(SS) Blanchard 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 DOREEN BLANCHARD, No. 1:19-cv-00628-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 Doreen Blanchard (“Plaintiff”) seeks judicial review of the final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 disability insurance benefits pursuant to Title II 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. 10 and 13. 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. 5 and 6. 1 II. Procedural Background 2 On July 7, 2015, Plaintiff filed the pending application for disability insurance benefits 3 alleging disability beginning June 15, 2013. AR 31. The Commissioner denied the application 4 initially on January 7, 2016, and following reconsideration on March 10, 2016. AR 31. 5 On March 22, 2016, Plaintiff filed a request for a hearing. AR 31. Administrative Law 6 Judge Matilda Surh presided over an administrative hearing held on February 12, 2018. AR 71- 7 90. Plaintiff appeared and was represented by an attorney. AR 71. On April 12, 2018, the ALJ 8 denied Plaintiff’s application. AR 31-41. 9 The Appeals Council denied review on February 26, 2019. AR 5-11. On May 8, 2019, 10 Plaintiff filed a complaint in this Court. Doc. 1. 11 III. Factual Background 12 13 A. Medical Records 14 The record includes notes of Plaintiff’s medical treatment at Community Foundation 15 Oakhurst Medical Group from March 2013 to August 2016. AR 312-464, 542-45, 611-45. For 16 the first time in June 2013, Plaintiff reported daily back pain following a water slide accident. 17 AR 338, 459, 460. She described the pain as severe shooting and burning. AR 338. The pain did 18 not radiate and was aggravated by sitting. AR 338. Dianne Sachau, M.D., prescribed Norco 19 (hydrocodone and acetaminophen). AR 339. At Plaintiff’s next visit, Dr. Sachau added 20 cyclobenzaprine (Flexeril). AR 345. In July 2013, medical assistant Randii Avina noted that the 21 prescriptions provided only mild relief. AR 355. 22 Magnetic resonance imaging of Plaintiff’s lumbar spine in July 2013 indicated (1) mild 23 acute/subacute compression fracture at L1; (2) acute/subacute small focal compression fracture of 24 the superior endplate at L3; (3) mild degenerative changes of the lumbar spine with disc bulging 25 and neural foraminal narrowing; and, (4) central broad-based disc protrusion of focal bulging 26 disc at L1-L2 indenting on the thecal sac. AR 458-59. X-ray studies of Plaintiff’s lumbar spine 27 in September 2013, indicated (1) a stable mild end plate compression fracture at L1; (2) no 28 1 subluxation on flexion/extension views; (3) stable diffuse spondylosis; and, (4) a small 2 acute/subacute compression fracture at the superior endplate of L3. AR 364. 3 Martin Rindahl, M.D., noted that Plaintiff was most comfortable standing, but that chronic 4 degenerative changes of her legs and feet precluded standing for protracted periods. AR 460. 5 Although other options existed, Dr. Rindahl recommended conservative treatment. AR 460. . 6 AR 460. The doctor could not predict how long the associated pain would last, but in light of 7 Plaintiff’s age the L1 fracture would likely heal in time AR 460. Because of the limited nature of 8 the L3 fracture, the doctor advised against treatment. AR 460. Plaintiff agreed with Dr. 9 Rindahl’s recommendation to wait and see whether her pain continued to improve. AR 460. 10 In October 2013, Dr. Rindahl’s partner, Jeffrey Eric Saavedra, M.D., questioned whether 11 Plaintiff’s pain resulted from the fractures or from degenerative arthritis. AR 463. 12 In August 2014, Dr. Sachau referred Plaintiff to a vascular surgeon for evaluation of 13 painful veins, and to a pain clinic for her continuing back pain. AR 430. 14 From October 2014 through September 2015, Perminder Bhatia, M.D., treated Plaintiff at 15 the Neuro-Medical Pain Center. AR 470-86, 530-41. Plaintiff, who rated her pain from 6-7/10, 16 sought to discontinue oxycodone, which was constipating. AR 470. She was drinking alcohol six 17 to eight times daily. AR 470. Dr. Bhatia prescribed the Flector (diclofenac) patch; Lidoderm 18 patches to be applied locally for pain; and, diclofenac and gabapentin cream for her neck. AR 19 471. 20 In December 2014, Plaintiff told Dr. Bhatia that the Lidoderm patches provided relief. 21 AR 472. She continued to use oxycodone. AR 472. The doctor recommended exercise for bone 22 health and weight maintenance, accompanied by dietary changes for weight management. AR 23 473-74. In January 2015, Plaintiff discontinued all medication after developing a skin rash from 24 Norco and gastric problems from anti-inflammatory medications. AR 476. 25 In May 2015, Plaintiff was doing well with Naproxen. AR 477. In June 2015, diclofenac 26 was no longer helping Plaintiff. AR 479. A bone scan ruled out arthritis as a cause of Plaintiff’s 27 /// 28 /// 1 pain. AR 480, 483-86. In July 2015, Dr. Bhatia noted that physical therapy was helping Plaintiff 2 significantly.2 AR 481. The doctor prescribed Percocet for use only if needed. AR 481. 3 In the fall of 2015, neurosurgeon Henry E. Aryan, M.D., performed a consultative 4 examination at Dr. Sachau’s request. AR 508-16. Recounting that the illness arose following a 5 fall in the mountains, Dr. Aryan noted that Plaintiff experienced chronic back pain and 6 occasional pain and discomfort in her legs. AR 508. Physical therapy was not helpful. AR 508. 