(SS) Sanchez v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 RAYMOND T. SANCHEZ, Case No.: 1:19-cv-01163-BAM 12 Plaintiff, ORDER REGARDING PLAINTIFF’S SOCIAL 13 v. SECURITY COMPLAINT 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16 17 INTRODUCTION 18 Plaintiff Raymond T. Sanchez (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner”) denying his applications for disability insurance 20 benefits under Title II of the Social Security Act and supplemental security income under Title XVI of 21 the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were 22 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.1 23 Having considered the parties’ briefs, along with the entire record in this case, the Court finds 24 that the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the 25 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. 9, 16, 17.) 1 record as a whole and is based on proper legal standards. Accordingly, the Court affirms the agency’s 2 determination to deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff filed applications for disability insurance benefits and supplemental security income 5 on May 29, 2013. AR 347-58.2 Plaintiff alleged that he became disabled May 24, 2013, due to knee 6 and back pain. AR 347-58, 392. Plaintiff’s applications were denied initially and on reconsideration. 7 AR 126-127, 174-175. Subsequently, Plaintiff requested a hearing before an ALJ. ALJ Vincent 8 Misenti held a hearing on March 23, 2016. AR 179-88. ALJ Misenti issued an order denying benefits 9 on May 23, 2016. AR 13-28. Plaintiff sought review of the ALJ’s decision. The Appeals Council 10 remanded the decision back to the ALJ based on finding “new and material evidence.” AR 195. ALJ 11 Joyce Frost-Wolf held a re-hearing on November 14, 2017. AR 17-28. The ALJ Frost-Wolf issued a 12 partially favorable decision on June 18, 2018. AR 17-28. Plaintiff again sought review of the ALJ’s 13 decision. The Appeals Council denied the appeal on April 9, 2019. AR 6-12. This appeal followed. 14 Hearing Testimony 15 The ALJ held a re-hearing on November 14, 2017, in Fresno, California. Plaintiff appeared 16 with her attorney, Johnathan Pena. Cheryl Chandler, an impartial vocational expert, also appeared. 17 AR 98. 18 Plaintiff testified that he lives in a single-story home with his wife and parents. AR 104. 19 Plaintiff testified that his father is under kidney dialysis and Plaintiff watches him to make sure he 20 does not fall when he comes home from treatment. AR 105. Plaintiff testified that he did not graduate 21 from high school, but he received his GED while in the United States Army. AR 105. Plaintiff has had 22 no vocational or educational training since receiving his GED. AR 105. 23 Plaintiff testified that he worked as a maintenance mechanic for a poultry farm where he 24 ensured that electrical motors function properly. AR 105. The most Plaintiff would lift in that position 25 was about 90 pounds. AR 106. Prior to working at the poultry farm, Plaintiff first worked as a delivery 26 driver and then as a supervisor for another company, Gardner-Rossi. AR 106. As supervisor, Plaintiff 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 would handle sales and deliveries of poultry. AR 106. While in that position, Plaintiff would lift 100 2 pounds. AR 106-07. 3 Plaintiff testified that he hurt his back in 2002, while working for Gardner-Rossi. AR 107. 4 Plaintiff is still able to mow the lawn but is unable to do both the front and back. AR 107. Plaintiff is 5 able to do some yard work like pulling weeds but not for long as his knees and back will ache. AR 107 6 He mostly stays in bed trying to stretch. AR 107. Plaintiff testified that he is standing, moving, or 7 sitting about 20 percent of the day. AR 107. When asked about changing positions during the hearing, 8 Plaintiff testified that he is always in constant pain and is most comfortable laying down. 9 When asked about his medication, Plaintiff testified that he experiences no relief from his 10 prescribed medications. AR 109. However, he is still taking Gabapentin, and his doctors at the VA 11 told him to up his dosage before trying something else. AR 109. Plaintiff is getting relief from his 12 psychotropic medications for anxiety and depression. AR 109. Plaintiff also testified that he 13 experiences some relief from using a TENs unit, which he uses three-four times a day. AR 110. 