(SS) Ybarra v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 MICHAEL ANTHONY YBARRA, ) Case No.: 1:18-cv-00924-BAM 12 ) Plaintiff, ) ORDER REGARDING PLAINTIFF’S 13 v. ) SOCIAL SECURITY COMPLAINT ) 14 ANDREW M. SAUL,1 Commissioner of ) Social Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Michael Anthony Ybarra (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying his application for disability insurance 21 benefits under Title II of the Social Security Act and supplemental security income under Title XVI of 22 the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were 23 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.2 24 25 26 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of 27 Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this suit. 2 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including 28 entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 6, 8.) 1 Having considered the briefing and record in this matter, the Court finds the decision of the 2 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole and 3 based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to deny 4 benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed an application for supplemental security income on May 20, 2014, and an 7 application for disability insurance benefits on July 8, 2014. AR 265-66, 267-68.3 Plaintiff alleged that 8 he became disabled on January 1, 2013, due to sciatic nerve, high blood pressure, fatty liver, sleep apnea, 9 and arthritis in his pelvis and right knee. AR 351. Plaintiff’s application was denied initially and on 10 reconsideration. AR 173-76, 183-88. Subsequently, Plaintiff requested a hearing before an ALJ. ALJ 11 Matilda Surh held a hearing on July 12, 2017, and issued an order denying benefits on July 19, 2017. 12 AR 16-37, 46-82. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, 13 making the ALJ’s decision the Commissioner’s final decision. AR 1-5. This appeal followed. 14 Hearing Testimony 15 The ALJ held a hearing on July 12, 2017, in Fresno California. Plaintiff appeared with his 16 attorney, Jeffrey Milam. Impartial Vocational Expert (“VE”) Jose Chaparro also appeared. AR 48. 17 In response to questioning by the ALJ, Plaintiff testified that he was 49 years of age and lived 18 with his girlfriend and her family, which included two children ages 9 and 5. Plaintiff completed high 19 school through the ninth grade and did not finish tenth grade. He does not have any vocational 20 certificates and was not currently working. AR 50- 51. 21 Plaintiff reported that he opened a tattoo shop in 2012 because he could no longer work 22 construction. He owned the shop, but was not a tattoo artist. Some of the artists worked for Plaintiff 23 and some just rented a chair. Prior to that, Plaintiff was a service tech, greasing, fueling, moving and 24 fixing construction equipment. In that job, he had to lift and carry 100 pounds, and was mainly on his 25 feet, bending and climbing. Plaintiff did similar work in 2002, but also worked as a laborer picking up 26 piles of concrete and lifting over 100 pounds. AR 51-55. 27 28 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 When asked about chores around the house, Plaintiff testified that his mother-in-law does the 2 laundry. Plaintiff does light cleanup, helps feed the kids and watches the kids at night because his 3 girlfriend works. Plaintiff also drives the kids to school and picks them up. AR 55-56. 4 When asked about his abilities, Plaintiff testified that he can walk for about a half hour before 5 he needs to sit down because of pain from his back to his legs. His feet will go numb after he stands for 6 about five minutes. He is able to walk a bit longer than he can stand. He can lift about 20 pounds. 7 Plaintiff was on crutches because he sprained his left ankle due to bad balance. He might have torn 8 ligaments and was x-rayed at the hospital. He can still bend at the waist, but it is painful. When he 9 drives, his hands cramp after about half of an hour and his knee burns after an hour. He also constantly 10 has pain in his pelvis because he broke it in a car wreck. AR 56-59. Plaintiff only takes over-the-counter 11 Tylenol for his pain. AR 61. 12 When asked about a typical day, Plaintiff reported that he can shower or bathe and get dressed 13 without assistance. When he wakes up in the morning, he takes the dog out, feeds and waters the dog 14 and waters the tress and grass outside. He will sit outside and then go back inside and eat, watch TV 15 and wait to pick up the kids from school. After he picks up the kids, he will go home and rest, and then 16 pick up the other kid. He will feed the kids and then watch TV and lay around to ease the pain. When 17 he sits down, he elevates his feet. He also helps out his mother-in-law who is disabled. AR 59-61. 