Lewis v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Larry Robert Lewis, No. CV-20-00765-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Larry Lewis’s Application for Disability Insurance 16 Benefits by the Social Security Administration (“Commissioner”) under the Social 17 Security Act. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review 18 of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 19, “Pl. Br.”), 19 Defendant’s Answering Brief (Doc. 20, “Def. Br.”), and Plaintiff’s Reply Brief (Doc. 21, 20 “Reply”). The Court has reviewed the briefs and the Administrative Record (Doc. 13, “R.”) 21 and now affirms the Administrative Law Judge’s decision.1 22 I. BACKGROUND 23 Plaintiff filed his application for benefits on February 25, 2016, alleging disability 24 beginning August 25, 2015 after a “stroke-like” incident caused him to be hospitalized. (R. 25 at 14, 22.) The Commissioner denied Plaintiff’s application initially and again upon 26 reconsideration. (Id. at 14.) On March 11, 2019, Plaintiff appeared at a hearing before an 27 1 Both parties have submitted legal memoranda and oral argument would not have aided 28 the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 1 administrative law judge (“ALJ”). (Id.) The ALJ considered whether Plaintiff has been 2 disabled since August 25, 2015. (Id. at 14–30.) The ALJ issued a written decision finding 3 Plaintiff not disabled. (Id. at 16–30.) On February 19, 2020, the Appeals Council denied 4 review, making the ALJ’s decision final and ripe for this Court’s review. (Id. at 1.) Plaintiff 5 now seeks judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). 6 The pertinent medical evidence will be discussed in addressing the issues raised by 7 Plaintiff. Upon considering the medical records and opinions, the ALJ found Plaintiff had 8 “severe” medically determinable impairments of obesity, chronic fatigue syndrome, left 9 ankle arthritis, myalgia, asthma, anxiety, depressive disorder, and post-traumatic stress 10 disorder. (Id. at 18.) The ALJ also found Plaintiff had several “non-severe” medically 11 determinable impairments of diabetes, thyroid disorder, hypertension, sleep apnea, a 12 positive TB test, status-post surgical repair of a torn Achilles, and headaches. (Id.) 13 The ALJ found that Plaintiff has not engaged in substantial gainful activity since 14 August 25, 2015. (Id. at 18.) However, the ALJ found that Plaintiff has the residual 15 functional capacity (“RFC”) to perform “light” work as defined in 20 C.F.R. 16 § 404.1567(b). (Id. at 18–21.) Specifically, the ALJ found that Plaintiff can frequently 17 operate foot controls bilaterally; can never climb ladders, ropes, or scaffolds; can 18 occasionally climb stairs and ramps; can occasionally balance, stoop, kneel, crouch, and 19 crawl; can frequently reach overhead bilaterally; can have occasional exposure to non- 20 weather related extreme heat and excessive noise; can have frequent exposure to 21 pulmonary irritants; and can have no exposure to dangerous machinery. (Id. at 21.) The 22 ALJ further found that Plaintiff can perform work “with tasks that can be learned by 23 demonstration within thirty days.” (Id.) In considering Plaintiff’s age, education, work 24 experience, and RFC, the vocational expert found that Plaintiff could perform the 25 requirements of occupations such as housekeeper, office helper, and cashier. (Id. at 30.) 26 The ALJ found these occupations exist in significant numbers in the national economy 27 such that Plaintiff should be able to make a successful transition to one of them. (Id.) Thus, 28 the ALJ concluded Plaintiff has not been disabled since August 25, 2015. (Id. at 31.) 1 II. LEGAL STANDARD 2 In determining whether to reverse an ALJ’s decision, the district court reviews only 3 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 4 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 5 determination only if it is not supported by substantial evidence or is based on legal error. 6 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a 7 scintilla, but less than a preponderance; it is relevant evidence that a reasonable person 8 might accept as adequate to support a conclusion considering the record as a whole. Id. To 9 determine whether substantial evidence supports a decision, the Court must consider the 10 record as a whole and may not affirm simply by isolating a “specific quantum of supporting 11 evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one rational 12 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 13 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 14 Finally, the Court may not reverse an ALJ’s decision on account of an error that is harmless. 