(SS) Carr v. Commisioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL C. CARR, No. 1:20-cv-00217-EPG 12 Plaintiff, 13 v. FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 COMMISSIONER OF SOCIAL SECURITY COMPLAINT SECURITY, 15 (ECF Nos. 14, 19) Defendants. 16 17 This matter is before the Court on Plaintiff’s complaint for judicial review of an 18 unfavorable decision by the Commissioner of the Social Security Administration regarding his 19 application for Disability Insurance Benefits and Supplemental Security Income. The parties have 20 consented to entry of final judgment by the United States Magistrate Judge under the provisions 21 of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 22 9, 15). 23 Plaintiff argues that the ALJ erred by rejecting the opinion of examining physician Dr. 24 Satish Sharma and the opinion co-signed by treating physician Dr. Jeremiah Fillo and family 25 nurse practitioner Margaret Jacobs. (ECF No. 14 at 6-11). At a hearing on March 4, 2021, the 26 Court heard from the parties and, having reviewed the record, administrative transcript, the briefs 27 and supplemental briefs of the parties, and the applicable law, finds as follows: 28 /// 1 I. CHANGE IN SOCIAL SECURITY REGULATIONS 2 Plaintiff’s motion for summary judgment relies on Ninth Circuit precedent that requires an 3 ALJ to give varying amounts of weight to different types of physicians based on their treating 4 relationship with Plaintiff. (ECF No. 14 at 9-10) (“As a general rule, more weight should be given 5 to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” 6 (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987))). The Commissioner argues that such 7 decisions have been supplanted by intervening regulations. (ECF No. 20 at 12-18). At the hearing, the 8 parties requested, and the Court granted, leave to file supplemental briefs on the matter. (ECF No. 24) 9 (minutes for telephonic proceedings). The Commissioner and Plaintiff each filed their supplemental 10 briefings on March 25, 2021. (ECF Nos. 25 & 26). 11 A. Applicable Regulations 12 The Commissioner promulgated revised regulations concerning how ALJs must evaluate 13 medical opinions for claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c, 416.920c. 14 Previously, regulations and case law required ALJs to give physicians’ opinions different 15 weights, depending on the relationship between the physician and the claimant. See 20 C.F.R. §§ 16 404.1527(c) & 416.920(c); Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014) (discussing 17 different weights for treating, examining, and non-examining physicians). The 2017 regulations, 18 in contrast, do not give different weights to different physician types in most circumstances. See 19 20 C.F.R. §§ 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including 20 controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including 21 those from your medical sources.”); 416.920c(a) (same); see also Charles Terranova, Somebody 22 Call My Doctor: Repeal of the Treating Physician Rule in Social Security Disability 23 Adjudication, 68 Buff. L. Rev. 931, 945-60 (2020) (discussing common-law origins of the 24 treating-physician rule, how Commissioner adopted regulations implementing a form of the rule, 25 and 2017 regulations’ modification of the rule). 26 Plaintiff argues these regulations do not supplant the treating-physician rule. (ECF Nos. 27 22 at 2-4; 26 passim). Defendant disagrees and argues that the new regulations, which emphasize 28 how well the opinions are supported by and consistent with the record, control the relevant 1 analysis. 2 Plaintiff filed his claim on August 7, 2017, (A.R. 19), which is after March 27, 2017. 3 Therefore, to the extent the new regulations are applicable, they apply to him. 4 B. Chevron Deference 5 There is a two-step framework for determining whether an agency’s interpretation of an 6 ambiguous statute is entitled to judicial deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. 7 Council, Inc., 467 U.S. 837, 842–44 (1984). “At the first step, we ask whether the statute’s plain 8 terms directly address the precise question at issue. If the statute is ambiguous on the point, we 9 defer at step two to the agency’s interpretation so long as the construction is a reasonable policy 10 choice for the agency to make.” Nat’l Cable & Telecommunications Ass’n v. Brand X Internet 11 Servs., 545 U.S. 967, 986 (2005) (internal quotation marks, citations and alterations omitted). “To 12 maintain the proper separation of powers between Congress and the executive branch, we must 13 ‘exhaust all the traditional tools of construction’ before we ‘wave the ambiguity flag.’ ” Medina 14 Tovar v. Zuchowski, 982 F.3d 631, 634 (9th Cir. 2020) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 15 2415 (2019)). 16 “A court’s prior judicial construction of a statute trumps an agency construction otherwise 17 entitled to Chevron deference only if the prior court decision holds that its construction follows 18 from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand 19 X, 545 U.S. at 982. 20 The Court first turns to the Chevron framework. Congress required the Commissioner to 21 “adopt reasonable and proper rules and regulations to regulate and provide for the nature and 22 extent of the proofs and evidence … in order to establish the right to benefits hereunder.” 42 23 U.S.C. § 405(a). The Social Security Act provides several other requirements when making a 24 determination of disability: 25 (A) An individual shall not be considered to be under a disability unless he 26 furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require. An individual’s statement as to 27 pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by 28 1 medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or 2 psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence 3 required to be furnished under this paragraph (including statements of the 4 individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs 5 and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically 6 acceptable clinical or laboratory techniques (for example, deteriorating nerve or 7 muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. Any non-Federal hospital, clinic, laboratory, or 8 other provider of medical services, or physician not in the employ of the Federal Government, which supplies medical evidence required and requested by the 9 Commissioner of Social Security under this paragraph shall be entitled to payment from the Commissioner of Social Security for the reasonable cost of 10 providing such evidence. 11 (B) In making any determination with respect to whether an individual is under a 12 disability or continues to be under a disability, the Commissioner of Social Security shall consider all evidence available in such individual’s case record, 13 and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not 14 under a disability. In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual’s 15 treating physician (or other treating health care provider) all medical evidence, 16 including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other 17 source on a consultative basis. 18 42 U.S.C. § 423(d)(5) (emphases added). 19 The plain terms of the Social Security Act do not dictate how ALJs must interpret 20 different physicians’ opinions. Section 405(a) requires the Commissioner to adopt rules “for the 21 nature and extent of the proofs and evidence” to prove disability. Section 423(d)(5)(A) requires 22 the Commissioner to base determinations of disability on “medical and other evidence … as the 23 Commissioner of Social Security may require.” Section 423(d)(5)(B) requires the Commissioner 24 to “consider all evidence available in [a claimant’s] case record” and to “make every reasonable 25 effort to obtain from the individual’s treating physician (or other treating health care provider) all 26 medical evidence … necessary in order to properly make such determination, prior to evaluating 27 medical evidence obtained from any other source on a consultative basis.” 28 /// 1 None of these statutory provisions directly address what evidentiary weight should be 2 given to any particular type of physician. Even though section 423(d)(5)(B) refers to treating 3 physicians and requires the Commissioner to obtain information from the treating physician 4 “prior to evaluating medical evidence from any other source on a consultative basis,” it does not 5 mandate the Commissioner to give the treating source additional weight. See Jones v. Saul, No. 6 2:19-CV-01273-AC, 2021 WL 620475, at *7 (E.D. Cal. Feb. 17, 2021) (finding that § 7 423(d)(5)(B) does not require additional weight to treating physicians; “[r]ather, the Act requires 8 that the Commissioner try to obtain and evaluate evidence from a treating source prior to 9 evaluating other sources. The new regulation does not eliminate this requirement, nor does it 10 preclude the Commissioner from giving decisive weight to a treating source in a particular case”). 