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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ERNIE ARTHUR JAIME, Case No. 1:21-cv-01672-SKO 11 Plaintiff, 12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1) 16 17 _____________________________________/ 18 19 I. INTRODUCTION 20 Plaintiff Ernie Arthur Jaime (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application 22 for disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The 23 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 24 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 25 26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant”). 1 2 Plaintiff protectively filed an application for DIB payments on September 12, 2019, 3 alleging that he became disabled beginning on January 28, 2018, due to a torn rotator, “Biocept,” 4 “labrum,” and neck injury. (Administrative Record (“AR”) 15, 147–53, 188.) Plaintiff was born 5 on September 4, 1968, and was 51 years old on the date the application was filed. (AR 23, 147, 6 165, 264.) He has at least a high school education and has past work experience as a corrections 7 officer. (AR 22, 199–200, 264–65.) 8 A. Relevant Evidence of Record3 9 1. Medical Evidence 10 Plaintiff sustained an injury to his left shoulder on January 28, 2018, while lifting a heavy 11 linen bag at work. (AR 656.) He felt a pop and experienced pain about 30 minutes later. (Id.) An 12 X-ray of Plaintiff’s left shoulder the following day indicated that the glenohumeral and 13 acromioclavicular joints were within normal limits, but revealed calcification along the greater 14 tuberosity compatible with calcific tendinitis and subsegmental atelectasis at the left lung base. 15 (AR 272.) 16 An MRI of Plaintiff’s left shoulder taken on February 16, 2018, showed several 17 abnormalities: superior rotator cuff calcific tendinitis and tendinosis without full-thickness tearing 18 of several other tendons; and moderate acromioclavicular joint hypertrophic spurring with lateral 19 downsloping of the acromion and small subacromial/subdeltoid bursal fluid/bursitis. (AR 273– 20 74.) There was no evidence of displaced labral tear or paralabral cyst, but posterior labral 21 degeneration was noted, and trace fluid was detected within the subacromial/subdeltoid bursa. (AR 22 273.) The coracoacromial and acromioclavicular ligaments were intact, as were the biceps tendon 23 and anchor, and there was no significant fatty replacement or atrophy of the rotator cuff muscles. 24 (Id.) There was no significant joint effusion or any focal cartilage defect. (AR 273–74.) 25 During a visit with orthopedic surgeon Dr. Christian Cameron Safian, M.D., on February 26 20, 2018, Plaintiff indicated the pain in his left shoulder had been worsening and he felt pain with 27 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 all extremes of motion and frequently at night. (AR 656.) Plaintiff described some neck soreness 2 and indicated that ibuprofen helped minimally. (Id.) Dr. Safian reviewed the radiology results and 3 determined Plaintiff’s primary issue was “frozen shoulder.” (AR 658.) Dr. Safian recommended 4 “aggressive” physical therapy and icing, and noted that if Plaintiff did not make progress over the 5 next four weeks, they could proceed with an intra-articular cortisone injection. (Id.) 6 By April 30, 2018, Plaintiff had completed 12 sessions of physical therapy. (AR 727.) At 7 a visit that day with Dr. Jere Stahl Ozaeta, M.D., an occupational medicine specialist, Plaintiff 8 reported continued pain in the left shoulder, numbness in the left-hand fingertips, no grasping 9 power with weak left grip, and an inability to elevate the left arm in abductions “‘more than an 10 inch.’” (Id.) Dr. Ozaeta determined that Plaintiff’s complaints were more consistent with cervical 11 radiculitis rather than a shoulder injury and requested an MRI to evaluate Plaintiff for 12 radiculopathy. (AR 727–28.) Dr. Ozaeta placed Plaintiff on a modified work plan until June 11, 13 2018, and restricted him to occasionally reaching above the shoulder (up to 25% of shift) and 14 lifting, carrying, pushing, or pulling no more than 20 pounds. (AR 728.) 15 At a visit with Dr. Michael Nuzzo, M.D., at Sierra Pacific Orthopedics, on August 14, 2018, 16 Plaintiff described feeling little relief from physical therapy. (AR 424.) Dr. Nuzzo noted that 17 Plaintiff’s MRI showed a large calcific deposit in the supraspinatus tendon, and that Plaintiff 18 reported significant impartment with activities of daily living, he experienced a seven out of ten 19 pain, and conservative measures such as physical therapy, icing, and anti-inflammatory 20 medications had failed. (Id.) Dr. Nuzzo also indicated Plaintiff had received a cortisone injection 21 in the left shoulder at the last visit but did not experience relief. (Id.) Plaintiff’s treatment plan 22 moving forward was left shoulder arthroscopic calcific deposit debridement, rotator cuff tear repair, 23 and subacromial decompression. (AR 425.) 