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

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 MARYAM SALAM GEGAN, No. 1:22-cv-00005-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF 7 JUDGMENT IN FAVOR OF DEFENDANT KILOLO KIJAKAZI, acting COMMISSIONER OF SOCIAL SECURITY 8 Commissioner of Social Security, AND AGAINST PLAINTIFF 9 (Doc. 19, 23) Defendant. 10 11 I. Introduction 12 Plaintiff Maryam Salam Gegan (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 14 disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the United States 16 Magistrate Judge.1 Docs. 19, 23. The Court finds that substantial evidence and applicable law 17 support the ALJ’s decision. Plaintiff’s appeal is therefore Denied. 18 II. Factual and Procedural Background2 19 On February 14, 2020 Plaintiff applied for disability insurance benefits alleging a disability 20 onset date of June 15, 2017. The Commissioner denied the applications initially on April 24, 2020 21 and on reconsideration on July 14, 2020. Plaintiff requested a hearing which was held before an 22 Administrative Law Judge (the “ALJ”) on April 6, 2021. AR 32–53. On April 30, 2021 the ALJ 23 issued an unfavorable decision. AR 13–31. The Appeals Council denied review on October 28, 24 2021. AR 1–6. On December 31, 2021, Plaintiff filed a complaint in this Court. 25 26 27 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 7 and 13. 28 2 The Court will not exhaustively summarize the record as the parties are well informed of the same. Specific portions will be referenced when relevant to the parties’ arguments. III. The Disability Standard 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 6 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 7 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 9 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 10 When performing this analysis, the court must “consider the entire record as a whole and 11 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 12 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 13 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 14 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 15 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 16 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 17 ultimate non-disability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 18 To qualify for benefits under the Social Security Act, a plaintiff must establish that 19 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 20 last for a continuous period of not less than twelve months. 42 U.S.C. § 21 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 22 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 23 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 24 he would be hired if he applied for work. 25 42 U.S.C. §1382c(a)(3)(B). 26 To achieve uniformity in the decision-making process, the Commissioner has established a 27 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 28 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 2 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 3 gainful activity during the period of alleged disability, (2) whether the claimant had medically 4 determinable “severe impairments,” (3) whether these impairments meet or are medically 5 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 6 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 7 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 8 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 9 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 10 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 11 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 12 IV. The ALJ’s Decision 13 At step one the ALJ found that Plaintiff did not engage in substantial gainful activity during 14 the period from her alleged disability onset date of June 15, 2017 through her date last insured of 15 June 30, 2019. AR 19. At step two the ALJ found that Plaintiff had the following severe 16 impairments: lumbar spine disc protrusion; lumbar spine multi-level facet arthropathy; and 17 hemorrhoids. AR 19. The ALJ also found at step two, in relevant part, that Plaintiff’s adjustment 18 disorder with anxiety was non-severe. AR 20–22. At step three the ALJ found that Plaintiff did 19 not have an impairment or combination thereof that met or medically equaled the severity of one 20 of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 22–23. 21 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 22 concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 416.967(b) with 23 the following restrictions: occasional climbing; balancing without limitation; frequent kneeling and 24 crouching; occasional stooping and crawling; frequent bilateral overhead reaching; at will 25 alternation between sitting and standing with no more than 5% off task activity for position changes. 26 AR 23–26. 27 At step four the ALJ found that Plaintiff could perform her past relevant work as a cashier 28 and patient sitter as generally performed. AR 26–27. Accordingly, the ALJ found that Plaintiff was not disabled at any time between her alleged disability onset date of June 15, 2017 through her 2 date last insured of June 30, 2019. AR 27. 