Moulis v. Commissioner of Social Security Administration

Filing 22

ORDER - IT IS THEREFORE ORDERED affirming the decision of the Commissioner. IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and terminate this case. See document for complete details. Signed by Judge Susan M Brnovich on 9/8/2020. (WLP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimberly Ann Moulis, 10 Plaintiff, No. CV-18-01385-PHX-SMB ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 At 15 issue is the Commissioner of Social Security Administration’s 16 (“Commissioner”) denial of Plaintiff’s application for Title II Disability Insurance Benefits 17 under the Social Security Act (“Act”). Plaintiff filed a Complaint seeking judicial review 18 of the decision (Doc. 1), and the Court now considers Plaintiff’s Opening Brief (Doc. 13, 19 “Pl. Br.”), the Commissioner’s Response (Doc. 18, “Def. Br.”), Plaintiff’s Reply (Doc. 21, 20 “Reply”), and the Administrative Record (Doc. 9, “R.”). For the following reasons, the 21 decision is affirmed. 22 I. BACKGROUND1 23 Plaintiff filed her application for disability benefits on October 31, 2014, alleging 24 disability as of June 27, 2014 due to spinal lumbar stenosis, two herniated discs, nerve pain 25 in right leg, and knee disease and arthritis. (R. at 15, 266, 273–75.) Following denial of 26 the application at the initial and reconsideration levels, a hearing before an administrative 27 1 28 The Court has reviewed the entirety of the medical evidence. In lieu of providing a detailed summary of it here, the Court will reference and incorporate particular evidence as appropriate in its analysis. 1 law judge (“ALJ”) was held on March 14, 2017. (Id. at 15, 115–136.) On May 18, 2017, 2 the ALJ issued a written decision finding Plaintiff not disabled. (Id. at 15–28.) Therein, 3 the ALJ found Plaintiff had “severe”2 impairments of degenerative disc disease of the 4 lumbar spine with radiculopathy, obesity, and mild degenerative changes of the knees. (Id. 5 at 18.) Despite these impairments, the ALJ found Plaintiff retained the residual functional 6 capacity (“RFC”)3 to perform “light”4 work except that she could lift/carry 10 pounds 7 frequently and 20 pounds occasionally; stand/walk for 6 hours; sit for 6 hours; and 8 occasionally stoop, kneel, crouch, crawl, and climb ramps/stairs but never ladders, ropes, 9 or scaffolds. (Id. at 19–20.) She also had to avoid concentrated exposure to unprotected 10 heights, vibration, and moving/dangerous machinery. (Id. at 20.) Based on this RFC 11 assessment and the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff 12 could perform past relevant work as a bookkeeper and retail manager and was therefore 13 not disabled. (Id. at 27, 131.) Afterward, the Appeals Council denied review and the 14 decision became final. (Id. at 1–3.) 15 II. LEGAL STANDARD 16 In reviewing a decision of the Commissioner, the Court only reviews issues raised 17 by the party challenging the decision. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 18 1155, 1161 n.2 (9th Cir. 2008); see also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) 19 (“[The Court] will not ordinarily consider matters on appeal that are not specifically and 20 distinctly argued in appellant’s opening brief.”). The Court may affirm, modify, or reverse 21 22 23 24 25 26 27 28 An “impairment or combination of impairments” is “severe” if it “significantly limits [the] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). 2 “[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). 4 -2- 1 the decision, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). The 2 Court may set aside the decision only when it is not supported by “substantial evidence” 3 or is based on legal error. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 4 “Substantial evidence means more than a mere scintilla, but less than a preponderance. It 5 means such relevant evidence as a reasonable mind might accept as adequate to support a 6 conclusion.” Id. “Where evidence is susceptible to more than one rational interpretation, 7 the ALJ’s decision should be upheld.” Id. at 674–75; see also Jamerson v. Chater, 112 8 F.3d 1064, 1067 (9th Cir. 1997) (“[T]he key question is not whether there is substantial 9 evidence that could support a finding of disability, but whether there is substantial evidence 10 to support the Commissioner’s actual finding that claimant is not disabled.”). “Yet [the 11 Court] must consider the entire record as a whole, weighing both the evidence that supports 12 and the evidence that detracts from the Commissioner’s conclusion, and may not affirm 13 simply by isolating a specific quantum of supporting evidence.” Trevizo, 871 F.3d. at 675. 