7 Plaintiff drank whisky, which provided some relief. AR 508. Her medications included 8 Synthroid, hydrochlorothiazide, diclofenac-misoprostol, gabapentin, oxycodone-acetaminophen, 9 lidocaine patch and clobetasol propionate (bulk). AR 508-09. Reported symptoms included 10 chills, fatigue, fever, swelling of legs and joints, weight gain, nervousness, depression and rash. 11 AR 509-10. 12 Dr. Aryan’s September 2015 examination revealed no abnormalities of standing and 13 walking. AR 510. Palpation revealed tenderness along the midline thoracic spine from T1 to T12 14 and at L1-2; mild tenderness over the lower lumbar spine; and, slight tenderness over the sacro- 15 iliac joints bilaterally. AR 510. Except for 4/5 strength of the right exterior hallucis longus, 16 Plaintiff had full strength in her lower extremities. AR 510. X-ray studies revealed a truncal shift 17 toward the right; well maintained lordosis; mild compression deformity and small anterior spurs 18 at L1; moderate narrowing at L5-S1; and, anterior spurs at L3-4. AR 511. Dr. Aryan diagnosed 19 thoracolumbar scoliosis, lumbar thoracic spondylosis, lumbar radiculopathy, strenosis chronic 20 pain syndrome and nicotine use. AR 512. Dr. Aryan ordered MRI studies to determine whether 21 surgery or injection therapy might be appropriate. AR 512. 22 In October 2015, Dr. Aryan met with Plaintiff to review the MRI studies. AR 513-16. 23 The doctor diagnosed: 24 T2-weighted sagittal images show well-maintained lordosis, Chronic compression deformity is noted at L1 and to a lesser extent 25 at T12. Small posterior disc extrusion noted at L3-4 with slight cephalad migration. Mild loss of disc height at L3-4, L4-5, and more 26 advanced at L5-S1. The foramen are fairly patent throughout on parasagittal images with some narrowing towards the right side at 27 2 A July 2015 physical therapy progress report indicated that physical therapy was reducing Plaintiff’s need for pain 28 medications and improving her range of motion. AR 490. 1 L3-4, L4-5, and L5-S1. Axial images at T12-L1 and L1-2 show no significant herniation or stenosis. Perhaps a very small central 2 protrusion at L1-2 without stenosis. L2-3, slight disc bulge with high intensity zone. No significant stenosis. L3-4, small central disc 3 extrusion. There is mild foraminal narrowing, right greater than left. Minimal central stenosis. L4-5, broad-based disc bulge with no 4 significant stenosis. The foramen is patent. L5-S1, no significant herniation or stenosis. 5 AR 515. 6 Characterizing the MRI as showing “diffuse degenerative changes” with degenerative 7 changes most notable at L3-4, and chronic compression deformities at T12 and L1, Dr. Aryan 8 recommended against surgery. AR 515. “It is still not clear where most of her pain is coming 9 from,” he noted. AR 515. The doctor referred Plaintiff for additional nonoperative treatments 10 (injections) in addition to the pain medication prescribed by Dr. Bhatia. AR 515-16. 11 In November 2015, Rasheed Amireh, M.D., performed a lumbar facet joint injection at 12 L3-4, L4-5 and L5-S-1 bilaterally. AR 548-49. The procedure provided 70% pain relief and 13 improved range of motion for several days. AR 554-57. In January 2016, Dr. Amireh performed 14 a bilateral lumbar medial branch block at L3-4, L4-5 and L5-S1. AR 546-47. The procedure 15 provided no pain relief and did not increase Plaintiff’s range of motion. AR 551-53. 16 At a follow-up appointment in May 2016, Dr. Aryan was still not certain what was 17 causing Plaintiff’s back pain although her response to Dr. Amireh’s injections suggested the 18 problems arose from the L3-4 disc.3 AR 579, 582. Epidural injections had provided pain relief 19 and reduced Plaintiff’s need for pain medication until she was required to exert herself physically 20 to care for her son, who had been injured in an automobile accident. AR 57. The doctor 21 observed good walking, standing and balance; full strength in the lower extremities; negative 22 straight-leg raising; and, mild tenderness over the lower lumbar spine and paraspinal muscles. 23 AR 581. 24 Following an MRI study in June 2016, Dr. Aryan diagnosed spinal instability of the 25 lumbar region; discogenic low back pain; annular tear of lumbar disc; and, lumbar spondylosis 26 with radiculopathy. AR 575-78. However, the doctor noted that Plaintiff had no severe central 27 3 The content of Dr. Aryan’s notes suggests that Plaintiff may have received more injections than those for which 28 notes are included in the record. 1 stenosis at any point, and that she was having little radicular pain. AR 576. The sole remaining 2 option was spinal surgery, but Dr. Aryan advised Plaintiff that surgery presented potential risks 3 and complications; was not likely to result in Plaintiff’s being pain free; and that even assuming 4 Plaintiff experienced sufficient pain relief to return to work, she was unlikely to be hired after not 5 working for three years. AR 576. 6 Beginning in March 2017, Plaintiff moved to primary care physician Asha S. Sidhu at 7 “CMC,” where nurse practitioners and physician assistants conducted Plaintiff’s periodic visits. 