14 Plaintiff has also tried acupuncture which has eliminated some of the pain. AR 110. Plaintiff has tried 15 home exercises and stretching at home which he does daily and has some relief. AR 110. Plaintiff has 16 received injections to ease the pain, however, the medication will wear off within a week and the pain 17 returns. AR 111. 18 Plaintiff has used a cane to aid with walking on and off since 2012. AR 111. Plaintiff is able to 19 take walks about a mile a day while taking breaks. AR 111-12. Plaintiff further testified that he is 20 unable to wear shoes due to pain on the bottom of his feet. AR 112. 21 Plaintiff testified that he has had cancer in the past, and two surgeries related to his cancer. AR 22 112. He has more tests to see if he has come out of remission. AR 112. 23 In response to questions from his attorney, Plaintiff testified that he experiences increased pain 24 after mowing the lawn and walking. AR 113. For example, Plaintiff has increased back pain after 25 mowing the lawn and increased leg pain after taking walks. AR 113. The increased leg pain after 26 walks causes Plaintiff to lose sleep. AR 113. Plaintiff testified that he is only able to sit for half an 27 hour and to stand for about 20 minutes at a time. AR 114. Plaintiff testified that he experiences 28 radiating pain from his back to his legs daily. AR 114-15. At times, the pain in his left leg is so bad he 1 cannot even be touched. AR 115. It is routine for Plaintiff to lose sleep due to the pain, about 18 days 2 out of 30. AR 115. Plaintiff further testified that he is able to carry groceries weighing about 20 3 pounds approximately 5 blocks. AR 115-16. 4 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE classified 5 Plaintiff’s past work as farm equipment mechanic I and truck driver heavy. The ALJ also asked the 6 VE hypotheticals. For the first hypothetical, the ALJ asked the VE to consider an individual the 7 Plaintiff’s age, education and work history who would be able to work at the light exertional level with 8 occasional stooping, crouching, and crawling and can perform non-complex routine tasks. AR 118. 9 The VE testified that such an individual could not perform the Plaintiff’s past work but that there is 10 other work that the individual can perform, including unskilled light work. AR 118. 11 For the second hypothetical, the ALJ asked the VE to consider an individual the Plaintiff’s age, 12 education, and work history. The individual would start from the light exertional level, could stand and 13 walk for a maximum combined time of three to four hours with occasional balancing, stooping, 14 kneeling, crouching, and crawling. AR 118-19. The VE testified that such an individual could perform 15 a restricted range of light jobs that would allow for a sit/stand option. AR 119. The ALJ also asked if 16 the stand and walk maximum was changed to only three hours instead of three to four hours. AR 119. 17 The VE testified that if a person can sit and stand at will and continue to be productive, the person 18 would not necessarily be restricted to sedentary work. AR 119. The VE further testified that such a 19 person could perform some work such as cashier, storage facility rental clerk, and courier. AR 120. 20 For the third hypothetical, the ALJ asked the VE to consider the same individual a hypothetical 21 two, but the individual would require two additional breaks in a workday to address pain or fatigue 22 and those breaks would run up to 10 minutes and be in addition to the breaks already provided. AR 23 120. The VE testified that based on his experience the individual would not be able to perform any 24 work. AR 120. 25 Plaintiff’s counsel then asked the VE a hypothetical. AR 122. Counsel asked the VE to 26 consider an individual similar to the individual in the ALJ’s second hypothetical, but consider the 27 individual needed a cane for both balance and ambulation 50 percent of the days. AR 122. The VE 28 testified that such an individual could not perform the Plaintiff’s past work. AR 123. 1 The ALJ then clarified his second hypothetical to be that of an individual could stand/walk for 2 only three hours. AR 123. The VE testified that it would not change his answer, however, if the 3 individual required a cane for support, as in counsel’s hypothetical, the individual could only perform 4 sedentary work. AR 123. 5 Medical Record 6 The relevant medical record was reviewed by the Court and will be referenced below as 7 necessary to this Court’s decision. 