(SS) White v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IRISH MATHIS WHITE, Case No. 1:22-cv-00615-BAM 12 Plaintiff, ORDER REGARDING PLAINTIFF’S 13 v. SOCIAL SECURITY COMPLAINT AND DEFENDANT’S CROSS-MOTION FOR 14 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 15 SECURITY, (Docs. 10, 12) 16 Defendant. 17 18 19 INTRODUCTION 20 Plaintiff Irish Mathis White (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance 22 benefits under Title II of the Social Security Act and for supplemental security income under Title 23 XVI of the Social Security Act. The matter is currently before the Court on the parties’ briefs, which 24 were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.1 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). (Docs. 5, 6, 8.) 1 Having considered the briefing and record in this matter, the Court finds that the decision of 2 the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, this Court will deny Plaintiff’s appeal, grant 4 Defendant’s cross-motion for summary judgment, and affirm the agency’s determination to deny 5 benefits. 6 FACTS AND PRIOR PROCEEDINGS 7 Plaintiff protectively filed applications for disability insurance benefits and supplemental 8 security income on November 15, 2019. AR 15, 250-56, 257-68.2 Plaintiff alleged that she became 9 disabled on June 2, 2017, due to a herniated disc, chronic cervical synopsis, nerve root issues, 10 hyperthyroid, left rotator cuff tear, tendinopathy of left biceps, arterial enlargement, and septal infarct. 11 AR 111, 288. Plaintiff’s applications were denied initially and on reconsideration. AR 111-15, 123- 12 28. Subsequently, Plaintiff requested a hearing before an ALJ. Following a hearing, ALJ Laureen 13 Penn issued an unfavorable decision on March 24, 2021. AR 12-25, 31-52. Thereafter, Plaintiff 14 sought review of the decision, which the Appeals Counsel denied, making the ALJ’s decision the 15 Commissioner’s final decision. AR 1-5. This appeal followed. 16 Hearing Testimony 17 On March 25, 2021, ALJ Penn held a telephonic hearing. Plaintiff appeared by telephone and 18 was represented by her attorney, Jeffrey Duarte. Kimberly Mullinax, an impartial vocational expert, 19 also appeared by telephone. AR 33. 20 In response to questions from her attorney, Plaintiff testified that she stopped working in 2017 21 because of pain in her neck, back, left shoulder, right knee, arms, and hands, along with numbness in 22 her hands and feet. Her neck got more severe with pulling, tightness, stiffness, and spasms. Her lower 23 back would get numbness, throbbing, pain, and aching constantly. She had pain down her left arm and 24 hands with numbness and tingling. The doctor recommended surgery for her left shoulder, but 25 COVID-19 prevented her from the scheduled surgery. She does not intend to have surgery in the 26 27 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page 28 number. 1 future because she does not want to take any chances. She has pain in her hands and wears a brace on 2 her right hand. She also experiences numbness in both hands. She has problems gripping and 3 grasping with her left hand because of issues in her shoulder. She has to use both hands to lift and 4 pick things up. With her feet, she has pain because of plantar fasciitis, and she has been diagnosed 5 with arthritis in her ankles. She was treated with a cortisone shot for her plantar fasciitis. AR 36-40. 6 Plaintiff also testified that she has been treating with Nurse Practitioner Prophete since 2019 7 and sees her once a month or every six weeks. AR 40-41. 8 When asked about how her symptoms affect her ability to perform daily chores and activities, 9 Plaintiff testified that on a normal day, the pain in her back is always there when she washes dishes, 10 stands, cooks, cleans up, mops the floor, and makes her bed. She also has problems using her arms to 11 reach up and down and left to right. She has pain when she combs her hair, uses the bathroom, and 12 puts on her clothes. She can stand about 5-10 minutes before she has to sit down. She can walk no 13 more than 5-10 minutes before she has to take a break. She can sit about 45 minutes at a time. She 14 also needs to avoid stressful situations to avoid aggravating her blood pressure. She has it under 15 control now, but tries not stress herself out because of it. She is on two blood pressure medications, 16 changed her diet, does a little exercise, and uses her cervical machine. AR 41-43. 