24 As recommended, Dr. Nuzzo performed this surgery on October 15, 2018. (AR 419.) At 25 a post-operative visit on October 23, 2018, Plaintiff reported feeling better, and the surgical wounds 26 appeared to be healing well without signs of infection. (AR 416–17.) Plaintiff was to begin 27 physical therapy and/or an at home exercise program. (AR 417.) At another post-operative visit 28 on December 4, 2018, Plaintiff reported minimal post-operative pain. (AR 413.) Dr. Nuzzo noted 1 that the involved region had no tenderness and was neurovascularly intact, and the post-operative 2 range of motion was acceptable. (AR 413–14.) Plaintiff was to continue with physical therapy. 3 (AR 414.) 4 Plaintiff continued reporting that he was doing well and experienced minimal post- 5 operative pain for the next few months. (See AR 408, 410.) Upon conducting a physical 6 examination on February 27, 2019, Dr. Nuzzo noted that Plaintiff had zero to 175 degree internal 7 rotation of the left shoulder, no significant pain through the arc of motion, and five out of five 8 strength with rotator cuff testing. (AR 408.) Accordingly, Dr. Nuzzo discharged Plaintiff from 9 orthopedic care and cleared Plaintiff to return to work as tolerated and participate in activities as 10 tolerated without restriction. (AR 330, 408.) 11 Plaintiff completed physical therapy, but returned for a follow-up visit with Dr. Ozaeta on 12 July 8, 2019, complaining of persistent left shoulder discomfort when reaching above shoulder 13 level and an inability to tolerate heavy lifting or constantly reaching above shoulder level when 14 using the left arm. (AR 330.) Plaintiff also reported that he did not succeed at returning to work 15 after receiving the surgery. (Id.) A physical examination indicated reduced range of motion, but 16 no tenderness or deformity. (Id.) Dr. Ozaeta found that Plaintiff’s left shoulder “[was] at maximum 17 medical improvement,” and placed Plaintiff on a permanent modified work plan, in that he was 18 restricted to avoiding lifting or carrying over 35 pounds and only occasionally reaching above the 19 left shoulder (up to 25% of shift). (Id.) 20 On July 9, 2019, California Orthopedic Medical Director Dr. Michael Charles, M.D., 21 interviewed and examined Plaintiff. (AR 1100.) Dr. Charles noted deformity of the left biceps 22 consistent with a full-thickness biceps tendon tear and that Plaintiff reported apprehension to 23 forward displacement of the left shoulder with tenderness in the acromioclavicular joint. (AR 24 1102.) Dr. Charles found that Plaintiff had a normal range of motion of the cervical spine and on 25 the right side. (Id.) Dr. Charles observed that Plaintiff had a “slight decrease in grip strength” on 26 the left side, but noted Plaintiff denied any strength deficits, painful conditions, and stated he did 27 not put out maximum force when performing the test. (AR 1104.) Dr. Charles concluded with the 28 following work restrictions: 1 No use of the left shoulder above shoulder level. No climbing ladders or forceful 2 grasping in regard to the left non-dominant upper extremity. 3 (AR 1117.) Dr. Charles also recommended consideration of further shoulder surgery due to 4 Plaintiff’s complaints of instability and the findings on examination. (Id.) 5 On January 18, 2020, Plaintiff saw Dr. Ozaeta for a follow-up visit and reported increased 6 pain in the left shoulder, especially with internal rotation. (AR 1559–60.) Dr. Ozaeta’s 7 examination of Plaintiff’s left shoulder, however, revealed significant improvement in the range of 8 motion since the examination conducted by Dr. Charles in July of 2019. (AR 1560.) Dr. Ozaeta 9 noted no deformity, tenderness, or crepitus as to Plaintiff’s left shoulder, as well as no biceps or 10 palmar atrophy, a negative Hoffman’s test, and intact sensation to light touch in the arms. (Id.) Dr. 11 Ozaeta requested authorization for six additional physical therapy sessions and confirmed the work 12 restrictions placed by Dr. Charles. (AR 1560–61.) 13 B. Administrative Proceedings 14 The Commissioner denied Plaintiff’s application for benefits initially on October 24, 15 2019, and again on reconsideration on January 31, 2020. (AR 15, 80–84, 89–93.) Consequently, 16 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 15, 96.) 17 On January 5, 2021, Plaintiff appeared telephonically with counsel and testified before an 18 ALJ as to his alleged disabling conditions. (AR 15, 36–47.) A vocational expert (“VE”) also 19 testified at the hearing. (AR 15, 47–53.) 20 1. Plaintiff’s Testimony 21 At the hearing on January 5, 2021, Plaintiff described his past work experience as a 22 corrections officer, wherein he would be on his feet for 90% of the workday. (AR 40–41.) 23 Following the injury in January of 2018, Plaintiff worked for three months doing “light duty,” but 24 otherwise did not work continuously after being injured. (AR 39–43.) Plaintiff stated that he 25 received worker’s compensation and was still not working at the time of the hearing. (AR 39.) 