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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNEDY XIONG, Case No. 1:21-cv-01782-EPG 12 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 13 v. SECURITY COMPLAINT 14 COMMISSIONER OF SOCIAL (ECF Nos. 1, 14). 15 SECURITY, 16 Defendants. 17 18 This matter is before the Court on Plaintiff’s complaint for judicial review of an 19 unfavorable decision by the Commissioner of the Social Security Administration regarding his 20 application for disability and supplemental security income benefits. The parties have consented 21 to entry of final judgment by the United States Magistrate Judge under the provisions of 28 22 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 9). 23 Plaintiff argues as follows: 24 Logical errors in the ALJ’s assessed RFC compel remand where the ALJ failed to support both the physical and mental RFC, ignored substantial evidence, and 25 improperly dismissed treating source statements. 26 (ECF No. 14, p. 1). 27 Having reviewed the record, administrative transcript, the briefs of the parties, and the 28 1 applicable law, the Court finds as follows: 2 I. ANALYSIS 3 A. Medical Opinions 4 Plaintiff challenges the ALJ’s evaluation of several medical source opinions.1 Plaintiff generally argues that the ALJ improperly discounted the opinion of some medical sources in 5 favor of other medical source without articulating why or why not the relevant opinions were 6 persuasive. As a result, Plaintiff contends that the resulting RFC fails to address Plaintiff’s 7 alleged mental and physical limitations. 8 Because Plaintiff applied for benefits in March 2019 (A.R. 15), certain regulations 9 concerning how ALJs must evaluate medical opinions and prior administrative findings for 10 claims filed on or after March 27, 2017, govern this case. 20 C.F.R. §§ 404.1520c, 416.920c. 11 These regulations set “supportability” and “consistency” as “the most important factors” when 12 determining an opinion’s persuasiveness. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). And 13 although the regulations eliminate the “physician hierarchy,” deference to specific medical 14 opinions, and assignment of “weight” to a medical opinion, the ALJ must still “articulate how [he 15 or she] considered the medical opinions” and “how persuasive [he or she] find[s] all of the 16 medical opinions.” 20 C.F.R. §§ 404.1520c(a)-(b); 416.920c(a)-(b). 17 Under the new regulations, “the decision to discredit any medical opinion, must simply be 18 supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). 19 “Substantial evidence means more than a scintilla but less than a preponderance.” Thomas v. 20 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which, considering the 21 record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. 22 23 1 Plaintiff also argues that the RFC assessment formulated by the ALJ, specifically with respect to Plaintiff’s manipulation and right upper extremity limitations, was not supported by substantial evidence. 24 (See ECF No. 14, p. 15). This brief argument primarily contends that the ALJ erred by failing to reconcile the opinions of Dr. Benck and Dr. Gurshani, which the ALJ found to be not persuasive, with the opinion of 25 Dr. Sachdeva, which the ALJ found to be “generally but not fully persuasive.” (Id.) While Plaintiff’s brief extensively challenges the ALJ’s findings regarding Dr. Benck and Dr. Gurshani, (see id. at pp. 13-14), 26 Plaintiff does not otherwise argue that the ALJ erred in evaluating Dr. Sachdeva’s opinion. Thus, the Court will not address the ALJ’s finding regarding the opinion of Dr. Sachdeva. To the extent that Plaintiff 27 challenges the RFC assessment on other grounds, the Court will address those arguments in the sections below. 28 1 In conjunction with this requirement, “[t]he agency must ‘articulate . . . how persuasive’ 2 it finds ‘all of the medical opinions’ from each doctor or other source. . .and ‘explain how [it] 3 considered the supportability and consistency factors’ in reaching these findings.” Woods, 32 4 F.4th at 792 (internal citations omitted). As provided by the regulations, Supportability means the extent to which a medical source supports the medical 5 opinion by explaining the “relevant . . . objective medical evidence. Consistency 6 means the extent to which a medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical sources in the claim. 7 Id. at 791-92 (internal citations omitted). 8 Keeping these standards in mind, the Court now considers whether the ALJ provided 9 legally sufficient reasons to either discount or credit the medical opinions of Dr. Michiel, Dr. 10 Swanson, Dr. Gurshani, and Dr. Benck. 11 1. Dr. Michiel 12 Plaintiff argues that the ALJ “failed to articulate whether she was persuaded by the 13 findings of examining physician, Dr. Michiel.” (ECF No. 14, p. 11). Plaintiff additionally argues 14 that the ALJ had a duty to arrange for further neurological evaluation of the Plaintiff after Dr. 15 Michiel indicated that a neurologist could provide further insight. The Commissioner, in contrast, 16 argues that an ALJ is only required to articulate the persuasiveness of “medical opinions,” and 17 under the applicable regulations, the findings of Dr. Michiel cannot be considered a medical opinion. The Commissioner also contends that an ALJ is not required “to follow a consultative 18 examiner’s assertion that further development could be addressed by specialist.” (ECF No. 17, p. 19 7). 