(SS) Martinez v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBORAH MARTINEZ, Case No. 1:21-cv-00160-AWI-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFFS MOTON FOR 13 v. SUMMARY JUDGEMNT, GRANT COMMISSIONER OF SOCIAL SECURITY’S 14 KILOKO KIJAKAZI, CROSS MOTION FOR SUMMARY JUDGMENT AND AFFIRM 15 Defendant. COMMISSIONER’S DECISION1 16 FOURTEEN-DAY OBJECTION PERIOD 17 (Doc. Nos. 25, 26) 18 19 Deborah Martinez (“Plaintiff” or “claimant”) seeks judicial review of a final decision of 20 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application 21 for disability insurance benefits under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the Court on the parties’ briefs, which were submitted without oral argument. 23 (Doc. Nos. 25, 26, 28). For the reasons set forth below, the undersigned RECOMMENDS 24 denying Plaintiff’s motion for summary judgment, granting the Commissioner’s cross motion for 25 summary judgment, and affirming the Commissioner’s decision. 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(15) (E.D. Cal. 2022). 28 1 I. JURISDICTION 2 Plaintiff protectively filed for disability insurance benefits and supplemental security 3 income on May 29, 2014, alleging an onset date of January 1, 2014 (at initial hearing amended to 4 April 22, 2014). (AR 197-202) (see also Doc. No. 12-3 at 16). Benefits were denied initially and 5 upon reconsideration. (AR 197-202, 203-204,133-38, 141-147). Plaintiff first appeared before 6 Administrative Law Judge Vincent A. Misenti on January 20, 2017. (Doc. No. 12-3 at 34). 7 Plaintiff was represented by counsel and testified at the hearing. (Id. at 34-69). On April 10, 8 2017, the ALJ issued an unfavorable decision (AR 12-32), and on April 16, 2018, the Appeals 9 Council denied review (AR 1-6). On July 10, 2019, the United States District Court for the 10 Eastern District of California remanded the case for further proceedings. (AR 1018-1045). On 11 remand, Plaintiff appeared before Administrative Law Judge Scot Septer (“ALJ”) on September 12 3, 2020. (AR 929). On September 28, 2020, the ALJ issued an unfavorable decision. (AR 903- 13 921). The Appeals Council denied review on December 21, 2020. (AR 897). Plaintiff filed the 14 instant action now before this Court pursuant to 42 U.S.C. § 405(g). 15 II. BACKGROUND 16 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 17 2020 decision on remand, and the briefs of Plaintiff and the Commissioner. Only the most 18 pertinent facts are summarized here. 19 Plaintiff was 52 years old at the time of the hearing. (See AR 931). She completed the 20 eighth grade. (AR 937). She lives with her daughter, her daughter’s husband, and two grandsons. 21 (Id.). Plaintiff has work history as a bill review analyst. (AR 938). Plaintiff stopped working 22 because she was laid off due to down-sizing. (AR 941). She reported that she is unable to work 23 now because of issues with her back, shoulders, and arms. (AR 942). Plaintiff testified she can 24 barely walk, not even half a block,” cannot shower by herself, lift her arms overhead, and relies 25 on her daughter for aid. (AR 942-44). She testified she uses a cane to walk. (AR 944-45). 26 Plaintiff experiences constant back pain but takes medication that “eases it but it does not take it 27 away.” (AR 952). 28 //// 1 III. STANDARD OF REVIEW 2 A district court’s review of a final decision of the Commissioner of Social Security is 3 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 4 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 5 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012); see also Smith v. 6 Kijakazi, 14 F. 4th 1108, 1111 (9th Cir. 2021). “Substantial evidence” means “such relevant 7 evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. 8 Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019) (quotation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a preponderance.” 10 Hill, 698 F.3d 1159 (quotation and citation omitted). In determining whether the standard has 11 been satisfied, a reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 14 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 15 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 16 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 17 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 18 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 19 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 20 U.S. 396, 409-10 (2009). 21 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 22 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 23 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 24 activity by reason of any medically determinable physical or mental impairment which can be 25 expected to result in death or which has lasted or can be expected to last for a continuous period 26 of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the 27 claimant’s impairment must be “of such severity that he is not only unable to do his previous 28 work[,] but cannot, considering his age, education, and work experience, engage in any other kind 1 of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 2 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to determine whether a 4 claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 5 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. §§ 6 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” 7 the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 8 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 10 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 11 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant suffers from “any impairment or 12 combination of impairments which significantly limits [his or her] physical or mental ability to do 13 basic work activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 416.920(c). 