8 The ALJ’s Decision 9 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 10 determined that Plaintiff was not disabled under the Social Security Act prior to September 2, 2017 11 but became disabled on that date and has continued to be disable. AR 18. Specifically, the ALJ found 12 that Plaintiff met the insured status requirements through December 31, 2017. He had not engaged in 13 substantial gainful activity since the alleged onset date. AR 19. The ALJ identified degenerative disc 14 disease of the lumbar spine as a severe impairment. AR 19. The ALJ determined that the severity of 15 Plaintiff’s impairments did not meet or equal any of the listed impairments. AR 21. 16 Based on a review of the entire record, the ALJ found that since May 7, 2013 Plaintiff retained 17 the residual functional capacity (“RFC”) to perform light work except he can stand and walk for a total 18 of three hours in a workday, and he can perform occasional balancing, stooping, kneeling, crouching, 19 and crawling. AR 21. With this RFC, the ALJ found that since May 7, 2013, Plaintiff could not 20 perform his past relevant work. AR 26. The ALJ also found that on September 2, 2017, the Plaintiff’s 21 age category changed to an individual of advanced age. AR 26. The ALJ found that prior to September 22 2, 2017, there were jobs that existed in the national economy that the Plaintiff could perform. AR 26. 23 However, after September 2, 2017, there are no jobs that exist in significant numbers in the national 24 economy that the Plaintiff could perform. AR 27. The ALJ therefore concluded that Plaintiff had not 25 been under a disability prior to September 2, 2017, but became disabled on that date and has continued 26 to be disabled. His disability is expected to last twelve months past the onset date. AR 27. 27 /// 28 /// 1 SCOPE OF REVIEW 2 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 3 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 4 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 5 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 6 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 7 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 8 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 9 considered, weighing both the evidence that supports and the evidence that detracts from the 10 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 11 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 12 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 13 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 14 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 15 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 16 REVIEW 17 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 18 substantial gainful activity due to a medically determinable physical or mental impairment which has 19 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 20 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 21 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 22 her age, education, and work experience, engage in any other kind of substantial gainful work which 23 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 24 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 25 1990). 26 27 28 1 DISCUSSION3 2 Plaintiff contends that the RFC does not reflect the substantial evidence of record since May 7, 3 2013, the alleged onset date. (Doc. No. 21 at 14.) Specifically, Plaintiff argues that (1) the substantial 4 evidence of record establishes that Plaintiff’s severe degenerative disk disorder reduced his RFC to at 5 least a sedentary level, including the need to use a cane for extended ambulation and standing; and (2) 6 the substantial evidence of record establishes that Plaintiff suffers from severe adjustment disorder 7 with anxious mood which reduced his mental residual functional capacity (“MRFC”) to at least simple 8 repetitive tasks. (Doc. No. 21 at 14, 25.) 9 A. The ALJ Properly Evaluated the Medical Evidence of Physical Residual Functional 10 Capacity 11 Plaintiff argues the substantial evidence of record establishes that Plaintiff’s severe 12 degenerative disk disorder reduced his RFC to at least a sedentary level, including the need to use a 13 cane for extended ambulation and standing. (Doc. No. 21 at 14.) In so arguing, Plaintiff contends that 14 the record is replete with evidence that Plaintiff’s physicians have found that Plaintiff’s use of a cane 15 is medically necessary to ambulate and stand. (Doc. No. 21. At 15.) Plaintiff identifies an opinion 16 from pain treating source Dr. Amireh who documents that Plaintiff’s prescribed plan of care included 17 use of a cane to prevent falls, the use of his walker, and/or to hold on to bars at home, and to be careful 18 with their surroundings when in public places. AR 56-57, 65-66. Dr. Moore, Plaintiff’s acupuncturist, 19 concluded that Plaintiff requires a cane on bad days, due to pain and weakness, numbness. AR 625. 