(SS) Carreon 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 HERMINIA O. CARREON, No. 1:19-cv-00759-GSA 12 Plaintiff, 13 v. ORDER DIRECTING ENTRY OF 14 JUDGMENT IN FAVOR OF ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY 15 Security, AND AGAINST PLAINTIFF 16 Defendant. 17 18 19 I. Introduction 20 Plaintiff Herminia O. Carreon (“Plaintiff”) seeks judicial review of the final decision of 21 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application 22 for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is 23 currently before the Court on the parties’ briefs which were submitted without oral argument to 24 the Honorable Gary S. Austin, United States Magistrate Judge.1 See Docs. 20, 24 and 25. Having 25 reviewed the record as a whole, the Court finds that the ALJ’s decision is supported by substantial 26 evidence and applicable law. Accordingly, Plaintiff’s appeal is denied. 27 /// 28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 6 and 8. 1 II. Procedural Background 2 On May 5, 2016, Plaintiff filed the pending application for disability insurance benefits 3 alleging disability beginning December 1, 2015. AR 15. The Commissioner denied the 4 application initially on September 2, 2016, and following reconsideration on December 21, 2016. 5 AR 15. 6 On January 26, 2017, Plaintiff filed a request for a hearing. AR 15. Administrative Law 7 Judge Scot Septor presided over an administrative hearing on February 15, 2018. AR 37-69. 8 Plaintiff appeared and was represented by an attorney. AR 37. On June 13, 2018, the ALJ denied 9 Plaintiff’s application. AR 15-32. 10 The Appeals Council denied review on March 26, 2019. AR 1-6. On May 29, 2019, 11 Plaintiff filed a complaint in this Court. Doc. 1. 12 III. Factual Background 13 A. Plaintiff’s Testimony 14 Plaintiff (born January 1959) shared a house with her fiancé and her mother. AR 44. She 15 worked in various jobs as an electronics assembler. AR 45-47, 70. In December 2015, Plaintiff’s 16 employer “laid her off” because she was too frequently leaving work early. AR 47-48. Plaintiff 17 testified that her lower back was so painful that she was unable to work a full day. AR 48-49. 18 She could not sit for long periods. AR 211. She experienced numbness and a loss of strength in 19 her upper extremities, which she attributed to arthritis. AR 49, 60. Despite therapy and massage 20 her pain was worsening. AR 50. 21 Plaintiff used Tramadol and Gabapentin for pain. AR 51. Sometimes the medications 22 helped, but sometimes they caused nausea. AR 51-52. An epidural injection relieved Plaintiff’s 23 pain for only a single day. AR 57. The pain impaired her concentration. AR 57. 24 Plaintiff was able to walk 100 steps to her mailbox. AR 53. She cooked less than before 25 because she was “always stabbing [her] finger” due to difficulties holding the food. AR 53-54. 26 When her hands were numb Plaintiff typically purchased sandwiches, soup or salads. AR 213. 27 She frequently dropped dishes, particularly when washing them. AR 54. Plaintiff’s household 28 /// 1 chores included only dusting. AR 55. The vacuum was too heavy for her, and her fiancé had 2 taken responsibility for the laundry. AR 55-56. 3 Plaintiff was able to drive a car. AR 56. She performed her own personal care without 4 help. AR 56. Plaintiff was no longer able to take walks, jog or go to the gym. AR 215. 5 B. Third Party Adult Function Report 6 Plaintiff’s fiancé, Herogildo Placheta, stated that Plaintiff had back pain and arthritis in 7 her hand and heel that impaired her ability to walk and bend. AR 225. Her back pain also caused 8 poor sleep. AR 226. Plaintiff remained able to perform her own personal care, housework and 9 laundry. AR 226-27. 10 C. Medical Records 11 The record includes treatment notes from Roy Tabigo-On, M.D., and other treating 12 professionals at Apex Medical Group, dating from December 2015 to December 2017. AR 295- 13 344, 364-90, 426-78, 482-85. Diagnoses included dyslipidemia, anxiety, backache and chronic 14 back pain. AR 295. Depression and vision or eye problems were also noted. AR 297. Despite 15 these diagnoses, Dr. Tabigo-On repeatedly noted normal mood and affect, normal ambulation and 16 normal gait. See, e.g., AR 301-02, 305-06, 309-10, 313-14, 317. 17 In May 2016, x-rays of Plaintiff’s right hand revealed osteoarthritic changes of the second 18 digital interphalangeal joint. AR 323. X-rays of her left ankle showed a small plantar calcaneal 19 spur but no acute abnormality. AR 325. In November 2016, x-rays of Plaintiff’s lumbar spine 20 were unremarkable. AR 382. In August 2017, magnetic resonance imaging of Plaintiff’s lumbar 21 spine showed narrowing changes at L5-S1 without neural impingement. AR 491. In October 22 2017, an ultrasound examination of Plaintiff’s abdomen revealed no acute or significant 23 abnormality. AR 489. 