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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENISE BINFORD, No. 2:18-cv-03272-KJN 12 Plaintiff, ORDER ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 13 v. (ECF Nos. 14, 15) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying her application for Disability Insurance Benefits under Title II of the Social Security 19 Act.1 In her summary judgment motion, Plaintiff contends that the Administrative Law Judge 20 (“ALJ”) erred in discounting Plaintiff’s subjective symptom testimony and the opinion of her 21 treating physician. The Commissioner opposed and filed a cross-motion for summary judgment. 22 The Court GRANTS the Commissioner’s motion for summary judgment, DENIES 23 Plaintiff’s motion, and AFFIRMS the Commissioner’s decision. 24 /// 25 /// 26 27 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and the parties consented to the jurisdiction of the undersigned for all purposes. (See ECF Nos. 8, 9.) 28 1 I. BACKGROUND AND ALJ’S FIVE-STEP ANALYSIS2 2 Plaintiff applied for disability insurance benefits on August 18, 2016, alleging an onset 3 date of January 1, 2016 ( A dministrative Transcript (“AT”) 198.) Plaintiff claimed the following 4 medical conditions: diabetes, sleep apnea, nausea, plantar faciatis, migraine headaches, 5 confusion, fatigue, incontinence, and pain in her feet, back, and legs. (AT 260.) Plaintiff’s 6 application was denied initially and again upon reconsideration. (AT 116, 124.) Plaintiff, aided 7 by an attorney, sought review of the se denials with an ALJ hearing. (AT 130-31.) At a June 21, 8 2018 hearing, Plaintiff testified about her conditions, and the ALJ heard testimony from a 9 vocational expert regarding Plaintiff’s ability to work. (AT 12-56.) 10 On August 24, 2018, the ALJ issued a decision determining that Plaintiff was not 11 disabled. (AT 97-115.) At step one, the ALJ determined that Plaintiff had not engaged in 12 substantial gainful work activity since the alleged onset date of January 1, 2016. (AT 103.) At 13 step two, the ALJ found that Plaintiff had the following severe impairments: “diabetes mellitus 14 with peripheral neuropathy, obesity, and migraine headaches.” (Id.) The ALJ also determined 15 16 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to 17 engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs 18 eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571-76; Bowen v. Yuckert, 482 U.S. 19 137, 140-42 (1987). The following summarizes the sequential evaluation: 20 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 21 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. 22 Step three: Does the claimant’s impairment or combination of impairments meet 23 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 24 Step four: Is the claimant capable of performing her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 25 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The 28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 1 that Plaintiff had the following non-severe impairments: “non-ruptured cerebral aneurysm, mild 2 sleep apnea, foot impairments, urinary tract infections, hypertension, narcolepsy, and hepatitis C.” 3 (Id.) At step three, the A L J determined that the severe impairments did not meet or medically 4 equal a listed impairment. (AT 105.) 5 Based on this information, the ALJ found Plaintiff had the residual functional capacity 6 (“RFC”) to perform “less than a full range of light work,” with the following limitations: 7 [She has] the ability to lift, c arry, push, and/or pull 20 pounds occasionally and 10 pounds frequently; to stand and walk for 2 hours in an 8-hour day, with normal 8 breaks; and to sit for 8 hours in an 8-hour day, with normal breaks. [She] is unable to climb ladders, ropes or scaffolds; she is limited to occasional stooping, 9 kneeling, crouching and crawling; and she is unable to work at unprotected heights. In addition, [she] is able to receive, remember, understand and carry out 10 simple job instructions, frequent detailed job instructions, and occasional complex job instructions; she is able to interact appropriately with co-workers, the general 11 public and supervisors, she is able to adjust to simple changes in the workplace, occasionally adjust to detailed changes in the workplace, and is able to make 12 workplace judgments. 