8 See AR 585-615. At the initial appointment with Marie de Masi, P.A., Plaintiff reported that she 9 had been injured four years earlier when she fell about four feet off a mountain and fractured two 10 vertebrae. AR 609. In the course of the transition to the new medical practice, Plaintiff had cut 11 her prescription pain medications in half and had obtained Tramadol from Mexico when her 12 oxycodone ran out. AR 609. Ms. de Masi noted wheezing in Plaintiff’s lungs and advised 13 Plaintiff that smoking likely exacerbated her pain. AR 609. Plaintiff agreed to think about 14 quitting. AR 609. Ms. de Masi changed Plaintiff’s prescription from oxycodone to Norco. AR 15 609. 16 When Plaintiff saw Sheri L. Oswald, P.A., in April 2017, she was not tolerating Norco. 17 AR 601. Norco nauseated Plaintiff who was eating poorly and had lost 14 pounds. AR 601. 18 Instead, Ms. Oswald prescribed oxycodone-acetaminophen and the Flector patch. AR 602. By 19 her next appointment in May 2017, Plaintiff was feeling better and was stretching and exercising. 20 AR 598. 21 After bone density studies in August 2017, Ms. Oswald prescribed calcium and Vitamin D 22 supplements and advised Plaintiff to begin weight-bearing exercises to strengthen her bones. AR 23 588-92. In November 2017, Plaintiff reported pain in her right elbow. AR 585. Her back pain 24 was worse because of the change in weather. AR 585. 25 In January 2018, Plaintiff transferred care to Dry Creek Medical and Urgent Care, where 26 she was treated by Tony Reid, P.A.C.. AR 646-60. 27 In July 2018, Plaintiff was transported to the emergency department of Madera 28 Community Hospital after becoming intoxicated and expressing suicidal ideation. AR 47-70. 1 Plaintiff’s blood alcohol level was 0.283 g/dl. AR 56. Although Plaintiff allegedly drank to 2 relieve pain not addressed by her prescription pain medications, testing showed no evidence of 3 salicylates, acetaminophen, opiates, benzo diazepam or other prescription medications. AR 51- 4 52, 56. Plaintiff was hospitalized on a 5150 hold. AR 62. 5 B. Plaintiff’s Testimony 6 7 Plaintiff (born March 1964) lived with her husband and teen-aged son. AR 75. She had 8 been fired from her job as a dealer at Chukchansi Gold Casino because her back pain resulted in 9 poor performance and excessive absences. AR 76, 84. 10 Plaintiff experienced constant pain as well as medication side effects including irritability 11 and difficulty focusing. AR 76. Plaintiff testified that she could stand or sit for twenty to thirty 12 minutes before needing to change position, and could walk for about forty minutes. AR 77. She 13 needed to elevate her legs four or five times daily for twenty to thirty minutes to relieve the 14 15 pressure on her back. AR 77. She could lift up to eight pounds. AR 78. Plaintiff took narcotics 16 and muscle relaxers which made her drowsy, irritable, unfocused and nauseous. AR 79. 17 Injections and physical therapy provided little relief. AR 79. Plaintiff experienced relief from 18 ice, heat and medications. AR 79. 19 Plaintiff could perform personal care and hygiene without assistance. AR 78. She could 20 do laundry, sweeping, and grocery shopping, and could cook side dishes that did not require 21 standing in the kitchen. AR 78. Plaintiff was able to drive. AR 79. Plaintiff enjoyed being 22 23 outside, which helped relieve her depression. AR 78. She also enjoyed joining her husband when 24 he drove to Fresno from their home in Coarsegold. AR 79. She regularly went out to lunch with 25 friends. AR 84. 26 Plaintiff’s adult function report was generally consistent with her testimony. AR 239-47. 27 /// 28 1 IV. Standard of Review 2 Pursuant to 42 U.S.. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 5 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 6 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 7 within the record that could lead a reasonable mind to accept a conclusion regarding disability 8 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 9 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 10 omitted). When performing this analysis, the court must “consider the entire record as a whole 11 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 12 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 13 omitted). 14 If the evidence reasonably could support two conclusions, the court “may not substitute its 15 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 16 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 17 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 18 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 19 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 20 V. The Disability Standard 21 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 22 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 23 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 24 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 25 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 26 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 27 him, or whether he would be hired if he applied for work. 28 42 U.S.C. §1382c(a)(3)(B). 