3 V. Issues Presented 4 Plaintiff asserts three claims of error: 1) that the ALJ erred in finding her mental impairment 5 non-severe, in rejecting the contrary opinions of Drs. Chandler and Diego, in omitting any related 6 limitations from the RFC, and in relying on the non-examining opinions in reaching that 7 conclusion; 2) that the ALJ erred in finding Plaintiff could perform light work notwithstanding her 8 back pain, and in rejecting Dr. Diego’s related opinion; and 3) that the ALJ failed to offer clear and 9 convincing reasons for rejecting Plaintiff’s testimony. 10 A. The Mental Impairment and Related Opinions 11 1. Applicable Law 12 At step two of the five-step process, plaintiff has the burden to provide evidence of a 13 14 medically determinable physical or mental impairment that is severe and that has lasted or can be 15 expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 16 1002, 1004–05 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). A medically determinable 17 physical or mental impairment “must result from anatomical, physiological, or psychological 18 abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic 19 techniques,” and will not be found based solely on the claimant’s statement of symptoms, a 20 21 diagnosis or a medical opinion. 20 C.F.R. § 404.1521. 22 Step two is “a de minimis screening device [used] to dispose of groundless claims.” Smolen 23 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A “severe” impairment or combination of 24 impairments is one that significantly limits physical or mental ability to do basic work activities. 25 20 C.F.R. § 404.1520. An impairment or combination of impairments should be found to be “non- 26 severe” only when the evidence establishes merely a slight abnormality that has no more than a 27 minimal effect on an individual’s physical or mental ability to do basic work activities. Webb v. 28 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 20 C.F.R. §§ 404.1522, 416.922. “Basic work 2 activities” mean the abilities and aptitudes necessary to do most jobs, including physical functions 3 such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, and 4 5 mental functions such as the ability to understand, carry out, and remember simple instructions, 6 deal with changes in a routine work setting, use judgment, and respond appropriately to supervisors, 7 coworkers, and usual work situations. 20 C.F.R. § 404.1522, 416.922. 8 When reviewing an ALJ’s findings at step two the Court “must determine whether the ALJ 9 had substantial evidence to find that the medical evidence clearly established that [the claimant] 10 did not have a medically severe impairment or combination of impairments.” Webb, 433 F.3d at 11 687 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference usually 12 13 accorded to the Secretary’s application of regulations, numerous appellate courts have imposed a 14 narrow construction upon the severity regulation applied here.”)). 15 Before proceeding to step four, the ALJ must first determine the claimant’s residual 16 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 17 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 18 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 19 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 20 21 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 22 A determination of residual functional capacity is not a medical opinion, but a legal decision 23 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 24 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 25 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 26 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 27 28 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 2 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 3 such as medical records, lay evidence and the effects of symptoms, including pain, that are 4 5 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 6 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical 7 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 8 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 9 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 10 F.2d 1403, 1408 (9th Cir. 1986)). The RFC need not mirror a particular opinion; it is an assessment 11 formulated by the ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). 12 13 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 14 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight, 15 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 16 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating 17 any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 18 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 19 Supportability and consistency are the two most important factors and the agency will articulate 20 21 how the factors of supportability and consistency are considered. Id. 22 2. Analysis 23 At step two the ALJ found Plaintiff’s impairment of adjustment disorder with anxiety was 24 non-severe. At the outset, Plaintiff challenges the ALJ’s non-severity finding insofar as it was 25 predicated on the ALJ’s rejection of the contrary opinions of the consultative psychiatric examiner 26 (Dr. Chandler) and of Plaintiff’s physician (Dr. Diego), rejections which Plaintiff contends were 27 28 improper. On October 29, 2018 Dr. Chandler conducted a consultative psychiatric examination of 2 Plaintiff at the request of the agency. AR 323–26. Dr. Chandler opined, in relevant part, that 3 Plaintiff had moderate difficulty maintaining attention and concentration and moderately impaired 4 5 ability to interact with the public, supervisors, and co-workers. The ALJ found that the opinion 6 was supported by explanation based upon the examination of the claimant, but the opinion was not 7 consistent with Plaintiff’s minimal mental health treatment and the longitudinal record showing 8 psychiatric findings were within normal limits. AR 21. 