24 From December 2016 to December 2017, Plaintiff attended several psychotherapy 25 sessions with Lorene Garrett-Browder. AR 431-32, 438-39, 445, 451-52, 468-69, 477-78. Ms. 26 Garrett-Browder diagnosed anxiety disorder, depressive disorder and somatic symptom disorder 27 with prominent pain. AR 432. 28 /// 1 Neurologist Marco Lopez Vizcarra, M.D., evaluated and treated Plaintiff from March 2 through November 2017. AR 397-418. At each appointment the doctor found no abnormalities 3 of Plaintiff’s eyes, cardiovascular system, musculoskeletal system and neurological system. AR 4 397-418. Plaintiff was taking hydrocodone without relief.2 AR 407, 410. The initial diagnosis 5 was carpal tunnel syndrome and cervical radiculopathy. AR 398. A subsequent EMG study 6 revealed no evident neuropathy or radiculopathy in Plaintiff’s upper extremities. AR 399. An 7 MRI of the cervical spine showed only mild to moderate spondylosis. AR 399, 416. Dr. Lopez 8 Vizcarra prescribed Gabapentin, which neither improved Plaintiff’s symptoms nor produced any 9 notable side effects. AR 405. In June 2017, Plaintiff reported that her back pain was worsening. 10 AR 405, 408. Although Plaintiff reported that she had herniated discs, Dr. Lopez Vizcarra noted 11 that the MRI of the lumbar spine showed only moderate spondylosis. AR 410. In fact, the 12 radiologist reported that except for disc narrowing at L5-S1, the lumbar MRI was unremarkable. 13 AR 417. A rheumatic panel was also unremarkable. AR 414. 14 In February 2018, orthopedist Sibel Deviren, M.D., administered a bilateral L5 15 transforaminal epidural injection. AR 515-517. Plaintiff reported that the injection relieved her 16 pain for only a day. AR 57. 17 IV. Standard of Review 18 Pursuant to 42 U.S.. §405(g), this court has the authority to review a decision by the 19 Commissioner denying a claimant disability benefits. “This court may set aside the 20 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 21 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 22 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 23 within the record that could lead a reasonable mind to accept a conclusion regarding disability 24 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 25 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 26 omitted). When performing this analysis, the court must “consider the entire record as a whole 27 2 Plaintiff may not have taken her medications regularly. The record includes two urine screens that failed to detect any opiates or other medications in Plaintiff’s system. AR 498-99, 502-03, 512. Two other urine screens were 28 positive for an expected metabolite of hydrocodone. AR 507, 509. 1 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 2 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 3 omitted). 4 If the evidence reasonably could support two conclusions, the court “may not substitute its 5 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 6 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 7 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 8 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 9 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 10 V. The Disability Standard 11 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 12 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 13 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 14 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 15 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 16 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 17 him, or whether he would be hired if he applied for work. 18 42 U.S.C. §1382c(a)(3)(B). 19 To achieve uniformity in the decision-making process, the Commissioner has established 20 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 21 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 22 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 23 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 24 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 25 medically determinable “severe impairments,” (3) whether these impairments meet or are 26 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 27 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 28 /// 1 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 2 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 3 VI. Summary of the ALJ’s Decision 4 The Administrative Law Judge found that Plaintiff had not engaged in substantial gainful 5 activity since the alleged onset date of December 1, 2015. AR 17. Her severe impairments were 6 degenerative disc disease of the lumbar spine and cervical spondylosis. AR 17. None of the 7 severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 8 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). AR 23-24. 