26 Plaintiff testified that he had symptoms on both his left and right side—“[t]he left is 27 recently known but the right is where I get . . . the pain.” (AR 43.) He stated it was hard to do 28 anything around the house, such as picking up his kids or washing his car, and the left side caused 1 more limitations than the right side. (Id.) Plaintiff testified that he could lift and carry “[m]aybe 2 ten pounds,” but could not carry for “too long,” and he was unable to do things with his left side 3 such as taking lids off jars, reaching overhead to put something in the cupboard, or using a 4 screwdriver. (AR 43–46.) Plaintiff further stated he would have difficulty having his arms in 5 front of him to type on a keyboard and could only fix meals for the kids for no more than five 6 minutes due to the pain. (AR 44.) Plaintiff testified that he has completed “way beyond the max 7 of physical therapy” and did not anticipate his left shoulder getting better, and his doctors had 8 told him that additional surgeries would be “a shot in the dark” because of “how torn up” his left 9 shoulder was. (AR 46–47.) 10 Regarding his right arm, Plaintiff testified that he does not have pain other than an 11 occasional “tingle” which prevents him from using his arm, and the last time this tingling 12 sensation occurred was three months prior. (AR 45.) 13 2. VE’s Testimony 14 At the hearing on January 5, 2021, the VE identified Plaintiff’s past work experience as a 15 corrections officer, Dictionary of Occupational Titles (“DOT”) 372.667-018, specific vocational 16 preparation (SVP)4 level of 4. (AR 48.) In a first hypothetical, the ALJ asked the VE to assume 17 someone was of Plaintiff’s age, education, and work experience, and who is capable of 18 performing light work as defined by the regulations but has the following additional limitations: 19 never climbing ladders, ropes, and scaffolds; never reaching overhead with the left upper 20 extremity; but is capable of frequent reaching in all other directions with the left upper extremity. 21 (Id.) The ALJ asked if such an individual could perform Plaintiff’s past work, and the VE 22 answered in the negative, explaining that the exertional level of the past work is greater than light 23 work as mentioned in the hypothetical. (AR 48–49.) 24 The ALJ then asked whether there were other jobs that this hypothetical individual could 25 perform. (AR 49.) The VE testified that such a person could perform the occupations of furniture 26 4 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 rental clerk, DOT 295.357-018, SVP 2, with about 105,026 jobs in the national economy; 2 parimutuel ticket cashier, DOT 211.467-018, SVP 2, with about 19,580 national jobs; hotel desk 3 clerk, DOT 238.367-038, SVP 4, with about 241,140 national jobs; and usher, DOT 344.677-014, 4 SVP 2, with about 136,400 national jobs. (AR 49.) 5 In a second hypothetical, the ALJ asked whether jobs would exist for someone with the 6 same limitations as those listed in the first hypothetical, but with the exertional level reduced to 7 sedentary. (AR 49.) The VE testified that two jobs existed: callout operator, DOT 237.367-014, 8 SVP 2, with 46,320 national jobs; and systems surveillance monitor, DOT 379.367-010, SVP 2, 9 with 113,010 national jobs. (Id.) In a third hypothetical, the ALJ modified the first hypothetical 10 as follows: the reaching limitations were reduced to occasional reaching with the left upper 11 extremity; the restriction on never reaching overhead was kept; and occasional reaching with the 12 left upper extremity was added. (AR 49–50.) The ALJ asked how the jobs identified by the VE 13 in the first hypothetical would be affected. (AR 50.) The VE testified that the furniture rental 14 clerk and usher would remain, but the parimutuel ticket cashier would be eliminated. (AR 50.) 15 The VE stated that if the same occasional reaching modification was applied to the 16 sedentary hypothetical, the jobs originally identified by the VE would be affected. (AR 50.) The 17 VE further testified that employers customarily tolerate one or two days per month of unexcused 18 or unscheduled absences, and up to 10% of the workday is an acceptable amount of time that an 19 employee may be off task before suffering consequences. (Id.) Lastly, the ALJ asked whether 20 the VE’s testimony was consistent with the DOT. (Id.) The VE answered in the affirmative with 21 the following caveat: “the DOT does not define climbing regarding ladders, stairs, ropes, et cetera, 22 reaching is not specific to any given direction or left/right unilateral, bilateral upper extremities, 23 and the off task requirements and absenteeism rates are not suggested, all of which would be 24 based upon my professional experience.” (Id.) 25 An accredited disability representative then asked the VE a few questions. (AR 50–53.) 26 The representative inquired as to whether the jobs initially listed in response to the first 27 hypothetical would be affected if handling with the left upper extremity was reduced to 28 occasionally. (AR 52.) The VE stated that all the jobs except for parimutuel ticket cashier would 1 remain unaffected. (Id.) The representative then asked the VE whether, as to the third 2 hypothetical, which involved occasional reaching except for overhead, but adding occasional 3 handling with the left upper extremity, if any jobs would remain. (AR 52–53.) The VE responded 4 in the negative. (AR 53.) 