13 (AT 106.) In reaching this conclusion, the ALJ considered Plaintiff’s symptoms, the objective 14 medical evidence in the record, and the opinions provided by treating, examining, and consulting 15 medical professionals. (AT 107-10.) Relevant here, the ALJ found that the alleged severity and 16 limiting effects of Plaintiff’s reported symptoms were not consistent with the medical and other 17 evidence in the record. (AT 109.) The ALJ also gave “[give] no significant weight” to the 18 opinion of Plaintiff’s treating physician regarding her physical or psychological limitations, as 19 expressed in a “Reasonable Accommodation Questionnaire.” (AT 108.) The ALJ found this 20 physician’s expression of disability one reserved for the Commissioner, and found the expressed 21 limitations to be inconsistent with the findings of an examining and two consulting physicians. 22 (Id.) Ultimately, the ALJ concluded at step four that Plaintiff was capable of performing past 23 work “as an accounting clerk and an advertising clerk,” and “there are other jobs that exist in 24 significant numbers in the national economy” that Plaintiff can also perform. (AT 110.) 25 On November 5, 2018, the Appeal Council denied Plaintiff’s appeal of the ALJ’s 26 decision. (AT 1-6.) Plaintiff then timely filed this action requesting judicial review of the 27 Commissioner’s final decision, and the parties filed cross-motions for summary judgement. (ECF 28 Nos. 1, 14, 15.) 1 II. STANDARD OF REVIEW 2 The Court reviews the Commissioner’s decision de novo, and should reverse “only if the 3 ALJ's decision was not s u pported by substantial evidence in the record as a whole or if the ALJ 4 applied the wrong legal standard.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). 5 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such 6 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Edlund v. Massanari, 253 F.3d 115 2, 1156 (9th Cir. 2001). “The ALJ is responsible for 8 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. 9 The Court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one 10 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, the 11 Court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F.3d at 1048. 12 III. ISSUES PRESENTED 13 Plaintiff alleges two main errors on the ALJ’s part: (A) Plaintiff argues that the ALJ 14 improperly discounted her testimony regarding the severity and limiting effects of her subjective 15 symptoms, including her reported daily activities; and (B) Plaintiff argues that the ALJ 16 improperly rejected the opinion of her treating physician, Dr. Cohen, as expressed in a 17 “Reasonable Accommodation Questionnaire.” Plaintiff requests that the Court award benefits, or, 18 in the alternative, remand for further proceedings. (ECF No. 14.) 19 The Commissioner counters each of Plaintiff’s arguments, and contends that substantial 20 medical evidence of record supported the ALJ’s decision to discount Plaintiff’s subjective 21 symptoms and the opinion on the Questionnaire. (See ECF No. 15 at 8-17.) Thus, the 22 Commissioner maintains that the ALJ’s opinion should be affirmed. (ECF No. 15.) 23 IV. DISCUSSION 24 A. The ALJ did not err in discounting Plaintiff’s subjective symptom testimony. 25 Plaintiff alleges that the ALJ did not provide legally sufficient reasons for discounting her 26 testimony that her impairments prevent her from working and completing basic tasks of daily 27 living. (ECF No. 14 at 6.) In evaluating Plaintiff’s subjective symptom testimony, the ALJ found 28 that Plaintiff satisfied the first part of the required two-step analysis—Plaintiff has an impairment 1 that could reasonably cause her alleged symptoms—but the ALJ discounted Plaintiff’s claims 2 about the severity and limiting effects of those symptoms. (AT 106-10.) The ALJ provided two 3 main reasons3 for discou n ting her subjective symptom testimony. First, the ALJ found that 4 Plaintiff’s claim that her diabetes causes persistent fatigue and nausea, among other symptoms, is 5 inconsistent with “medical evidence of record demonstrat[ing] that her diabetes has been well- 6 controlled,” and that Plaintiff has “not always been compliant using her insulin and oral tablets.” 7 (AT 109-10.) Second, the ALJ fou nd that Plaintiff could “perform a significant number of 8 activities of daily living” such as household chores, going shopping with help, walking without 9 assistance, and driving. (AT 109.) 10 Legal Standard 11 A claimant’s statements of subjective symptoms alone is insufficient grounds to establish 12 disability. 