20 Plaintiff also argues that there is testimonial evidence that Plaintiff requires a cane to ambulate, in the 21 form of Plaintiff’s testimony. 22 Plaintiff’s argument is not persuasive. “[T]he full range of light work requires standing or 23 walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” Social Security 24 Ruling 83-10; Davis v. Berryhill, 743 Fed.App’x. 846, 850 (9th Cir. 2018) (noting that “light work” 25 entails “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday,” 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 and “[s]itting may occur intermittently during the remaining time.”) (citing SSR 83-10); Ocegueda v. 2 Colvin, 630 Fed.App’x. 676, 678 (9th Cir. 2015) (“Under the regulations as interpreted by the 3 Commissioner, a ‘full range of light work requires standing or walking, off and on, for a total of 4 approximately 6 hours of an 8–hour workday.’”) (citing SSR 83–10); Holman v. Shalala, 42 F.3d 5 1400 (9th Cir. 1994) (stating that light work requires six hours of standing or walking). The Court 6 therefore finds no error in the ALJ’s determination that Plaintiff could perform light work despite 7 finding that Plaintiff could stand and walk for no more than three to four hours in a workday. 8 “It is clear that it is the responsibility of the ALJ, not the claimant’s physician, to determine 9 residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). An RFC “is 10 the most [one] can still do despite [his or her] limitations” and it is “based on all the relevant evidence 11 in [one’s] case record,” rather than a single medical opinion or piece of evidence. 20 C.F.R. § 12 404.1545(a)(1). While it is true that an ALJ is “not qualified to interpret raw medical data in 13 functional terms,” Padilla v. Astrue, 541 F.Supp.2d 1102, 1106 (C.D. Cal. 2008), the ALJ is not 14 precluded from making an RFC finding that differs from assessments contained in medical source 15 statements. Indeed, “[t]he ALJ’s RFC determination need not precisely reflect any particular medical 16 provider’s assessment.” Holcomb v. Comm’r Soc. Sec., No. 2:17-cv-02268-KJM-CKD, 2019 WL 17 176266, at *4 (E.D. Cal. Jan. 11, 2019) (citing Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 18 1222-23 (9th Cir. 2010)). 19 Here, the ALJ cited medical evidence and treatment records to support his RFC finding that 20 Plaintiff could perform a range of light work with the exception that Plaintiff can stand and walk for a 21 total of three hours in a workday, and he could perform occasional balancing, stooping, kneeling, 22 crouching, and crawling. 23 In 2013, Dr. Steven Stolz, consultative examiner, opined that Plaintiff had chronic lower back 24 pain, psychiatric, restless leg syndrome, and prior renal cell carcinoma. Dr. Stolz observed that 25 Plaintiff walked slowly but did not require an assistive device and had no focal or asymmetrical 26 finding. AR 602. Dr. Stolz opined that Plaintiff could lift and carry 20 pounds occasionally and 10 27 pounds frequently, stand and walk for three to four hours in an eight-hour day, and sit for six hours in 28 an eight-hour day, could occasionally climb, stoop, balance, kneel, crouch, and crawl. AR 602. The 1 ALJ granted significant weight to Dr. Stolz opinion as it was consistent with the overall record and the 2 limitation on walking was supported by the history of back surgeries, continued treatment for back 3 pain, and the intermittent use of a cane. AR 24. 