Eduard Reitshtein v. Carolyn W. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (See document for further details). (mr)

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8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
EDUARD REITSHTEIN,

11

Case No. CV 16-04334 SS

Plaintiff,

12
v.

13

NANCY A. BERRYHIL,1
Acting Commissioner of Social
Security,
Defendant.

14
15

MEMORANDUM DECISION AND ORDER

16
17
18
19

I.

20

INTRODUCTION

21
22

Eduard Reitshtein (“Plaintiff”) seeks review of the decision

23

of

24

(“Commissioner” or “Agency”) denying his application for Disability

25

Insurance Benefits and Supplemental Security Income benefits.

The

26

parties

the

27

1

28

the

Commissioner

consented,

of

the

pursuant

to

Social

28

Security

U.S.C.

§

Administration

636(c),

to

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).

1

jurisdiction of the undersigned United States Magistrate Judge.

2

For the reasons stated below, the Court AFFIRMS the Commissioner’s

3

decision.

4
5

II.

6

PROCEDURAL HISTORY

7
8
9

On

March

3,

2010,

Plaintiff

filed

an

application

for

Disability Insurance Benefits (“DIB”) and for Supplemental Security

10

Income (“SSI”).

(Administrative Record (“AR”) 22).

Plaintiff

11

alleged that he became unable to work as of February 12, 2007, due

12

to chronic lower back pain and knee pain.

13

Agency denied the application on December 14, 2010 (AR 48, 50) and

14

on reconsideration on April 5, 2012.

15

2012, Plaintiff requested a hearing.

16

judge, Zane Lang, conducted a hearing on August 14, 2012.

17

81).

18

(AR 19-38).

19

which was denied on March 27, 2014.

20

Plaintiff filed a complaint in federal district court (see 2:14-

21

CV-03133-MAN (“Prior Action”)), and on February 25, 2015, the

22

parties agreed by joint stipulation to remand the case to the

23

Commissioner for further proceedings.

24

No. 23).

25

administrative law judge, Sally Reason (“ALJ”).

26

the ALJ issued a decision denying benefits.

27

1, 2016, the ALJ’s determination then became the Commissioner’s

(AR 701-02, 778).

(AR 336-37).
(AR 66).

The

On April 14,

Administrative law
(AR 773-

On August 30, 2012, a decision was issued denying benefits.
Plaintiff sought review before the Appeals Council,
(AR 731).

On April 23, 2014,

(See Prior Action at Dkt.

On February 8, 2016, a second hearing was held before

28
2

On March 2, 2016,

(AR 648-63).

On May

1

final decision.

2

2016.

Plaintiff filed the instant action on June 16,

(Dkt. No. 1).

3
4

III.

5

FACTUAL BACKGROUND

6
7

Plaintiff was born on August 12, 1948.

(AR 43).

On September

8

18, 2007, the alleged disability onset date, Plaintiff was 60 years

9

old.

(AR 661).

Plaintiff completed high school through the tenth

10

grade.

(AR 700). Prior to his disability onset date, Plaintiff

11

worked as an auto mechanic.

12

that he suffers from chronic lower back pain and osteoarthritis in

13

the

14

Plaintiff’s Complaint (“MSP”) at 5).

left

knee.

(AR

(AR 661, 700-01).

702-03,

778;

Plaintiff maintains

Memorandum

in

Support

of

15
16

A.

Plaintiff’s Relevant Medical History And Physicians’ Opinions

17
18

1.

Yami Arad, D.C.

19
20

Dr. Arad was Plaintiff’s chiropractor from December 2006 to

21

December 2008.

22

weekly basis, (see 203, 208-09, 238, 240, 245-48), there are just

23

two treatment notes in the record.

24

15,

25

treated for pain in the L4-5 and L5-S region of the lumbar spine,

26

and November 27, 2008, treatment notes state Plaintiff’s back

27

condition lasted “on and off [for] the past 15 years,” although

2006,

(AR 201-24).

treatment

notes

Although Dr. Arad saw Plaintiff on a

(See AR 212, 243-44).

indicated

28
3

that

Plaintiff

November
was

being

1

during this time Plaintiff worked ten hours per day as an auto

2

mechanic.

(Id.; AR 226).

3
4

Dr.

