Miguel Padilla v. Nancy C. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 MIGUEL PADILLA, 8 Case No. 5:18-cv-06123-EJD Plaintiff, 9 ORDER GRANTING DEFENDANT’S v. MOTION FOR SUMMARY 10 JUDGMENT; DENYING PLAINTIFF’S NANCY A. BERRYHILL, MOTION FOR SUMMARY 11 JUDGMENT Defendant. 12 Re: Dkt. Nos. 1, 12, 20, 25 13 Miguel Padilla (“Plaintiff”) seeks judicial review of the Commissioner of the Social 14 Security Administration’s (“Defendant”) administrative decision denying Plaintiff’s application 15 for disability benefits. Both parties move for summary judgment or, in the alternative, for a 16 remand for further administrative proceedings. Having considered the Parties’ papers, Plaintiff’s 17 motion for summary judgment and remand is DENIED and Defendant’s motion for summary 18 judgment is GRANTED.1 19 I. BACKGROUND 20 A. Factual Background 21 Plaintiff was 49 years old when he applied for disability benefits. Admin. R. at 181. 22 Plaintiff was an iron worker from 1992 to 2006 and a mechanic from 2007 to July 2012. Id. at 23 211. Plaintiff has not been gainfully employed since July 8, 2012 (the asserted onset date of his 24 disabling condition). See id. at 17, 181. 25 26 1 Because the Court grants Defendant’s motion for summary judgment, it does not reach 27 Defendant’s request for remand. Case No.: 5:18-cv-06123-EJD 1 Plaintiff’s conditions include asthma, vertiginous syndromes and other disorders of the 2 vestibular system, affective disorders, anxiety disorder, organic mental disorder, and tinnitus. Id. 3 at 17. Plaintiff is also considered obese. Id. at 18. Plaintiff has been diagnosed with “mild” sleep 4 apnea and headaches. Id. at 18. 5 1. Joan Hoffman, M.D. 6 In September 2014, Dr. Hoffman, Plaintiff’s examining physician, determined that 7 Plaintiff suffered from chronic asthma, vertigo, and tinnitus. Plaintiff’s brain MRI revealed that 8 he suffered from an “empty sella.” Id. at 702. In Dr. Hoffman’s opinion, the MRI explained 9 Plaintiff’s history of frequent attacks of balance disturbance, tinnitus, and progressive loss of 10 hearing. Id. Dr. Hoffman also found that Plaintiff suffered from headaches, imbalance, reduced 11 cognitive function, ringing in ears, temporary hearing loss, motion sickness, nausea and vomiting, 12 sensitivity to bright lights and noise, lack of coordination, and dizziness. Id. 13 While Dr. Hoffman could not predict how often Plaintiff’s symptoms interfered with his 14 daily life, she did note that certain factors, like “stress, exertion, sudden exertion, sudden 15 movement, or change in head position” tended to negatively affect Plaintiff’s health. Id. at 703 16 (noting that Plaintiff uses a cane to walk and to aid his balance); see also id. at 703 (finding it 17 impossible to predict how often Plaintiff would need breaks during 8-hour workday because it was 18 hard to predict when vertigo would worsen). Dr. Hoffman found that Plaintiff’s “impairments 19 [are] likely to produce ‘good days’ and ‘bad days,’” and that Plaintiff is thus likely to be absent 20 from work more than four times a month. Id. Despite these symptoms, Dr. Hoffman found that 21 Plaintiff “rarely” experienced pain or other symptoms severe enough to interfere with the attention 22 and concentration needed to perform simple work tasks. Id. 23 2. Lance Gee, M.D. 24 On July 6, 2012, Dr. Gee diagnosed Plaintiff with “dizziness.” Id. at 317–18. Dr. Gee 25 regularly examined and consistently diagnosed Plaintiff with “dizziness” and “persistent vertigo.” 26 See id. at 323, 325–26, 348, 358–60, 372–73, 384, 402, 412, 419, 426, 429. Dr. Gee prescribed 27 Case No.: 5:18-cv-06123-EJD 1 Plaintiff Xanax “when needed for anxiety.” Id. at 358–60, 372–73. Dr. Gee ordered an MRI, 2 which revealed “[n]onspecific moderate ventriclomegaly of the lateral and third ventricles with an 3 empty sella [and] [p]atent2 aqueduct of Sylvius and normal fourth ventricle.” Id. at 325–26. 