11 The Court is also cognizant that “Congress has conferred on the [Commissioner] exceptionally 12 broad authority to prescribe standards” under various sections of the Social Security Act. Heckler 13 v. Campbell, 461 U.S. 458, 466 (1983) (concerning section 405(a)); accord Schweiker v. Gray 14 Panthers, 453 U.S. 34, 43 (1981) (“The Social Security Act is among the most intricate ever 15 drafted by Congress. … Perhaps appreciating the complexity of what it had wrought, Congress 16 conferred on the Secretary exceptionally broad authority to prescribe standards for applying 17 certain sections of the Act.”); cf. Schisler v. Sullivan, 3 F.3d 563, 567-69 (2d Cir. 1993) (holding 18 that Second Circuit’s caselaw on treating-physician rule was supplanted by Commissioner’s 1991 19 regulations implementing a less deferential treating-physician rule). 20 Hence, the statute is ambiguous on the issue of how much weight to give different types of 21 physicians. Thus, Chevron’s step one is satisfied. 22 “At Chevron’s second step, we ask whether the agency’s interpretation is reasonable—or 23 rational and consistent with the statute.” City & Cty. of San Francisco v. U.S. Citizenship & 24 Immigr. Servs., 944 F.3d 773, 799 (9th Cir. 2019) (internal quotation marks and citation omitted). 25 Rules are not reasonable if they constitute “an arbitrary and capricious interpretation of [a] 26 statutory provision.” East Bay Sanctuary Covenant v. Biden, --- F.3d ----, 2021 WL 1220082, at 27 *17 (9th Cir. March 24, 2021). 28 /// 1 Here, the Commissioner’s rules provide a method for assessing differing medical 2 opinions. The regulations set supportability1 and consistency2 as “the most important factors” 3 when determining the opinions’ persuasiveness. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 4 There is nothing inherently unreasonable about giving medical opinions greater weight if they are 5 better supported by objective medical evidence or consistent with other evidence. 6 The regulations also provide other factors and subfactors, which apply when there are 7 multiple medical opinions that are “both equally well-supported … and consistent with the record 8 … but are not exactly the same[.]” 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). 9 Plaintiff does not argue that the new rules are unreasonable. Although Plaintiff cites to 10 cases finding that the regulations at issue did not supplant certain Ninth Circuit precedent, the 11 cases to which Plaintiff cites do not find the rules are invalid. Thompson v. Commissioner of 12 Social Security, No. 2:20-cv-0003-KJN, 2021 WL 1118656 (E.D. Cal. Mar. 24, 2021) (finding 13 ALJ erred under new regulations, while noting hesitation in applying new regulations); Kathleen 14 G. v. Commissioner of Social Security, 2020 WL 6581012 (W.D. Wash. Nov. 10, 2020) (noting 15 the regulations do not “clearly supersede the ‘specific and legitimate’ standard” but not 16 addressing the validity of the regulations generally). Other cases have also found the regulations 17 are entitled to Chevron deference. See, e.g., Jones, 2021 WL 620475, at *6-8 (concluding new 18 regulations are entitled to Chevron deference); Dany Z. v. Saul, --- F. Supp. 3d ----, 2021 WL 19 1232641, at *8-10 (D. Vt. Mar. 31, 2021) (in discussing Chevron, finding Commissioner had 20 authority to promulgate the new regulations, implying section 405(a) is ambiguous, and holding 21 the new regulations are not arbitrary and capricious). 22 Because the agency’s interpretation is a reasonable policy choice for the agency to make 23 for this ambiguous statutory issue, the Court finds that the regulations are entitled to Chevron 24 deference with respect to the weight given to various medical sources. 25 1 “The more relevant the objective medical evidence and supporting explanations presented by a medical source are 26 to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). 27 2 “The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior 28 administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). 1 C. Caselaw for Treating Physician Rule 2 The new regulations are inconsistent with the treating-physician rule. Under that rule, the 3 ALJ was required to give different weight to different physicians, depending on the relationship 4 between the physician and the claimant. This rule has origins in caselaw. “The treating physician 5 rule at issue here was originally developed by Courts of Appeals as a means to control disability 6 determinations by administrative law judges under the Social Security Act.” Black & Decker 7 Disability Plan v. Nord, 538 U.S. 822, 829 (2003) (citations omitted); accord Rachel 8 Schneider, A Role for the Courts: Treating Physician Evidence in Social Security Disability 9 Determinations, 3 U. Chi. L. Sch. Roundtable 391, 396 (1996) (“Before 1991 the SSA regulations 10 did not provide a uniform statement of the scope of the treating physician rule. Instead, the rule 11 only existed at common law.”). 