Goss, Jr. v. Saul ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 HERBERT G., Case No. 18-cv-06832-JSC 7 Plaintiff, ORDER RE: CROSS MOTIONS FOR 8 v. SUMMARY JUDGMENT 9 ANDREW SAUL, Re: Dkt. Nos. 24, 25 Defendant. 10 11 Plaintiff seeks social security disability benefits for Type II diabetes, left shoulder pain, 12 back pain, and right leg pain. (Administrative Record (“AR”) 246.) Pursuant to 42 U.S.C. § 13 405(g), Plaintiff filed this lawsuit for judicial review of the final decision by the Commissioner of 14 Social Security (“Commissioner”) denying his application for benefits. (Dkt. No. 1.)1 Now 15 before the Court are Plaintiff’s and Defendant’s motions for summary judgment.2 (Dkt. Nos. 24 & 16 25.) Because the decision of the Administrative Law Judge (“ALJ”) to deny benefits is supported 17 by substantial evidence and free of legal error, the Court DENIES Plaintiff’s motion and 18 GRANTS Defendant’s cross-motion. 19 LEGAL STANDARD 20 A claimant is considered “disabled” under the Social Security Act if she meets two 21 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 22 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 23 reason of any medically determinable physical or mental impairment which can be expected to 24 result in death or which has lasted or can be expected to last for a continuous period of not less 25 than 12 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be 26 1 Record citations outside of the administrative record are to material in the Electronic Case File 27 (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 1 severe enough that she is unable to do her previous work and cannot, based on her age, education, 2 and work experience “engage in any other kind of substantial gainful work which exists in the 3 national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an 4 ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is 5 engaging in “substantial gainful activity”; (2) whether the claimant has a severe medically 6 determinable physical or mental impairment” or combination of impairments that has lasted for 7 more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the 8 regulations; (4) whether, given the claimant’s “residual function capacity,” (“RFC”) the claimant 9 can still do her “past relevant work”’ and (5) whether the claimant “can make an adjustment to 10 other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.R.F. 11 §§404.1520(a), 416.920(a). 12 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 13 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 14 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant 15 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 16 quotation marks and citation omitted). “Where evidence is susceptible to more than one rational 17 interpretation, it is the ALJ’s conclusion that must be upheld.” Id. In other words, if the record 18 “can reasonably support either affirming or reversing, the reviewing court may not substitute its 19 judgment for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 20 (9th Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported 21 by substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id. 22 BACKGROUND 23 I. Procedural History 24 Plaintiff filed a Title II application for social security disability benefits in April 2015, (AR 25 198), and a Title XVI application for supplemental security income in May 2015, (AR 192). The 26 Commissioner first denied Plaintiff’s applications in September 2015, (AR 80 & 92), and again 27 denied the applications upon reconsideration in March 2016, (AR 136). Plaintiff then filed a 1 telephone before ALJ Cheryl Tompkin. (AR 30-68.) Plaintiff’s counsel and Vocational Expert 2 (“VE”) Dr. Roxane L. Minkus were present at the hearing. (AR 30.) 3 The ALJ issued an unfavorable decision in October 2017. (AR 14.) The decision became 4 final in September 2018 after the Appeals Council denied Plaintiff’s request for review. (AR 1.) 5 Plaintiff filed this action thereafter. (Dkt. No. 1.) 6 II. Administrative Record 7 Plaintiff was born on September 12, 1963 and resides in Livermore, California. (AR 198.) 