14 “[The Court] review[s] only the reasons provided by the ALJ in the disability determination 15 and may not affirm the ALJ on a ground upon which he [or she] did not rely.” Id. “Even 16 when the ALJ commits legal error, [the Court] uphold[s] the decision where that error is 17 harmless.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014). “An 18 error is harmless if it is inconsequential to the ultimate nondisability determination, or if 19 the agency’s path may reasonably be discerned, even if the agency explains its decision 20 with less than ideal clarity.” Id. (citations and internal quotation marks omitted). 21 To determine whether a claimant is disabled under the Act, the ALJ engages in a 22 five-step sequential analysis. 20 C.F.R. § 404.1520(a). The burden of proof is on the 23 claimant for the first four steps but shifts to the ALJ at step five. Ford v. Saul, 950 F.3d 24 1141, 1148–49 (9th Cir. 2020). 25 responsible for determining credibility, resolving conflicts in medical testimony, and for 26 resolving ambiguities.” Id. at 1149 (citation and internal quotation marks omitted). At 27 step one, the ALJ determines whether the claimant is presently engaging in substantial 28 gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the “Throughout the five-step evaluation, the ALJ is -3- 1 inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” 2 medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the 3 claimant is not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether 4 the claimant’s impairment or combination of impairments meets or medically equals an 5 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. 6 § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ proceeds to step 7 four. Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the 8 claimant is capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If so, the 9 claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to step five and 10 determines whether the claimant can perform other work existing in significant numbers 11 in the national economy based on the claimant’s RFC, age, education, and work experience. 12 Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 13 disabled. Id. 14 III. ANALYSIS 15 A. The ALJ Did Not Err In Discounting Plaintiff’s Allegations. 16 Plaintiff’s first assignment of error is that the ALJ improperly discounted her 17 subjective allegations of disabling pain and limitations. (Pl. Br. at 6–16; see R. at 117–29, 18 265–75.) Plaintiff testified that she had stopped working in 2014 due to pain in her back 19 and leg. (R. at 117, 123–29.) She alleged, inter alia, that she cannot sit for more than an 20 hour without having to lie down and that injection therapy has not helped. (Id. at 25, 118.) 21 In assessing a claimant’s RFC, the ALJ considers a claimant’s subjective statements 22 and “determine[s] the extent to which [any] alleged functional limitations and restrictions 23 due to pain or other symptoms can reasonably be accepted as consistent with the medical 24 signs and laboratory findings and other evidence to decide how [the] symptoms affect [the 25 claimant’s] ability to work.” 20 C.F.R. § 404.1529(a); see 20 C.F.R. § 404.1529(c)(2). 26 Absent a finding of malingering, the ALJ must provide “specific, clear and convincing 27 reasons” for discounting a claimant’s subjective allegations. Treichler, 775 F.3d at 1102. 28 General findings are not sufficient. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. -4- 1 2001). Rather, “the ALJ must specifically identify the testimony she or he finds not to be 2 credible and must explain what evidence undermines the testimony.” Id. “Although the 3 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 4 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 5 substantial evidence.” Treichler, 775 F.3d at 1099. The ALJ may consider, inter alia: (1) 6 “inconsistencies either in the claimant’s testimony or between the testimony and the 7 claimant’s conduct,” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded 8 by regulation on other grounds; (2) “whether the alleged symptoms are consistent with the 9 medical evidence,”5 Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); (3) 10 “whether the claimant takes medication or undergoes other treatment for the symptoms,” 11 id.; and (4) any “unexplained or inadequately explained failure to seek treatment or to 12 follow a prescribed course of treatment,” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 13 Cir. 2008). See also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 14 2006) (“Impairments that can be controlled effectively with medication are not 15 disabling.”); see generally 20 C.F.R. § 404.1529(c). 