9 The ALJ concluded that Plaintiff had the residual functional capacity to perform medium 10 work as defined in 20 C.F.R. § 404.1567(c), and was capable of lifting 50 pounds occasionally 11 and 25 pounds frequently; standing, walking or sitting for six hours in an eight-hour workday; 12 frequent climbing of ladders, ropes, scaffolds ramps and stairs; and, frequently stooping, reaching 13 overhead, reaching forward and reaching laterally with her right upper extremity. AR 24. 14 Plaintiff was able to perform her past relevant work as a semiconductor assembler. AR 15 31. Accordingly, the ALJ found that Plaintiff was not disabled at any time from December 1, 16 2015, the alleged onset date, through June 13, 2018, the date of the decision. AR 31-32. 17 VII. The ALJ Properly Assessed the Reliability of Plaintiff’s Testimony 18 Plaintiff contends that the ALJ erred in rejecting Plaintiff’s symptom testimony without 19 identifying particular findings that were inconsistent with Plaintiff’s representations. The 20 Commissioner disagrees, correctly emphasizing that applicable law precludes granting disability 21 benefits based solely on a claimant’s subjective representations. 22 An ALJ is responsible for determining credibility, resolving conflicts in medical 23 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 24 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v. 25 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 26 To determine whether the ALJ’s findings are supported by sufficient evidence a court 27 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 28 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown- 2 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized 3 determinations like a claimant’s entitlement to disability benefits, Congress places a premium 4 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the 5 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting 6 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. 7 Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts 8 should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, 9 and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 10 F.3d at 1098). 11 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 12 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 13 subjective symptom evaluation is not “an examination of an individual’s character” but an 14 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 15 16-3p at 1-2. 16 A claimant’s statements of pain or other symptoms are not conclusive evidence of a 17 physical or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 18 “An ALJ cannot be required to believe every allegation of [disability], or else disability benefits 19 would be available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. 20 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 21 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 22 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 23 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the 24 claimant must produce objective medical evidence of an impairment that could reasonably be 25 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; 26 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that 27 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the 28 alleged symptoms.” AR 25. 1 Here, the ALJ did not find Plaintiff to be malingering. If the claimant satisfies the first 2 step and there is no evidence of malingering, the ALJ must “evaluate the intensity and persistence 3 of [the claimant’s] symptoms to determine the extent to which the symptoms limit an individual’s 4 ability to perform work-related activities.” S.S.R. 16-3p at 2. “[S]ome individuals may experi 5 ence symptoms differently and may be limited by symptoms to a greater or lesser extent 6 than other individuals with the same medical impairments, the same objective medical evidence 7 and the same non-medical evidence.” S.S.R. 16-3p at 5. In reaching a conclusion, the ALJ must 8 examine the record as a whole, including objective medical evidence; the claimant’s 9 representations of the intensity, persistence and limiting effects of his symptoms; statements and 10 other information from medical providers and other third parties; and, any other relevant evidence 11 included in the individual’s administrative record. S.S.R. 16-3p at 5. “The determination or 12 decision must contain specific reasons for the weight given to the individual’s symptoms, be 13 consistent with and supported by the evidence, and be clearly articulated so the individual and 14 any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” 15 S.S.R. 16-3p at *10. 