1 To achieve uniformity in the decision-making process, the Commissioner has established 2 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 3 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 4 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 5 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 6 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 7 medically determinable “severe impairments,” (3) whether these impairments meet or are 8 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 9 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 10 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 11 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 12 VI. Summary of the ALJ’s Decision 13 The Administrative Law Judge found that Plaintiff had not engaged in substantial gainful 14 activity since the alleged onset date of June 15, 2013. AR 33. Her severe impairment was 15 degenerative disc disease of the lumbar and thoracic spine. AR 33. None of the severe 16 impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 17 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). AR 36. 18 The ALJ concluded that Plaintiff had the residual functional capacity to perform light 19 work as defined in 20 C.F.R. § 416.967(b), and was capable of lifting 20 pounds occasionally and 20 ten pounds frequently; standing, walking or sitting for six hours in an eight-hour workday; 21 frequent climbing of ladders, ropes and scaffold; occasional stooping; and, frequent crouching. 22 AR 36. Plaintiff required the ability to alternate sitting and standing at thirty-minute intervals. 23 AR 36. 24 Plaintiff was unable to perform any past relevant work. AR 40. However, considering 25 Plaintiff’s age, education, work experience, and residual functional capacity, jobs that Plaintiff 26 could perform existed in significant numbers in the national economy. AR 40. Accordingly, the 27 ALJ found that Plaintiff was not disabled at any time from June 15, 2013, the alleged onset date, 28 through April 12, 2018, the date of the decision. AR 41. 1 VII. The ALJ Properly Assessed the Reliability of Plaintiff’s Testimony 2 Plaintiff contends that the ALJ erred in rejecting Plaintiff’s testimony concerning her pain 3 symptoms and limitations. The Commissioner disagrees, correctly emphasizing that applicable 4 law precludes granting disability benefits based on a claimant’s subjective representations. 5 An ALJ is responsible for determining credibility, resolving conflicts in medical 6 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 7 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v. 8 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 9 To determine whether the ALJ’s findings are supported by sufficient evidence a court 10 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 11 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 12 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown- 13 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized 14 determinations like a claimant’s entitlement to disability benefits, Congress places a premium 15 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the 16 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting 17 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. 18 Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts 19 should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, 20 and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 21 F.3d at 1098). In this case, the ALJ relies on inconsistency between the testimony and objective 22 evidence that is without support in the record as a whole and in the ALJ’s own findings. 23 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 24 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 25 subjective symptom evaluation is not “an examination of an individual’s character” but an 26 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 27 16-3p at 1-2. 28 /// 1 A claimant’s statements of pain or other symptoms are not conclusive evidence of a 2 physical or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 3 “An ALJ cannot be required to believe every allegation of [disability], or else disability benefits 4 would be available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. 5 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 6 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 7 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 8 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the 9 claimant must produce objective medical evidence of an impairment that could reasonably be 10 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; 11 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that 12 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the 13 alleged symptoms.” AR 30. The ALJ did not find Plaintiff to be malingering. 14 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ 15 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent 16 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 17 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by 18 symptoms to a greater or lesser extent than other individuals with the same medical impairments, 19 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In 20 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical 21 evidence; the claimant’s representations of the intensity, persistence and limiting effects of his 22 symptoms; statements and other information from medical providers and other third parties; and, 23 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 24 “The determination or decision must contain specific reasons for the weight given to the 25 individual’s symptoms, be consistent with and supported by the evidence, and be clearly 26 articulated so the individual and any subsequent reviewer can assess how the adjudicator 27 evaluated the individual’s symptoms.” S.S.R. 16-3p at *10. 