20 C.F.R § 404.1529(a). If an ALJ was required to believe every allegation of pain or 13 impairment, disability benefits would run afoul of the Social Security Act and its purpose. See 14 Treichler v. Comm’r of SSA, 775 F.3d 1090, 1106 (9th Cir. 2014). In evaluating a claimant’s 15 report of his or her symptoms, the Ninth Circuit has proffered the following two-step analysis: 16 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be 17 expected to produce the pain or other symptoms alleged. In this analysis, the 18 claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only 19 show that it could reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, 20 or the severity thereof. If the claimant satisfies the first step of this analysis, and there is no evidence of 21 malingering, the ALJ can reject the claimant's testimony about the severity of her 22 symptoms only by offering specific, clear and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the 23 most demanding required in Social Security cases. 24 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 25 1014-15 (9th Cir. 2014)). 26 3 The first reason the ALJ provided was that “despite their allegations, including allegations of 27 being able to lift only 5 pounds, Dr. Schwartz and medical consultants determined that she was able to lift up to 20 pounds occasionally and 10 pounds frequently.” (AT 109.) Plaintiff does not 28 challenge this finding, and the Court finds it immaterial to Plaintiff’s raised challenges. 1 The ALJ’s reasons for discounting or rejecting a claimant’s subjective symptom testimony 2 must be “sufficiently specific to allow a reviewing court to conclude the adjudicator . . . did not 3 arbitrarily discredit a cla i m ant’s testimony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th 4 Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). Examples of 5 “specific, clear and convincing reasons” for discounting or rejecting a claimant’s subjective 6 symptom testimony include: the effectiveness of or noncompliance with a prescribed regime of 7 medical treatment, inconsistencies b etween a claimant’s testimony and their conduct (including 8 daily activities), and whether the alleged symptoms are consistent with the medical evidence of 9 record. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 10 504 F.3d 1028, 1040 (9th Cir. 2007). A lack of corroborating, objective medical evidence alone 11 is insufficient grounds for an ALJ to discount a claimant’s subjective symptoms; however, it is a 12 factor the ALJ may consider. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 13 20 C.F.R § 404.1529(c)(2)). 14 Analysis 15 1. The ALJ properly considered ambiguities in the medical evidence and Plaintiff’s non- 16 compliance with her prescribed course of treatment in discounting Plaintiff’s subjective symptom testimony. 17 18 In essence, Plaintiff contends that her severe pain and impairments render her completely 19 disabled. Plaintiff’s chief complaints are that she has frequent dizzy spells, headaches, nausea, 20 and fatigue, and difficulty with concentrating and staying awake, especially when trying to work 21 or otherwise focus on anything. (See, e.g., AT 20-48, 285-94, 304-11.) Plaintiff mainly attributes 22 these symptoms to her diabetes or narcolepsy, but does not provide any objective medical 23 evidence to substantiate these claims; instead, Plaintiff relies solely on her own written and verbal 24 testimony. (See ECF No. 14 at 6 (citing AT 17-50, 285-94, 304-14).) The ALJ not only found 25 Plaintiff’s reported symptoms to be uncorroborated by any objective medical evidence, but found 26 that Plaintiff’s claims were inconsistent with other medical evidence in the record, including the 27 opinions of several medical professionals. (AT 106-10.) 28 1 Throughout several years of medical records, Plaintiff’s long-term primary care physician, 2 Dr. Cohen, repeatedly described Plaintiff’s diabetes and blood sugar levels as well controlled, 3 despite her claims otherw ise. (See, e.g., AT 407, 821.) Thus, the ALJ properly considered this 4 discrepancy between Plaintiff’s claim of uncontrolled and totally debilitating diabetes and years 5 of contradictory medical records from her treating physician. Furthermore, Dr. Karzoun, a 6 treating-physician and sleep specialist, found “no evidence for narcolepsy” in addition to 7 Plaintiff’s “mild sleep-apnea.” (AT 1040.) Thus, records show that the purported causes of 8 Plaintiff’s allegedly debilitating symptoms—diabetes and narcolepsy—are largely inconsistent 9 with other objective medical evidence in the record. While a lack of corroborating objective 10 medical evidence alone is not dispositive, it is a permissible factor for the ALJ to consider. See 11 Rollins, 261 F.3d at 857. 