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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 SHARON ANN WRIGHT, ) Case No.: 1:19-cv-00721-BAM 12 ) Plaintiff, ) ORDER REGARDING PLAINTIFF’S 13 v. ) SOCIAL SECURITY COMPLAINT ) 14 ANDREW M. SAUL, Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Sharon Ann Wright (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance 21 benefits under Title II of the Social Security Act and supplemental security income under Title XVI of 22 the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were 23 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.1 24 Having considered the briefing and record in this matter, the Court finds the decision of the 25 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole 26 27 1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including 28 entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 7, 8, 22.) 1 and based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to 2 deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff filed applications for disability insurance benefits and supplemental security income 5 on July 20, 2015. AR 223-25.2 Plaintiff alleged that she became disabled on June 15, 2009, due to 6 depression, anxiety, chronic pain and an ulcer in her left knee. AR 301. Plaintiff’s applications were 7 denied initially and on reconsideration. AR 142-45, 147-51, 158-63. Subsequently, Plaintiff 8 requested a hearing before an ALJ. ALJ John Trunick held a hearing on February 13, 2018, and 9 issued an order denying benefits on April 26, 2018. AR 12-28, 34-80. Plaintiff sought review of the 10 ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the Commissioner’s 11 final decision. AR 1-5. This appeal followed. 12 Hearing Testimony 13 The ALJ held a hearing on February 13, 2018, in Fresno, California. Plaintiff appeared with 14 her attorney, Sengtheine Bosavahn. Connie Guillory, an impartial vocational expert, also appeared. 15 AR 36. 16 Plaintiff testified that she graduated from high school and attended training as a dental 17 assistant. She can read, write and converse in English. AR 42-43. She worked as a food and 18 beverage supervisor at a casino during 2003, 2004 and 2005. AR 44-45. She supervised 20-25 people 19 during a shift, which included cooks, waitresses, servers, and room service. She had management 20 responsibilities, including the authority to hire, fire and schedule employees. AR 45-46. In 2006 and 21 2007, she worked as a food server/waitress and bartender. AR 47-49. After that, she worked as a food 22 server and bartender. AR 49. Her last job was as a bartender. AR 51. Plaintiff confirmed that she 23 last worked on June 15, 2009, but her alleged disability began on April 6, 2009. She tried to keep 24 working after her alleged onset date, but she was unable to do light duty assignments. AR 51-52. The 25 vocational expert (“VE”), Connie Guillory, classified Plaintiff’s past work as waitress, bartender, food 26 service supervisor, and food service manager. AR 50-51. 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 When asked about her left knee, Plaintiff confirmed that after her left knee replacement 2 surgery she returned for a second manipulative surgery to break up scar tissue and to acquire full range 3 of motion. The operative report indicated that they were able to achieve up to 125 degrees range of 4 motion bending the knee back. Plaintiff testified, however, that it did not stay that way. AR 52-53. 5 When asked about her plantar fasciitis, Plaintiff reported that it had been occurring for about a 6 year. She wears a brace at night on her left foot. AR 54. 7 When asked about her right knee, Plaintiff testified that it was worse than her left knee. She 8 reported that they now want to do surgery on both of her knees, total replacements. AR 55. 9 When asked about her mental and physical issues, Plaintiff testified that she has anxiety, 10 depression, chronic pain syndrome, left knee status post total knee arthroscopy, hypertension, plantar 11 fasciitis, left, right knee osteoarthritis and non-severe hypothyroid. AR 55. 12 Plaintiff also testified that she uses a cane. She also has braces on both of her knees with metal 13 hinges on the sides, which were provided by the doctor. She wears them daily, all day long. She also 14 uses the cane all the time. AR 56-57. 15 When asked about her alleged disability onset date, Plaintiff reported that she was in a car 16 accident around that time. She believes that she is unable to work because she cannot sit or stand for 17 long in the same position comfortably. If she cannot elevate her feet several times a day, then her feet 18 swell, causing her to stumble and trip. Plaintiff believed this was because of her knees. She also 19 believed that she had a botched surgery, requiring her other knee to overcompensate. She has pain 20 every day in both knees, along with sharp, shooting pains in her lower back down to her ankles. She 21 takes Norco, muscle relaxers, because she has spasms in her legs. AR 57-58. 22 When asked about her daily activities, Plaintiff reported that she does light cooking and light 23 cleaning. She is able to shower and dress herself. She can prepare and take her own medicine and 24 prepare and eat her own meals. She does not walk to the mail or take out the garbage because it is a 25 long walk. She can make her own bed, do dishes and laundry, but cannot vacuum. She has to elevate 26 her legs every half hour by reclining in a chair. She does not get out much and does not go to group 27 meetings or church because of pain. She has a driver’s license and is able to drive. She probably 28 spends half of her day on electronic devices, like the TV, tablet or telephone. She watches half-hour 1 sitcoms. Her family takes her grocery shopping once or twice a week and Plaintiff uses an electric 2 cart. AR 59-63. 