17 In response to questions from the ALJ, Plaintiff testified that she can lift and carry 10 pounds. 18 She can walk about half a block. She uses cervical traction and a TENS machine. During a normal 19 day, in addition to household chores, she watches TV, reads, and does adult coloring books and 20 puzzles. She also gets on the internet every now and then, and goes for rides around town with her 21 husband. Her husband helps mop the floors and wash the dishes. The only medication side effect is 22 from Tramadol, which causes drowsiness. AR 43-45. 23 Following Plaintiff’s testimony, the ALJ elicited testimony form the VE. The VE classified 24 Plaintiff’s past work as general clerk, DOT 209.562-010. The ALJ also asked the VE hypothetical 25 questions. For the first hypothetical, the ALJ asked the VE to assume a person of the same age, 26 education, and past work. This person also could lift and carry 20 pounds occasionally, 10 pounds 27 frequently, could stand and walk for six hours, and could sit for six hours. This person could 28 occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but could not climb 1 ladders, ropes, or scaffolds. This person could occasionally reach overhead with the bilateral upper 2 extremities and could not have concentrated exposure to pulmonary irritants such as fumes, odors, 3 dusts, gases, and poor ventilation. The VE testified that this person would be able to do Plaintiff’s 4 past work and would be able do other work in the national economy, such as cashier II, fast food 5 worker, marker, mail clerk, and sales attendant. AR 46-47. 6 If the person in the first hypothetical could stand and walk for four hours, the VE testified that 7 Plaintiff’s past work as general clerk would be available, and the cashier II position would work with 8 an erosion of the numbers. If the person were limited to frequent handling and fingering bilaterally, 9 the VE testified that the person could still do the past work as general clerk. If the person were limited 10 to occasionally being able to handle and finger bilaterally, the VE testified that the person could not 11 perform Plaintiff’s past work. The VE further testified that if the the person would miss six days a 12 year, then the person could perform Plaintiff’s past work, but if there were ongoing unscheduled 13 absences, then the employer would likely provide disciplinary action and possible termination. The 14 VE testified that an employer would tolerate approximately 10 percent off-task work per day and that 15 anything more on a persistent or ongoing basis would likely lead to termination of employment. AR 16 47-50. 17 In response to questions from Plaintiff’s attorney, the VE testified that Plaintiff would be able 18 perform her past work as defined in the Dictionary of Occupational Titles (“DOT”), but not as 19 performed. AR 50-51. The VE also testified that with a limitation to sedentary work, Plaintiff would 20 not be capable of performing her past relevant work. AR 51. 21 The VE confirmed that her testimony was consistent with the DOT. However, she relied on 22 her professional work experience and statistical data in testifying about absences, off-task behaviors, 23 overhead reaching, standing and walking for four hours, and anything else that was not covered in the 24 DOT. AR 51. 25 Medical Record 26 The relevant medical record was reviewed by the Court and will be referenced below as 27 necessary to this Court’s decision. 28 /// 1 The ALJ’s Decision 2 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 3 determined that Plaintiff was not disabled under the Social Security Act. AR 15-25. Specifically, the 4 ALJ found that Plaintiff had not engaged in substantial gainful activity since June 2, 2017, her alleged 5 onset date. AR 17-18. The ALJ identified the following severe impairments: degenerative disc 6 disease of the cervical and lumbar spine with lumbar radiculopathy, shoulder impingement, goiter, 7 hypothyroidism, hypertension, plantar fasciitis, osteoarthritis of the right foot and ankle, peroneal 8 tendinitis of the left leg, and obesity. AR 18-19. The ALJ determined that Plaintiff did not have an 9 impairment or combination of impairments that met or medically equaled any of the listed 10 impairments. AR 19-20. 