12 According to Dr. Cohen and Karzoun, both treating physicians, Plaintiff’s symptoms are 13 attributable, at least in-part, to Plaintiff’s 12 prescribed daily medications and her failure to 14 manage and monitor her diet and insulin treatment. (See, e.g., 335, 821, 1502.) In evaluating and 15 discounting Plaintiff’s subjective symptom testimony, the ALJ properly considered Plaintiff’s 16 failure to follow her prescribed course of treatment, which is recognized as a sufficient and “clear 17 and convincing” reason for doing so. See Tommasetti, 533 F.3d at 1039 ([T]he ALJ may 18 consider . . . [the] unexplained or inadequately explained failure to seek treatment or to follow a 19 prescribed course of treatment . . . .”); see, e.g., Rys v. Berryhill, 2018 LEXIS 9088, at *32 (C.D. 20 Cal. Jan. 19, 2018) (“[I]nadequately explained failure to take prescribed medications constitutes a 21 clear and convincing reason for discounting Plaintiff's testimony.”). 22 Plaintiff claims her failure to take her medication is excusable due to memory problems. 23 (ECF No. 14 at 10 (citing AT 19-20, 47-48, 290, 309).) This testimony is inconsistent, however, 24 with the opinions of examining and consulting medical professionals who opined that Plaintiff 25 has only mild mental impairments, including memory. (See, e.g., AT 66, 84, 798-99, 1313.) In 26 light of only mild memory limitations, along with the years of frequent medical visits that 27 included repeated reminders to take her medication and enact necessary life-style changes, it 28 appears Plaintiff’s failure to heed her doctor’s advice is more a result of negligent self-care than 1 excusable forgetfulness. See Tommasetti, 533 F.3d at 1039; see also Haack v. Colvin, 2015 U.S. 2 Dist. LEXIS 95999, at *39 (D. Minn. June 19, 2015) (finding that noncompliance with treatment 3 constituted sufficient gro u nds to discredit Plaintiff’s complaints where medical records indicated 4 that the plaintiff sporadically monitored their diabetes and failed to follow their doctor’s treatment 5 recommendations, despite Plaintiff’s claim that treatment was ineffective). Furthermore, the 6 ALJ’s reliance on Dr. Cohen’s statement that the “claimant was able to perform competently 7 when her symptoms were stable” p rovides additional support to discredit Plaintiff’s subjective 8 complaints. (AT 108.) It is entirely possible that Plaintiff’s symptoms are stable when Plaintiff 9 follows her prescribed course of treatment—monitoring blood glucose, taking insulin and other 10 medications, and following a proper diet—and that her symptoms are exacerbated when she is 11 non-compliant. See Tommasetti, 533 F.3d at 1039. 12 2. The ALJ’s consideration of Plaintiff’s daily activities was harmless error. 13 Plaintiff contends that the ALJ failed to explain how Plaintiff’s limited ability to do daily 14 tasks permits her to obtain and maintain a job. Specifically, Plaintiff contends that the ALJ failed 15 to explain how “any spare activity” that she reported being able to do is inconsistent with 16 Plaintiff’s reported symptoms and limitations. (ECF No. 14 at 9-11.) In determining that the 17 severity and limiting effects of Plaintiff’s reported symptoms are not as significant as alleged, the 18 ALJ stated, “the claimant and her fiancée revealed that she was able to perform a significant 19 number of activities of daily living, including doing household chores with help and going 20 shopping.” (AT 109.) The ALJ continued, “[t]he claimant was also reported to be able to drive 21 herself, to have no abnormalities with gross or fine motor abilities, to ambulate without 22 assistance, and [sic] complete basic chores on her psychological evaluation.” (AT 109.) As the 23 Ninth Circuit has indicated, this was error. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 24 (finding that the mere fact that someone can carry out some daily activities does not detract from 25 their disability) (citations omitted); see also Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 26 2014) (“[T]he ALJ did not elaborate on which daily activities conflicted with which part of 27 Claimant’s testimony.”). The ALJ failed to mention how Plaintiff’s reported activities are in any 28 way compatible with work skills or the workplace generally. See Orn, 496 F.3d at 639; Vertigan 1 v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Additionally, the ALJ did not discuss how these 2 reported activities contradict or are inconsistent with other testimony in the record. The ALJ 3 merely recited several in s tances of Plaintiff’s reported activities without any further explanation. 