16 Because a “claimant’s subjective statements may tell of greater limitations than can 17 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 18 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter, 19 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602). See also Bunnell v. Sullivan, 20 947 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an underlying medical 21 impairment, the ALJ may not discredit the claimant’s testimony regarding the severity of his 22 symptoms solely because they are unsupported by medical evidence). “Congress clearly meant 23 that so long as the pain is associated with a clinically demonstrated impairment, credible pain 24 testimony should contribute to a determination of disability.” Id. (internal quotation marks and 25 citations omitted). 26 The law does not require an ALJ simply to ignore inconsistencies between objective 27 medical evidence and a claimant’s testimony. “While subjective pain testimony cannot be 28 rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 1 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 2 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 3 C.F.R. § 404.1529(c)(2)). As part of the analysis of the record as a whole, an ALJ properly 4 considers whether the objective medical evidence supports or is consistent with a claimant’s pain 5 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to 6 diminish residual functional capacity only to the extent that the alleged functional limitations and 7 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 8 other evidence”). “[O]bjective medical evidence is a useful indicator to help make reasonable 9 conclusions about the intensity and persistence of symptoms, including the effects those 10 symptoms may have on the ability to perform work-related activities.” S.S.R. 16-3p at 6. 11 Because objective medical evidence may reveal the intensity, persistence and limiting effects of a 12 claimant’s symptoms, an ALJ must consider whether the symptoms reported by a claimant are 13 consistent with medical signs and laboratory findings of record. Id. For example, “reduced joint 14 motion, muscle spasm, sensory deficit, and motor disruption illustrate findings that may result 15 from, or be associated with, pain.” Id. 16 The ALJ in this case began her analysis by considering Plaintiff’s allegations that she was 17 unable to work due to cervical and lumbar impairments, low back pain, arthritis, plantar fasciitis, 18 depression and anxiety. AR 24. He noted that “Plaintiff stopped working because she was laid 19 off as of December 1, 2015 rather than due to her alleged impairments.” AR 24. The ALJ 20 summarized Plaintiff’s testimony: 21 [Plaintiff] explained she would often leave work early due to back pain. She reported that she sometimes cannot handle the pain in her 22 lower back and pain spreads to her feet. She also alleged issues using her hands due to arthritis with tingling and numbness. She stated she 23 attends therapy, has back massages, uses a TENS unit, and does exercises. She also takes medications which sometimes help the 24 pain, but sometimes becomes nauseous. The medications also help her relax. 25 The claimant further testified she does chores around the house and 26 cooks once in a while. She reported she walks only 100 steps when she goes to the mailbox, but her feet hurt afterward. She states she 27 has problems with holding things because her hands go numb sometimes. She washes dishes, but sometimes drops things. She is 28 able to carry her plate and use eating utensils. She also dusts, but has 1 issues running the vacuum cleaner. She also does laundry sometimes. She is able to drive a car. She feels unable to work due 2 to concentration, which she thinks is due to pain. She is able to bathe and take care of herself. She watches television and reads, but hardly 3 understands what she reads. She stated she does not go out with friends. She uses a cell phone, but stated she sometimes drops it due 4 to strength and numbness problems. 5 AR 24-25. 