20 Dr. Michiel, a board-certified psychiatrist, performed a consultative psychiatric evaluation 21 of Plaintiff on June 22, 2010. (A.R. 1218). As for any medical findings or diagnoses observed 22 during the examination, Dr. Michiel wrote: 23 Every question I asked he would answer by saying, “I don’t remember” and it was 24 very hard for me to know if he is exaggerating his symptoms as amnesia or if it is true that he has massive brain damage that would cause such as a severe amnesia. I 25 don’t have any diagnoses based upon these facts and I believe if the condition is amnesia, I will leave that for the neurologist specialist to comment on in that 26 regard. 27 (A.R. 1219). 28 If the information I received from the claimant is reliable the diagnoses will be 1 neurocognitive disorder due to vascular disease; however, it will remain difficult for me to assess whether the vascular disease affected the areas in the brain that 2 control the memory like the hippocampus, the limbic system, the mammillary bodies; all of these questions would be answered by a neurologist who can 3 comment on the magnitude and severity of the amnesia in such a way that the 4 claimant presented today. 5 (A.R. 1220). The ALJ summarized Dr. Michiel’s opinion as follows: 6 At the June 2019 mental consultative examination with Ekram Michiel, M.D., the 7 claimant again appeared to provide little effort. (See Ex. 7F.) Dr. Michiel writes 8 that the claimant responded to nearly every question with “I don’t remember.” (See id.) This was the response to biographical questions, such as where the 9 claimant was born or how many children he has; it was also the response to whether he drank alcohol or smoked cigarettes, whether he knew the day, month, 10 season, or year, or whether he knew what he ate for his most recent meal. (See id.) Dr. Michiel writes that it “was very hard for me to know if he is exaggerating his 11 symptoms as amnesia or if it is true that he has massive brain damage that would 12 cause such [ ] severe amnesia.” (See id.) The claimant’s responses to Dr. Michiel are inconsistent with treatment notes throughout the longitudinal record and 13 suggest the claimant either put forth poor effort at the examination or exaggerated his symptoms. 14 (A.R. 22). 15 The Court finds that Dr. Michiel’s evaluation does not present any statements “that reflect 16 judgments about the nature and severity of [Plaintiff’s] impairment(s), including [Plaintiff’s] 17 symptoms, diagnosis and prognosis, what [Plaintiff] can still do despite impairment(s), and 18 [Plaintiff’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1) (definition of medical 19 opinion for claims filed on or after March 27, 2017). Here, Dr. Michiel’s consultative 20 examination explicitly does not offer a diagnosis or judgment regarding the nature and severity of 21 Plaintiff’s impairments because Dr. Michiel was unable to form an opinion based on Plaintiff’s 22 responses. Thus, the ALJ was not required to evaluate the persuasiveness of Dr. Michiel’s 23 consultative examination. 24 Further, the Court finds that the ALJ did not err by failing to arrange a neurological 25 examination. An ALJ has a duty to “fully and fairly develop the record and to assure the 26 claimant’s interests are considered” when the record presents ambiguous evidence or if the ALJ finds the record is “inadequate to allow for the proper evaluation of the evidence.” Tonapetyan v. 27 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Here, the ALJ made no such finding regarding the 28 1 inadequacy of the record. Moreover, the evidence on record regarding Plaintiff’s alleged 2 cognitive deficits is not ambiguous. The ALJ extensively discussed treatment notes where 3 Plaintiff displayed normal cognitive and neurological abilities. (A.R. 23 (citing A.R. 377 [October 4 2018 emergency room examination notes state that Plaintiff displays “appropriate” judgment and insight and “normal sensory, motor, normal speech” neurological functioning]; A.R. 380 5 [September 20, 2018 neurology examination notes that Plaintiff is “awake and alert, oriented to 6 person/place/time, able to convey history”]; A.R. 367 [December 18, 2018 treatment notes from 7 Plaintiff’s family medicine nurse practitioner state that Plaintiff is “alert and oriented to time, 8 place, and person”]; A.R. 363 [February 19, 2019 treatment records from Plaintiff’s family 9 medicine nurse practitioner noting same]; A.R. 1224 [June 26, 2019 treatment records from 10 Plaintiff’s nephrologist state that Plaintiff is “awake and alert, cooperative, [with] no distress”]; 11 A.R. 1337 [February 16, 2021 treatment records from Plaintiff’s family medicine nurse 12 practitioner state “Patient appears well, in