11 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 12 functional capacity (“RFC”) to perform light work, except that she could occasionally climb ramps 13 and stairs, balance, stoop, kneel, crouch, and crawl, but could not climb ladders, ropes, or scaffolds. 14 She could frequently handle and finger bilaterally, could occasionally reach overhead with the bilateral 15 upper extremities, but could not have concentrated exposure to pulmonary irritants such as fumes, 16 odors, dusts, gases, and poor ventilation. AR 20-24. With this RFC, the ALJ found that Plaintiff was 17 capable of performing past relevant work as a general clerk. AR 24-25. The ALJ therefore concluded 18 that Plaintiff had not been under a disability since June 2, 2017, through the date of the decision. AR 19 25. 20 SCOPE OF REVIEW 21 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 22 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 23 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 24 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 25 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 26 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 27 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 28 considered, weighing both the evidence that supports and the evidence that detracts from the 1 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 2 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 3 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 4 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 5 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 6 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 7 REVIEW 8 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 9 substantial gainful activity due to a medically determinable physical or mental impairment which has 10 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 11 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 12 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 13 her age, education, and work experience, engage in any other kind of substantial gainful work which 14 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 15 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 16 1990). 17 DISCUSSION3 18 Plaintiff asserts that the ALJ erred (1) in concluding that Plaintiff could perform her past 19 relevant work; (2) by failing to properly assess Plaintiff’s symptoms in accordance with Social 20 Security Ruling 16-3p; and (3) by failing to limit Plaintiff’s RFC to less than sedentary based on the 21 reporting of Plaintiff’s treating provider, L. Prophete, NPC. (Doc. 10 at pp. 4-5.) 22 A. Past Relevant Work and Vocational Expert Testimony 23 The ALJ reached an RFC determination that Plaintiff is capable of light work, with additional 24 environmental and functional restrictions, including a limitation to occasional overhead reaching with 25 the upper extremities. AR 20. The VE testified that, with this RFC, Plaintiff was capable of 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 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 performing her past relevant work as a general clerk, DOT Code 209.562-010. At step four of the 2 sequential evaluation, relying on the VE’s testimony, the ALJ determined that Plaintiff was not 3 disabled because she could perform her past relevant work as a general clerk. AR 24-25. Plaintiff 4 argues that the ALJ erred in concluding that Plaintiff could perform her past relevant work because 5 there is a conflict between her RFC and the job requirements of general clerk. 