(SS) Narvaiz v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA DIANA NARVAIZ, No. 1:18-cv-01591-GSA 12 Plaintiff, 13 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF 14 ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY Security, AND AGAINST PLAINTIFF 15 16 Defendant. 17 18 I. Introduction 19 Plaintiff Maria Diana Narvaiz (“Plaintiff”) seeks judicial review of the final decision of 20 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application 21 for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is 22 currently before the Court on the parties’ briefs which were submitted without oral argument to 23 the Honorable Gary S. Austin, United States Magistrate Judge.1 See Docs. 15, 20 and 21. Having 24 reviewed the record as a whole, the Court finds that the ALJ’s decision is supported by substantial 25 evidence and applicable law. Accordingly, Plaintiff’s appeal is denied. 26 /// 27 28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 9 and 11. 1 II. Procedural Background 2 On December 30, 2013, Plaintiff filed an application for supplemental security income 3 alleging disability beginning February 3, 2013. AR 32. The Commissioner denied the 4 application initially on April 9, 2014, and following reconsideration on October 9, 2014. AR 32. 5 On November 6, 2014, Plaintiff filed a request for a hearing. AR 32. Administrative Law 6 Judge Sharon L. Madsen presided over an administrative hearing on August 11, 2016. AR 46-71. 7 Plaintiff appeared and was represented by an attorney. AR 46. On November 9, 2016, the ALJ 8 denied Plaintiff’s application. AR 32-41. 9 The Appeals Council denied review on February 1, 2018. AR 7-9. On November 19, 10 2018, Plaintiff filed a complaint in this Court. Doc. 1. 11 III. Factual Background 12 A. Plaintiff’s Allegations 13 1. Hearing Testimony 14 Plaintiff (born June 1, 1967) lived with her son and his family. AR 50. She was able to 15 perform her own personal care, shop, help out with cleaning, cook and do dishes. AR 52. She 16 assisted in the care of her 19-month-old twin grandchildren. AR 52. Plaintiff did not drive and 17 relied on family members for rides. AR 51. 18 Plaintiff had a GED and completed some college courses. AR 51. Her prior work 19 included basic care of disabled patients, including bathing, feeding and laundry; basic 20 housekeeping and breakfast service at a local inn; and, part-time work in a minimart. AR 53-54. 21 Plaintiff described constant cramping and aching in her neck with pain radiating to her left 22 arm. AR 55. Her symptoms were worsening with age. AR 64. Her left arm was completely 23 numb. AR 55. Sitting was uncomfortable. AR 56. She was most comfortable reclining with 24 support under her neck and her feet elevated. AR 56. Plaintiff had developed arthritis in her 25 shoulder, which she described as feeling like burns and shocks. AR 57. Walking caused back 26 pain. AR 58. Although her doctor had recommended stretching, Plaintiff did not think she could 27 do that. AR 58. She depended on Baclofen (a muscle relaxer), Norco (pain reliever) and 28 /// 1 Meloxicam (for arthritis) as well as nonprescription aspercreme. AR 58-59. Her blood pressure 2 was stable with medication. AR 59. 3 Plaintiff could sit for twenty to thirty minutes. AR 60. She could walk to a store that was 4 about a half block away. AR 60. She could carry a gallon of milk with her right arm but not with 5 her left. AR 59. Raising her left arm over her head was painful. AR 61. Plaintiff had difficulty 6 bending over. AR 60. 7 Since the 2015 murder of her youngest son, Plaintiff experienced depression and anxiety. 8 AR 62. However, she had recently found it easier to sleep and did not need medication as much. 9 AR 63. 10 2. Pain Questionnaire 11 In March 2014, Plaintiff completed a pain questionnaire. AR 221-24. Plaintiff reported 12 that she had experienced pain in her neck, shoulders, upper back and upper extremities since 13 April 1986. AR 221. Rest usually relieved the pain in 30 to 45 minutes. AR 221. Plaintiff used 14 two prescription drugs, Meloxicam and Tramadol, which relieved her pain in 40 to 60 minutes. 15 AR 221. Side effects included drowsiness, dry mouth, diarrhea and sweating. AR 223. Warm 16 packs were also helpful. AR 223. 17 Plaintiff was able to run errands without assistance. AR 224. She could walk four to five 18 blocks, stand one and half to two hours, and sit for one hour at a time. AR 224. 