14 If the claimant’s impairment does not satisfy this severity threshold, however, the Commissioner 15 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). 16 At step three, the Commissioner compares the claimant’s impairment to severe 17 impairments recognized by the Commissioner to be so severe as to preclude a person from 18 engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 19 the impairment is as severe or more severe than one of the enumerated impairments, the 20 Commissioner must find the claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 21 416.920(d). 22 If the severity of the claimant’s impairment does not meet or exceed the severity of the 23 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 24 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 25 ability to perform physical and mental work activities on a sustained basis despite his or her 26 limitations, 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth 27 steps of the analysis. 28 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 1 claimant is capable of performing work that he or she has performed in the past (past relevant 2 work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of 3 performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 4 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 5 analysis proceeds to step five. 6 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 7 claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 8 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the Commissioner must also 9 consider vocational factors such as the claimant’s age, education, and past work experience. 20 10 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 11 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 12 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 13 concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 20 14 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 15 The claimant bears the burden of proof at steps one through four. Tackett v. Apfel, 180 16 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 17 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 18 work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 19 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 20 V. ALJ’S FINDINGS 21 At step one, the ALJ found Plaintiff did not engage in substantial gainful activity since 22 January 1, 2014,2 the alleged onset date. (AR 909). At step two, the ALJ found Plaintiff had the 23 following severe impairments: degenerative disc disease of the lumbar spine, left shoulder and 24 hip arthritis, migraine headaches, coronary artery disease, and carpal tunnel syndrome. (AR 909). 25 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 26 2 At the hearing held on September 3, 2020, the claimant’s attorney asserted an onset date of “1/1 of ’14.” 27 (AR 936). The ALJ in its decision adopts this date as the date of onset. (AR 906-907). The Commissioner identifies April 22, 2014 as the date of onset. (Doc. No. 26 at 2). The Court finds this 28 ambiguity not relevant for resolving this case. 1 impairments that met or medically equaled the severity of a listed impairment. (AR 913). The 2 ALJ then found that through the date last insured Plaintiff had the RFC 3 to perform light work as defined in 20 CFR 404.15676(b) and 416.967(b) except the claimant is occasionally able to climb ramps 4 and stairs, and is never able to climb ladders, ropes and/or scaffolds. The claimant is frequently able to balance, is occasionally able to 5 kneel or stoop, is never able to crawl or crouch, and is frequently3 able to reach and handle with her left upper extremity. The 6 claimant should not work in environments subjecting her to concrete exposure to respiratory irritants such as gases, dust, smoke and/or 7 fumes, or which would subject her to concentrated exposure to extreme cold or warm temperatures, or humidity and/or wetness. 8 The claimant would require the use of a cane for ambulation and balancing. 9 (AR 914) (emphasis added). At step four, the ALJ found Plaintiff is capable of past work as a 10 medical voucher clerk. (AR 920). On that basis, the ALJ concluded that Plaintiff was not under a 11 disability, as defined in the Social Security Act from January 1, 2014, through the date of the 12 decision. (AR 921). 13 VI. ISSUES 14 Plaintiff’s appeal presents one issue: whether the ALJ’s rejection of the limitations opined 15 by examining physician, Dr. Tomas Rios, were supported by substantial evidence. (See Doc. No. 16 25 at 2; Doc. No. 28 at 2). Plaintiff argues that the ALJ improperly referenced treatment records 17 that had nothing to do with treatment for the wrist pain and provides no explanation for why the 18 ALJ gave greater weight to the opinion of the agency consultative doctor over Dr. Rios, who 19 Plaintiff identifies as the treating physician. (Doc. No. 28 at 2). Plaintiff focuses on use of the 20 left wrist. (See generally Doc. No. 25 at 14-16). 