9 Plaintiff disputes the sufficiency of the ALJ’s finding regarding the lack of mental health 10 treatment. Plaintiff contends that “The Ninth Circuit has expressly held that a claimant’s failure to 11 seek mental health care cannot be used as a reason for rejecting an examining psychologist’s 12 13 opinion.” Br. at 12 (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). However, that 14 was not the express holding of Nguyen as explained below. 15 The ALJ in Nguyen rejected an examining opinion because the record “was devoid of any 16 findings or complaints relative to a mental disorder of the claimant during the period of May 1988 17 until November 18, 1991, when the claimant was examined by a psychologist, R. Wayne Brown, 18 Ph.D.,2 at the request of the claimant's attorney.” Id. The Ninth Circuit found, “This is not a 19 legitimate basis on which to discount Dr. Brown's opinion that claimant has a severe depressive 20 21 disorder.” Id. The Ninth Circuit partially faulted the ALJ’s reasoning insofar as the ALJ implied 22 the examining physician’s opinion should be discounted because the examination was arranged by 23 the claimant’s attorney. The Ninth Circuit rejected the idea that the attorney had an undue influence 24 on the examiner’s opinion by simply making the referral. Id. Those facts are not applicable here. 25 Second, the question at issue in Nguyen was the presence or absence of a mental disorder that 26 satisfied listing 12.05, not the severity and functional impact thereof.3 Third, the Ninth Circuit in 27 28 3 Despite describing the disorder in question as a “severe depressive disorder” the word severe as used in Nguyen Nguyen applied the more demanding “specific and legitimate reasoning” standard to the ALJ’s 2 analysis. In April of 2022, the Ninth Circuit clarified in Woods that this standard no longer applies 3 to applications filed after the March 27, 2017 regulation revisions: 4 5 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on 6 account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling weight, 7 to any medical opinion(s) ..., including those from your medical sources.”). Our requirement that ALJs provide “specific and legitimate reasons” for rejecting a 8 treating or examining doctor's opinion, which stems from the special weight given 9 to such opinions, see Murray, 722 F.2d at 501–02, is li kewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when 10 discrediting evidence from certain sources necessarily favors the evidence from those sources—contrary to the revised regulations. 11 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 12 13 Fourth, as Defendant observes, in Molina the Ninth Circuit drew a distinction between instances 14 where the evidence suggests the failure to seek mental health treatment was attributable to the 15 mental impairment as opposed to personal preference. Resp. at 6, Doc. 23 (citing Molina v. Astrue, 16 674 F.3d 1104, 1113-1114 (9th Cir. 2012)). Here, there is no reason to believe the failure to seek 17 mental health treatment was attributable to Plaintiff’s mental health impairment as opposed to 18 personal preference given she consistently pursued care for her physical impairments. 19 The ALJ also rejected Dr. Chandler’s opinion as inconsistent with the longitudinal record 20 21 showing psychiatric findings were within normal limits. AR 21. Plaintiff argues “This finding is 22 error because Dr. Chandler is the only medical source and the only psychologist who performed a 23 detailed psychiatric examination of Plaintiff.” Br. at 13. Plaintiff implies that detailed psychiatric 24 examination findings performed by a psychiatric professional are the only findings relevant when 25 assessing psychiatric limitations. But Plaintiff does not support that proposition, and the argument 26 27 28 does appear to be an adjective, not the social security term of art used at step two. At issue was the examiner’s opinion that Plaintiff had an affective disorder that met Listing 12.04 runs counter to Plaintiff’s subsequent contention that the examination notes and opinions of her 2 primary care doctor, Dr. Diego (who is not a psychiatric professional and performed no detailed 3 psychiatric examination), should have been given more credence. 4 5 Granted, the ALJ’s generalization about “psychiatric findings within normal limits” gives a 6 somewhat mistaken impression that the cited records were replete with psychiatric findings of the 7 same type as Dr. Chandler’s comprehensive mental status examination. As Plaintiff emphasizes, 8 Dr. Chandler’s examination was the only comprehensive mental status examination and the only 9 examination by a mental health professional. A more accurate statement the ALJ could have made 10 is that Plaintiff’s treatment records for her physical conditions noted normal findings on the limited 11 psychiatric topics they addressed. 