6 At step four of the disability determination, it is the claimant’s burden to demonstrate she 7 cannot perform her past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 8 Although the claimant bears the burden of showing that she cannot perform such work, the ALJ must 9 still make the requisite factual findings to support the step-four conclusion. Id. An ALJ may rely on 10 the testimony of a vocational expert to determine if a claimant can perform her past relevant work. 11 Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). However, if the VE's opinion “conflicts 12 with, or seems to conflict with, the requirements listed in the [DOT], then the ALJ must ask the expert 13 to reconcile the conflict before relying on the expert to decide if the claimant is disabled.” Gutierrez v. 14 Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (citing Social Security Ruling (“SSR”) 00-4P, 2000 WL 15 1898704, at *2 (2000)). For a difference between a VE’s testimony and the DOT “to be fairly 16 characterized as a conflict, it must be obvious or apparent.” Id. at 808. “This means that the 17 testimony must be at odds with the [DOT’s] listing of job requirements that are essential, integral, or 18 expected.” Id. 19 In this case, Plaintiff asserts that the RFC limitation to occasional overhead reaching bilaterally 20 conflicts with the DOT listing for general clerk. (Doc. 10 at pp. 5-8.) She points out that, according to 21 the DOT, the job of Clerk, General requires frequent reaching, and she argues that this requirement is 22 incompatible with the limitation in her RFC to occasional overhead reaching with the bilateral upper 23 extremities. AR 20; see Clerk, General, DICOT 209.562-010, 1991 WL 671792 (1991) (“Reaching: 24 Frequently - Exists from 1/3 to 2/3 of the time.”). 25 In Gutierrez v. Colvin, the Ninth Circuit rejected a similar argument in connection with the 26 occupation of cashier, concluding “the ALJ didn’t err because there was no apparent or obvious 27 conflict between the expert’s testimony that [plaintiff] could perform as a cashier, despite her weight 28 bearing and overhead reaching limitations with her right arm, and the [DOT’s] general statement that 1 cashiering requires frequent reaching.” 844 F.3d at 808. In so concluding, the court explained that 2 “[w]hile ‘reaching’ connotes the ability to extend one’s hands and arms ‘in any direction,’ not every 3 job that involves reaching requires the ability to reach overhead.” Id. (quoting Social Security Ruling 4 85-15, 1985 WL 56857, at *7 (1985)). The Ninth Circuit expressed that the inquiry as to whether 5 there is an apparent and obvious conflict was fact-dependent and found no obvious conflict because of 6 “how uncommon it is for most cashiers to have to reach overhead.” Id. 7 Like the DOT listing for “cashier” discussed in Gutierrez, 844 F.3d at 807, the DOT listing for 8 “Clerk, General” does not specifically indicate that overhead reaching is frequently required. Indeed, 9 the description of a general clerk’s duties in the DOT does not suggest a need to reach overhead at a 10 frequent rate. The DOT description states: 11 Performs any combination of following and similar clerical duties requiring limited knowledge of systems or procedures: Writes, types, or enters information into computer, 12 using keyboard, to prepare correspondence, bills, statements, receipts, checks, or other documents, copying information from one record to another. Proofreads records or forms. 13 Counts, weighs, or measures material. Sorts and files records. Receives money from 14 customers and deposits money in bank. Addresses envelopes or packages by hand or with typewriter or addressograph machine. Stuffs envelopes by hand or with envelope stuffing 15 machine. Answers telephone, conveys messages, and runs errands. Stamps, sorts, and distributes mail. Stamps or numbers forms by hand or machine. Photocopies documents, 16 using photocopier. 17 18 Clerk, General, DICOT 209.562-010, 1991 WL 671792. 19 The DOT description does not include responsibilities that appear to require frequent overhead 20 reaching. Moreover, Plaintiff fails to demonstrate that frequent overhead reaching is an essential, 21 integral, or expected requirement for a general clerk The Court therefore concludes that there is no 22 obvious conflict between the VE’s testimony and the DOT, and the ALJ did not err in relying on the 23 VE’s testimony that Plaintiff could perform her past relevant work.4 See Correia v. Comm’r of Soc. 24 Sec., No. 2:20-cv-01139-JDP (SS) 2023 WL 2058894, at *7 (E.D. Cal. Feb. 16, 2023) (rejecting 25 similar argument by a plaintiff limited to occasionally reaching overhead with her right upper 26 27 4 Based on this determination, it is unnecessary to reach Plaintiff’s argument that if she is unable to perform her past relevant work, then she would qualify for Title II benefits based on Social Security Grid Rule 202.06. 