8 He asserts that he has been unable to work since June 1, 2011 due to Type II diabetes, left 9 shoulder pain, back pain, and right leg pain. (See AR 69-70.) Plaintiff previously worked as an 10 auto mechanic and shop cleaner from 2010 to 2011, as a dishwasher from 2008 to 2010, and as a 11 construction laborer from 1979 to 2006. (AR 323.) At the February 2017 hearing Plaintiff’s 12 counsel amended the disability onset date to September 12, 2013, to coincide with Plaintiff’s 50th 13 birthday. (See AR 68.) 14 A. Medical Evaluations and Physician Statements 15 1. Medical Source Statement from Treating Physician 16 The parties attribute to Dr. Catherina Fu a “Diabetes Medical Source Statement” from Axis 17 Community Health Center (“Axis Health”) dated November 19, 2014, and they do not dispute that 18 Dr. Fu is Plaintiff’s treating physician.3 The statement reports that Plaintiff was first treated at 19 Axis Health in April 2013 and then seen “every 1-3 months.” (AR 434.) The statement indicates 20 that Plaintiff was diagnosed with Type II diabetes and left shoulder pain, and experiences the 21 22 3 Dr. Fu’s name appears only once in the record—an attachment to the November 2014 medical source statement. (See AR 438.) That document is an X-ray report from NorCal Imaging and it is 23 signed by Dr. Fu. (Id.) The medical source statement attributed to Dr. Fu does not contain her name and based on the signature appears to have been written by Nurse Practitioner Edward Liu, 24 of Plaintiff’s primary care provider Axis Health. (See AR 437.) Indeed, Mr. Liu completed a physical examination of Plaintiff one day prior to the medical source statement, (see AR 329), and 25 the non-examining state agency physicians attributed the November 2014 source statement to Mr. Liu, (see AR 72, 76, 84, 88, 90, 98, 99, 103, 105, 111, 112, 116, 118). However, because (1) the 26 record indicates that Axis Health is Plaintiff’s primary care provider, (2) the ALJ attributed the November 2014 medical source statement to Dr. Fu and the parties do not dispute that 27 characterization, (3) it is not clear from the signature alone who actually authored the medical 1 following symptoms: fatigue, excessive thirst, chronic skin infections, muscle weakness, 2 retinopathy, and frequency of urination. (Id.) Of those, the statement notes the following “clinical 3 findings and objective signs”: blurred vision, frequency of urination, dry mouth, and pain in the 4 left shoulder. (Id.) The statement further notes that Plaintiff is on an active medication regimen. 5 (Id.) 6 Dr. Fu opined that in an eight-hour workday Plaintiff could sit for two hours, stand for one 7 hour, and walk for one hour. (AR 435.) However, Dr. Fu opined that Plaintiff did not “need a job 8 that permits shifting positions at will from sitting, standing or walking.” (AR 436.) Dr. Fu further 9 opined that Plaintiff would need to take one to two unscheduled breaks during an eight-hour 10 workday for 5-10 minutes before returning to work. (Id.) Plaintiff would not need to elevate his 11 legs while sitting. (Id.) 12 Dr. Fu opined that Plaintiff could frequently lift less than 10 pounds, occasionally lift 20 13 pounds, and rarely lift 50 pounds. (Id.) Dr. Fu noted, however, that Plaintiff could “rarely” lift 14 with his left shoulder. (Id.) Dr. Fu opined that Plaintiff had significant limitations with reaching, 15 handling or fingering because he could never use his left arm for reaching. (Id.) Dr. Fu opined 16 that Plaintiff’s condition would cause him to miss more than four days of work per month. (Id.) 17 2. Physical Examination by Neurologist Farah M. Rana 18 Dr. Rana is a consultative examining physician who met with Plaintiff on June 30, 2015. 19 (AR 461.) Dr. Rana’s report notes that Plaintiff’s chief complaints were left shoulder pain, Type 20 II diabetes, and enlarged prostate. (Id.) Plaintiff reported worsening pain in his left shoulder since 21 a motorcycle accident and subsequent surgery and noted “difficulty in elevating his arm all the 22 way up.” (Id.) Plaintiff denied “any numbness or tingling in his hands or feet,” or “any retinal or 23 renal complications of diabetes.” (Id.) 24 On examination Plaintiff’s “left shoulder was tender to touch” and exhibited a reduced 25 range of motion. (AR 462.) Plaintiff had full range of motion in all other joints, his gait was 26 stable, he did not require an assistive device, and he exhibited full motor strength. (AR 462-63.) 