Danny L. Ray II v. Nancy A. Berryhill

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8 UNITED STATES DISTRICT COURT

9g CENTRAL DISTRICT OF CALIFORNIA

10 SOUTHERN DIVISION

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DANNY L. R. Il, ) No. SA CV 19-498-PLA

13 Plaintiff, MEMORANDUM OPINION AND ORDER

14 V.

ANDREW M. SAUL, COMMISSIONER

OF SOCIAL SECURITY )

ADMINISTRATION, )

17 Defendant.

18 ——<—$—<—<————

19 I.

20 PROCEEDINGS

21 Danny L. R. II' (“plaintiff”) filed this action on March 13, 2019, seeking review of the

22 | Commissioner's? denial of his application for a period of disability and Disability Insurance Benefits

(“DIB”). The parties filed Consents to proceed before a Magistrate Judge on April 3, 2019, anc

a

25 ' In the interest of protecting plaintiff's privacy, this Memorandum Opinion and Order uses

plaintiff's (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birtt

date. See Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1.

2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, the

newly-appointed Commissioner of the Social Security Administration, is hereby substituted as the

defendant herein.

1|| April 10, 2019. Pursuant to the Court's Order, the parties filed a Joint Stipulation (alternativel

“JS") on January 13, 2020, that addresses their positions concerning the disputed issues in the

3|| case. The Court has taken the Joint Stipulation under submission without oral argument.

4

5 Il.

6 BACKGROUND

7 Plaintiff was born in 1970. [Administrative Record (“AR”) at 27, 151.] He has past relevan

8 || work experience as a finish carpenter; as a bicycle repairer; and as an assembler, bicycle Il. [Id

9} at 27, 62-63.]

10 On May 22, 2015, plaintiff protectively filed an application for a period of disability and DIB

11] alleging that he has been unable to work since June 4, 2013. [Id. at 15; see also id. at 150-54.

After his application was denied initially and upon reconsideration, plaintiff timely filed a reques

for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 95-96.] A hearing was held or

14| February 8, 2018, at which time plaintiff appeared represented by an attorney, and testified on his

own behalf. [Id. at 34-73.] A vocational expert (“VE”) also testified. [Id. at 61-72.] On April 19

2018, the ALJ issued a decision concluding that plaintiff was not under a disability from June 4

2013, the alleged onset date, through September 30, 2017, the date last insured. [Id. at 15-29.

Plaintiff requested review of the ALJ’s decision by the Appeals Council. [Id. at 148-49.] Wher

the Appeals Council denied plaintiff's request for review on January 8, 2019 [id. at 1-5], the ALJ’s

decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, □□

(9th Cir. 2008) (per curiam) (citations omitted). This action followed.

22

23 lll.

24 STANDARD OF REVIEW

25 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's

decision to deny benefits. The decision will be disturbed only if it is not supported by substantia

evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622

28 || F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

1 “Substantial evidence ... is ‘more than a mere scintilla[,]’. .. [which] means -- and means

2] only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support <

3|| conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations

4| omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible

to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3c

6 || at 654 (internal quotation marks and citation omitted). However, the Court “must consider the

entire record as a whole, weighing both the evidence that supports and the evidence that detracts

from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quanturr

9|| of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. □□□□□

10} (internal quotation marks omitted)). The Court will “review only the reasons provided by the AL.

11] inthe disability determination and may not affirm the ALJ on a ground upon which he did not rely.’

12) Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80

87,63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order mus

14| be judged are those upon which the record discloses that its action was based.”).

15

16 IV.

17 THE EVALUATION OF DISABILITY

18 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable

to engage in any substantial gainful activity owing to a physical or mental impairment that is

expected to result in death or which has lasted or is expected to last for a continuous period □□

atleast twelve months. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting

42 U.S.C. § 423(d)(1)(A)).

23

24| A. THE FIVE-STEP EVALUATION PROCESS

25 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing

26 | whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468

F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).

28 || In the first step, the Commissioner must determine whether the claimant is currently engaged in

1| substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry

2| 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the

second step requires the Commissioner to determine whether the claimant has a “severe

impairment or combination of impairments significantly limiting his ability to do basic wort

5 | activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has

a “severe” impairment or combination of impairments, the third step requires the Commissione

to determine whether the impairment or combination of impairments meets or equals ar

8] impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P

9|| appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the

10 claimant's impairment or combination of impairments does not meet or equal an impairment ir

11| the Listing, the fourth step requires the Commissioner to determine whether the claimant has

sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disablec

13] and the claim is denied. Id. The claimant has the burden of proving that he is unable to perforn

past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claiman

meets this burden, a prima facie case of disability is established. Id. The Commissioner ther

bears the burden of establishing that the claimant is not disabled because there is other work

17 || existing in “significant numbers” in the national or regional economy the claimant can do, □□□□□□

18] (1) by the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 2(

C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination o

this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520

21|| 416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995): Drouin, 966 F.2d at 1257.