4 Plaintiff’s acupuncturist Tim Moore, L.Ac., completed a medical source statement in July 5 2017. Acupuncturist Moore observed that Plaintiff’s primary symptoms were constant debilitating 6 back pain ranging from a 3-8 on a scale of 1-10. AR 623-24. Acupuncturist Moore opined that 7 Plaintiff could walk one to two city blocks without rest or severe pain, could sit for 20 minutes at a 8 time for a total of about four hours sitting in an 8-hour work day, could stand for about 10 minutes at a 9 time for a total of less than two hours standing and walking in an 8-hour workday, needed a job that 10 permitted shifting positions at will and walking for 5 minutes every 15 minutes, needed unscheduled 11 breaks, could lift and carry up to 10 pounds, could never twist or climb ladders, rarely stoop and 12 crouch, and occasionally climb stairs. AR 624-26. Mr. Moore did not opine that the Plaintiff required 13 the use of a cane. The ALJ gave the opinion “limited weight” as Mr. Moore is not a medical doctor, 14 opines as to impairments to arms and wrists not documented elsewhere in the record, and states an 15 opinion on Plaintiff’s condition prior to beginning treatment. AR 25. Finally, the ALJ found that the 16 limitations were “overly restrictive considering [Plaintiff’s] wide range of activities.” AR 25. 17 On October 11, 2017, Plaintiff saw Dr. Amireh for his back pain. Dr. Amireh prescribed a plan 18 of care which included the use of an assistive device to prevent falls, but also included that Plaintiff 19 should attempt to perform all activities as close to normal as possible. AR 1176-77. On October 26, 20 2017, Plaintiff had an additional visit with Dr. Amireh where he did not require a cane to ambulate. 21 AR 1172. 22 Further, Plaintiff testified that he was able to perform tasks like mowing the lawn and some 23 yard work. He has found some relief in using a TENs unit, acupuncture, and daily exercises. Plaintiff 24 also testified that he is able to walk about a mile with breaks and can carry groceries up to 5 blocks 25 weighing about 18-20 pounds. Plaintiff also testified that he has increased pain after walking or doing 26 yard work, he can sit for 30 minutes and stand for 20 minutes. Plaintiff further testified that he uses his 27 cane “off and on” and uses his cane during walks for “insurance” that he will be able to make it home. 28 AR 111. Plaintiff further testified that he used his cane when the pain was worse. AR 111. Plaintiff did 1 not testify that he requires a cane at all times. Moreover, the ALJ found that Plaintiff’s statements 2 about the intensity, persistence, and limiting effects of his symptoms are inconsistent because Plaintiff 3 “reported a wide range of activities of daily living” including “ watched television, walked to town to 4 get the newspaper, went to the store for a soda, napped, walked to his daughter’s apartment, did 5 household cleaning and yard work, took care of his personal grooming needs, prepared simple meals, 6 shopped two times a week for one to two hours, vacuumed, mowed the lawn, did minor household 7 repairs, drove, went out alone, rode a bicycle, and visited others.” AR 22. 8 The VE testified that an individual with Plaintiff’s age, experience, and education, who could 9 stand/walk for no more than three to four hours could perform a restricted range of light jobs that 10 would allow for a sit/stand option. AR 119. The ALJ also asked if the stand and walk maximum was 11 changed to only three hours instead of three to four hours. AR 119. The VE testified that if a person 12 can sit and stand at will and continue to be productive, the person would not necessarily be restricted 13 to sedentary work. AR 119. The VE further testified that such a person could perform some work such 14 as cashier, storage facility rental clerk, and courier. AR 120. 15 The record, including Plaintiff’s testimony, support the ALJ’s RFC determination. Plaintiff 16 performs a wide range of activities both with and without his cane. The ALJ provided numerous 17 limitations in his RFC determination including limiting Plaintiff to stand and walk for a total of three 18 hours in a workday and only occasionally balancing, stooping, kneeling, crouching, and crawling. AR 19 21. The medical opinions provided by Plaintiff and the opinion of the state agency examiner support 20 that Plaintiff should be able to perform work where he is only required to walk or stand for three 21 hours. Plaintiff’s testimony also supports that finding, in that he is able to walk a mile a day, grocery 22 shop for one to two hours, do yard work, and take care of other household chores. The VE testified 23 that there would be light work for a person like Plaintiff who could stand/walk for no more than three 24 to four hours in a workday, albeit a restricted amount of work. Additionally, the record does not 25 support that Plaintiff requires his cane to ambulate at all times. Based on the record and testimonial 26 evidence, the ALJ did not err in finding Plaintiff could perform light work. 27 /// 28 /// 1 B. The ALJ Properly Evaluated Plaintiff’s Mental Residual Functional Capacity 2 Plaintiff alleges that the ALJ erred by finding that Plaintiff’s medically determinable 3 impairments of depression and anxiety do not cause more than a minimal limitation on Plaintiff’s 4 ability to perform mental work and are therefore not severe. (Doc. No. 21 at 25.) 