5 C. The ALJ’s Decision 6 In a decision dated February 3, 2021, the ALJ found that Plaintiff was not disabled, as 7 defined by the Act. (AR 15–24.) The ALJ conducted the five-step disability analysis set forth in 8 20 C.F.R. § 404.1520. (Id.) The ALJ decided Plaintiff met the insured status requirements of the 9 Act through December 31, 2024, and he had not engaged in substantial gainful activity since 10 January 28, 2018, the alleged onset date (step one). (AR 17.) At step two, the ALJ found Plaintiff’s 11 following impairments to be severe: left calcific tendinitis, osteoarthritis, cervical radiculitis, 12 obesity, and left rotator cuff syndrome. (Id.) Plaintiff did not have an impairment or combination 13 of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 14 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 17–18.) 15 The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) and applied the 16 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 17 to step four, we assess your [RFC] . . . . We use this [RFC] assessment at both step four and step 18 five when we evaluate your claim at these steps.”). The ALJ determined Plaintiff had the RFC: 19 to perform light work as defined in 20 [§] CFR 404.1567(b) except: no climbing ladders, ropes, or scaffolds; no overhead reaching with the left upper extremity; and 20 limited to frequent reaching with the left upper extremity. 21 (AR 18.)5 Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 22 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not entirely 23 consistent with the medical evidence and other evidence in the record.” (AR 21.) 24 The ALJ found that Plaintiff is unable to perform any past relevant work (step four). (AR 25 22–23.) The ALJ concluded that Plaintiff was not disabled from January 28, 2018, through the 26 27 5 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). Although the weight lifted may be very little, a job is in 28 this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with 1 date of the decision. (AR 24.) Listing the jobs of furniture rental clerk, parimutuel ticket cashier, 2 and usher, as noted by the VE at the hearing, the ALJ reasoned as follows: 3 Based on the testimony of the [VE], the undersigned concludes that, considering [Plaintiff’s] age, education, work experience, and [RFC], the claimant is capable of 4 making a successful adjustment to other work that exists in significant numbers in the national economy. A finding of “not disabled” is therefore appropriate under 5 the framework of the above-cited rules. 6 (AR 23-24.) 7 Plaintiff sought review of this decision before the Appeals Council, which denied review 8 on September 14, 2021. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 9 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 10 III. LEGAL STANDARD 11 A. Applicable Law 12 An individual is considered “disabled” for purposes of disability benefits if they are unable 13 “to engage in any substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or can be expected 15 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 16 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 17 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 18 work but cannot, considering [their] age, education, and work experience, engage in any other kind 19 of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 20 “The Social Security Regulations set out a five-step sequential process for determining 21 whether a claimant is disabled within the meaning of the [Act].” Tackett v. Apfel, 180 F.3d 1094, 22 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The Ninth 23 Circuit has provided the following description of the sequential evaluation analysis: 24 In step one, the ALJ determines whether a claimant is currently engaged in 25 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe 26 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 27 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 28 1 not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] 2 . . . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 5 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 6 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 7 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 8 “The claimant carries the initial burden of proving a disability in steps one through four of 9 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 10 1989)). “However, if a claimant establishes an inability to continue [his or her] past work, the 11 burden shifts to the Commissioner in step five to show that the claimant can perform other 12 substantial gainful work.” Id. (citing Swenson, 876 F.2d at 687). 