22

23] B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

24 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity

25 || during the period from June 4, 2013, the alleged onset date, through September 30, 2017, his

26 date last insured. [AR at 18.] At step two, the ALJ concluded that plaintiff has the severe

impairments of right calcaneal fracture status post surgery with residual degenerative joint disease

28 || and pain; chronic pain syndrome; obesity; right knee problems status post surgery with pain

1| depression not otherwise specified; anxiety not otherwise specified; bipolar II disorder; panit

2| disorder; and post-traumatic stress disorder. [Id.] At step three, the ALJ determined that plaintif

3|| does not have an impairment or a combination of impairments that meets or medically equals an\

4|| of the impairments in the Listing. [ld. at 19.] The ALJ further found that plaintiff retained the

residual functional capacity (“RFC”)° to perform light work as defined in 20 C.F.R. § 404.1567(b),

6|| as follows:

7 [He can] lift, carry, push and pull up to 20 pounds occasionally and 10 pounds

frequently . . . except he can stand and/or walk a combined total of 2 hours in an 8-

8 hour day. He may sit 6 hours in an 8-hour day. He requires a sit/stand option at 45

to 60 minute intervals for 3 to 5 minutes at a time, during which period he may

9 remain on task. He may occasionally climb ramps and stairs, and balance. He may

never climb ladders, ropes, scaffolds, or crawl. He may never push, pull, or engage

10 in foot pedal operations with the right lower extremity. He must avoid more than

occasional exposure to extreme cold and vibration. He should avoid all exposure

11 to hazards such as dangerous moving machinery and unsecured heights. He can

learn, remember and perform simple, routine and repetitive work tasks, involving

12 simple work instructions, which are performed in a routine, predictable and low

stress work environment (defined as on[e] in which there are no rapid production

13 pace tasks, few work place changes, and no close supervision). He can attend and

concentrate for 2 hours at a time with normal breaks. He may have occasional

14 interaction with supervisors, coworkers and the public.

15| at21.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concludec

16 | that plaintiff is unable to perform his past relevant work as a finish carpenter; as a bicycle repairer

17| and as an assembler, bicycle Il. [Id. at 27, 66.] At step five, based on plaintiff's RFC, vocationa

18| factors, and the VE’s testimony, the ALJ found that there are jobs existing in significant numbers

19} in the national economy that plaintiff can perform, including work as a “small product assembler

20

RFC is what a claimant can still do despite existing exertional and nonexertiona

limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps

three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which

the ALJ assesses the claimant's residual functional capacity.” Massachiv. Astrue, 486 F.3d 11 49.

23] 1151 n.2 (9th Cir. 2007) (citation omitted).

24 * “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying

25 of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this

category when it requires a good deal of walking or standing, or when it involves sitting most of the

26 | time with some pushing and pulling of arm or leg controls. To be considered capable of performing

a full or wide range of light work, you must have the ability to do substantially all of these activities.

someone can do light work, we determine that he or she can also do sedentary work, unless there

are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.’

20 C.F.R. § 404.1567(b).

(Dictionary of Occupational Titles (“DOT”) No. 739.687-030), and as a “collator’ (DOT No

2| 653.687-010). [AR at 28, 66-67.] Accordingly, the ALJ determined that plaintiff was not disablec

at any time from the alleged onset date of June 4, 2013, through September 30, 2017, the date

4) last insured. [Id. at 28-29.]

5

6 V.

THE ALJ’S DECISION

8 Plaintiff contends that the ALJ erred when he: (1) rejected the opinion of the consultative

examiner, William Wang, M.D., and the opinion of the reviewing physician, E. Christian, M.D.; anc

10] (2) rejected plaintiffs subjective symptom testimony. [JS at 4.] As set forth below, the Cour

respectfully disagrees with plaintiff and affirms the decision of the ALJ.

12

13] A. MEDICAL OPINIONS

14 1. Legal Standard

15 “There are three types of medical opinions in social security cases: those from treating

physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec

Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527.° The □□□□□

18] Circuit has recently reaffirmed that “[t]he medical opinion of a claimant's treating physician is giver

19 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's

21] case record.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. §

22) — SS

23 □ The Court notes that for all claims filed on or after March 27, 2017, the Rules in 20 C.F.R

§ 404.1520c (not § 404.1527) shall apply. The new regulations provide that the Social Security

24 Administration “will not defer or give any specific evidentiary weight, including controlling weight,

25 to any medical opinion(s) or prior administrative medical finding(s), including those from your

medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating

Source,” as well as what is customarily known as the treating source or treating physician rule.