28 /// 1 Because a “claimant’s subjective statements may tell of greater limitations than can 2 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 3 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter, 4 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602). See also Bunnell v. Sullivan, 947 5 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an underlying medical 6 impairment, the ALJ may not discredit the claimant’s testimony regarding the severity of his 7 symptoms solely because they are unsupported by medical evidence). “Congress clearly meant 8 that so long as the pain is associated with a clinically demonstrated impairment, credible pain 9 testimony should contribute to a determination of disability.” Id. (internal quotation marks and 10 citations omitted). 11 The law does not require an ALJ simply to ignore inconsistencies between objective 12 medical evidence and a claimant’s testimony. “While subjective pain testimony cannot be 13 rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 14 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 15 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 16 C.F.R. § 404.1529(c)(2)). As part of the analysis of the record as a whole, an ALJ properly 17 considers whether the objective medical evidence supports or is consistent with a claimant’s pain 18 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to 19 diminish residual functional capacity only to the extent that the alleged functional limitations and 20 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 21 other evidence”). “[O]bjective medical evidence is a useful indicator to help make reasonable 22 conclusions about the intensity and persistence of symptoms, including the effects those 23 symptoms may have on the ability to perform work-related activities.” S.S.R. 16-3p at 6. 24 Because objective medical evidence may reveal the intensity, persistence and limiting effects of a 25 claimant’s symptoms, an ALJ must consider whether the symptoms reported by a claimant are 26 consistent with medical signs and laboratory findings of record. Id. For example, “reduced joint 27 motion, muscle spasm, sensory deficit, and motor disruption illustrate findings that may result 28 from, or be associated with, pain.” Id. 1 In the case at bar, the ALJ began her analysis by summarizing the consistent 2 representations set forth by Plaintiff’s sister, Donna Konopacki, in the third-party adult function 3 report, and by Plaintiff in her adult function report, and hearing testimony. AR 37. Although 4 Plaintiff reported that her symptoms and resulting limitations impaired her ability to prepare 5 meals, perform personal care, sleep, complete household chores, do yard work and drive, Plaintiff 6 was still able to lift five to ten pounds, climb one flight of stairs and walk for twenty to thirty 7 minutes before needing to rest. AR 37. Similarly, Ms. Konopacki indicated that Plaintiff 8 experienced constant pain and had limitations of walking, sitting, standing, squatting and 9 bending, but was still able to prepare simple meals, do the dishes and laundry, clean the kitchen, 10 water the lawn, care for her pets, manage personal care, drive and grocery shop. AR 37. 11 Looking to the medical records, the ALJ acknowledged Plaintiff’s impairments but 12 concluded that despite limitations Plaintiff remained able to perform work consistent with a 13 residual functional capacity to perform work subject to the following limitations: lifting twenty 14 pounds occasionally and ten pounds frequently; standing, walking and/or sitting six hours in an 15 eight-hour work day; frequently climbing ladders, ropes and scaffolds; occasionally stooping, 16 frequently crouching; and alternating sitting and standing in thirty minute increments. AR 36, 37. 17 Plaintiff was able to mitigate pain and promote mobility through various means at various times, 18 including medications, spinal injections, physical therapy and application of heat and cold. AR 19 37-38. The ALJ wrote: 20 Throughout the relevant period, some lumbar testing showed the claimant sometimes exhibited tenderness, restricted range of motion, 21 and minimal diminished strength in the lower extremities. However, occupational therapy records show manual muscle testing was found 22 to be normal in the bilateral lower extremities, including negative straight leg raise, Kernig’s, FABER, and femoral nerve tests. 23 Additionally, some musculoskeletal exams also contained some of the following findings: normal cervical and lumbar movement, intact 24 deep tendon reflexes, negative Babinski’s sign, 5/5 muscle strength in the lower extremities, and normal gait. Therefore, I have 25 accounted for the claimant’s allegations of lower back pain and the medical evidence which shows degenerative changes in the lumbar 26 and thoracic spine in finding that the claimant is capable of the residual functional capacity herein. 