Arad

filled

out

a

number

of

disability

reports

for

5

Plaintiff’s life insurance company, stating that Plaintiff was

6

temporarily unable to work and would be able to perform his “regular

7

customary work” within a one to two month period.

8

206, 208-09, 214, 232-34, 238, 240, 245-48).

9

Dr.

Arad

opined

that

stooping

Plaintiff’s
and

symptoms

bending,”

(See AR 203,

In these reports,
were

should

aggravated
avoid

by

10

“repeated

“any

11

lifting/bending,” and should not lift more than 5 or 10 pounds.

12

(AR 210, 216, 236).

13

and physical therapy.

Dr. Arad recommended chiropractic treatment
(AR 224).

14
15

2.

Michael S. Wallack, M.D.

16
17

On November 30, 2010, Dr. Michael Wallack, a board certified

18

specialist in internal medicine, saw Plaintiff for a consultative

19

examination.

20

“he has had back pain for 20 years” and took Advil and Vicodin.

21

(AR 316).

22

injections.

23

to palpation, muscle spasm, or evidence of scoliosis.

24

leg test was limited to 75 degrees “apparently because of tightness

25

in [Plaintiff’s] hamstrings,” forward flexion was 70 degrees,

26

extension was 15 degrees, and all other flexion/extension were

27

normal.

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conclude

(AR 316-23).

During the exam, Plaintiff stated that

Dr. Wallack noted that Plaintiff had no surgeries or
(Id.).

(AR 319).
that

Upon examination, Plaintiff had no tenderness
A straight

Dr. Wallack opined that there was no basis to

Plaintiff

had

any
4

functional

limitations

from

1

degenerative disease in his lower back and left knee.

2

(AR 320-

21).

3
4

3.

Kaiser Permanente Woodland Hills

5
6

Plaintiff was a patient at Kaiser Permanent Woodland Hills

7

from November 2006 to July 2012 where Dr. Emin Kuliev, M.D., was

8

his primary care physician.

9

appointment with Dr. Kuliev, Plaintiff appeared with medial left

(AR 262-493, 618-41).

At his first

10

knee pain and was referred for x-rays and physical therapy.

(AR

11

262).

12

(AR 288).

13

that had lasted for six weeks.

14

Plaintiff had a normal heel and toe walk, normal gait with mild

15

antalgic symptoms, and did not need assistance when moving.

16

389).

17

exercise and referred him to a specialist to consider an epidural.

18

(Id.).

On October 15, 2007, Plaintiff noted having lower back pain.
On January 3, 2011, Plaintiff complained of back pain
(AR 388).

On January 3, 2011,

(AR

Dr. Kuliev instructed Plaintiff on weight management and

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20

Plaintiff received physical therapy for his lower back and

21

left knee from January to May 2011.

22

Plaintiff’s first visit, he reported needing to use both legs to

23

get out of the car.

24

normal gait; a somewhat limited range of motion, with fingertips

25

reaching “just above the knee” when doing a side bend; full

26

extension with increased pain; 5 out of 5 on all strength resistance

27

tests;

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paraspinals;” and no lumbar spine “red flags.”

a

“slight

(AR 370).

increase

(AR 344-76, 491-95).

During

Upon examination, Plaintiff had a

in

5

muscle

tension

on

the

left

(AR 370, 372).

On

1

March 23, 2011, Plaintiff reported that his injuries had lasted

2

for over 20 years but “began hurting more beginning December 2010.”

3

(AR 344).

4

Plaintiff was “not demonstrating proper body mechanics and postures

5

as instructed,” was “not doing exercises properly, and this [was]

6

probably why [he was] making no progress with physical therapy.”

7

(AR 345).

By May 23, 2011, Plaintiff “did not return for any

8

additional

visits.”

9

complicated by multiple body parts, poor compliance, and infrequent

10

visits.”

Physical therapist Debra Zalmanowitz assessed that

(AR

493).

Plaintiff’s

“recovery

was

(Id.).

11
12

On

January

3,

2011,

Peter

Michael

Filsinger,

M.D.,

a

13

radiologist, performed x-rays of Plaintiff’s lumbar spine and

14

knees.

15

“mild degenerative osteophytes and disc space narrowing [in the

16

lumbar spine]. No compression fracture, spondylolisthesis or other

17

abnormalities seen.”