16 Here, the ALJ first discounted Plaintiff’s allegations on account that they were not 17 entirely consistent with medical evidence in the record. (Id. at 20–24.) Although the ALJ 18 noted various abnormal findings made by Plaintiff’s pain specialist, Dr. Ramoun Jones, 19 including, inter alia, decreased range of motion, tenderness, and positive straight leg raises 20 as well as MRI’s showing various abnormalities in Plaintiff’s spine, the ALJ noted that 21 other “objective clinical findings and observations contained in the record support a light 22 level of exertion.” (Id. at 21 (citing records).) In particular, the ALJ noted that in March 23 2015 Plaintiff’s primary care provider, Dr. Lucia Soto, found a “normal range of motion, 24 muscle strength, and stability in all extremities with no pain on inspection,” subsequent to 25 Plaintiff undergoing injection therapy with Dr. Jones. (Id. at 22 (citing id. at 406–09), 449.) 26 “[H]owever, an ALJ cannot reject a claimant’s subjective pain or symptom testimony simply because the alleged severity of the pain or symptoms is not supported by objective medical evidence.” Lingenfelter, 504 F.3d at 1040 n.11; see 20 C.F.R. § 404.1529(c)(2). 5 27 28 -5- 1 Dr. Jones had administered injection therapy to Plaintiff from December 2014 to October 2 2016 until a change of insurance reportedly made the injections financially burdensome. 3 (Id. at 429–58, 493–535, 545–54.) As noted by the ALJ, Plaintiff consistently reported 80- 4 85% relief immediately following administration of the injection. (Id. at 21–22 (citing id. 5 at 449–51 [December 2014], 444–47 [January 2015], 439–43 [February 2015], 514–16 6 [January 2016], 508–12 [February 2016]), 118.) The ALJ also noted four examinations 7 conducted by another primary care provider, Dr. Lucia Gregorio, which were unremarkable 8 for neurological or musculoskeletal deficits.6 (Id. at 23, 483–85 [April 1, 2016], 486–88 9 [April 19, 2016], 540–41 [November 14, 2016], 542–43 [December 13, 2016]; see id. at 10 484 [“Negative for joint stiffness, joint pain, joint swelling, leg cramps, sciatica, fracture”; 11 “Negative for . . . gait abnormality”], 487 [same], 541 [same], 542 [“AMBULATORY, NO 12 OBVIOUS PAIN”]).) Lastly, the ALJ noted findings by multiple providers, including Dr. 13 Jones, of a normal gait and station. (Id. at 22–23 (citing id. at 434–38 [March 2015] , 430– 14 32 [May 2015], 514–16 [January 2016], 508–12 [February 2016], 493–97 [June 2016], 15 542–43 [December 2016]).) 16 The Court notes the clear conflict between the treatment notes of Drs. Soto and 17 Gregorio and those of Dr. Jones. For instance, while Drs. Soto and Gregorio consistently 18 found no pain or abnormalities on examination, Dr. Jones consistently found decreased 19 range of motion, positive straight leg raise tests, and tenderness. (See, e.g., id. at 432, 534, 20 542, 409.) Given that the ALJ–not the Court–is “the final arbiter with respect to resolving 21 ambiguities in the medical evidence,” Tommasetti, 533 F.3d at 1041, and “[w]here [the] 22 evidence is susceptible to more than one rational interpretation, the ALJ’s decision should 23 be upheld,” Trevizo, 871 F.3d at 674–75, the Court defers to the ALJ’s resolution of this 24 conflicting evidence. In light of this deferential standard, the Court finds that the ALJ’s 25 finding that the aforementioned clinical findings and observations were inconsistent with 26 Both Plaintiff and the ALJ repeatedly misspell Dr. Gregorio’s name as “Gregoria” and “Gregario,” respectively. (E.g., Pl. Br. at 17; R. at 26.) The Court will spell Dr. Gregorio’s name as it appears in the treatment notes. (E.g., R. at 483.) 6 27 28 -6- 1 Plaintiff’s alleged limitations was proper and supported by substantial evidence. 2 Accordingly, this inconsistency with the medical evidence was a clear and convincing 3 reason for discounting Plaintiff’s allegations. 20 C.F.R. § 404.1529(a); see Lingenfelter, 4 504 F.3d at 1040; Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 5 In dispute, Plaintiff argues that “medical records [are] not inconsistent when [the] 6 claimant described symptoms with more detail to [a] specialist than to [a] general 7 practitioner.” (Pl. Br. at 10 (citing Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 8 1200 (9th Cir. 2008)).) However, this argument is unavailing given the objective nature of 9 the findings at issue. It is immaterial what Plaintiff’s subjective descriptions to Drs. Soto 10 and Gregorio were versus what they were to Dr. Jones. The ALJ reasonably relied on the 11 normal, objective findings made by Drs. Soto and Gregorio and concluded that they were 12 inconsistent with Plaintiff’s allegations of disabling limitations. 