27 After careful consideration of the evidence, I find that the claimant’s 28 medically determinable impairment could reasonably be expected to 1 cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence, and limiting effects of these 2 symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this 3 decision. 4 AR 38 (citations to administrative record omitted). 5 The hearing decision sets forth abundant evidence in the record to support the ALJ’s 6 determination that Plaintiff’s representations to the agency were not fully reliable. The Court will 7 not second guess the ALJ’s assessment of Plaintiff’s credibility. 8 VIII. Sufficient Evidence Supported the ALJ’s Determination 9 Plaintiff contends that the ALJ erred in rejecting the opinion of physician assistant Sheri 10 Oswald concerning Plaintiff’s residual functional capacity. The Commissioner counters that the 11 ALJ appropriately evaluated Ms. Oswald’s opinion as an “other source,” as required by 12 applicable regulations and opinions. The Court agrees with the Commissioner. 13 A. Medical Opinions 14 1. Agency Physicians 15 On initial review, J. Frankel, M.D., opined that Plaintiff was capable of light work. AR 16 96. Psychologist H. Bilik, Psy.D., opined that Plaintiff had no significant mental health 17 impairment. AR 96. 18 On reconsideration, D. Tayloe, M.D.,4 agreed with Dr. Frankel’s assessment that Plaintiff 19 was capable of light work. AR 109. R. Paxton, M.D., agreed that Plaintiff had no significant 20 mental health impairment. AR 110. 21 2. Consultative Psychiatric Opinions 22 In December 2015, psychologist Mary Lewis, Psy.D., performed a consultative 23 psychiatric examination of Plaintiff. AR 519-24. Other than nicotine dependence, Dr. Lewis 24 identified no significant mental health impairments. AR 523-24. 25 Psychologist Jerry R. Livesay, Ph.D. performed a second consultative examination in 26 September 2017. AR 564-72. Complaining of severe pain, Plaintiff stood at all times in the 27 4 The ALJ refers to this agency physician as Dr. Taylor (AR 38) although the initial disability determination was 28 signed by Dr. Tayloe (AR 109). The Court will refer to this individual as Dr. Tayloe. 1 waiting room and during the examination. AR 564. Driving herself to the appointment had 2 exacerbated the pain. AR 564. She reported that she had not slept for 36 hours and was “wiped 3 out.” AR 564. Plaintiff reported reluctance to take pain medications and told Dr. Livesay that 4 she had become irritable and jumpy. AR 564-65. She used a pack of cigarettes daily and used 5 wine to settle her nerves, but never had more than two glasses of wine at a time. AR 566. In the 6 course of the examination, Plaintiff frequently digressed to complain of her pain. AR 567. 7 Dr. Livesay diagnosed generalized anxiety disorder; depressive disorder due to another 8 medical condition; sleep disorder, moderate, chronic; and, tobacco use disorder. AR 569. In the 9 doctor’s opinion, Plaintiff’s ability to perform simple and repetitive tasks and to accept 10 supervision was unimpaired. AR 569. Plaintiff’s ability to perform complex and detailed tasks, 11 and to interact with coworkers and the public was mildly impaired. AR 569. Plaintiff was 12 moderately impaired in her ability to deal with the usual stress encountered in the workplace, to 13 maintain regular attendance, and to complete a normal workday or workweek without 14 interruptions from her psychiatric condition. AR 569. Dr. Livesay noted that Plaintiff’s anxiety 15 and agitation due to depression interfered with her social skills and adaption to changes in 16 routine. AR 571. 17 3. Internal Medicine Source Statement 18 An undated medical source statement signed by an internist, whose signature is illegible, 19 indicated that Plaintiff could lift and carry less than ten pounds; stand or walk less than two hours 20 in an eight hour workday; sit in one-hour intervals; perform limited pushing and pulling with 21 upper and lower extremities; never perform postural activities; occasionally reach and handle; 22 and, frequently finger and feel. AR 499-50. Plaintiff should have limited exposure to 23 temperature extremes, humidity, wetness and hazards. AR 502. 24 4. Questionnaire Completed by Ms. Oswald 25 On February 7, 2018, less than a week before the agency hearing, Ms. Oswald completed 26 a one-page questionnaire in which she opined that the problems for which she had treated 27 Plaintiff precluded Plaintiff from performing full time work at any exertional level. AR 661. 28 Plaintiff’s primary impairments were degenerative disc disease of the lumbar spine, scoliosis, 1 osteoarthritis, plantar fascial fibromatosis and osteopenia. AR 661. Plaintiff’s spinal stenosis and 2 spondylosis was confirmed by magnetic resonance imaging. AR 661. 3 In Ms. Oswald’s opinion, Plaintiff could lift up to eight pounds, but not repetitively. AR 4 661. She could sit, stand or walk for twenty to thirty minutes at a time for a total of two to three 5 hours in an eight-hour workday. AR 661. During the remaining two hours of an eight-hour 6 workday Plaintiff would need to lie down with her legs elevated, and apply heat or ice on her 7 back. AR 661.. 