13 B. Scope of Review 14 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 15 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 16 the record as a whole.” Tackett, 180 F.3d at 1097. “Substantial evidence” means “‘such relevant 17 evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson v. 18 Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 19 229 (1938)). “‘Substantial evidence is more than a mere scintilla but less than a preponderance.’” 20 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 21 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 22 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 23 only if that decision is not supported by substantial evidence or it is based upon legal error.” 24 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “‘[t]he court will uphold the 25 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.’” Ford 26 v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020); see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 27 (9th Cir. 2001). 28 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 1 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). The Court must 2 instead determine whether the Commissioner applied the proper legal standards and whether 3 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 4 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 5 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 6 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 7 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 8 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 9 1993)). 10 Finally, courts may not reverse an ALJ’s decision on account of an error that is harmless. 11 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). Harmless error “exists when it is clear 12 from the record that the ALJ’s error was inconsequential to the ultimate nondisability 13 determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation 14 marks omitted). “[T]he burden of showing that an error is harmful normally falls upon the party 15 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 16 IV. DISCUSSION 17 Plaintiff contends that the ALJ erroneously failed to offer legitimate reasons for rejecting 18 his subjective complaints and failed to incorporate work-related limitations in the RFC consistent 19 with the nature and intensity of Plaintiff’s symptoms. (Doc. 15 at 3, 9–15.) For the reasons stated 20 below, the Court finds the ALJ did not err. 21 A. The ALJ’s RFC Determination is Supported by Substantial Evidence 22 1. Legal Standard 23 The nature of the ALJ’s responsibility is to interpret the evidence in the record, including 24 medical evidence. See, e.g., Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Such a 25 responsibility does not result in the ALJ committing legal error when the ALJ assesses an RFC that 26 is consistent with the record. See Mills v. Comm'r of Soc. Sec., No. 2:13-CV-0899-KJN, 2014 WL 27 4195012, at *4 (E.D. Cal. Aug. 22, 2014). 28 An RFC “is the most [one] can still do despite [one’s] limitations” and it is assessed “based 1 on all the relevant evidence in [one's] case record,” rather than a single medical opinion or piece of 2 evidence. 20 C.F.R. § 416.945(a)(1). “It is clear that it is the responsibility of the ALJ, not the 3 claimant's physician, to determine [RFC].” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 4 2001). Further, an ALJ’s RFC determination need not precisely reflect any particular medical 5 provider's assessment. See Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 6 2010) (the ALJ properly incorporated physician's observations in the RFC determination while, at 7 the same time, rejecting the implication that the plaintiff was unable to “perform simple, repetitive 8 tasks in an environment without public contact or background activity”). 9 In evaluating the credibility of a claimant’s testimony regarding their impairments, an ALJ 10 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 11 the ALJ must determine whether the claimant has presented objective medical evidence of an 12 underlying impairment that could reasonably be expected to produce the alleged symptoms. Id. 13 The claimant is not required to show that their impairment could reasonably be expected to cause 14 the severity of the symptom they have alleged; they need only show that it could reasonably have 15 caused some degree of the symptom. Id. If the claimant meets the first test and there is no evidence 16 of malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 17 if they give “‘specific, clear and convincing reasons’” for the rejection. Id. 18 As the Ninth Circuit has explained: 19 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 20 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 21 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 22 by substantial evidence, the court may not engage in second-guessing. 