.3d at 724. The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s residual functional capacity (RFC). The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations. 20 C.F.R.
§§ 404.1520(e), 416.920(e). See also Social Security Ruling
(SSR) 96-8p. “A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule." SSR 96-8p,
at *1. In other words, the Social Security Act does not require
complete incapacity to be disabled. Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
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At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010). The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2. If the Commissioner meets this burden,
the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1),
416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his September 1, 2015, alleged
onset date. Tr. 12.
At Step Two the ALJ found Plaintiff has the severe
impairment of spondylolisthesis of the lumbar spine with
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foraminal stenosis. Tr. 12. The ALJ found Plaintiff’s
depression and anxiety are not medically determinable
impairments. Tr. 13.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. Tr. 19-20. The ALJ found Plaintiff has the RFC to
perform light work with the following limitations: sitting for
five hours in an eight-hour workday; only standing for two hours
in an eight-hour workday; walking for “up to two hours . . . in
an eight-hour workday (with normal breaks)”; occasionally
balancing, stooping, kneeling, crouching, crawling, and climbing
ramps or stairs; and never climbing ropes or ladders. Tr. 13.
The ALJ also found Plaintiff “must be permitted [to] sit or [to]
stand as needed while remaining on task.” Tr. 13.
At Step Four the ALJ concluded Plaintiff cannot perform his
past relevant work. Tr. 16.
At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy. Tr. 17.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) partially
rejected Plaintiff’s testimony; (2) partially rejected the
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opinion of Anh Nguyen, D.O., treating osteopath; and (3) failed
to include all of Plaintiff’s limitations in her assessment of
Plaintiff’s RFC and her findings at Step Five.
I. The ALJ did not err when she partially rejected Plaintiff’s
testimony.
Plaintiff alleges the ALJ erred when she partially rejected
Plaintiff’s testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony: The claimant must produce objective medical evidence
of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom. Cotton, 799 F.2d 1403 (9th Cir.
1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.
1991). The claimant, however, need not produce objective medical
evidence of the actual symptoms or their severity. Smolen, 80
F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)). General assertions that the claimant's testimony is
not credible are insufficient. Id. The ALJ must identify "what
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testimony is not credible and what evidence undermines the
claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).
Plaintiff testified at the hearing that he stopped working
in 2015 because of his back issues. Plaintiff could no longer do
the lifting required to load and to unload furniture. Plaintiff
stated he has experienced stinging, knife-like pain in the middle
of his back “right above [his] belt” for “well over two years.”
Tr. 34. When Plaintiff bends or squats, the pain radiates into
both of his legs, and his right leg is especially painful.
Plaintiff rated his level of pain as a “7 to 8” on a scale of
one-to-ten with ten meaning “you need to be hospitalized.”
Tr. 35. Plaintiff takes Flexeril, Mobic, and ibuprofen, which
“keep the pain levels down a little bit and help [him] move a
little bit better,” but they do not provide complete relief.
Tr. 35. When Plaintiff bends down and tries to pick something
up, he will “almost black out” from the pain. Tr. 35. Plaintiff
can only lift ten pounds “if [he’s] lucky” because “it puts too
much pressure on [his] back.” Tr. 38. Plaintiff can sit for
thirty minutes, at which point he needs to lie down for fifteen-
to-thirty minutes to alleviate his pain. Plaintiff can stand for
ten-to-fifteen minutes and walk for a block before he starts to
have back pain and his legs go numb. Plaintiff stated it is
“really difficult” for him to bend, twist, stoop, crouch, or
crawl. If he had to do a job in which those things were
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required, he would have to take a fifteen-minute break every 30
or 45 minutes to rest his back. Plaintiff stated a five- or six-
hour workday “puts [him] down for two to three days because [he]
can’t move after that.” Tr. 37. Plaintiff could work three-to-
five hours on a job that allowed him to alternate between
sitting, standing, and walking. Plaintiff stated it takes him
all day to do the dishes. If the laundry basket is too heavy,
Plaintiff has to have his son carry it. Plaintiff cannot cook
well because leaning over the stove hurts his back. Plaintiff
gets four or five hours of sleep per night because of his back
pain.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause [his] alleged
symptoms,” but Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms are not
entirely consistent with the medical evidence and other evidence
in the record.” Tr. 14. The ALJ noted the record reflects
Plaintiff chose more conservative treatment such as over-the-
counter medication and physical therapy to treat his pain rather
than surgery. For example, on August 19, 2016, Plaintiff
reported to Ana Marie Fergueson, N.P., that he is experiencing
“worsening back pain”; that he cannot stand, walk, or sit “for a
long time”; and that he is “laying in bed most of the time just
so he can tolerate the pain.” Tr. 310. Plaintiff told
1 1- OPINION AND ORDER
N.P. Fergueson that he had seen an orthopedic surgeon who
Plaintiff “claimed told him there is nothing he can do unless
[Plaintiff] lost his body function for bowel movement or
urination.” Tr. 310. Plaintiff stated the surgeon did not
recommend physical therapy. On examination Plaintiff had a
normal range of motion, but he “exhibit[ed] tenderness.”