13 Additionally, Plaintiff argues that it was “unreasonable [for the ALJ] to infer pain 14 symptoms/limitations did not exist based on [Dr. Soto’s March 2015] exam for unrelated 15 conditions.” (Pl. Br. at 10.) In support, Plaintiff cites Widmark v. Barnhart, 454 F.3d 1063, 16 1067–68 (9th Cir. 2006) for the proposition that it is “reasonable to expect [a] doctor to 17 focus attention on the subject of [the] exam.” (Id.) However, Widmark does not direct a 18 finding of error here. In Widmark, the ALJ had rejected the opinion of a treating physician 19 because, inter alia, “‘[n]o other physician has cited any significant restrictions related to 20 right thumb impairment.’” Id. at 1067 (brackets in original). The Court of Appeals rejected 21 this reason, stating that “[t]o reject [the physician’s] thumb opinion based on the absence 22 of another thumb opinion in the record, the ALJ would have had to [impermissibly] infer 23 from this absence that Widmark’s other examining physicians did not comment on any 24 restriction in his ability to do fine manipulation because none existed.” Id. (emphasis 25 added). Here, the ALJ did not have to “infer” anything because Dr. Soto’s findings–as 26 well as Dr. Gregorio’s–spoke for themselves. Unlike the ALJ in Widmark, the ALJ here 27 did not premise his conclusion upon any “absence” of findings, but rather on actual 28 findings made by Drs. Soto and Gregorio during their examinations. Dr. Soto’s express -7- 1 findings of “normal range of motion, muscle strength, and stability in all extremities with 2 no pain on inspection” directly undercut Plaintiff’s allegations. (R. at 409.) The reason 3 Plaintiff presented to Dr. Soto is immaterial. The findings were made, and the ALJ was 4 therefore entitled to consider them as relevant medical evidence. 5 Lastly, in support of her allegations of disability, Plaintiff cites to examination notes 6 from Dr. Curtis Miller, an orthopedic surgeon who evaluated her back and leg pain in early 7 2013 (prior to her alleged onset date of June 27, 2014). (Pl. Br. at 8; R. at 345–52.) Dr. 8 Miller’s notes, however, fail to support Plaintiff’s assertion that she is “an individual who 9 cannot sit, stand[,] or walk for any length of time without severe pain.” (Pl. Br. at 7.) At 10 the latter of her two visits with Dr. Miller, Plaintiff reported that “with her anti- 11 inflammatory, her pain is mostly gone.”7 (R. at 345.) Dr. Miller noted that “she is doing 12 better” and suggested that she continue using the anti-inflammatories. (Id. at 347.) 13 “Impairments that can be controlled effectively with medication are not disabling.” Warre, 14 439 F.3d at 1006. Thus, Dr. Miller’s notes neither support Plaintiff’s allegations of 15 disability nor her allegation of error by the ALJ. 16 In addition to being inconsistent with the medical evidence, the ALJ found 17 Plaintiff’s allegations inconsistent with evidence of effectiveness of medications and 18 treatment in relieving her pain. (Id. at 21–23.) As previously discussed, the ALJ noted 19 that injection therapy consistently provided 80-85% relief of pain. (Id. at 21–22 (citing 20 records).) Additionally, the ALJ noted that lumbar reproducible ablation therapy was 21 reportedly “beneficial” and that lumbar facet radiofrequency denervation provided 80% 22 relief of pain. (Id. at 22 (citing id. at 534–35); 23 (citing id. at 493–97).) Moreover, the 23 ALJ noted that Plaintiff “admitted her current dosing of her medications combined with a 24 gentle low impact exercise regimen had allowed [her] to be more functional and 25 productive.” (Id. at 22 (citing id. at 534–35).) The ALJ also noted Plaintiff’s denial of side 26 effects or issues with her medications (Neurontin, cyclobenzaprine, oxycodone, tramadol, 27 28 As noted by the ALJ, Plaintiff also reported to Dr. Jones that “[s]he has used anti[-]inflammatories with some significant improvement in pain.” (R. at 21, 456.) 7 -8- 1 and meloxicam). (Id. (citing id. at 534–35).) And, as previously noted, Plaintiff’s primary 2 care providers found no pain on inspection. Thus, Plaintiff’s allegations were properly 3 discounted on account of this evidence, notwithstanding Plaintiff’s reference to other 4 evidence which might support a different conclusion (see Pl. Br. at 12). See Jamerson, 112 5 F.3d at 1067 (“[T]he key question is not whether there is substantial evidence that could 6 support a finding of disability, but whether there is substantial evidence to support the 7 Commissioner’s actual finding that claimant is not disabled.”). Here, there is substantial 8 evidence to support the ALJ’s finding that Plaintiff’s pain was not as severe as she alleged 9 based on the evidence of effectiveness of medication and treatment. As such, this finding 10 was a clear and convincing reason to discount her allegations of disabling pain. 11 Lingenfelter, 504 F.3d at 1040; Warre, 439 F.3d at 1006. 