6 The ALJ found that the evidence supported diagnoses of degenerative disc disease of the 7 lumbar spine and cervical spondylosis. AR 25. However, despite Plaintiff’s complaints, her 8 treating physicians repeatedly noted that she was in no acute distress and walked normally. AR 9 25. Other than paralumbar tenderness, medical examination and testing established no other 10 abnormalities. AR 25-26. Plaintiff complained of arthralgias, joint pain and back pain but 11 demonstrated no muscle weakness, no swelling of her extremities, no exercise intolerance, no arm 12 pain, no weakness, no numbness, no depression and no fatigue. AR 25-26. Toxicology 13 screenings indicated no presence of Hydrocodone or other opioids or benzodiazepines.3 AR 25- 14 26. The ALJ provided multiple citations to the administrative record to support his findings, AR 15 25-26. 16 Magnetic resonance imaging showed minimal and unremarkable changes. AR 27. 17 Examinations indicated normal strength and tone, no weakness, no exercise intolerance, no 18 fatigue, full range of motion, normal gait and station. AR 26-27. Despite Plaintiff’s testimony, 19 no imaging study supported her claim of multiple herniated discs. AR 27. 20 The hearing decision sets forth abundant evidence in the record to support the ALJ’s 21 determination that Plaintiff’s representations to the agency were not fully reliable. 22 /// 23 3 As detailed above, Plaintiff’s physicians noted on multiple occasions that despite her allegations of severe pain, 24 Plaintiff failed to take her medications as prescribed. In assessing a claimant’s credibility, an ALJ may properly rely on “unexplained or inadequately explained failure to seek treatment or follow a prescribed course of treatment.” 25 Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). A claimant’s failure to assert a good reason for not seeking treatment, or for failing to follow a prescribed course of treatment, or an ALJ’s finding that the proffered reason is not credible, cast doubt on the sincerity of the claimant’s testimony. Fair, 885 F.2d at 603. “[I]f the frequency or 26 extent of the treatment sought by an individual is not comparable with the degree of the individual’s subjective complaints, or if the individual fails to follow prescribed treatment that may improve symptoms, we may find the 27 alleged intensity and persistence of an individual’s symptoms are inconsistent with the overall evidence of record.” SSR 16-3p at 9. 28 1 VIII. The ALJ Properly Assessed the Reliability of the Third-Party Testimony 2 Plaintiff contends that the ALJ erred in giving limited weight to Mr. Placheta’s testimony, 3 which consisted of responses to questions on the Third-Party Adult Function Report form. Citing 4 Turner v. Comm’r of Soc.Sec., 613 F.3d 1217, 1224 (9th Cir. 2010), the Commissioner responds 5 that an ALJ may discount testimony from a lay witness’ third party report by providing reasons 6 germane to that witness. 7 As noted above, the record includes Mr. Placheta’s responses at AR 225-32. The ALJ 8 summarized Mr. Placheta’s response in detail. AR 30. He gave limited weight to the lay 9 opinions finding that they “suggest[ed] impairments which were not consistent with [Plaintiff’s] 10 daily activities or with objective evidence of conservative treatment.” AR 30. In addition, Mr. 11 Placheta’s opinions did not set forth quantifiable limitations that could be used to evaluate 12 Plaintiff’s limitations. AR 30. 13 “[F]riends and family members in a position to observe a claimant’s symptoms and daily 14 activities are competent to testify to her condition.” Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th 15 Cir. 1993). Disregarding lay evidence without comment violates the regulatory provision that the 16 Commissioner will evaluate evidence from nonmedical sources. 20 C.F.R. §§ 404.1513(a)(4), 17 416.913(a)(4). However, “[a]n ALJ need only give germane reasons for discrediting the 18 testimony of lay witnesses.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 19 Inconsistency with medical evidence is a germane reason. Id. 20 In this case, the ALJ considered Mr. Placheta’s opinions and gave them limited weight 21 explaining that the opinions were not consistent with Plaintiff’s daily activities and objective 22 medical records. AR 30. The ALJ was not required to do more. 23 IX. The ALJ Properly Assessed the Expert Medical Opinions 24 Plaintiff contends that the ALJ gave inadequate weight to the opinions of her treating 25 physician, Dr. Tabigo-On. The Commissioner disagrees contending that the ALJ properly 26 evaluated the conflicting expert medical opinions in the record, setting forth specific and detailed 27 explanations of how he determined the weight of the evidence. 