See 20 C.F.R. § 404.1520c; see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). However,

the claim in the present case was filed before March 27, 2017, and the Court therefore analyzed

plaintiff's claim pursuant to the treating source rule set out herein. See also 20 C.F.R. § 404.1527

28 || (the evaluation of opinion evidence for claims filed prior to March 27, 2017).

404.1527(c)(2)) (second alteration in original). Thus, “[aJs a general rule, more weight should be

given to the opinion of a treating source than to the opinion of doctors who do not treat the

claimant.” Lester, 81 F.3d at 830; Garrison, 759 F.3d at 1012 (citing Bray v. Comm’r Soc. Sec

4|| Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)); Turner v. Comm’r of Soc. Sec., 613 □□□□

S| 1217, 1222 (9th Cir. 2010). “The opinion of an examining physician is, in turn, entitled to greate

weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan v. Comm’

7|| of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

8 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medica

opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3c

at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific anc

legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan, 52€

F.3d at 1198). When a treating physician's opinion is not controlling, the ALJ should weigh i

according to factors such as the nature, extent, and length of the physician-patient □□□□□□

relationship, the frequency of examinations, whether the physician’s opinion is supported by anc

15] consistent with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see

16) 20C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standarc

“by setting out a detailed and thorough summary of the facts and conflicting clinical evidence

18] stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9tt

19} Cir. 1998). The ALJ “must set forth his own interpretations and explain why they, rather than the

[treating or examining] doctors’, are correct.” Id.

21 Although the opinion of a non-examining physician “cannot by itself constitute substantia

evidence that justifies the rejection of the opinion of either an examining physician or a treating

23) physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians.

psychologists, and other medical specialists who are also experts in Social Security disability

25| evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray, 554

26 | F.3d at 1221, 1227 (the ALJ properly relied “in large part on the DDS physician’s assessment’ ir

determining the claimant's RFC and in rejecting the treating doctor’s testimony regarding the

28 || claimant's functional limitations). Reports of non-examining medical experts “may serve as

ct

substantial evidence when they are supported by other evidence in the record and are consisten

with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

3

4 zs Dr. Wang and Dr. Christian

5 On October 10, 2015, Dr. Wang issued his report with respect to his September 25, 2015

complete orthopedic evaluation of plaintiff. [AR at 327-33.] Dr. Wang reported that in 2017

plaintiff sustained a “right calcaneal fracture” as a result of a severe motor vehicle accident tha

occurred when he accidentally drove off a freeway overpass while answering his telephone, anc

crashed onto the freeway below. [ld. at 328.] Plaintiff was told by a surgeon at that time that his

10 injury was not operable; however, he “eventually went to see a podiatrist who decided to perforn

11] a subtalar fusion in 2011.” [Id. at 329.] After the surgery, plaintiff felt the pain was improving

somewhat, but stopped taking his heavy pain medication because he did not tolerate it very well

13] [Id.] Plaintiff reported that the pain seems to get worse with walking, and that a cortisone injectior

14| did not seem to help very much. [Id.] He also reported that he continued to have severe pain or

15| the lateral side of the right heel that he described as a throbbing-type pain, exacerbated by)

standing or walking, and as a6 to 7 on a 10-point pain scale. [Id.] As relevant to plaintiff's righ

heel injury, Dr. Wang noted normal gait; ability to stand on heels and tiptoes without difficulty anc

with no evidence of weakness in the ankle flexors or extensors; plaintiff got on and off the

examination table without difficulty and did not require the use of an assistive device; there was

20 | lateral prominence of the right ankle area, and plaintiff's heel is “in slight varus but is plantigrade”

there was some tenderness to palpation over the sinus tarsi but no evidence of swelling, palpable

mass, or inflammation; range of motion was 20/20 degrees of dorsiflexion bilaterally, and 40/4(

degrees of plantar flexion bilaterally; and subtalar range of motion was intact bilaterally. [Id. a

332.] Dr. Wang diagnosed plaintiff with “right calcaneus fracture with posttraumatic subtala

25 || arthritis status post fusion”; and “subtalar nonunion.” [Id. at 333.] He noted that “[o]n clinica

26 || exam, it appears that [plaintiff] still has a significant amount of subtalar motion, which indicates

that he has likely undergone a painful nonunion.” [Id.] Based on his examination, Dr. Wang

28 || opined that plaintiff “can lift and carry 10 pounds occasionally and 10 pounds frequently .. . |

[C]an stand and walk for 2 hours in an eight hour workday. . . . [and] can sit for 6 hours in an eigh

2| hour workday.” [Id.] He stated that there were “no other postural, manipulative, visual

communicative, or environmental limitations.” [Id.]

On November 4, 2015, Dr. Christian, the non-examining reviewing physician, also limitec

plaintiff to standing and walking for two hours in an eight-hour workday, sitting for six hours in ar

eight-hour workday, and lifting and carrying ten pounds occasionally and ten pounds frequently

at 82.]