12 The ALJ also properly found that Plaintiff’s cane was not medically necessary. (R. 13 at 23; see Pl. Br. at 15.) Although the ALJ noted that Plaintiff was “given” a cane by her 14 pain specialist–once in May 2015 and again in October 2015–the ALJ found that there was 15 insufficient documentation in the medical record to support its medical necessity and noted, 16 in particular, that Plaintiff’s alleged need for it was inconsistent with normal neurological 17 and musculoskeletal findings made by Dr. Gregorio. (R. at 22–23, 432, 530, 483–92, 540– 18 44.) Despite Plaintiff testifying that she uses a cane whenever she leaves her house, Dr. 19 Gregorio consistently noted that Plaintiff was “negative” for “gait abnormality” and was 20 “AMBULATORY [with] NO OBVIOUS PAIN.” (Id. at 126, 128, 484, 487, 541–42 21 (capitalizations in original).) Additionally, as noted by the ALJ, earlier treatment notes 22 from Plaintiff’s other primary care providers between July 2015 and December 2015 fail 23 to mention use of a cane. (Id. at 22 (citing id. at 462–82).) Thus, the Court finds no error 24 in the ALJ’s finding that Plaintiff’s cane was not medically necessary where the medical 25 record failed to establish a need for it and no medical provider described the circumstances 26 for which it was needed. See SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996).8 27 8 28 “To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether -9- 1 Lastly, the ALJ discounted Plaintiff’s allegations on account of her “refusal to 2 pursue additional treatment modalities” and “failure to pursue physical therapy and follow- 3 up with [a] neurosurgeon” and because she was “routinely observed . . . [to be] in no acute 4 distress.” (Id. at 23.) Given that the Court has found at least two of the ALJ’s reasons for 5 discounting Plaintiff’s allegations valid as detailed above–(1) inconsistency with clinical 6 evidence and (2) effectiveness of medications and treatment–it need not determine the 7 validity of the ALJ’s other reasons. Even if the Court were to find error in these remaining 8 reasons, it would not change the outcome of the case. See Bray v. Comm’r of Soc. Sec. 9 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (holding that ALJ’s reliance on invalid 10 reasons to discredit claimant’s testimony constituted harmless error where ALJ had also 11 relied on valid reasons). 12 B. 13 Plaintiff’s next assignment of error is that the ALJ erred in rejecting the medical 14 opinions of her treating primary care providers, Drs. Soto and Gregorio. (Pl. Br. at 17–23; 15 see R. at 25–26.) Plaintiff also disputes the ALJ’s reliance on the opinions of consultative 16 examining physician, Dr. Paul Bendheim, and the State agency reviewing physicians. (Pl. 17 Br. at 23–25; see R. at 25–26.) The ALJ Properly Evaluated The Medical Opinion Evidence. 18 In assessing a claimant’s RFC, the ALJ considers “all of the relevant medical and 19 other evidence,” including medical opinion evidence. 20 C.F.R. § 404.1545(a)(3); see 20 20 C.F.R. § 404.1527. In general, medical opinions of treating sources are entitled to the 21 greatest weight; opinions of examining, non-treating sources are entitled to lesser weight; 22 and opinions of non-examining, non-treating sources are entitled to the least weight. 23 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “If a treating or examining doctor’s 24 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing 25 specific and legitimate reasons that are supported by substantial evidence.” Id. An ALJ 26 satisfies the substantial evidence requirement by “setting out a detailed and thorough 27 28 all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).” SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). - 10 - 1 summary of the facts and conflicting evidence, stating his [or her] interpretation thereof, 2 and making findings.” Id. “The opinions of non-treating or non-examining physicians 3 may also serve as substantial evidence when the opinions are consistent with independent 4 clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 5 (9th Cir. 2002). In evaluating any medical opinion, the ALJ may consider: (1) whether the 6 source examined the claimant; (2) the length, frequency, nature, and extent of any treatment 7 relationship; (3) the degree of support the opinion has, particularly from objective medical 8 evidence; (4) the consistency of the opinion with the record as a whole; (5) the source’s 9 specialization; and (6) “other factors.” 