12 13 Relatedly, in assessing the four broad areas of mental functioning (the “paragraph B 14 criteria”) the ALJ found only mild limitations in each. As to concentration, persistence, and pace, 15 the ALJ noted the results of cognitive testing and further noted that “treatment notes indicated that 16 the claimant displayed normal attention span and concentration.” AR 20 (citing Exhibit 4F/41, 44, 17 47, 50; 19F/44, 48, 52, 56, 60, 64). 18 It is worth distinguishing the two components of the ALJ’s reasoning, only one of which 19 was persuasive. In support of the ALJ’s conclusion that Plaintiff had only mild concentration 20 21 limitations, the ALJ cites Dr. Chandler’s own examination findings which noted that Plaintiff could 22 recite a minimum of four digits forward, but only three digits in reverse, and that she could spell 23 the word “world” forward but made two errors when spelling the word in reverse. 24 Dr. Chandler was presumably aware of the results of the cognitive tests she herself rendered, 25 and concluded that the errors on those two cognitive tests translate into a moderate limitation in 26 attention, not a mild limitation as the ALJ found. 27 28 However, Dr. Chandler’s identified limitation regarding concentration was also predicated on a generalized observation of Plaintiff’s concentration level during the visit: “the claimant had 2 moderate difficulty maintaining attention and concentration for the duration of the evaluation.” AR 3 325. In that respect, Dr. Chandler’s opinion is undermined by the numerous instances the ALJ 4 5 cited of office visits noting normal attention span and concentration. AR 491, 501, 517, 527, 532, 6 537, 542, 547, 551, 555, 559, 563. It would seemingly be inappropriate to discount those 7 generalized observations regarding concentration level simply because the office visits were for 8 purposes other than mental health treatment. Plaintiff does not acknowledge or dispute the ALJ’s 9 applicable reasoning or cite any counterexamples on the subject of attention and concentration. 10 The ALJ also rejected Dr. Chandler’s opinion that Plaintiff had moderate limitations in 11 interacting with the public, supervisors, and co-workers. Relatedly, in finding only a mild 12 13 limitation in social interaction at step two, the ALJ explained that treatment notes reflect she was 14 “cooperative,” in support of which the ALJ string cited the same exhibits cited above. A review of 15 the ALJ’s cited examination notes reveals that “cooperative” was not noted as a “psychiatric” 16 finding. Rather, it is listed under “constitutional” alongside “well developed, well nourished, in no 17 acute distress.” See, e.g., 542, 546, 551. In other words, the ALJ cited routine office treatment 18 notes outside the mental health context to reach conclusions about Plaintiff’s mental impairments. 19 The ALJ’s reasoning here is not persuasive. 20 21 Notwithstanding, the ALJ’s broader reasoning (minimal mental health treatment with 22 psychiatric findings within normal limits) is on balance sufficiently substantial evidence to support 23 the ALJ’s conclusion that Plaintiff’s adjustment disorder with anxiety caused no more than mild 24 functional limitations and therefore not severe. 25 Plaintiff also underscores the opinion of her primary care physician, Dr. Diego, that she had 26 no useful ability to maintain attention/concentration and no useful ability to deal with workplace 27 28 stress. AR 410–411. The ALJ rejected this opinion for the same reasons noted above in addition to the fact that Plaintiff’s PHQ-9 score was negative for depression. 2 Plaintiff disputes the sufficiency of the ALJ’s reasoning for the same reasons discussed 3 above. As to the concentration limitations, the Court finds the ALJ’s reasoning sufficient for the 4 5 same reasons discussed above. Plaintiff disputes the relevance of the PHQ-9 scores because Dr. 6 Diego attributed the mental limitations to anxiety, not to depression. AR 407. The point is 7 reasonably well taken. As the ALJ noted, however, Plaintiff herself did attribute her concentration 8 limitations in part to post-partum depression. AR 323. Thus, in assessing only mild concentration 9 limitations it was not unreasonable for the ALJ to also observe that Plaintiff’s PHQ-9 score was 10 negative for depression. 11 With respect to Dr. Diego’s identified limitation in handling workplace stress, this was also 12 13 supported by Dr. Chandler who noted Plaintiff had moderate difficulty enduring the stress of the 14 interview. As the ALJ noted, however, psychiatric findings (albeit limited) were otherwise within 15 normal limits. Further, a review of the record reveals that while Plaintiff reported stress on some 16 occasions (AR 491, 517, 532, 534, 539, 551), she denied stress on other occasions (AR 501, 527, 17 537, 542, 546, 555, 559). 18 Plaintiff contends the ALJ’s most glaring error with respect to the consistency factor was 19 the ALJ’s failure to recognize that Drs. Chandler and Diego’s opinions were consistent with each 20 21 other. Plaintiff contends this violates the regulations, chiefly 20 C.F.R. § 404.1520c(c)(2). The 22 cited regulation does require the ALJ to articulate how she considered the consistency factor. The 23 ALJ did so here. Further, the ALJ accurately and comprehensively set forth the contents of the two 24 doctors’ opinions in succession. The ALJ’s discussion self-evidently reflects that the doctors 25 identified many of the same restrictions and were therefore consistent with each other in those 26 respects. The fact that the ALJ did not explicitly call attention to that is not harmful error. Although 27 28 the consistency between the two opinions adds somewhat to their persuasiveness, that does not undermine the ALJ’s conclusion that neither opinion was consistent with the longitudinal record 2 which reflected minimal mental health treatment and psychiatric findings within normal limits. 3 Plaintiff’s final argument with respect to the psychiatric opinion evidence is that the ALJ 4 5 harmfully erred in adopting the non-examining opinions who reviewed Plaintiff’s file at the initial 6 and reconsideration levels. The discussion breaks no new ground distinct from the argument that 7 the ALJ erred in rejecting the examining opinions of Drs. Chandler and Diego. 8 Thus, substantial evidence supports the ALJ’s conclusion at step two that Plaintiff’s 9 adjustment disorder with anxiety was non-severe, and substantial evidence supported the ALJ’s 10 rejection of the contrary opinions of Drs. Chandler and Diego. 11 B. Plaintiff’s Back Impairment and Dr. Diego’s Related Opinion 12 13 The ALJ assessed an RFC for light exertional work which Plaintiff contends is unsupported 14 by the record. Plaintiff contends the ALJ was equally unsupported in rejecting Dr. Diego’s opinion 15 which stated, in relevant part, that Plaintiff could sit for 10 minutes at a time for a total of less than 16 2 hours and could stand/walk for 5 minutes at a time for a total of less than 2 hours in an 8-hour 17 workday; she needed at will position changes; would need 6 unscheduled 15-minute breaks; needed 18 an assistive device to stand and walk; could never lift 10 pounds, never perform postural activities; 19 had reaching limitations; would be off tasks 25 per cent or more of the workday and would miss 20 21 more than 4 workdays a month because of her back pain. AR 408-10. 22 Plaintiff emphasizes a variety of examination and diagnostic findings which she suggests 23 the ALJ did not fully capture and which she contends support greater limitations in the RFC, 24 including: 1) Dr. Brox’s workers compensation examination noting guarded and cautious gait, 25 reduced lumbar ROM, and positive Patrick’s test (AR 362-79); 2) Dr. Diego’s exam noting lumbar 26 tenderness and painful ROM (AR 298, 301, 307-08); 3) pain management nurse practitioner’s 27 28 notation of reduced ROM, positive Patrick’s test, positive facet loading test, and medial branch block administration (AR 425–27); 4) DPT Van Klaveren’s observations of slow gait, stiffness, 2 guarding at all times and poor prognosis (AR 437); 5) lumbar MRI showing a right foraminal and 3 extra disc protrusion at L4-L5 (AR 317, 378). 4 5 The ALJ pin-cited most of the specific examples Plaintiff does, and in the instances she 6 didn’t the ALJ nevertheless did acknowledge a representative sample of records illustrating the 7 same concepts. The ALJ acknowledged persistent complaints of radicular low back pain following 8 a June 2017 work injury. AR 24 (citing Ex. 3F/10; 4F/40, 43, 46, 49; 15F/12; 16F/2; 19F/41, 58). 9 The ALJ acknowledged lumbar spine tenderness to palpation and pain with flexion and extension 10 but that the examinations of record were otherwise within normal limits, including a normal gait 11 and station. AR 24 (citing Ex. 4F/41, 44, 50; 19F/44, 48, 52). The ALJ discussed Dr. Brox’s 12 13 workers compensation examination, acknowledged cautious gait and reduced lumbar ROM, but 14 noted countervailing findings including getting up and down from the examination table without 15 assistance, displayed satisfactory heel to toe walking, no assistive device use, normal reflexes, 16 sensation, and 5/5 strength. AR 24 (citing Ex. 7F/10, 11, 17, 20). 17 Plaintiff suggests the ALJ overlooked the MRI results, but the ALJ did describe the MRI 18 results in detail: “The claimant’s May 21, 2018 lumbar spine imaging showed mild facet 19 arthropathy and right foraminal and extra foraminal disc protrusion at L4-L5 with mild foraminal 20 21 and extra foraminal encroachment” (Exhibit 3F/7, 82), and correctly noted the findings were mild. 22 AR 251. 23 Consistent with the physical therapy records Plaintiff emphasizes noting poor prognosis, 24 the ALJ noted Plaintiff attended physical therapy with minimal improvement. AR 24 (citing 25 (Exhibits 11F; 14F; 15F; 19F/21)). The ALJ also noted that claimant reported relief from some 26 pain medication but not from others, and that she declined injections. AR 24 (citing Ex. 19F/21). 