no acute distress. Well-groomed, dresses appropriately, 13 speaking in complete sentences. Patient exhibits depressed mood with decreased psychomotor 14 activities, fair eye contact.”])). Further, the ALJ also discussed other contemporaneous 15 consultative examinations where Plaintiff put forth poor effort or otherwise appeared to 16 exaggerate the degree of his neurological symptoms. (A.R. 22 (citing A.R. 1197-1201 [June 2019 17 physical examination with Dr. Sachdeva]; A.R. 1288-1292 [October 2019 mental examination 18 with Dr. Swanson])). Taken together, this evidence indicates that Plaintiff’s failure to respond 19 substantively to any question at all was not due to amnesia that require a neurological 20 examination. Accordingly, the ALJ was not required to further develop the record as to Plaintiff’s 21 neurological functioning. 22 2. Dr. Swanson 23 Plaintiff also argues that the ALJ erred by finding the opinion of mental consultative examiner, Steven Swanson, Ph.D., to be persuasive. According to Plaintiff, Dr. Swanson’s 24 opinion was not supported by examination findings. Further, Plaintiff contends that Dr. Swanson 25 was not qualified to assess Plaintiff’s neurological functioning. 26 Dr. Swanson, a clinical psychologist, performed a mental consultative exam of Plaintiff on 27 October 3, 2019. (A.R. 1288). Dr. Swanson administered the Leiter International Performance 28 1 Scale-Revised test, which Dr. Swanson explained in his examination notes is “a non-verbal test of 2 intelligence appropriate for use with individuals ages 2 through adult” that “require[s] neither 3 speech nor the ability to understand speech” and “may be used with those having hearing 4 impairments, severe expressive and/or receptive language disabilities, cerebral palsy, developmental disability, cultural disadvantage, or unfamiliarity with English.” (A.R. 1290). Dr. 5 Swanson opined that Plaintiff’s test score, which indicated an I.Q. of 40, was “invalid” because 6 Plaintiff “appeared motivated to perform poorly; even giving incorrect responses to very simple, 7 sample items.” (A.R. 1290-91). Further, Dr. Swanson opined that “[w]hile the corresponding 8 classification is the Moderate to Severe Mental Retardation, he is seen as functioning at a 9 considerably higher level” and “[t]here is no genuine reason to suspect that [Plaintiff’s] mental or 10 emotional functioning falls sincerely outside normal limits despite effort to present otherwise.” 11 (A.R. 1291). Dr. Swanson ultimately opined that Plaintiff was not disabled and was otherwise 12 capable of performing work without any mental functioning restrictions. 13 The ALJ’s decision includes a thorough summary of Dr. Swanson’s examination. (See 14 A.R. 22). The ALJ further evaluated the persuasiveness of Dr. Swanson’s opinion as follows: 15 The opinion of Dr. Swanson is persuasive. Dr. Swanson opines the claimant is able to maintain concentration and relate appropriately to others in a job setting; would 16 be able to handle funds in his own best interest; can understand, carry out, and 17 remember simple instructions; would respond appropriately to usual work situations; and would not have substantial difficulties responding to changes in 18 routine. (See Ex. 11F.) Dr. Swanson supports his opinion with examination of the claimant. As discussed above, Dr. Swanson discounts much of the claimant’s 19 alleged limitations, writing that the claimant was motivated to perform poorly and that there is “no genuine reason to suspect that [the claimant’s] mental or 20 emotional functioning falls sincerely outside normal limits despite effort to present 21 otherwise.” (See id.) The claimant demonstrated a normal amount of motor movement on exam, as well as unremarkable speech, a constricted range of affect, 22 normal thought content, normal thought processes, and no indication of psychosis. (See id.) Dr. Swanson’s opinion is generally consistent with the longitudinal 23 record. As discussed above, mental status exam findings frequently document that 24 the claimant presented to examiners appropriately dressed and groomed, with fair eye contact, a cooperative demeanor, and the ability to communicate effectively. 25 Additionally, examiners frequently report the claimant presented as alert, aware, oriented, without confusion, with grossly intact memory, and an adequate fund of 26 knowledge. (See, e.g., Ex. 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 7, 12, 17, Ex. 17F/10, 12.) For the foregoing reasons, Dr. Swanson’s opinion is 27 persuasive. 28 1 (A.R. 26-27). Elsewhere in the decision, the ALJ also noted that: 2 Contemporaneous treatment notes from the claimant’s treating provider are in stark contrast to the claimant’s purported limitations reflected in the consultative 3 examination notes. For example, treatment notes from a June 26, 2019 visit with his nephrologist document that the claimant presented as awake, alert, cooperative, 4 and without deficits of note. (See Ex. 8F/2-3.) Exam notes do not indicate the level of mental deficits suggested by his responses to Drs. Michiel and Swanson. 5 (A.R. 23). 