28 (Doc. 10 at pp. 8-9.) 1 extremity where DOT description did not “specifically indicate that overhead reaching [was] 2 frequently required” and “the occupation summary [did] not include responsibilities that appeared to 3 require frequent overhead reaching”). 4 B. Symptom Testimony 5 Plaintiff argues that the ALJ failed to properly assess her symptom testimony. 6 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 7 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson, 359 F.3d at 1196; 8 SSR 16-3p. First, the claimant must produce objective medical evidence of her impairment that could 9 reasonably be expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 10 1014. If the claimant satisfies the first step and there is no evidence of malingering, the ALJ may reject 11 the claimant’s testimony regarding the severity of her symptoms only by offering specific, clear and 12 convincing reasons for doing so. Id. at 1015. 13 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 14 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 15 persistence and limiting effects of those symptoms. AR 21. The ALJ was therefore required to 16 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 17 The Court finds that the ALJ provided specific, clear and convincing reasons to discount 18 Plaintiff’s subjective complaints. First, the ALJ found that Plaintiff’s “alleged inability to lift more 19 than ten pounds[,] walk for more than a mile/fifteen minutes, stand for more than fifteen minutes, or 20 sit for more than forty-five minutes to an hour are not entirely consistent with the record given her 21 generally normal gait, strength, and range of motion despite some observed tenderness to palpation 22 and limited range of motion at some treatment visits.” AR 23. Although lack of supporting medical 23 evidence cannot form the sole basis for discounting testimony, it is a factor that the ALJ can consider. 24 See Burch, 400 F.3d at 681. Here, for example, the ALJ cited objective examination evidence 25 demonstrating normal range of motion (AR 402, 416 [normal range of motion in neck and cervical 26 back], 419, 693, 730-31, 865, 971, 1036-37, 1126, 1156, 1360, 1365), normal gait (AR 410, 428, 439, 27 985, 1020, 1075, 1218), and normal muscle strength (AR 1335, 1338). AR 23. The ALJ reasonably 28 1 determined that this evidence was not consistent with Plaintiff’s asserted lifting, walking, standing, 2 and sitting limitations. 3 Second, the ALJ considered that Plaintiff’s allegedly disabling pain in her upper extremities 4 was being treated conservatively and controlled with gabapentin and tramadol. AR 22. An ALJ is 5 permitted to consider evidence of conservative treatment in evaluating a claimant’s subjective 6 complaints. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (finding evidence of 7 conservative treatment sufficient to discount claimant’s testimony regarding severity of impairment). 8 The ALJ acknowledged Plaintiff’s testimony that she was considered a surgical candidate and she was 9 no longer interested, but she nonetheless was treated conservatively with gabapentin and tramadol. 10 AR 22 (citing AR 372 (gabapentin, tramadol). The ALJ also noted that the record did not indicate use 11 of cervical traction or nerve stimulators. AR 23. 12 Additionally, the ALJ considered that these conservative measures were effective. AR 22. 13 The effectiveness of medication or treatment is a relevant factor in determining the severity of a 14 claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3); Wellington v. Berryhill, 878 15 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical treatment successfully relieving symptoms can 16 undermine a claim of disability.”); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 17 Cir. 2006) (“Impairments that can be effectively controlled with medication are not disabling for the 18 purpose of determining eligibility for SSI benefits.”). 