8 The ALJ assigned “great weight to Dr. Wang’s statements [regarding plaintiff's ability tc

stand, walk, and sit during an eight-hour workday] as they are supported by physical examinatior

findings such as that [plaintiff] walked with a normal gait, was able to perform a tandem gait, was

able to squat, was able to stand on the heels and tiptoes without difficulty, and exhibited nc

12 evidence of weakness in the ankle flexors or extensors.” [Id. at 24 (citations omitted).] He alsc

noted that Dr. Wang verified that plaintiff's muscle tone was good bilaterally, with strength in the

upper and lower bilateral extremities at 5 out of 5; plaintiff got into and stood up from a chai

15 | without difficulty; got on and off the examination table without difficulty; and did not require the usé¢

of an assistive device to walk. [Id. at 25.] The ALJ stated that Dr. Wang's statements were

consistent with other evidence of record documenting “mainly normal physical functioning suct

as physical examination records confirming no musculoskeletal abnormalities in relation tc

19] [plaintiffs] right heel or his right knee.” [Id. (citation omitted).] He also assigned great weight tc

20 Dr. Christian’s identical opinion regarding plaintiffs standing/walking/sitting limitations as

21] “consistent with Dr. Wang’s analysis and other evidence in the record noted immediately above.

22) [Id.]

23 The ALJ, however, also specifically stated that he assigned “no weight” to Dr. Wang’s anc

Dr. Christian’s finding that plaintiff “can lift and carry 10 pounds occasionally and 10 pounds

frequently.” [ld.] He pointed out that physical examination records, including Dr. Wang's owr

26 | findings, “support a lesser amount of restrictions.” [Id.] He specifically noted Dr. Wang's findings

that plaintiffs muscle tone was good bilaterally, “with strength in the upper and lower □□□□□□□□□

28 || extremities 5 out of 5 and that [his] handgrip strength bilaterally was 60-60-60 pounds on testing.’

[Id. (citation omitted).] The ALJ also stated that “other evidence documents mainly norma

2| physical functioning such as physical examination records confirming no musculoskeleta

abnormalities in relation to [plaintiffs] right heel or his right knee.” [ld. (citing id. at 504 (a Januar

25, 2018, treatment note reflecting no mention at all of plaintiffs right heel or knee, □□□□□□□□

finding “[djecreased strength at wrist and finger extension source triceps strength is preserved

6 || equivocal findings of brachial radialis,” and “[wJeakness of the wrist extensors finger extensors his

7|| paresthesia of the dorsum of his hand in the first webspace, triceps strength is preserved

8 | equivocal findings of the brachial radialis strength,” and diagnosing him with “Radial nerve palsy

left’)).]

10 The ALJ's hypothetical to the VE (as well as his RFC determination) adopted Dr. □□□□□□

and Dr. Christian’s finding that plaintiff is able to stand/walk for a combined total of up to two hours

and sit for six hours in an eight-hour workday, but also presented a hypothetical individual whc

13 is able to lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently anc

14|| required a sit/stand option at 45 to 60 minute intervals for 3 to 5 minutes at atime. [See id. at 21

63-64.] The VE testified that even with the hypothetical limitations “[t]here’s a lot of task-orientec

16 | jobs. . . in production-oriented areas [that] offer sit/stand options [because] [y]ou’re working frorr

a high bench, a fixed position [and] generally presented with a stool that enables you to sit o

stand at will . . . [and] remain on task.” [Id. at 65.] The VE also testified, however, that □□□□□□□□

19] ... because of the sit/stand option,” if the hypothetical individual was limited to sedentary work

20 which “tends to be performed more at desk height because it is a job that you’re generally goinc

to be sitting for six hours a day,” while there were occupations that could be performed, the

22|| number of available positions would be eroded by “90 percent . . . or so and that’s at □□□□□□□ [Id

at 68-69.]

24 Plaintiff contends that the ALJ failed to adequately explain why he was rejecting the

25 —-————_—————_.

26 ° Specifically, the VE suggested the hypothetical individual would be able to perform the

sedentary occupations of lens block gauger (DOT No. 716.687-030) and lamp-shade assemble!

(DOT No. 739.684-094), but the available number of each of those positions would be eroded by

90% due to the sit/stand option, leaving 1,400 jobs and “well under 4,000 jobs in the U.S.

economy” respectively. [AR at 69.]

10

1|| sedentary lift and carry opinions of Dr. Wang and Dr. Christian, and “simply substituted his owr

lay opinion for that of the opinion from a medical professional.” [JS at 7 (citing Tackett, 180 F.3¢

3| at 1102-03; Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)).] He submits that the erro

4| was not harmless in light of the VE’s testimony regarding the erosion of available occupations fo

the hypothetical individual with the full sedentary limitations found by Dr. Wang. [Id. at 8 (citing

6] AR at 68-71).]