20 C.F.R. §§ 404.1527(c)(1)–(6); Trevizo, 871 F.3d 10 11 at 675. 1. The ALJ properly evaluated Dr. Soto’s opinions. 12 The ALJ gave “[p]artial weight” to Dr. Soto’s opinion. (R. at 25, 536–37 [July 2015 13 opinion].) Dr. Soto opined, inter alia, that Plaintiff could only sit, stand, and walk for less 14 than two hours; would miss 4-5 days of work per month; and would be off-task 16-20% of 15 an 8-hour workday. (Id. at 536–37.) She did not know how much Plaintiff could lift or 16 carry or how well she could perform fine manipulation or postural maneuvers. (Id. at 536.) 17 She did not indicate whether Plaintiff’s impairments precluded an 8-hour workday. (Id.) 18 In evaluating Dr. Soto’s opinion, the ALJ noted that Dr. Soto: (1) “did not give 19 lifting/carrying limitations, which would not restrict [Plaintiff] from the lifting/carrying 20 limitations of light work”; (2) “did not mention [Plaintiff] needed a cane to ambulate which 21 is also consistent with the overall medical evidence”; (3) “did not answer whether 22 conditions precluded an eight-hour workday”; and (4) “d[id] not provide an explanation 23 [for Plaintiff’s] restrictions in sitting, standing, and walking.” (Id.) Moreover, the ALJ 24 noted that Dr. Soto was a primary care physician and not an orthopedic doctor, pain 25 management specialist, or neurologist and had deferred treatment of Plaintiff’s lumbago to 26 Dr. Jones. (Id.) As such, the ALJ noted that Dr. Soto “would not be able to assess 27 [Plaintiff’s] limitations since she was not treating the condition.” (Id.) Furthermore, the 28 ALJ found Dr. Soto’s evaluation “unsupported by the overall medical evidence showing - 11 - 1 mostly normal findings on exam” and “based solely on what [Plaintiff had] told her.” (Id. 2 (citing Dr. Gregorio’s examination notes).) 3 The ALJ’s reasons for assigning lesser weight to Dr. Soto’s opinion are specific, 4 legitimate, and supported by substantial evidence. As previously discussed, the ALJ noted 5 normal objective findings made by Dr. Soto, as well as by Dr. Gregorio, and properly found 6 that Plaintiff’s cane was not medically necessary. The lack of support from Dr. Soto’s own 7 objective findings and her lack of explanation were valid reasons for discounting her 8 opinion. See 20 C.F.R. § 404.1527(c)(3)9; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 9 1190, 1195 (9th Cir. 2004) (affirming rejection of a treating physician’s opinion that “was 10 in the form of a checklist, did not have supportive objective evidence, was contradicted by 11 other statements and assessments of [claimant’s] medical condition, and was based on 12 [claimant’s] subjective descriptions of pain”); Thomas, 278 F.3d at 957 (stating that the 13 ALJ may reject the opinion of any physician, including a treating physician, if that opinion 14 is brief, conclusory, and inadequately supported by clinical findings”). Moreover, the fact 15 that Dr. Soto deferred treatment of Plaintiff’s condition to a pain specialist (id. at 411) was 16 another relevant factor as well as the fact that she was not a specialist in the area of 17 Plaintiff’s orthopedic and/or neurological pain condition.10 18 §§ 404.1527(c)(1), (c)(5). Accordingly, Dr. Soto’s opinions were properly discounted. 19 2. See 20 C.F.R. The ALJ properly evaluated Dr. Gregorio’s opinions. 20 The ALJ gave “[n]o weight” to Dr. Gregorio’s opinions. (Id. at 25–26, 538–39 21 [November 2016 opinion], 555–56 [February 2017 opinion].) Like Dr. Soto, Dr. Gregorio 22 opined that Plaintiff could only sit, stand, and walk for less than 2 hours. (Id. at 538, 555.) 23 24 25 “The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). 9 26 Plaintiff notes that Dr. Soto is an “internal medicine specialist.” (Pl. Br. at 19.) Be that as it may, the ALJ properly discounted her opinion because she was “not an orthopedic doctor, pain management specialist, or neurologist,” i.e., a specialist in the fields of medicine relevant to Plaintiff’s condition. 20 C.F.R. § 404.1527(c)(5). (R. at 25.) 10 27 28 - 12 - 1 She further opined that Plaintiff could only lift less than 15 pounds and carry less than 10 2 pounds. (Id.) She limited Plaintiff to less than occasional (0-20% of the workday) bending, 3 reaching, and stooping and opined that she would miss 6 or more days of work per month. 4 (Id. at 538–39, 555–56.) She stated that confusion and dizziness were “[m]oderately 5 severe” side effects of Plaintiff’s medications, rendering her off-task for 16-20% of the 6 workday. (Id. at 539, 556.) 