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the x-rays showed “mild medial compartment joint space narrowing

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of the knees bilaterally, consistent with [degenerative joint

20

disease].

Dr. Filsinger interpreted the lumbar spine x-rays to show

(AR 399-400).

Dr. Filsinger concluded that

(AR 400).

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22

On January 10, 2011, Plaintiff saw David Haberman, M.D.,

23

regarding Plaintiff’s complaints of lower back pain and right

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sciatica “made worse with bending.”

25

reviewed the January 2011 x-rays, concluding that Plaintiff had

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moderate L5-S1 and mild L4-5 disc degenerative changes.

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Upon examination, Plaintiff was toe walking “with effort,” had a

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normal range of motion in the upper extremities, and exhibited with
6

(AR 379).

Dr. Haberman

(Id.).

1

low back pain when doing a left piriformis and right hip stretch.

2

(AR 380).

3

not obtain.

Plaintiff was referred for a knee brace, which he did
(Id.).

4
5

On June 6, 2012, Louis Elperin, M.D., saw Plaintiff for back

6

and knee pain.

(AR 618-19).

Plaintiff stated that his pain was

7

better with chiropractic adjustments and hot pads for his knees.

8

(Id.).

9

normal straight leg raise, had normal gait, and was able to squat

Upon examination, Plaintiff’s back was nontender, had a

10

and

rise.

(AR

11

recommended

12

consult.

a

619).

geriatrics

Dr.

Elperin

consult,

prescribed

but

Plaintiff

Meloxicam2

and

declined

the

(AR 620).

13
14

On July 6, 2012, Dr. Elperin reviewed a MRI of Plaintiff’s

15

lumbar spine showing spondylosis,3 mild to moderate stenosis4 at

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L4-5, mild stenosis at L5-S, a small annulus bulge at L2-L3 and

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L1-L2, a small to moderate annulus bulge

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degeneration at L5-S1.

19

Plaintiff had multi-level degenerative changes in the lumbar spine,

(AR 641).

at L3-L4, and disc

Dr. Elperin concluded that

20
21
22

24

Meloxicam is used to relieve pain, tenderness, swelling, and
stiffness
caused
by
osteoarthritis.
https://medlineplus.gov/druginfo/meds/a601242.html#why.

25

3

23

26
27
28

2

Spondylosis refers to a degenerative process affecting the
vertebral disc and facet joints that gradually develops with age.
Stenosis is a narrowing of any tubular vessel or structural
passageway
within
the
body.
http://www.spinalfoundation.org/conditions/lateral-recess-stenosis-and-treatment.
4

7

1

bilateral subarticular zone stenosis, and foraminal narrowing.5

2

(Id.).

3
4

During

the

course

of

Plaintiff’s

treatment

at

Kaiser

5

Permanente, he went on multiple trips.

6

Plaintiff reported going on a three-week trip to Thailand, on a

7

guided tour.

8

over a month to visit his son,” (AR 345), and on March 5, 2012,

9

Plaintiff went to Costa Rica a two week trip.

(AR 266).

On January 15, 2007,

On March 23, 2011, Plaintiff left “for

(AR 591).

10
11

4.

Harainian Bleeker, M.D.

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13

On April 8, 2008, Dr. Bleeker, a board certified orthopedic

14

surgeon examined Plaintiff. Plaintiff reported having back trouble

15

for the past two years with pain going down the right leg, taking

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Vicodin, Advil, and Tylenol for pain.

17

Plaintiff had normal posture, gait, and range of motion; rose from

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a chair without difficulty; did straight leg raising at 90 degrees

19

with a positive tripod sign; could forward flex at 60 degrees; did

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supine straight leg raising at 80 degrees with low back pain; and

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completed a normal toe walking test.

22

opined that Plaintiff’s degenerative arthritis of the lumbar spine

23

and both knees prevented Plaintiff from going back to “his duty”

24

as Plaintiff described.

(AR 479).

Upon examination,

(AR 480-81).

Dr. Bleeker

(AR 482).

25
26
27
28

Neuroforaminal narrowing refers to a reduction of the size of the
opening in the spinal column through which the spinal nerve exits.
As this opening narrows, the nerve becomes compressed, which in turn
can lead to pain that radiates along the path of the nerve.
http://www.spine-health.com/glossary/neuroforaminal-narrowing.
5

8

1

5.