12 The Ninth Circuit adopted a formulation of the treating-physician rule in Murray v. 13 Heckler, 722 F.2d 499 (9th Cir. 1983). There, the court noted the Second, Fifth and Sixth Circuits 14 provide greater weight to such opinions and then held that “[i]f the ALJ wishes to disregard the 15 opinion of the treating physician, he or she must make findings setting forth specific, legitimate 16 reasons for doing so that are based on substantial evidence in the record.” Id. at 502. The court 17 did not hold, however, that the treating-physician rule “follows from the unambiguous terms of 18 the statute and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982. 19 Accordingly, the treating-physician rule must yield to the intervening regulation. See id.; 20 see also Jones, 2021 WL 620475, at *9 (“In sum, because (1) the 2017 regulations are not 21 arbitrary and capricious or manifestly contrary to statute, (2) the prior judicial construction was 22 not mandated by the governing statutory language to the exclusion of a differing agency 23 interpretation, and (3) the [treating-physician rule] is inconsistent with the new regulation, the 24 court concludes that the 2017 regulations effectively displace or override [prior caselaw.]”).3 25 3 At the hearing, Plaintiff argued that the standards for articulating the ALJ’s decision remain despite the new 26 regulations. In his supplemental brief, Plaintiff argues that “[e]ffective judicial review of agency decisions requires effective articulation by the agency’s ALJs of the reasons underlying their decisions[.] It is the purview of the 27 courts—not the agency itself—to establish what level of articulation the court requires.” (ECF No. 26 at 4). The Commissioner disagrees and points the Court to a series of cases that reject that position. (See ECF No. 25). 28 1 II. MEDICAL EVIDENCE 2 A. Satish Sharma, MD 3 Plaintiff argues that the ALJ improperly rejected the opinion of the examining physician 4 Satish Sharma, MD. 5 As discussed above, the new regulations do not defer to or give any specific evidentiary 6 weight to any medical opinions. Rather, they require that the ALJ determine their persuasiveness 7 by looking mostly at supportability and consistency, and then, only in some instances, at other 8 factors: 9 (a) How we consider medical opinions and prior administrative medical findings. 10 When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior 11 administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. 12 The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability 13 (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this 14 section). … 15 (b) How we articulate our consideration of medical opinions and prior administrative medical findings. We will articulate in our determination or 16 17 In the past, the Ninth Circuit has held that an ALJ may reject a contradicted treating or examining doctor’s opinion only “by providing specific and legitimate reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 18 427 F.3d 1211, 1216 (9th Cir. 2005). The new regulations provide, arguably in contrast, “[w]e are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical source 19 individually.” 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1) (same). 20 Some courts have continued to endorse the Ninth Circuit articulation requirement as one of appellate review, outside the purview of regulations. See Thompson v. Comm’r of Soc. Sec., No. 2:20-CV-0003-KJN, 2021 WL 1118656 at *8 21 (E.D. Cal. Mar. 24, 2021) (“the ALJ is still required to fully articulate the rationale relied upon” in part because “‘[t]he ALJ must provide sufficient reasoning that allows for review.’” (quoting Lambert, 980 F.3d 1266, 1277 (9th 22 Cir. 2020))). The Thompson court reasoned that “if an ALJ were allowed to cherry-pick the record for facts that align with an ‘unpersuasive’ finding and ignore facts that might otherwise call that finding into question, a reviewing court 23 would be required to ignore large portions of the record simply because the ALJ decided to avoid discussing evidence favorable to a claimant. However, the Ninth Circuit has long held that a court may not affirm by isolating a ‘specific 24 quantum of supporting evidence.’” Id. (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). See also Kathleen G. v. Comm’r of Soc. Sec., 2020 WL 6581012, at *3 (W.D. Wash. Nov. 10, 2020) (“[The ‘specific and 25 legitimate’] standard is not an articulation of how ALJs must weigh or evaluate opinions, but rather a standard by which the court evaluates whether the ALJ has reasonably articulated his or her consideration of the evidence. Whatever factors the Commissioner considers in evaluating a medical opinion, he must explain his reasoning to 26 allow for meaningful judicial review, and the Ninth Circuit’s ‘specific and legitimate’ standard is merely a benchmark against which the Court evaluates that reasoning.”). 