7 In evaluating Dr. Gregorio’s opinion, the ALJ noted that it “was clearly based on 8 subjective complaints and what [Plaintiff] told her” and that Dr. Gregorio “alleged a 9 diagnosis of lumbar stenosis[,] which was not supported by the MRIs,” and “herniated 10 discs, which were not supported by the treatment records.” (Id. at 26.) The ALJ further 11 noted that despite stating in her opinion that Plaintiff experienced dizziness from her 12 medications, Dr. Gregorio noted that Plaintiff was negative for dizziness on the day she 13 rendered her opinion. (Id.; compare id. at 540 with id. at 539.) Moreover, the ALJ noted 14 that Dr. Gregorio’s neurological, musculoskeletal, and psychological exams were normal 15 that same day, as well as in April 2016. (Id. at 26; see id. at 483–85, 540–41.) The ALJ 16 also noted that Dr. Gregorio noted Plaintiff was “independent as to her activities of daily 17 living,” “alert, oriented, . . . comfortable, and in no obvious pain.” (Id. at 26; see id. at 18 541–42.) 19 These reasons are specific, legitimate, and supported by substantial evidence. The 20 ALJ was free to consider the consistency of Dr. Gregorio’s opinions with other evidence 21 in the record, including her own treatment notes, as well as the degree of supportability her 22 opinions had from the objective medical evidence, including her own clinical findings 23 made on examination. Dr. Gregorio’s normal examination findings as well as her notation 24 that Plaintiff was not dizzy were inconsistent with her opinions.11 As such, her opinions 25 26 27 28 Plaintiff argues that “the ALJ did not explain how the findings or reports conflicted with Dr. Gregori[o]’s opinions of specific limitations . . . .” (Pl. Br. at 21 (emphasis in original).) In reading the ALJ’s decision as a whole, particularly where the ALJ discusses the relevant medical evidence (R. at 20–24), the Court is able to reasonably discern the ALJ’s path and therefore finds no error. See Treichler, 775 F.3d at 1099. 11 - 13 - 1 were properly rejected on these accounts. See 20 C.F.R. §§ 404.1527(c)(3), (c)(4). Given 2 the opinions’ inconsistency with and lack of support from Dr. Gregorio’s own treatment 3 records, the ALJ did not err in finding that the opinions were based “to a large extent” on 4 Plaintiff’s self-reports and therefore did not err in rejecting them on this account as well. 5 See Tommasetti, 533 F.3d at 1041 (“An ALJ may reject a treating physician's opinion if it 6 is based ‘to a large extent’ on a claimant's self-reports that have been properly discounted 7 as incredible.”). 8 Given that the Court has found at least some of the ALJ’s reasons for rejecting Dr. 9 Gregorio’s opinions to be valid, it need not determine the validity of the ALJ’s other 10 reasons (id. at 26) for doing so. Even if the Court were to find error in the remaining 11 reasons, the error would not be reversible since it would be inconsequential to the ultimate 12 nondisability determination because some of the ALJ’s reasons are valid as explained 13 above. See Treichler, 775 F.3d at 1099; cf. Bray, 554 F.3d at 1227 (holding that ALJ’s 14 reliance on invalid reasons to discredit claimant’s testimony constituted harmless error 15 where ALJ had also relied on valid reasons). 16 17 3. The opinions of Dr. Bendheim and the State agency reviewing physicians constitute substantial evidence. 18 Consultative examining physician, Dr. Paul Bendheim, examined Plaintiff at the 19 behest of the Commissioner in February 2015. (Id. at 377–85.) Based on his examination, 20 Dr. Bendheim opined that Plaintiff was capable of light work with various postural and 21 environmental limitations. (Id. at 25, 381–83.) The ALJ gave “[s]ignificant weight” to 22 this opinion, noting that “updated records do not reveal worsening of [Plaintiff’s] 23 impairments.” (Id. at 25.) Elaborating, the ALJ noted that “[a]lthough pain management 24 records note decreased range of motion . . . treating sources . . . note [Plaintiff’s] spine 25 exam was unremarkable and she had full range of motion without pain.” (Id.) The ALJ 26 cited the previously discussed normal findings made by Dr. Gregorio in 2016, including 27 Plaintiff’s denial of joint stiffness, joint pain, joint swelling, leg cramps, sciatica, sleep 28 disturbance, dizziness, fatigue, and fracture as well as the fact that her gait was noted as - 14 - 1 normal without mention of a cane. (Id. (citing records).) Because of the consistency of 2 Dr. Bendheim’s opinion with this other evidence, it constituted substantial evidence 3 supportive of the ALJ’s nondisability determination. Thomas, 278 F.3d at 957. 