19 B. Medical Records 20 From July 2013 to July 2016, Plaintiff received regular medical care from Debra Martin, 21 FNP, at Family Healthcare Network.2 AR 245-67, 269-71, 282-293, 307-12, 335-43, 349-83, 22 387-92, 396-403, 408-13, 417-37, 443-72. As of July 2016, Plaintiff’s diagnoses included 23 cervicalgia; dorsalgia; insomnia; essential (primary) hypertension; major depressive disorder, 24 single episode, severe without psychotic features; other intervertebral disc degeneration, 25 lumbosacral region; anxiety disorder, unspecified; cervical disc disorder with myelopathy, 26 unspecified cervical region; pain in unspecified shoulder; and, pain in left knee. AR 350. 27 2 Plaintiff also received gynecological care unrelated to her disability claim from Shirley Neal Parker, M.D. AR 344- 28 48. 1 Medications included Meloxicam (dorsalgia), Ambien (insomnia), Losartan Potassium 2 (hypertension), Paroxetine HCl (depression), Norco (cervical disc disorder) and Baclofen (muscle 3 spasm). AR 350-51. 4 Imaging studies were conducted on April 21, 2014, to address Plaintiff’s backaches. AR 5 269-71. Lumbar spine x-rays revealed no fracture or malalignment and mild spondylosis at L3-4 6 and L4-5 with mild endplate osteophytosis, but no significant intervertebral disc height loss. AR 7 269. X-rays of Plaintiff’s right shoulder revealed mild acromioclavicular degenerative changes 8 but a normal glenohumeral joint and no fracture or dislocation. AR 270. Thoracic spine x-rays 9 were normal except for mild multilevel bony upper trophic spurring at the intervertebral disc 10 margins, consistent with mild chronic osteoarthritis. AR 271. 11 Daniel Brubaker, D.O., of Muscular Skeletal Medical Associates, issued a “Physician 12 Statement and Recommendation” for medical marijuana on May 27, 2014. AR 276. 13 Plaintiff was evaluated for physical therapy at Sierra View District Hospital in May 2015. 14 AR 323-27. Adriene Aono, PT, DPT, described Plaintiff as a “tough case: s/p fusion with lots of 15 referred pain still and adaptive shortening of soft tissue around upper quadrants on both sides. 16 Reflexes diminished but not absent on the left. Prognosis is fair. Reasonable candidate for 17 desensitization and strengthening if she can tolerate it.” AR 327. Plaintiff did not participate in 18 physical therapy after the evaluation. AR 439. 19 Magnetic resonance imaging of Plaintiff’s cervical spine in August 2015 revealed (1) 20 surgical changes of C4-6 bony fusion with diskectomies; (2) a focal lesion at C5-6 consistent with 21 myelomalacia, likely related to Plaintiff’s upper extremity radiculopathy and possibly chronic; 22 and, (3) mild/moderate degenerative disk changes, central canal stenosis and foraminal narrowing 23 at C3-4 and C6-7, of questionable significance. AR 319-20. 24 In 2015, Plaintiff received counseling from psychologist Gwen Angert, Psy.D., to address 25 relationship issues and grief following the murder of her son in January 2015. AR 384-86, 393, 26 404-07, 414-16. Plaintiff was compliant with depression and anti-anxiety medication (Paroxetine 27 HCl), which she reported was effective. AR 384, 393, 404. 28 /// 1 In 2016, neurosurgeon Majid Rahimifar, M.D., conducted a neurosurgical consultation 2 regarding Plaintiff’s cervical myelopathy. AR 330-33. In January 2016, Dr. Rahimifar diagnosed 3 (1) chronic neck pain with left arm weakness and numbness since cervical spine surgery in 1986 4 and (2) chronic low back pain, localized. AR 333. The doctor requested that Plaintiff return with 5 her MRI studies and recommended continued conservative treatment and avoidance of falls and 6 heavy lifting. AR 333. Plaintiff returned in July complaining of calf pain in her right leg. AR 7 330. Dr. Rahimifar recommended an ultrasound study to rule out DVT. AR 330. 8 In August 2016, Kaveh Saremi, M.D., performed EMG studies. AR 474-77. The findings 9 were consistent with chronic mild left C7 radiculopathy. AR 474. 10 IV. Standard of Review 11 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 12 Commissioner denying a claimant disability benefits. “This court may set aside the 13 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 14 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 15 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 16 within the record that could lead a reasonable mind to accept a conclusion regarding disability 17 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 18 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 19 omitted). When performing this analysis, the court must “consider the entire record as a whole 20 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 21 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 22 omitted). 23 If the evidence reasonably could support two conclusions, the court “may not substitute its 24 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 25 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 26 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 27 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 28 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 1 V. The Disability Standard 2 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 3 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 4 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 5 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 6 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 7 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 8 him, or whether he would be hired if he applied for work. 9 42 U.S.C. §1382c(a)(3)(B). 10 To achieve uniformity in the decision-making process, the Commissioner has established 11 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 12 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 13 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 14 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 15 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 16 medically determinable “severe impairments,” (3) whether these impairments meet or are 17 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 18 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 19 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 20 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 21 VI. Summary of the ALJ’s Decision 22 The Administrative Law Judge found that Plaintiff had not engaged in substantial gainful 23 activity since the alleged onset date of December 30, 2013. AR 34. Her severe impairments 24 included: cervical degenerative disc disease status post fusion and discectomies at C4-5 and C5-6 25 with mild C7 left sided radiculopathy; mild lumbar spondylosis; mild thoracic degenerative joint 26 disease; mild degenerative joint disease of the right shoulder; and obesity. AR 34. None of the 27 severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 28 Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). AR 35. 1 The ALJ concluded that Plaintiff had the residual functional capacity to perform a range 2 of light work. AR 36. Plaintiff could lift, carry push and pull 20 pounds occasionally and 10 3 pounds frequently, and could sit, stand and walk six hours in an eight-hour workday. AR 36. She 4 could occasionally stoop, crouch, crawl; climb ladders, ropes or scaffolds; reach overhead 5 bilaterally; and grip, grasp, finger and feel with the upper left extremity. AR 36. Plaintiff could 6 not tolerate static neck positioning. AR 36. 7 Plaintiff was unable to perform her past relevant work. AR 39. However, considering 8 Plaintiff’s age, education, work experience and residual functional capacity jobs that she could 9 perform existed in significant numbers in the national economy. AR 40. Accordingly, the ALJ 10 found that Plaintiff was not disabled at any time from December 30, 2013, the alleged onset date, 11 through November 9, 2016, the date of the decision. AR 41. 12 VII. Sufficient Evidence Supported the ALJ’s Determination 13 Plaintiff contends that the determination of Plaintiff’s residual functional capacity was not 14 supported by sufficient evidence and that the ALJ erred in failing to adopt the opinions of her 15 “treating provider,” Ms. Martin, and the examining physician, Dr. Fabella.. The Commissioner 16 disagrees, contending that the ALJ appropriately reached her determination after carefully 17 assessing the physicians’ opinions in light of objective evidence in the record. The Court agrees 18 with the Commissioner. 19 A. Medical Opinions 20 1. Agency Physicians 21 On initial review, R. Fast, M.D., opined that Plaintiff could lift 50 pounds occasionally 22 and 25 pounds frequently, and sit, stand or walk six hours in an eight-hour workday. AR 76-77. 23 On reconsideration, A. Nasrabadi, M.D., agreed. AR 86. 24 2. Consultative Examination: Internal Medicine 25 Internist Emmanuel Fabella, M.D., conducted a consultative consultation on September 2, 26 2014. AR 296-301. Plaintiff had experienced neck and back pain since a motor vehicle accident 27 28 years before, which had been followed by collar bone and back surgery. AR 296, 297. She 28 experienced pain when she walked more than two blocks, bent, lifted even moderate weights, or 1 did household chores such as dishwashing and vacuuming. AR 296. She had frequent sharp pain 2 radiating into her left arm, which was otherwise numb, and sharp pain in the upper trapezius area 3 when lying in bed. AR 296. Plaintiff provided childcare for her grandchildren. AR 297. 4 The results of the examination were generally normal. AR297-99. Vision was corrected 5 to 20/25. AR 298. Range of motion in her neck was reduced to 45 degrees for lateral flexion and 6 rotation. AR 298. Examination of Plaintiff’s back showed no spinal or paraspinal tenderness but 7 there was moderate paralumbar muscle spasm. AR 299. The straight leg raising test was 8 negative. AR 299. Forward flexion was reduced to 45 degrees. AR 299. Strength was reduced 9 in Plaintiff’s left hand. AR 298. Dr. Fabella diagnosed (1) cervicalgia with left radiculopathy; 10 (2) low back pain with reduced range of motion, no evidence of neurologic compromise, 11 aggravated by sitting, consistent with degenerative disc disease; and, (3) right upper trapezius 12 pain probably secondary to muscle strain. AR 300. 13 Dr. Fabella opined that Plaintiff could lift and carry ten pounds frequently and 14 occasionally with her right arm, but less than ten pounds frequently and occasionally with her left 15 arm. AR 300. Gross manipulation with her left hand was mildly impaired. AR 300. She could 16 stand and walk four hours or less in an eight-hour workday and required no assistive device. AR 17 300. She was able to walk on uneven terrain, climb ladders and work at heights. AR 300. 18 Plaintiff was occasionally able to climb, balance, kneel and crawl. AR 300. She would need a 19 break from sitting every 20 to 30 minutes. AR 300. 20 3. Physical Medical Source Statement 21 On July 15, 2015, Nurse Martin completed a physical medical source statement using a 22 form apparently provided by Plaintiff’s attorney. AR 314-17. Ms. Martin diagnosed “cervical 23 laminectomy syndrome, degenerative discs, spondylosis, lumbar spine, lumbago and left cervical 24 spine extremity radiculopathy, ” affected by depression and anxiety. AR 314, 315. Plaintiff 25 experienced constant severe neck pain radiating to her left shoulder and hand. AR 314. About 26 three days weekly, Plaintiff also experienced severe low back pain. AR 314. 27 Plaintiff could lift less than ten pounds rarely. AR 316. She could walk one block. AR 28 315. She could sit or stand less than two hours in an eight hour workday but could not sit or stand 1 for more than 20 minutes at a time. AR 315. Plaintiff needed to be able to change position and 2 walk for twenty minutes every twenty minutes. AR 315. She would require twenty minute 3 breaks every twenty minutes. AR 315. Plaintiff could occasionally climb stairs; rarely twist or 4 stoop; and, never crouch/squat or climb ladders. AR 316. Gross and fine hand movements, 5 extending the arms and reaching overhead were limited. AR 316. Plaintiff’s legs should be 6 elevated ninety degrees for eighty per cent of the work day. AR 316. 7 Plaintiff was likely to be off task about 25 percent of the workday and was incapable of 8 even low stress work. AR 317. She was likely to miss more than four work days monthly. AR 9 317. 10 B. Determining Residual Functional Capacity 11 “Residual functional capacity is an assessment of an individual’s ability to do sustained 12 work-related physical and mental activities in a work setting on a regular and continuing basis.” 13 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 14 restrictions which result from an individual’s medically determinable impairment or combination 15 of impairments. SSR 96-8p. 16 A determination of residual functional capacity is not a medical opinion, but a legal 17 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 18 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 19 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 20 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so the 21 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary 22 ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 23 “In determining a claimant's RFC, an ALJ must consider all relevant evidence in the 24 record such as medical records, lay evidence and the effects of symptoms, including pain, that are 25 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See 26 also 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant 27 medical and other evidence). “The ALJ can meet this burden by setting out a detailed and 28 thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and 1 making findings.” Magallanes, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 2 F.2d 1403, 1408 (9th Cir. 1986)). 3 The opinions of treating physicians, examining physicians, and non-examining physicians 4 are entitled to varying weight in residual functional capacity determinations. Lester v. Chater, 81 5 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 6 professional, who has a greater opportunity to know and observe the patient as an individual. Id.; 7 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The opinion of an examining physician is, 8 in turn, entitled to greater weight than the opinion of a non-examining physician. Pitzer v. 9 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An ALJ may reject an uncontradicted opinion of a 10 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 11 F.3d at 831. In contrast, a contradicted opinion of a treating professional may be rejected for 12 “specific and legitimate” reasons. Id. at 830. However, the opinions of a treating or examining 13 physician are “not necessarily conclusive as to either the physical condition or the ultimate issue 14 of disability.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 15 Nurse practitioners are not evaluated as if they were physicians. A nurse practitioner is 16 not considered an acceptable medical source under 20 C.F.R. § 416.913.3 Instead, nurse 17 practitioners are considered to be other sources. 20 C.F.R. § 416.913(d)(1) (listing medical 18 sources that are considered other sources, including nurse practitioners, physicians assistants, 19 naturopaths, chiropractors, audiologists, and therapists). Unlike the opinions of physicians, the 20 opinions of nurse practitioners are not entitled to special weight. An ALJ may reject the opinions 21 of other sources by giving “reasons germane to each witness for doing so.” Molina v. Astrue, 674 22 F.3d 1104, 1111 (9th Cir. 2012); Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th 23 Cir. 2010). Factors used to evaluate a nurse practitioner’s opinion include: (1) examining 24 relationship; (2) length of treatment relationship and frequency of examination; (3) supportability 25 /// 26 3 The Social Security Administration has recently adopted new rules applicable to claims filed after March 27, 2017, which expand the category of acceptable medical providers to include, among others, nurse practitioners. 20 C.F.R. 27 §§ 404.1502(a)(6), (7), (8); 416.902(a)(6), (7), (8) (2017); Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). These revisions do not apply to Plaintiff’s claim, which was filed 28 December 30, 2013. 1 of opinion; (4) consistency with the record; (5) specialization; and (6) other factors supporting or 2 contradicting the opinion. 20 C.F.R. § 416.927 (c) and (f)(1). 3 C. The ALJ Properly Analyzed Evidence in the Record as a Whole 4 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 5 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 6 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4) (“the more 7 consistent an opinion is with the record as a whole, the more weight we will give to that 8 opinion”). 9 In the course of her assessment of the medical opinions in this case, the ALJ stated that 10 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these 11 symptoms are not entirely consistent with the medical evidence and other evidence in the record.” 12 AR 39. The ALJ explained: 13 While I find the claimant’s description of back and neck pain is not totally at odds with the objective record, I conclude that these 14 symptoms do not preclude the claimant from performing jobs available in the economy. AR 39. I have accommodated these 15 symptoms in the residual functional capacity above. Even accounting for these limitations, there are jobs available in the 16 national economy that the claimant could perform. 17 AR 39. 18 The ALJ observed that records of Plaintiff’s medical treatment largely consisted of appointments 19 with a nurse practitioner for routine medication refills who consistently noted the effectiveness of 20 the medication regimen, with which Plaintiff consistently complied. AR 389. The ALJ also 21 noted the inconsistency of Plaintiff’s reports to Dr. Nasrabadi that her neck and back pain 22 prevented her working while at the same time she was working as the child care provider for her 23 grandchildren. AR 38. 24 The ALJ noted other evidence that was inconsistent with Plaintiff’s claim of disability. 25 Plaintiff reported that her medication relieved the widespread pain in her neck, back, shoulders, 26 legs and knees. AR 36, 37. She could bathe and dress independently, walk four or five blocks 27 and stand for up to two hours at a time. AR 36. She could carry a gallon of milk. AR 37. 28 Plaintiff shopped and ran her own errands and did not need help to perform light housekeeping, 1 including cooking, washing dishes and laundry, and yardwork. AR 36-37, 39. In September 2 2015, Plaintiff complained of injuring a finger when picking up a heavy garbage can. AR 39. 3 The ALJ acknowledged that Plaintiff received continuing treatment for the aftereffects of her 4 1986 injuries, but noted that treatment records indicated that medication controlled Plaintiff’s 5 pain and that Plaintiff responded well to treatment. AR 37. The ALJ also acknowledged that 6 Plaintiff’s obesity further limited her ability to work by limiting Plaintiff’s exertional activities 7 and affecting her ability to perform postural activities. AR 37. These factors were considered in 8 the ALJ’s decision that Plaintiff was capable of performing light work with restrictions. AR 37. 