18 In response to questioning from his attorney, Plaintiff testified that he has to lie down at some 19 point during most days. He probably lies down for about three hours total during an 8-hour day. He 20 changes positions because of discomfort every 10 minutes. He could lift 20 pounds for less than one- 21 third of the day. He has pain down his lower back to his feet after standing for a few minutes. Plaintiff 22 also reported that he has some nasal sinus issues and had polyps removed from his nose. He would have 23 to blow his nose about 30 times per day. AR 63-69. 24 Plaintiff also confirmed that he went to a Social Security doctor about depression. His doctor 25 also prescribed his medicine for it. Plaintiff agreed with the Social Security doctor who said that he 26 might have some problems with complex things, thinking or memory. He was in special classes and 27 had a tutor throughout elementary school, but attended regular classes in middle school and high school. 28 1 Plaintiff testified that once past first or second grade, he had trouble with reading and spelling. AR 69- 2 71. 3 Following Plaintiff’s testimony, the ALJ elicited testimony from VE Jose Chaparro. The VE 4 classified Plaintiff’s past work as tattoo shop manager, construction worker II and maintenance 5 mechanic. AR 74. The ALJ also asked the VE hypothetical questions. For the first hypothetical, the 6 ALJ asked the VE to assume an individual with the same age, education and work experience as Plaintiff 7 who was capable of a range of medium exertional work with the ability to lift 50 pounds occasionally, 8 25 pounds frequently, stand, walk, and/or sit for six out of eight hours with frequent climbing of ramps 9 or stairs, but only occasionally ladders, ropes or scaffolds, and frequent stooping, kneeling, crouching 10 and crawling. The VE testified that the tattoo artist manager position would be available, but not as 11 actually performed, and the maintenance mechanic would be available, but only as customarily 12 performed. AR 74-75. 13 For the second hypothetical, if the ALJ reduced the exertional level to light with all other 14 limitations remaining the same, the VE testified that the tattoo shop manager position would be 15 available, but not as actually performed. The VE also testified that there would be other jobs available 16 such as cashier II, sales attendant, and housekeeping cleaner. AR 75-76. 17 For the third hypothetical, the ALJ asked the VE to add that the individual would need to sit at 18 regular intervals, such as every half hour, and then stand or walk. The VE testified that the cashier II 19 position would be available but eroded by approximately 90 percent. The VE also testified that there 20 would be other jobs available, such as ticket seller or sub assembler. AR 77-79. 21 For the fourth hypothetical, the ALJ asked the VE to add that the individual would additionally 22 need unscheduled, non-working breaks of 20 to 30 minutes two or three times per day to elevate the 23 legs. The VE testified that there would be no work at all for this individual. AR 79. 24 The VE confirmed that his testimony was based on his years of training, education and 25 experience, along with his access to methodologies and professional resources, such as the DOT. AR 26 79. 27 /// 28 /// 1 Medical Record 2 The relevant medical record was reviewed by the Court, and will be referenced below as 3 necessary to this Court’s decision. 4 The ALJ’s Decision 5 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 6 determined that Plaintiff was not disabled under the Social Security Act. AR 19-31. Specifically, the 7 ALJ found that Plaintiff had not engaged in any substantial gainful activity since January 1, 2013, his 8 alleged onset date. AR 21. The ALJ identified lumbar degenerative disc disease and obesity as severe 9 impairments. AR 21-24. The ALJ determined that the severity of Plaintiff’s impairments did not meet 10 or equal any of the listed impairments. AR 24-25. Based on a review of the entire record, the ALJ 11 determined that Plaintiff retained the residual functional capacity (“RFC”) to perform medium work, 12 including lifting and carrying 50 pounds occasionally and 25 pounds frequently, standing or walking for 13 six hours, and sitting for six hours in an eight-hour workday with the following restrictions: frequently 14 stooping, kneeling, crouching, crawling and climbing stairs and ramps and occasionally climbing 15 ladders, ropes and scaffolds. AR 25-30. With this RFC, the ALJ found that Plaintiff could perform his 16 past relevant work as a maintenance mechanic. The ALJ therefore concluded that Plaintiff was not 17 disabled under the Social Security Act. AR 30. 