Glenna Tolbert, M.D. Q.M.E.

2
3

On June 15, 2007, Dr. Tolbert, a qualified medical examiner,

4

evaluated Plaintiff on a consultative basis for a life insurance

5

company.

6

had “localized pain in his back that intermittently [went] to the

7

legs,” could lift only “very light weights,” and pain prevented

8

him from sitting or standing “more than 30 minutes.”

9

Upon

(AR 225-30).

examination,
and

Plaintiff’s chief complaints were that he

Plaintiff

was

able

appeared
to

(AR 227).

well-developed,

ambulate

well-

10

nourished,

independently.

A

11

neuromusculoskeletal examination revealed no gross atrophy, normal

12

knee extension, and a negative straight leg raising test.

13

228).

14

showing narrowing of the L4-S1 and L4-5 disc spaces and concluded

15

that

16

“underlying lumbosacral degenerative arthritis.”

17

Tolbert opined that Plaintiff “may walk as tolerated; sit or stand

18

no longer than 20 [to] 30 minutes continuously; avoid lifting no

19

more than 10 pounds from the floor . . . and avoid climbing.”

20

(Id.).

(AR

Dr. Tolbert reviewed x-rays of Plaintiff’s lumbar spine

Plaintiff

had

a

history

of

“lumbar

sprain/strain”
(AR 229).

and
Dr.

21
22

B.

Medical Expert’s Relevant Testimony

23
24

On February 8, 2016, Dr. Anthony Francis, a medical expert

25

and board certified orthopedist, testified at Plaintiff’s second

26

hearing before the ALJ.

27

a medium to light RFC depending on the ALJ’s further credibility

28

findings. (AR 683, 695).

(AR 670).

Dr. Francis assigned Plaintiff

Specifically, Dr. Francis testified that
9

1

Plaintiff was able to lift 50 pounds occasionally and 25 pounds

2

frequently; stand, walk, and sit for six hours in an eight-hour

3

workday; climb stairs and ramps two-thirds of the day; not climb

4

ladders, ropes, or scaffolds; stoop and bend frequently; crouch

5

kneel, crawl, and balance occasionally; use his lower extremities

6

to

7

heights,

8

vibration; and should avoid hazardous machines with moving parts.

9

(AR 684-85).

operate

foot

around

controls

frequently;

excessive

cold,

or

not

work

around

at

heavy

unprotected
industrial

10
11

C.

Plaintiff’s Adult Function Report

12
13

In an August 10, 2010 adult function report, Plaintiff stated

14

that he could not bend or lift “due to lower back pain [and] pain

15

in [his] knees.”

16

exercised in the pool, watched television, ate, and rested.

17

146). Plaintiff stated that he did not do household chores, prepare

18

meals, or go shopping and drove in cars only a “short distance,”

19

(AR 147-48).

(AR 145).

Plaintiff stated that he stretched,
(AR

20
21

D.

Plaintiff’s Relevant Testimony

22
23

At the first hearing on August 14, 2012, Plaintiff testified

24

that he stopped working because his symptoms were “too painful.”

25

(AR 777).

26

the car [and] fall down.

27

I bend over the hood the pain was cutting me there . . . The back

28

was cutting me like a knife.”

To illustrate, Plaintiff testified, “I used to go to
I can’t — my knees don’t hold me.

10

(AR 777-78).

When

Plaintiff also

1

testified that he would grocery shop twice a week with his wife,

2

drive, sometimes do chores, and do exercises in the pool.

3

80).

(AR 778-

4
5

E.

Vocational Expert’s Relevant Testimony

6
7

At the second hearing on February 8, 2016, vocational expert

8

(“VE”) Dr. Ronald Hatakeyama testified that Plaintiff could not

9

perform his past work as an auto mechanic.

(AR 705).

The ALJ

10

asked whether an individual of the same age, education, and past

11

work history — who is limited to medium work; cannot use ropes,

12

scaffolds, ladders; can stand, walk, and sit up to 6 hours in an

13

eight-hour workday;

14

and

15

avoid height, excessive cold, heavy industrial vibration, and heavy

16

moving machinery; and can operate foot controls two-thirds of the

17

day —

18

national economy.

can frequently climb stairs and ramps, stoop,

bend; can occasionally crouch, kneel, crawl, and balance;

perform any work that exists in significant numbers in the
(AR 704).