4 (AT 109.) Although Plaintiff’s reported activities do, to some extent, discredit her claim of 5 having totally debilitating impairments, it is well established that being able to do some activities, 6 including assisting in household chores, is not inconsistent with being disabled. See Molina v. 7 Astrue, 674 F.3d 1104, 1113 (9th C ir. 2011); Vertigan, 260 F.3d at 1050. 8 However, this error was harmless, as the undersigned has already found above that the 9 ALJ properly relied on Plaintiff’s failure to follow her prescribed course of treatment and the 10 inconsistencies between Plaintiff’s testimony and the objective medical evidence of record. (See 11 Section IV.A.1 above.) As long as at least one of the ALJ’s reasons support discounting 12 Plaintiff’s subjective symptom testimony, the Court applies a harmless error standard. See 13 Molina, 674 F.3d at 1115. An error is deemed harmless so long as “there remains substantial 14 evidence supporting the ALJ’s decision and the error ‘does not negate the validity of the ALJ’s 15 ultimate conclusion.’” Id. (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 16 (9th Cir. 2004)). 17 B. The ALJ properly discounted a Questionnaire composed by a treating physician. 18 Plaintiff contends that the ALJ failed to provide a legally sufficient rationale for rejecting 19 a medical opinion of Plaintiff’s treating physician, Dr. Cohen. (ECF No. 14 at 13.) Plaintiff’s 20 argument is based on two alleged errors: that the ALJ misconstrued Dr. Cohen’s description of 21 Plaintiff’s condition as “stable,” and that the ALJ erroneously found Dr. Cohen’s opinion to be 22 inconsistent with other medical evidence. (ECF No. 14 at 14-15.) Plaintiff cites to Dr. Cohen’s 23 opinion, set forth in a December 12, 2015 Reasonable Accommodation Questionnaire.4 (See AT 24 393-98.) 25 4 Plaintiff does not cite to any other documentation or records to support the opinion set forth by Dr. Cohen in the Questionnaire, except the fact that Dr. Cohen treated Plaintiff at Kaiser 26 Permanente over the course of several years. (See ECF No. 14 at 13.) Thus, the Court finds that 27 the Questionnaire may reasonably be construed as Dr. Cohen’s opinion in this matter, and, as explained below, one that essentially goes to the ultimate question of Plaintiff’s physical abilities 28 and disability status. 1 Legal Standard 2 The weight given to medical opinions depends in part on whether they are proffered by 3 treating, examining, or n o n-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 4 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, 5 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 6 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 7 Holohan, 246 F.3d at 1202. The m edical opinion of a claimant's treating doctor is given 8 “controlling weight” so long as it “is well-supported by medically acceptable clinical and 9 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the 10 claimant's] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating doctor's opinion is not 11 controlling, it is weighted according to factors such as the length of the treatment relationship and 12 frequency of examination, the nature and extent of the treatment relationship, supportability, and 13 consistency with the record. 20 C.F.R. § 404.1527(c)(2)-(6). 14 In order to evaluate whether an ALJ properly rejected a medical opinion, in addition to 15 considering its source, the Court considers whether: (1) contradictory opinions are in the record; 16 and (2) clinical findings support the opinions. Lester, 81 F.3d at 831. A treating physician’s 17 opinion is not conclusive as to physical condition or disability, and “the ALJ may disregard the 18 treating physician’s opinion whether or not that opinion is contradicted.” See Magallanes v. 19 Bowen, 881 F.2d 747, 751 (9th Cir. 2011). To reject the uncontradicted opinion of a treating or 20 examining doctor, the ALJ must provide “clear and convincing reasons that are supported by 21 substantial evidence.” Ryan v. Comm'r, 528 F.3d 1194, 1198 (9th Cir. 2008). Conversely, the 22 contradicted opinion of a treating or examining doctor may be rejected for “specific and 23 legitimate” reasons. Lester 81 F.3d at 830. An ALJ provides “specific and legitimate reasons” by 24 “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 25 stating [an] interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751. 