18 SCOPE OF REVIEW 19 Congress has provided a limited scope of judicial review of the Commissioner’s decision to deny 20 benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court 21 must determine whether the decision of the Commissioner is supported by substantial evidence. 42 22 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402 23 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 24 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be considered, 26 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 27 conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making 28 findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s determination that the claimant 2 is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner’s 3 findings are supported by substantial evidence. See Sanchez v. Sec’y of Health and Human Servs., 812 4 F.2d 509, 510 (9th Cir. 1987). 5 REVIEW 6 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 7 substantial gainful activity due to a medically determinable physical or mental impairment which has 8 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 9 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 10 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 11 her age, education, and work experience, engage in any other kind of substantial gainful work which 12 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 13 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 14 Plaintiff contends that the ALJ erred by (1) finding his mental health impairments nonsevere; 15 and (2) improperly rejecting the opinions of treating and examining sources regarding his physical 16 limitations. 17 DISCUSSION4 18 A. Mental Impairment 19 Plaintiff contends that the ALJ erred in failing to find his mental impairments severe at step two 20 of the sequential evaluation, improperly evaluated the medical opinion evidence and failed to include 21 Plaintiff’s mental limitations in the RFC finding at step four. (Doc. No. 14 at 7-12.) 22 At step two of the five-step analysis, the ALJ is required to determine whether a plaintiff has a 23 “severe” medical impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). 24 Once those impairments have been ascertained, the ALJ must interpret the functional limitations 25 imposed by the impairments into an RFC assessment. 20 C.F.R. §§ 404.1520(e), 416.945; Palomares v. 26 27 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to 28 be construed that the Court did not consider the argument or brief. 1 Astrue, 887 F.Supp.2d 906, 919 (N.D. Cal. 2012). The RFC is then used to pose hypothetical questions 2 to a vocational expert to determine whether the plaintiff can perform work that exists in significant 3 numbers in the national economy or past relevant work. Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th 4 Cir. 2014). 5 A failure to include an impairment in the analysis at step two is only harmful error if the ALJ 6 fails to consider the functional limitations that flow from that impairment at later steps in the sequential 7 evaluation. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“The decision reflects that the ALJ 8 considered any limitations posed by the bursitis at Step 4. As such, any error that the ALJ made in failing 9 to include the bursitis at Step 2 was harmless.”). In creating the RFC, an ALJ need only consider 10 limitations that are supported by objective evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 11 1217 (9th Cir. 2005) (“We will affirm the ALJ’s determination of Bayliss’s RFC if the ALJ applied the 12 proper legal standard and his decision is supported by substantial evidence. In making his RFC 13 determination, the ALJ took into account those limitations for which there was record support that did 14 not depend on Bayliss’s subjective complaints. Preparing a function-by-function analysis for medical 15 conditions or impairments that the ALJ found neither credible nor supported by the record is 16 unnecessary”). 17 Plaintiff first asserts that the ALJ erred by failing to acknowledge the opinion of examining 18 physician, Dr. Julian Smith. On March 21, 2009, Dr. Smith conducted a comprehensive psychiatric 19 evaluation and determined that Plaintiff did not appear to be capable of managing his own funds due to 20 deficits in intellectual functioning, but did have the ability to perform simple and repetitive tasks. Dr. 21 Smith also opined that Plaintiff seemed capable of accepting instruction and interacting with others in 22 the workplace, but may require some special or additional instructions as they pertain to work activities. 