19
20

The VE opined that Plaintiff could perform the jobs of kitchen

21

helper

DOT

318.687-010

(medium

22

regional economy) and linen room attendant DOT 222.387-030 (medium

23

unskilled, 1,000 jobs in the regional economy).

24

ALJ did not question the VE regarding any apparent conflict between

25

these job descriptions under the DOT and Plaintiff’s RFC.

26

707-08).

27
28
11

unskilled,

7,000

jobs

in

(AR 707).

the

The

(See AR

1

IV.

2

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

3
4

To

qualify

for

disability

benefits,

a

claimant

must

5

demonstrate a medically determinable physical or mental impairment

6

that prevents her from engaging in substantial gainful activity

7

and that is expected to result in death or to last for a continuous

8

period of at least twelve months.

9

721

(9th

Cir.

1998)

(citing

42

Reddick v. Chater, 157 F.3d 715,
U.S.C.

§ 423(d)(1)(A)).

The

10

impairment must render the claimant incapable of performing the

11

work she previously performed and incapable of performing any other

12

substantial gainful employment that exists in the national economy.

13

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42

14

U.S.C. § 423(d)(2)(A)).

15
16
17

To decide if a claimant is entitled to benefits, an ALJ
conducts a five-step inquiry:

18
19
20

(1)
(2)

21
22

(3)

23
24
25

(4)

26
27
28

(5)

Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is found not
disabled. If not, proceed to step two.
Is the claimant’s impairment severe? If not, the
claimant is found not disabled. If so, proceed to
step three.
Does the claimant’s impairment meet or equal one of
the specific impairments described in 20 C.F.R.
Part 404, Subpart P, Appendix 1?
If so, the
claimant is found disabled.
If not, proceed to
step four.
Is the claimant capable of performing his past
work? If so, the claimant is found not disabled.
If not, proceed to step five.
Is the claimant able to do any other work? If not,
the claimant is found disabled. If so, the claimant
is found not disabled.

12

1

See

20

C.F.R.

2

Massanari,

3

§§

omitted).

262

404.1520,

F.3d

949,

416.920;

953-54

(9th

see

also

Cir.

Bustamante

2001)

v.

(citations

4
5

In between steps three and four, the ALJ must determine the

6

claimant’s

residual

functional

capacity

(“RFC”).

20

CFR

7

416.920(e).

To determine the claimant’s RFC, the ALJ must consider

8

all of the claimant’s impairments, including impairments that are

9

not severe.

20 CFR § 416.1545(a)(2).

10
11

The claimant has the burden of proof at steps one through

12

four, and the Commissioner has the burden of proof at step five.

13

Bustamante, 262 F.3d at 953-54.

14

affirmative duty to assist the claimant in developing the record

15

at every step of the inquiry.”

16

claimant meets her burden of establishing an inability to perform

17

past work, the Commissioner must show that the claimant can perform

18

some

19

national economy, taking into account the claimant’s RFC, age,

20

education, and work experience.

Tackett, 180 F.3d at 1098, 1100;

21

Reddick,

20

22

416.920(g)(1).

23

vocational

24

Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2

25

(commonly known as “the Grids”).

26

1157, 1162 (9th Cir. 2001).

27

(strength-related) and non-exertional limitations, the Grids are

28

inapplicable and the ALJ must take the testimony of a vocational

other

work

157

that

F.3d

exists

at

721;

“Additionally, the ALJ has an

Id. at 954.

in

If, at step four, the

“significant

C.F.R.

numbers”

§§

in

the

404.1520(g)(1),

The Commissioner may do so by the testimony of a

expert

or

by

reference

to

the

Medical-Vocational

Osenbrock v. Apfel, 240 F.3d

When a claimant has both exertional

13

1

expert.

Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing

2

Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

3
4

V.

5

THE ALJ’S DECISION

6
7

The ALJ employed the five-step sequential evaluation process

8

and concluded that Plaintiff was not disabled within the meaning

9

of the Social Security Act.

(AR 663).

At step one, the ALJ found

10

that Plaintiff met the insured status requirements of the Act

11

through

12

substantial gainful activity since February 12, 2007, his alleged

13

onset date.