3 When asked about her abilities, Plaintiff testified that she can lift about half a gallon of milk. 4 She can walk about five minutes and for about half a block. On a typical day, she will wake up, 5 shower, eat breakfast and then elevate her legs. She will then get up and do her laundry and her 6 breakfast dishes. She also will try to do a puzzle. She again will elevate her legs, eat lunch and then 7 do her dishes. AR 63-65. Plaintiff reported that her pain medications may knock her out for 10 or 15 8 minutes, but she has no other side effects from medication. AR 65. She is not receiving mental health 9 treatment. AR 71. 10 In response to questions from her attorney, Plaintiff clarified that during the day she elevates 11 her legs because of swelling in her knees. When doing chores, she will lean against the counter while 12 doing dishes, lean against the washing machine and fold clothes while sitting down. She will stop her 13 chores after 10 or 15 minutes because of pain and will take a 30-minute break. She will doze off two 14 or three times a day for 15 or 20 minutes. Plaintiff also clarified that she tries to shower when she first 15 wakes up because if she does not get in the shower right away, her legs are too swollen, and she 16 cannot lift them high enough to get over the bathtub to get in the shower. Plaintiff reported that most 17 of the time she cannot drive, cannot walk and cannot lift anything. AR 65-70. 18 Following Plaintiff’s testimony, the ALJ elicited testimony from VE. For all of the 19 hypotheticals, the ALJ asked the VE to consider a hypothetical person with the same age, education 20 and work experience as Plaintiff. For the first hypothetical, the ALJ asked the VE to assume an 21 individual at the light exertional capacity with the ability to lift and carry 20 pounds occasionally and 22 10 pounds frequently, stand and walk up to six hours per eight-hour day and sit up to six hours per 23 eight-hour day with only occasional pushing and pulling with the bilateral lower extremities. This 24 person could never climb ladders, ropes or scaffolds and could only occasionally climb ramps and 25 stairs, balance, stoop, kneel, crouch and crawl. The VE testified that such a person would be able 26 perform all of Plaintiff’s prior work as generally performed. There also would be other jobs in the 27 national economy for such a person, such as fast food manager, food checker with transferable skills, 28 and hostess, all with transferable skills from her previous positions. AR 71-73. 1 For the second hypothetical, the ALJ asked the VE to assume a person with less than light level 2 exertional capacity with the ability to lift and carry 20 pounds occasionally, 10 pounds frequently, 3 stand and walk up to four hours per eight-hour day, and sit up to six hours per eight-hour day, with 4 only occasional pushing and pulling with the bilateral lower extremities, never climbing ropes, ladders 5 or scaffolds and only occasionally climbing ramps and stairs or balancing stooping, kneeling, 6 crouching, and crawling. The VE testified that there would be no prior work, but the food checker 7 position would remain available at the sedentary level. The VE identified that there would be other 8 work available, such as hand packer with 25% erosion and sub assembler with 25% erosion. AR 73- 9 75. 10 For the third hypothetical, the ALJ asked the VE to assume a sedentary exertional capacity 11 with the ability to lift and carry up to ten pounds occasionally, stand and walk up to two hours per 12 eight-hour day and sit up to six hours per eight-hour day with only occasional pushing and pulling 13 with the bilateral lower extremities, never climbing ladders, ropes or scaffolds, and only occasionally 14 climbing ramps and stairs, balancing, stooping, kneeling, crouching and crawling. The VE testified 15 that there would be no prior work available, but the food checker position would remain. There would 16 also be unskilled sedentary positions, such as inspector and electrical assembler. AR 75-76. 17 For the fourth hypothetical, the ALJ asked the VE to add that the worker would be able use a 18 cane for all ambulation and for standing. The VE testified that the sedentary jobs would remain, such 19 as food checker, inspector and electrical assembler. AR 76. 20 For the fifth hypothetical, the ALJ asked the VE to add that the sedentary person with the 21 limitations given, including the use of the case, would be allowed to elevate their feet on and off for 15 22 minutes at a time once each hour and remain on task. The VE testified that the sedentary positions 23 would remain available. AR 76. 24 For the sixth hypothetical, the ALJ asked the VE to add that the individual would be allowed 25 up to two additional breaks of 10 to 15 minutes each in addition to the standard breaks. The VE 26 testified there would be no available jobs long term. AR 77. 27 For the seventh hypothetical, Plaintiff’s attorney asked the VE to add to the light hypotheticals 28 that the person would need to use a cane when standing or walking. The VE testified that this would 1 affect jobs at the light level and the use of the cane would move the exertional level to sedentary. AR 2 77. 3 For the eighth hypothetical, Plaintiff’s attorney asked the VE to add to the light hypotheticals 4 that the person would need to change positions between sitting and standing every 30 minutes, 5 alternating standing for 5 minutes, sitting for 30 minutes, standing for 5 minutes and sitting for 30 6 minutes. The VE testified that the light positions would not remain available. AR 78. 7 For the ninth hypothetical, Plaintiff’s attorney asked the VE to add to the fifth hypothetical that 8 the person would need to elevate above the hip level. The VE testified that, at the sedentary level, if 9 the leg is lifted above hip level, then it is difficult for the person to stay on task. AR 78. The VE 10 reported that there would be no available positions. AR 79. 11 For the tenth hypothetical, Plaintiff’s attorney asked the VE to consider a person that would be 12 off task for 20% of the workday. The VE testified that such a person would not be able to sustain 13 competitive employment. AR 78. 14 For the last hypothetical, Plaintiff’s attorney asked the VE to consider a person that would miss 15 two days of work per month due to medical problems. The VE testified that such a person would not 16 be able to sustain competitive employment over time. AR 79. 17 Medical Record 18 The relevant medical record was reviewed by the Court and will be referenced below as 19 necessary to this Court’s decision. 20 The ALJ’s Decision 21 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 22 determined that Plaintiff was not disabled under the Social Security Act. AR 15-28. Specifically, the 23 ALJ found that Plaintiff had not engaged in substantial gainful activity since April 6, 2009, her alleged 24 onset date. AR 18. The ALJ identified chronic pain syndrome, left knee status post-total knee 25 arthroscopy, left foot plantar fasciitis, right knee osteoarthritis, and hypertension as severe 26 impairments. AR 18-20. The ALJ determined that the severity of Plaintiff’s impairments did not meet 27 or equal any of the listed impairments. AR 20-21. 28 1 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 2 functional capacity (“RFC”) to perform sedentary work. She was limited to occasional pushing and 3 pulling with the bilateral lower extremities, never climbing ladders, ropes or scaffolds, occasional 4 climbing of ramps and stairs, and occasional balancing, stooping, kneeling, crouching, and/or 5 crawling. She also must be allowed the use of a cane for all ambulation and standing and must be 6 allowed to elevate her feet on and off for 15 minutes at a time each hour while remaining on task. AR 7 21-26. With this RFC, the ALJ found that Plaintiff could not perform her past relevant work, but she 8 could perform other jobs in the national economy, such as food checker. AR 26-27. The ALJ 9 therefore concluded that Plaintiff was not disabled under the Social Security Act. AR 27. 10 SCOPE OF REVIEW 11 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 12 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 13 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 14 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 15 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 16 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 17 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 18 considered, weighing both the evidence that supports and the evidence that detracts from the 19 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 20 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 21 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 22 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 23 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 24 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 25 REVIEW 26 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 27 substantial gainful activity due to a medically determinable physical or mental impairment which has 28 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 2 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 3 her age, education, and work experience, engage in any other kind of substantial gainful work which 4 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 5 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 6 1990). 7 DISCUSSION3 8 Plaintiff contends that the ALJ erred by (1) improperly rejecting the opinion of her treating 9 physician, Dr. Daniel L. Schaffner; (2) improperly rejecting the opinion of the examining physician, 10 Dr. Rush; (3) improperly evaluating Plaintiff’s testimony; (4) finding that Plaintiff’s mental 11 impairment was not severe at step two of the sequential evaluation; and (5) improperly discounting lay 12 witness testimony from Plaintiff’s sister. (Doc. No. 19 at 15.) 13 A. The ALJ Did Not Commit Reversible Error in Evaluating Opinion Evidence from Dr. 14 Schaffner. 15 Plaintiff first contends that the ALJ committed reversible error by failing to provide specific 16 and legitimate reasons for rejecting the opinion of her treating physician, Dr. Schaffner. 17 On January 22, 2018, Dr. Schaffner completed a Questionnaire. He opined that Plaintiff was 18 not able to work until knee surgeries were done, with a right total knee replacement and a left redo, 19 based on examination of Plaintiff’s knees and clinical findings. He identified knee and leg pain as 20 Plaintiff’s primary impairments. He further opined that Plaintiff could lift and carry about 4 pounds, 21 could sit 15 minutes at one time, stand briefly and walk 10-15 minutes at a time. Over an 8-hour 22 period, Plaintiff could sit 2 hours with movement, stand briefly and walk 1-2 hours. Dr. Schaffner 23 also indicated that Plaintiff would need to be supine, elevate her legs and use cool packs for the 24 remainder of the day. AR 842. 25 26 27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to 28 be construed that the Court did not consider the argument or brief. 1 Cases in this circuit identify three types of physicians: (1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and 3 (3) those who neither examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 4 F.3d 821, 830 (9th Cir. 1995). As a general rule, more weight should be given to the opinion of a 5 treating source than to the opinions of doctors who do not treat the claimant. Id. Where a treating 6 physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and 7 convincing” reasons. Id. If the treating physician’s opinion is contradicted by another doctor, the 8 Commissioner must provide “specific and legitimate” reasons supported by substantial evidence in the 9 record to reject this opinion. Id. “The medical opinion of a claimant’s treating physician is given 10 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory 11 diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.’” 12 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). 13 In this instance, Dr. Schaffner’s treating opinion was contradicted by the opinions of multiple 14 physicians, including: (1) Dr. Tomas Rios, a consultative examiner, who opined on October 27, 2015, 15 that Plaintiff could stand up to six hours, walk up to six hours, sit without limitation, lift and carry 20 16 pounds occasionally, 10 pounds frequently, could occasionally climb steps, stairs, ladders, scaffolds, 17 and ropes and could frequently stop, crouch, kneel and crawl (AR 832); (2) Dr. G. Bugg, a state 18 agency medical consultant, who opined on November 16, 2015, that Plaintiff could stand and/or walk 19 about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, lift and/or carry 20 20 pounds occasionally, 10 pounds frequently, and could occasionally climb ramps, stairs, ladders, ropes 21 and scaffolds, could frequently balance, stoop, and kneel, and could occasionally crouch and crawl 22 (AR 91-92, 105-06); (3) Dr. H. M. Estrin, a state agency medical consultant, who opined on March 9, 23 2016, that Plaintiff could stand and/or walk about 6 hours in an 8-hour workday, sit about 6 hours in 24 an 8-hour workday, lift and/or carry 20 pounds occasionally, 10 pounds frequently, was limited in 25 pushing and/or pulling in her left lower extremities, could occasionally climb ramps/stairs, but never 26 climb ladders, ropes or scaffolds, could occasionally balance, kneel, crouch and crawl and could 27 frequently stoop. (AR 119-21, 132-34); and (4) Dr. Samuel B. Rush, a consultative examiner, who 28 opined on October 2, 2017, that Plaintiff could walk and stand for four hours with rest periods, sit 1 without restriction, push, pull, lift and carry 20 pounds occasionally, 10 pounds frequently, could 2 occasionally bend, could never kneel on the left, could never stoop, crawl, or crouch, and should not 3 walk on uneven terrain (AR 841). In light of these opinions, the ALJ was required to provide specific 4 and legitimate reasons supported by substantial evidence in the record to reject Dr. Schaffner’s 5 opinion. 6 In evaluating Dr. Schaffner’s opinion, the ALJ reasoned as follows: 7 The undersigned gives little weight to Dr. Schaffner’s opinions as they are inconsistent with the objective record as a whole. As discussed above, the claimant exhibited 5/5 8 strength throughout the upper and lower extremities in October 2015 and 2017 (7F/8 and 8F/7). Further, treating doctors noted the claimant demonstrated excellent range of motion 9 following total knee arthroplasty, as she was capable of 123-degree flexion (3F/27). These 10 findings support a greater functional work capacity that [sic] Dr. Schaffner’s limitations. For these reasons, the undersigned gives little weight to his opinions. 11 12 AR 25. 13 Having considered the record, the Court finds that the ALJ provided specific and legitimate 14 reasons supported by substantial evidence to assign little weight to Dr. Schaffner’s opinion. The ALJ 15 discounted Dr. Schaffner’s opinion based on its inconsistency with the objective record. AR 25. An 16 ALJ may reject a treating physician’s opinion that is not reflective of the clinical and diagnostic 17 evidence. See Evans v. Berryhill, 759 Fed.App’x 606, 608 (9th Cir. 2019) (finding ALJ did not err in 18 rejection of treating physician’s opinion that “appear[ed] more reflective of the claimant’s subjective 19 complaints and particular clinical presentation than the actual clinical and diagnostic evidence at that 20 time”); Trevizo, 871 F.3d at 675 (finding treating physician’s opinion entitled to controlling weight 21 only if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques”); 22 Martinez v. Berryhill, No. EDCV 15-1563-JPR, 2017 WL 935157, at *8 (C.D. Cal. Mar. 9, 2017) 23 (“Inconsistency with the medical record and lack of diagnostic evidence are permissible reasons for 24 the ALJ to give medical opinions little weight.”). Here, as the ALJ correctly identified, in October 25 2015, Plaintiff demonstrated full motor strength in her upper and lower extremities. AR 25, 831. She 26 also was capable of 123-degree flexion following total left knee replacement in 2011. AR 468. 27 However, the ALJ mistakenly found that Plaintiff demonstrated full motor strength in October 2017. 28 Rather, as Plaintiff correctly notes, she demonstrated only 3/5 motor strength in her lower extremities. 1 AR 840. Nonetheless, any such mistake is harmless because objective findings from the same October 2 2017 examination revealed that Plaintiff generally had normal range of motion, she was able to walk 3 without difficulties and her sensory examination was unremarkable. AR 23, 839-41. Courts look to 4 the record as a whole to determine whether the error alters the outcome of the case. Molina v. Astrue, 5 674 F.3d 1101, 1115 (9th Cir. 2012) (citations omitted). An error is harmless “where it is 6 inconsequential to the ultimate nondisability determination.” Id. 7 Additionally, as reflected by the decision, the ALJ afforded little weight to Dr. Schaffner’s 8 opinion in favor of the opinions of the consultative examiners, Drs. Rios and Rush, by assigning their 9 opinions partial weight. AR 24-25. An examining physician’s opinion can constitute substantial 10 evidence to reject a treating physician’s opinion if the examining physician’s opinion “rests on his 11 own independent examination.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); see also 12 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (when an examining physician provides “independent 13 clinical findings that differ from the findings of the treating physician,” such findings are “substantial 14 evidence”) (citations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (opinion of an 15 examining physician may constitute substantial evidence to discount a treating physician’s opinion). 16 As indicated above, Dr. Thomas Rios completed an independent physical examination in 17 October 2015 and made clinical findings regarding Plaintiff’s limitations that were not as extreme as 18 those identified by Dr. Schaffner. On physical examination, Plaintiff walked with a slight limp, but 19 was capable of getting on and off the examining table unassisted. AR 830. Her station and gait were 20 normal, and her Romberg test was negative. AR 831. Examination of her left knee revealed fine 21 crepitus and tenderness of the medial and lateral compartment, but no laxity of joint. Her motor 22 strength was 5/5 throughout her upper and lower extremities and her knee extensors and flexors motor 23 strength was reduced only at 4+/5. Her grip strength was normal, and she had normal muscle bulk and 24 tone. AR 831-32. Dr. Rios found that Plaintiff had residual tenderness on the left knee with some 25 range of motion limitation and diminution of strength on the knee extensors and flexors. He 26 concluded, however, that she could stand up to six hours, walk up to six hours, sit without limitation, 27 lift 20 pounds occasionally, 10 pounds frequently, could occasionally climb steps, stairs, ladders, 28 scaffolds and ropes and could frequently stoop, crouch, kneel and crawl. AR 832. 1 Additionally, Dr. Rush completed an independent physical examination in October 2017 and 2 made clinical findings regarding Plaintiff’s limitations that were not as extreme as those identified by 3 Dr. Schaffner only few months later. Dr. Rush observed on examination that Plaintiff was able to 4 move about the office without assistance. AR 838. Her extremities showed no clubbing, cyanosis, or 5 edema and her knee joints showed normal range of motion bilaterally. AR 839-40. Her motor 6 strength was 5/5 in the upper extremities and 3/5 in the lower extremities. She was able to walk 7 without difficulties and she also was able to walk on toes and on heels. Dr. Rush’s diagnostic 8 impression noted that Plaintiff’s left knee range of motion was good, her gait was grossly normal, and 9 her right knee range of motion was normal. AR 840. Based on his examination findings, Dr. Rush 10 opined that Plaintiff could walk and stand for four hours and sit without restriction, she could push, 11 pull, lift and carry 20 pounds occasionally and 10 pounds frequently, could occasionally bend, but 12 could never kneel on the left with no stooping, crawling or crouching. She also should not walk on 13 uneven terrain. AR 841. 14 Finally, Dr. Schaffner’s opinion that Plaintiff was not able to work is a determination reserved 15 to the Commissioner. Opinions on issues reserved to the Commissioner, such as a statement that a 16 claimant is disabled or unable to work, are not entitled to any special significance. See 20 C.F.R. §§ 17 404.1527(d)(3), 416.927(d). 18 For these reasons, the Court finds that the ALJ did not err in evaluating the opinion evidence 19 from Plaintiff’s treating physician, Dr. Schaffner. 20 B. The ALJ Properly Evaluated Opinion Evidence from Dr. Rush. 21 Plaintiff next argues that the ALJ erred by partially rejecting the opinion of Dr. Rush. As 22 detailed above, Dr. Rush completed an independent physical examination in October 2017. On 23 examination, Dr. Rush found that Plaintiff’s extremities showed no clubbing, cyanosis, or edema and 24 her knee joints showed normal range of motion bilaterally. AR 839-40. She had no joint deformities, 25 crepitus, effusion, tender or trigger points. AR 840. Her motor strength was 5/5 in the upper 26 extremities and 3/5 in the lower extremities. She was able to walk without difficulties and she also 27 was able to walk on toes and on heels. Her Romberg was normal. Dr. Rush’s diagnostic impression 28 was that, despite left knee instability, Plaintiff’s left knee range of motion was good, her gait was 1 grossly normal. He also found that Plaintiff’s right knee range of motion was normal. AR 840. Based 2 on his examination findings, Dr. Rush opined that Plaintiff could walk and stand for four hours with 3 rest periods and sit without restriction. She could push, pull, lift and carry 20 pounds occasionally and 4 10 pounds frequently. She could occasionally bend, but never kneel on the left, with no stooping, 5 crawling or crouching. She also should not walk on uneven terrain. AR 841. 6 As with a treating physician, the Commissioner also must provide “clear and convincing” 7 reasons for rejecting the uncontradicted opinion of an examining physician. Lester, 81 F.3d at 830. If 8 contradicted, the opinion of an examining physician can only be rejected for “specific and legitimate 9 reasons” that are supported by substantial evidence in the record. Id. at 830-31. The opinion of a 10 nonexamining physician alone is not substantial evidence that justifies the rejection of the opinion of 11 either a treating or examining physician. Id. at 831. 12 Here, because Dr. Rush’s opinion was contradicted by other opinions in the record, including 13 Dr. Schaffner’s opinion, the ALJ was required to provide specific and legitimate reasons to discount it. 14 In evaluating Dr. Rush’s opinion, the ALJ reasoned as follows: 15 The undersigned gives partial weight to the Dr. Rush’s opinions to the extent they are consistent with the residual functional capacity because they are mostly consistent with the 16 objective medical record. As mentioned above, give[n] the claimant’s degenerative changes, Dr. Rush’s reduced range of light work assessment overestimates the claimant’s 17 abilities (1F/5 and 9F/1). Further, although Dr. Rush opined the claimant was limited to 18 no stooping, crawling, or crouching, these limitations underestimate the claimant’s abilities. Dr. Rush opined the claimant cannot kneel on the left side (8F/8). Finally, he 19 assessed the claimant’s motor strength to be 5/5 in the upper extremities and 3/5 in the lower extremities. The undersigned give partial weight to Dr. Rush’s opinions to the extent 20 they are consistent with the objective record. As discussed above, the claimant exhibited 21 5/5 strength throughout the upper and lower extremities in October 2015 (7F/8). Nonetheless, in addition to having examined the claimant and providing a detailed report, 22 Dr. Rush’s opinions are more recent and demonstrative of the claimant’s current functional abilities. For these reasons, the undersigned give partial weight to Dr. Rush’s opinions. 23 24 AR 25. 25 Having considered the record, the Court finds that the ALJ did not commit reversible error in 26 assigning partial weight to Dr. Rush’s opinion. Although Plaintiff contends that it is unclear from the 27 ALJ’s decision what part of Dr. Rush’s opinion that he was rejecting, it is evident that the ALJ 28 rejected Dr. Rush’s opinion that Plaintiff could not stoop, crawl, or crouch and that she could not kneel 1 on the left side. AR 25. The ALJ discounted this portion of Dr. Rush’s opinion by citing objective 2 evidence in the medical record that undermined these limitations. An ALJ may reject the opinion of 3 the examining physician where the limitations imposed are inconsistent with objective evidence in the 4 record. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding that ALJ provided specific 5 and legitimate reason for discounting physician’s opinion where opinion was inconsistent with 6 medical records); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (finding 7 that an ALJ may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by 8 the record as a whole or by objective medical findings). Here, the ALJ cited evidence from Dr. Rios’ 9 October 2015 consultative examination demonstrating that, contrary to Dr. Rush’s opinion, Plaintiff 10 had 5/5 strength in both her upper and lower extremities, with only a slight reduction in the motor 11 strength of her knee extensors and flexors at 4+/5. AR 25, 831. Additionally, the ALJ’s decision to 12 assign partial weight to Dr. Rush’s opinion is bolstered by Dr. Rush’s own findings on examination, 13 which included findings that Plaintiff had normal range of motion in her knee joints, no difficulty 14 walking, no crepitus, effusion, or tenderness, no clubbing cyanosis or edema of her extremities. AR 15 839-40. She also did not require any assistive device and was able to move without assistance. AR 16 838, 840. 17 Even if the ALJ erred by rejecting Dr. Rush’s limitations to no stooping, crawling, crouching or 18 kneeling on the left knee, any such error is harmless because the ALJ found that Plaintiff could perform 19 the food checker position, which requires no stooping, crawling, crouching or kneeling. AR 27; see 20 Dictionary of Occupational Titles (DICOT) 211.482-014, 1991 WL 671856. “A decision of the ALJ 21 will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 22 C. The ALJ Properly Evaluated Plaintiff’s Subjective Complaints 23 Plaintiff next argues that the ALJ erred by failing to offer specific, clear and convincing 24 reasons for discrediting Plaintiff’s subjective complaints. In deciding whether to admit a claimant’s 25 subjective complaints, the ALJ must engage in a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 26 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). 27 First, the claimant must produce objective medical evidence of his impairment that could reasonably 28 be expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014. If 1 the claimant satisfies the first step and there is no evidence of malingering, the ALJ may reject the 2 claimant’s testimony regarding the severity of his symptoms only by offering specific, clear and 3 convincing reasons for doing so. Id. at 1015. 4 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 5 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 6 persistence and limiting effects of those symptoms. AR 23. The ALJ was therefore required to 7 provide specific, clear and convincing reasons for discounting Plaintiff’s testimony. 8 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting 9 Plaintiff’s subjective complaints. First, the ALJ considered that Plaintiff’s statements were not 10 entirely consistent with the medical record. AR 23. Although lack of supporting medical evidence 11 cannot form the sole basis for discounting testimony, it is a factor that the ALJ can consider. See 12 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ considered record evidence that 13 undermined Plaintiff’s complaints of totally disabling symptoms. For instance, the ALJ determined 14 that Plaintiff’s complaints of constant, sharp, shooting pain were undermined by findings of 5/5 15 strength in her upper and lower extremities in October 2015.4 AR 23, 831. Additionally, the ALJ 16 considered that an October 2012 examination revealed full range of motion to all extremities and 17 strength of 5/5 in upper and lower extremities. AR 22,771. In August 2014, x-rays of Plaintiff’s left 18 knee were unremarkable, and she had no joint effusions, bony erosions, subluxations, or other 19 abnormalities. AR 22, 452. In October 2015, Dr. Rios found only fine crepitus and tenderness of the 20 medial and lateral compartment of the left knee, but Plaintiff had no laxity of the joint. AR 22, 831. 21 In October 2017, Plaintiff was noted to have normal range of motion in her knee joints and she was 22 able to walk without difficulties. AR 23, 840. The ALJ also noted that despite Dr. Schaffner’s 2018 23 opinion that Plaintiff was unable to work until knee surgeries were performed, there were no other 24 25 26 4 The ALJ incorrectly stated that the October 2017 examination showed 5/5 strength in her upper 27 extremities. AR 23. This misstatement does not detract from other evidence cited in the record, and the Court has addressed the error in connection with the ALJ’s evaluation of the medical opinion 28 evidence. 1 mentions in the entire record of any inability to work absent such surgeries. AR 23. Further, an 2 examination only a few months prior revealed full range of motion in all joints. AR 23, 840. 3 Second, the ALJ considered Plaintiff’s activities of daily living, including her reported ability 4 to shower, do laundry, cook, clean, dress herself, and grocery shop once or twice a week. AR 22, 23. 5 An ALJ can properly discount a claimant’s subjective complaints when the daily activities 6 demonstrate an inconsistency between what the claimant can do and the degree that disability is 7 alleged. Molina, 674 F.3d at 1112– 13 (an ALJ may consider “whether the claimant engages in daily 8 activities inconsistent with the alleged symptoms”). The ALJ reasonably determined that Plaintiff’s 9 ability to cook, clean, dress herself, shower, spend time on electronic devices for half the day and shop 10 once or twice a week were inconsistent with claims of totally debilitating physical impairments. 11 Even where a plaintiff's activities suggest some difficulty functioning, they may be grounds for 12 discrediting the claimant’s testimony to the extent that they contradict claims of a totally debilitating 13 impairment. Molina, 674 F.3d at 1113. Moreover, the ALJ acknowledged that Plaintiff’s medical 14 record demonstrated that she had some workplace limitations based on her testimony that she elevates 15 her feet throughout the day and uses a cane. AR 21-22, 23. The ALJ accounted for those limitations 16 in the RFC, which included the need to use a cane for all ambulation and standing and the need to 17 elevate her feet on and off for 15 minutes. AR 21. 18 The Court finds that the ALJ’s assessment of Plaintiff’s subjective complaints is free of 19 reversible error. 20 D. The ALJ Did Not Err at Step Two of the Sequential Evaluation 21 Plaintiff contends that the ALJ erred when finding Plaintiff did not have a severe mental 22 impairment at step two of the sequential evaluation. (Doc. No. 19 at 27.) Plaintiff further contends 23 that the ALJ had a duty to develop the record by ordering a psychiatric examination. (Id. at 28.) 24 At step two of the five-step analysis, the ALJ is required to determine whether a plaintiff has a 25 “severe” medical impairment or combination of impairments. 20 C.F.R. §§ 416.920(c). An impairment 26 is “severe” if it “significantly limits [the claimant’s] physical or mental ability to do basic work 27 activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c), 416.921(a). The evaluation at step two is a de 28 minimis screening device to dispose of groundless claims. Bowen v. Yukert, 482 U.S. 137, 153–154 1 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001). An impairment is not severe if the 2 evidence establishes “a slight abnormality that has no more than a minimal effect on an individual[‘]s 3 ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal quotations and 4 citations omitted). In determining whether a claimant’s mental impairment is severe, an ALJ is 5 required to evaluate the degree of mental limitation in four broad areas: (1) understand, remember, or 6 apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or 7 manage oneself. If the degree of limitation in these four areas is determined to be “mild,” a plaintiff's 8 mental impairment is generally not severe, unless there is evidence indicating a more than minimal 9 limitation in his ability to perform basic work activities. See 20 C.F.R. §§ 404.1520a(c)-(d), 10 416.920a(c)-(d). The burden is on the claimant to demonstrate a severe impairment. Tackett v. Apfel, 11 180 F.3d 1094, 1098 (9th Cir. 1999). 12 Here, the ALJ considered Plaintiff’s depression and anxiety at step two and found no more 13 than mild limitations in any of the four broad areas of mental functioning set out in the disability 14 regulations. AR 18-20. The ALJ expressly considered Plaintiff’s treatment notes and mental status 15 examinations, along with Plaintiff’s own statements and testimony regarding her functional abilities. 16 AR 18-19. 17 Additionally, the ALJ appropriately reasoned that Plaintiff’s anxiety and depression were not 18 severe based on relatively normal findings and lack of supporting objective evidence. AR 19-20. 19 Verduzco v. Comm’r of Soc. Sec., 2013 WL 4854420, at *12 (E.D. Cal. Sept. 10, 2013) (ALJ properly 20 found claimant’s examinations were unremarkable and did not support a severe condition); see also 21 Stoffan v. Berryhill, No. 1:16-CV-01654-SKO, 2018 WL 1335392, at *10 (E.D. Cal. Mar. 15, 2018) 22 (non-severity determination at step two supported by objective evidence in the record); Braeger v. 23 Astrue, No. 1:11-cv-01931-JLT, 2012 WL 4985103, at * 8 (E.D. Cal. Oct. 17, 2012) (citing objective 24 medical evidence in the record as supporting ALJ’s finding of non-severity). The ALJ determined that 25 Plaintiff’s mental status, neurological and psychiatric examinations were generally unremarkable. AR 26 464 (“Alert and oriented x4”), 63 (oriented, cooperative), 662 (“alert & oriented X 3”), 701 (“alert & 27 oriented x 3, good hygiene, good eye contact, cooperative with exam”), 703 (“alert & oriented x3, 28 good hygiene, well groomed and well dressed, speech with normal rate and tone, good eye contract, 1 cooperative with exam”), 757 (“alert and oriented”), 764 (“alert & oriented X 3”), 769 (“alert & 2 oriented x 3, good hygiene, good eye contact, cooperative with exam”). Despite noting occasional 3 reports in the treatment records of anxiety and depression (see, e.g., AR 840, 873, 874), the ALJ 4 considered that Plaintiff had not undergone a mental health assessment or mental health treatment. 5 AR 20, 71. The ALJ also considered opinion evidence from the state agency psychological 6 consultants who found that Plaintiff had no medically determinable mental impairment. AR 20, 89, 7 103, 116-17, 129-30. 8 As part of her contention that the ALJ erred in his step two analysis, Plaintiff argues that the 9 ALJ failed to adequately develop the record by not obtaining a consultative psychiatric evaluation to 10 establish the severity of Plaintiff’s mental impairments. (Doc. No. 19 at 27-28.) This argument is not 11 persuasive. 12 “In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and 13 to ensure that the claimant’s interests are considered[.]” Mayes v. Massanari, 276 F.3d 453, 459 (9th 14 Cir. 2001). The ALJ’s duty to “develop the record further” is triggered only where evidence is 15 ambiguous or the record is inadequate to allow for proper evaluation of the evidence. Id.at 459-60; 16 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 17 Plaintiff contends that, because there was evidence that she suffered from a mental impairment 18 in the record, the ALJ should have obtained a consultative psychiatric evaluation to establish the 19 severity of Plaintiff’s mental impairments. (Doc. No. 19 at 28.) However, the burden is on the 20 claimant to establish disability. Terry, 903 F.2d at 1275; 42 U.S.C. § 423(d)(5)(A) (“An individual 21 shall not be considered to be under a disability unless he furnishes such medical and other evidence of 22 the existence thereof as the Commissioner of Social Security may require.”). Because it is the 23 Plaintiff’s burden to present evidence of disability, the mere absence of an opinion from an examining 24 physician does not give rise to a duty to develop the record; rather, that duty is triggered only where 25 there is an inadequacy or ambiguity. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Alvarez 26 v. Astrue, 2009 WL 2500492, at *10 (E.D. Cal. Aug. 14, 2009) (finding absence of report from 27 treating physician did not give rise to a duty to develop the record where record contained opinions of 28 the state agency physicians and plaintiff’s complete treatment records). Plaintiff has not demonstrated 1 that the record was ambiguous or inadequate to allow for proper evaluation. The record contained the 2 opinion of the state agency physicians and there is no indication that the treatment records were 3 incomplete. 4 E. The ALJ Did Not Err in Evaluating the Lay Testimony. 5 As a final matter, Plaintiff argues that the ALJ improperly rejected the lay witness testimony 6 from Plaintiff’s sister, Doreen Blanchard. (Doc. No. 19 at 28.) 7 Ms. Blanchard completed a third-party function report on September 11, 2015. She reported 8 that she sees Plaintiff 8-10 hours per week. They spend more time together when Plaintiff has a 9 doctor’s appointment. Ms. Blanchard described Plaintiff’s daily activities to include making breakfast, 10 making her bed, folding laundry while watching TV, and visiting with family or friends. Plaintiff also 11 occasionally cared for her grandchildren. Ms. Blanchard reported that Plaintiff’s condition affected 12 her sleep because of pain. However, Plaintiff had no problem with her personal care, did not need 13 reminders to take care of personal needs or grooming, and did not need help or reminders to take 14 medication. Plaintiff could prepare her own meals, keep up on cleaning and laundry, but nothing 15 outdoors, drive short stretches, shop for groceries 3 times per month, and spend time with family and 16 friends. Plaintiff could count change and handle money. Ms. Blanchard opined that Plaintiff’s 17 condition affected her ability to lift, squat, bend, stand, walk, sit, kneel, stair climb and follow 18 instructions. Plaintiff could follow written and spoken instructions and finish what she started. AR 19 328-35. Ms. Blanchard also provided a narrative report regarding Plaintiff’s condition. AR 336-37. 20 An ALJ must take into account competent lay witness testimony. Molina, 674 F.3d at 1114; 21 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). “[I]n order to discount competent lay witness 22 testimony, the ALJ ‘must give reasons that are germane to each witness.’” Molina, 674 F.3d at 1114 23 (citation omitted). An ALJ is not required to discuss every witness’ testimony on an individualized, 24 witness-by-witness basis. Id. Rather, “if the ALJ gives germane reasons for rejecting testimony by 25 one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different 26 witness.” Id. 27 /// 28 /// 1 The ALJ considered Ms. Blanchard’s third-party report and assigned it “little weight” because 2 it was “a lay opinion based on casual observation, rather than objective medical examination and 3 testing.” AR 25. The ALJ also found that the statement did “not outweigh the accumulated medical 4 evidence regarding the extent to which the claimant’s impairments limit[ed] her functional activities.” 5 AR 25-26. 6 Ms. Blanchard’s status as a lay witness is not a valid reason to discount her observations. 7 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017); see also Smolen, 80 F.3d at 1289 (finding 8 that “[t]he fact that a lay witness is a family member cannot be a ground for rejecting his or her 9 testimony. To the contrary, testimony from lay witnesses who see the claimant every day is of 10 particular value.”). Lay witnesses are not required to have medical training and their testimony need 11 not be backed by any particular expertise. Molina, 674 F.3d at 1114 (“Lay testimony as to a 12 claimant’s symptoms or how an impairment affects the claimant’s ability to work is competent 13 evidence that the ALJ must take into account.”). Nevertheless, because the third-party statement of 14 Ms. Blanchard was of the same general nature as Plaintiff’s subjective complaints, the ALJ’s valid 15 reasons for discounting Plaintiff’s statements, discussed above, apply equally to Ms. Blanchard’s 16 similar statements. Molina, 674 F.3d at 1122 (“given that the lay witness testimony described the same 17 limitations as Molina’s own testimony, ... the ALJ’s reasons for rejecting Molina’s testimony apply 18 with equal force to the lay testimony”); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 19 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided clear and convincing reasons for 20 rejecting [claimant’s] own subjective complaints, and because [layperson’s] testimony was similar to 21 such complaints, it follows that the ALJ also gave germane reasons for rejecting her testimony.”). 22 Accordingly, the Court finds that the ALJ did not commit reversible error in his evaluation of the lay 23 witness testimony. 24 CONCLUSION 25 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 26 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 27 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 28 1 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 2 Commissioner of Social Security, and against Plaintiff Sharon Ann Wright. 3 4 IT IS SO ORDERED. 5 Dated: November 23, 2020 /s/ Barbara A. McAuliffe _ 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28