27 28 The ALJ also considered evidence post-dating the date last insured to the extent that it was probative of the claimant’s functioning prior to the date last insured including: 1) ongoing 2 complaints of radicular low back pain (Exhibits 12F/7; 14F/3, 9; 16F/2; 18F/4; 19F/21, 31, 36); 2) 3 complaints of difficulty walking but denial of any loss of sensation or tingling (Exhibit 12F/8); 3) 4 5 physical examination findings revealed tenderness to palpation of her lumbar spine, decreased spine 6 range of motion, a positive Patrick Test, and a positive facet loading test, but normal deep tendon 7 reflexes, intact sensation, and five out of five motor strength throughout (Exhibits 12F/9; 14F/4, 8 12; 19F/24); 4) she generally displayed normal gait and stability (Exhibit 19F/34, 39); 5) updated 9 lumbar spine imaging continued to reflect mild findings including February 2020 lumbar spine x- 10 ray showing mild facet arthropathy, but no advanced intervertebral disc narrowing (Exhibit 12E/9) 11 and lumbar MRI dated August 14, 2020 showing mild right foraminal encroachment at L4-L5 due 12 13 to an asymmetric disc protrusion and mild facet joint degeneration throughout the lumbar spine 14 (Exhibit 12E/7). 15 The ALJ further discussed as follows: 16 At the neurospinal examination in November 2020, the medical provider noted that 17 the claimant complained of sharp pain, which was better when walking (Exhibit 17F/7). The doctor noted that the examination was difficulty because the claimant 18 had a lot of symptom amplification (Exhibit 16F/3). The claimant demonstrated decreased lumbar spine range of motion with numbness in her bilateral anterior and 19 lateral thighs and a slow limping gait, but she had normal deep tendon reflexes and a negative straight leg raise bilaterally (Exhibit 16F/3). The claimant demonstrated 20 apparent five out of five muscle strength with breakaway strength in all muscle 21 groups of both legs (Exhibit 16F/3). The provider recommended epidural steroid injections or pool therapy, but determined that the claimant was unlikely to require 22 surgery (Exhibit 16F/3). 23 With the exception of medial branch blocks, the ALJ appears to have covered every 24 abnormality Plaintiff discusses and even noted some additional abnormalities Plaintiff did not 25 discuss. The ALJ also noted extensive countervailing findings on a variety of subjects indicative 26 of functionality including gait, tenderness, range, strength, reflexes and sensation. 27 28 In sum, Plaintiff had mild spinal pathology on repeat imaging studies and mixed, normal, or mild findings on exam. The ALJ assessed a fairly restrictive RFC accommodating Plaintiff’s 2 lumbar spine impairment in several respects, including light work (no more than 10 to 20 pounds 3 of lifting), at will position changes, and postural restrictions including no more than occasional 4 5 stooping. As here, when the evidence could reasonably support two conclusions, the court “may 6 not substitute its judgment for that of the Commissioner” and must affirm the decision. Jamerson 7 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). The ALJ was justified in rejecting 8 the extreme limitations identified by Dr. Diego as inconsistent with the largely mild physical 9 examination and diagnostic findings. 10 Plaintiff concludes the argument with a half page section devoted to the concept that the 11 ALJ erred because “The ALJ’s RFC is consistent with no medical source opinion” and the ALJ 12 13 simply split the difference between the non-examining opinions on the one hand (who found no 14 severe impairment related to her spine) and Dr. Diego’s opinion on the other. The argument is 15 unavailing. The RFC need not mirror any particular opinion; it is an assessment formulated by the 16 ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). 17 C. Plaintiff’s Testimony 18 1. Applicable Law 19 The ALJ is responsible for determining credibility,4 resolving conflicts in medical 20 21 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 22 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental 23 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 24 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 25 26 4 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 27 subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor 28 to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 16-3p at 1- 2. subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 3 medical evidence of an impairment that could reasonably be expected to produce some degree of 4 5 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 6 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 7 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 8 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 9 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 10 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p 11 at *10. Subjective pain testimony “cannot be rejected on the sole ground that it is not fully 12 13 corroborated by objective medical evidence,” but the medical evidence “is still a relevant factor in 14 determining the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 15 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). 16 17 2. Analysis 18 Plaintiff underscores the following statements from her testimony: because of her back pain 19 she had to alternate between sitting, standing, walking and lying down; she had to spend about half 20 21 of her day in bed; her family came to her house every day to help her; she was unable to take care 22 of her children because of her back pain, so a healthcare provider took care for her children for 10 23 hours a day under a Stanislaus County program; she had symptoms of anxiety, including 24 nervousness, fearfulness, fatigue, tension and edginess and she not get along with people (AR 46, 25 47, 323). 26 Plaintiff then quotes the ALJ’s boilerplate language at the outset of the RFC analysis that 27 28 “the claimant’s statements concerning the intensity, persistence, and limiting affects of her symptoms are not entirely consistent with the medical evidence and other evidence for the reasons 2 explained in this decision.” Plaintiff’ contends that all that follows is the ALJ’s discussion of the 3 medical evidence which is insufficient because: 1) the ALJ was required to identify the testimony 4 5 she wished to reject and link that testimony to particular parts of the record, and 2) even if the ALJ 6 had made legally adequate findings regarding the objective medical record, the ALJ’s rejection of 7 her testimony cannot be predicated on the objective medical evidence alone. 8 No controlling precedent has held in so many words that an ALJ must perform the matching 9 exercise Plaintiff contends is required. The Ninth Circuit has offered dicta on some occasions 10 supporting Plaintiff’s view. See, e.g. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998) (“General 11 findings are insufficient; rather, the ALJ must identify what testimony is not credible and what 12 13 evidence undermines the claimant's complaints.”). More recently, the Ninth Circuit has offered 14 dicta suggesting otherwise. See, e.g., Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (noting 15 Ninth Circuit caselaw “do[es] not require ALJs to perform a line-by-line exegesis of the claimant’s 16 testimony . . .”). 17 Plaintiff’s one page analysis breaks little new ground independent of the arguments above. 18 Save for the sitting, standing, and walking limitations, the testimony highlighted above was fairly 19 non-concrete. Plaintiff offers no theory on how those statements (such as her difficulty caring for 20 21 children) should have been incorporated into the RFC in the form of concrete restrictions 22 particularly under circumstances where the ALJ has already assessed a fairly restrictive RFC. 23 As to the sitting, standing, and walking limitations, the testimony overlaps to a large extent 24 with the limitations identified by Dr. Diego, who identified more detailed and extensive restrictions 25 than Plaintiff on more subjects, including that Plaintiff can sit for 10 minutes at a time for a total of 26 less than 2 hours and could stand/walk for 5 minutes at a time for a total of less than 2 hours in an 27 28 8-hour workday; she needed at will position changes; would need 6 unscheduled 15-minute breaks; needed an assistive device to stand and walk; could never lift 10 pounds, never perform postural 2 activities; had reaching limitations; would be off tasks 25 per cent or more of the workday and 3 would miss more than 4 workdays a month because of her back pain. AR 408-10. 4 5 As discussed above, the ALJ”s reasoning for rejecting that opinion was well grounded in 6 the objective medical record and applies with equal force to Plaintiff’s testimony (though a more 7 heightened standard of review applies to the latter which cannot be predicated solely on the 8 objective medical record). Further, inconsistency with the objective medical evidence was not the 9 only reason identified by the ALJ that would support discrediting the Plaintiff’s testimony, though 10 the additional reasoning offered requires the reader to draw some inferences the ALJ did not overtly 11 make. Although the ALJ did not make an overt finding of malingering, as Defendant emphasizes, 12 13 the ALJ did note a neuro-spinal examination noting “a lot of symptom amplification.” AR 25 14 (citing Exhibit 16F/3, AR 469). 15 Defendant further emphasizes the notation that Plaintiff had “breakaway strength” in all 16 muscle groups of her legs and cites cases noting “give away weakness” (where the patient initially 17 offers resistance but then the limb suddenly “gives way”) and is suggestive of malingering. 18 The neuro-spinal examiner’s reference to “break away strength” probably does not have the 19 same meaning as the references in Defendant’s cited caselaw to “give away weakness.” Those are 20 21 seemingly polar opposites. Break away strength likely means full strength sufficient to overcome 22 the examiner’s resistance, which is not indicative of malingering. The finding which is suggestive 23 of malingering is the examiner’s reference to “a lot of symptom amplification.” AR 469. Although 24 this is not an exceptionally persuasive reason to reject Plaintiff’s testimony, it sufficiently 25 buttressed the ALJ’s analysis of the objective medical record. The ALJ committed no error with 26 respect to Plaintiff’s testimony. 27 28 VI. Order For the reasons stated above, the Court finds that substantial evidence and applicable law 2 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from 3 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court 4 5 is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social 6 Security, and against Plaintiff Maryam Salam Gegan. 7 8 IT IS SO ORDERED. 9 Dated: May 6, 2023 /s/ Gary S. Austin 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28