5 At step two of the five-step analysis, the ALJ is required to determine whether a plaintiff has a 6 “severe” medical impairment or combination of impairments. 20 C.F.R. § 416.920(c). An impairment 7 is “severe” if it “significantly limits [the claimant’s] physical or mental ability to do basic work 8 activities.” 20 C.F.R. § § 416.920(c), 416.921(a). The evaluation at step two is a de minimis screening 9 device to dispose of groundless claims. Bowen v. Yukert, 482 U.S. at 153–154 (1987); Edlund v. 10 Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001). An impairment is not severe if the evidence 11 establishes “a slight abnormality that has no more than a minimal effect on an individual[’]s ability to 12 work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal quotations and citations 13 omitted). 14 In determining whether a claimant’s mental impairment is severe, an ALJ is required to 15 evaluate the degree of mental limitation in four broad areas: (1) understand, remember, or apply 16 information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or 17 manage oneself. If the degree of limitation in these four areas is determined to be “mild,” a plaintiff's 18 mental impairment is generally not severe, unless there is evidence indicating a more than minimal 19 limitation in his ability to perform basic work activities. See 20 C.F.R. § 416.920a(c)-(d). 20 Here, the ALJ found that Plaintiff’s medically determinable impairments of depression and 21 anxiety, “considered singly and in combination, do not cause more than minimal limitations in the 22 [Plaintiff’s] ability to perform basic mental work activities.” AR 20. The ALJ expressly found that 23 Plaintiff’s “mental impairment caused no more than a mild restriction in understanding, remembering, 24 or applying information, interacting with others, concentrating, persisting, or maintaining pace, 25 adapting or maintaining oneself.” AR 20. The ALJ also found that Plaintiff completes “yard work, 26 prepares meals, helps with folding laundry, drives, shops in stores, is able to handle his finances, 27 spends time with others, finishes tasks he starts, and is able to follow instructions well.” AR 20. 28 1 Plaintiff contends that the substantial evidence of record establishes that Plaintiff’s mental 2 disorders prevent him from engaging in work involving technical and/or complex tasks and limits him 3 to only performing work involving simple, repetitive tasks. (Doc. No. 21 at 25.) Even assuming 4 arguendo that the ALJ erred by failing to find Plaintiff’s mental impairment severe at step two, any 5 such error is harmless if the ALJ properly considered and discussed Plaintiff’s mental condition at step 6 four of the sequential evaluation. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“The decision 7 reflects that the ALJ considered any limitations posed by the bursitis at Step 4. As such, any error that 8 the ALJ made in failing to include the bursitis at Step 2 was harmless.”). 9 In this instance, the ALJ considered and discussed Plaintiff’s mental condition at step four of 10 the sequential evaluation. AR 23-24. At step four, the ALJ relied on the opinion of the consultative 11 examiner, Richard Engeln, Ph.D., who opined that Plaintiff did not have any mental limitations. AR 12 24-25, 1126-31. Dr. Engeln found that Plaintiff presented with positive attention to dress and 13 grooming, presented as a very verbal man, with very positive social relationship style, speech was 14 normal and appropriate, he was cooperative and calm, had a positive outlook on tasks, no restrictions 15 in concentration, was able to perform abstract thinking and his judgment was adequate for daily living 16 and job adjustment. AR 1126-31. Dr. Engeln opined that Plaintiff was mentally competent to manage 17 funds, and was verbally, socially, and cognitively capable of working a job with multidimensional 18 instructions and independence was demanded. AR 1130-31. 