23 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 24 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009) (“If an ALJ finds a claimant’s 25 characterization of his or her own symptoms unreliable, the ALJ must make a credibility 26 determination backed up by specific findings.”). Other factors the ALJ may consider include a 27 claimant’s work record and testimony from physicians and third parties concerning the nature, 28 severity, and effect of the symptoms of which he or she complains. Light v. Soc. Sec. Admin., 119 1 F.3d 789, 792 (9th Cir. 1997) 2 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 3 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 4 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 5 findings are not sufficient to satisfy this standard; “‘rather, the ALJ must identify what testimony 6 is not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 7 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 8 2. Analysis 9 Here, Plaintiff asserts that the ALJ erred in failing to provide “clear and convincing” reasons 10 for discounting his complaints of symptoms as to restrictions in using the left upper extremity on a 11 repetitive basis and performing grasping and handling with the left hand. (Doc. 15 at 10.) 12 Specifically, Plaintiff asserts that the ALJ failed to address his complaints of pain as they appear in 13 the medical records by cherry-picking evidence unfavorable to Plaintiff while ignoring favorable 14 evidence. (Id. at 11–12.) 15 The ALJ acknowledged Plaintiff unsuccessfully attempted to work after the alleged 16 disability onset date, and that Plaintiff again attempted to return to work after completing a surgery 17 on the left shoulder but was unable to continue working because of his impairments. (AR 17.) In 18 considering Plaintiff’s symptoms, the ALJ’s analysis focused on whether Plaintiff had an 19 underlying medically determinable physical or mental impairment that could reasonably be 20 expected to produce his pain or other symptoms. (AR 19.) After carefully considering the 21 evidence, including records of treatment Plaintiff received for the left shoulder (AR 19–21), the 22 ALJ determined that Plaintiff’s medically determinable impairments could reasonably be expected 23 to cause the alleged symptoms (AR 21). The ALJ, however, found Plaintiff’s statements as to the 24 “intensity, persistence, and limiting effects of his symptoms” to be “inconsistent” “because the 25 evidence [did] not show debilitating functional limitations.” (AR 21.) 26 The ALJ’s finding as to Plaintiff’s credibility regarding the severity of his symptoms is 27 supported by the record in this case. At the hearing, Plaintiff testified that he experienced 28 symptoms on both his left and right side, but the left side caused more limitations than the right 1 side. (AR 43.) As for the left side, specifically his left upper extremity, Plaintiff stated he could 2 carry up to 10 pounds for short periods of time, but was unable to do tasks such as taking lids off 3 jars, reaching overhead, or using a keyboard. (AR 43–46.) Plaintiff testified that it appeared 4 unlikely additional treatment on his left shoulder, such as further surgeries, would result in 5 improvement. (AR 46–47.) Regarding the right side, Plaintiff stated he had occasional tingling 6 which prevented him from using his arm. (AR 45.) 7 In evaluating a claimant’s claimed symptoms, an ALJ may find a plaintiff less credible 8 when his or her symptoms can be controlled by treatment and/or medication. See 20 C.F.R. 9 § 416.929(c)(3)(iv)–(v); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 10 Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for 11 purposes of determining eligibility for SSI benefits.”). But, the Ninth Circuit has explained how, 12 [a]s we have emphasized while discussing mental health issues, it is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of 13 treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated 14 instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. 15 16 Garrison, 759 F.3d at 1017. 17 Here, the ALJ did not discredit Plaintiff merely due to waxing and waning symptoms. 18 Instead, To the contrary, the ALJ stated as follows: 19 [Plaintiff] had a significant injury to his left shoulder, and he had extensive treatment, including injections, physical therapy, and ultimately, surgery. His 20 physical examinations following surgery showed some improvement, but he continues to have some residual symptoms, including decreased range of motion. 21 However, he does not have atrophy in his left upper extremity, and there is no evidence of any significant decrease in strength. His right upper extremity appears 22 to be normal. 23 (AR 21.) 24 There is substantial evidence in the record that Plaintiff’s physical conditions improved 25 with treatment during the relevant period. For example, at a visit with Dr. Nuzzo on August 14, 26 2018, Plaintiff described feeling little relief from physical therapy and experiencing a seven out of 27 ten pain, leading Dr. Nuzzo to conclude that conservative measures such as physical therapy, icing, 28 anti-inflammatory medications, and a cortisone injection had failed. (AR 424.) After Dr. Nuzzo 1 performed surgery on Plaintiff’s left shoulder and Plaintiff completed physical therapy, Plaintiff 2 presented with minimal post-operative pain, no tenderness, and improved range of motion. (AR 3 408, 410, 414.) On February 27, 2019, Dr. Nuzzo noted that Plaintiff had improved internal 4 rotation of the left shoulder, no significant pain through the arc of motion, and five out of five 5 strength with rotator cuff testing. (AR 408.) Accordingly, Dr. Nuzzo discharged Plaintiff from 6 orthopedic care and cleared Plaintiff to return to work and activities as tolerated without restriction. 