4 Dr. Gee determined that Plaintiff’s dizziness and vertigo were worsening. For instance, on 5 October 17, 2012, Dr. Gee diagnosed Plaintiff with vertigo, asthma, and “worsening vertigo,” and 6 prescribed Albuterol “when needed for shortness of breath.” Id. at 386–88. On January 10, 2013, 7 after confirming his vertigo and asthma diagnosis, Dr. Gee noted that “[Plaintiff] [is] still severely 8 symptomatic and is unable [to] work with sensitive equipment or dangerous objects.” Id. at 398– 9 401; see also id. at 404–06 (same). Later that year, on May 15, 2013, Dr. Gee diagnosed Plaintiff 10 with memory loss and dizziness. Id. at 408. And, on January 6, 2014, after noting Plaintiff’s 11 history of chronic vertigo, Dr. Gee stated that Plaintiff is “unable to do more [than] 4 hours of 12 meaning[ful] work at home.” Id. at 434. 13 3. Thomas McCord, Ph.D. 14 Dr. McCord evaluated Plaintiff and performed several different procedures and tests, 15 including a complete Mental Status Evaluation and Psychological Testing, a Fourth Edition 16 Wechsler Adult Intelligence Scale, a Fourth Edition Wechsler Memory Scale, and “Trials A and 17 B.” Id. at 782–84. 18 Plaintiff received a composite score of 67 for the Wechsler Adult Intelligence Scale, which 19 is “extremely low.” Id. at 783. Plaintiff received a composite score of 49 for the Auditory 20 Memory Index, which is also “extremely low.” Id. Finally, Plaintiff received a composite score 21 of 85 for the Visual Memory Index, which is a “low average” classification. Id. Dr. McCord also 22 diagnosed Plaintiff with “mild depression with anxiety.” Id. at 784. 23 Dr. McCord performed a psychological evaluation of Plaintiff. The evaluation was based 24 on a single session, performed in a structured environment, and derived from the aforementioned 25 26 2 Patent refers to a vessel, duct, or aperture being “open and unobstructed.” Definition of Patent in 27 English, LEXICO, https://www.lexico.com/en/definition/patent (last visited Feb. 25, 2020). Case No.: 5:18-cv-06123-EJD 1 tests. Id. at 782-84. Dr. McCord found that Plaintiff suffered from anxiety and possible 2 depression. Id. at 784. He also found that these symptoms were recent and were likely rooted in 3 Plaintiff’s lack of work. Id. Dr. McCord continued: 4 [Plaintiff] shows minimal impairment in his ability to understand and carry out simple instructions and tasks and severe impairment as the 5 instructions and tasks become more complex. [Plaintiff] demonstrates severe impairment in his ability to attend to usual work 6 situations, including attendance, safety, etc. and severe impairment in his ability to deal with changes in a routine work environment. 7 [Plaintiff] demonstrates moderate to severe impairment in his concentration, pace, and persistence. [Plaintiff] demonstrates 8 minimal impairment in his ability to interact appropriately with supervisors, co-workers, peers, and the public. 9 Id. at 784. 10 4. Parimal Shah, M.D. 11 Dr. Shah evaluated Plaintiff at the request of the Social Security Administration, Admin. 12 R. at 772, and found that Plaintiff has: 13 Exertional Limitations 14 The claimant can lift and/or carry (including upward pulling) 100 pounds occasionally and 50 pounds frequently. Pushing and/or pulling (including operation 15 of hand and/or foot controls) is not limited other than for lift/carry. Standing and/or walking (with normal breaks) can be done without limitations in a normal 8-hour 16 workday. It is deemed, in the opinion of this examiner that a medically required hand-held assistive device, (i.e. a cane) is not required for ambulation. Sitting (with 17 normal breaks) can be done without restrictions. Outside of the normal break periods, the claimant does not need to periodically alternate sitting, and standing to 18 relive pain/discomfort. 