8 B. Determining Residual Functional Capacity 9 “Residual functional capacity is an assessment of an individual’s ability to do sustained 10 work-related physical and mental activities in a work setting on a regular and continuing basis.” 11 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 12 restrictions which result from an individual’s medically determinable impairment or combination 13 of impairments. SSR 96-8p. 14 A determination of residual functional capacity is not a medical opinion, but a legal 15 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 16 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 17 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 18 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so the 19 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary 20 ambiguities. Andrews, 53 F.3d at 1039-40. 21 “In determining a claimant's RFC, an ALJ must consider all relevant evidence in the 22 record such as medical records, lay evidence and the effects of symptoms, including pain, that are 23 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See 24 also 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant 25 medical and other evidence). “The ALJ can meet this burden by setting out a detailed and 26 thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and 27 making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 28 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 1 The opinions of treating physicians, examining physicians, and non-examining physicians 2 are entitled to varying weight in residual functional capacity determinations. Lester v. Chater, 81 3 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 4 professional, who has a greater opportunity to know and observe the patient as an individual. Id.; 5 Smolen, 80 F.3d at 1285. The opinion of an examining physician is, in turn, entitled to greater 6 weight than the opinion of a non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th 7 Cir. 1990). An ALJ may reject an uncontradicted opinion of a treating or examining medical 8 professional only for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a 9 contradicted opinion of a treating professional may be rejected for “specific and legitimate” 10 reasons. Id. at 830. However, the opinions of a treating or examining physician are “not 11 necessarily conclusive as to either the physical condition or the ultimate issue of disability.” 12 Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 13 Physician assistants are not evaluated as if they were physicians. A physician assistant is 14 not considered an acceptable medical source under 20 C.F.R. § 416.913.5 Instead physician 15 assistants are considered to be other sources. 20 C.F.R. § 416.913(d)(1) (listing medical sources 16 that are considered other sources, including nurse practitioners, physician assistants, naturopaths, 17 chiropractors, audiologists, and therapists). Unlike the opinions of physicians, the opinions of 18 physician assistants are not entitled to special weight. An ALJ may reject the opinions of other 19 sources by giving “reasons germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 20 1104, 1111 (9th Cir. 2012); Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 21 2010). Factors used to evaluate a physician assistant’s opinion include: (1) examining 22 relationship; (2) length of treatment relationship and frequency of examination; (3) supportability 23 of opinion; (4) consistency with the record; (5) specialization; and (6) other factors supporting or 24 contradicting the opinion. 20 C.F.R. § 416.927 (c) and (f)(1). Plaintiff concedes that Ms. Oswald 25 is properly considered an “other source” under the regulation. Doc. 10 at 9. 26 5 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, physician assistants. 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). The revisions do not apply to Plaintiff’s claim, which was filed July 7, 28 2015. 1 C. The ALJ Properly Analyzed Evidence in the Record as a Whole 2 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 3 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 4 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4) (“the more 5 consistent an opinion is with the record as a whole, the more weight we will give to that 6 opinion”). 7 In this case, the ALJ determined at step two that Plaintiff’s alleged mental health 8 impairments were not severe. Plaintiff does not challenge that determination in this action. 9 Accordingly, the ALJ appropriately determined Plaintiff’s residual functional capacity based on 10 her only severe impairment: degenerative disc disease of the lumbar and thoracic spine. 11 In addition to the medical treatment evidence, the ALJ gave substantial weight to the 12 opinions of Drs. Frankel and Tayloe, which she found to be based on the medical record available 13 to them along with applicable provisions of Social Security disability law. AR 38-39. Moreover, 14 the opinions were supported by the medical record as a whole which documented both 15 degenerative changes of Plaintiff’s thoracic and lumbar spine, and the course of treatment as 16 Plaintiff’s condition developed. AR 39. 