27 Dr. Rana’s diagnoses included history of Type II diabetes, and “chronic left shoulder pain.” (AR 1 glenohumeral osteoarthritis.” (AR 461, 463.) 2 Dr. Rana’s “functional capacity assessment” opined that Plaintiff can stand, sit, and walk 3 six hours out of an eight-hour workday, with breaks. (Id.) Further, Plaintiff “can carry 10 pounds 4 frequently and 20 pounds occasionally.” (Id.) He can “handle, manipulate, feel, and finger 5 objects without any problem,” but “would have difficulty working above his head with his left arm 6 because of left shoulder pain.” (Id.) Dr. Rana opined that Plaintiff did not need an assistive 7 device to ambulate, and “can take public transportation.” (Id.) Dr. Rana also noted that Plaintiff 8 “can manage his day-to-day chores.” (AR 461.) 9 3. Non-Examining State Agency Physicians 10 In July and September 2015, non-examining state agency physicians reviewed Plaintiff’s 11 medical records and opinion evidence and adopted Dr. Rana’s functional capacity assessment 12 because it was consistent with the objective evidence and Plaintiff’s subjective complaints. (AR 13 77.) The state agency physicians determined that while Plaintiff’s impairments cause some 14 limitations on his ability to perform work activities, those limitations do not prevent him from 15 performing other work in the national economy. (AR 80.) Thus, the state agency physicians 16 concluded that Plaintiff’s “condition is not severe enough to keep [Plaintiff] from working.” (Id.) 17 Two different state agency physicians made the same determination upon reconsideration of 18 Plaintiff’s application in March 2016. (See AR 107.) 19 B. The ALJ’s Decision 20 On October 3, 2017, the ALJ issued a written decision denying Plaintiff’s applications and 21 finding that he was not disabled within the meaning of the Social Security Act based on the 22 testimony, evidence, and the Social Security Administration’s five-step sequential evaluation 23 process for determining disability. (AR 17-26.) 24 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity 25 since June 1, 2011. (AR 19.) At step two, the ALJ determined that the medical evidence 26 indicated that Plaintiff’s diabetes, “status post left shoulder surgery,” and left shoulder 27 osteoarthritis constitute severe impairments. (Id.) The ALJ determined at the third step that 1 equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” 2 (AR 20 (citing 20 CFR §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).) 3 Before reaching step four, the ALJ determined that Plaintiff “has the residual functional 4 capacity to perform light work” as defined under 20 CFR §§ 404.1567(b) and 416.967(b), with the 5 following limitations: 6 lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit 4 hours and stand/walk 1 hour at a time for a total of 4 hours; 1 7 unscheduled 10 minute break in addition to normal breaks during the workday; occasionally crouch and crawl but frequently stoop and 8 twist; can frequently look down, turn his head to the left or right, and look up and hold his head in a static position; can rarely (defined as 9 less than 2.5 hours in an 8-hour workday) reach or work overhead with his left upper extremity; and should avoid unprotected heights. 10 11 (AR 21.) In making her RFC determination, the ALJ found that Plaintiff’s “medically 12 determinable impairments could reasonably be expected to cause the alleged symptoms; however, 13 [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 14 symptoms are not entirely consistent with the medical evidence and other evidence in the record.” 15 (AR 22.) The ALJ cited in support of this finding Plaintiff’s treatment records, the objective 16 medical evidence, the medical opinion evidence, and Plaintiff’s reported use of a bicycle for 17 transportation. (AR 21-24.) 