15 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006). “The burden 16 of showing that an error is harmful normally falls upon the party attacking the agency’s 17 determination.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Shinseki 18 v. Sanders, 556 U.S. 396, 409 (2009)). 19 To determine whether a claimant is disabled, the ALJ follows a five-step process. 20 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but 21 the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 22 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently 23 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant 24 is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the 25 claimant has a “severe” medically determinable physical or mental impairment. Id. 26 § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. At step 27 three, the ALJ considers whether the claimant’s impairment or combination of impairments 28 meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. 1 Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 2 Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s 3 RFC and determines whether the claimant is still capable of performing past relevant work. 4 Id. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, 5 the ALJ proceeds to the fifth and final step, where the ALJ determines whether the claimant 6 can perform any other work in the national economy based on the claimant’s RFC, age, 7 education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. 8 Id. If not, the claimant is disabled. Id. 9 III. DISCUSSION 10 Plaintiff argues the ALJ erred in evaluating his claim by: (1) improperly dismissing 11 his symptom testimony and (2) misevaluating various medical opinions in the record, such 12 that his RFC is not supported by substantial evidence. The Court addresses each argument 13 in turn. 14 A. Plaintiff’s Symptom Testimony 15 Plaintiff first argues the ALJ improperly dismissed his subjective symptom 16 testimony. (Pl. Br. at 15.) Plaintiff alleges the ALJ did not “connect the discussion of the 17 medical evidence to a finding that any specific part of the symptom testimony lacked 18 credibility.” (Id. at 17.) Defendant responds that “the ALJ specifically considered 19 Plaintiff’s allegations and cited evidence that contradicted his testimony.” (Def. Br. at 6.) 20 The Court agrees with Defendant. 21 The ALJ must consider the claimant’s subjective testimony when determining his 22 RFC but need not necessarily credit that testimony. See 20 C.F.R. §§ 404.1545(a)(3), 23 404.1529(a). When deciding whether to credit a claimant’s testimony, the ALJ must engage 24 in a two-step analysis. Molina, 674 F.3d at 1112. First, the ALJ “determine[s] whether 25 there is ‘objective medical evidence of an underlying impairment which could reasonably 26 be expected to produce the pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. 27 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Then, the ALJ evaluates the statements in 28 context of the (1) objective medical evidence and (2) other evidence in the record. See 20 1 C.F.R. § 404.1529(c)(2)-(3). The ALJ may only reject the claimant’s testimony “by 2 offering specific, clear and convincing reasons for doing so.” Lingenfelter, 504 F.3d at 3 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). 4 Although the “clear and convincing standard is the most demanding required in 5 Social Security cases,” the ALJ is not “required to believe every allegation of disabling 6 pain, or else disability benefits would be available for the asking, a result plainly contrary 7 to 42 U.S.C. § 423(d)(5)(A).” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014); Fair 8 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Thus, when weighing the claimant’s 9 credibility, the ALJ may consider “inconsistencies either in claimant’s testimony or 10 between [his] testimony and [his] conduct, claimant’s daily activities, [claimant’s] work 11 record, and testimony from physicians and third parties concerning the nature, severity, 12 and effect of the symptoms of which claimant complains.”2 Thomas, 278 F.3d at 958–59. 13 Additionally, the ALJ may consider “whether the claimant takes medication or undergoes 14 other treatment for [his] symptoms.” Lingenfelter, 504 F.3d at 1040. Ultimately, if the 15 ALJ’s credibility finding is supported by substantial evidence, courts may not engage in 16 second-guessing. Thomas, 278 F.3d at 959. 