6 The ALJ did not err in considering Dr. Swanson’s opinion to be persuasive. The ALJ 7 articulated how she considered the supportability and consistency factors’ in reaching this 8 finding. In particular, the ALJ explained that Dr. Swanson’s mental status examination of 9 Plaintiff did not support the degree of cognitive deficits alleged by Plaintiff. The ALJ also 10 explained how Dr. Swanson’s opinion was consistent with other examination findings, which 11 generally reported that Plaintiff demonstrated normal cognitive abilities. For example, the ALJ 12 cited to notes from a December 2018 family health visit that state Plaintiff did not offer any 13 concerns and appeared “alert and oriented to time, place, and person.” (A.R. 27 (citing A.R. 366- 14 7)). The ALJ also cited to a February 2019 family health visit where Plaintiff reported “[n]o other 15 concerns” and that he was “no longer doing PT or OT just exercising at home,” and appeared 16 “alert and oriented to time, place, and person.” (A.R. 27 (citing to A.R. 363-4)). The visit note 17 also states Plaintiff’s status as “improving and stable.” (A.R. 364). Further, the ALJ specifically 18 pointed to contemporaneous examination notes that were consistent with Dr. Swanson’s opinion 19 that Plaintiff’s mental functioning was within normal limits. (A.R. 27 (citing to A.R. 1224 [June 20 2019 nephrology clinic visit notes indicating that Plaintiff appeared “[a]wake and alert, 21 cooperative, no distress.”])). Moreover, Plaintiff’s contention that Dr. Swanson was unqualified to provide an opinion 22 as to Plaintiff’s neurological functioning is unavailing. The Commissioner is correct that an ALJ 23 is no longer required to make specific findings regarding the specialization of a medical sources 24 unless the ALJ finds that there are differing opinions about the same issue that are equally 25 supported and equally consistent with the record. 20 C.F.R. § 404.1520c(b)(2)– (3) (“We may, 26 but are not required to, explain how we considered [relationship with claimant, specialization, and 27 other factors], as appropriate, when we articulate how we consider medical opinions…[.]”). 28 1 Plaintiff argues that other medical opinions, specifically those of Dr. Gurshani and Dr. Benck, 2 were in direct conflict with Dr. Swanson’s medical opinion. However, the ALJ did not make a 3 finding that those opinions were as equally supported and consistent with the record as Dr. 4 Swanson’s opinion. Accordingly, the ALJ was not required to consider Dr. Swanson’s specialization as a psychologist when evaluating the persuasiveness of Dr. Swanson’s opinion. 5 Moreover, licensed psychologists are qualified to assess a Social Security claimant’s 6 mental residual functional capacity. Here, Dr. Swanson assessed Plaintiff’s ability to understand, 7 remember, and maintain concentration. And while Plaintiff argues that the ALJ should have 8 discounted Dr. Swanson’s opinion because he failed to provide any raw data to support the 9 invalid test performance result, Plaintiff does not explain how that raw data would contradict Dr. 10 Swanson’s observation that Plaintiff demonstrated a normal amount of motor movement, 11 unremarkable speech, and poor motivation. Accordingly, the ALJ’s evaluation of Dr. Swanson’s 12 medical opinion is legally sufficient. 13 3. Dr. Gursahani 14 Plaintiff also argues that the ALJ’s decision to discount the opinion of Pushpa Gursahani, 15 M.D., was not supported by substantial evidence. 16 The ALJ extensively discussed the medical opinions provided by Dr. Gursahani, finding 17 as follows: 18 The December 2019 and February 2021 opinions of Pushpa Gursahani, M.D., are not persuasive. In December 2019, Dr. Gursahani opined the claimant had the 19 following limitations: 20 Exertional Limitations 21 Lifting and/or carrying Up to 10 pounds, rarely Less than 2 hours in an 8- Standing/walk 22 hour workday, up to 20 minutes at a time 23 About 4 hours in an 8- Sitting hour workday, up to 20 24 minutes at a time 25 Postural Limitations 26 Twist Never 27 Bend Never Squat Never 28 1 Climb Stairs Never 2 Climb ladders Never 3 Manipulative Limitations 4 Never with the right upper Reaching any directions extremity; limited to 25% 5 (including overhead) of the workday with the 6 left upper extremity Never with the right hand; Handling (gross 7 limited to 25% of the manipulation) workday with the left 8 hand 9 Fingering (fine Never with the right hand; limited to 25% of the manipulation) 10 workday with the left hand 11 Environmental 12 Limitations 13 Extreme Cold Avoid Extreme Heat Avoid 14 Wetness Avoid 15 Humidity Avoid 16 Noise Avoid 17 Fumes, odors, dusts, gases, poor ventilations, Avoid 18 etc. 19 (EX. 12F.) Dr. Gursahani further opined the claimant requires the ability to shift position at will; must walk for 10 minutes at a time every 30 minutes; needs to 20 elevate his legs to 45 degrees for half of the workday; requires a cane or other hand-held assistive devices for standing and ambulating; would be off task 25% of 21 the day or more; is incapable of even “low stress” work; would miss more than 