Defendant responds that the ALJ adequately explained why he rejected the lifting

restrictions found by Dr. Wang and Dr. Christian, and even “added restrictions to the RFC tha

went further than either [of] the doctors opined.” [Id. at 11.] Defendant points out that althougt

10 Dr. Wang noted plaintiffs complaint of tenderness to palpation in the lumbar spine, Dr. Wanc

11 otherwise reported no findings with respect to the thoracic, lumbar, or cervical spines, and nc

12] negative findings at all with respect to his upper extremities, including shoulders, elbows

forearms, wrists, and hands. [ld. (citing AR at 24-25, 330-31).] In fact, Dr. Wang reported, among

other things, that plaintiffs strength “is 5/5 in the bilateral upper extremities” [AR at 332], anc

determined that plaintiff had complete range of motion in his upper extremities, elbows, anc

16| wrists, full range of motion in his hips, knees, and ankles, and strength that is “5/5 in the bilatera

lower extremities.” [Id. at 331-32.] The ALJ also observed that the evidence “confirms tha

18 | [plaintiff] reported that his knee and ankle pain are treatable with cortisone injections, and that the

injections relieve his pain for weeks” [id. at 23 (citing id. at 358)]; that he was prescribed Lyrice

20} for his alleged chronic pain syndrome and made “no complaint of pain at a follow-up visit for

medication management” on October 5, 2015 [id. (citing AR at 359, 361-62)]; and that at <

January 25, 2018, visit, he “made no complaint at all of musculoskeletal abnormalities or pair

23 related to his right heel or his right knee” (id. (citing id. at 502).] The ALJ also noted that “the

24 record contains little, if any, treatment records after 2016 in relation to [plaintiff's] right knee, right

ankle, or chronic pain syndrome.” [Id. at 23.] Defendant submits that even if there was error, the

26 | error is harmless because plaintiff testified at the hearing that he “had no problems lifting from a

27 || seated position, and the jobs the ALJ identified that Plaintiff could still do were performed while

28 || seated.” [JS at 11 (citing AR at 46).]

11

1 Although a close call -- the Court does not find several of the ALJ’s reasons to discount Dr.

Wang's opinions to be persuasive’ -- the Court finds that substantial evidence supports the ALJ’s

determination that Dr. Wang’s own findings did not support the restrictive lifting limitation found

by Dr. Wang (and accepted on review by Dr. Christian). That is because Dr. Wang’s report -- in

addition to the treatment record generally -- simply does not reflect any clinical findings or

objective signs that would account for a restriction limiting plaintiff to lifting no more than 10

7 || pounds occasionally and frequently.

8 Accordingly, the ALJ provided a specific and legitimate reason to discount Dr. □□□□□□ and

Dr. Christian’s lifting limitation and remand is not warranted on this issue.

10

B. SUBJECTIVE SYMPTOM TESTIMONY

12 1, Legal Standard

13 Prior to the ALJ’s assessment in this case, Social Security Ruling (“SSR”)® 16-3p went □□□□

14| effect. See SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).° SSR 16-3p supersedes SSR 96-7p.

15

16 ’ For instance, the ALJ’s statements that plaintiff “reported that his knee and ankle pain are

47 treatable with cortisone injections, and that the injections relieve his pain for weeks” and that

plaintiff did not complain of pain at that same medication management follow-up visit [AR at 22

(emphasis added)], do not accurately reflect the record. At best, this October 5, 2015, treatment

record reflects that plaintiffs knee and ankle pain has been treated by cortisone injections, bu'

19] also clearly reflects that plaintiff did “c/o [complain of] . . . continued pain in the knee and ankle’

at that office visit, and also reported that his cortisone injections “last a few weeks and then he

20! has daily pain.” [ld. at 358 (emphasis added).]

a ® “SSRs do not have the force of law. However, because they represent the Commissioner's

interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs

if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202

23] n.1 (9th Cir. 2001) (citations omitted).

24 SSR 16-3p, originally “effective” on March 28, 2016, was republished on October 25, 2017

25 with the revision indicating that SSR 16-3p was “applicable [rather than effective] on March 28.

2016.” See 82 Fed. Reg. 49462, 49468 & n.27, 2017 WL 4790249, 4790249 (Oct. 25, 2017):

SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). Other than also updating “citations to reflec’

[other] revised regulations that became effective on March 27, 2017,” the Administration stated

that SSR 16-3p “is otherwise unchanged, and provides guidance about how we evaluate

statements regarding the intensity, persistence, and limiting effects of symptoms in disability

28 (continued...)

1?

1|| the previous policy governing the evaluation of subjective symptoms. SSR 16-3p, 2017 W

2| 5180304, at*2. SSR 16-3p indicates that “we are eliminating the use of the term ‘credibility’ fror

our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing sc

4| we clarify that subjective symptom evaluation is not an examination of an individual’s character[

[i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id.