9 The ALJ gave moderate weight to the opinions of the agency physicians, Drs. Fast and 10 Nasrabadi, and the consultative examiner, Dr. Fabella. AR 37-38. She noted that Dr. Nasrabadi 11 had reviewed the opinions of Drs. Fast and Fabella, agreeing with Dr. Fast’s assessment of 12 Plaintiff’s residual functional capacity and emphasizing that Dr. Nasrabadi reported that 13 Plaintiff’s gait was normal and straight leg raises were negative. AR 38. The ALJ explained her 14 weighting of the doctors’ opinions: 15 I agree with the manipulative and postural restrictions that Dr. Fabella identified, but otherwise find the opinion overly generous. 16 On the other hand, the opinions from Dr. Fast and Dr. Nasrabadi do not accord appropriate deference to the claimant’s subjective 17 complaints of pain. Thus, I conclude that lifting restrictions commensurate with work at the light exertional level and a provision 18 for occasional overhead reaching are reasonable. In light of electrodiagnostic studies showing mild left C7 radiculopathy, I 19 conclude that the claimant can perform occasional gross and fine manipulative activities with the non-dominant left upper extremity. 20 AR 38. 21 The ALJ rejected the extreme and internally contradictory restrictions set forth in Ms. 22 Martin’s statement: 23 I give no weight to the Physical Medical Source Statement that Debra 24 Martin, FNP-C completed in July 2015, indicating that Plaintiff was capable of no more than an extremely limited range of sedentary 25 work. This checklist-style form appears to have been completed as an accommodation to the claimant in her pursuit of disability 26 benefits, and includes only conclusions regarding functional limitations without meaningful rationale for those conclusions. The 27 responses on the check-box form are at odds with Ms. Martin’s treatment notes that consistently indicated that claimant’s response 28 to medication was “good.” I also find noteworthy that Ms. Martin 1 indicated that the claimant did not experience side effects from medications. Furthermore, the regulations at 20 CFR 416.913(a) list 2 acceptable medical sources and medical reports which establish impairments. As a nurse practitioner, Ms. Martin is not an acceptable 3 medical source and this opinion, standing alone, cannot constitute documentation of severe or disabling vocational limitations (Social 4 Security Ruling 06-3p). 5 AR 38 (citations to administrative exhibits omitted). 6 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 7 testimony.” Magallanes, 881 F.2d at 750. He properly determines the weight to be given each 8 medical opinion by considering the evidence in the record as the ALJ did here. 20 C.F.R. § 9 404.1527(c)(4) (“the more consistent an opinion is with the record as a whole, the more weight 10 we will give to that opinion”). The record must include objective evidence to support the medical 11 opinion of the claimant’s residual functional capacity. Meanel v. Apfel, 172 F.3d 1111, 1113-14 12 (9th Cir. 1999). Inconsistencies with the overall record or with a physician’s own notes are a valid 13 basis to reject a medical opinion. Molina, 674 F.3d at 1111-1112 (recognizing that a conflict with 14 treatment notes is a germane reason to reject a treating physician's assistant's opinion); Connett v. 15 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (rejecting physician’s opinion when treatment notes 16 provide no basis for the opined functional restrictions); Tommasetti, 533 F.3d at 1041 17 (incongruity between questionnaire responses and the Plaintiff’s medical records is a specific and 18 legitimate reason for rejecting an opinion); Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 19 685, 692-693 (9th Cir. 2009) (holding that a conflict with treatment notes is a specific and 20 legitimate reason to reject a treating physician's opinion). 21 The Court is not required to accept Plaintiff’s characterization of her treatment records. The ALJ fully supported her determination based on multiple medical opinions and the evidence 22 of record. Even if this Court were to accept that the record could support Plaintiff’s contention, 23 the record amply supports the ALJ’s interpretation as well. When the evidence could arguably 24 support two interpretations, the Court may not substitute its judgment for that of the 25 Commissioner. Jamerson, 112 F.3d at 1066. 26 /// 27 /// 28 1 X. Conclusion and Order 2 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 3 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 4 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of 5 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of 6 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Maria Diana 7 Narvaiz. 8 IT IS SO ORDERED. 9 10 Dated: January 8, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28