21 VII. DISCUSSION 22 Plaintiff contends the ALJ did not provide substantial reasons for assigning “some 23 weight” to Dr. Rios’ findings that Plaintiff was limited to light work with “left occasionally 24 reaching, handling and fingering and feeling” and assigning “significant weight” to the finding of 25 an agency physicians, Drs. De La Rosa and Pham, who concluded Plaintiff was limited to light 26 27 3 Frequently is defined as occurring from one-third to two-thirds of the time. Social Security Ruling (SSR) 28 83-10. 1 duty capable of “frequently handle and reach” handling. (Doc. No. 25 at 13; Doc. No. 28 at 3-4) 2 (emphasis added). In response, Defendant argues the ALJ’s decision was proper and supported 3 by substantial evidence. (Doc. No. 26 at 8). Defendant notes the ALJ concluded that the: 4 …state agency medical consultant’s opinion for light work with frequent reaching and handling with the left arm merited significant 5 weight because it was supported by and consistent with the overall record. (AR 920). The ALJ gave some weight to consultative 6 examiner Dr. Van Kirk’s opinion for light work with limitations, but did not agree with his opinion that Plaintiff could constantly reach, 7 handle, and finger with the left arm (AR 920). Similarly, the ALJ gave some weight to Dr. Rios’ opinion for light work with 8 limitations, but did not agree with a limitation for only occasional reaching and handling with he left arm (AR 919). 9 (Doc. No. 26 at 8). Defendant argues because the ALJ is responsible for resolving conflicts in the 10 medical evidence, the Court should affirm the finding. (Id.). In Reply, Plaintiff acknowledges 11 she cited the wrong standard of review for medical opinions based on the date Plaintiff filed for 12 disability, but nonetheless argues the ALJ neither provided substantial evidence at the very least, 13 and/or specific and legitimate reasons at the very most. (Doc. No. 28 at 2). Plaintiff contends the 14 Commissioner’s response in opposition combs the medical records and provides post hoc review 15 to support the decision, which the ALJ did not provide. (Id. at 5). 16 This Court reviews the Commissioner’s decision to determine whether it is based on 17 proper legal standards under 42 U.S.C. § 405(g) and whether substantial evidence in the record 18 supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Because Plaintiff applied for 19 disability prior to March 27, 2017, substantial evidence is the requisite standard of review. 20 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison 22 Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks omitted). It is more than a mere 23 scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 625, 630 (9th Cir. 2007) 24 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The court will uphold the ALJ’s 25 conclusion when the evidence is susceptible to more than one rational interpretation.” 26 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). But the court must “consider the 27 record as a whole, weighing both evidence that supports and evidence that detracts from the 28 1 Secretary’s conclusion.” Tackett, 180 F.3d a 1098 (citations omitted). The court “may only 2 consider the reasons provided by the ALJ in the disability determination and ‘may not affirm the 3 ALJ on a ground upon which he did not rely.’” Luther v. Berryhill, 891 F. 3d 872, 875 (9th Cir. 4 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)). “[T]he court will not 5 reverse an ALJ’s decision for harmless error, which exists when it is clear from the record that the 6 ALJ’s error was inconsequential to the ultimate nondisability determination.” Tommasetti, 533 7 F.2d at 1038. 8 Medical Opinion Testimony 9 As stated supra, the ALJ, not this Court, is in the position to act as the finder of fact and 10 weigh the evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (the ALJ is 11 responsible for reviewing the evidence and resolving conflicts or ambiguities in testimony). 12 There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) 13 those who examine but do not treat the claimant (examining physicians); and (3) those who 14 neither examine nor treat the claimant [but who review the claimant's file] (nonexamining [or 15 reviewing] physicians).” Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) 16 (citations omitted). Generally, a treating physician’s opinion carries more weight than an 17 examining physician's, and an examining physician's opinion carries more weight than a 18 reviewing physician’s. Id. If a treating or examining physician’s opinion is uncontradicted, the 19 ALJ may reject it only by offering “clear and convincing reasons that are supported by substantial 20 evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating 21 or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 22 reject it by providing specific and legitimate reasons that are supported by substantial evidence.” 