19 The ALJ assigned significant weight to the opinion. AR 24. The ALJ noted that the opinion 20 was consistent with the treatment record and Plaintiff’s presentation at the hearing. AR 24-25. As with 21 Dr. Michiel’s opinion, Dr. Englen’s opinion constitutes substantial evidence supporting the ALJ’s 22 finding that Plaintiff’s mental impairment was non-severe. See Tonapetyan v. Halter, 242 F.3d 1144, 23 1149 (9th Cir. 2001) (an examining physician’s opinion alone constitutes substantial evidence because 24 it rests on his own independent examination of the claimant). 25 Additionally, the ALJ accorded significant weight to the opinions of the State agency 26 psychological consultants, who opined that Plaintiff did not have any mental limitations. AR 25, 130- 27 133, 143-145, 155-57. The opinions of non-examining physicians, like the State agency medical 28 consultants, may serve as substantial evidence when their opinions “are consistent with independent 1 clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2 2002); cf. Neugebauer v. Barnhart, 154 Fed.App’x 649, 650 (9th Cir. 2005) (“the ALJ was free to rely 3 on non-treating agency physician reports that contained specific clinical support”). Here, as the ALJ 4 acknowledged that the opinions of the State agency consultants were consistent with the overall record 5 which indicated limited mental health treatment and complaints. AR 25, 130-133, 143-145, 155-57. 6 Furthermore, the ALJ accorded some weight to the opinion of Dr. Ekram Michiel, who 7 completed a consultative psychiatric evaluation of Plaintiff in October 2013. AR 23, 564-67. On 8 mental status examination, Plaintiff had normal gait and posture, no involuntary movements or 9 specific mannerisms, kept fair eye contact, had normal speech without latency, his affect was broad 10 and appropriate, and had goal-directed thoughts. AR 564-67. Dr. Michiel opined that Plaintiff could 11 maintain attention and concentration to carry out simple job instructions but would be unable to carry 12 out a multiplicity of technical and/or complex tasks. AR 276. 13 Dr. Michiel’s opinion was contradicted by the opinions of Dr. Engeln and the state agency 14 examiners. As such, the ALJ was required to provide “specific and legitimate reasons” supported by 15 substantial evidence in the record to reject it. Lester, 81 F.3d at 830-31. In assigning little weight to 16 Dr. Michiel’s assessment, the ALJ reasoned that his opinion was not consistent with the record which 17 indicated limited treatment for mental symptoms, the examination findings were normal and did not 18 support the restrictions. AR 24. Here, the ALJ discounted Dr. Michiel’s limitations as not supported 19 by the medical record as a whole. AR 24. An ALJ may permissibly rejected a medical opinion of a 20 non-treating examining physician that is unsupported by the record as a whole. See 20 C.F.R. § 21 416.927(c)(4) (“[g]enerally, the more consistent an opinion is with the record as a whole, the more 22 weight we will give to that opinion.”); Batson, 359 F.3d at 1195; Mendoza v. Astrue, 371 Fed. Appx. 23 829, 831–32 (9th Cir. 2010) (“The ALJ permissibly rejected a medical opinion of a non-treating 24 examining physician that was unsupported by the record as a whole.”) (citation omitted). Here, the 25 ALJ determined that the other opinions regarding Plaintiff’s mental impairments were consistent with 26 each other and Plaintiff’s presentation and testimony at the hearing. AR 23-25. 27 Based on the above, the Court finds that the ALJ did not err in his evaluation of Plaintiff’s 28 mental impairment. Further, it is the ALJ's duty to resolve conflicts in the evidence, including 1 conflicting medical evidence from examining and treating physicians. See Benton v. Barnhart, 331 2 F.3d 1030, 1040 (9th Cir.2003) (noting that ALJ may reject the opinion of a treating physician in favor 3 of the conflicting opinions of an examining physician). The Court must affirm the ALJ's decision even 4 where the evidence is susceptible to more than one rational interpretation. Molina, 674 F.3d at 1111 5 (“Even when the evidence is susceptible to more than one rational interpretation, we must uphold the 6 ALJ’s findings if they are supported by inferences reasonably drawn from the record.”). 7 CONCLUSION 8 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 9 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 10 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 11 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 12 Commissioner of Social Security, and against Plaintiff Raymond T. Sanchez. 13 14 IT IS SO ORDERED. 15 Dated: March 17, 2021 /s/ Barbara A. McAuliffe _ 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28