6| Trevizo, 871 F.3d at 678 n.5. Thus, the adjudicator “will not assess an individual’s overa

7| character or truthfulness in the manner typically used during an adversarial court litigation. The

8 || focus of the evaluation of an individual's symptoms should not be to determine whether he or she

9} is a truthful person.” SSR 16-3p, 2017 WL 5180304, at *11. The ALJ is instructed to “conside

10 all of the evidence in an individual’s record,” “to determine how symptoms limit ability to perforn

work-related activities.” Id. at*2. The Ninth Circuit also noted that SSR 16-3p “makes clear wha

12|| our precedent already required: that assessments of an individual’s testimony by an ALJ are

13|| designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the

14| individual has a medically determinable impairment(s) that could reasonably be expected t

produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the claimant’s characte

and apparent truthfulness.” Trevizo, 871 F.3d at 678 n.5 (citing SSR 16-3p).

17 To determine the extent to which a claimant’s symptom testimony must be credited, the

Ninth Circuit has “established a two-step analysis.” Trevizo, 871 F.3d at 678 (citing Garrison, 75%

19] F.3d at 1014-15). “First, the ALJ must determine whether the claimant has presented objective

20|| medical evidence of an underlying impairment which could reasonably be expected to □□□□□□□□

the pain or other symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014-15): Treichler v

Comm’'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue

23 504 F.3d 1028, 1036 (9th Cir. 2007)) (internal quotation marks omitted). If the claimant meets the

first test, and the ALJ does not make a “finding of malingering based on affirmative evidence

25 ————_________

26 *(...continued)

claims ....” Id. The Ninth Circuit recently noted that SSR 16-3p is consistent with its prio

precedent. Trevizo, 871 F.3d at 678 n.5 (SSR 16-3p “makes clear what [Ninth Circuit] preceden

already required”). Thus, while SSR 16-3p eliminated the use of the term “credibility,” case lav

28] using that term is still instructive in the Court’s analysis.

13

1|| thereof’ (Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ must “evaluate

2|| the intensity and persistence of [the] individual’s symptoms . . . and determine the extent to whic!

3] [those] symptoms limit [her] . . . ability to perform work-related activities ... .” SSR 16-3p, 201;

WL 5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ mus

consider a claimant's daily activities; the location, duration, frequency, and intensity of the pail

orother symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side

effects of medication taken to alleviate pain or other symptoms; treatment, other than medicatior

8 || received for relief of pain or other symptoms; any other measures used to relieve pain or othe

symptoms; and other factors concerning a claimant’s functional limitations and restrictions duc

topain or other symptoms. 20 C.F.R. § 416.929; see also Smolen v. Chater, 80 F.3d 1273, 1283

&n.8; SSR 16-3p, 2017 WL 5180304, at *4 (‘[The Commissioner] examine[s] the entire cass

12 | record, including the objective medical evidence; an individual’s statements . . . ; statements anc

13] other information provided by medical sources and other persons; and any other relevan

14| evidence in the individual’s case record.”).

15 Where, as here, plaintiff has presented evidence of an underlying impairment, and the AL.

did not make a finding of malingering, the ALJ’s reasons for rejecting a claimant’s subjective

17 || symptom statements must be specific, clear and convincing. Brown-Hunter v. Colvin, 806 F.3c

18} 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Moline

19] v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); Trevizo, 871 F.3d at 678 (citing Garrison, 75s

20 F.3d at 1014-15); Treichler, 775 F.3d at 1102. “General findings [regarding a claimant's credibility

are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence

22 | undermines the claimant's complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at □□□□

(quotation marks omitted). The ALJ’s findings “must be sufficiently specific to allow a reviewinc

24 || court to conclude the adjudicator rejected the claimant's testimony on permissible grounds anc

did not arbitrarily discredit a claimant's testimony regarding pain.” Brown-Hunter, 806 F.3d at 492

26 | (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). A “reviewing cour

should not be forced to speculate as to the grounds for an adjudicator’s rejection of a □□□□□□□□□□

28 || allegations of disabling pain.” Bunnell, 947 F.2d at 346. As such, an “implicit” finding that 2

14

1| plaintiff's testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir

2|| 1990) (per curiam).

3 In determining whether an individual's symptoms will reduce his corresponding capacities

4] to perform work-related activities or abilities to function independently, appropriately, anc

effectively in an age-appropriate manner, the ALJ “will consider the consistency of the individual's

6] own statements.” SSR 16-3p, 2017 WL 5180304, at *8-9: see also Ghanim v. Colvin, 763 F.3c

1154, 1163-64 (9th Cir. 2014). In doing so, the ALJ “will compare statements an individual makes

in connection with the individual's claim for disability benefits with any existing statements the

9|| individual made under other circumstances.” SSR 16-3p, 2017 WL 5180304, at *8-9. “If ar

individual's various statements about the intensity, persistence, and limiting effects of symptoms

11] are consistent with one another and consistent with the objective medical evidence and othe:

evidence in the record,” the ALJ will determine that an individual’s symptoms are more likely tc

reduce her capacities for work-related activities or reduce the abilities to function independently

14|| appropriately, and effectively in an age-appropriate manner. Id. at *9. The ALJ will recognize

15 | however, that inconsistencies in an individual’s statements made at varying times “does no

necessarily mean they are inaccurate,” as symptoms may vary in their intensity, persistence, anc

17] functional effects, or may worsen or improve with time. Id.