7 (AR 330, 408.) 8 Plaintiff continued reporting pain in the left shoulder and limitations such as reaching 9 overhead. (AR 330.) Dr. Charles observed that Plaintiff had a “slight decrease in grip strength” 10 on the left side, but noted Plaintiff denied any strength deficits, painful conditions, and stated he 11 did not put out maximum force when performing the test. (AR 1104.) Thus, Dr. Charles restricted 12 Plaintiff permanently from lifting, pushing, or pulling over 20 pounds, using the left shoulder above 13 shoulder level, climbing ladders, or forceful grasping. (AR 1117.) Though Plaintiff reported 14 increased pain in the left shoulder on January 18, 2020, Dr. Ozaeta’s examination revealed 15 significant improvement in the range of motion since the examination conducted by Dr. Charles in 16 July of 2019, no deformity, tenderness, or crepitus as to Plaintiff’s left shoulder, and intact 17 sensation to light touch in the arms. (AR 1559–61.) 18 Having considered the evaluations of these various treating medical professionals, the ALJ 19 formulated Plaintiff’s RFC, which included a slightly more restrictive limitation to exertional 20 activity than that found by the opining physicians and was consistent with the VE’s testimony at 21 the hearing. As noted above, Dr. Charles restricted Plaintiff as follows: 22 [Plaintiff] is permanently restricted from lifting, pushing, or pulling over 20 pounds. No use of the left shoulder above shoulder level. No climbing ladders or forceful 23 grasping in regard to the left non-dominant upper extremity. 24 (AR 1117.) These work restrictions were confirmed by Dr. Ozaeta. (AR 1560–61.) Similarly, the 25 ALJ determined Plaintiff had the RFC: 26 to perform light work as defined in 20 [§] CFR 404.1567(b) except: no climbing ladders, ropes, or scaffolds; no overhead reaching with the left upper extremity; and 27 limited to frequent reaching with the left upper extremity. 28 (AR 18.) 1 The ALJ’s formulation of Plaintiff’s RFC also comports with the VE’s testimony. The ALJ 2 acknowledged that Plaintiff’s ability to perform all or substantially all of the requirements of the 3 full range of light work “has been impeded by additional limitations.” (AR 23.) At the hearing, to 4 determine the extent to which these limitations eroded the unskilled light occupational base, the 5 ALJ asked the VE whether jobs existed in the national economy for an individual with Plaintiff’s 6 age, education, work experience, and RFC. (AR 48–49; see also AR 23.) The VE testified that 7 given the limitations of never climbing ladders, ropes, and scaffolds, never reaching overhead with 8 the left upper extremity, but with frequent reaching in all other directions with the left upper 9 extremity, such an individual would be able to perform the requirements of representative 10 occupations such as furniture rental clerk, parimutuel ticket cashier, hotel desk clerk, and usher, all 11 of which existed in significant numbers in the national economy. (Id.) If the individual’s exertional 12 level was reduced to sedentary, the VE testified that jobs such as callout operator and systems 13 surveillance monitor were available. (AR 49.) Even if the first hypothetical was modified such 14 that the reaching limitations were reduced to occasional reaching with the left upper extremity, the 15 restriction on never reaching overhead remained, and occasional reaching with the left upper 16 extremity was added, the VE testified that jobs such as furniture rental clerk and usher would 17 remain. (AR 49–50.) When asked by the representative whether the jobs initially listed in response 18 to the first hypothetical would be affected if handling with the left upper extremity was reduced to 19 occasionally, the VE stated that all the jobs except for parimutuel ticket cashier would remain 20 unaffected. (AR 52.) Only when the limitation of occasional handling with the left upper extremity 21 was added did the VE testify that no jobs would remain. (AR 52–53.) The ALJ further determined 22 that the VE’s testimony was consistent with the DOT. (AR 24.) 23 The ALJ’s conclusion that Plaintiff’s statements as to the severity and limiting effects of 24 his symptoms were “inconsistent” because the evidence failed to show “debilitating functional 25 limitations” (AR 21) is also supported by the medical record. One of many factors that the ALJ 26 may consider in weighing a claimant’s credibility as to the characterization of his or her symptoms 27 is prior inconsistent statements. Tommasetti, 533 F.3d at 1039; Bray, 554 F.3d 1226–27. For 28 example, following surgery, Dr. Nuzzo discharged Plaintiff from orthopedic care and cleared 1 Plaintiff to return to work as tolerated and participate in activities as tolerated without restriction. 