19 Plaintiff primarily challenges the ALJ’s assessment of her subjective complaints on the basis 20 that the ALJ did not explicitly mention every factor set forth in SSR 16-3p in evaluating the intensity, 21 persistence, and limiting effects of Plaintiff’s symptoms. Plaintiff’s argument is not persuasive. The 22 factors in SSR 16-3p are a recitation of the factors set forth in the regulations at 20 C.F.R. §§ 23 404.1529(c)(3) and 416.929(c)(3). SSR 16-3p, 2017 WL 5180304, at *7. The regulations state only 24 that the ALJ will consider these factors and not that the ALJ is required to specifically discuss each of 25 these factors in the opinion. See, e.g., Williams v. Comm’r of Soc. Sec., No. 1:21-CV-01000-SAB, 26 2022 WL 3030270, at *4 (E.D. Cal. Aug. 1, 2022) (disagreeing with plaintiff’s argument that ALJ 27 required to “develop a written record concerning consideration of every factor” set forth in 20 C.F.R. § 28 404.1529(c)(3)); Torres v. Comm’r of Soc. Sec., No. 1:19-CV-00067-SAB, 2020 WL 91996, at *5 1 (E.D. Cal. Jan. 8, 2020) (concluding ALJ not required to specifically discuss each of the factors set 2 forth in 20 C.F.R. § 404.1529(c)). Similarly, SSR 16-3p does not require the ALJ to discuss expressly 3 each of these factors. SSR 16-3p, 2017 WL 5180304, at *8 (The ALJ need only evaluate “the factors 4 that are relevant to assessing the intensity, persistence, and limiting effects of the [claimant’s] 5 symptoms.”). 6 Plaintiff also appears to challenge the ALJ’s findings by citing to MRI and x-ray results 7 identifying diagnoses regarding her left shoulder and cervical spine. (Doc. 10 at pp. 11-12.) 8 However, “[t]he mere existence of an impairment is insufficient proof of a disability.” Matthews v. 9 Shalala, 10 F.3d 678, 680 (9th Cir. 1993). Plaintiff also refers the Court to certain treatment records 10 that purport to interpret Plaintiff’s diagnostics and relate them to her symptoms. (Doc. 10 at pp. 13- 11 14, citing AR 394-95, 1010-12, 416, 822-23, 863, 928, 1359, 436, 475, 479.) The bulk of these cited 12 records relate to Plaintiff’s left shoulder. See AR 394 (“left shoulder with positive impingement 13 signs”), 1011 (same), 416 (“Left shoulder: She exhibits decreased range of motion and tenderness”), 14 822-23 (left shoulder and neck pain), 863 (left shoulder). 1359 (left shoulder pain, opted to wait on 15 surgery that was recommended). However, the ALJ expressly considered Plaintiff’s shoulder 16 impingement, MRI and x-ray diagnostics of her left shoulder, and physical examination findings, but 17 noted that Plaintiff generally had normal range of motion on examination, was no longer interested in 18 surgery, and her pain was treated conservatively and controlled with medication. AR 22. The ALJ 19 also accounted for limitations resulting from Plaintiff shoulder, which included a limitation to 20 occasional overhead reaching with the bilateral upper extremities. AR 20, 22. To the extent Plaintiff 21 suggests an alternative interpretation of the evidence, this is not sufficient to establish reversible error. 22 If the evidence “is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 23 must be upheld.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020), citing Burch v. Barnhart, 400 24 F.3d 676, 679 (9th Cir. 2005). 25 As to the remaining cited records, one set confirms the ALJ’s determination that Plaintiff’s 26 symptoms improved with medication. See AR 928 (“states she has taken tramadol in the past and it 27 has helped”), 1359 (takes tramadol “on an as needed basis for her Left shoulder pain. She has opted to 28 wait on surgery that was recommended by orthopedics.”). The other set are not wholly relevant, as 1 they predate Plaintiff’s alleged onset date and/or relate to intermittent balance issues, which is not one 2 of Plaintiff’s assertedly disabling conditions. See AR 436 (intermittent vertigo), 475 (2016 - balance 3 disorder), 479 (2016-“vertigo and ataxia, most likely related to vestibular neuronitis”). 4 C. Evaluation of Medical Opinion – Nurse Practitioner Prophete 5 As a final matter, Plaintiff argues that the ALJ improperly evaluated the June 29, 2020 opinion 6 of L. Prophete, NPC, her treating provider. (Doc. 10 at p. 16.) 