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

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 JOHN JOSEPH VERREAULT, No. 1:21-cv-01648-GSA 5 Plaintiff, 6 v. OPINION & ORDER DIRECTING ENTRY 7 OF JUDGMENT IN FAVOR OF KILOLO KIJAKAZI, acting DEFENDANT COMMISSIONER OF 8 Commissioner of Social Security, SOCIAL SECURITY AND AGAINST PLAINTIFF 9 Defendant. (Doc. 16, 17) 10 11 12 I. Introduction 13 Plaintiff John Joseph Verreault (“Plaintiff”) seeks judicial review of a final decision of the 14 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his applications for 15 disability insurance benefits and supplemental security income pursuant to Titles II and XVI, 16 respectively, of the Social Security Act. The matter is before the Court on the parties’ briefs which 17 were submitted without oral argument to the United States Magistrate Judge.1 Docs. 16–18. After 18 reviewing the record the Court finds that substantial evidence and applicable law support the ALJ’s 19 decision. Plaintiff’s appeal is therefore denied. 20 II. Factual and Procedural Background2 21 On December 27, 2017 Plaintiff applied for disability insurance benefits and supplemental 22 security income alleging a disability onset date of January 1, 2017 (which was subsequently 23 amended to November 1, 2013). The applications were denied initially on March 13, 2018 and on 24 reconsideration on July 25, 2018. Plaintiff requested a hearing which was held before an 25 Administrative Law Judge (the “ALJ”) on April 1, 2020. AR 42–89. On July 16, 2020 the ALJ 26 27 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 8 and 10. 2 The Court has reviewed the relevant portions of the administrative record including the medical, opinion and 28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant portions will be referenced in the course of the analysis below when relevant to the parties’ arguments. issued a decision denying Plaintiff’s application. AR 21–41. The Appeals Council denied review 2 on May 5, 2021. AR 15–20. On November 12, 2021, Plaintiff filed a complaint in this Court. 3 III. The Disability Standard 4 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 5 Commissioner denying a claimant disability benefits. “This court may set aside the 6 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 7 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 8 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 9 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 10 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 11 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 12 When performing this analysis, the court must “consider the entire record as a whole and 13 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 14 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 15 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 16 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 17 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 18 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 19 ultimate non-disability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 20 To qualify for benefits under the Social Security Act, a plaintiff must establish that 21 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 22 last for a continuous period of not less than twelve months. 42 U.S.C. § 23 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 24 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 25 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 26 he would be hired if he applied for work. 27 42 U.S.C. §1382c(a)(3)(B). 28 To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 2 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 3 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 4 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 5 gainful activity during the period of alleged disability, (2) whether the claimant had medically 6 determinable “severe impairments,” (3) whether these impairments meet or are medically 7 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 8 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 9 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 10 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 11 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 12 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 13 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 14 IV. The ALJ’s Decision 15 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 16 his amended alleged disability onset date of November 1, 2013. AR 27. At step two the ALJ found 17 that Plaintiff had the following severe impairments: short bowel syndrome, obesity, and 18 hypomagnesemia. AR 27. The ALJ also found at step two that Plaintiff had the following non- 19 severe impairments: hypotension, anxiety, and depression. AR 27–28. At step three the ALJ found 20 that Plaintiff did not have an impairment or combination thereof that met or medically equaled the 21 severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 28–29. 22 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 23 concluded that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. 416.967(c) 24 except that he could: lift and carry 100 pounds occasionally and 50 pounds frequently;3 sit, stand, 25 and walk 6 out of 8 hours; would need a 10-minute break every two hours which would be 26 accommodated by normal breaks. AR 29–34. 