23 Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). “However, the ALJ need not 24 accept the opinion of any physician, including a treating physician, if that opinion is brief, 25 conclusory and inadequately supported by clinical findings.” Bray v. Comm'r of Soc. Sec. 26 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quotation and citation omitted). Thus, the salient 27 question before the Court as framed by Plaintiff is whether the ALJ properly accorded weight to 28 the reviewing and examining opinions, supported by substantial evidence in the record. 1 Here, Plaintiff’s reference to Dr. Rios as a “treating physician” is a misnomer. Dr. Tomas 2 Rios examined Plaintiff at the request of the state agency on September 15, 2014. (AR 919). 3 Approximately four years later, Dale H. Van Kirk examined Plaintiff at the request of the state 4 agency. (AR 919). The Court finds the ALJ set forth specific and legitimate reasons for crediting 5 one medical opinion over another. The ALJ issued a lengthy opinion summarizing the medical 6 record and various findings. (See AR 906-920). The ALJ afforded “some weight” to both Dr. 7 Rios’ and Dr. Van Kirk’s respective opinions based on their examination of the claimant and their 8 findings being consistent with objective findings, but determined more weight should be given to 9 Dr. Pharm and Dr. De La Rosa, the non-examining State Agency physicians, who reviewed “‘a 10 significant portion’ of the evidence of record.” (AR 919-920). 11 Regarding Plaintiff’s left arm or wrist, Dr. Rios noted Plaintiff’s ability to “occasionally 12 reach, handle, finger, and feel.” (AR 919). The ALJ summarized Rios’ findings as follows: 13 On September 15, 2014, Tomas Rios, M.D., examined the claimant at the request of the state agency, and concluded that the claimant 14 can stand and walk up to six hours, sit up to six hours, and lift or carry up to 20 pounds occasionally and 10 pounds frequently. She 15 can occasionally climb and frequently balance, stoop, kneel, crouch or crawl. On the left, she can occasionally reach, handle, finger, and 16 feel. She should be precluded from working around chemicals, dust, fumes, and gases (Exhibit 4F). This opinion is afforded some weight 17 as it is based upon examination of the claimant and is consistent with the objective findings noted. 18 19 (AR 919). Regarding Dr. Van Kirk, the ALJ noted he had determined “claimant’s left shoulder 20 had slight pain over the bicipital groove anteriorly but was able to go through the full range of 21 motion,” but her “elbows and wrists were without pain or difficulty,” and her “fingers and thumbs 22 [were] normal without pain or difficulty.” (AR 919). The ALJ summarized Van Kirk’s findings as 23 follows: 24 Dale H. Van Kirk, M.D., examined the claimant at the request of the state agency on November 10, 2019 (Exhibit 18F). The claimant 25 drove herself to the clinic. She noted she takes a short walk[] outside every day, and watches television 8 hours a day. No limp was 26 detected while walking. Romberg test was normal. Tandem walking was satisfactory. She was able to get up on her toes and heels and 27 squat down and take a few steps. She had normal heel toe gait pattern. She had a cane with her but did not need it during 28 examination. The claimant’s cervical spine had full range of motion 1 without pain or difficulty. There was generalized discomfort in the mid lumbar spine area the greater trochanteric of the hips bilaterally 2 but was able to go through full range of motion of the hips. Examination of the knees was normal bilaterally without pain or 3 difficulty. The claimant’s left shoulder had slight pain over the bicipital groove anteriorly but was able to go through full range of 4 motion. Examination of elbows and wrists were without pain or difficulty. Examination of the fingers and thumbs was normal 5 without pain or difficulty. Straight leg raise test was 90/90 bilaterally in the seated and supine position. Motor strength, muscle bulk and 6 tone was noted to be 5/5 in the bilateral upper and lower extremities including grip strength. Sensation was intact. Diagnosis was chronic 7 lumbosacral musculoligamentous strain/sprain likely associated with degenerative disc disease. Dr. Van Kirk concluded the claimant did 8 not medically need a cane, except for times when she felt unsteady. She could lift 20 pounds occasionally and frequently 10. She can 9 perform occasional postural activities and should not be required to work in cold weather or damp environments (Exhibit 18F). 10 11 (AR 920). The ALJ explained he was giving the opinion “some weight” based on examination 12 and findings that “support the determination that claimant could perform a range of light work.” 13 (AR 920). 14 The ALJ gave “great weight” to the non-examining agency physicians and summarized 15 their findings as follows: 16 Dr. Pharm, the non-examining State agency physician who reviewed the documentary evidence on September 30, 2014, concluded that 17 the claimant could perform light work, indicating the claimant could frequently climb ramps or stairs, balance, stoop, kneel, crouch and 18 crawl. She could occasionally climb ladders, ropes or scaffolds and occasionally reach overhead with the left upper extremity (Exhibit 19 2A). Dr. De La Rosa, the non-examining State agency physician who reviewed the documentary evidence on February 2, 2015, 20 concluded that the claimant could perform light work. She could frequently climb ramps or stairs, balance, stoop, kneel, crouch or 21 crawl. She could frequently handle and reach. She can occasionally climb ladders, ropes or scaffolds. She should avoid concentrated 22 exposure to fumes, odors, gases, and poor ventilation. She should avoid work around chemicals, dust, fumes and gases (Exhibit 6A). 