7 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 8 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. §§ 9 404.1520c and 416.920c. Under the new regulations, the Commissioner does “not defer or give any 10 specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior 11 administrative medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. §§ 12 404.1520c(a) and 416.920c(a). The Commissioner evaluates the persuasiveness of the medical 13 opinions based on the following factors: (1) supportability; (2) consistency; (3) relationship with the 14 claimant; (4) specialization; and (5) other factors, such as “evidence showing a medical source has 15 familiarity with the other evidence in the claim or an understanding of our disability program’s 16 policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c)(1)-(5) and 416.920c(c)(1)-(5). 17 Supportability and consistency are the most important factors. 20 C.F.R. §§ 404.1520c(b)(2) and 18 416.920c(b)(2). Supportability means the extent to which a medical source supports the medical 19 opinion by explaining the “relevant ... objective medical evidence.” 20 C.F.R. §§ 404.1520c(c)(1) and 20 416.920c(c)(1); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Consistency means the 21 extent to which a medical opinion is “consistent ... with the evidence from other medical sources and 22 nonmedical sources in the claim.” 20 C.F.R. §§ 404.1520c(c)(2) and 416.920c(c)(2); Woods, 32 F.4th 23 at 792. 24 Ninth Circuit case law preceding the new regulations afforded deference to the medical 25 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 26 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 27 the medical opinions of treating or examining physicians. These standards of articulation no longer 28 apply in light of the new regulations, and the ALJ is not required to provide “specific and legitimate 1 reasons” to discount the medical opinions. See Woods, 32 F.4th at 792 (finding revised social security 2 regulations “clearly irreconcilable with our caselaw according special deference to the opinions of 3 treating and examining physicians on account of their relationship with the claimant”). The Ninth 4 Circuit has clarified that “under the new regulations, an ALJ cannot reject an examining or treating 5 doctor’s opinion as unsupported or inconsistent without providing an explanation supported by 6 substantial evidence.” Id. “The agency must ‘articulate ... how persuasive’ it finds ‘all of the medical 7 opinions’ from each doctor or other source, . . . and ‘explain how [it] considered the supportability and 8 consistency factors’ in reaching these findings.” Id. (internal citations omitted). 9 Relevant here, NPC Prophete completed a Physical Residual Functional Capacity 10 Questionnaire on June 29, 2020. AR 1048-51. She opined that Plaintiff could walk about 2-3 city 11 blocks, sit for 30 minutes at one time, and stand for 30 minutes at one time. In an 8-hour workday, she 12 could sit less than 2 hours and stand/walk less than 2 hours. She also would require periods of 13 walking, every 30 minutes for 10 minutes each time, and would need unscheduled breaks every 30-45 14 minutes for 10-15 minutes. AR 1049-50. NPC Prophete further opined that Plaintiff could rarely lift 15 less than 10 pounds, could rarely look down, look up, or hold her head in a static position, and could 16 occasionally turn her head right or left. AR 1050. She could rarely twist, stoop, crouch/squat, or 17 climb stairs, and could never climb ladders. She could grasp, turn, and twist objects with her hands 18 about 5-10% in an 8-hour day, could use her fingers for fine manipulations for 5-10% of an 8-hour 19 workday, and could reach with her arms 2-5% in an 8-hour workday. AR 1050-51. NPC Prophete 20 estimated that Plaintiff would be absent from work more than four days per month. AR 1051. The 21 ALJ found this opinion “unpersuasive.” AR 23. 22 In asserting that the ALJ erred, Plaintiff argues that the ALJ failed “to properly address the 23 treating physician’s report.” (Doc. 10 at p. 19.) To the extent this argument suggests that the ALJ was 24 required to afford deference to NPC Prophete’s opinion as a treating source, this suggestion lacks 25 merit. Under the applicable regulations, the Commissioner does not defer or give any specific 26 evidentiary weight to any medical opinion, including those from a claimant’s medical sources. 20 27 C.F.R. §§ 404.1520c(a) and 416.920c(a). Rather, the ALJ must evaluate the persuasiveness of the 28 medical opinion. 