27 3 Which is in fact the lift/carry requirement for heavy work, not medium work, though any error was harmless given 28 the evidence discussed at section V(C) below which suggested the job in fact required only light exertional lifting as actually performed. 20 C.F.R. 416.967(d). At step four the ALJ found that Plaintiff could perform his past relevant work in the 2 composite jobs of floor laying and carpet laying as actually and generally performed. AR 34. 3 Accordingly, the ALJ found that Plaintiff was not disabled at any time since his alleged disability 4 onset date of November 1, 2013. AR 34. 5 V. Issues Presented 6 Plaintiff asserts three claims of error: 1) that the ALJ failed to offer clear and convincing 7 reasons for rejecting Plaintiff’s allegations regarding the frequency of his bowel movements; 2) 8 that the ALJ failed to explain his departure from the state agency medical opinions; and, 3) that the 9 ALJ improperly determined that Plaintiff can perform his past relevant work. 10 A. Plaintiff’s Testimony 11 1. Applicable Law 12 13 The ALJ is responsible for determining credibility,4 resolving conflicts in medical 14 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 15 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental 16 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 17 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 18 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 19 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 20 21 medical evidence of an impairment that could reasonably be expected to produce some degree of 22 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 23 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 24 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 25 26 27 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 subjective symptom evaluation is not “an 28 examination of an individual’s character” but an endeavor to “determine how symptoms limit ability to perform work- related activities.” S.S.R. 16-3p at 1-2. symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 2 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 3 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p 4 5 at *10. Subjective testimony “cannot be rejected on the sole ground that it is not fully corroborated 6 by objective medical evidence,” but the medical evidence “is still a relevant factor in determining 7 the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 8 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). 9 The ALJ must examine the record as a whole, including objective medical evidence; the 10 claimant’s representations of the intensity, persistence and limiting effects of his symptoms; 11 statements and other information from medical providers and other third parties; and any other 12 13 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 14 2. Analysis 15 Plaintiff has a history of bowel obstruction, surgical bowel resection, ileostomy bag use, 16 and short bowel syndrome. AR 410, 508, 512, 606, 1527, 1883. Although Plaintiff’s chief 17 complaints during the administrative proceedings included fatigue and confusion, his motion for 18 summary judgment is centered around his need for excessive bathroom trips. 19 Plaintiff offered various testimony that his bowel movements ranged from 5 to 25 per day 20 21 during the relevant period, testimony which will be discussed in more detail below. The ALJ 22 acknowledged Plaintiff’s testimony that he “must use the bathroom multiple times per day” (AR 23 30). The ALJ then summarized the objective medical evidence of record over several pages. The 24 ALJ concluded with the common refrain that “the claimant's allegations are not fully consistent 25 with or supported by the medical evidence,” because “the vast majority of medical examinations . 26 . . yielded essentially normal findings.” AR 33–34. 27 28 As Plaintiff emphasizes, it’s not clear what objective findings would have satisfied the ALJ. 2 The allegations regarding his bowel movement frequency are not objectively verifiable in the 3 strictest sense. The records simply reflect what he told his providers who, in turn, made 4 5 corresponding treatment decisions. These included an opioid based anti-diarrheal called Paregoric, 6 and ultimately a medication called Gattex. It cannot be disputed that Plaintiff has an underlying 7 impairment that can cause excessive bowel movement frequency. Further to the point, his ex-wife 8 filled out a third party function report noting frequent bowel movements throughout the day and 9 night. AR 306–07. 