23 Dr. Smith noted that Plaintiff required a fair amount of assistance with activities of daily living, but may 24 be able to maintain regular work attendance though this would likely need to be assisted. AR 433-34. 25 Plaintiff correctly notes that the ALJ did not mention this opinion in her assessment of Plaintiff’s 26 mental impairments. However, as the Commissioner points out, this opinion predates the alleged onset 27 of disability in 2013. “Medical opinions that predate the alleged onset of disability are of limited 28 relevance.” Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.2008); Burkhart v. 1 Bowen, 856 F.2d 1335, 1340 n. 1 (9th Cir.1988) (concluding ALJ correctly rejected medical evidence 2 because it predated the relevant time period); Ingham v. Astrue, No. SA CV 09–931–SH, 2010 WL 3 1875651, at *3 (C.D. Cal. May 10, 2010) (concluding “medical opinions of any physician, treating or 4 examining, which predate the alleged onset of disability are not considered substantial evidence”) 5 (citation omitted). The ALJ therefore did not err in failing to mention or consider Dr. Smith’s 2009 6 opinion. Further, the ALJ considered more recent evidence from consultative examiner, Dr. Ekram 7 Michiel, who examined Plaintiff in April 2013 and December 2014. AR 22. “The Ninth Circuit has 8 found that medical reports that are most recent are more highly probative than those which were rendered 9 at some earlier time.” Barraza v. Colvin, No. 2:13-CV-0430 JAM DAD, 2014 WL 651909, at *5 n. 3 10 (E.D. Cal. Feb. 19, 2014). 11 Plaintiff next argues that the ALJ erred by discounting the opinion of Dr. Michiel, who opined 12 in both April 2013 and December 2014 that Plaintiff was able to maintain attention and concentration 13 to carry out simple repetitive job instructions, relate and interact with coworkers, supervisors and the 14 general public, was unable to carry out an extensive variety of technical and/or complex instructions, 15 had no restrictions on activities of daily living and was able to handle his own funds. AR 481-84, 535- 16 38. In this instance, the ALJ provided a summary of Dr. Michiel’s December 2014 evaluation findings 17 and ultimately assigned “little weight” to Dr. Michiel’s opinions from 2014 and 2013. AR 22-23. The 18 ALJ reasoned as follows: 19 On December 19, 2014, after completion of a psychiatric evaluation, consultative psychiatrist Dr. Michiel opined that the claimant could maintain attention and 20 concentration to carry-out simple job instructions. He could relate and interact with coworkers, supervisors, and the public. He was unable to carry-out an extensive variety of 21 technical or complex instructions. He was able to handle his own funds (Exhibit 14F, p. 22 5.) Dr. Michiel also completed a psychiatric evaluation of the claimant on April 5, 2013 and opined that the claimant could maintain attention and concentration to carry-out simple 23 job instructions. He could relate and interact with coworkers, supervisors, and the public. He was unable to carry-out an extensive variety of technical or complex instructions. 24 (Exhibit 10F, p. 7). This opinion was given little weight because it was inconsistent with 25 the medical record and the claimant’s lack of mental health treatment. 26 AR 22-23. Plaintiff asserts that the ALJ did not articulate specific and legitimate reasons for rejecting 27 the opinion evidence of Dr. Michiel. The Court agrees. 28 1 In evaluating the opinion of an examining physician, the Commissioner must provide “clear and 2 convincing” reasons for rejecting the uncontradicted opinion of an examining physician. Lester v. 3 Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if contradicted, the opinion of an examining physician 4 can only be rejected for “specific and legitimate reasons” that are supported by substantial evidence in 5 the record. Id. at 830–31. The opinion of a nonexamining physician alone is not substantial evidence 6 that justifies the rejection of the opinion of an examining physician. Id. at 831. 7 As indicated above, the ALJ first discounted Dr. Michiel’s assessment based on Plaintiff’s 8 apparent failure to obtain mental health treatment. An ALJ may properly reject an examining 9 physician’s opinion on this basis. See King v. Comm'r of Soc. Sec. Admin., 475 Fed.App’x 209, 210 (9th 10 Cir. 2012) (holding an ALJ’s rejection of an examining physician’s opinion because of “the absence of 11 mental health treatment records” was a clear and convincing reason). In this case, however, Plaintiff’s 12 medical records reflect that he was, in fact, treated for “chronic depression” by his physician from 2013 13 through 2017, and was prescribed medication for his condition, which appears to have been increased. 