27 Because, as discussed below, the Court finds that under either the new regulations or the previous articulation 28 standards, the ALJ should be affirmed, the Court declines to take a position on this issue. 1 decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record. Our articulation requirements 2 are as follows: 3 (1) Source-level articulation. Because many claims have voluminous case 4 records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or 5 decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings in your case record. 6 Instead, when a medical source provides multiple medical opinion(s) or 7 prior administrative medical finding(s), we will articulate how we considered the medical opinions or prior administrative medical findings 8 from that medical source together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. 9 We are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical source 10 individually. 11 (2) Most important factors. The factors of supportability (paragraph (c)(1) 12 of this section) and consistency (paragraph (c)(2) of this section) are the most important factors we consider when we determine how persuasive 13 we find a medical source’s medical opinions or prior administrative medical findings to be. Therefore, we will explain how we considered the 14 supportability and consistency factors for a medical source’s medical 15 opinions or prior administrative medical findings in your determination or decision. … 16 (c) Factors. We will consider the following factors when we consider the medical 17 opinion(s) and prior administrative medical finding(s) in your case: 18 (1) Supportability. The more relevant the objective medical evidence and 19 supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the 20 more persuasive the medical opinions or prior administrative medical finding(s) will be. 21 (2) Consistency. The more consistent a medical opinion(s) or prior 22 administrative medical finding(s) is with the evidence from other medical 23 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 24 20 C.F.R. § 404.1520c, 416.920c. 25 Here, the ALJ provided the following reasons for rejecting Dr. Sharma’s opinions: 26 The consultative examiner, Satish Sharma, M.D., reviewed the record and 27 examined the claimant in September 2017. Dr. Sharma limited the claimant to light work except that the claimant could not bend or stoop more than 28 1 occasionally, and he had decreased hearing in the left ear (Exhibit B8F). This is not very persuasive. For one, there is no reduction in strength, sensation, reflexes, 2 grip, ambulation, or range of motion even in [his] own examination report; therefore, it is unclear why Dr. Sharma reduced the claimant to light exertional 3 level. [H]e cited no specific support from [his] examination to justify support for 4 the lifting and carrying limitations of 10 and 20 pounds. [H]e observed full range of motion, 5/5 upper extremity strength and normal muscle tone. However, more 5 persuasive is the notation that claimant can hear conversational tones, and does not wear a hearing aid. This is consistent with other presentations in the medical 6 evidence of record. The examination showed tenderness in the spine and some 7 pain on flexion and extension, which does support a reduction in postural activity such as stooping. 8 (A.R. 27-28). 9 Plaintiff argues that the ALJ erred by “rejecting Dr. Sharma’s lifting and carrying 10 limitations” because Dr. Sharma “noted that the plaintiff ‘has tenderness and decreased range of 11 motion of the lumbar spine’ in the paragraph immediately preceding his functional assessment.” 12 (ECF No. 14 at 7-8) (quoting A.R. 814). Plaintiff argues that this finding is consistent with 13 Plaintiff’s medical record, which shows nearly monthly treatment for severe chronic thoracic 14 back pain for the last four years. (Id.) Because, according to Plaintiff, heavy lifting can exasperate 15 back pain and cause further injury, Dr. Sharma’s opinion is reasonable based on his examination 16 of Plaintiff, consistent with medical evidence in the record, and supported by substantial 17 evidence. 