10 The objective findings underscored by Defendant and the ALJ were largely peripheral to 11 the issue at bar here, namely bowel movement frequency: 12 13 For example, the ALJ noted Plaintiff’s history of “bowel obstruction status post hemi colectomy, ileostomy then take down, and short gut syndrome” as well as 14 nephrolithiasis (kidney stones) (AR 30). Plaintiff’s physical examination in October 2017 was within normal limits, including normal range of motion in the upper and 15 lower extremities. He was fully oriented with a normal mood and affect (AR 510). In September 2017, the claimant reported he was not having abdominal pain, 16 distention, fever or chills. He was getting infusions twice a week for his chronic 17 hypomagnesemia (AR 539). On December 12, 2017, an ultrasound of the abdomen did not reveal any abnormalities, no hydronephrosis and no shadowing calculi (AR 18 862). By May 2018, it was noted his weight had been stable. He noted improvement of his G.I. symptoms with medication adjustment (AR 31, citing AR 525). On May 19 28, 2019, the claimant presented for a 2-month follow-up. The claimant reported he was doing well with his current treatment regarding a short bowel syndrome and he 20 was not having any issues (AR 31, citing 1791-92). At that visit, his doctor noted 21 that Plaintiff “has had a big improvement in the amount of BMs he is having in a day” (AR 1791). 22 Resp. at 5, Doc. 17. 23 The first sentence quoted above simply recites his surgical history and resultant short bowel 24 25 syndrome. The second sentence discusses physical examination and range of motion findings 26 which relate perhaps to orthopedic complaints, but not to his digestive condition. Equally irrelevant 27 was the discussion of normal orientation, mood, affect, and other components of a mental status 28 examination which the ALJ likely cited in response to his mental health complaints. The December 2017 abdominal ultrasound, lack of hydronephrosis, and lack of shadowing calculi relate to his 2 kidney stones and not to bowel movement frequency. 3 The lack of abdominal pain and distention in September 2017 is more relevant to his 4 5 digestive condition, but not specifically relevant to his alleged bowl movement frequency. It is 6 unclear if there an association between bowel movement frequency and the presence or absence of 7 pain and distention. The same is true of his weight stability. Symptoms and weight stability 8 notwithstanding, he still had an objectively short bowel resulting in bowel movement frequency 9 that increased at least to some extent during the relevant period (though, as will be discussed below, 10 not necessarily increased to a work preclusive extent). 11 The ALJ then cited May 2019 records noting improved bowel movement frequency with 12 13 his new medication, Gattex. AR 1791. This was the most relevant discussion and provided a clear 14 and convincing reason to reject his testimony, at least as to the period following his transition to 15 Gattex in 2019. Although this does not address the bulk of the relevant period, a closer review of 16 the pertinent records (even based on Plaintiff’s own summary thereof) reveals that his testimony 17 and the medical records were not entirely in agreement: 18 Plaintiff argued as follows: 19 The medical evidence corroborated Plaintiff’s allegations that he was having 20 frequent bowel movements. From January 2017 to October 2017, Plaintiff reported 21 having bowel movements every 2 to 4 hours (Tr. 537, 539, 541, 543, 545, 547, 549, 556), but form January 2018 to June 2018, he reported having a bowel movement 22 every 1 to 2 hours (Tr. 824, 827, 830, 833, 836, 1536), and in October 2018, he reported having as many as 12 to 15 bowel movements per day (Tr. 1527). In 23 January 2019, Plaintiff reported a big improvement on a new medication, but continued to have 6 bowel movements per day (Tr. 1801). 24 25 And he offers the following summary of the pertinent testimony: 26 Plaintiff testified that, during the relevant period under review, he had 10 or more bowel movements per day (Tr. 67), and during a normal workday he would need to 27 use the bathroom 7 times for a total of 40 minutes (Tr. 67, 74). Further, Plaintiff 28 testified that when he was taking Paregoric medication, from 2014 to 2018, he was having bowel movements as frequently as 15 to 25 times per day, and 12 to 14 bowel movements during the course of an 8-hour period (Tr. 77-78). Plaintiff reported that 2 now, with use of a new medication, his bowel movements were down to 5 to 12 per day, but he might still have as many as 12 to 14 bowel movements for one week per 3 month (Tr. 83-84). 4 Br. at 5, Doc. 16. 5 Of note at the outset, there appear to be two distinct periods at issue based on his testimony. 6 The periods are demarcated by his January 2019 transition from Paregoric to Gattex. As to the first 7 period while taking Paregoric from 2014 through the end of 2018, despite his contention that the 8 9 records corroborate this testimony he cites no records for the first half of this period from 2014 10 through 2016. He then states that “[f]rom January 2017 to October 2017, Plaintiff reported having 11 bowel movements every 2 to 4 hours (Tr. 537, 539, 541, 543, 545, 547, 549, 556).” Br. at 5. But 12 these records does not support his testimony of 15 to 25 bowel movements per day at intervals 13 every 45 to 75 minutes. Moreover, the bowel movement frequency identified in these records 14 would appear to be accommodated by the normal breaks (10 minutes every 2 hours) as specified in 15 the RFC. 16 17 Next Plaintiff states that “from January 2018 to June 2018, he reported having a bowel 18 movement every 1 to 2 hours (Tr. 824, 827, 830, 833, 836, 1536) and in October 2018, he reported 19 having as many as 12 to 15 bowel movements per day (Tr. 1527).” Id. Although this is more 20 supportive of his testimony, it still does not fully support it. Moreover, at another point in the 21 hearing he was asked (without any time period specified) about his bowel movement frequency 22 during working hours and he indicated it was roughly 7 bowel movements during the hours of 8am 23 to 4pm, and they would collectively span a total of 40 minutes of restroom time throughout the 24 25 workday. AR 67. This would equate to an average of 5 to 6 minutes per bathroom trip. Thus, even 26 if he required a 5 to 6 minute trip every 1 hour, rather than a 10 minute trip every 2 hours (normal 27 breaks as specified in the RFC), his total bathroom time during the work day would not likely 28 exceed normal breaks. The ALJ’s alternative hypothetical to the VE was imprecise in that he asked the VE whether 2 2 additional breaks of 15 minute duration (on top of the normal breaks) would be work preclusive 3 and the VE answered in the affirmative. But there is no reason based on these identified medical 4 5 records that he would need 2 additional breaks of 15 minute duration in addition to 10 minute 6 breaks every 2 hours. Moreover, some records during the same time period indicate his bowel 7 movements were as few as 5 per day while on Rifixamin, though they regressed upon 8 discontinuation of that medication. AR 524–25. The ALJ did cite this record, albeit for a more 9 generalized proposition that his GI symptoms had improved. AR 31. 10 Importantly, Plaintiff did not testify in so many words that his bowel movement frequency 11 would be an unavoidable impediment to his ability to work, nor did his hearing counsel set out to 12 13 establish that as a fact. Rather, Plaintiff simply described what his bowel movement frequency was 14 a various times during the relevant period. For the period from 2014 to 2018, the testimony does 15 not clearly establish (nor does the medical evidence support) that Plaintiff would unavoidably be 16 in the restroom substantially more frequently, or for longer duration, than what customary 17 workplace tolerances would permit, namely 10 minutes every 2 hours. 18 Moreover, the records beginning one month after he transitioned to a new medication, 19 Gattex, in January 2019 undermine the notion that he required more than normal breaks to use the 20 21 restroom. The records consistently reflect that the transition to Gattex was a success. On January 22 28, 2019, the record reflects he was “doing really well with his new medication” and that “he is 23 now having 6 BMs a day which is a big improvement.” AR 1801. Progress notes two months later 24 on March 27, 2019 reflect “pt is stable on current medications. He feels good and he has no 25 particular complaints today.” AR 1794. Another two months later, progress notes on May 28, 26 2019 similarly reflect “pt reports he is doing really well with his current treatment. He is not having 27 28 any issues at this time. Pt seems to be absorbing well.” AR 1791. Progress notes on July 29, 2019 2 and October 29, 2019 reflect the identical statement. AR 1784, 1787. 3 In short, one month after beginning Gattex Plaintiff reported substantial improvement with 4 5 bowel movement frequency being reduced to 6 times per day. At four additional follow ups 6 throughout 2019 he reported no change and was similarly positive about the impact of the 7 medication. Moreover, his estimate of 6 times per day was not limited to an 8-hour workday. A 8 natural inference to draw from this is that he and his physician were discussing the frequency during 9 a 24-hour period. Moreover, there is little reason to infer that he was omitting nighttime or early 10 morning bowel movements from his report to his physician, or that his physician limited the scope 11 of his question to bowel movement frequency during business hours. With 6 bowel movements in 12 13 a 24-hour period that would amount to one every 4 hours, which is amply accounted for by normal 14 10 minute breaks every 2 hours as specified in the RFC. 15 Based on these records there is no basis to credit Plaintiff’s subsequent testimony at the 16 April 2020 hearing that his bowel movements on Gattex ranged from 5 to 14 per day. Nor was 17 there a basis to credit his testimony about the alleged phenomenon whereby the medication 18 inexplicably had decreased efficacy one week out of the month like clockwork, a phenomenon he 19 said he reported to his physicians but is absent from the records during that period. AR 83-84. 20 21 Overall, the medical records offered some support for his testimony but for only a discrete 22 period of time during 2018 when he reported bowel movement frequency every 1 to 2 hours on 23 several occasions (AR 827, 830, 833, 836, 1536), and reported 12 to 15 bowel movements per day 24 on one occasion (AR 1527). Other records during the same period reflect bowel movements as few 25 as 5 per day while on Rifaximin (AR 524–25), records the ALJ did cite albeit for the more 26 generalized proposition that his GI symptoms improved. AR 31. 