26 Analysis 27 The ALJ provided several reasons for “giv[ing] no significant weight to Dr. Cohen’s 28 opinions relating to the claimant’s physical or psychological limitations.” (AT 108.) The ALJ 1 noted that “Dr. Cohen’s determinations are not consistent with other substantial medical evidence 2 of record,” and “Dr. Cohen acknowledged that the claimant was able to perform competently 3 when her symptoms wer e stable.” (AT 108.) The ALJ also construed Dr. Cohen’s statements 4 regarding Plaintiff’s “ability to work, interact with others, and perform manual tasks” as an 5 ultimate opinion of disability that is “reserved for the Commissioner.” (AT 108.) Subsequently, 6 the ALJ extensively outlined the medical findings of examining physician Dr. Schwartz and the 7 opinions of two non-examining me dical consultants. (See AT 108-09.) 8 The Questionnaire, which Dr. Cohen completed at the request of Plaintiff for her prior 9 employment, is a five-page series of largely check-box, fill-in-the-blank, and short answer 10 questions that “help determine whether an employee has a disability” and “whether an 11 accommodation is needed.” (See AT 393-98.) On the form, Dr. Cohen checked “yes” to several 12 boxes noting that Plaintiff has a physical or mental impairment that affects multiple major life 13 activities, which he indicated will last for an “unknown/ill-defined” amount of time. (AT 394.) 14 Dr. Cohen also marked boxes indicating that Plaintiff’s abilities in “interacting with others,” 15 “performing manual tasks,” “working,” and “concentrating,” are impaired. (AT 394.) Dr. Cohen 16 did write that Plaintiff’s “limitations are on an intermittent basis . . . [with an] unclear future,” and 17 that when symptoms such as fatigue, nausea, and decreased concentration are exacerbated, “time 18 off and/or reduced hours may be necessary to manage symptoms.” (AT 394-95, 398.) However, 19 he also noted that “when symptoms [are] stable, [Plaintiff] reports competent performance.” (AT 20 395.) 21 The ALJ’s decision to discount Dr. Cohen’s opinions in the Questionnaire is not error. 22 The legal standard requires an ALJ to state “specific and legitimate reasons” to discount a 23 conflicting medical opinion, which is done by “setting out a detailed and thorough summary of 24 the facts and conflicting clinical evidence, stating [an] interpretation thereof, and making 25 findings.” Magallanes, 881 F.2d at 751. Here, the ALJ provided a thorough discussion of 26 examining physician Dr. Schwartz’s finding and those of medical consultants Dr. Sheehy and Dr. 27 Amon. (See AT 108-09.) The ALJ then explained how these findings are inconsistent with Dr. 28 Cohen’s opinions. (See Id.) The sporadic nature of Plaintiff’s symptoms is at least probative of 1 | the intensity and limiting effects of Plaintiffs conditions, and to the extent that she is not totally 2 | disabled. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (holding that an ALJ may 3 | discount testimony insofar as they contradict claims of totally debilitating impairment). Further, 4 | the Questionnaire, considered in light of Plaintiff's years of medical records and Plaintiff's own 5 || testimony, explicitly and implicitly indicates that Plaintiffs diagnosis and prognosis are 6 | inconclusive—‘unknown [and] ill-defined.” (See AT 394-98.) When medical reports and 7 | testimony are inconclusive or conflicting, it is the ALJ’s role to weigh evidence and resolve the 8 | conflict. See Magallanes, 881 F.2d at 751; see also Tommasetti v. Astrue, 533 F.3d 1035, 1038 9 | (9th Cir. 2008) (requiring that when medical evidence is subject to more than one rational 10 | interpretation, the ALJ’s conclusion must be upheld). Thus, where the only concrete source of 11 || medical opinion from Plaintiffs treating physician is the brief and conclusory Questionnaire 12 | form, the ALJ was required to consider the opinions of other medical professionals in the record. 13 | See Magallanes, 881 F.2d at 751 ([An] ALJ need not accept “‘a treating physician’s opinion which 14 | is ‘brief and conclusory in form with little in the way of clinical findings to support [its] 15 | conclusion.’”) (citation omitted). 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The Commissioner’s motion for summary judgment (ECF No. 15) is GRANTED; 19 2. Plaintiff's motion for summary judgment (ECF No. 14) is DENIED; 20 3. The decision of the Commissioner is AFFIRMED; and 21 4. The Clerk is directed to enter judgement in the Commissioner’s favor and close the 22 case. 23 | Dated: March 4, 2020 4 Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 26 27 38 binf.3272 12