18 Although aspects of Dr. Sharma’s opinion about lifting and carrying may be consistent 19 with aspects of the record, the ALJ also noted that Dr. Sharma’s opinion was not supported by 20 other parts of the record. Under the new standards defining supportability, “[t]he more relevant 21 the objective medical evidence and supporting explanations presented by a medical source are to 22 support his or her medical opinion(s) or prior administrative medical finding(s), the more 23 persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 24 404.1520c(c)(1). The ALJ accurately noted that Dr. Sharma’s opinion “cited no specific support 25 from [his] examination to justify support for the lifting and carrying limitation of 10 and 20 26 pounds.” (A.R. 28) (citing A.R. 814). Moreover, the ALJ also concluded that some of Dr. 27 Sharma’s findings were inconsistent with his own opinion. As the ALJ noted, (A.R. 28), Dr. 28 1 Sharma found that Plaintiff has a full range of motion and 5/5 upper extremity strength and 2 normal muscle tone, (A.R. 814). The ALJ was permitted to conclude that Dr. Sharma’s findings 3 were internally inconsistent. Thus, the ALJ properly evaluated the medical evidence under the 4 criteria provided by the new standards.4 5 B. Jeremiah Fillo, M.D. and Margaret Jacobs, F.N.P. 6 Plaintiff argues that the ALJ erred by rejecting the opinion cosigned by Plaintiff’s treating 7 providers Dr. Jeremiah Fillo, M.D., and nurse practitioner Margaret Jacobs, F.N.P. 8 Here, the ALJ provided the following reasons for rejecting Dr. Fillo and Jacobs’s opinion: 9 Finally, in June 2018, the claimant’s treating physician, Jerimiah D. Fillo, M.D., 10 submitted a medical opinion. He found the claimant could only stand, walk, and sit for 3 hours and change positions every 30 minutes due to pain. The claimant 11 was further limited to lifting 20 pounds occasionally, 5 pounds frequently, never twist, occasionally stoop, crouch, climb (stairs), but never climb ladders, kneel, 12 crawl, or balance. He was further restricted from reaching, handling, fingering, feeling, pushing and pulling. The claimant would be absent more than 3 times a 13 month (Exhibit B14F). The extreme limitations in this opinion are not persuasive. 14 Dr. Fillio’s office notes do not support these restrictions. The medical evidence of record noted a reduction in pain from 6 of 10 to 2 of 10 in between January and 15 May 2018. The claimant’s gait and station has never shown abnormalities aside from the initial presentation at physical therapy, and sensation, strength, reflexes 16 have all remained intact (Exhibits B9F, 11F and B12F). There has been no allegation or documentation to support limitations in handling, feeling or 17 fingering aside from the very recent surgery on the right shoulder. Moreover, 18 there is no basis given for absences. (A.R. 28). 19 Plaintiff argues that his treating providers’ opinion is consistent with their own opinions 20 and with the record, given his long history of chronic thoracic back pain. (ECF No. 14 at 9). 21 However, the ALJ properly pointed to aspects of the opinion that were not supported by the 22 record. For instance, as the ALJ noted, Dr. Fillo and Jacobs noted Plaintiff “reports his pain today 23 as 6/10” sometime in January 2018. (A.R. 867). Plaintiff’s pain subsequently reduced: his “Lt rip 24 pain” was “2/10” on May 23, 2018. (A.R. 854). Yet in June 2018, as the ALJ noted, Dr. Fillo and 25 Jacobs found Plaintiff had extreme limitations. (A.R. 928). Those limitations were repeatedly 26 27 4 Moreover, to the extent the Ninth Circuit’s articulation standard of specific and legitimate applies, these reasons are sufficiently specific and legitimate and supported by substantial evidence. 28 1 | explained as being “due to pain.” (See id.). Given the recent reduction in pain to 2/10, the ALJ 2 | permissibly found the opinion was insufficiently supported and, thus, less persuasive. 3 In addition, as the ALJ noted, Plaintiff had several normal findings. For instance, he has 4 | been found to have a normal gait. (A.R. 846 (“Normal nonantalgic gain and transfers without 5 || assistive device.”), 850 (same)). This is inconsistent with Dr. Fillo and Jacobs’s opinion for a 6 | limited ability to walk. (See A.R. 928) (noting 3 hour “Max ability to stand and walk (with 7 | normal breaks) during an 8-hour workday’). The ALJ noted there was no support for the 8 | opinions’ limitations on “handling, feeling or fingering aside from the very recent surgery on the 9 | right shoulder.” (A.R. 28). Plaintiff argues that Plaintiff has had various back problems but does 10 | not specifically contest this finding. (See ECF No. 14 at 9). Accordingly, the ALJ properly found 11 | that Dr. Fillo and Jacobs’s opinion was less persuasive because it was not supported.> 12 | IN. CONCLUSION AND ORDER 13 Thus, the decision of the Commissioner of Social Security is hereby affirmed. 14 The Clerk of the Court is directed to close this case. 15 16 IT IS SO ORDERED. 17! Dated: __ April 30, 2021 [sf ey □ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 5 The same rationales also constitute specific and legitimate reasons supported by substantial evidence for rejecting 28 | the opinion.