14 AR 498, 541, 542, 547, 559. While these records are admittedly sparse, in the context of mental health 15 treatment, the Ninth Circuit has recognized “the fact that [a] claimant may be one of millions of people 16 who did not seek treatment for a mental disorder until late in the day is not a substantial basis” on which 17 to conclude a physician’s assessment is inaccurate. Van Nguyen v. Chater, 100 F.3d 1462, 1465 (9th 18 Cir. 1996) (noting “it is common knowledge that depression is one of the most underreported illnesses 19 in the country because those afflicted often do not recognize that their condition reflects a potentially 20 serious mental illness”). Indeed, the Ninth Circuit has “particularly criticized the use of a lack of 21 treatment to reject mental complaints both because mental illness is notoriously underreported and 22 because ‘it is a questionable practice to chastise one with a mental impairment for the exercise of poor 23 judgment in seeking rehabilitation.’” Regennitter v. Comm'r Soc. Sec. Admin., 166 F. 3d 1294, 1299- 24 1300 (9th Cir. 1999) (citations omitted). Thus, the ALJ’s decision to discount Dr. Michiel’s assessment 25 based on Plaintiff’s lack of mental health treatment records was not a specific and legitimate reason 26 supported by substantial evidence. 27 The ALJ also discounted Dr. Michiel’s assessment based on an assertion that it was inconsistent 28 with the medical record. AR 23. This also is not a specific and legitimate reason supported by 1 substantial evidence. The ALJ’s discussion of Plaintiff’s mental health treatment records was limited 2 to a statement that Plaintiff was prescribed Prozac in 2017 for his symptoms of depression and anxiety. 3 AR 22. The ALJ does not address any other treatment records or explain how the cited record failed to 4 support Dr. Michiel’s opinion regarding Plaintiff’s mental impairment. 5 Additionally, Plaintiff claims that for the same reasons, the ALJ erred in rejecting the opinions 6 of the State agency consultants, Drs. Brady Dalton and M. Vea. (Doc. No. 10.) In assigning “little 7 weight” to these opinions, the ALJ reasoned as follows: 8 On January 14, 2015, after a review of the medical record, State agency medical consultant psychologist Brady Dalton, Psy.D. opined that the claimant was able to understand, 9 remember and carry-out simple instructions. He had sufficient ability to complete simple instructions, follow directions without additional assistance, and maintain adequate 10 attention, concentration, persistence, and pace as needed to complete a full workday and 11 workweek. He was able to interact with supervisors, coworker, and the public. He was able to adapt to the demands of unskilled work (Exhibit 5A, p. 13). On April 16, 2015, 12 after a review of the medical record, State agency medical consultant psychiatrist M. Vea, M.D. opined that the claimant was able to understand, remember, and carry-out simple 13 instructions. He had sufficient ability to complete simple instructions, follow directions 14 without additional assistance, and maintain adequate attention, concentration, persistence, and pace as needed to complete a full workday and workweek. He was able to interact 15 with supervisors, coworker, and the public. He was able to adapt to the demands of unskilled work (Exhibit 9A, p. 8). These opinions were given little weight because they 16 were inconsistent with the medical record, examination findings, and the overall evidence 17 of record. Upon examination, the claimants’ speech was normal. His mood was depressed and his affect was intense and tearful. He denied suicidal or homicidal ideation. His 18 thought process was goal directed. His thought content was not delusional. He denied hallucinations and illusions, except at night he could see shadows. He was able to do digit 19 span five out of five forward and four backwards correctly. He was able to recall three out of three times immediately and two after five minutes. He appeared able to do simple math 20 calculations. Overall, there was no evidence that the claimant’s mental impairments caused 21 more than minimal impact upon basic work activities. 22 AR 23. 23 For the same reasons discussed above in connection with Dr. Michiel, the ALJ’s decision to 24 discount these opinions based on the medical record is not adequate. Further, although an ALJ may 25 properly discount a physician’s opinion that is not supported by examination findings, Thomas v. 26 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002), the ALJ ignores examination findings supporting Plaintiff’s 27 limitation to simple instructions and unskilled work. For instance, the ALJ omits that on examination 28 in December 2014, Plaintiff had a “below average” fund of knowledge, he was unable to recall what he 1 ate at his last meal and his remote memory showed a slight impairment. AR 536-37. Additionally, in 2 April 2013, Plaintiff’s mood was depressed and his affect was restricted and sad. Plaintiff also admitted 3 to paranoid ideation, along with auditory and visual hallucination, he has some impairment in his remote 4 memory and his fund of knowledge was average. AR 482-83. 