18

19 2. The ALJ’s Determination

20 The ALJ summarized plaintiff's testimony as follows:

21 [He] alleged that the following conditions limited his ability to work resulting in him

stopping work on June 4, 2013: crushed heel, broken knee, post traumatic stress

22 disorder, and bipolar disorder.

23 [AR at 22 (citations omitted).]

24 The ALJ then discounted plaintiff's subjective symptom testimony as follows:

25 In contrast to [plaintiff's] allegations, | find that the objective medical evidence and

other evidence of record shows [his] symptoms do not reduce [his] capacity to

26 perform work-related activities to the extent that [he] alleges. In making this finding,

| consider all of the relevant evidence in the case record. [Plaintiff's] statements

27 about the intensity, persistence, and limiting effects of alleged symptoms are

generally inconsistent with the objective medical evidence of record and other

28 evidence.

15

[Id. (citation omitted).]

2 Plaintiff contends the ALJ offered “no sufficient articulated rationale to reject” plaintiff:

subjective symptom testimony. [JS at 14.] Defendant disagrees. [Id. at 21.]

4 The Court's review of the ALJ’s decision reflects that in discounting plaintiff's testimony

the ALJ generally determined the following: (1) plaintiff's subjective complaints were no

supported by the objective evidence; (2) plaintiff's medication and treatment relieved his pair

symptoms; (3) plaintiff failed to complain of musculoskeletal abnormalities or pain related to his

8 || right heel or right knee at treatment visits; (4) plaintiff's wife’s testimony regarding plaintiff's dail

9} activities confirmed “mostly normal functioning”; (5) after November 2016 the record contains

“little, if any, treatment records . . . in relation to [plaintiff's] right knee, right ankle, or chronic pair

syndrome”; and (6) plaintiff's mental health symptoms were stable with his medication treatmen

12|| and symptoms appeared when he did not stay on his medication. [AR at 22-24.] The AL.

13 || concluded that “the record as a whole suggests a greater amount of work related abilities contran

14] to [plaintiff's] allegations.” [Id. at 24.]

15

16 3. Analysis

17 a. Objective Evidence

18 As discussed above, Dr. Wang’s examination and opinion -- other than his discreditec

lifting limitation -- reflect that plaintiff is capable of a range of light work. The ALJ summarizec

various imaging evidence, physical examination evidence, treatments, and treatment results, anc

21] generally noted that the evidence does not support plaintiff's claim of disabling impairments. [Id

22|| at 22-251]

23 While a lack of objective medical evidence supporting a plaintiff's subjective complaints

24 cannot provide the only basis to reject a claimant's subjective symptom testimony (Trevizo, 871

25| F.3d at 679 (quoting Robbins, 466 F.3d at 883)), it is one factor that an ALJ can consider in

26 evaluating symptom testimony. See Burch v. Barnhart, 400 F.3d at 681 (“Although lack of medical

27 | evidence cannot form the sole basis for discounting pain testimony, it is a factor the ALJ must

28 || consider in his credibility analysis.”); SSR 16-3p, 2017 WL 5180304, at *5 (“objective medica

16

1|| evidence is a useful indicator to help make reasonable conclusions about the intensity anc

2|| persistence of symptoms, including the effects those symptoms may have on the ability to perforn

3 work-related activities for an adult’). “The intensity, persistence, and limiting effects of man

4 symptoms can be clinically observed and recorded in the medical evidence. .. . These finding:

5 || may be consistent with an individual’s statements about symptoms and their functional effects

6 | However, when the results of tests are not consistent with other evidence in the record, they □□□

be less supportive of an individual’s statements about pain or other symptoms than test result:

and statements that are consistent with other evidence in the record.” SSR 16-3p, 2017 WI

5180304, at *5. As the Ninth Circuit recently held, “an ALJ’s ‘vague allegation’ that a claimant’:

testimony is ‘not consistent with the objective medical evidence,’ without any ‘specific finding ir

support’ of that conclusion, is insufficient.” Treichler, 775 F.3d at 1103 (citation omitted); see

12| Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (ALJ’s statement that plaintiff's testimon\

regarding the intensity, persistence, and limiting effects of his symptoms was not credible to the

extent his testimony is “inconsistent with the above residual functional capacity assessment” is

15| an insufficient basis for discrediting testimony).