27 28 The facts of this case arguably warranted some consideration of whether Plaintiff might 2 have been eligible for a closed period of disability following his surgical procedures, the several 3 months thereafter of stoma bag use, the associated difficulties closing and sealing the stoma bag, 4 5 and the ensuing months during which his providers struggled to manage his care before using 6 Gattex. The Ninth Circuit has recently emphasized the importance of considering how a claimant’s 7 symptoms change over time. See, Smith v. Kijakazi, 14 F.4th 1108, 1116 (9th Cir. 2021). (finding 8 the ALJ “erred by seeking only to reach a single disability determination for the entire multi-year 9 period, thereby failing to consider whether Smith was disabled for only a qualifying, early portion 10 of that time.”). Id. 11 Here however, Plaintiff did not explicitly advocate for a closed period of disability, and 12 13 doing so would have required a more thorough and persuasive parsing of the 2,000 page record 14 (especially as to the period from 2014 to 2018 before his switch to Gattex). That is particularly true 15 given that counsel’s focus at the administrative hearing (not the same counsel representing Plaintiff 16 here) was primarily on Plaintiff’s fatigue and mental confusion, not his bowel movement frequency. 17 See AR 51 (in which counsel identified fatigue, lack of endurance, and confusion as primary 18 concerns, and bowel movement frequency “to a lesser extent.”). 19 Finally, though the ALJ’s discussion of Plaintiff’s bowel movement frequency was 20 21 admittedly limited, the ALJ’s rejection of his testimony in general was also buttressed by his 22 activities: 23 August 2016 notes revealed the claimant was feeling better after his kidney stone surgery. He was planning on taking a road trip to Washington state. He had recently 24 been enjoying barbecuing on his new grill (Exhibit 14F/8). He noted he enjoyed 25 fishing and taking his boat out (Exhibit 14F/10). In September 2016, he noted plans to take a road trip to the beach from Wednesday through Friday (Exhibit 14F/13). 26 During this time the claimant reported his desire to stop gambling several times (Exhibit 14F/20). He noted he began attending church in January 2017 (Exhibit 27 14F/27). Issues with gambling were noted (Exhibit 14F/29). In February 2017 the 28 claimant reported he had been working and was feeling pretty good (Exhibit 2 14F/30). He noted he had recently split a lot of wood, was doing some gardening, and was keeping himself busy and occupied (Exhibit 14F/32). 3 An ALJ can rely on a claimant’s daily activities as a basis for discrediting a claimant’s 4 5 testimony if (1) the daily activities contradict the claimant’s other testimony; or (2) “a claimant is 6 able to spend a substantial part of [her] day engaged in pursuits involving the performance of 7 physical functions that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th 8 Cir. 2007). 9 Plaintiff disputes the ALJ’s reliance on his activities arguing they could be paused or 10 discontinued as needed for bathroom use which cannot be said of competitive employment. The 11 point is well taken, as the activities quoted above do not directly contradict his testimony. 12 13 Nevertheless, at least some of the identified activities (such as boating) are in tension with the 14 notion that he is in the bathroom hourly. The ALJ was not unjustified in citing the same in support 15 of the RFC which limited plaintiff only to normal breaks. See Valentine v. Commissioner Social 16 Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (finding the ALJ satisfied the “clear and convincing” 17 standard for an adverse credibility determination where claimant engaged in “gardening and 18 community activities . . . evidence [which] did not suggest Valentine could return to his old job,” 19 but “did suggest that Valentine’s later claims about the severity of his limitations were 20 21 exaggerated.”). 22 Thus, the ALJ committed no harmful error with respect to Plaintiff’s testimony regarding 23 the frequency of his bowel movements. 24 B. The State Agency Doctors’ Opinions 25 1. Applicable Law 26 Before proceeding to step four, the ALJ must first determine the claimant’s residual 27 28 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 2 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 3 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 4 5 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 6 A determination of residual functional capacity is not a medical opinion, but a legal decision 7 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 8 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 9 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 10 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 11 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. 12 13 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 14 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 15 such as medical records, lay evidence and the effects of symptoms, including pain, that are 16 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 17 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical 18 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 19 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 20 21 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 22 F.2d 1403, 1408 (9th Cir. 1986)). The RFC need not mirror a particular opinion; it is an assessment 23 formulated by the ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). 24 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 25 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight, 26 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 27 28 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 2 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 3 Supportability and consistency are the two most important factors and the agency will articulate 4 5 how the factors of supportability and consistency are considered. Id. 6 On April 22, 2022, the Ninth Circuit addressed whether the specific and legitimate 7 reasoning standard is consistent with the revised regulations, stating as follows: 8 The revised social security regulations are clearly irreconcilable with our caselaw 9 according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We 10 will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) ..., including those from your medical sources.”). Our 11 requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor's opinion, which stems from the special weight given 12 to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the 13 revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily favors the evidence from 14 those sources—contrary to the revised regulations. 15 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 16 2. Analysis 17 The state agency disability determination service (DDS) physicians (Drs. Dale and 18 Williams) reviewed Plaintiff’s medical file at the initial and reconsideration levels, respectively. 19 Dr. Dale opined, in relevant part, that Plaintiff “needs to be close to a toilet.” AR 100. Dr. Williams 20 21 opined, in relevant part, that Plaintiff “should have routine access to restroom.” AR 130. 22 “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator 23 must explain why the opinion was not adopted.” SSR 96-8p. Further, “[a]n ALJ may reject the 24 opinion of nonexamining physicians so long as the ALJ references specific evidence in the medical 25 record’ that supports doing so”) (internal citation omitted). Burkett v. Saul, 806 Fed. Appx. 509, 26 511 (9th Cir. Mar. 6, 2020). 27 28 Plaintiff contends the ALJ erred insofar as the ALJ purported to find these opinions “highly persuasive,” and largely incorporated the same into the RFC, yet inexplicably omitted the 2 restrictions concerning physical proximity and routine access to the restroom. Plaintiff contends 3 the error is harmful as the ALJ also omitted these restrictions from her hypotheticals to the VE, and 4 5 that the VE’s testimony therefore had no evidentiary value as the hypotheticals did not encapsulate 6 all of Plaintiff’s limitations. Br. at 8–9, Doc. 16. 7 Defendant counters that the RFC is an administrative finding reserved for the 8 Commissioner, not a medical opinion, and that the RFC need not mirror any medical opinion but 9 is formulated based on all the evidence. See 20 C.F.R. § 404.1545(a); 20 C.F.R. § 404.1546(c). 10 Defendant further contends that the restrictions of proximity to a restroom and routine access 11 thereto were sufficiently encapsulated by the RFC here which accounted for normal breaks of 10 12 13 minutes every two hours. Resp. at 8–10, Doc. 17. Plaintiff replies that those are simply normal 14 breaks given to any employee, which in no way accommodates his increased need for bathroom 15 breaks due to short bowel syndrome. Reply at 1–2, Doc. 18. 16 Starting with Dr. Williams’ opinion, “routine access” is a non-specific restriction and 17 Plaintiff posits no theory as to how the ALJ ought to have incorporated the same into the RFC,or 18 posed it into a hypothetical to the VE in concrete terms. Second, to the extent “routine access” was 19 intended to mean more than normal breaks of 10 minutes every 2 hours, such a restriction is not 20 21 supported by the medical evidence for the same reasons explained above. Third, Plaintiff overlooks 22 the second sentence in Dr. Williams’ opinion immediately following the statement concerning 23 “routine access.” The full quote reads as follows: “should have routine access to a restroom. Cl. 24 could accommodate any need to use the restroom during routine breaks/lunch during 8 hour 25 workday.” AR 131 (emphasis added). The italicized portion strongly suggests Dr. Williams opined 26 that normal breaks would indeed accommodate Plaintiff’s need to use the restroom. Although this 27 28 interpretation renders the first sentence concerning “routine access” superfluous, it is not clear how else one should interpret the italicized portion of his statement. 2 As for Dr. Dale’s restriction that Plaintiff “needs to be close to toilet,” that statement is 3 equally ambiguous as it begs an obvious question, namely: how close does he need to be? The 4 5 ALJ’s determination was based on a finding at step four that Plaintiff could perform past relevant 6 work as a floor/carpet layer. There is little justification to conclude that close proximity to a toilet 7 would be an obstacle, or how the VE’s expertise would be brought to bear on the issue had the ALJ 8 posed that restriction to the VE verbatim. There is also no evidence (testimonial or otherwise) 9 regarding how urgently or unpredictably the need to use the restroom arises for Plaintiff such that 10 physical proximity would be any more of an issue for him that it would be for any other employee 11 without such an impairment. Thus, the court finds that the ALJ committed no error with respect to 12 13 the opinions of Drs. Dale and Williams. 