19 Postural Limitations Climbing ramps and stairs can be done frequently. Climbing ladders, ropes, and 20 scaffolds can be done frequently. Balancing can be done without restrictions. Stopping, kneeling, crouching, and crawling can be done frequently. 21 Manipulative Limitations 22 The [Plaintiff] can reach without limitations in all directions, including overhead. Gross manipulation (handling) can be done without limitations. Fine manipulation 23 (fingering) can be done without limitations. Feeling (skin receptors) can be done without limitations. 24 Visual/Communicative Limitations 25 There are no limitations in vision appreciated. There are no limitations in hearing appreciated. There are no limitations in speaking appreciated. 26 27 Case No.: 5:18-cv-06123-EJD Environmental Limitations 1 The [Plaintiff] has no environmental limitations, except for based on this exam, to avoid all exposure to hazards such as machinery. Explanation of limitations: This is 2 because of [Plaintiff’s] vertigo and frequent falls with safety reasons in mind and common-sense approach. 3 Id. at 778–79. 4 B. Procedural History 5 Plaintiff filed an application for disability benefits on October 22, 2014. Id. at 181. He 6 alleges that his disabling condition began on July 8, 2012. Id. After his application was denied, 7 Plaintiff filed a Request for Reconsideration. Id. at 119. The Social Security Administration 8 (“SSA”) affirmed its decision and maintained that Plaintiff is not “disabled under [their] rules.” 9 Id. at 119, 125–26. In response, on December 17, 2015, Plaintiff submitted a Disability Appeal 10 and requested a hearing before an Administrative Law Judge (“ALJ”). Id. at 132. 11 Plaintiff received this hearing on May 19, 2017. Id. at 15. After considering Plaintiff’s 12 arguments and the supporting evidence, the ALJ concluded that, pursuant to the Social Security 13 Act, Plaintiff was not disabled. Id. at 15–28. 14 Although Plaintiff requested a review of the ALJ’s decision, the Appeals Council 15 determined that there was no reason to conduct a review. Id. at 180. Hence, on July 31, 2018, the 16 ALJ’s decision became the final administrative decision. Id. at 1. Plaintiff then filed this action. 17 Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment (“Mot.”), Dkt. 20. 18 Defendant filed a cross motion for summary judgment on July 26, 2019. Defendant’s Cross- 19 Motion for Summary Judgment (“D Mot.”), Dkt. 25. On August 9, 2019, Plaintiff filed an 20 opposition to this cross-motion. Plaintiff’s Response to Defendant’s Cross Motion (“P Opp.”), 21 Dkt. 26. Defendant filed a reply on November 4, 2019. Defendant’s Reply re Cross-Motion 22 (“Reply”), Dkt. 28. 23 II. LEGAL STANDARD 24 A. Standard for Reviewing the ALJ’s Decision 25 A court has jurisdiction over social security appeals when the plaintiff files the appeal 26 27 Case No.: 5:18-cv-06123-EJD 1 within 60 days. 42 U.S.C. § 405(g).3 The jurisdiction of federal courts, however, is limited to 2 judging whether substantial evidence was used in the denial of benefits. Id. The substantial 3 evidence standard is met when the record contains sufficient evidence supporting the ALJ’s 4 factual conclusions. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). In other words, the court 5 must ask whether a reasonable mind, based on the evidentiary record, could reach the ALJ’s 6 holding. Id. Further, if the evidence provided supports multiple rational interpretations, then the 7 administrative decisions reached below must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 8 (9th Cir. 2005). However, if legal error occurred in the administrative process or if the 9 administrative decision is not supported by substantial evidence, the decision may be set aside. 10 Treviso v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017). 