5 The Court therefore finds that the ALJ erred at step of the sequential evaluation by finding 6 Plaintiff’s mental impairment not severe. Nonetheless, the Court finds that any alleged error was 7 harmless because it was inconsequential to the ultimate disability determination. See Tommasetti v. 8 Astrue, 533 F.3d a1035, 1038 (9th Cir. 2008) (holding error is harmless if it is “inconsequential to the 9 ultimate nondisability determination”). In “each case [courts] look at the record as a whole to determine 10 whether the error alters the outcome of the case.” Molina v. Astrue, 674 F.3d at 1115 (internal citations 11 and quotation omitted). 12 According to the opinions of Dr. Michiel and the State agency physicians, Plaintiff was limited 13 to simple, repetitive, unskilled work.5 In response to questioning from the ALJ, the VE testified that 14 there was other unskilled, light work in the national economy that Plaintiff could perform, including 15 casher II (DOT code 211.462-010) with 847,000 jobs nationally, sales attendant (DOT code 299.677- 16 010) with 214,000 jobs nationally, and housekeeping cleaner (DOT code 323.687-014) with 17 approximately 134,000 jobs nationally. AR 75-76. Of these representative jobs, housekeeping cleaner 18 is consistent with a limitation to simple, repetitive unskilled work because it has an SVP of 2 and requires 19 only Level 1 reasoning. See Cleaner, Housekeeping, DICOT 323.687-014, 1991 WL 672783; Lara v. 20 Astrue, 305 Fed.App’x. 324, 326 (9th Cir. 2008) (holding that limitation to “simple, repetitive tasks” 21 does not conflict with “Reasoning Level 1 and 2 jobs”); Conrad v. Berryhill., No. CV 16-7987-JPR, 22 2018 WL 437460, at *7 (C.D. Cal. Jan. 16, 2018) (finding limitation to simple instructions does not 23 conflict with level-one-reasoning jobs); Xiong v. Comm’r Soc. Sec. Admin., No. 1:09-cv-00398-SMS, 24 25 5 In his reply, Plaintiff contends that it is mere speculation as to these RFC limitations because Dr. Dalton identified 26 certain moderate limitations. (Doc. No. 19 at 4.) Although Dr. Dalton identified certain moderate limitations, he explained that these limitations equated with Plaintiff’s ability to understand, remember and carry out simple instructions and that 27 Plaintiff had a sufficient ability to complete simple instructions, to follow directions without additional assistance, and to maintain adequate attention, concentration, persistence and pace as needed to complete a full work day/work week. AR 28 112. As a result, Dr. Dalton’s opinion is consistent with an RFC for simple work. 1 2010 WL 2902508, *6 (E.D. Cal. July 22, 2010) (“Courts within the Ninth Circuit have consistently 2 held that a limitation requiring simple or routine instructions encompasses the reasoning levels of one 3 and two”) (collecting cases); SSR 00-4p (“[U]nskilled work corresponds to an SVP of 1-2.”). The VE’s 4 testimony that there were approximately 134,000 housekeeping cleaner jobs in the national economy is 5 a significant number. Gutierrez v. Colvin, 740 F.3d 519, 527-29 (9th Cir. 2014) (holding that 25,000 6 national jobs constituted a significant number). Because the VE’s testimony established that there were 7 other jobs that Plaintiff could perform if he were reduced to simple, repetitive unskilled work, the ALJ’s 8 conclusion that Plaintiff did not have a severe mental impairment was inconsequential to the non- 9 disability determination. See Tommasetti, 533 F.3d at 1038; see also 20 C.F.R. § 404.1520(a)(4)(v), (g) 10 (claimant not disabled if he can perform a significant number of jobs). 11 B. Physical Impairment 12 Plaintiff argues that the ALJ erred in weighing the medical opinion evidence concerning his 13 physical limitations by according deference to the opinions of the State agency physicians while 14 rejecting the opinions of Dr. Steven Stoltz, a consultative examiner, and Dr. Zakharyan, his treating 15 physician. 16 Dr. Stoltz 17 As an initial matter, Plaintiff contends that the ALJ erred by failing to acknowledge Dr. Stoltz’s 18 opinion rendered in 2009, which was before Plaintiff’s alleged onset date. (Doc. No. 14 at 12.) As 19 discussed, an examining physician’s medical opinion which predates the alleged onset of disability is 20 not considered substantial evidence and is of limited relevance. Carmickle., 533 F.3d at 1165; Burkhart, 21 856 F.2d at 1340 n. 1. The ALJ therefore did not err in failing to weigh Dr. Stoltz’s 2009 opinion. 