14 C. Plaintiff’s Ability to Meet the Functional Demands of His Past Job 15 1. Applicable Law 16 A claimant is “not disabled” if she retains the residual functional capacity (RFC) to perform 17 either (1) the actual functional demands and job duties of a particular past relevant job, or (2) the 18 functional demands and job duties of the occupation as generally required by employers throughout 19 the national economy. See SSR 82-61. 20 21 According to SSR 82-61, a composite job is one that has “significant elements of two or 22 more occupations” and has “no counterpart in the DOT.” SSR 82-61, available at 1982 WL 31387, 23 at *2. Because a composite job does not have a DOT counterpart, a finding of non-disability at 24 step four cannot be predicated on a finding that Plaintiff could perform past relevant composite jobs 25 as generally performed (the second avenue identified in SSR 82-61). (POMS) DI 25005.020(B). 26 Rather, he must be able to perform the composite work as actually performed. 27 28 2. Analysis According to the VE Plaintiff’s past relevant work comprised the composite jobs of floor 2 layer and carpet layer. AR 86. The former was at the medium exertional level as generally 3 performed (frequently lift 25 and occasionally 50lbs) and the latter was at the heavy exertional level 4 5 as generally performed (frequently lift 50 and occasionally 100 lbs). Id. The VE testified that a 6 hypothetical individual with Plaintiff’s exertional limitations could perform the jobs. Id. 7 Plaintiff argues that the ALJ erred, however, because his past relevant work as actually 8 performed required exertional capacity even higher than heavy. In support he cites a work history 9 report stating that he would have to lift 100 pounds or more. AR 318. He also relies on testimony 10 at the hearing that he used to lift and carry about 200 to 250 pounds and more recently, since 2003, 11 he was lifting and carrying 80 pounds on a regular basis. AR 56. 12 13 Defendant contends this evidence is selectively picked as there is other evidence in the 14 record that his job never required lifting more than 10 pounds. AR 268. Defendant also cites his 15 testimony that he was actually performing his previous job on a part-time basis as recently as a few 16 months prior to the administrative hearing and only needed to lift or carry 15 or 20 pounds. AR 17 54-55, 63-64. In reply, Plaintiff simply states that he stands on the merits of his original argument. 18 However, the records Defendant cites have a potential alternative explanation. Plaintiff 19 testified that more recently he was only doing odd jobs of 20 to 30 minute duration which were not 20 21 strenuous. AR 55, 72. These odd jobs ostensibly required less flooring material than would be 22 required if he was doing a full day job or multi day job. In other words, less time spent on the job 23 and less square footage of flooring needing repaired might logically mean that less material was 24 needed to repair it and thus less weight had to be carried overall. Then again, even when he was 25 carrying 80 to 250 pounds of flooring material and tools earlier in his career, perhaps he always 26 had the option to carry the material in smaller batches of 15 to 20 pounds, consistent with the 27 28 maximum weight he was lifting when working part time. When he was younger and perhaps more able bodied, maybe for efficiencies sake he simply chose to lift heavier weight than was strictly 2 necessary. If so, then all of the evidence cited by the parties is potentially valid, and the two 3 alternative explanations as to the weight lifting requirement of Plaintiff’s part time work are not 4 5 inconsistent. However, hearing counsel did not attempt to inquire further into this issue. 6 In any event, both parties appropriately cited records that appear to support their view, and 7 the ALJ admittedly did not cite all relevant records on the issue or address the issue significantly. 8 But it is clear that the record equally supports the parties’ two differing conclusions as to the weight 9 lifting requirement of his past relevant composite work as actually performed. Here, there is no 10 basis to choose one conclusion over the other. In such instances, affirmance is the appropriate 11 outcome. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted) (noting that 12 13 if the evidence could reasonably support two conclusions, the court “may not substitute its 14 judgment for that of the Commissioner” and must affirm the decision). The ALJ committed no 15 error in concluding Plaintiff was capable of performing his past relevant composite work as actually 16 performed. 17 VI. Order 18 For the reasons stated above, the Court finds that substantial evidence and applicable law 19 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from 20 21 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court 22 is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social 23 Security, and against Plaintiff John Joseph Verreault. 24 25 IT IS SO ORDERED. 26 Dated: December 29, 2022 /s/ Gary S. Austin 27 UNITED STATES MAGISTRATE JUDGE 28