11 B. Standard for Determining Disability 12 An applicant is “disabled” if their “physical or mental impairment or impairments are of 13 such severity that [they] [are] not only unable to do [their] previous work but cannot, considering 14 [their] age, education, and work experience, engage in any other kind of substantial gainful work 15 which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A five-step process is used to 16 make this determination. 20 C.F.R. §§ 404.1520(a)(4). In steps one through four,4 the claimant 17 carries the burden of proof; in step five, however, the ALJ carries the burden of proof. Burch, 400 18 F.3d at 679. In the fifth step, the SSA considers the applicant’s residual functional capacity, age, 19 education, and work experience to see if the applicant can “make an adjustment to other work.” If 20 an adjustment can be made, the applicant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v). 21 C. Standard for Evaluating Medical Opinion Evidence 22 Physicians fall into three categories: (1) treating physicians, (2) examining physicians, and 23 (3) non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (1995). Treating physician 24 25 3 See Admin. R. at 2 (“You have 60 days to file a civil action . . . . The 60 days start the day after 26 you receive this letter. We assume you received this letter 5 days after the date on it.”). 4 Because these four steps are not relevant to the Parties’ arguments, the Court does not analyze 27 them. The Court thus only states the rule for step five, which is in dispute. Case No.: 5:18-cv-06123-EJD 1 opinions are accorded more weight than examining physician opinions and examining physician 2 opinions are accorded more weight than non-examining physician opinions. Ryan v. Comm’r of 3 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Lester, 81 F.3d at 830). 4 Clear and convincing reasons supported by substantial evidence are required to reject an 5 uncontradicted opinion of a treating or examining physician. Ryan, F.3d at 1198 (citing Bayliss v. 6 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).5 If treating and examining physician opinions are 7 contradicted by another physician’s opinion, they may be rejected as long as there are specific and 8 legitimate reasons supported by substantial evidence supporting the rejection. Ryan, 528 F.3d at 9 1198 (citing Lester, 81 F.3d at 830). 10 However, a contradicting opinion of a non-examining physician does not alone constitute 11 substantial evidence. Rather, a non-examining physician must provide justification as to why they 12 rejected the decision of a treating or examining physician opinion. Ryan, 528 F.3d at 1202 13 (quoting Lester, 81 F.3d at 831). It is legal error to reject a medical opinion, or assign it little 14 weight, without offering a substantive basis for doing so. Garrison v. Colvin, 759 F.3d 995, 1012- 15 1013 (9th Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 16 III. DISCUSSION 17 Plaintiff argues that Defendant improperly evaluated the medical evidence. Mot. 7:13– 18 12:6. Plaintiff maintains that Defendant: (1) incorrectly assessed Dr. Hoffman’s opinion as 19 subjective and inconsistent with other evidence; (2) failed to address Dr. Gee’s statement that 20 Plaintiff could not work more than four hours; (3) gave too little weight to Dr. McCord’s opinion 21 22 5 Defendant argues that the Biestek opinion prevents this Court from using the “clear and 23 convincing” standard. Reply at 3:1–4. The Court disagrees. The Supreme Court confined its opinion in Biestek to a narrow question—whether an expert who testified about the availability of 24 certain jobs in the economy and refused to provide the private market-survey data underlying her testimony could be categorically precluded from counting as “substantial evidence.” 