Tr. 312. Plaintiff could sit for three-to-five minutes, could
lie down for five-to-ten minutes, and could stand less than three
minutes without experiencing pain levels between five and eight.
Plaintiff refused pain medication and chose to treat his pain
with over-the-counter medication and marijuana. N.P. Fergueson
ordered an MRI of Plaintiff’s lumbar spine and referred Plaintiff
to physical therapy. An August 19, 2016, x-ray of Plaintiff’s
lumbar spine reflected Plaintiff had “moderate to severe
degenerative narrowing at L5-S1[,] mild narrowing . . . at L3-4
and L4-5,” and “grade 1-2 anterolisthesis of L5 on S1 which may
predispose to impingement.” Tr. 315.
A September 10, 2016, MRI of Plaintiff’s lumbar spine
reflected “[m]oderate to marked disc space narrowing at L5-S1
along with mild disc space narrowing at L3-4 and moderate disc
space narrowing at L4-5”; a “stable small broad-based central
disc protrusion without evidence of significant central canal
stenosis or neural foraminal narrowing” at L4-L5; and a “stable
broad-based disc-osteophyte-complex with uncovering of the
1 2- OPINION AND ORDER
posterior disc margin secondary to the spondylolisthesis [with]
mild bilateral facet joint osteoarthritis” at L5-S1, which
“results in moderate to severe bilateral neural foraminal
narrowing.” Tr. 316.
Plaintiff engaged in physical therapy from August 2016
through September 14, 2016. On September 14, 2016, his physical
therapist, Michele Hartwick, reported Plaintiff was “improving
motion with pelvic tilts,” had “tolerated upgrade to TA level 2,”
was “able to hold core with full UE flexion to wall,” and was
“tolerating isometric core exercises well with increasing
resistance and UE challenge.” Tr. 336. Nevertheless, Hartwick
reported Plaintiff continued “to demonstrate limitations which
require skilled PT Intervention to achieve” his goals. Tr. 336.
Hartwick, therefore, requested authorization for more sessions
for Plaintiff. Hartwick’s request was approved, and Plaintiff
engaged in further physical therapy. On October 13, 2016,
Hartwick reported Plaintiff was doing his physical therapy
exercises at home, had “started reducing muscle relaxers,” and
was experiencing sciatica less frequently. Tr. 346. Hartwick
noted Plaintiff’s pain “somewhat limit[ed] [his] ability to
participate in [physical] therapy.” Tr. 347.
On November 8, 2016, Plaintiff reported to Hartwick that he
had met with Jason Conaughty, M.D., treating physician, on
October 27, 2016, and he “was considered for fusion with
1 3- OPINION AND ORDER
laminectomy but . . . insurance denied due to smoking status.”
Tr. 349. Hartwick noted Plaintiff was “improving strength with
isometric holds. Beginning to demonstrate consistency with low
level squat activities and not provoking symptoms.” Tr. 348.
Hartwick “[i]nitiated rotation with very light resistance and no
provocation of [Plaintiff’s] symptoms.” Tr. 350.
On December 7, 2016, Hartwick reported Plaintiff was
“improving strength with isometric holds. Good form with squats
and squat rows. Good core isometrics with advanced plank and
instability exercises.” Tr. 355. Hartwick “continue[d] to
recommend limited twisting with resistance or weight[s].”
Tr. 355. On December 20, 2016, Hartwick noted Plaintiff was
“progressing well with difficult core/hip exercises and no
complaint of pain - with asymmetrical and single plane
exercises.” Tr. 357. Hartwick “[c]ontinue[ed] to recommend
limited twisting with resistance or weight[s].” Tr. 357.
On February 16, 2017, Plaintiff met with Ahn Nguyen, D.O.,
to establish care. Dr. Nguyen discussed with Plaintiff “the
importance of tobacco cessation” both for his general health and
in order to qualify for surgery, but Plaintiff “was slightly
hesitant.” Tr. 360. Plaintiff advised Dr. Nguyen that he was
“unsure if he wants surgery when there isn’t [a] guarantee that
he will get better.” Tr. 360. Dr. Nguyen advised Plaintiff that
“without [surgery], it doesn't seem like [Plaintiff] is able to
1 4- OPINION AND ORDER
live his life, work, [or] move.” Tr. 360. Dr. Nguyen discussed
with Plaintiff three possible plans: “1) Continue current plan,
which is flexeril, NSAIDs, PT; 2) Start tobacco cessation in case
he wants to do surgery, and . . . ; 3) Start tobacco cessation
with plan to go to surgery.” Tr. 360.
On January 18, 2018, Plaintiff was seen by Dr. Nguyen to
“fill out disability paperwork.” Tr. 364. Dr. Nguyen stated he
had seen Plaintiff “once, last year [to] establish care.”
Tr. 364. Dr. Nguyen noted Dr. Conaughty recommended Plaintiff
have an L5-S1 laminectomy with fusion, but Dr. Conaughty required
Plaintiff to have six months “of tobacco cessation” before he
would do surgery. Plaintiff, however, smoked a half a pack of
cigarettes per day and “has not been able to quit.” Tr. 364.
Plaintiff continued to be uncertain “if he wants surgery, not
sure if surgery is the answer for him . . . though he is in
constant pain and not able to do any work.” Tr. 364. Dr. Nguyen
again discussed with Plaintiff the “importance of tobacco
cessation not only so that he can [have] surgery but [also for]
his overall health.” Tr. 365.
On February 17, 2018, Dr. Nguyen reported Plaintiff was
still smoking half a pack of cigarettes a day and that he was
planning to quit that summer, which would clear the path to
surgery if Plaintiff wanted to pursue that plan.
On May 10, 2018, Dr. Nguyen reported Plaintiff was still
1 5- OPINION AND ORDER
smoking and was not ready to stop smoking or to have surgery.
On March 3, 2018, Michael Henderson, M.D., conducted a
musculoskeletal examination of Plaintiff. Dr. Henderson noted
Plaintiff was able to transfer from sitting to standing
“normal[ly]”; Plaintiff did not have any antalgia, neuropathy, or
myelopathic patterns when walking; and Plaintiff was able to
squat “one quarter of the way down.” Tr. 368. Plaintiff’s
[m]uscle bulk and tone are normal and symmetric.
Strength is 5/5 at the hips, knees, ankles and
extensor hallucis longus bilaterally. Reflexes
are 3/4 at the patella and Achilles bilaterally.
The reflexes were symmetric subjectively and
objectively and minimal percussion was used to
elicit a response. Sensation to pinwheel was
abnormal along the right medial calf and posterior
lateral calf sensation in the feet and throughout
the left lower extremity was normal.
Tr. 368. Dr. Henderson concluded Plaintiff has
Spondylolisthesis with foraminal stenosis: The
MRl shows grade 1-2 L5-Sl anterolisthesis and
moderate to severe bilateral foraminal stenosis at
the L5-S1 junction. However, the exam did not
corroborate or correlate with the MRl imaging
findings. The history was relatively vague as to
the symptoms. The only limitations he describes
are lifting difficulties and standing for
prolonged periods. His nonorganic pain behaviors
on exam, and the objective findings were benign.
Previously the reflexes were diminished on the
right side but are now symmetric with the left
side indicating improvement of the neuropathy.
However, he does have spondylolisthesis and
foraminal stenosis. This would cause moderate
impairments at most, and with this limit sitting
and standing to 40 minutes at a time each and
should be able to alternate. He is able to sit,
stand and walk 8 hours per day with normal breaks
and thing else [sic] alternates between them.
Overall the objective findings do not support the
1 6- OPINION AND ORDER
subjective complaints of pain or functional
limitations.
Tr. 368. Dr. Henderson opined Plaintiff could continuously carry
up to ten pounds, sit or stand for forty minutes at one time
without interruption, walk for one hour at one time without
interruption, sit for five hours total in an eight-hour workday,
stand for four hours total in an eight-hour workday, and walk for
four hours total in an eight-hour workday.
The Court finds on this record that the ALJ did not err when
she partially rejected Plaintiff’s testimony regarding the
intensity, persistence, and limiting effects of his symptoms
because the ALJ provided clear and convincing reasons supported
by substantial evidence in the record for doing so.
II. The ALJ did not err when she partially rejected the opinion
of Dr. Nguyen, treating physician.
As noted, Plaintiff contends the ALJ erred when she
partially rejected Dr. Nguyen’s opinion.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002). When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it. Thomas, 278 F.3d at
1 7- OPINION AND ORDER
957. See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.
1996).
On January 18, 2018, Dr, Nguyen completed a Physical Medical
Source Statement in which he noted he is Plaintiff’s treating
osteopath and sees Plaintiff once a year. Dr. Nguyen stated
Plaintiff has moderate-to-severe “bilateral foraminal L5-S1.”
Tr. 377. Plaintiff has pain at a “6/7 out of 10, worsening
[with] movement, [and is] unable to lift heavy object[s].”
Tr. 377. Dr. Nguyen pointed to Plaintiff’s 2016 MRI, which
reflected “grade 1-2 spondyolistesis of L5-S1 resulting in mod-
severe bilateral foraminal narrowing @ L5-S1.” Tr. 377.
Dr. Nguyen stated Plaintiff takes NSAIDS “as tolerated” and
flexeril, which makes him dizzy but “does help,” and that
physical therapy “failed.” Tr. 377. Dr. Nguyen stated Plaintiff
can sit for ten minutes and stand for five minutes at a time
before needing to change position; can walk one block “without
rest or severe pain”; can stand and/or walk for two hours in an
eight-hour workday; can sit for two hours in an eight-hour
workday; can frequently lift less than ten pounds; can
occasionally lift ten pounds; can rarely twist, crouch, squat,
climb stairs, or climb ladders; and can never stoop or carry 50
pounds. Tr. 379. Dr. Nguyen noted Plaintiff would need to take
unscheduled breaks every fifteen-to-thirty minutes throughout the
workday, and each break would be between five and ten minutes;
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Plaintiff would be off task “25% or more” during an eight-hour
workday; and Plaintiff would miss more than four days of work per
month due to “pain/parasthesias.” Tr. 378-79.
The ALJ rejected Dr. Nguyen’s opinion on the grounds that
Dr. Nguyen began treating Plaintiff in February 2017, saw
Plaintiff only once per year, and had seen Plaintiff only twice
at the time he offered his opinion. See Trevizo v. Berryhill,
871 F.3d 664, 676 (9th Cir. 2017)(citing 20 C.F.R. § 404.1527(c))
(“The length of the treating relationship, the frequency of
examination, [and] the nature and extent of the treatment
relationship” are factors the ALJ must consider when deciding
whether to give a treating physician’s opinion controlling
weight.). In addition, Dr. Nguyen’s assessment of Plaintiff’s
limitations was unsupported by the medical record and
contradicted by Plaintiff’s testimony at the hearing. For
example, Plaintiff testified he can sit for thirty minutes, can
stand for ten-to-fifteen minutes, and walk for a block before he
starts to have back pain and his legs go numb. If he had to do a
job in which he had to bend, twist, stoop, crouch, or crawl, he
would have to take a fifteen-minute break every thirty or forty-
five minutes to rest his back. Plaintiff stated he could work
three-to-five hours on a job that allowed him to alternate
between sitting, standing, and walking. Similarly, the record
reflects Plaintiff improved with physical therapy, and by
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December 2016 Plaintiff was “progressing well with difficult
core/hip exercises and no complaint of pain - with asymmetrical
and single plane exercises.” Tr. 357. His physical therapist
“[c]ontinue[ed] to recommend limited twisting with resistance or
weight[s].” Tr. 357. Finally, as noted, Dr. Henderson found
Plaintiff could continuously carry up to ten pounds, sit or stand
for forty minutes at one time without interruption, walk for one
hour at one time without interruption, sit for five hours total
in an eight-hour workday, stand for four hours total in an eight-
hour workday, and walk for four hours total in an eight-hour
workday.
On this record the Court concludes the ALJ did not err when
she partially rejected Dr. Nguyen’s opinion because the ALJ
provided clear and convincing reasons for doing so based on
substantial evidence in the record.
V. The ALJ did not err when she failed to include all of
Plaintiff’s alleged limitations in her assessment of
Plaintiff’s RFC and/or at Step Five.
Plaintiff contends the ALJ erred in her assessment of
Plaintiff’s RFC and/or when she concluded at Step Five that
Plaintiff could perform other jobs in the national economy
because the ALJ failed to consider the limitations indicated by
Plaintiff and Dr. Nguyen.
The Court, however, has found the ALJ properly partially
rejected Plaintiff's testimony and the opinion of Dr. Nguyen.
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Thus, the Court concludes the ALJ did not err when she failed to
include all of Plaintiff’s alleged limitations in her assessment
of Plaintiff’s RFC and/or when she found at Step Five that
Plaintiff could perform other jobs in the national economy.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 8th day of April, 2020.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
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