28 /// 1 A. Medical Opinions 2 1. Agency Physicians 3 On initial review, agency psychiatrist Dan Funkenstein, M.D., opined that Plaintiff had no 4 evidence of medical treatment or duration to support her disability claim. AR 76. He added that 5 in any event, her alleged mental impairment had minimal effect on Plaintiff’s ability to perform 6 basic work activity. AR 76. D. Tayloe, M.D., opined that Plaintiff was able to perform medium 7 work with some postural limitations. AR 76-77. On reconsideration, psychologist Andres Kerns, 8 Ph.D., and G. Bugg, M.D., concurred with the initial evaluations. AR 92-93. 9 2. Consultative Report: Internal Medicine 10 In July 2016, internist Roger Wagner, M.D., prepared a comprehensive internal medicine 11 evaluation of Plaintiff. AR 350-54. Plaintiff’s complaints included neck pain radiating into the 12 right arm; low back pain that did not radiate; right shoulder pain; and, bilateral hand stiffness. 13 AR 350-51. Her medications included Hydrocodone, Pravastatin and Buspirone. AR 351. 14 Plaintiff had a left heel spur and symptoms of plantar fasciitis, but her doctor had not prescribed 15 an arch support. AR 351. 16 Dr. Wagner observed that Plaintiff could easily rise from a waiting room chair, walk to the 17 exam room, and get on and off the examining table. AR 351. She could bend at the waist and 18 take her shoes and socks on and off with good dexterity, speed and flexibility. AR 352. Plaintiff 19 could also quickly pick up a paperclip by opposing fingertips to thumb. AR 351. Examination of 20 Plaintiff’s hands revealed enlarged metacarpophalangeal and interphalangeal joints with a few 21 Heberden’s nodules at the distal interphalangeal joints but no redness, heat, swelling or 22 tenderness. AR 351. 23 The balance of the physical examination was generally normal. AR 352-53. Straight leg 24 raising was negative. AR 353. Plaintiff demonstrated full strength and intact sensation, normal 25 reflexes and intact cranial nerves. AR 353. Dr. Wagner diagnosed neck and shoulder pain likely 26 exacerbated by repetitive activities; low back pain consistent with muscle strain; some shoulder 27 /// 28 1 pain with full range of motion; mild osteoarthritis of the hands; and, a plantar calcaneal spur. AR 2 354. 3 In Dr. Wagner’s opinion, Plaintiff was able to stand and walk for up to six hours in an 4 eight-hour workday with no limitation on sitting. AR 354. She could lift and carry fifty pounds 5 occasionally and 25 pounds frequently. AR 354. Plaintiff could frequently climb, stoop, crouch, 6 and reach overhead and forward with her dominant right arm. AR 354. She had no 7 environmental limitations. AR 354. 8 3. Consultative Report: Psychiatry 9 Psychologist F. Yadegar, Ph.D., prepared a mental evaluation of Plaintiff in July 2016. 10 AR 357-60. Plaintiff told Dr. Yadegar that she could not take any problems and felt like a failure 11 when she thought of something bad. AR 357. Plaintiff was prescribed Risperdal but was taking 12 it occasionally instead of three times a day as prescribed. AR 357. 13 Plaintiff cried throughout the interview “explaining how bad things are, the difficulty she 14 is having, and she does not know how to solve her problem.” AR 358. She told the doctor that 15 she thought about suicide about once a week. AR 358. Her sadness was 9/10 with 10 being 16 depressed. AR 358. Plaintiff stated that she was so anxious as to be unstable, but Dr. Yadegar 17 observed no signs of anxiety during the interview. AR 358. Dr. Yadegar wrote, “I think she is 18 trying very hard to persuade me that she is really ill and that she is not doing well.” AR 358. 19 Plaintiff had difficulty with the mini mental status test, evincing problems with general 20 knowledge, memory, spelling and calculations. AR 359. Concentration was good, and judgment 21 was intact. AR 359-60. 22 Dr. Yadegar diagnosed adjustment disorder NOS. AR 360. The doctor opined that 23 Plaintiff was functionally unimpaired except for mild impairment of the ability to complete a 24 normal workday or work week without interruptions from a psychiatric condition. AR 360. 25 4. Medical Source Statement 26 Roy Eugene Tabego-On, M.D., had treated Plaintiff since August 2012. AR 288. He 27 diagnosed multilevel lumbar and cervical disc herniation, osteoarthritis of the hands, and a 28 calcaneal spur. AR 288. She had daily sharp pain in her back, neck, hand and heel rated 9/10. 