139 S. Ct. at 25 1152. That same question is not at issue here. Id. at 1154 n.1 (“[N]or did [Petitioner’s] briefing and argument focus on anything other than the Seventh Circuit’s categorical rule. We confine our 26 opinion accordingly.”). Therefore, the standard remains that if uncontradicted by another physician, clear and convincing reasons supported by substantial evidence are required to reject a 27 treating or examining physician’s opinion. Case No.: 5:18-cv-06123-EJD 1 that Plaintiff had more than a minimal limitation; and (4) gave too much weight to Dr. Shah’s 2 opinion. Id. at 8:14–16, 9:21–24, 10:23–24, 11:12–23. 3 Plaintiff also argues that Defendant improperly rejected symptom testimony. Id. at 12:7– 4 15:11. This, Plaintiff contends, was error, especially when combined with Defendant’s improper 5 evaluation of the medical evidence. Id. at 15:12–16:21. In Plaintiff’s view, by improperly 6 weighing the medical opinions and symptom testimony, the hypotheticals presented to the 7 vocational expert in the fifth step were erroneous and should have no evidentiary value. Id. at 8 16:12–21. This Court disagrees; Defendant correctly evaluated the medical evidence and 9 symptom testimony and formed proper conclusions. 10 A. ALJ’s Evaluation of Medical Opinion Evidence 11 Defendant assigned partial weight to Dr. Hoffman’s medical opinion, little weight to Dr. 12 Gee’s medical opinion, partial weight to Dr. McCord’s medical opinion, and significant weight to 13 Dr. Shah’s medical opinion. Admin. R. at 24–25. According to 20 C.F.R. § 404.1527(a), Dr. 14 Hoffman was an examining physician, see id. at 702–10; Dr. Gee was a treating physician, see id. 15 at 279-435; Dr. McCord was an examining physician, see id. at 782–84; and Dr. Shah was a non- 16 examining physician, see id. at 772. Dr. Hoffman, Dr. Gee, and Dr. McCord’s opinions were 17 contradicted by other medical opinions. Compare Admin. R. at 434 (stating that Plaintiff was 18 “unable to do more [than] 4 hours of meaning[ful] work at home”), and id. at 703 (“[Plaintiff] 19 sometimes need[s] to take unscheduled breaks during an 8-hour working day”), and id. at 784 20 (“[Plaintiff] demonstrates severe impairment in his ability to attend to usual work situations, 21 including attendance, safety, etc.”), with id. at 87 (finding that Plaintiff is not significantly limited 22 in his ability “to be aware of normal hazards and take appropriate precautions” or “perform 23 activities within a schedule, maintain regular attendance, and be punctual within customary 24 tolerances”), and id. at 778–779 (“Standing and/or walking (with normal breaks) can be done 25 without limitations in a normal 8-hour workday.”). Therefore, as noted, Defendant needed (and 26 had) specific and legitimate reasons supported by substantial evidence to reject Dr. Hoffman, Dr. 27 Case No.: 5:18-cv-06123-EJD 1 Gee, and Dr. McCord’s medical opinions. See Ryan, 528 F.3d at 1198 (citing Lester, 81 F.3d at 2 830). 3 1. Dr. Hoffman’s Medical Opinion 4 Dr. Hoffman’s medical opinion was properly evaluated using the substantial evidence 5 standard. Dr. Hoffman was an examining physician. See Admin. R. at 702–10 (examining and 6 diagnosing Plaintiff, but only seeing Plaintiff occasionally and not over a long period of time); 20 7 C.F.R. § 404.1527(c). In evaluating Dr. Hoffman’s medical examinations, Defendant 8 acknowledged and assigned significant weight to the finding that “[Plaintiff] used a cane to 9 ambulate for balance because this observation is consistent with the claimant’s treatment notes.” 10 Admin. R. at 25. However, the remainder of Dr. Hoffman’s findings were assigned little weight, 11 especially as related to Plaintiff’s need for unscheduled breaks and monthly absences. Id. at 25. 12 This is because Dr. Shah’s medical opinion contradicted Dr. Hoffman’s medical opinion. For 13 instance, Dr. Hoffman found that Plaintiff needs a cane to help with balance and would need to 14 take unscheduled breaks during an 8-hour workday. Id. at 702–03. In contrast, Dr. Shah found 15 that Plaintiff does not require a cane and can stand and walk with normal breaks, without 16 limitations, during a normal 8-hour workday. Id. at 772–79. 