17 Here, the ALJ properly discounted Plaintiff’s symptom testimony for specific, clear, 18 and convincing reasons supported by substantial evidence. The ALJ considered Plaintiff’s 19 testimony that “he has experienced fatigue since late 2015,” he is “in constant pain and 20 [has] difficulty focusing on tasks,” and he has limitations to “lifting, standing, reaching, 21 walking, talking, stair climbing, remembering, completing tasks, concentrating, 22 understanding, following instructions, using his hands, and getting along with others.” (R. 23 at 22.) The ALJ found Plaintiff’s medically determinable impairments could reasonably be 24 expected to cause these alleged symptoms, thus satisfying step one of the analysis. (Id.) In 25 considering step two, however, the ALJ determined Plaintiff’s statements regarding the 26 intensity, persistence, and limiting effects of his symptoms were not entirely consistent 27 2 While the ALJ may consider “whether the alleged symptoms are consistent with the medical evidence,” the ALJ may not “reject a claimant’s subjective pain or symptom 28 testimony simply because the alleged severity of the pain or symptoms is not supported by objective medical evidence.” Lingenfelter, 504 F.3d at 1040 (emphasis added). 1 with the medical and other evidence in the record. (Id.) The ALJ discounted Plaintiff’s 2 symptom testimony for several reasons, including (1) the testimony was unsupported by 3 the objective medical evidence in the record, (2) several of Plaintiff’s symptoms showed 4 improvement with medication, and (3) Plaintiff was engaging in daily activities 5 inconsistent with his alleged symptoms. (See id. at 22–25.) 6 First, the ALJ properly discounted Plaintiff’s symptom testimony because it was 7 inconsistent with the objective medical evidence in the record. The ALJ concluded that 8 “the medical evidence as a whole fail[s] to corroborate the full extent of the alleged 9 severity, limiting effects and frequency of the [Plaintiff’s] medical conditions.” (Id. at 22.) 10 In proving this, the ALJ first refuted Plaintiff’s assertions of physical disability including 11 joint and coordination issues, constant pain, asthma, obesity, and chronic fatigue. (Id. at 12 21–25.) The ALJ dismissed Plaintiff’s claim of general joint pain and coordination issues 13 by noting that his medical exams showed normal musculoskeletal strength, normal range 14 of motion in his joints, and normal finger to nose and heel to shin testing. (Id. at 23; see id. 15 at 636, 711, 911, 915, 1145, 1210, 1254, 1477.) The ALJ also emphasized that the record 16 had no medical evidence showing joint swelling or stiffness that would presumably cause 17 such symptoms. (Id. at 23.) The ALJ dismissed Plaintiff’s claim of being in “constant” pain 18 by noting that his radiographs “showed only of mild ankle arthritis” and his bloodwork 19 “was negative for inflammatory arthritis.” (Id. at 24; see id. at 1493–95, 1834.) The ALJ 20 then acknowledged Plaintiff’s asthma diagnosis but dismissed his assertion that it was 21 debilitating by pointing to his normal lung exams and mild spirometry tests. (Id. at 24; see 22 id. at 636, 910, 1006–07, 1087.) Although a lack of medical evidence in the record cannot 23 on its own discount a Plaintiff’s symptom testimony, it is a common factor the ALJ can 24 consider when assessing credibility. See Burch, 400 F.3d at 681. 25 When refuting his claim of chronic fatigue, Plaintiff argues the ALJ “failed to list 26 any evidence to refute [Plaintiff’s] reports of the fatigue” he continually experienced after 27 his hospitalization in 2015. (Pl. Br. at 17 (emphasis added).) The Court acknowledges that 28 when ultimately dismissing Plaintiff’s claim of chronic fatigue, the ALJ made a general 1 statement that Plaintiff’s “lab work” did not support his assertion of complete debilitation. 2 (R. at 25.) The ALJ, however, first gave a more robust explanation for dismissing 3 Plaintiff’s claim. (See id. at 22–24.) The ALJ noted “[m]ultiple examinations showed of 4 normal gait, as well as normal strength in his bilateral lower extremities and upper 5 extremities, showing that despite his spells and complaints of fatigue and pain, he retained 6 a substantial ability to sit, stand, walk, lift and carry.” (Id. at 24; see id. at 1087, 1153, 1210, 7 1254, 1785, 1829–32.) Plaintiff argues these physical findings do not support the ALJ’s 8 dismissal of Plaintiffs testimony on his need to nap for at least two hours a day and thus 9 his inability to sustain a traditional eight-hour workday. (Pl. Br. at 20; Reply at 9.) The 10 Court disagrees. Although the findings surrounding Plaintiff’s claim of chronic fatigue may 11 be susceptible to more than one rational interpretation, the Court must