18 As for the medical opinion evidence, the ALJ afforded the “greatest weight to the opinions 19 of consultative examiner Dr. Rana and the State agency medical consultants, who found that 20 [Plaintiff] is capable of performing light work but limited with left overhead reaching.” (AR 23.) 21 The ALJ noted that the opinions were “consistent with and well-supported by the objective 22 evidence.” (Id.) The ALJ afforded “partial weight” to the opinion of Plaintiff’s treating physician, 23 Dr. Catherina Fu, finding that the “sit, stand, and walk limitation[s]” noted by Dr. Fu were “overly 24 restrictive and not linked to any objective evidence.” (AR 23-24.) In sum, the ALJ determined 25 that Plaintiff’s RFC “is supported by the treatment notes that showed mild to moderate limitations 26 with [Plaintiff’s] left shoulder but otherwise relatively unremarkable findings on examination 27 along [with] the well-support[ed] opinions of Dr. Rana and the State agency medical consultants.” 1 At step four, the ALJ cited the VE’s hearing testimony and concluded that Plaintiff “cannot 2 perform past relevant work” as a construction worker. (AR 24.) Finally, the ALJ determined at 3 step five that Plaintiff could perform “other work that exists in significant numbers in the national 4 economy” based on his “age, education, work experience” and RFC. (AR 25.) In sum, the ALJ 5 determined that Plaintiff was not “under a disability, as defined in the Social Security Act, from 6 June 1, 2011, through the date of [the ALJ’s] decision.”4 (AR 25.) 7 DISCUSSION 8 The parties dispute whether the ALJ: (1) properly assessed the medical opinion evidence; 9 (2) properly assessed Plaintiff’s subjective symptom testimony; and (3) committed reversible error 10 at step five. The Court addresses each argument in turn. 11 I. Medical Opinion Evidence 12 A. Legal Standard 13 In assessing an ALJ’s consideration of the medical opinion evidence, courts “distinguish 14 among the opinions of three types of physicians: (1) those who treat the claimant (treating 15 physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) 16 those who neither examiner nor treat the claimant (nonexamining physicians).” Lester v. Chater, 17 81 F.3d 821, 830 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded 18 more weight than those of non-examining physicians, and the opinions of examining non-treating 19 physicians are afforded less weight than those of treating physicians.” Orn v. Astrue, 495 F.3d 20 625, 631 (9th Cir. 2007). 21 An ALJ may reject the “uncontradicted opinion of a treating or examining doctor” only by 22 stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 23 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks and citation 24 omitted). And “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the 25 Commissioner may not reject this opinion without providing ‘specific and legitimate reasons’ 26 4 Although Plaintiff’s counsel amended the disability onset date to September 12, 2013 at the 27 hearing, the ALJ’s decision continued to use June 1, 2011 as the onset date. However, neither 1 supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830 (citation 2 omitted). “The ALJ can meet this burden by setting out a detailed and thorough summary of the 3 facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” 4 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986), superseded by statute on other grounds as 5 recognized in Bunnell v. Sullivan, 912 F.2d 1149, 1154 (9th Cir. 1990). Likewise, “the opinion of 6 an examining doctor, even if contradicted by another doctor, can only be rejected for specific and 7 legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 8 830-31. The opinions of non-examining physicians may “serve as substantial evidence when the 9 opinions are consistent with independent clinical findings or other evidence in the record.” 10 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 11 Ultimately, “[t]he ALJ must do more than offer his conclusions” when rejecting a medical 12 opinion; instead, she “must set forth his own interpretations and explain why they, rather than the 13 doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Thus, “an ALJ 14 errs when he rejects a medical opinion or assigns it little weight while doing nothing more than 15 ignoring it, asserting without explanation that another medical opinion is more persuasive, or 16 criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.” 17 Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). In conducting its review, the ALJ 18 must consider the entire record and cannot rely only on portions of the record while ignoring 19 conflicting evidence. See Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (finding 20 error where “ALJ selectively relied on some entries in [plaintiff’s] records from San Francisco 21 General Hospital and ignored the many others that indicated continued, severe impairment.”). 22 B. The ALJ’s Analysis 23 Plaintiff asserts that the ALJ erred in affording only partial weight to the opinion of 24 treating physician Dr. Fu. The Court disagrees. Because Dr. Fu’s opinion was contradicted by Dr. 25 Rana and the state agency medical consultants as to Plaintiff’s limitations regarding reaching with 26 his left arm, sitting, standing, and walking, the ALJ was required to provide “‘specific and 27 legitimate reasons’ supported by substantial evidence in the record for [rejecting the opinion].” 1 The ALJ afforded partial weight to Dr. Fu’s opinion overall and “little weight” to “the sit, 2 stand, and walk limitation” and the limitation of “never being able to reach with the left arm” 3 because those limitations were “overly restrictive and not linked to any objective evidence.” (AR 4 23-24.) Regarding the limitations caused by Plaintiff’s left shoulder condition, the ALJ’s decision 5 notes that treatment records in October 2013 indicated left shoulder pain with only moderate 6 limitations in range of motion. (AR 22-23 (citing AR 414-418).) The cited treatment record 7 indicates that on October 2, 2013, Plaintiff reported “mild-moderate” left shoulder pain that is 8 “dull and throbbing” but relieved with prescription pain medication and over the counter 9 medication. (AR 414.) On examination, the treatment provider noted tenderness to touch over the 10 entire left shoulder, and “moderately reduced” range of motion due to pain with an inability to 11 raise his left arm greater than 90 degrees. (AR 417-18.) The treatment provider noted that the 12 “[m]ost significant problem is [limited range of motion] on L shoulder [due to] pain, but [it] does 13 not prevent [Plaintiff] from engaging in gainful activities.” (AR 418.) 14 The ALJ next noted that an October 2013 X-ray of the left shoulder revealed “severe 15 glenohumeral osteoarthritis”; however, subsequent treatment notes in 2014 described Plaintiff’s 16 left shoulder pain as “mild.” (AR 23 (citing AR 428, 431).) Indeed, the cited treatment records, 17 dated November 18, 2014—one day before Dr. Fu’s medical source statement—note “mild” pain 18 with motion. (AR 428, 431.) The ALJ also cited Dr. Rana’s June 2015 opinion and noted that 19 since June 2015, Plaintiff’s “primary complaint was related to his skin infection/rash that was 20 being treated with clindamycin, prednisone, and triamcinolone,” and the remaining physical 21 examinations in the record “were relatively normal except for his skin condition.” (AR 23.) The 22 cited treatment records support the ALJ’s finding and indicate that Plaintiff was treated at 23 ValleyCare Medical Plaza (“ValleyCare”) between April 2015 and December 2016 for an abscess 24 on his right leg and a recurring skin infection/rash that was variously attributed to insect bites, 25 cellulitis, dermatitis, unknown etiology, folliculitis, scabies, and methamphetamine use. (See AR 26 474-520.) 27 None of the ValleyCare treatment records indicate subjective complaints or treatment 1 December 2015 and June, July, and December 2016 indicate “normal” range of motion in all four 2 extremities without pain. (See AR 476, 487, 492, 503, 512, 519.) A treatment record from 3 October 2015 likewise indicates no “joint pain or back pain.” (See AR 508.) In other words, 4 substantial evidence of record not only demonstrates that Dr. Fu’s “reach” limitation was overly 5 restrictive, but that Plaintiff’s left shoulder condition appeared to improve after Dr. Rana’s June 6 2015 examination. 7 As for Dr. Fu’s asserted “sit, stand, and walk” limitations associated with Plaintiff 8 diabetes, the ALJ’s discussion of the medical evidence noted that Plaintiff has “a long history of 9 uncontrolled diabetes” and “periods of non-compliance with his medication.” (AR 22.) The ALJ 10 further noted that even where Plaintiff’s diabetes remained uncontrolled, on examination he was 11 negative for “fatigue, pain, or weight gain.” (Id.) The ALJ recognized that Plaintiff’s associated 12 symptoms included “retinopathy of the left eye with blurred vision, frequent infections, frequent 13 urination, and polydipsia,” but when Plaintiff was compliant with his medication, his diabetes was 14 stable. (Id.) The ALJ also noted that Dr. Rana’s June 2015 examination report noted that Plaintiff 15 “had not been taking his medication for three weeks due to insurance issues,” but “there was no 16 evidence of lower extremity difficulty and the neurological examination was negative.” (Id.) The 17 ALJ further noted that Plaintiff was back on his medication by August 2015 and reported “feeling 18 better.” (Id. (citing AR 515).) The cited treatment records support the ALJ’s findings. 19 Treatment records from Axis Health from April and October 2013 note that Plaintiff was 20 negative for fatigue and pain, and had no complaints of lower extremity limitations. (AR 406-07, 21 410-11.) A September 2014 treatment record notes that Plaintiff’s diabetes was “getting worse,” 22 but it also notes that Plaintiff “did not use [his] medication,” and [t]here are no associated 23 symptoms.” (AR 423.) At a follow-up in November 2014—one day before Dr. Fu’s medical 24 source statement—Mr. Liu characterizes Plaintiff’s diabetes as “stable” and states that Plaintiff 25 was complying with his medication regimen and “has been managed with diet, oral medications 26 and insulin.” (AR 428.) The treatment record notes the following associated symptoms: “blurred 27 vision, frequent infections, frequent urination and polydipsia.” (Id.) A review of Plaintiff’s 1 (AR 430.) 2 The ValleyCare treatment records dated April 2015 through December 2016 are likewise 3 silent as to any symptoms suggesting the “sit, stand, and walk” limitations set forth in Dr. Fu’s 4 medical source statement. Instead, and as previously discussed, the ValleyCare records 5 demonstrate that since June 2015, Plaintiff’s “primary complaint was related to his skin 6 infection/rash,” and the remaining physical examinations in the record “were relatively normal 7 except for his skin condition.” (AR 23.) 8 In sum, the ALJ’s discussion of Plaintiff’s treatment history and the objective medical 9 evidence constitute “specific and legitimate reasons supported by substantial evidence” for 10 assigning only partial weight to Dr. Fu’s opinion. 11 II. Subjective Symptom Testimony 12 A. Legal Standard 13 The Ninth Circuit has “established a two-step analysis for determining the extent to which 14 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 15 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 16 evidence of an underlying impairment which could reasonably be expected to produce the pain or 17 other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal 18 quotation marks and citation omitted). “Second, if the claimant meets the first test, and there is no 19 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of her 20 symptoms only by offering specific, clear and convincing reasons for doing so.” Id. (internal 21 quotation marks and citation omitted). 22 “The clear and convincing standard is the most demanding required in Social Security 23 cases.” Moore v. Comm’r of Soc. Sec., 278 F.3d 920, 924 (9th Cir. 2002). Thus, the ALJ cannot 24 rely on “general findings” in rejecting a plaintiff’s subjective symptom testimony. Holohan, 246 25 F.3d at 1208. That said, the ALJ need not accept the plaintiff’s allegations of pain as true, and 26 “may consider inconsistencies either in the claimant’s testimony or between the testimony and the 27 claimant’s conduct . . . and whether the claimant engages in daily activities inconsistent with the 1 Further, “the ALJ may discredit a claimant’s testimony when the claimant reports participation in 2 everyday activities indicating capacities that are transferable to a work setting.” See id. “Even 3 where those activities suggest some difficulty functioning, they may be grounds for discrediting 4 the claimant’s testimony to the extent that they contradict claims of a totally debilitating 5 impairment.” Id. If the ALJ’s assessment “is supported by substantial evidence in the record, 6 [courts] may not engage in second-guessing.” See Thomas, 278 F.3d at 959. 7 B. ALJ’s Analysis 8 Applying the two-step analysis, the ALJ first determined that Plaintiff’s “medically 9 determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 10 22.) Because Plaintiff met the first part of the test, the ALJ was required to provide “specific, 11 clear and convincing reasons” for rejecting Plaintiff’s testimony regarding the severity of her 12 symptoms, or else find evidence of malingering. Lingenfelter, 504 F.3d at 1036. The ALJ did so. 13 In considering Plaintiff’s subjective symptom testimony, the ALJ cited the following 14 testimony from the February 2017 hearing: 15 [Plaintiff] testified that his impairments include[ ] broken bones, reconstructive surgery on his face, and left rotator cuff surgery. He 16 alleges that he is unable to do heavy lifting and is unable to lift his arms overhead or put his coat on comfortably. He further alleges that 17 he is unable to reach his feet or scrub his back with his left arm. He also testified that he suffers from type 2 diabetes and that he needs to 18 lie down for 15 minutes or he will experience tingling in his feet. He said he is able to stand 20-25 minutes and the he lies down 3 to 4 times 19 a day. He testified that he is compliant with his medication. 20 (AR 22.) 21 The ALJ found that Plaintiff’s testimony regarding the “intensity, persistence, and limiting 22 effects of his symptoms” was inconsistent with the medical evidence of record, which indicates 23 that Plaintiff “remains capable of performing less than light work, despite his diabetes and left 24 shoulder condition.” (Id.) The ALJ then discussed the medical evidence in relation to Plaintiff’s 25 testimony and discounted Plaintiff’s testimony, noting that Plaintiff’s treatment history, the 26 objective medical evidence, and Plaintiff’s “own report that he is able to ride a bike” did not 27 support Plaintiff’s testimony. (AR 22-23.) These reasons are specific, clear, and convincing. As 1 not support Plaintiff’s testimony regarding debilitating limitations associated with his diabetes or 2 left shoulder condition. Further, Plaintiff’s self-reported activities of daily living support the 3 ALJ’s determination; specifically, Plaintiff’s May 2015 disability questionnaire reported that 4 Plaintiff: used a bike for transportation and lifted the bike “a few times a day,” went grocery 5 shopping twice a week, did his own laundry and cleaning, and did yardwork using a “push 6 mower.” (AR 269-70.) And although Plaintiff reported that riding his bike and using the push 7 mower were fatiguing, (see id.), those activities do not evince “totally debilitating impairments,” 8 see Molina, 674 F.3d at 1112 (noting that “[e]ven where [reported] activities suggest some 9 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the extent 10 that they contradict claims of a totally debilitating impairment”). 11 In sum, the ALJ’s assessment of Plaintiff’s subjective symptom testimony is supported by 12 substantial evidence and does not constitute reversible error. 13 III. Step-Five Determination 14 Plaintiff argues that the ALJ committed reversible error at step five because she concluded 15 that Plaintiff could perform light work, but the ALJ’s RFC determination is “more consistent with 16 a range of sedentary work than a range of light work” because the RFC indicates that Plaintiff is 17 “limited to standing and walking for 1 hour at a time and up to 4 total hours in an 8-hour day.” 18 (Dkt. No. 24 at 15.) In support, Plaintiff notes that “Social Security Ruling 83-10 provides that the 19 ability to perform the full range of light work typically requires about 6 hours of standing and 20 walking in an 8-hour day.” (Id.) Defendant counters that the ALJ did not err because she properly 21 relied on the VE’s testimony at step five. (Dkt. No. 25 at 9.) The Court agrees for three reasons. 22 First, the VE testified that a claimant with Plaintiff’s RFC could perform certain 23 occupations defined as light work that allow individuals to “sit or stand as needed.” (AR 38-41 24 (listing “production assembler” (DOT Code 706.687-010), “subassembler electrical equipment” 25 (DOT Code 729.684-054), and “bench assembler” (DOT Code 706.684-022).) The ALJ’s 26 decision discussed the VE’s testimony regarding the “sit/stand option” and ultimately found that, 27 “[p]ursuant to SSR 00-4p, . . . the vocational expert’s testimony is consistent with the information 1 the VE’s testimony was consistent with the Dictionary of Occupational Titles and that the VE 2 adequately explained the existence of the sit/stand option “based on her professional experience as 3 a Certified Rehabilitation Counselor for over 17 years,” the ALJ did not err in relying on the VE’s 4 testimony in support of her step-five determination. See Gutierrez v. Colvin, 844 F.3d 804, 809 5 (9th Cir. 2016) (“The ALJ was entitled to rely on the [vocational] expert’s ‘experience in job 6 placement’ to account for ‘a particular job’s requirements.”) (quoting SSR 00-4p, 2000 WL 7 1898704, at *2 (2000)). 8 Second, the ALJ’s decision notes that Plaintiff’s RFC does not indicate an ability to 9 “perform the full range of light work,” based on Plaintiff’s limitations with standing and walking. 10 (See AR 25.) As Plaintiff recognizes, SSR 83-10 provides that “a job is in [the light work] 11 category when it requires a good deal of walking or standing,” with “the full range of light work” 12 requiring “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour 13 workday.” SSR 83-10, 1983 WL 31251, at *5-6 (1983) (emphasis added). Here, the ALJ’s 14 decision expressly notes that Plaintiff’s RFC does not reflect an ability to perform the full range of 15 light work, but instead considers additional limitations requiring the “sit/stand option.” (See AR 16 25.) Thus, the ALJ’s determination—again, based on the VE’s testimony—that Plaintiff’s RFC 17 reflects an ability to perform less than the full range of light work does not conflict with SSR 83- 18 10 or otherwise evince legal error. See Hatfield v. Berryhill, 768 Fed. App’x 629, 632 (9th Cir. 19 2019) (rejecting argument that ALJ erred in accepting VE’s testimony that plaintiff could perform 20 light work where RFC limited plaintiff “to five hours of standing in a workday,” because “the 21 requirements of occupations listed in the [DOT] are maximum requirements, not the requirements 22 of each particular job within that occupation”) (citing SSR 00-4p, 2000 WL 1898704; Gutierrez, 23 844 F.3d at 807-08). Further, “the ALJ confirmed with the VE that the identified jobs were 24 suitable for someone who could only stand or walk for [four] hours [total] in a workday.” Id. 25 Finally, Plaintiff is wrong to the extent he argues that the ALJ’s RFC determination 26 describes an ability to perform a range of sedentary work versus light work based on the 27 standing/walking limitation. SSR 83-10 provides that “at the sedentary level of exertion, periods 1 and sitting should generally total approximately 6 hours of an 8-hour workday.” 1983 WL 31251, 2 at *5 (emphasis added). Here, the RFC provides that Plaintiff can sit for a total of 4 hours and 3 stand or walk for a total of 4 hours of an 8-hour workday. Thus, the RFC exceeds the general 4 || requirement for sedentary work under SSR 83-10. 5 Accordingly, the ALJ’s step-five determination does not constitute reversible error. 6 CONCLUSION 7 For the reasons stated above, the Court DENIES Plaintiff’s motion and GRANTS 8 || Defendant’s motion. While the Court is sympathetic to Plaintiff's condition, the record does not 9 || demonstrate that Plaintiff is disabled under the Social Security Act or that the ALJ erred in so 10 || finding. 11 This Order disposes of Docket Nos. 24 and 25. 12 IT IS SO ORDERED. 5 13 Dated: March 16, 2020 □ bi Sp ols 15 ne A CQWELINE SCOTT CORLEY. = 16 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28