17 Because of the differing medical opinions, specific and legitimate reasons supported by 18 substantial evidence, not clear and convincing reasons, was the requisite standard. See Ryan, 528 19 F.3d at 1198 (citing Lester, 81 F.3d at 830). Defendant described Dr. Hoffman’s limitations as 20 “not consistent with the objective findings, . . . based on the [Plaintiff’s] self-reports, . . . [and] 21 overly restrictive in light of the [Plaintiff’s] conservative treatment and [] reports that Plaintiff’s 22 dizziness lasts approximately 1 minute.” Admin. R. at 25. Through this description, Defendant 23 thus properly provided specific and legitimate reasons supported by substantial evidence for 24 rejecting Dr. Hoffman’s opinion. See Ryan, 528 F.3d at 1198 (citing Lester, 81 F.3d at 830). 25 2. Dr. Gee’s Medical Opinion 26 Plaintiff next argues that Defendant failed to properly account for Dr. Gee’s determination 27 Case No.: 5:18-cv-06123-EJD 1 that Plaintiff was unable to work more than 4 hours. Mot. 10:6–8. This argument is improper. A 2 medical opinion indicating disability or an inability to work is not equivalent to a legal finding of 3 disability. 20 C.F.R. § 404.1527; see also Wennet v. Saul, 777 Fed. Appx. 875, 878 (9th Cir. 4 2019); Sarkiss v. Colvin, 623 Fed. App’x 329, 330 (9th Cir. 2015); McLeod v. Astrue, 640 F.3d 5 881, 884 (9th Cir. 2011). Only Defendant (the Social Security Administration) has the power to 6 make such a disability determination. 20 C.F.R. § 404.1527(d). 7 Plaintiff further argues that Defendant improperly weighed Dr. Gee’s medical opinion. Dr. 8 Gee was a treating physician. See Admin. R. at 279–435; 20 C.F.R. § 404.1527(c)(2). And, Dr. 9 Gee’s medical opinion was contradicted by Dr. Shah. While Dr. Gee concluded that Plaintiff is 10 “unable to do more [than] 4 hours of meaning[ful] work at home,” Admin. R. at 434, Dr. Shah 11 determined that standing, walking, and sitting, with normal breaks, can be done without 12 restrictions in a normal 8-hours workday. Id. at 778. Due to this contradiction, specific and 13 legitimate reasons supported by substantial evidence was the applicable standard in weighing Dr. 14 Gee’s medical opinion. See Ryan, 528 F.3d at 1198. 15 In evaluating Dr. Gee’s medical treatment, Defendant found that Dr. Gee’s medical 16 opinion was “temporary in nature, . . . overly reliant on the [Plaintiff’s] self-reports, and . . . not 17 supported by the objective medical evidence in the record.” Id. at 26. Defendant thus had specific 18 and legitimate reasons, based on substantial evidence, supporting its decision to reject Dr. Gee’s 19 medical conclusions. See Ryan, 528 F.3d at 1198 (citing Lester, 81 F.3d at 830). Accordingly, 20 Defendant’s determination was proper. 21 3. Dr. McCord’s Medical Opinion 22 Defendant properly evaluated Dr. McCord’s medical opinion by using the substantial 23 evidence standard. Dr. McCord was an examining physician. See Admin. R. at 782–84 24 (examining Plaintiff, performing various evaluations, but only seeing Plaintiff once), 20 C.F.R. 25 § 404.1527(c). Plaintiff argues that the “clear and convincing reasons” standard governs Dr. 26 McCord’s medical opinion. Mot. 11:9–11. This is incorrect; Dr. McCord’s medical opinion was 27 Case No.: 5:18-cv-06123-EJD 1 contradicted. Dr. McCord noted: 2 [Plaintiff] shows minimal impairment in his ability to understand and carry out simple instructions and tasks and severe impairment as the 3 instructions and tasks become more complex. He demonstrates severe impairment in his ability to attend to usual work situations, 4 including attendance, safety, etc. and severe impairment in his ability to deal with changes in a routine work environment. He demonstrates 5 moderate to severe impairment in his concentration, pace, and persistence. He demonstrates minimal impairment in his ability to 6 interact appropriately with supervisors, co-workers, peers, and the public. 