uphold the ALJ’s 12 conclusion as to the credibility of Plaintiff’s testimony because it is supported by 13 substantial evidence in the record, that is, multiple physical findings to the contrary. See 14 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995) (“The ALJ is responsible for 15 determining credibility, resolving conflicts in medical testimony, and for resolving 16 ambiguities. [Courts] must uphold the ALJ’s decision where the evidence is susceptible to 17 more than one rational interpretation.”). Lastly, the ALJ acknowledged Plaintiff’s obesity 18 diagnosis but dismissed his assertion that it was debilitating. (R. at 25.) The ALJ stated that 19 similarly to Plaintiff’s fatigue and pain allegations, which were reasonably considered and 20 accounted for in the RFC finding, “a reduction to the light exertional level would be 21 sufficient to accommodate the extra stress that [Plaintiff’s] obesity places on his lungs and 22 skeletal system.” (Id. at 22, 25.) 23 The ALJ then refuted Plaintiff’s assertions of cognitive decline including logic 24 issues, word finding issues, memory loss, attention difficulties, speech issues, spelling 25 issues, concentration difficulties, and thought processing difficulties. (Id. at 22.) The ALJ 26 pointed to several instances throughout a two-year period where Plaintiff’s cognitive 27 testing scores were within the expected range for his age. (Id. at 23–24; see id. at 702, 28 1451.) For example, the ALJ noted that after his 2015 hospitalization and despite his claims 1 of memory loss, Plaintiff’s “memory scored in the average to high average range,” and “his 2 ability to pay attention and concentrat[e] was in the high-average range.” (Id. at 23; see id. 3 at 702.) In 2016, despite his claims of word finding and speech issues, Plaintiff “was able 4 to carry on a conversation without significant difficulty,” “his full-scale IQ was 117, which 5 was in the high-average range,” and his “speech was normal.” (Id. at 23, 578, 585–86.) By 6 2017, Plaintiff remained “alert and attentive,” “his fund of knowledge was average,” and 7 “his thought process was of a normal continuity and rate.” (Id. at 24, 1784–85.) Thus, the 8 ALJ relied on specific examples when explaining why she did not believe Plaintiff’s 9 cognitive symptom testimony was credible. See Garrison, 759 F.3d at 1018. The ALJ also 10 refuted Plaintiff’s allegation that he had difficulty getting along with others by noting 11 several instances in which he was “appropriately dressed and well-groomed” for his 12 medical appointments, “friendly and cooperative” with his physicians, and exhibiting 13 “normal mood, affect, and behavior.” (R. at 24, 549, 1268, 1452, 1717.) The ALJ therefore 14 did not err in discounting Plaintiff’s testimony on account of a lack of corroboration from 15 the objective medical evidence. See Lingenfelter, 504 F.3d at 1040. 16 Additionally, the ALJ properly discounted Plaintiffs symptom testimony because of 17 the reported effectiveness of medication in reducing or eliminating several of his 18 symptoms. (R. at 25.) Social Security regulations allow ALJ’s to consider the effectiveness 19 of medications taken when evaluating the intensity and persistence of a claimant’s 20 subjective symptoms. See 20 C.F.R. § 404.1529(c)(3)(iv). Here, the ALJ noted that with 21 repeat Botox injections, Plaintiff showed improvement in terms of the frequency and 22 severity of his headaches. (R. at 25; see R. at 1792.) The ALJ also pointed to reported 23 emotional and cognitive improvement on medication. (Id. at 25.) See Warre v. Comm’r 24 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 25 effectively with medication are not disabling.”). During his most recent psychiatric exam 26 in January 2019, Plaintiff reported Venlafaxine was helping to stabilize his mood and 27 irritability. (R. at 1781.) Plaintiff argues the ALJ failed to acknowledge that Venlafaxine 28 was also causing notable side effects and was intended to be discontinued from Plaintiff’s 1 treatment plan. (Pl. Br. at 20.) While the Court acknowledges this, it is still noteworthy that 2 Venlafaxine was improving Plaintiff’s alleged symptoms for the year he was taking it and 3 that his physician planned to replace Venlafaxine with Duloxetine to achieve the same 4 result. (R. at 1781–85.) At the same 2019 appointment, Plaintiff also expressed that he and 5 his wife noticed improvement to his energy and concentration levels while he was taking 6 Ritalin. (Id.) His dose of Ritalin was thus increased. (Id.) Plaintiff also reported that due to 7 his combination of medications, his chronic pain had improved since his last exam. (Id.) 8 Finally, Plaintiff reported improvements to his joint issues on Entanercept and noted that 9 he continually used a CPAP machine as well as Mirtazapine to help with his sleep apnea. 10 (Id. at 1781.) Therefore, the ALJ did not err in discounting Plaintiff’s testimony on account 11 of symptom improvement with medication. 12 Lastly, the ALJ discounted Plaintiff’s symptom testimony on account of his daily 13 activities that were found inconsistent with his allegations of disability. (Id. at 25.) The 14 ALJ noted that Plaintiff was “advised to be active” by his doctors and “was able to travel 15 with his father in a motor home on vacation.” (Id.) Plaintiff argues the ALJ needed to prove 16 that while traveling in the motor home “a substantial part of [his] typical day” was spent 17 engaging in inconsistent activities. (Pl. Br. at 21–22.) Thus, Plaintiff argues because the 18 ALJ did not inquire as to how often Plaintiff needed to rest or how much activity was being 19 performed while traveling, she mistakenly assumed he was engaging in activities 20 inconsistent with his symptom testimony. (Id.) Even so, considering the other two legally 21 valid reasons for supporting the ALJ’s conclusion that Plaintiff’s testimony was not 22 credible, any error the ALJ may have committed in assuming Plaintiff was active while 23 traveling was harmless. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 24 Cir. 2004) (holding that any error the ALJ may have committed in assuming without 25 confirmation from the record that plaintiff was sitting while watching television and thus 26 engaging in inconsistent daily activities was harmless and did not “negate the validity of 27 the ALJ’s ultimate conclusion that [plaintiff’s] testimony was not credible”). Accordingly, 28 the Court will not remand on this basis. 1 B. Medical Opinion Evidence 2 Plaintiff also argues the ALJ improperly weighed the medical opinion evidence in 3 the record. (Pl. Br. at 25.) Plaintiff alleges the ALJ improperly rejected both Dr. Matthew 4 Robert Anderson’s and Dr. Dane Higgins’s assessments, “that were based on actual 5 examination of [Plaintiff] . . . [and] then assigned ‘partial weight’ and ‘some weight’ to the 6 opinions of desktop reviewers who completed assessment forms for the state agency as part 7 of the initial and reconsideration determinations.” (Id.) Defendant responds that the ALJ 8 properly gave “partial” and “some” weight to the opinions of the state agency physicians 9 and “little” weight to the opinions of treating physician Dr. Anderson and examining 10 physician Dr. Higgins. (Def. Br. at 14–15.) The Court finds Defendant’s argument 11 persuasive. 12 The ALJ considers the various medical opinion evidence in the record when 13 assessing a claimant’s RFC. See 20 C.F.R. §§ 416.927, 416.945(a)(3). “[P]hysicians may 14 render medical, clinical opinions, or they may render opinions on the ultimate issue of 15 disability–the claimant’s ability to perform work.” Garrison, 759 F.3d at 1012. In general, 16 medical opinions of treating sources are entitled to the greatest weight; opinions of 17 examining, non-treating sources are entitled to lesser weight; and opinions of non- 18 examining, non-treating sources are entitled to the least weight. Id. “If a treating or 19 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 20 reject it by providing specific and legitimate reasons that are supported by substantial 21 evidence.” Id. An ALJ satisfies the substantial evidence requirement by “setting out a 22 detailed and thorough summary of the facts and conflicting evidence, stating his [or her] 23 interpretation thereof, and making findings.” Id. “The opinions of non-treating or non- 24 examining physicians may also serve as substantial evidence when the opinions are 25 consistent with independent clinical findings or other evidence in the record.” Thomas, 278 26 F.3d at 957. In evaluating any medical opinion, the ALJ may consider: (1) whether the 27 source examined the claimant; (2) the length, frequency, nature, and extent of any treatment 28 relationship; (3) the degree of support the opinion has, particularly from objective medical 1 evidence; (4) the consistency of the opinion with the record as a whole; (5) the source’s 2 specialization; and (6) “other factors.” 20 C.F.R. §§ 416.927(c)(1)–(6); Trevizo v. 3 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). 4 1. Dr. Anderson’s Assessments 5 Here, the ALJ considered medical assessments from Dr. Anderson, Plaintiff’s 6 treating physician. (R. at 26–27.) In 2016, Dr. Anderson originally found Plaintiff was 7 experiencing some minor physical and cognitive impairment but stated that further testing 8 was needed to obtain a definitive diagnosis. (Id. at 900.) Just a few months later, in a pre- 9 printed Navient private loan form, Dr. Anderson stated Plaintiff was “totally and 10 permanently disabled.” (Id. at 1334.) In 2017, Dr. Anderson stated Plaintiff had moderately 11 severe limitations in “understanding, remembering, and carrying out instructions; 12 responding appropriately to others; performing simple tasks” and had “a severe limitation 13 in responding to customary work pressures.” (Id. at 1449–50.) He later wrote a temporary 14 excuse stating Plaintiff should be off work for six weeks. (Id. at 1150.) Finally, Dr. 15 Anderson concluded Plaintiff’s many limitations would put him off task greater than 21% 16 of an eight-hour workday. (Id. at 1450.) The ALJ assigned “little weight” to Dr. Anderson’s 17 assessments. (Id. at 27.) 18 The Court finds no error. First, the Court agrees with Defendant’s argument that Dr. 19 Anderson’s 2016 finding of total and permanent disability is a conclusory opinion that is 20 not binding on the ALJ. See Batson, 359 F.3d at 1195 (stating that the ALJ may permissibly 21 reject conclusory and brief medical opinions). The Court also finds the ALJ properly 22 concluded Dr. Anderson’s assessments were unsupported by the objective medical 23 evidence and inconsistent with the other opinion evidence. (R. at 26–27.) A lack of support 24 from objective medical evidence as well as inconsistencies with other evidence in the 25 record are both legitimate bases on which a treating source’s opinion can be discounted or 26 rejected. See 20 C.F.R. §§ 416.927(c)(3)–(4). When assigning little weight to Dr. 27 Anderson’s assessments, the ALJ specifically referenced the objective physical and 28 cognitive findings discussed above. (R. at 27.) For example, the ALJ reiterated that 1 Plaintiff’s cognitive testing scores were in the expected range for his age and his range of 2 motion, gait, and musculoskeletal strength were all normal. (Id.; see id. at 636, 711, 911– 3 15, 1087, 1145, 1153, 1210, 1254, 1451, 1477, 1785, 1829.) Thus, the ALJ adequately 4 explained her conclusion that the objective medical evidence did not support the extent of 5 physical and cognitive limitations opined by Dr. Anderson. 6 As for the other opinion evidence, although the ALJ did not list the specific 7 inconsistencies in the paragraph discussing Dr. Anderson’s assessments, the ALJ did note 8 these inconsistencies throughout the decision. In the preceding paragraphs, the ALJ 9 referenced multiple medical opinions by state agency consultants that were given “partial” 10 and “some” weight. (Id. at 26.) The opinions found that Plaintiff’s overall psychological 11 limitations were not severe enough to show that as Dr. Anderson had concluded, he would 12 be unable to consistently express himself or process verbal information on the job. (Id. at 13 81, 107; see id. at 1449.) The opinions also found that Plaintiff’s only conclusive physical 14 limitations were “mild difficulties in fine motor coordination” that did not prohibit him 15 from performing semiskilled work on a sustained basis. (Id. at 81, 107.) The opinions 16 generally concluded Plaintiff was still able to engage in regular work with minimal 17 functional limitations. (See id. at 107.) These conclusions are contrary to Dr. Anderson’s 18 assessments of complete disability and severe limitations. (See id. at 1334, 1450.) 19 Ultimately, the ALJ provided specific and legitimate reasons to assign little weight 20 to the assessments of Dr. Anderson by setting out the conflicting evidence, interpreting it, 21 and making findings. See Magallanes v. Bowmen, 881 F.2d 747, 751 (9th Cir. 1989). 22 2. Dr. Higgins’s Assessments 23 The ALJ also considered medical assessments from Dr. Higgins, Plaintiff’s 24 examining neuropsychologist. (R. at 27.) In 2016, Dr. Higgins opined that “from a 25 neurocognitive perspective,” Plaintiff would be unable to gain or maintain gainful 26 employment. (Id. at 576.) In 2017, Dr. Higgins further stated Plaintiff had severe 27 limitations to “understanding, remembering, and carrying out instructions; responding 28 appropriately to others; performing simple tasks; and in responding to customary work 1 pressures.” (Id. at 1486.) The ALJ assigned “little weight” to Dr. Higgins’s assessments. 2 (Id. at 27.) 3 The Court finds no error. As discussed above, a lack of support from objective 4 medical evidence in the record is a legitimate basis upon which an examining source’s 5 opinion can be discounted or rejected. Batson, 359 F.3d at 1195. When assigning little 6 weight to Dr. Higgins’s assessments, the ALJ specifically referenced Plaintiff’s normal 7 cognitive testing scores. (R. at 27.) For example, the ALJ pointed to his average to high- 8 average scores in attention, concentration, memory, and IQ. (Id. at 27; see id. at 578, 585– 9 86, 702.) The ALJ thus demonstrated that Dr. Higgins’s assessments on the severity of 10 Plaintiff’s cognitive limitations were inconsistent with the objective medical findings in 11 the record because the findings failed to demonstrate that Plaintiff was experiencing 12 difficulty understanding, remembering, and carrying out instructions. The ALJ also cited 13 instances in which Plaintiff exhibited “normal mood, affect, and behavior.” (Id. at 27, 549, 14 1268, 1717.) This “normal mood, affect, and behavior” was consistent from 2015–2017. 15 (See id.) The record also shows that Plaintiff was typically very friendly and cooperative 16 with physicians, and alert and oriented during his medical appointments. (See id.) The ALJ 17 thus demonstrated that Dr. Higgins’s assessments on Plaintiff’s inability to respond to 18 others and manage work pressures conflicted with the record’s objective medical findings. 19 The ALJ sufficiently explained her conclusion that the objective medical evidence 20 did not support the extent of cognitive limitations opined by Dr. Higgins and did not 21 support his conclusory finding that Plaintiff could not gain or maintain gainful 22 employment. As with the assessments of Dr. Anderson, the ALJ provided specific and 23 legitimate reasons to assign little weight to the assessments of Dr. Higgins by setting out 24 the conflicting medical evidence, interpreting it, and making findings. See Magallanes, 881 25 F.2d at 751. 26 3. State Agency Consultants’ Assessments 27 The ALJ finally considered medical assessments from state agency consultants 28 Sandra Battis, Ernest Griffith, Margaret Pollack, and Rosalia Pereyra. (R. at 26.) Plaintiff 1 argues the ALJ improperly relied on the opinions of these non-examining consultants who 2 merely reviewed his application at the initial and reconsideration levels and arbitrarily 3 found him not disabled. (Pl. Br. at 23–25.) The Court disagrees. The Ninth Circuit has held 4 that “[t]he opinions of non-treating or non-examining physicians may . . . serve as 5 substantial evidence when the opinions are consistent with independent clinical findings or 6 other evidence in the record.” Thomas, 278 F.3d at 957. Because the opinions of the state 7 agency consultants were consistent with other evidence in the record, specifically the 8 objective medical evidence, they could constitute substantial evidence supportive of the 9 ALJ’s nondisability finding in this case. 10 The assessments of Dr. Sandra Battis and Dr. Ernest Griffith, which opined that 11 Plaintiff could perform work at the medium exertional level, were afforded “partial weight” 12 because they were consistent with the objective medical findings in the record. 13 Specifically, that Plaintiff had normal gait, range of motion, musculoskeletal strength, and 14 bilateral and upper extremity strength. (Id. at 26; see id. at 636, 711, 911, 915, 1087, 1145, 15 1153, 1210, 1254.) Further, the assessments were consistent with the ALJ’s emphasis that 16 the record lacked evidence of joint swelling, stiffness, or inflammatory arthritis. (Id. at 26; 17 see id. at 23, 1834.) The assessment of Margaret Pollack, which opined that Plaintiff could 18 adequately understand, remember, and concentrate, was given “partial weight” because it 19 was consistent with Plaintiff’s average to high-average cognitive testing scores. (Id. at 26; 20 see id. at 578, 585–86, 702.) The assessment of Rosalia Pereyra, which opined that Plaintiff 21 could maintain fair concentration but may have difficulty with detailed tasks involving fine 22 motor coordination, was afforded “some weight” because it was consistent with Plaintiff’s 23 high attention and concentration testing scores but inconsistent with Plaintiff’s normal 24 finger to nose and heel to shin testing scores. (Id. at 26; see id. at 702, 1210.) The Court 25 finds no error here and will not remand on this basis. 26 IV. CONCLUSION 27 Accordingly, 28 IT IS ORDERED affirming the April 15, 2019 decision of the ALJ (R. at 14–31), as upheld by the Appeals Council (R. at 1-5). 2 IT IS FINALLY ORDERED directing the Clerk of Court to enter final judgment 3 || consistent with this Order and close this case. 4 Dated this 2nd day of March, 2021. 5 WM Chae T. Hburde Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15-