4 The State agency reviewing physicians likewise opined that Plaintiff was not 5 disabled and capable of work at the light exertional level with various non-disabling 6 limitations. (R. at 26, 138–48 [reviewer opinion, initial level], 150–62 [reviewer opinion, 7 reconsideration level].) Their opinions, like Dr. Bendheim’s, were consistent with the 8 unremarkable/normal clinical evidence in the record and thus constituted substantial 9 evidence supportive of the ALJ’s nondisability determination. Thomas, 278 F.3d at 957. 10 Prior to the hearing, Plaintiff objected to the admission of all three physicians’ 11 opinions into evidence and requested a subpoena compelling the physicians’ attendance at 12 a deposition or hearing in order “to ascertain the basis” of their opinions. (Pl. Br. at 25; R. 13 at 320–22.) The ALJ denied this request.12 (R. at 15–16.) Plaintiff argues that because 14 the ALJ denied her request to subpoena Dr. Bendheim, his opinion could not constitute 15 substantial evidence that the ALJ could base his decision on. (Pl. Br. at 25.) In support, 16 Plaintiff cites Richardson v. Perales, 402 U.S. 389, 397 (1971). (Id.) However, as 17 explained by our Court of Appeals, Perales established that “even in the absence of cross- 18 examination, an adverse medical report may constitute substantial evidence of 19 nondisability.” Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir. 1983); see Perales, 402 20 21 22 23 24 25 26 27 28 “When it is reasonably necessary for the full presentation of a case, an administrative law judge . . . may, on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses . . . .” 20 C.F.R. § 404.950(d)(1). A request for a subpoena must “give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena.” Id. § 404.950(d)(2). Here, the ALJ found that Plaintiff’s request failed to comply with these requirements, other than being timely. (R. at 16.) In particular, the ALJ found that “[t]he reviewing and consultative examiner’s testimony has not been established as reasonably necessary to the full presentation of the case.” (Id.) 12 - 15 - 1 U.S. at 402.13 Moreover, “[a] claimant in a disability hearing is not entitled to unlimited 2 cross-examination, but rather ‘such cross-examination as may be required for a full and 3 true disclosure of the facts.’” Solis, 719 F.3d at 302 (quoting 5 U.S.C. § 556(d)). “The 4 ALJ, therefore, has discretion to decide when cross-examination is warranted.” Id. 5 Here, Plaintiff does not show–nor even allege–an abuse of discretion by the ALJ in 6 denying her request to subpoena Dr. Bendheim. (See Pl. Br. at 25.) The mere fact that she 7 could not cross-examine Dr. Bendheim does not mean that his opinion is not “substantial 8 evidence.” Solis, 719 F.2d at 302. Because Plaintiff fails to show an abuse of discretion 9 by the ALJ in denying her request to subpoena Dr. Bendheim, the ALJ was entitled to rely 10 on his opinion as “substantial evidence” in finding Plaintiff not disabled. Id. C. Plaintiff’s Allegation Of Error Regarding The Rejection Of Lay Witness 11 12 Testimony Was Not Properly Raised And Is Therefore Waived. 13 In a footnote to her Opening Brief, Plaintiff argues that the ALJ erred in rejecting 14 lay witness testimony from her husband. (Pl. Br. at 16 n.10.) Plaintiff then notes in her 15 Reply that the Commissioner failed to address this argument in his Response, suggesting 16 that he conceded the issue. (Reply at 6–7.) The Court disagrees. “A footnote is the wrong 17 place for substantive arguments on the merits of a motion, particularly where such 18 arguments provide independent bases for dismissing a claim not otherwise addressed in the 19 motion.” First Advantage Background Servs. Corp. v. Private Eyes, Inc., 569 F. Supp. 2d 20 929, 935 n.1 (N.D. Cal. 2008) (noting that “[t]he use of footnotes to circumvent [page limits 21 prescribed by local rules of practice] is improper”). Because Plaintiff raised this argument 22 only in a footnote and nowhere in the main body of her brief, the argument was not properly 23 raised and thus did not merit a response from the Commissioner. Id. 24 25 26 27 28 /// Specifically, the Supreme Court held that “[an examining physician’s report], despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the [ALJ], when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.” Perales, 402 U.S. at 402. 13 - 16 - 1 IT IS THEREFORE ORDERED affirming the decision of the Commissioner. 2 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 3 4 accordingly and terminate this case. Dated this 8th day of September, 2020. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 -

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