7 8 Admin. R. at 784. 9 Dr. Celine Payne-Gair, who performed a Mental Residual Functional Capacity Assessment, found: 10 [Plaintiff] can understand and remember simple instructions, . . . can adapt to routine change in the workplace . . . can complete simple 11 tasks, maintain attention and concentration for periods of at least two hours, complete a normal workday and workweek w/o significant py- 12 related interruptions, and perform at a consistent pace . . . [and] . . . can relate appropriately to the public, peers and 13 supervisors. 14 Id. at 87. 15 Because of this contradiction, the appropriate standard is whether Defendant utilized 16 specific and legitimate reasons supported by substantial evidence when evaluating Dr. McCord’s 17 medical opinion. Ryan, 528 F.3d at 1198 (citing Lester, 81 F.3d at 830). Defendant explained that 18 “Dr. McCord’s findings . . . are overly restrictive in light of the claimant’s minimal mental health 19 treatment of record and Dr. McCord’s one-time evaluation of [Plaintiff].” Admin. R. at 25. Thus, 20 because Defendant had specific and legitimate reasons supported by substantial evidence, it 21 properly rejected Dr. McCord’s medical findings. See Ryan, 528 F.3d at 1198. 22 4. Dr. Shah’s Medical Opinion 23 Plaintiff argues Defendant gave Dr. Shah’s medical opinion too much weight. Mot. 24 11:12–23. This is incorrect. Dr. Shah was a non-examining physician. See Admin. R. at 772 25 (“[Plaintiff] understands that no treatment would result from today’s examination and was made 26 aware of the fact that usual patient-physician confidentiality does not exist.”); 20 C.F.R. 27 Case No.: 5:18-cv-06123-EJD 1 § 404.1527(c)(3). The weight of non-examining physician opinions depends “on the degree to 2 which they provide supporting explanations for their medical opinions.” 20 C.F.R. 3 § 404,1527(c)(3). Dr. Shah’s opinion includes statements about the examinations performed and 4 the conclusions reached based on these examinations. Admin. R. at 772–79. Further, Dr. Shah 5 explained her medical conclusions. Admin. R. at 772–79. Defendant thus properly agreed with 6 Dr. Shah’s opinion because it “was based on a physical evaluation of the claimant and objective 7 medical findings consistent with the evidence as a whole.” Id. at 24. Therefore, because Dr. Shah 8 provided supporting explanations for her medical opinion, it was appropriate for Defendant to 9 assign “significant weight to Dr. Shah’s opinion.” Id. 10 B. ALJ’s Evaluation of Plaintiff’s Symptom Testimony 11 Plaintiff argues that Defendant improperly evaluated Plaintiff’s symptom testimony. 12 Testimony about symptoms alone does not establish disability. 20 C.F.R. § 404.1529(a). 13 Objective medical evidence is required to corroborate assertions of medical impairments. 20 14 C.F.R. § 404.1529(a); see also Garrison v. Colvin, 759 F.3d 995, 1014–15 (2014). If Plaintiff’s 15 testimony is medically supported, Defendant needs clear and convincing reasoning to reject 16 Plaintiff’s testimony. Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (2002). 17 Plaintiff alleges that Defendant “identifies no specific records contrary to any of 18 [Plaintiff’s] specific statements regarding his limitations.” Mot. 13:12–13. The record, however, 19 shows that the contrary occurred. Indeed, Defendant first noted “that the [Plaintiff’s] medical 20 records only partially support his allegations.” Admin. R. at 21. Defendant next identified 21 conservative treatments for Plaintiff’s alleged symptoms and tracked specific instances of such 22 treatments and explained why such incidences were given weight. Id. at 21–23. Finally, 23 Defendant points out that the testimony about Plaintiff’s vertigo episodes lasting one-hour is 24 inconsistent with the medical records describing two-minute episodes. Id. at 21, 48, 320. 