22 Further, the ALJ considered more recent, probative evidence from Dr. Stoltz, who conducted a second 23 consultative examination of Plaintiff in April 2013. AR 22, 472-77; Barraza 2014 WL 651909, at *5 24 n. 3. 25 Plaintiff next argues that the ALJ erred in discounting Dr. Stoltz’s 2013 opinion. According to 26 the record, Dr. Stoltz completed a second consultative evaluation of Plaintiff on April 2, 2013. AR 472- 27 77. Plaintiff complained of chronic pelvic pain and right knee pain. AR 472. On physical examination, 28 Plaintiff’s neck range of motion was within normal limits, he had no back pain with knee extension in 1 the seated position, negative straight leg raising in the supine position, and no spinal tenderness on 2 standing. Dr. Stoltz noted that Plaintiff showed poor effort with range of motion testing of his back and 3 was only able to achieve 45 degrees of forward flexion complaining of deep pelvic pain, but his range 4 of motion in his upper and lower extremities, including his hips and knees was within normal limits. 5 Although Plaintiff had fairly significant anterior crepitation with flexion and extension of his knee, he 6 had no restricted range of motion and no effusion. He had some mild-to-moderate tinea pedis and pes 7 planus bilaterally. He also had good tone bilaterally with good active motion, strength of 5/5 in all 8 extremities and normal reflexes. His gait was slow, but with no focal or asymmetrical findings. AR 9 474-76. Based on this evaluation, Dr. Stoltz opined that Plaintiff could stand and walk up to four hours 10 in an eight-hour day, sit without restriction and occasionally climb, balance, stoop, kneel and crouch. 11 He could lift and carry 10 pounds occasionally, but had no manipulative limitations. He also had no 12 visual, communicative or workplace environmental limitations. AR 476-77. The ALJ assigned this 13 opinion little weight. AR 29. 14 Plaintiff now asserts that the ALJ failed to provide specific and legitimate reasons for rejecting 15 the opinion of Dr. Stoltz. The opinion of an examining doctor, even if contradicted by another doctor, 16 can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the 17 record. Lester, 81 F.3d at 830–31. In this instance, the Court finds that the ALJ provided specific and 18 legitimate reasons to discount Dr. Stoltz’s opinion. 19 First, the ALJ discounted Dr. Stoltz’s limitations because they “were overly restrictive given 20 normal examination findings.” AR 29. An ALJ may properly reject a medical opinion that is 21 inadequately supported by medical findings. See Thomas, 278 F.3d at 957 (“The ALJ need not accept 22 the opinion of any physician, including a treating physician, if that opinion is ... inadequately supported 23 by clinical findings.”); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992) (holding that an ALJ 24 may discount the conclusory opinion of an examining or treating physician if the opinion is unsupported 25 by clinical findings). As the ALJ noted, Plaintiff’s straight-leg raising was negative, he showed poor 26 effort with range of motion testing and was only able to achieve 45 degrees of forward flexion, but his 27 range of motion was otherwise normal, and his motor strength was 5/5 in all extremities. He also had 28 1 no restricted range of motion of his right knee and no effusion. AR 27, 474-76. This was a specific and 2 legitimate reason to reject Dr. Stoltz’s opinion. 3 Second, the ALJ discounted Dr. Stoltz’s limitations because they were inconsistent with 4 Plaintiff’s treatment history. AR 29. An ALJ may reject the opinions of a physician where the opinions 5 are inconsistent with the overall record. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 602- 6 03 (9th Cir. 1999). As the ALJ correctly noted, the medical record showed minimal treatment for 7 Plaintiff’s lumbar degenerative disc disease and right knee injury from his alleged 2013 onset date 8 through 2017.6 AR 26, 27, 497-502, 541-42. Additionally, an x-ray of Plaintiff’s right knee showed 9 minimal degenerative changes, and a lumbar x-ray showed primarily degenerative changes with normal 10 sacroiliac joints and no soft tissue abnormality. AR 26, 485, 556. Further, Plaintiff admitted to treating 11 only with Tylenol for his back pain. AR 27, 61. Thus, this also was a specific and legitimate reasons 12 supported by substantial evidence to discount Dr. Stoltz’s opinion. 13 For these reasons, the Court finds that the ALJ did not err in his evaluation of Dr. Stoltz’s 14 opinions. 