16 The Court determines that, in light of Dr. Wang's findings, this was a specific, clear anc

convincing reason for discounting plaintiff's subjective symptom testimony. However, because

this cannot be the sole legally sufficient reason for discounting subjective symptom testimony, the

19 ALJ’s determination to discount plaintiff's subjective symptom testimony for this reason rises

20 | falls with the ALJ’s other grounds for discounting plaintiff's testimony.

21

22 b. Improvement with Treatment and Medication

23 The ALJ discounted plaintiff's allegations based on the improvement of his symptoms □□□□

treatment and medications, including cortisone injections, Lyrica, and anxiety/depressior

medications. [AR at 23, 24 (citing id. at 358, 359-62).]

26 Impairments that can be effectively controlled with medication are not disabling for purpose

of determining eligibility for disability benefits. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d

28 || 1001, 1006 (9th Cir. 2006) (citations omitted); see also Petersen v. Berryhill, 737 F. App’x 329,

17

1|| 332 (9th Cir. June 19, 2018) (citing Warre and finding ALJ properly relied on evidence that the

claimant's pain and symptoms were controlled with medication and treatment).

3 Here, notwithstanding the issues with the ALJ’s hyperbole regarding the relief plainti

purportedly received from his cortisone injections, his other findings regarding the relief plaintit

received from Lyrica and from his anxiety/depression medications, were supported by the

treatment record. .

7 Accordingly, the ALJ’s finding that plaintiff's pain medication (Lyrica) provided relief fron

his chronic pain syndrome, and that when he was compliant with his anxiety/depressior

medications his mental health symptoms are controlled, was a clear and convincing reason t

discount plaintiff's subjective symptom testimony.

11

12 Cc. Lack of Treatment

13 The ALJ found that there were few if any treatment records after November 2016 relatec

14| to plaintiffs allegedly disabling right knee, ankle, or chronic pain syndrome. [AR at 23.

15 | Defendant also points out that although plaintiff complained of “significant pain and limitations due

16 | to his right lower extremity impairments at the February 2018 hearing (AR 44-46) .. . he did no

seek treatment for these allegedly disabling impairments for more than a year,” which supports

18] the ALJ's decision to discount his statements. [JS at 23 (citing Chaudhry v. Astrue, 688 F.3d 661

672 (9th Cir. 2012)).] Plaintiff does not point the Court to any evidence to refute this finding by

20] the ALJ.

21 The ALJ properly gave less weight to plaintiff's subjective statements based on □□□□□□□□□□□

22| failure to seek a level or frequency of medical treatment that was consistent with the allegec

severity of his subjective symptoms. See Molina, 674 F.3d at 1113 (ALJ may properly conside

“unexplained or inadequately explained failure to seek treatment or to follow a prescribed course

25 || of treatment” when evaluating claimant's subjective complaints) (citations and internal quotatior

marks omitted); SSR 16-3p, 2016 WL 1119029, at *7-8 (ALJ may give less weight to subjective

statements where “the frequency or extent of the treatment sought by an individual is no’

28 | comparable with the degree of the individual’s subjective complaints, or if the individual fails tc

18

1|| follow prescribed treatment that might improve symptoms’). Indeed, as the ALJ noted, the recor

does not reflect that plaintiff sought treatment for his disabling knee/ankle pain after Novembe

2016 (and plaintiff has identified no such evidence) -- a treatment gap of more than a year as o

the time of the hearing. See, e.g., Chaudhry, 688 F.3d at 672 (‘[I]f a claimant complains abou

disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, ar

ALJ may use such failure as a basis for finding the complaint unjustified”) (citation omitted).

7 Accordingly, this was a clear and convincing reason supported by substantial evidence

discount plaintiff's subjective symptom testimony.

9

10 4. Conclusion

11 In addition to the lack of support in the objective medical evidence with regard to plaintiff's

allegedly disabling symptoms, the Court determines that several of the additional reasons giver

13 by the ALJ discussed above were clear and convincing and supported by substantial evidence

Even if any of the other reasons given by the ALJ that were not discussed herein was not legally

sufficient -- and the Court does not make this determination herein -- because there was at leas

one other legally sufficient reason in addition to the lack of support in the objective medica

17| evidence, this is sufficient to determine that the ALJ did not err when he discounted plaintiff's

18] subjective symptom testimony.

19] /

/

f

/

24| /

/

26| /

27| /

/

19

1 Vi.

2 CONCLUSION

3 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is denied; and (2) the

4|| decision of the Commissioner is affirmed.

5 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the

Judgment herein on all parties or their counsel.

This Memorandum Opinion and Order is not intended for publication, nor is i

8 || intended to be included in or submitted to any online service such as Westlaw or Lexis.

9

10| DATED: January , 2020 Cre Bb 6

AUL L. ABRAMS

11 UNITED STATES MAGISTRATE JUDGE

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