4 22 days a month due to his impairments; and would require multiple unscheduled breaks throughout the day, each lasting 20 to 30 minutes. (See id.) Dr. Gursahani’s 23 February 2021 opinion is substantially similar to his earlier opinion; however, he now opines the claimant can sit for up to 2 hours at a time, needs to walk for 5 to 24 15 minutes every 90 minutes, and requires unscheduled breaks of 5 to 15 minutes 25 every 30 to 90 minutes. (See Ex. 14F.) Although Dr. Gursahani supports his opinions with brief discussion of his treatment of the claimant since November 26 2019, Dr. Gursahani’s opinions are not consistent with the longitudinal record. As discussed above, exam findings regularly document lingering weakness of the 27 right upper and lower extremities. (See, e.g., Ex. 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 12, Ex. 17F/10, 12.) Exam findings also reflect the claimant is 28 1 able to ambulate without an assistive device, albeit with a slow and cautious gait. (See, e.g., Ex. 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 12, Ex. 17F/10, 2 12.) Exam findings do not support the degree of limitation reflected in Dr. Gurashani’s opinions. There is no indication in the record the claimant should 3 elevate his legs for any period during the day, let alone 50% of the working day. 4 (See, e.g., Ex. 4F/4-5, 5F/24-26, 77-78. Ex. 14F/6, Ex. 10F/17-19, 30-32, Ex. 22F/2, Ex. 27F/.4) For the foregoing reasons, Dr. Gurashani’s opinions are not 5 persuasive. 6 Dr. Gursahani also submitted opinions addressing the claimant’s mental limitations. (See Ex. 13F, Ex. 15F.) In December 2019, Dr. Gursahani opined that 7 the claimant’s had “Category III” to “Category IV” deficits in each of the mental functioning areas domains of understanding and memory, sustained concentration 8 and memory, social interaction, and adaption. (See Ex. 13F.) In his February 2021 opinion, Dr. Gursahani opines that the claimant has Category IV limitations in 9 each of the four areas of mental functioning. (See Ex. 15F.) Dr. Gursahani defines 10 Category III and Category IV deficits as those that would preclude performance for 10% and 15%, respectively, of an 8-hour workday. (See id., Ex. 13F.) He 11 further opines the claimant would miss five days or more each month due to his impairments. (See Ex. 13F, Ex. 15F.) Again, although Dr. Gursahani supports his 12 opinions with brief discussion of his treatment of the claimant since November 13 2019, his opinions are inconsistent with the longitudinal record. As discussed above, mental status exam findings frequently document that the claimant 14 presented to examiners appropriately dressed and groomed, with fair eye contact, a cooperative demeanor, and the ability to communicate effectively. Additionally, 15 examiners frequently report the claimant presented as alert, aware, oriented, without confusion, with grossly intact memory, and an adequate fund of 16 knowledge. (See, e.g., Ex. 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 7, 17 12, 17, Ex. 17F/10, 12.) For the foregoing reasons, Dr. Gursahani’s opinions are not persuasive. 18 (A.R. 25-26). 19 The ALJ provided legally sufficient reasons to discount Dr. Gursahani’s opinions 20 regarding Plaintiff’s cognitive limitations. Plaintiff generally challenges the ALJ’s assessment of 21 Dr. Gursahani’s opinion on the ground that the records cited by the ALJ do not address Plaintiff’s 22 memory or ability to concentrate.2 However, the ALJ’s decision cites to progress notes from 23 Plaintiff’s September 2018 visit to a neurology clinic where neurologist, Jose-Rafael Zuzuarregui, 24 M.D., noted that Plaintiff was “awake and alert, oriented to person/place/time, able to convey 25 2 Plaintiff also argues that the ALJ failed to discuss the discharge notes from Plaintiff’s post-stroke 26 rehabilitation providers, which indicated remaining deficits in concentration and memory, when evaluating the opinions of Dr. Gursahani and Dr. Benck. (See ECF No. 14, p. 14 (citing A.R. 416)). However, the 27 ALJ did, in fact, reference Plaintiff’s discharge notes from speech therapy (see A.R. 21 (citing A.R. 416 [July 2018 speech therapy discharge notes])). 28 1 history.” (A.R. 26 (citing to A.R. 380)). The decision also cites to examination findings from 2 Plaintiff’s August 2018 hospital stay following a seizure that state Plaintiff was “alert, conversant, 3 answering appropriately, not in apparent distress” and noted Plaintiff’s neurological abilities as 4 “[a]lert, oriented x 3, right upper extremity= right lower extremity= 4/5. Left upper extremity= left lower extremity= 5/5.” (A.R. 26 (citing to A.R. 37)). Other examination findings cited by the 5 ALJ also discuss Plaintiff’s memory and do not otherwise indicate an inability to concentrate. 6 (A.R. 26 (citing to A.R. 1228 [November 2018 neurological findings: “No confusion was 7 observed. No delirium was noted. No disorientation to person. No disorientation to time. Remote 8 memory was not impaired. Recent memory was not impaired. An adequate fund of knowledge 9 was demonstrated.”]; A.R. 1233 [same in July 2018]; A.R. 1239 [same in May 2018])). 