17 The ALJ gave little weight to the internal medicine medical source statement, to which the 18 ALJ assigned a date of August 29, 2015. AR 39. The ALJ found the statement to be overly 19 restrictive and lacking any explanation for such extreme restrictions. AR 39. Viewed in the 20 contest of the record as a whole, the source statement was inconsistent with evidence of the 21 activities Plaintiff was performing in her daily life; her positive response to medications, 22 injections and therapy; negative results on straight leg raising and other objective tests assessing 23 degenerative disc disease; and, multiple observations of normal strength and range of motion. 24 AR 39. 25 The ALJ also gave little weight to Ms. Oswald’s opinion, writing: “This opinion is given 26 little weight as it is based on a one-time examination of the claimant, does not provide an 27 adequate explanation for the opinion, and is not supported by the medical evidence of record 28 /// 1 showing relatively normal musculoskeletal examinations and treatment with injections, physical 2 therapy, and medication.” AR 39 (citations to administrative record omitted). 3 Plaintiff correctly contends that Plaintiff saw Ms. Oswald on five occasions between April 4 27 and November 9, 2017, not the single instance noted in the hearing decision. The Court is not 5 persuaded this mistake constitutes reversible error. Proportionately, Ms. Oswald’s treatment of 6 Plaintiff is a tiny portion of the extensive testing and treatment documented in the record from 7 2013 to 2018. Plaintiff acknowledges that a brief treatment relationship is entitled to less weight 8 than one that was long-term. Doc. 10 at 9. Further, Ms. Oswald’s treatment of Plaintiff was 9 limited to medication management and routine general medical care. 10 More importantly, as the ALJ recognized, Ms. Oswald’s one-page opinion is brief and 11 perfunctory, responding in brief phrases to the questions posed and offering no explanation of her 12 opinion that Plaintiff’s residual functional capacity is severely limited. Nothing in Ms. Oswald’s 13 treatment notes supports her opinion that Plaintiff could only occasionally lift eight pounds if held 14 close to the body, or that Plaintiff could only sit or walk and stand for two to three hours in an 15 eight-hour workday. To the contrary, as the ALJ stated generally, Ms. Oswald’s own notes 16 indicated that Plaintiff was in no acute distress (AR 586, 589, 598, 602); understood that she 17 needed a gym membership and personal trainer (AR 588); had normal strength of her upper and 18 lower extremities (AR 589, 598, 602); had normal extremities with no edema (AR 589, 595, 598, 19 602); was able to stretch and exercise (AR 598); denied fatigue and sleep disturbance (AR 594); 20 denied joint stiffness or pain (AR 594); doing well on pain medications (AR 598); and, had an 21 intact sensory exam (AR 602). 22 In addition, Plaintiff’s and Ms. Oswald’s reliance on a laundry list of ailments 23 (degenerative disc disease, scoliosis, osteoarthritis, plantar fibromatosis and osteopenia) does not 24 rehabilitate Ms. Oswald’s opinion. Evidence elsewhere in the record ruled out osteoarthritis as 25 the cause of Plaintiff’s pain (AR 480, 483-86) and indicated that Plaintiff’s scoliosis was mild 26 without attributing any pain to that condition (AR 512, 577). Although Plaintiff’s medical 27 records document a longstanding diagnosis of plantar fibromatosis (a disease of the feet), the 28 record includes no evidence that this condition was ever treated in the relevant time period, or that 1 it resulted in any functional impairment. Similarly, the record includes no evidence that 2 osteopenia had any functional effect on Plaintiff.6 3 Although Plaintiff would have the Court interpret the record and Ms. Oswald’s opinion 4 differently, the Court is not required to accept Plaintiff’s characterization of the evidence. The ALJ fully supported her determination based on multiple medical opinions and the evidence of 5 record. Even if this Court were to accept that the record could support Plaintiff’s opinion, the 6 record amply supports the ALJ’s interpretation as well. When the evidence could arguably 7 support two interpretations, the Court may not substitute its judgment for that of the 8 Commissioner. Jamerson, 112 F.3d at 1066. 9 IX. Conclusion and Order 10 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 11 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 12 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of 13 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of 14 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Doreen 15 Blanchard. 16 17 IT IS SO ORDERED. 18 Dated: June 7, 2020 /s/ Gary S. Austin 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 6 Osteopenia is reduced bone density that is not normal but is not as reduced as osteoporosis. Caused by deficiencies 27 of calcium, Vitamin D and exercise, it may be treated with calcium and vitamin D supplementation and regular light exercise such as walking. Prescription medications are also available. Gulay Karaguzel and Michael F. Holick, 28 Diagnosis and Treatment of Osteopenia, pubmed.ncbi.nlm.nih.gov/21234087 (accessed June 3, 2020).