25 Plaintiff next argues that “[Defendant] has not specified which testimony he found not 26 credible and has not provided clear and convincing reasons supported by evidence in the record to 27 Case No.: 5:18-cv-06123-EJD 1 support [Defendant’s] credibility determination.” Mot. 13:23–25. Defendant, however, did 2 exactly that. Admin. R. at 21–23 (explaining inconsistency between hearing testimony about 3 vertigo and the medical documentation regarding this reported symptom). Defendant determined 4 that “[Plaintiff’s] medically determinable impairments could reasonably be expected to cause the 5 alleged symptoms; however the [Plaintiff’s] statements concerning the intensity, persistence and 6 limiting effects of these symptoms are not entirely consistent with the medical evidence and other 7 evidence in the record for the reasons explained throughout this decision.” Admin. R. at 23. The 8 Court thus sees no reason to question Defendant’s determinations concerning Plaintiff’s symptom 9 testimony. 10 C. ALJ’s Disability Determination 11 Defendant utilized the appropriate standard when determining whether Plaintiff could 12 adjust to other work. The fifth step of the disability determination concerning adjustment to other 13 work in the national economy incorporates residual functional capacity, age, education, and work 14 experience. 20 C.F.R. § 404.1520(a)(4)(v). Plaintiff argues that Defendant’s residual functional 15 capacity determination is inconsistent with the jobs Plaintiff could perform. Mot. 16:1–9. 16 The determination about whether an applicant can adjust to other work is not made using 17 only the Plaintiff’s residual functional capacity. See 20 C.F.R. § 404.1520(a)(4)(v) (“[W]e 18 consider our assessment of your residual functional capacity and your age, education, and work 19 experience to see if you can make an adjustment to other work.” (emphasis added)). Defendant 20 properly considered the “[Plaintiff’s] age, education, work experience, and residual functional 21 capacity.” Admin. R. at 27. Plaintiff provides no legal authority for why Defendant’s 22 determination is problematic. See Mot. 15:13–16:9. To the contrary, the relevant precedent 23 indicates that Defendant’s methodology was proper. Thus, Defendant’s “adjustment to other 24 work” determination was reasonable. 25 Plaintiff next argues that Defendant’s reliance on the vocational expert’s testimony is 26 problematic because it fails to account for all of Plaintiff’s limitations and restrictions. Mot. 27 Case No.: 5:18-cv-06123-EJD 1 16:10-21. Plaintiff maintains that Defendant failed to properly include symptom testimony and 2 medical opinions from Dr. Hoffman, Dr. Gee, and Dr. McCord. Mot. 16:15-17. This argument, 3 however, depends on the Court finding an error in Defendant’s evaluation of the relevant medical 4 || opinions or symptom testimony. The Court held that no such error exists. See supra. Plaintiffs 5 argument is thus meritless. Accordingly, Defendant’s “fifth-step” determination was proper. 6 || IV. CONCLUSION 7 The proper standards were applied in Defendant’s disability determination. Therefore, the 8 || Court DENIES Plaintiff's Motion for Summary Judgment, and GRANTS Defendant’s Cross- 9 || Motion for Summary Judgment.® The Clerk shall close the file and a judgment in favor of 10 || Defendants shall follow. 11 IT IS SO ORDERED. e 12 Dated: February 28, 2020 EDWARD J. DAVILA 14 United States District Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 || ° Defendant’s Motion for Remand is thus also DENIED. See Mot. 2:10. Case No.: 5:18-cv-06123-EJD 28 || ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT