Crowley v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Wayne Crowley, No. CV-18-0561-TUC-BGM 10 Plaintiff, 11 v. ORDER 12 Commissioner of Social Security, 13 Defendant. 14 Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 18). 15 Defendant filed his Answering Brief (“Response”) (Doc. 20), and Plaintiff filed his Reply 16 (Doc. 22). Plaintiff brings this cause of action for review of the final decision of the 17 Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Compl. 18 (Doc. 1). The United States Magistrate Judge has received the written consent of both 19 parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal 20 Rules of Civil Procedure. 21 22 I. BACKGROUND 23 A. Procedural History 24 On June 10, 2015, Plaintiff protectively filed a Title II application for Social 25 Security Disability Insurance Benefits (“DIB”) and on June 24, 2015 filed a Title XVI 26 application for Supplemental Security Income (“SSI”) alleging disability as of August 2, 27 2014 due to high blood pressure, back problem, shoulder problem, high cholesterol, and 28 stomach problems. See Administrative Record (“AR”) at 15, 17, 24, 54–60, 63–66, 74, 1 83–87, 183, 186, 203, 224. The Social Security Administration (“SSA”) denied this 2 application on August 24, 2015. Id. at 15, 54–62, 83–89, 91–94. On September 17, 2015, 3 Plaintiff filed a request for reconsideration, and on January 21, 2016, SSA denied 4 Plaintiff’s application upon reconsideration. Id. at 15, 63–82, 95, 100–03. On February 5 25, 2016, Plaintiff filed his request for hearing. Id. at 15, 104–05. On August 28, 2017, a 6 hearing was held before Administrative Law Judge (“ALJ”) Charles Davis. Id. at 15, 30– 7 53. On January 10, 2018, the ALJ issued an unfavorable decision. AR at 10–24. On 8 March 2, 2018, Plaintiff requested review of the ALJ’s decision by the Appeals Council, 9 and on September 19, 2018, review was denied. Id. at 1–5, 157. On November 21, 2018, 10 Plaintiff filed this cause of action. Compl. (Doc. 1). 11 B. Factual History 12 Plaintiff was fifty-three (53) years old at the time of the administrative hearing and 13 fifty (50) at the time of the alleged onset of his disability. AR at 15, 23–24, 32, 54–56, 60, 14 63–65, 74, 83, 85, 87, 158, 167, 183, 203, 224, 258. Plaintiff obtained a high school 15 diploma. Id. at 54–55, 63–64. Prior to his alleged disability, Plaintiff worked at a truck 16 stop and video store, and as a taxi driver, customer service associate, and repossessor. Id. 17 at 33–34, 169–77, 188, 192–96, 213–17, 254, 262. 18 1. Plaintiff’s Testimony 19 a. Administrative Hearing 20 At the administrative hearing, Plaintiff testified that he last worked in approximately 21 January of 2014. AR at 32–33. Plaintiff further testified that he worked at Lugs Truck 22 Stop as a tire person when he stopped working, which was immediately preceded by 23 driving a taxi. Id. at 33, 48. Plaintiff was uncertain regarding the timing of his previous 24 work. Id. at 33. Plaintiff testified that he had performed seasonal work for Hastings 25 entertainment, a video store, fulfilling mail orders. Id. Plaintiff described working as a 26 customer service associate for Chamberlain Garage Doors in 2011–2012. Id. at 34. 27 Plaintiff also confirmed that he had performed some repossession work, estimating that it 28 had occurred in 2013–2014. AR at 34. 1 Plaintiff denied that he had injured himself doing repossession work in May of 2015. 2 Id. at 35. Plaintiff testified that his injury was old, estimating that it occurred in 2004 or 3 2005 and happened on a rollercoaster. Id. Plaintiff further described his back and neck 4 injuries were “long-term injuries.” Id. Plaintiff testified that his inability to stand 5 prevented him from working. AR at 35. Plaintiff further testified that his capabilities were 6 limited due to his neck and back problems, including arthritis in his back and an old injury 7 to his neck, both of which have deteriorated over time. Id. at 35–36. Plaintiff reported that 8 he was seeing Dr. Chase at CNS and receiving injections in an effort to relieve his neck 9 pain. Id. at 36, 39. Plaintiff testified that Tucson Orthopedics referred him to CNS because 10 he was experiencing numbness in his left hand stemming from his neck. Id. at 36, 44. 11 Plaintiff indicated that he has pain through his shoulder to his elbow which is exacerbated 12 by sleeping the wrong way or lifting between ten (10) or fifteen (15) pounds the wrong 13 way. Id. at 44. Plaintiff estimated that the pain lasts for two (2) to three (3) months when 14 he has such an episode. AR at 45. Plaintiff further testified that he has heart palpitations 15 daily that cause him to stop what he is doing. Id. Plaintiff explained that the heart 16 palpitations are part of his anxiety and panic attacks. Id. at 45–46. Plaintiff testified that 17 if has a panic attack he would need to take a break for the rest of the day. Id. Plaintiff 18 described his back as “in pretty bad shape” and reported that he had severe arthritis. Id. at 19 39. Plaintiff also testified that he has been diagnosed with chronic laryngitis which causes 20 him to completely lose his voice if he talks too long. AR at 43. Plaintiff testified that he 21 sees Dr. Gray approximately six (6) times per year, and he has been Plaintiff’s treating 22 physician since 2008. Id. at 40, 47. 23 Plaintiff noted that his medications included Zoloft and Ativan, as well as pain 24 medication whose dosage had recently been doubled. Id. at 40. Plaintiff reported that his 25 medications sometimes cause significant side effects. Id. Plaintiff testified that the Ativan 26 did not interact well with medications for his heart and high blood pressure, and it made 27 him drowsy so that he couldn’t drive. Id. Plaintiff also indicated that he was having anxiety 28 attacks in traffic, which did not work with the cab company. AR at 40. Plaintiff further 1 testified that Dr. Gray restricted his activities in 2013 or 2014. Id. at 41. Plaintiff clarified 2 that Dr. Gray did not tell him not to drive but suggested that it would be a good idea to look 3 for a job other than driving a taxicab based on his pain and anxiety medications. Id. 4 Plaintiff confirmed that he would drive if he had his own vehicle; however, employers 5 require testing and they are not interested in his services once they learn what medications 6 he is taking. Id. 7 Plaintiff further testified that he is living in a modular home with his wife Rita. Id. 8 at 36–37. Plaintiff also testified that Rita broke her back at work and had been on disability 9 for fifteen (15) years. AR at 37. Plaintiff reported that Rita needs help around the house 10 and up until then, he had been responsible for that care. Id. Plaintiff testified that Rita is 11 able to bathe and dress herself, as well as handle the finances. Id. at 37–38. Plaintiff further 12 testified that they shared the cooking, dish washing, and laundry responsibilities. Id. at 37– 13 38. Plaintiff also testified that Rita does most of the grocery shopping but does not drive— 14 they rely on a bus that picks them up. Id. at 38. Plaintiff reported that because Rita has so 15 much trouble bending over, they try to limit their meals to things that can be cooked and 16 then the container thrown away. AR at 38. Plaintiff reported his hobbies as golf and 17 watching sports on television. Id. Plaintiff clarified that he cannot play golf and estimated 18 that he last played in 2011 or 2013. Id. at 38–39. Plaintiff testified that does try to do 19 stretching type exercises. Id. at 39. Plaintiff also testified that he has a couple of medium 20 sized dogs that he cares for. Id. at 40–41. 21 Plaintiff testified that he can walk for approximately fifteen (15) to twenty (20) 22 minutes before he needs to sit down. AR at 41–42. Plaintiff further testified that he cannot 23 sit and sleeps in the recliner. Id. at 42. Plaintiff also testified that he has to get a wheeled 24 makeshift cart to drag a fifty (50) pound bag of dog food from his car approximately 100 25 feet up the stairs to the door. Id. 26 b. Administrative Forms 27 i. Work History Report 28 On June 25, 2015, Plaintiff also completed a Work History Report. AR at 192–211. 1 Plaintiff listed his prior work as a bulk products operation worker, customer service 2 representative, taxi driver, and warehouse worker. Id. at 192. Plaintiff described his job 3 as bulk products operation worker as fourteen (14) hours per day, five (5) days per week, 4 without further information. Id. at 193. Plaintiff described his first customer service 5 position as lasting nine (9) hours per day, six (6) days per week, without further 6 information. Id. at 194. Plaintiff’s second customer service position description was 7 identical to the first. Id. at 195. Plaintiff described the position of taxi driver as lasting 8 fourteen (14) hours per day, six (6) days per week, without further information. AR at 196. 9 Finally, Plaintiff described his position of warehouse worker as lasting nine (9) hours per 10 day, six (6) days per week, without further information. Id. at 197. 11 On November 16, 2015, Plaintiff completed a second Work History Report. Id. at 12 213–20. Plaintiff listed his past work as including material handler—warehouse services, 13 product operator, customer service, and taxi driver. Id. at 213. Plaintiff described his first 14 position as driving a forklift and loading and unloading product onto a semi-trailer. Id. at 15 214. Plaintiff reported that this position involved the use of machines, tools, or equipment; 16 technical knowledge or skills; and involved writing, completing reports, or similar duties. 17 AR at 214. Plaintiff further reported walking and standing for between two (2) and four 18 (4) hours per day; sitting between six (6) and twelve (12) hours; climbing and crawling for 19 an hour per day; kneeling, crouching, and reaching for eight (8) hours per day; handling, 20 grabbing, or grasping big objects for between two (2) and six (6) hours per day. Id. 21 Plaintiff reported that the heaviest weight that he lifted was 100 pounds or more, and that 22 he frequently lifted fifty (50) pounds or more. Id. at 214. Plaintiff indicated that he did 23 not supervise other people, nor did he hire and fire employees, but confirmed that he was 24 a lead worker. Id. 25 Plaintiff described his second position as involving walking around ten (10) acres 26 of the job site loading and moving product throughout the plant. Id. at 215. Plaintiff 27 reported using machines, tools, or equipment; technical knowledge or skills; and performed 28 writing, completing reports, or other similar duties. AR at 215. Plaintiff further reported 1 walking; standing; climbing; kneeling; crouching; stooping; reaching; and handling, 2 grabbing, or grasping big objects for twelve (12) hours per day. Id. Plaintiff indicated 3 crawling, writing, typing, or handling small objects for approximately four (4) hours per 4 day. Id. Plaintiff noted that he carried equipment for his entire shift for safety reasons. Id. 5 Plaintiff stated that the heaviest weight he lifted was 100 pounds or more and that he 6 frequently lifted fifty (50) pounds or more. Id. Plaintiff also indicated that he did not 7 supervise other people; hire or fire employees; or act as a lead worker. AR at 215. 8 Plaintiff described his third position as working in customer service at desk 9 troubleshooting customer issues via telephone. Id. at 216. Plaintiff noted that some field 10 work was involved. Id. Plaintiff indicated that he used machines, tools, or equipment; 11 technical knowledge or skills; and wrote, completed reports, or performed similar duties. 12 Id. Plaintiff reported that he stood, sat, reached, and wrote, typed, or handled small objects 13 for between eight (8) and ten (10) hours per day; walked, kneeled, crouched, and handed, 14 grab or grasped big objects for approximately three (3) hours per day; and did not climb, 15 crawl, or stoop. Id. Plaintiff indicated that the heaviest weight he lifted was twenty (20) 16 pounds and frequently lifted ten (10) pounds. AR at 216. Plaintiff denied supervising other 17 people; hiring or firing employees; or acting as a lead worker. Id. 18 Plaintiff described his fourth position as driving customers to destinations per their 19 request. Id. at 217. Plaintiff indicated that he used machines, tools, or equipment and 20 technical knowledge or skills, as well as wrote, completed reports, or performed other 21 similar duties. Id. Plaintiff reported that he sat for between twelve (12) and sixteen (16) 22 hours per day; stood, crouched, reached, handled, grabbed, or grasped big objects, and 23 wrote, typed, or handled small objects for two (2) hours per day; and did not walk, kneel, 24 climb, crawl, or stoop. Id. Plaintiff stated that he would carry groceries between ten (10) 25 and twenty (20) feet for customers and that the job involved heavy carrying at times. AR 26 at 217. Plaintiff indicated that the heaviest weight he lifted was fifty (50) pounds and he 27 would frequently lift ten (10) pounds. Id. Plaintiff denied supervising others, hiring or 28 firing employees, or being a lead worker. Id. 1 ii. Exertional Daily Activities Questionnaire 2 On December 16, 2015, Plaintiff completed an Exertional Daily Activities 3 Questionnaire. AR at 221–23. Plaintiff reported that he lived in a house with his wife. Id. 4 at 221. Plaintiff recounted his average day as including “do[ing] light work on property 5 once a week or so[] [and] [h]elp[ing] [his] wife with house upkeep.” Id. Plaintiff described 6 his symptoms as follows: 7 If I walk to far, 1/4 mile, I have chest pains, shortness of breath. When I try 8 to do any yardwork—cut grass/weedeat, I get severe arm pain with sharp pain in lower back that has a radiating pain shooting down my right leg. 9 When I eat anything, I have issues trying to swallow. Permanent laryngitis, heartburn 3–4 times a day, stomach problems[.] 10 Id. at 221. Plaintiff reported that his garbage pick-up is approximately a quarter of a mile 11 away and takes him ten (10) to twenty (20) minutes to walk. Id. Plaintiff stated that he 12 cannot lift and carry twenty-five (25) to fifty (50) pounds, “[s]o taking out trash is torture 13 on chest, arm, back, and right leg.” AR at 221. Plaintiff indicated that if he does not have 14 to walk far, he can carry a case of water from his driveway to the front door which is 15 approximately thirty (30) yards. Id. 16 Plaintiff reported that he grocery shops approximately twice per week with his wife. 17 Id. at 222. Plaintiff further reported that he cleans his own home, cooks, does laundry, yard 18 work, or other household chores. Id. Plaintiff indicated that he uses the weedeater around 19 the house, gate, and garage, which takes approximately two (2) weeks. AR at 222. Plaintiff 20 noted that he can only hold the weedeater for between ten (10) and fifteen (15) minutes 21 without severe pain in his arm and back. Id. Plaintiff also reported that he helps with 22 dishes and cooking quick meals; however, because both he and his wife suffer from chronic 23 pain the vacuuming occurs approximately once per month. Id. Plaintiff confirmed that he 24 shares the housework with his wife—one will start and the other will finish. Id. Plaintiff 25 reiterated that pain in his chest, arm, and back, as well as leg pain and shortness of breath, 26 limit is ability to do house and yardwork. Id. Plaintiff denied doing any activities outside 27 of the home. AR at 222. Plaintiff reported that prior to his health issues, he would do most 28 1 of the housework, laundry, and maintenance on four (4) acres of property. Id. 2 Plaintiff further reported sleeping approximately five (5) hours per night. Id. 3 Plaintiff confirmed that he requires rest or naps during the day and estimated that these 4 periods last approximately one (1) to two (2) hours. Id. Plaintiff also reported that he uses 5 a cane and glasses. Id. at 223. Plaintiff indicated that the decline in activities has changed 6 his life for the worse. AR at 223. 7 2. Vocational Expert Debra McLeary’s Testimony 8 Ms. Debra McLeary testified as a vocational expert at the administrative hearing. 9 AR at 15, 47–53. The ALJ asked Ms. McLeary to describe Plaintiff’s past work. Id. at 47. 10 Ms. McLeary classified Plaintiff’s past relevant work as a material handler, Dictionary of 11 Occupational Titles (“DOT”) number 929.687-030, heavy exertional level, and a Specific 12 vocational Preparation (“SVP”) of 3. Id. at 48. Ms. McLeary described Plaintiff’s work 13 in customer service at the door company, DOT number 249.362-026, with a SVP of 4, and 14 a sedentary exertional level. Id. Ms. McLeary also described Plaintiff’s position as a taxi 15 driver, DOT number 913.463-018, with an SVP of 3, and a medium exertional level. Id. 16 at 48–49. Ms. McLeary could not find a garage door maker, so classified Plaintiff’s 17 position as construction worker I, DOT number 869.664-014, with an SVP of 4, and a 18 heavy exertional level. AR at 52–53. Finally, Ms. McCleary described Plaintiff’s past 19 work as a cook, DOT number 313.361-014, with an SVP of 7, and a medium exertional 20 level. Id. at 53. 21 3. Plaintiff’s Medical Records 22 a. Treatment records1 23 On August 13, 2014,2 Plaintiff was seen by Sean P. Dorado, P.A.-C for a follow- 24 25 1 The Court has reviewed the entirety of Plaintiff’s medical records; however, it has 26 generally limited its summary to those records after the alleged onset date of August 2, 2014. 27 2 The Court relies on the date PA Dorado signed the records; however, in some instances this date appears to be months after the actual encounter. Unfortunately, there are several possible 28 dates in each record, and it is impossible to surmise which refers to the encounter date. Without more, and for consistency, the signature date is used as the date of encounter. 1 up. AR at 337–40. Plaintiff “report[ed] that besides the sensation of food getting stuck in 2 his throat, patient reports that he is doing well.” Id. at 337. PA Dorado’s assessment of 3 Plaintiff included Helicobacter pylori gastrointestinal infection, esophageal dysphagia, 4 elbow pain or problem/disorder, and shoulder pain. Id. at 338. PA Dorado also noted 5 regarding Plaintiff’s esophageal dysphagia that the report regarding his barium swallow 6 study was “relatively unremarkable.” Id. at 339. On September 9, 2014, Plaintiff had 7 routine laboratory work performed. Id. at 329, 430. Plaintiff’s diagnoses included 8 esophageal dysphagia, anxiety, hyperlipidemia, and hyperglycemia. AR at 329, 430. 9 On April 21, 2015, Plaintiff had routine blood work performed. Id. at 421–23, 517– 10 19. On April 22, 2015, Plaintiff had a follow-up with PA Dorado for his pain medication 11 refill. Id. at 341–43, 452–54. PA Dorado’s review of systems and physical examination 12 were unremarkable. Id. PA Dorado’s assessment included nicotine dependence, 13 hypertension, and arthralgias. Id. at 343, 454. On April 24, 2015, Plaintiff had routine 14 laboratory work performed. AR at 330, 431. Plaintiff’s diagnoses included 15 hyperlipidemia, hyperglycemia, and nicotine dependence. Id. 16 On May 8, 2015, Plaintiff was seen by PA Dorado for a follow-up on his laboratory 17 results. Id. at 344–46, 455–57. PA Dorado’s review of Plaintiff’s systems was generally 18 unremarkable. Id. at 344, 455. PA Dorado’s physical examination of Plaintiff was 19 similarly unremarkable. Id. at 345, 456. PA Dorado assessed hyperlipidemia, 20 hyperglycemia, and neoplasm of unspecified nature of bone, soft tissue, and skin—this last 21 was due to an ant bite Plaintiff sustained on his left temple. AR at 346, 457. On May 15, 22 2015, Plaintiff had x-rays taken for shoulder pain and lumbosacral radiculitis. Id. at 331– 23 33, 357, 477, 623. Kevin Kearney, M.D./M.B.A. read Plaintiff’s films and found “[n]o 24 compression fracture in the lumbar spine” and “[m]ild intervertebral disc space narrowing 25 at the L4-L5 and L5-S1 levels.” Id. at 357, 477, 623. Dr. Kearney’s impression noted 26 “[m]ild degenerative change in the lower lumbar spine.” Id. PA Dorado also diagnosed 27 Plaintiff with a dental disorder. Id. at 331. On May 18, 2015, Plaintiff saw PA Dorado 28 complaining of left shoulder and low back pain that he reported had lasted for 1 approximately one (1) week. AR at 347–50, 458–61. Plaintiff reported that he was 2 repossessing a car, his hand slipped while he was hooking it up, and he fell down straining 3 his back. Id. at 347,458. Plaintiff further reported a severely abscessed tooth. Id. PA 4 Dorado’s review of Plaintiff’s systems and physical examination were generally 5 unremarkable. Id. at 348–50, 458–60. PA Dorado observed Plaintiff had marked 6 discomfort beyond approximately 20 degrees of forward flexion and limitations on lateral 7 bending and rotation. Id. at 349, 460. PA Dorado’s assessment included lumbosacral 8 radiculitis not otherwise specified, shoulder pain, and dental disorder. AR at 349, 460. On 9 May 20, 2015, Plaintiff signed a pain management agreement regarding his lumbosacral 10 radiculitis diagnosis. Id. at 360–61. On May 21, 2015, Plaintiff followed up with PA 11 Dorado regarding his back pain. Id. at 351–53, 462–64. Plaintiff reported that Norco 12 worked very well, but he became sleepy when he took a muscle relaxer. Id. at 351, 462. 13 PA Dorado’s physical examination of Plaintiff was generally unremarkable. Id. at 352– 14 53, 463–64. PA Dorado reported that Plaintiff “ha[d] approximately 40 degrees of forward 15 flexion, 5 degrees of backwards extension, [and] lateral bending and rotating c[ould] be 16 accomplished but elicit[ed] pain.” AR at 353, 464. PA Dorado assessed lumbosacral 17 radiculitis not otherwise specified, spasm of muscle, and hypertension. Id. PA Dorado 18 noted that Plaintiff’s “films demonstrate[d] mild degenerative changes of the lumbar 19 spine[,] [and] [Plaintiff] [wa]s to continue with conservative therapy, muscle relaxer and 20 Norco.” Id. at 353, 464. 21 On September 1, 2015, Plaintiff had routine bloodwork performed. Id. at 442. On 22 September 14, 2015, Plaintiff saw PA Dorado seeking “paperwork for a local bus ride to 23 be filled out.” Id. at 465. “When questioned about why he can not walk to the bus stop 24 patient reports that he has been having episodes of chest pain with exertion[,] [and] reports 25 that it has gotten him extremely anxious and nervous . . . [and] has had mood swings 26 secondary to his anxiety.” AR at 465. PA Dorado’s review of systems and physical 27 examination of Plaintiff were unremarkable. Id. at 465-67. PA Dorado’s assessment 28 included hyperlipidemia, hyperglycemia, nicotine dependence, chest pain, and anxiety. Id. 1 at 467. On October 21, 2015, Plaintiff had routine bloodwork performed. Id. at 424–29. 