10 Plaintiff also argues the ALJ should have given more weight to Dr. Gursahani’s opinion 11 that Plaintiff be totally limited in the use of his right upper extremity for reaching, handling, and 12 fingering. The Court finds that the ALJ provided legally sufficient reasons to partially discount 13 Dr. Gursahani’s opinion regarding Plaintiff’s physical limitations. For example, the ALJ found 14 that a total limitation in use was not consistent with the record, which generally “document[ed] 15 lingering weakness of the right upper and lower extremities.” (A.R. 26 (citing A.R. 377 [October 16 2018 emergency room records noting Plaintiff’s “weakness of right hand” but “normal sensory, 17 motor, normal speech” neurological findings]; A.R. 380 [September 2018 neurology clinic visit 18 physical examination records noting Plaintiff’s right upper extremity demonstrated “5/5/ deltoid, 19 biceps, 4+/5 triceps”]; AR 1200 [June 2019 consultative exam neurological findings that Plaintiff 20 has “decreased sensation on right upper and lower extremity. Muscle strength 4/5 of right upper 21 and lower extremity.”])). Moreover, the ALJ noted that Dr. Gursahani’s opinion of Plaintiff’s 22 physical limitations, which were provided in checklist form, were not supported by examination 23 findings. (A.R. 26). The Ninth Circuit has concluded that an ALJ may discount such unsupported opinions. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 n.3 (9th Cir. 2004) 24 (finding that a checklist report was brief, conclusionary and did not provide support for 25 limitations assessed in the absence of objective medical evidence in the physician’s treatment 26 notes). 27 Accordingly, the ALJ provided legally sufficient reasons when evaluating the opinion of 28 1 Dr. Gursahani. 2 4. Dr. Benck 3 Plaintiff also argues the ALJ’s decision to discount the opinion of Marilyn Benck, M.D., 4 was not supported by substantial evidence. The ALJ discussed the medical opinion provided by Dr. Benck, finding as follows: 5 The opinion of Marilyn Benck, M.D., is not persuasive. Dr. Benck writes the 6 claimant is unable to follow simple instructions because he is easily confused and 7 has memory deficits. (See Ex. 10F/3.) Although Dr. Benck supports her findings with discussion of her treatment and examination of the claimant, her opinion is 8 not consistent with the longitudinal record. As discussed above, the claimant frequently presented to examiners as alert, aware, oriented, without confusion, and 9 without significant and consistent memory deficits. (See, e.g., Ex. 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 7, 12, 17, Ex. 17F/10, 12.) For the foregoing 10 reasons, Dr. Benck’s opinion is not persuasive. 11 (A.R. 24). 12 The ALJ provided legally sufficient reasons to discount Dr. Benck’s opinion regarding 13 Plaintiff’s cognitive limitations—opining that Plaintiff is unable to follow simple instructions 14 because he is easily confused and has memory deficits. Although the ALJ found Dr. Benck’s 15 opinion to be supported by Dr. Benck’s own discussion of her treatment of Plaintiff, the ALJ 16 cited to multiple examination and treatment notes from the record that generally contradicted Dr. 17 Benck’s opinion that Plaintiff suffered from severe cognitive deficits, including treatment notes 18 drafted by NP Berube under the supervision of Dr. Benck, which noted that Plaintiff appeared to be “alert and oriented to time, place, and person.” (A.R. 24 (citing to A.R. 366-7 [December 2018 19 visit]; A.R. 363-4 [February 2019 visit])). 20 Plaintiff also argues that the ALJ erred by failing to discuss Dr. Benck’s assessment of 21 Plaintiff’s physical limitations. According to Plaintiff, the ALJ did not provide any reason for 22 “apparently reject[ing] the opinion of Dr. Benck that Plaintiff had severe right-hand weakness and 23 loss of sensation.” (ECF No. 14, p. 15 (citing A.R. 1284)). Dr. Benck filled out a general medical 24 evaluation form in June 2019, assessing Plaintiff’s musculoskeletal system as follows: “12. Please 25 provide range of motion (ROM) and describe affected joint(s) and/or spine: Right sided 26 weakness. Severe (R) hand weakness.” (A.R. 1283- 1284). Dr. Benck also noted that Plaintiff 27 experiences decreased sensory functioning on his right side. (A.R. 1284). The Court agrees with 28 1 the Commissioner that Dr. Benck’s evaluation is not an opinion within the meaning of the 2 regulations, see 20 C.F.R. § 404.1527(a)(1). Although Dr. Benck assessed Plaintiff’s right-hand 3 weakness as “severe,” Dr. Benck’s evaluation does not present any statements “that reflect 4 judgments about. . .what [Plaintiff] can still do despite impairment(s), and [Plaintiff’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1) (definition of medical opinion for claims filed on 5 or after March 27, 2017). Additionally, Dr. Benck’s assessment of Plaintiff’s right-side sensory 6 functioning is unqualified. Thus, the ALJ was not required to evaluate the persuasiveness of Dr. 7 Benck’s assessment that Plaintiff experiences severe right-hand weakness and loss of sensation. 