15 Dr. Zakharyan 16 Plaintiff also argues that the ALJ failed to provide specific and legitimate reasons to discount 17 the opinion of his treating physician, Dr. Sergei Zakharyan, rendered in 2017. (Doc. No. 14 at 13.) On 18 June 14, 2017, Dr. Zakharyan completed a one-page questionnaire. In that questionnaire, Dr. Zakharyan 19 opined that Plaintiff could lift and carry about 15 pounds for 2-3 hours over an 8-hour workday, could 20 sit for one hour at a time, stand/walk15-30 minutes at one time, sit for six hours over an 8-hour period 21 and stand/or walk for one hour over an 8-hour period, and lie down/elevate for the remaining hour. Dr. 22 Zakharyan indicated that Plaintiff had been disabled “since the date he applied for disability?” AR 563. 23 As a general rule, more weight should be given to the opinion of a treating source than to the 24 opinions of doctors who do not treat the claimant. Lester, 81 F.3d at 830. Where, as here, the treating 25 26 6 These treatment records also are nearly illegible. It is Plaintiff’s burden to present evidence of a disability. See 27 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”); 20 C.F.R. § 28 404.1512(a) (“[Y]ou have to prove to us that you are … disabled….”). 1 physician’s opinion is contradicted by another doctor, the Commissioner must provide “specific and 2 legitimate” reasons supported by substantial evidence in the record to reject this opinion. Id. 3 Here, the ALJ assigned little weight to Dr. Zakharyan’s opinion because it was inconsistent with 4 the medical record and overall evidence of record. AR 29. An ALJ may properly reject a treating 5 physician’s opinion that is inconsistent with the overall record. Morgan, 169 F.3d at 602-03. In this 6 instance, the ALJ cited the relatively normal findings on examination by Dr. Stoltz and appropriately 7 noted throughout his decision that the relevant medical treatment record was sparse. AR 28, 29. 8 Moreover, it was appropriate for the ALJ to reject what essentially amounted to a “check-off” report 9 that did not contain any explanation or basis for Dr. Zakharyan’s opinion. See Molina, 674 F.3d at 1111- 10 12 (holding that an ALJ may reject “check-off reports that [do] not contain any explanation of the bases 11 of their conclusions”), quoting Crane v. Shalala, 76 F.3d 251, 253 (9 t h Cir. 1996); Thomas, 278 F.3d 12 at 957. The Court therefore finds that the ALJ did not err in his evaluation of Dr. Zakharyan’s conclusory 13 opinion. 14 In addition to the above, the ALJ also appropriately relied on the State agency physicians’ 15 opinions in discounting the limitations identified by Drs. Stoltz and Zakharyan. AR 29-30. On 16 September 29, 2014, State agency consultant Dr. R. Betcher opined that Plaintiff could lift and carry 50 17 pounds occasionally, 25 pounds frequently, could stand or walk about 6 hours in an 8-hour workday, 18 could sit about 6 hours in an 8-hour workday, could frequently climb ramps/stairs, stoop, kneel, crouch 19 and crawl and could occasionally climb ladders/ropes/scaffolds. He did not have any manipulative, 20 visual, communicative or environmental limitations. AR 110-11. On May 4, 2015, State agency 21 consultant Dr. H. Han similarly opined that Plaintiff could lift and carry 50 pounds occasionally, 25 22 pounds frequently, could stand and walk about 6 hours in an 8-hour workday and sit about 6 hours in an 23 8-hour workday. He could frequently climb ramps/stairs, stoop, kneel, crouch and crawl and could 24 occasionally climb ladders/ropes/scaffolds. He had no manipulative, visual, communicative or 25 environmental limitations. AR 143-44. The ALJ assigned these opinions “substantial weight” because 26 they were consistent with the medical record and overall evidence of record. AR 30. The opinions of 27 non-treating or non-examining physicians may also serve as substantial evidence when the opinions are 28 consistent with independent clinical findings or other evidence in the record. Thomas, 278 F.3d at 957. 1 Here, the opinions of Drs. Betcher and Han were consistent with evidence in the record relative to 2 Plaintiff’s essentially normal objective findings on examination, along with the x-rays of his knee and 3 lumbar spine, minimal treatment and use of over-the-counter pain medication. 4 CONCLUSION 5 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 6 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 7 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 8 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 9 Commissioner of Social Security, and against Plaintiff Michael Anthony Ybarra. 10 11 IT IS SO ORDERED. 12 Dated: September 27, 2019 /s/ Barbara A. McAuliffe _ 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28