1 In evaluating the persuasiveness of NPC Prophete’s opinion, the ALJ reasoned as follows: 2 This opinion was submitted on an attorney-provided checkbox form and not supported by rationale or accompanying treatment notes, grossly overstates the extent of the claimant’s 3 limitation, and is generally inconsistent with the evidence as whole showing the claimant to be less limited given her generally normal gait, strength, and range of motion despite 4 some observed tenderness to palpation and limited range of motion at some treatment 5 visits. (Ex. 17E/2, 2F/5, 3F/6, 14, 20, 23, 32, 43, 4F/134, 171, 210, 306, 5F/12, 26, 6F/6, 9, 7F/8, 8F/9, 10F/24, 78, 105, 11F/50, 12F/1, 4-5, 13F/2, 7). The undersigned finds this 6 opinion unpersuasive. 7 AR 23. 8 Having considered this reasoning, the Court finds that the ALJ properly evaluated the 9 persuasiveness of NPC Prophete’s opinion. First, the ALJ determined that the opinion was in 10 checkbox form, not supported by any rationale or accompanying treatment notes, and grossly 11 overstated the extent of Plaintiff’s limitations. AR 23. This reasoning invokes the supportability 12 factor, which means the extent to which a medical source supports the medical opinion by explaining 13 the “relevant ... objective medical evidence.” 20 C.F.R. §§ 404.1520c(c)(1) and 416.920c(c)(1); 14 Woods, 32 F.4th at 791-92. As noted by the ALJ, the opinion was rendered on a “check-the-box” 15 form and provides no explanation for the opined limitations. The opinion also cites no diagnoses, 16 clinical findings, or objective findings. Indeed, those sections of the questionnaire are blank. AR 17 1048-51 18 To demonstrate support for this medical opinion, Plaintiff refers to NPC Prophete’s treatment 19 records. (Doc. 10 at p. 19.) This is not sufficient to establish error as Plaintiff offers no explanation 20 as to how those records support NPC Prophete’s extreme limitations, including that Plaintiff could 21 rarely lift less than 10 pounds, could rarely look down, look up, or hold her head in a static position, 22 could walk on 2-3 blocks, could sit for less than 2 hours, and could stand/walk for less than two hours 23 out of an 8-hour workday. 24 Second, the ALJ determined that the opinion was generally inconsistent with the evidence as a 25 whole showing the claimant to be less limited given her generally normal gait, strength, and range of 26 motion despite some observed tenderness to palpation and limited range of motion at some treatment 27 visits. AR 23. This reasoning expressly invokes the consistency factor, which “means the extent to 28 1 which a medical opinion is ‘consistent ... with the evidence from other medical sources and 2 nonmedical sources in the claim.’ Id. § 404.1520c(c)(2).” Woods, 32 F.4th at 792; see also 20 C.F.R. 3 § 416.920c(c)(2). The ALJ supported this determination with citation to objective examination 4 evidence demonstrating normal range of motion (AR 402, 416 [normal range of motion in neck and 5 cervical back], 419, 693, 730-31, 865, 971, 1036-37, 1129, 1156, 1360, 1365), normal gait (AR 410, 6 428, 439, 985, 1020, 1075, 1218), and normal muscle strength (AR 1335, 1338). AR 23. 7 Plaintiff claims that NPC Prophete’s opinion is corroborated by the treatment record, citing 8 only to a single record from Dr. Kerisimasi Reynolds. (See Doc. 10 at p. 18, AR 394-95.) This does 9 not amount to corroboration with the treatment record as a whole. Moreover, on physical 10 examination, Dr. Reynolds noted that while Plaintiff’s left shoulder showed positive impingement 11 signs, she had “[r]otator cuff strength full range of motion with pain” and she was “[m]oving all 12 limbs well.” AR 394. These examination findings do not undermine the ALJ’s determination. 13 CONCLUSION AND ORDER 14 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 15 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 16 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security, 17 GRANTS Defendant’s cross-motion for summary judgment, and AFFIRMS the agency’s 18 determination to deny benefits. The Clerk of this Court is DIRECTED to enter judgment in favor of 19 Defendant Commissioner of Social Security and against Plaintiff Irish Mathis White. 20 IT IS SO ORDERED. 21 Dated: June 12, 2023 /s/ Barbara A. McAuliffe _ 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28