2 (AR 330, 408.) Despite Plaintiff’s continued complaints of discomfort and limitations, Dr. Ozaeta 3 found that Plaintiff’s left shoulder “[was] at maximum medical improvement,” and placed Plaintiff 4 on a permanent modified work plan, in that he was restricted to avoiding lifting or carrying over 5 35 pounds and only occasionally reaching above the left shoulder (up to 25% of shift). (AR 330.) 6 Dr. Charles also observed that Plaintiff had a “slight decrease in grip strength” on the left side, but 7 noted Plaintiff denied any strength deficits, painful conditions, and stated he did not put out 8 maximum force when performing the test. (AR 1104.) Similarly, at the hearing, Plaintiff testified 9 that he had symptoms on both his left and right side, describing how “[t]he left is recently known 10 but the right is where I get . . . the pain.” (AR 43.) Later during the hearing, however, Plaintiff 11 testified that he had occasional tingling in his right arm which prevented him from using it. (AR 12 45.) Dr. Charles found that Plaintiff had had a normal range of motion of the cervical spine and on 13 the right side. (AR 1102.) 14 Accordingly, the ALJ properly formulated Plaintiff’s RFC, taking into account records from 15 multiple treating physicians demonstrating improvement with treatment and indications as to the 16 lack of reliability of Plaintiff’s complaints regarding the debilitating effects of his symptoms. See 17 Mills, 2014 WL 4195012, at *4 (finding argument that the ALJ was improperly attempting to “play 18 doctor” to be without merit where the ALJ “carefully analyzed the various medical opinions, 19 treatment records, and [the] plaintiff's own testimony in formulating an RFC.”); see also 20 C.F.R. 20 § 404.1527(d)(2) (“the final responsibility for deciding [an RFC] is reserved to the 21 Commissioner”), § 404.1545(a)(1) (“We will assess your [RFC] based on all the relevant evidence 22 in your case record.”); see, e.g., Mills, 2014 WL 4195012, at *4 (“Indeed, [P]laintiff can hardly 23 fault the ALJ for giving him the benefit of the doubt and assessing an RFC that is more favorable 24 to [P]laintiff than most of the medical opinions in the record.”). 25 Plaintiff contends that the ALJ improperly failed to include limitations assessed by the 26 physicians in the RFC and thus, the ALJ should have found a closed period of disability. (See Doc. 27 15 at 14–15.) As set forth above, however, the ALJ’s decision accounted for the opinions of 28 multiple medical professionals indicating improvement with treatment, included a similar 1 limitation to exertional activity as that found by Dr. Charles, and was consistent with testimony 2 from the VE (see AR 18, 23, 48–53, 1117). See Mills, 2014 WL 4195012, at *4 (“it is the ALJ's 3 responsibility to formulate an RFC that is based on the record as a whole, and thus the RFC need 4 not exactly match the opinion or findings of any particular medical source.”) (citing Magallanes v. 5 Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (original italics)). Plaintiff appears to be advocating for 6 an alternative interpretation of the evidence regarding how pain affected his ability to use the left 7 upper extremity. (See Doc. 15 at 10–12.) The Court will not second-guess the ALJ’s reasonable 8 interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff. See 9 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 10 As there is substantial evidence of Plaintiff's improvement with treatment and lack of 11 reliability as to Plaintiff’s characterization of his symptoms, such are clear and convincing reasons 12 for not finding Plaintiff’s subjective complaints to be fully credible. See Morgan v. Comm’r of 13 Soc. Sec. Admin., 169 F.3d 595, 599–600 (9th Cir. 1999) (the ALJ’s adverse credibility 14 determination properly accounted for physician’s report of improvement with medication); Odle v. 15 Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming denial of benefits and noting that claimant’s 16 impairments were responsive to treatment). While Plaintiff may disagree with the ALJ’s 17 interpretation of the medical evidence, it is not within the province of this Court to second-guess 18 the ALJ’s reasonable interpretation of that evidence, even if such evidence could give rise to 19 inferences more favorable to Plaintiff. See Rollins, 261 F.3d at 857; Ford, 950 F.3d at 1159 (“Our 20 review of an ALJ’s fact-finding for substantial evidence is deferential,” and “our inquiry ‘defers to 21 the presiding ALJ, who has seen the hearing up close’”). 22 V. CONCLUSION AND ORDER 23 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 24 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 25 // 26 // 27 // 28 // 1 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 2 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 3 IT IS SO ORDERED. 4 5 Dated: March 9, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28