8 Moreover, the Court notes that the ALJ’s RFC assessment accounts for Plaintiff’s right-hand 9 impairment. (A.R. 28) (“The undersigned find the longitudinal record, which reflects the 10 claimant’s difficulty writing with his right hand, further supports limiting the claimant to 11 frequently handle, finger, and reach with the right upper extremity, which is reflected in the 12 findings of the consultant at the Reconsideration level.”). 13 Accordingly, the ALJ provided legally sufficient reasons when evaluating the opinion of 14 Dr. Benck. 15 B. RFC 16 Plaintiff also argues that the ALJ’s RFC assessment regarding Plaintiff’s physical 17 impairments is unsupported by substantial evidence. According to Plaintiff, the ALJ 18 impermissibly relied on her own interpretation of the medical evidence instead of reconciling the 19 opinions of Dr. Benck and Dr. Gurshani, which the ALJ found to be not persuasive, with the 20 opinion of Dr. Sachdeva, which the ALJ found to be “generally but not fully persuasive.” (See 21 ECF No. 14, p. 15). 22 The Court finds that the ALJ ’s RFC finding was supported by substantial evidence. 23 “Residual functional capacity is an administrative finding reserved to the Commissioner.” Lynch Guzman v. Astrue, 365 Fed.Appx. 869, 870 (9th Cir. 2010) (citing 20 C.F.R. § 404.1527(e)(2)). 24 The ALJ’s RFC determination should be affirmed “if the ALJ applied the proper legal standard 25 and his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 26 (9th Cir. 2005). 27 28 1 As discussed above, the ALJ did not err in the analysis of medical opinions by Dr. 2 Gursahani and Dr. Benck. Moreover, it is evident from the ALJ’s decision that the ALJ relied on 3 state agency consultants and the medical record as a whole in formulating the RFC. (A.R. 20-28). 4 Notably, although the ALJ did not find that Plaintiff was precluded from the use of his upper right 5 extremity, the ALJ’s RFC limited Plaintiff to “frequently handle, finger, and reach with the upper 6 right extremity.” (A.R. 28). While Plaintiff points to a different interpretation of the record, this, 7 as most, present another “rational interpretation” of the record, which means that “it is the ALJ’s 8 conclusion that must be upheld.” Burch, 400 F.3d at 679. 9 In light of the explanation of her reasoning on a legal finding reserved to the 10 Commissioner, the Court does not find legal error or a lack of substantial evidence supporting the 11 ALJ’s RFC conclusion. C. Subjective Symptom Testimony 12 Plaintiff’s brief also argues that the ALJ improperly discounted Plaintiff’s own testimony 13 regarding his mental and physical limitations. (See ECF No. 14, p. 11, 15). 14 The ALJ discussed Plaintiff’s testimony as follows: 15 The claimant alleges disability due to the effects of a stroke and pain in his neck, 16 back, upper extremities, right hand, buttocks, lower extremities, right knee, ulcers, seizures, high blood pressures, high cholesterol, depression, fatigue, chronic 17 kidney disease, and speech difficulties. (See Ex. 5E, Ex. 21E.) He indicates that his doctors told him that he needs to remain in a wheelchair at all times. (See Ex. 18 16E.) He alleges that he is unable to perform activities of daily living independently, including dressing, bathing, preparing meals, performing household 19 chores, shopping in stores, or driving a car. (See Ex. 8E, Hr’g Test.; see also Ex. 20 7E.) He alleges his symptoms affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, recall, complete tasks, concentrate, 21 understand, follow instructions, use his hands, and get along with others. (See Ex. 8E, Hr’g Test.; see also Ex. 7E.) He testified that he needs the help of others to 22 remember to take his medication, to attend doctor appointments, to bathe, prepare meals, perform housework, and shop for groceries. (Hr’g Test.) In sum, his 23 allegations reflect an individual dependent on others in nearly every facet of life. 24 (A.R. 20). 25 As to a plaintiff’s subjective complaints, the Ninth Circuit has concluded as follows: 26 Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant’s testimony as to subjective 27 symptoms merely because they are unsupported by objective evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. 28 1 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully 2 corroborated by objective medical findings”). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting 3 the claimant’s testimony must be “clear and convincing.” Swenson v. Sullivan, 876 4 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the 5 claimant’s complaints. 6 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). Additionally, an 7 ALJ’s reasoning as to subjective testimony “must be supported by substantial evidence in the 8 record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995). 9 As an initial matter, the ALJ concluded that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 20). 10 Accordingly, because there is no affirmative evidence showing that Plaintiff was malingering, the 11 Court looks to the ALJ’s decision for clear and convincing reasons, supported by substantial 12 evidence, for not giving full weight to Plaintiff’s symptom testimony. 13 After extensively reviewing Plaintiff’s medical history, the ALJ discussed Plaintiff’s 14 subjective complaints as follows: 15 More recent exam notes that the claimant continues to experience right-sided 16 weakness, but that his strength also continues to improve. In November 2019, he was observed using an assistive device to ambulate, but December 2019 physical 17 exam findings make no reference to an assistive ambulatory device. (See Ex. 17F/12, 14.) Treatment notes from February 2020 and April 2020 also do not 18 reference the use of an assistive device. (See Ex. 17F/10, Ex. 18F/8.) Recent 19 physical and mental status exam findings document that claimant presented as alert, aware, and oriented, and without mental deficits of note. (See Ex. 17F/4, 10, 20 12, 14, Ex. 18F/8) Treatment notes from February 2021 document that the claimant presented as well groomed, appropriately dressed, speaking in complete 21 sentences, and demonstrated fair eye contact, albeit with an unspecified degree of decreased psychomotor activity. (See Ex. 17F/4.) In addition, the record indicates 22 that the claimant’s seizures are well controlled on anti-seizure medication; he 23 reports experiencing an occasional seizure corresponding with a missed dose of anti-seizure medication. (See id., Ex. 17F/10.) 24 The claimant’s activities of daily living are inconsistent with the allegations 25 concerning the intensity, persistence and limiting effects of the claimant’s symptoms. The claimant alleges that he is unable to perform many normal 26 activities of daily living without assistance, such as dressing, bathing, preparing meals, or performing light household chores. (See Ex. 8E, Ex. 7F, Hr’g Test.; see 27 also Ex. 7E.) The evidentiary record does not support this degree of limitation. Treatment notes from June 2018 reflect that while he had difficulty holding things 28 1 in his right hand, he could shower, shave, and dress himself. (See Ex. 2F/57.) In October 2019, he told Dr. Swanson he could independently complete activities of 2 daily living. (See Ex. 11F/2.) He also told Dr. Swanson that he has a license to drive a car and does drive. (See id.) The claimant reports continuing memory 3 deficits, but treatment notes from his treating providers also reflect unimpaired 4 recent and remote memory. (See, e.g., Ex. 8F/6-7, 12.) Treatment notes also reflect he regularly presented to examiners as alert, aware, oriented, and able to 5 communicate effectively. (See, e.g., Ex. 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 12, Ex. 17F/10, 12.) There is no indication of inappropriate behavior or 6 inability to respond appropriately to changes in his environment. (See, e.g., Ex. 7 1F/2-3, 5-6, Ex. 2F/9, 12, 36, 57, Ex. 4F, Ex. 8F/3, 12, Ex. 17F/10, 12.) The physical and mental capabilities requisite to performing many of the tasks 8 described above—while not conclusive of the ability to maintain fulltime employment— are similar to those necessary for obtaining and maintaining 9 employment. As such, these activities belie the claimant’s allegations and instead support the conclusions reached herein. 10 The objective findings in the evidentiary record, including the diagnostic, physical, 11 and mental status exam diagnostic and physical exam findings discussed above, generally reflect a lack of significant and consistent deficits in any area. Likewise, 12 the claimant’s activities of daily living are indicative of an individual whose day- 13 to-day functional abilities remain generally intact. For these reasons, the undersigned finds the record does not support restrictions greater than those 14 reflected in the assigned residual function capacity. 15 (A.R. 23-24). Upon consideration, the Court concludes that the ALJ provided “findings sufficiently 16 specific to permit the [C]ourt to conclude that the ALJ did not arbitrarily discredit [Plaintiff’s 17 testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The Court notes that Plaintiff 18 does not address any of the reasons cited by the ALJ for discounting Plaintiff’s subjective 19 symptom testimony. The Court finds no legal error in the ALJ’s conclusion that the objective 20 record was inconsistent with Plaintiff’s testimony regarding the limitations that resulted from 21 Plaintiff’s stroke. See Carmickle, 533 F.3d at 1161 (“Contradiction with the medical record is a 22 sufficient basis for rejecting the claimant’s subjective symptom testimony.”) (citing Johnson v. 23 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). 24 Accordingly, the Court concludes that the ALJ provided clear and convincing reasons, 25 supported by substantial evidence, for not giving full weight to Plaintiff’s subjective complaints. 26 \\\ 27 \\\ 28 1 | I. CONCLUSION AND ORDER 2 Based on the above reasons, the decision of the Commissioner of Social Security is 3 | AFFIRMED. And the Clerk of the Court is directed to close this case. 4 ; IT IS SO ORDERED. 6] Dated: _ Jue 15, 2023 [Jee ey □□ 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17