1 AR 288. Symptoms included tenderness, muscle spasm, chronic fatigue, impaired sleep, 2 swelling, motor loss, reduced grip strength and dropping things. AR 288. Her cervical range of 3 motion was significantly limited. AR 289. Plaintiff also experienced sharp severe occipital 4 headache pain attributable to her cervical and lumbar spine. AR 289. The headaches, which 5 occurred about once weekly, were characterized by photosensitivity, inability to concentrate, 6 impaired sleep, exhaustion, visual disturbances, mood changes and mental confusion. AR 289. 7 Medication and lying down relieved Plaintiff’s headache pain. AR 289. The medication resulted 8 in dizziness. AR 290. Plaintiff’s mental conditions included depression, easy distractibility, 9 anxiety, panic attacks, decreased energy and sleep disturbances. AR 290. 10 In Dr. Tabego-On’s opinion, Plaintiff could sit for ten minutes at a time and stand for five 11 minutes at a time before needing to change position. AR 290. Plaintiff could sit, stand and walk 12 for one hour each in a normal eight-hour workday. AR 290. Plaintiff needed to walk for two 13 minutes every ten minutes or every hour. AR 291. Because of muscle weakness, pain and 14 parathesia, she needed to be able to change position at will. AR 291. Plaintiff would need 15 unscheduled half-hour breaks about every two hours. AR 291. 16 Plaintiff should rarely lift ten pounds or less. AR 291. She should never look down, turn 17 her head right or left, look up or hold her head in the same position. AR 291. She should never 18 twist, stoop, crouch or climb ladders, and should rarely climb stairs. AR 292. Plaintiff could 19 perform manipulations with her hands and fingers about 50 percent of the time, and reach about 20 80 percent of the time. AR 292. She was likely to miss work about one day monthly. AR 292. B. Determining Residual Functional Capacity 21 22 “Residual functional capacity is an assessment of an individual’s ability to do sustained 23 work-related physical and mental activities in a work setting on a regular and continuing basis.” 24 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 25 restrictions which result from an individual’s medically determinable impairment or combination 26 of impairments. SSR 96-8p. 27 /// 28 1 A determination of residual functional capacity is not a medical opinion, but a legal 2 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) 3 (residual functional capacity is not a medical opinion), 404.1546(c) (identifying the ALJ as 4 responsible for determining residual functional capacity). “[I]t is the responsibility of the ALJ, not 5 the claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 6 7 1044, 1049 (9th Cir. 2001). In doing so the ALJ must determine credibility, resolve conflicts in 8 medical testimony and resolve evidentiary ambiguities. Andrews, 53 F.3d at 1039-40. 9 “In determining a claimant's [residual functional capacity], an ALJ must consider all 10 relevant evidence in the record such as medical records, lay evidence and the effects of 11 symptoms, including pain, that are reasonably attributed to a medically determinable 12 impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R. § 404.1545(a)(3) (residual functional 13 capacity determined based on all relevant medical and other evidence). “The ALJ can meet this 14 15 burden by setting out a detailed and thorough summary of the facts and conflicting evidence, 16 stating his interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751. 17 The opinions of treating physicians, examining physicians, and non-examining physicians 18 are entitled to varying weight in residual functional capacity determinations. Lester v. Chater, 81 19 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 20 professional, who has a greater opportunity to know and observe the patient as an individual. Id.; 21 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The opinion of an examining physician is, 22 23 in turn, entitled to greater weight than the opinion of a non-examining physician. Pitzer v. 24 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An ALJ may reject an uncontradicted opinion of a 25 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 26 F.3d at 831. In contrast, a contradicted opinion of a treating professional, such as that of Dr. 27 Tabrego-On in this case, may be rejected for “specific and legitimate” reasons. Id. at 830. The 28 1 opinions of a treating or examining physician are “not necessarily conclusive as to either the 2 physical condition or the ultimate issue of disability.” Morgan v. Comm'r of Soc. Sec. Admin., 169 3 F.3d 595, 600 (9th Cir. 1999). 4 C. The ALJ Properly Analyzed Evidence in the Record as a Whole 5 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 6 7 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 8 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4) (“the more 9 consistent an opinion is with the record as a whole, the more weight we will give to that 10 opinion”). 11 At step two, the ALJ concluded that Plaintiff had only two severe impairments: 12 degenerative disc disease of the lumbar spine and cervical spondylosis. AR 17. In making that 13 determination, the ALJ examined in detail the opinions of Drs. Yadegar, Funkenstein and Kerns. 14 15 AR 19-22. Plaintiff does not challenge the ALJ’s decision not to include Plaintiff’s mental health 16 impairments as severe impairments at step two. 17 In determining Plaintiff’s residual functional capacity at step four, the ALJ gave great 18 weight to Dr. Tayloe’s opinion, which he found to be consistent with the weight of the evidence. 19 AR 27. Specifically, “Dr. Tayloe’s opinion [was] consistent with the generally benign 20 examinations, intermittent nature of Plaintiff’s back pain, and the objective clinical and diagnostic 21 evidence.” AR 27. 22 23 The ALJ gave significant weight to Dr. Bugg’s opinion on reconsideration. AR 27. He 24 found that Dr. Bugg’s opinion appropriately considered the majority of the evidence submitted to 25 the agency including evidence submitted after Dr. Tayloe evaluated the evidence available at the 26 initial review. Dr. Bugg appropriately determined that the additional evidence did not support a 27 more limited residual functional capacity than that to which Dr. Tayloe opined. AR 28. 28 1 The ALJ also gave great weight to Dr. Wagner’s consultative opinion, which “found no 2 significant deficits in any bodily system.” AR 29-30. In an extended and detailed discussion, the 3 ALJ considered Plaintiff’s representations to Dr. Wagner of her treatment, conditions and daily 4 activities; Dr. Wagner’s observations of Plaintiff’s functional abilities in the course of the 5 consultative examination; and, the doctor’s findings in the physical examination itself. AR 29-30. 6 7 The ALJ summarized Dr. Tabigo-On’s medical source statement and found the opinion to 8 be excessive when considered in light of the doctor’s objective examination findings, 9 observations and overall conservative treatment. Accordingly, he gave the opinion very little 10 weight, writing: 11 12 Conservative treatment and mild to moderate objective findings do not support this medical source statement. In addition, Dr. Tabigo- 13 On suggests the claimant has multilevel disc herniations, but the MRIs do not support this conclusion. Overall, I find the opinion is 14 not supported by the medical evidence. 15 AR 28-29. The ALJ’s finding was fully consistent with the administrative record. 16 The Court is not required to accept Plaintiff’s characterization of her treatment records or 17 her assessment of the medical opinions. The ALJ fully supported his determination based on 18 multiple medical opinions and the evidence of record. Even if this Court were to accept that the 19 record could support Plaintiff’s opinion, the record amply supports the ALJ’s interpretation as 20 well. When the evidence could arguably support two interpretations, the Court may not substitute 21 its judgment for that of the Commissioner. Jamerson, 112 F.3d at 1066. 22 X. Adequacy of the Hypothetical Question concerning Plaintiff’s Prior Work 23 Finally, in a single-paragraph issue, Plaintiff contends that the ALJ based the conclusion 24 that she could perform her prior work as an electronics assembler on a hypothetical question that 25 omitted unspecified limitations and restrictions applicable to Plaintiff. As Defendant points out in 26 his responsive brief, this issue assumes that the Court will agree with Plaintiff’s contentions that 27 substantial evidence did not support the ALJ’s determination of Plaintiff’s residual functional 28 1 capacity. Because this decision declines to accept Plaintiff’s contentions that the ALJ 2 erroneously evaluated her testimony, Mr. Placheta’s statements and Dr. Tabigo-On’s medical 3 source statement, the Court need not reach this issue. 4 XI. Conclusion and Order 5 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 6 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 7 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of 8 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of 9 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Herminia O. 10 Carreon. 11 IT IS SO ORDERED. 12 13 Dated: August 26, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28