2 On November 5, 2015, Plaintiff saw James Myer, M.D. for a cardiovascular 3 evaluation. Id. at 402–05, 417–20, 513–16. Plaintiff complained of daily chest pain and 4 denied orthopnea, paroxysmal nocturnal dyspnea, dyspnea on exertion, or edema. AR at 5 402, 417, 513. Plaintiff also denied palpitations, syncope or near syncope, claudication, or 6 transient ischemic attack symptoms. Id. Dr. Meyer’s review of systems and physical 7 examination of Plaintiff were unremarkable. Id. at 402–03, 417–18, 513–14. Mr. Meyer’s 8 impression and plan included angina pectoris—unspecified and stable, essential 9 hypertension—stable and adequately controlled, and nicotine dependence. Id. at 403–04, 10 418–19, 514–15. A stress test was recommended. Id. On November 18, 2015, Michael 11 R. Gray, M.D. completed a Physical Assessment for Plaintiff. AR at 440–41, 444–45, 12 710–11. Mr. Gray’s diagnoses included seizure disorder, fatigue, increased blood pressure, 13 arthralgias, and low back pain. Id. at 440, 444, 710. Dr. Gray reported that Plaintiff’s 14 symptoms would frequently interfere with his ability to perform work-related tasks and 15 listed side effects including gastroesophageal reflux disease (“GERD”), headaches, and 16 fatigue.3 Id. Dr. Gray opined that Plaintiff would need to recline or lie down during a 17 hypothetical eight (8) hour workday and estimated that he could sit for one (1) hour and 18 stand or walk for one (1) hour in an eight (8) hour workday. Id. Dr. Gray further opined 19 that Plaintiff would need to take three (3) to four (4) unscheduled breaks of between 20 approximately fifteen (15) and twenty (20) minutes during an eight (8) hour workday. Id. 21 Dr. Gray indicated that Plaintiff could occasionally lift and carry ten (10) pounds or less 22 but never lift and carry twenty (20) pounds or more. AR at 440, 444, 710. Dr. Gray also 23 limited Plaintiff’s ability to grasp, turn, and twist objects; fine manipulation; and reaching 24 to ten (10%) for each arm. Id. Dr. Gray estimated that Plaintiff would be absent more than 25 four (4) times per month as a result of his impairments. Id. at 441, 445, 711. Dr. Gray 26 confirmed that Plaintiff’s impairments were consistent with the symptoms and functional 27 limitations that he described. Id. 28 3 The last symptom, “hyper—/—,” cannot be discerned. 1 On December 16, 2015, as part of Plaintiff’s Benson Area Transit (“BAT”) Dial-A- 2 Ride application, Dr. Gray certified that Plaintiff had functional or cognitive disabilities 3 that prevented him from using BAT’s fixed route service and he was permanently disabled. 4 Id. at 447. On December 21, 2015, Plaintiff saw Dr. Gray for a follow-up regarding his 5 pain medication and to have his disability paperwork filled out. AR at 469–472. Dr. Gray 6 noted that Plaintiff had a seizure in 2011, never followed up regarding a diagnostics, and 7 has not had any since. Id. at 469. Dr. Gray’s review of systems and physical examination 8 of Plaintiff were unremarkable. Id. at 469–71. Plaintiff also complained of fatigue and 9 malaise. Id. at 471. 10 On January 28, 2016, PA Dorado ordered x-rays of Plaintiff’s left shoulder and 11 elbow, as well as physical therapy. Id. at 450–51. On January 29, 2016, Plaintiff was seen 12 by PA Dorado complaining of left shoulder and arm pain, including elbow swelling. AR 13 at 473–76. Plaintiff stated “that his pain has started in his arm about 10 years ago” and 14 rated his pain 8–9/10. Id. at 473. PA Dorado noted that Plaintiff indicated that he had not 15 had any chest pain because he had not been exerting himself. Id. PA Dorado’s review of 16 systems and physical examination of Plaintiff were unremarkable. Id. at 473–75. PA 17 Dorado reported Plaintiff’s left upper extremity strength 4/5, deep tendon reflexes 2+, with 18 a full range of motion. Id. at 475. Plaintiff complained of tenderness to palpation of 19 supraspinatus and triceps region. AR at 475. 20 On February 4, 2016, Plaintiff had radiographs taken of his left shoulder. Id. at 521, 21 697. Alan Osumi, M.D. reviewed Plaintiff’s films and found no abnormalities. Id. On 22 February 29, 2016, Plaintiff followed up with PA Dorado regarding his left shoulder 23 radiographs. Id. at 551–54. Plaintiff reported improvement of shoulder pain with 24 medication. Id. at 551. PA Dorado’s review of systems and physical examination of 25 Plaintiff were generally unremarkable. AR at 551–53. PA Dorado noted a limited range 26 of motion in Plaintiff’s left shoulder and pain with abduction, as well as extension and 27 flexion of his left bicep. Id. at 553. PA Dorado assessed hypertension and left shoulder 28 and elbow pain. Id. 1 On March 15, 2016, Plaintiff had an initial consult with cardiologist Jose Gonzalez, 2 M.D. Id. at 654–57. Dr. Gonzalez noted Plaintiff’s current symptoms to include chest 3 pain, dyspnea, and fatigue. Id. at 654. In his review of systems, Dr. Gonzalez also noted 4 fatigue and night sweats; use of glasses or contacts; periodontal disease, hoarseness, sore 5 throat, and tooth pain; acid reflux symptoms, constipation, and heartburn; nocturia; 6 arthralgias, back pain, joint stiffness; extremely dry skin; and anxiety, feelings of stress, 7 and sleep disturbance. AR at 654. Plaintiff reported daily walking for exercise and golf 8 for recreation. Id. Dr. Gonzalez’s physical examination of Plaintiff was unremarkable. Id. 9 at 655–56. Dr. Gonzalez assessed precordial chest pain, shortness of breath, mixed 10 hyperlipidemia, and essential hypertension and ordered a stress test and stress 11 echocardiogram. Id. at 656. On the same date, Plaintiff had an echo doppler performed. 12 Id. at 661–62. Dr. Gonzalez noted that Plaintiff’s intraventricular septum was hypokinetic, 13 but otherwise his observations were generally unremarkable. AR at 661. Dr. Gonzalez 14 concluded Plaintiff showed left ventricular systolic dysfunction and mild mitral, aortic, and 15 tricuspid insufficiency. Id. On March 21, 2016, Plaintiff had x-rays of his cervical spine 16 due to increasing nontraumatic neck pain. Id. at 520. Shirley A. Fiske, D.O. read the 17 images and noted the absence of compression fracture or subluxation, moderate disc space 18 narrowing with anteroposterior spurring at C6–C7, with additional marginal spurring 19 present at C3–C4, C4–C5, and C5–C5, as well as a straightening of the spine. Id. Dr. Fiske 20 also noted intervertebral foraminal narrowing at C6–C7 bilaterally, with mild narrowing 21 on the right at C3–C6 and on the left at C7–T1. Id. On March 31, 2016, Plaintiff followed- 22 up with PA Dorado regarding his cervical spine x-ray. AR at 547–50. Plaintiff indicated 23 that he was feeling stressed and attributed it, in part, to his daughter and four (4) year old 24 grandson moving into his home. Id. at 547. PA Dorado’s review of systems and physical 25 examination of Plaintiff were unremarkable. Id. at 547–49. PA Dorado assessed cervical 26 radiculopathy, atypical chest pain, and anxiety. Id. at 549. 27 On April 12, 2016 Plaintiff was seen by Dr. Gonzalez for a stress echocardiogram. 28 Id. at 652–53. Dr. Gonzalez noted Plaintiff’s symptoms to include chest pain, dyspnea, 1 and fatigue, but negative to any others. AR at 652. Dr. Gonzalez reported an abnormal 2 stress echocardiogram and prescribed Ranexa. Id. at 652–53, 658–60. On April 13, 2016, 3 Plaintiff was seen by Christopher M. Untch, M.D. at Arizona Orthopedics regarding his 4 left shoulder pain. Id. at 628–32, 684–88. Plaintiff reported having had left shoulder pain 5 for approximately five (5) to ten (10) years, with physical therapy in 2008 that helped “for 6 awhile.” Id. at 628, 684. Dr. Untch’s review of Plaintiff’s systems was generally 7 unremarkable and noted heartburn, anxiety, and back, joint, and neck pain with joint 8 swelling. Id. at 629, 685. Dr. Untch’s physical examination of Plaintiff was also 9 unremarkable. AR at 630–31, 686–87. Dr. Untch noted biceps tenderness and a positive 10 Hawkins test, as well as “very mild pain with Speeds [and] Yerg’s[.]” Id. at 630, 686. Dr. 11 Untch ordered magnetic resonance imaging (“MRI”) based on Plaintiff’s radiographs 12 showing no abnormalities. Id. at 631, 687. 13 On May 3, 2016, Plaintiff saw PA Dorado for a follow-up. Id. at 543–46. Plaintiff 14 reported seeing his cardiologist and that he had found some abnormalities—the upper part 15 of his heart was not beating under stress. Id. at 543. PA Dorado’s review of systems and 16 physical examination of Plaintiff were otherwise unremarkable. AR at 543–45. PA 17 Dorado assessed cervical radiculopathy, atypical chest pain, and hyperlipidemia. Id. at 18 545. On May 4, 2016, Plaintiff was seen by Jose Gonzalez, M.D. for a cardiology 19 prescription follow up. Id. at 649–51. Dr. Gonzalez listed Plaintiff’s current symptoms to 20 include “chest pain (with exertion and with emotional stress), dyspnea, exercise limitation 21 and fatigue.” Id. at 649. Dr. Gonzalez’s remaining review of Plaintiff’s systems and 22 physical examination were unremarkable. Id. at 649–50. Dr. Gonzalez assessed 23 myocardial ischemia, mixed hyperlipidemia, essential hypertension, precordial chest pain, 24 and shortness of breath, and ordered further testing. AR at 650. On June 23, 2016, Plaintiff 25 had a nerve conduction study of his left upper extremity. with normal results. Id. at 645– 26 48, 669–72, 693–96. 27 On August 24, 2016, Plaintiff again saw Dr. Untch regarding his left shoulder pain. 28 Id. at 633–36, 680–83. Dr. Untch’s review of Plaintiff’s systems was unremarkable but 1 noted decreased mobility, joint instability, and joint tenderness. Id. at 634, 681. Dr. 2 Untch’s physical examination of Plaintiff was also unremarkable. Id. at 634–36, 681–82. 3 Dr. Untch noted a normal nerve conduction study and the lack of clarity regarding 4 Plaintiff’s symptom description and exam findings. AR at 636, 683. On August 30, 2016, 5 Plaintiff saw PA Dorado for a follow-up regarding blood work. Id. at 535–38. PA 6 Dorado’s review of systems and physical examination of Plaintiff were unremarkable. Id. 7 at 535–37. PA Dorado assessed hyperlipidemia, left shoulder pain, neck pain or 8 cervicalgia, and depression with anxiety. Id. at 537. On the same date, Plaintiff saw PA 9 Dorado for a check-up. Id. at 539–42. Plaintiff reported that he was having ongoing issues 10 with anxiousness, anxiety, and being wound up. AR at 539. Plaintiff also indicated the 11 need for a new cardiologist due to a personality conflict. Id. PA Dorado’s review of 12 systems and physical examination of Plaintiff were unremarkable. Id. at 539–41. PA 13 Dorado’s assessment included depression with anxiety, chest pain, hypertensive disorder, 14 hyperglycemia, and left shoulder pain. Id. at 541. 15 On October 7, 2016, Plaintiff was seen by Tedd M. Goldfinger, DO, FACC, FCCP 16 for a second opinion regarding his chest pain. Id. at 716–17. Dr. Goldfinger’s review of 17 Plaintiff’s systems and physical examination were unremarkable. AR at 717. Dr. 18 Goldfinger recommended an angiograph and stressed the importance of tobacco cessation 19 with Plaintiff. Id. On November 18, 2016, Plaintiff had magnetic resonance imaging of 20 his left shoulder. Id. at 522–23, 643–44, 691–92. Chad Kohl, M.D. reviewed Plaintiff’s 21 films and his findings were generally unremarkable. Id. at 522, 643, 691. Dr. Kohl did not 22 find any tears of Plaintiff’s rotator cuff but noted “[m]oderate insertional supraspinatus and 23 infraspinatus tendinosis[,] [p]ossible mild subacromial-subdeltoid bursitis[,] . . . [and] 24 [m]ild acromioclavicular joint osteoarthritis.” Id. at 523, 644, 692. 25 On January 24, 2017, Plaintiff was seen by Jason Stemmer, M.D. for a nuclear 26 medicine myocardial perfusion rest stress test due to an abnormal result of his 27 cardiovascular function study. AR at 713–15. Dr. Stemmer reported that Plaintiff’s “chest 28 pain in the absence of ischemic electrocardiographic changes during adenosine infusion . . 1 . is not specific for myocardial ischemia[;] . . . normal gated spect tomographic rest stress 2 myocardial perfusion imaging examination[;] . . . normal left ventricular regional wall 3 motion and thickening with a calculated left ventricular ejection fraction of greater than 4 60%[;] [and] . . . overall, the study was consistent with a low likelihood for the presence of 5 stress-induced myocardial ischemia.” Id. at 713–14. On January 25, 2017, Plaintiff saw 6 Dr. Untch regarding an exacerbation of his left shoulder, neck, and arm pain. Id. at 637– 7 40, 675–78. Dr. Untch’s review of Plaintiff’s systems was generally unremarkable but 8 noted decreased mobility, joint instability, joint tenderness, and weakness. Id. at 638, 676. 9 Dr. Untch’s physical examination of Plaintiff was also unremarkable. Id. at 639, 676-77. 10 On March 3, 2017, Plaintiff saw PA Dorado to follow-up on lab work which he 11 failed to have done. AR at 528–30. PA Dorado’s review of systems and physical 12 examination of Plaintiff were unremarkable. Id. PA Dorado assessment included 13 hyperlipidemia, neck pain or cervicalgia, and coronary artery disease. Id. at 530. On the 14 same date, Plaintiff saw PA Dorado for a follow-up. Id. at 531–34. PA Dorado’s review 15 of systems and physical examination of Plaintiff were unremarkable. Id. at 531–33. Also 16 on the same date, Plaintiff had a C-Spine MRI. AR at 641–42, 673–74, 689–90. David 17 Jeck, M.D. reviewed Plaintiff’s images and found them unremarkable. Id. Dr. Jeck 18 observed only mild changes with mild to moderate narrowing at C6–7. Id. On March 13, 19 2017, Plaintiff saw PA Dorado for a follow-up on his blood work. Id. at 524–27. Plaintiff 20 reported “that he is doing relatively well.” Id. at 524. PA Dorado’s review of systems and 21 physical examination of Plaintiff were generally unremarkable. AR at 524–26. PA Dorado 22 assessed hyperglycemia due to Plaintiff drinking over two (2) liters of soda per day, 23 hyperlipidemia, and cervical radiculopathy. Id. at 526. 24 On April 18, 2017, Plaintiff was seen for a follow up with Dr. Goldfinger. Id. at 25 718–20. Dr. Goldfinger’s review of Plaintiff’s systems and physical examination were 26 unremarkable. Id. at 718–19. Dr. Goldfinger reported that Plaintiff’s “nuclear study was 27 negative for ischemia or infarct[,]” and opined that he “[s]uspect[ed] chest pain [was] of 28 noncardiac etiology.” Id. at 719. Dr. Goldfinger directed that Plaintiff “may pursue 1 activities as tolerated.” Id. 2 On May 30, 2017, Plaintiff was seen by Brian Callahan, M.D. for a consultation 3 regarding his chronic neck and left arm pain. AR at 666–67. Dr. Callahan’s examination 4 of Plaintiff was unremarkable. Id. at 666. Dr. Callahan opined that Plaintiff’s chronic neck 5 and arm pain was “likely from the mild spondylosis in his neck[,] [and] [t]here [wa]s no 6 need for any surgery.” Id. As such, he referred Plaintiff to physical therapy and pain 7 management. Id. at 666–67. 8 b. Examining physician—Jeri Hassman, M.D. 9 On October 6, 2017, Jeri Hassman, M.D. examined Plaintiff at the request of 10 Arizona Department of Economic Security. AR at 721–24. Dr. Hassman noted that 11 Plaintiff alleged high blood pressure, neck problems, shoulder problem, high cholesterol, 12 and stomach problems. Id. at 721. Plaintiff reported left upper back pain and low back 13 pain, as well as “cancer cells in his throat.” Id. Plaintiff further reported that his low back 14 pain was associated with tingling of the right lateral thigh, he had occasional tingling of his 15 left forth and fifth fingers, occasional headache, and urinary frequency and urgency. Id. at 16 722. Dr. Hassman reported Plaintiff had “normal ambulation without any limp or 17 complaints of pain” and her examination regarding Plaintiff’s ability to stand, walk, 18 balance, bend, kneel, and hop was unremarkable although Plaintiff complained of neck 19 pain when hopping on his right foot. Id. 20 Dr. Hassman further reported that Plaintiff’s “[h]ead was atraumatic[,] [c]ranial 21 nerves were intact[,] [and] [h]is voice was slightly hoarse although loud enough to 22 understand.” AR at 722. Dr. Hassman observed that Plaintiff’s “[n]eck was supple[,] . . . 23 [with a] full range of motion of the cervical spine without pain and no tenderness over the 24 cervical muscles.” Id. Dr. Hassman’s examination of his heart sounds, respiration, and 25 abdomen were unremarkable. Id. at 722–23. Dr. Hassman’s examination of Plaintiff’s 26 upper and lower extremities and thoracic and lumbar spine were similarly unremarkable. 27 Id. at 723. Plaintiff informed her “that he had been going to Dr. Chase for epidural steroid 28 injections into his neck and that they were not helping with the neck pain or low back pain. 1 Id. Prior to her examination, Dr. Hassman had reviewed Plaintiff’s medical records and 2 she did not find any physical limitations. Id. at 721–22. 3 Dr. Hassman also completed a Medical Source Statement of Ability to Do Work- 4 Related Activities (Physical). AR at 725–31. Dr. Hassman opined that Plaintiff’s 5 condition would impose any limitations for twelve (12) continuous months. Id. at 730. Dr. 6 Hassman also confirmed that Plaintiff had restrictions in lifting and carrying. Id. at 725. 7 Dr. Hassman opined that Plaintiff could lift or carry between twenty-one (21) and fifty (50) 8 pounds occasionally, twenty (20) pounds or less frequently, and never more than fifty (50) 9 pounds. Id. Dr. Hassman further opined that Plaintiff’s ability to stand and/or walk was 10 limited to four (4) hours in an eight (8) hour day, and that he could stand for two (2) hours 11 at a time and walk for one (1) hour. Id. at 726. Dr. Hassman noted that Plaintiff had no 12 limitations in sitting beyond limiting the duration to three (3) hours at a time. AR at 726. 13 Dr. Hassman further noted that Plaintiff did not require an assistive device. Id. 14 Dr. Hassman opined that Plaintiff could frequently reach in all directions, handle, 15 finger, feel, and push-pull with his dominant right hand. Id. at 727. Dr. Hassman further 16 opined that Plaintiff could frequently reach in all directions, handle, finger, feel, and push- 17 pull with his left hand, but limited overhead reaching to occasionally. Id. Dr. Hassman 18 found that Plaintiff was able to occasionally operate foot controls with either foot. Id. Dr. 19 Hassman also opined that Plaintiff could occasionally climb stairs, ramps, ladders, or 20 scaffolds; balance; kneel; crouch; and crawl, but he could frequently stoop. AR at 728. 21 Dr. Hassman placed environmental limitations on Plaintiff including never working at 22 unprotected heights; occasionally working around moving mechanical parts; humidity and 23 wetness; dust, odors, fumes, and pulmonary irritants; extreme cold; extreme heat; and 24 vibrations; and frequently working operating a motor vehicle or around loud noise. Id. at 25 729. Finally, Dr. Hassman opined that Plaintiff could perform activities like shopping; 26 travel without a companion for assistance; ambulate without using a wheelchair, walker, 27 or 2 canes or 2 crutches; walk a block at a reasonable pace on rough or uneven surfaces; 28 climb a few steps at a reasonable pace with the use of a single hand rail; prepare a simple 1 meal and feed himself; care for personal hygiene; and sort, handle, or use paper-files. Id. 2 at 730. 3 c. Reviewing physicians 4 i. Martha A. Goodrich, M.D. 5 On August 24, 2015, Martha A. Goodrich, M.D. reviewed Plaintiff’s medical 6 records for the initial determination. AR at 60–62, 87–88. Dr. Goodrich opined that 7 Plaintiff’s medically determinable impairments of hypertension, hyperlipidemia, and 8 GERD were non-severe. Id. at 60–61, 87–88. Dr. Goodrich further opined that Plaintiff’s 9 treating source examinations were “superficial and generally repetitive throughout the 10 [medical evidence of record].” Id. at 60, 87. Dr. Goodrich determined that the treating 11 source medical evidence of record insufficient “due to [a] lack of adequate physical exams 12 by an acceptable medical source.” Id. 13 ii. Christopher Maloney, M.D. 14 On January 19, 2016, Christopher Maloney, M.D. reviewed Plaintiff’s medical 15 records for a determination on reconsideration. AR at 69. Dr. Maloney observed that 16 Plaintiff’s hypertension, low back pain, and shoulder pain were all under medical 17 prescription. Id. Dr. Maloney also noted that Plaintiff was working repossessing cars. Id. 18 Dr. Maloney opined that Plaintiff was “somatically non-severe.” Id. 19 20 II. STANDARD OF REVIEW 21 The factual findings of the Commissioner shall be conclusive so long as they are 22 based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 23 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may 24 “set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s 25 findings are based on legal error or are not supported by substantial evidence in the record 26 as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see 27 also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 28 Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a 1 preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 2 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 3 Further, substantial evidence is “such relevant evidence as a reasonable mind might accept 4 as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 5 Where “the evidence can support either outcome, the court may not substitute its judgment 6 for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 7 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). 8 Moreover, the court may not focus on an isolated piece of supporting evidence, rather it 9 must consider the entirety of the record weighing both evidence that supports as well as 10 that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations 11 omitted). 12 13 III. ANALYSIS 14 A. The Five-Step Evaluation 15 The Commissioner follows a five-step sequential evaluation process to assess 16 whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as 17 follows: Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the 18 claimant is not disabled; step two considers if the claimant has a “severe medically 19 determinable physical or mental impairment[.]” If not, the claimant is not disabled; step 20 three determines whether the claimant’s impairments or combination thereof meet or equal 21 an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. If not, the claimant is not 22 disabled; step four considers the claimant’s residual functional capacity and past relevant 23 work. If claimant can still do past relevant work, then he or she is not disabled; step five 24 assesses the claimant’s residual functional capacity, age, education, and work experience. 25 If it is determined that the claimant can make an adjust6ment to other work, then he or she 26 is not disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v). 27 In the instant case, the ALJ found that Plaintiff had “not engaged in substantial 28 gainful activity since August 2, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 1 416.971 et seq.). AR at 17. At step two of the sequential evaluation, the ALJ found that 2 “[t]he claimant has the following severe impairments: left shoulder dysfunction, 3 degenerative disc disease, and osteoarthritis of the neck (20 CFR 404.1520(c) and 4 416.920(c)).” Id. The ALJ further found that “[t]he claimant does not have an impairment 5 or combination of impairments that meets or medically equals the severity of one of the 6 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 7 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Id. at 18–19. Prior to step four 8 and “[a]fter careful consideration of the entire record,” the ALJ determined that “the 9 claimant has the residual functional capacity to perform the full range of light work as 10 defined in 20 CFR 404.1567(b) and 416.967(b).” Id. at 19. At step four, the ALJ found 11 that “[t]he claimant is capable of performing past relevant work as a customer service 12 representative.” AR at 23. The ALJ further found that “[t]his work does not require the 13 performance of work related activities precluded by the claimant’s residual functional 14 capacity (20 CFR 404.1565 and 416.965).” Id. Accordingly, the ALJ determined that 15 Plaintiff was not disabled. Id. at 24. 16 Plaintiff asserts that the ALJ erred in failing to properly weigh the opinion of treating 17 physician, Michael R. Gray, M.D. See Opening Br. (Doc. 18). Plaintiff further asserts that 18 the ALJ committed error by failing to incorporate all of the limitations contained in the 19 examining source opinion of Dr. Hassman regarding his reaching limitations into the 20 residual functional capacity. See id. Finally, Plaintiff asserts that the ALJ was 21 unconstitutionally appointed and as such this matter must be remanded for a new hearing 22 with a different, constitutionally appointed ALJ. See id. 23 B. Treating Physician Testimony 24 Plaintiff asserts that “the ALJ’s physical RFC determination is not supported by 25 substantial evidence because he failed to appropriately weigh the opinion of Plaintiff’s 26 treating physician, Michael R. Gray, M.D.” Pl’s Opening Br. (Doc. 18) at 13. Plaintiff 27 urges that “[t]he ALJ’s analysis of these opinions does not comport with the analysis 28 contemplated by regulations as it is based on a mischaracterization of the evidence and is 1 error.” Id. at 14. Further, Plaintiff argues that “the ALJ ignored mountains of evidence 2 including examinations findings, diagnostic imaging” in finding Plaintiff not disabled. Id. 3 at 19. 4 “As a general rule, more weight should be given to the opinion of a treating source 5 than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 6 821, 830 (9th Cir. 1996) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)); see 7 also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “The opinion of a treating 8 physician is given deference because ‘he is employed to cure and has a greater opportunity 9 to know and observe the patient as an individual.’” Morgan v. Comm’r of the SSA, 169 10 F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 11 1987) (citations omitted)). “The ALJ may not reject the opinion of a treating physician, 12 even if it is contradicted by the opinions of other doctors, without providing ‘specific and 13 legitimate reasons’ supported by substantial evidence in the record.” Rollins v. Massanari, 14 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 15 1998)); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Embrey v. Bowen, 849 16 F.2d 418, 421 (9th Cir. 1988). “The ALJ can meet this burden by setting out a detailed and 17 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 18 thereof, and making findings.” Embrey, 849 F.2d at 421 (quoting Cotton v. Bowen, 799 19 F.2d 1403, 1408 (9th Cir. 1986)). Additionally, “[a] physician’s opinion of disability 20 ‘premised to a large extent upon the claimant’s own account of his symptoms and 21 limitations’ may be disregarded where those complaints have been ‘properly discounted.’” 22 Morgan, 169 F.3d at 602 (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) 23 (citations omitted)). Similarly, “[a] physician’s opinion can be discredited based on 24 contradictions between the opinion and the physician’s own notes.” Buck v. Berryhill, 869 25 F.3d 1040, 1050 (9th Cir. 2017) (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 26 2005)). “[T]he more consistent an opinion is with the record as a whole, the more weight 27 we will give to that opinion.” 20 C.F.R. § 404.1527(c)(4). 28 The ALJ set forth a detailed and thorough summary of the facts and clinical 1 evidence. AR at 19–21. Regarding Dr. Gray’s opinions, the ALJ observed that “[t]here is 2 no support stated for the limitations[,] which are not consistent with the medical evidence 3 of record.” Id. at 21. Plaintiff urges that mountains of evidence including examinations 4 findings, diagnostic imaging are contrary to the ALJ’s finding; however, the review set 5 forth by the ALJ demonstrates that this evidence consistently describes Plaintiff’s condition 6 as “normal,” “unremarkable,” or mild. See id. 20–21; see also AR 353, 464 (PA Dorado 7 noted that Plaintiff’s “films demonstrate[d] mild degenerative changes of the lumbar 8 spine[,] [and] [Plaintiff] [wa]s to continue with conservative therapy, muscle relaxer and 9 Norco.”); AR 521, 697 (Dr. Osumi reviewed radiographs of Plaintiff’s left shoulder and 10 found no abnormalities); AR 654 (Plaintiff reported daily walking for exercise and golf for 11 recreation); AR 630–31, 686–87 (regarding left shoulder pain, Dr. Untch noted “very mild 12 pain” and normal radiographs); AR 636, 683 (Dr. Untch noted normal nerve conduction 13 study and a lack of clarity regarding Plaintiff’s symptom description versus findings on 14 examination). 15 Furthermore, Dr. Gray’s opinion appears to be based on Plaintiff’s subjective 16 complaints which were properly discounted by the ALJ, a finding to which Plaintiff does 17 not object. AR at 19–21. “A physician’s opinion of disability ‘premised to a large extent 18 upon the claimant’s own account of his symptoms and limitations’ may be disregarded 19 where those complaints have been ‘properly discounted.’” Morgan, 169 F.3d at 602 20 (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (citations omitted)). Similarly, 21 “[a] physician’s opinion can be discredited based on contradictions between the opinion 22 and the physician’s own notes.” Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) 23 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). Additionally, PA 24 Dorado, a member of Dr. Gray’s practice group, was the primary point of contact with 25 Plaintiff and, although not a treating source, his examinations do not contain any suggestion 26 that Plaintiff is as limited as Dr. Gray opines. See Section I.B.3.a., supra. 27 The ALJ’s findings are consistent with the medical records in this case. Plaintiff 28 seeks the ALJ to prove a negative. The records, however, do not support the limitations 1 set forth by Dr. Gray. “The ALJ is responsible for determining credibility, resolving 2 conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 3 F.3d 1035, 1039 (9th Cir. 1995) (citations omitted). The ALJ provided “‘specific and 4 legitimate reasons’ supported by substantial evidence in the record” to reject Dr. Gray’s 5 Physical Assessment of Plaintiff. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 6 Accordingly, he did not err. 7 C. Examining Physician 8 Plaintiff asserts that “[t]he AJ’s RFC determination is not supported by substantial 9 evidence where, after affording the opinion of consulting examiner, Jeri Hassman, M.D. 10 great weight, he failed to incorporate all of Dr. Hassman’s opined limitations into the RFC 11 without any explanation.” Pl.’s Opening Br. at 19. 12 Here, the ALJ reviewed Plaintiff’s allegations, his treatment records, the examining 13 physicians’ reports, and the medical consultants’ findings. See AR at 19–22. Between 14 steps three (3) and four (4) the ALJ assessed Plaintiff’s RFC finding that he “has the 15 residual functional capacity to perform the full range of light work as defined in 20 CFR 16 404.1567(b) and 416.967(b).” Id. at 19. Based on his analysis of the record, at step four 17 (4) the ALJ found claimant was capable of performing past relevant work as a customer 18 service representative. AR at 23. The customer service position, as defined by VE 19 McLeary, is DOT number 249.362-026, with a SVP of 4, and a sedentary exertional level. 20 This position does not require Plaintiff to perform any of the limitations opined by Dr. 21 Hassman.4 The ALJ did not err because there is not apparent or obvious conflict between 22 23 4 The DOT description states: 24 Processes orders for material or merchandise received by mail, telephone, or personally from customer or company employee, manually or using computer or 25 calculating machine: Edits orders received for price and nomenclature. Informs customer of unit prices, shipping date, anticipated delays, and any additional 26 information needed by customer, using mail or telephone. Writes or types order 27 form, or enters data into computer, to determine total cost for customer. Records or files copy of orders received according to expected delivery date. May ascertain 28 credit rating of customer [CREDIT CLERK (clerical) 205.367-022]. May check inventory control and notify stock control departments of orders that would deplete 1 Dr. Hassman’s limitations and Plaintiff’s past relevant work. See Gutierrez v. Colvin, 844 2 F.3d 804, 808 (9th Cir. 2016) (“the ALJ didn't err because there was no apparent or obvious 3 conflict between the expert's testimony that Ms. Gutierrez could perform as a cashier, 4 despite her weight bearing and overhead reaching limitations with her right arm, and the 5 Dictionary's general statement that cashiering requires frequent reaching. While ‘reaching’ 6 connotes the ability to extend one's hands and arms ‘in any direction,’ SSR 85-15, 1985 7 WL 56857, at *7 (1985), not every job that involves reaching requires the ability to reach 8 overhead. Cashiering is a good example.”). Furthermore, if the ALJ did err in not including 9 Dr. Hassman’s additional limitation, such error would be harmless. See Molina v. Astrue, 10 674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]e may not reverse an ALJ's decision on account 11 of an error that is harmless.”). 12 The Court finds that the ALJ properly considered the record as a whole in making 13 her determination and the RFC for a range of sedentary work is based on a reasonable 14 interpretation of the record. See Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1193 (9th 15 Cir. 2004) (“the Commissioner’s findings are upheld if supported by inferences reasonably 16 drawn from the record”). 17 D. Appointments Clause 18 Plaintiff asserts that “[t]he ALJ that heard Plaintiff’s application was 19 unconstitutionally appointed and should be barred from further adjudication of Plaintiff’s 20 application[,] . . . [which] should be immediately remanded for a new hearing with a 21 stock. May initiate purchase requisitions. May route orders to departments for 22 filling and follow up on orders to ensure delivery by specified dates and be designated Telephone-Order Dispatcher (clerical). May compute price, discount, 23 sales representative's commission, and shipping charges. May prepare invoices and 24 shipping documents, such as bill of lading [BILLING TYPIST (clerical) 214.382- 014]. May recommend type of packing or labeling needed on order. May receive 25 and check customer complaints [CUSTOMER-COMPLAINT CLERK (clerical) 241.367-014]. May confer with production, sales, shipping, warehouse, or common 26 carrier personnel to expedite or trace missing or delayed shipments. May attempt 27 to sell additional merchandise to customer [TELEPHONE SOLICITOR (any industry) 299.357-014]. May compile statistics and prepare various reports for 28 management. May be designated according to method of receiving orders as Mail- Order Clerk (clerical); Telephone-Order Clerk (clerical). 1 different and constitutionally appointed ALJ[.]” Pl.’s Opening Br. (Doc. 18) at 21. In 2 support of his argument, Plaintiff relies on the Supreme Court’s decision in Lucia v. S.E.C., 3 — U.S. —, 138 S. Ct. 2044, 2051 (2018). 4 In Lucia, the Court considered whether the Security and Exchange Commission’s 5 ALJs were “Officers of the United States” subject to the requirements of the Appointments 6 Clause or “simply employees of the Federal Government.” Lucia, 135 S. Ct. at 2051; see 7 also Art. II, § 2, cl. 2. The Court found the ALJ in Lucia was not properly appointed, and 8 the appropriate remedy was a “new hearing before a properly appointed official.” Lucia, 9 135 S. Ct. at 2055. An Appointments Clause challenge is nonjuridictional and may be 10 waived. Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 878–79, 111 S. Ct. 2631, 11 2639, 115 L. Ed. 2d 764 (1991); Cooper v. U.S. Sec. & Exch. Comm’n, 799 F. App’x 474, 12 475 (9th Cir. 2019) (“because [Plaintiff] did not timely raise this issue before the 13 Commission, he may not raise the issue on appeal”). The Supreme Court reiterated this 14 rule noting “one who makes a timely challenge to the constitutional validity of the 15 appointment of an officer who adjudicates his case is entitled to relief.” Lucia, 135 S. Ct. 16 at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182–83, 115 S. Ct. 2031, 132 L. Ed. 17 2d 136 (1995)). The Ninth Circuit Court of Appeals has similarly “held that appellants 18 must raise issues at their administrative hearings in order to preserve them on appeal before 19 this Court.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). 20 Plaintiff does not dispute that he failed to raise this claim either before the ALJ or 21 the Appeals Council, but points to a smattering of district court cases around the country 22 that support review. This Court, however, will follow the logic of the district courts in this 23 circuit and finds that Plaintiff forfeited his argument by failing to raise it at any time below. 24 See Younger v. Comm’r of Soc. Sec., 2020 WL 57814, *5 (January 6, 2020) (collecting 25 cases). As such, Plaintiff is not entitled to review of his Appointments Clause challenge. 26 . . . 27 . . . 28 . . . IV. CONCLUSION 2 Based upon the foregoing, the Court affirms the ALJ’s decision. Accordingly, IT 3|| IS HEREBY ORDERED that: 4 1) Plaintiff's Opening Brief (Doc. 18) is DENIED; 5 2) The Commissioner’s decision is AFFIRMED; and 6 3) The Clerk of the Court shall enter judgment and close its file in this case. 7 8 Dated this 29th day of May, 2020. 10 Honorable Bruce G. Macdonald ll United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -27-