23 The undersigned affords the opinion significant weight. This opinion is consistent with and supported by treatment notes discussed in 24 detail above. 25 (AR 920). The “treatment notes discussed in detail above” referred to by the ALJ included a 26 thorough review of medical record. (See generally AR 909-919). The ALJ noted that the 27 claimant was no longer receiving treatment for her trigger finger or pain because the injections to 28 the wrist and hands ended years ago because, according to claimant, they were ineffective. (AR 1 910). The ALJ specifically noted “benign findings” with respect to Plaintiff’s hand and wrist 2 complaints. (AR 911) (citing 24F, page 181). The ALJ further noted that this medical evidence 3 was consistent with Dr. Van Kirk’s objective examination that did not support more restrictive 4 upper extremity limitations. The ALJ pointed to specific evidence in the record: 5 Dr. Kirk in 2019 noted that Tinel’s test was negative for irritability of the median nerve at carpal tunnel, bilaterally, and at the ulnar 6 never at Guyon’s canal. Tinel’s test for irritability at the cubital tunnel was negative at the elbows bilaterally, and Phalen’s test was 7 negative after 60 seconds for carpal tunnel syndrome. No pain was noted in the hands her wrists during examination and no difficulty 8 was noted during range of motion testing (Exhibit 18F). LAGS Medical Center records indicate the pain levels have largely been 9 controlled, and issues such as atrophy or heightened immobility that would warrant a more restrictive residual functional capacity than 10 determined are not supported (Exhibit 24F). As the court remand decision notes a need to evaluate the impact of claimant’s pain on 11 function, the finding that pain levels have been controlled warrant against further limitations based exclusively on pain. 12 13 (AR 911). The medical record the ALJ referenced demonstrated Plaintiff presented to the 14 medical appointment with chief complaints of “back and wrist pain,” but upon examination had 15 “no tenderness to palpation over wrist joint, or TFCC,” and had negative Median Flexion 16 compression test, negative Tinnel’s sign over median nerve at wrist, negative Phalen’s test, 17 negative Finkelstein test, no tenderness, and no weakness in the hand grip, among other things. 18 (See 24F at 179-181). Further, specifically with regard to Plaintiff’s left wrist, the ALJ notes 19 Plaintiff had “normal range of motion and normal strength” on September 3, 2016 and 20 “electrodiagnostic testing of the claimant [in] March 2018 revealed a normal bilateral upper EMG 21 examination with no evidence of any other nerve entrapment neuropathies or cervical 22 radiculopathy. . . .” (AR 917; citing to 24F at 253). This was a specific and legitimate reason, 23 supported by substantial evidence, for the ALJ to reject the limitations opined by Drs. Rios. 24 Plaintiff posits that the ALJ improperly referenced medical records that did not concern 25 Plaintiff’s wrist and directs the Court to certain pages of the records to support the limited 26 mobility of Plaintiff’s left hand or wrist pain. (Doc. No. 25 at 14-15)(citing in support of left 27 wrist issues 3F/27, 5F/3, 9F/2, 24F/253). A review of the ALJ’s opinion shows the ALJ did 28 review these records and cite to them. (AR 917) (citing 1F, 3F, 9F, 16F, 24F). 1 The Court does not make independent factual determinations, re-weigh the evidence or 2 | substitute its decision for that of the ALJ. Tackett, 180 F.3d at 1098. To the contrary, a 3 || reviewing court must defer to an ALJ’s assessment if it is supported by substantial evidence. 42 4 | U.S.C. § 405(g). The Court finds the ALJ articulated specific and legitimate reasons supported 5 || by substantial evidence for assigning only “some weight” to Dr. Rio’s opinion. Based on a 6 | review of the record, the ALJ did not commit error, harmless or otherwise, by evaluating the 7 | record in totality before concluding that Plaintiff is not disabled as defined by the Social Security 8 | Act. The Commissioner’s decision is due to be affirmed. 9 Accordingly, it is RECOMMENDED: 10 Plaintiff's Moton for Summary Judgment be DENIED and the Commissioner of Social 11 | Security’s Cross Motion for Summary Judgment be GRANTED and the Commissioner’s 12 || decision be AFFIRMED for the reasons set forth above. 13 NOTICE TO PARTIES 14 These findings and recommendations will be submitted to the United States district judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 16 | days after being served with these findings and recommendations, a party may file written 17 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” Parties are advised that failure to file objections within the 19 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 20 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 Dated: _ November 29, 2022 oe Zh. Sareh Back 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12