14

had the severe impairments of osteoarthritis of the bilateral knees

15

and degenerative disc disease of the lumbar spine.

16

three, the ALJ found that Plaintiff did not have an impairment or

17

combination of impairments that met or medically equaled one of

18

the listed impairments in 20 C.F.R. Part 404, Subpart Part P,

19

Appendix

20

416.920(d), 416.925-26).

December

1

31,

2012,

(AR 654).

(20

and

Plaintiff

had

not

engaged

in

At step two, the ALJ found that Plaintiff

C.F.R.

§§

(Id.).

404.1520(d),404.1525,

At step

404.1526,

(AR 655).

21
22

The ALJ found that Plaintiff had the RFC to perform medium

23

work as defined in 20 C.F.R. §§ 404.1567(c) with the limitations

24

of

25

occasionally

26

frequently operating foot controls; not working at unprotected

27

heights or around excessive cold; and avoiding heavy industrial

28

vibration and heavy machinery.

not

climbing

stairs;

crouching,

frequently

kneeling,

crawling,

(Id.).
14

stooping

and
and

bending;
balancing;

1

In making this finding, the ALJ gave “little weight” to Dr.

2

Tolbert’s RFC assessment.

3

assigned Plaintiff a sedentary functional capacity, (see AR 229,

4

690), (1) “Dr. Tolbert’s examination of the claimant was largely

5

unremarkable and objective abnormalities were minimal; (2) the

6

medical evidence of record show[ed] little treatment and minor

7

abnormalities only;” (3) the limitations that Dr. Tolbert assigned

8

Plaintiff, particularly the limitation that Plaintiff could not

9

sit or stand for 20 to 30 minutes at a time, was based on

10

Plaintiff’s subjective complaints; and (3) Dr. Tolbert was “not a

11

treating

12

claimant’s conditions.”

13

weight” to the opinion of medical expert, Dr. Francis, who assessed

14

Plaintiff with a medium RFC, (see AR 684), because Dr. Francis’s

15

opinion was “well-supported by the objective evidence, as well as

16

the record as a whole.”

17

opinion that Plaintiff “cannot lift more than 5 or 10 pounds”

18

little weight because it was “not supported by the objective

19

evidence or the record as a whole,” but the ALJ gave significant

20

weight to Dr. Arad’s opinion that Plaintiff “cannot engage in

21

regular stooping or bending . . . ” (AR 658).

source

and

The ALJ found that, although Dr. Tolbert

ha[d]

no

longitudinal

(AR 660).

(AR 659-60).

knowledge

of

the

The ALJ gave “significant

The ALJ gave Dr. Arad’s

22
23

The ALJ found Plaintiff’s testimony regarding the intensity,

24

persistence, and limiting effect of his symptoms “not entirely

25

credible” and provided five reasons in support of her credibility

26

findings: (1) Plaintiff’s testimony was “not fully supported by or

27

consistent with the medical evidence of record” because “objective

28

findings during the period of adjudication were fairly minimal” and
15

1

“[f]indings upon physical examination were also minimal;”

2

Plaintiff made inconsistent statements regarding the disabling

3

effect of his symptoms and the length of time in which Plaintiff

4

suffered from lower back pain, including testimony regarding daily

5

activities;

6

travelled for two weeks to Costa Rica, despite complaining of

7

disabling symptoms; (4) failed to follow prescribed treatment; and

8

(5) did not take particularly strong pain medication.

9

58).

(3)

traveled

abroad

from

May

to

August

2010

(2)

and

(AR 657-

10
11

At step four, the ALJ determined that Plaintiff could not

12

perform

his

past

relevant

13

considering Plaintiff’s age, education, work experience, and RFC,

14

the ALJ found that Plaintiff could perform jobs that existed in

15

significant

16

According to the VE, Plaintiff was able perform the jobs of kitchen

17

helper and linen room attendant.

18

concluded that Plaintiff was not under a disability as defined by

19

20 C.F.R. §§ 404.1520(g).

numbers

in

the

work.

(AR

national

661).

economy.

(Id.).

At

step

(AR

five,

662-63).

Therefore, the ALJ

(AR 663).

20
21

VI.

22

STANDARD OF REVIEW

23
24

Under 42 U.S.C. § 405(g), a district court may review the

25

Commissioner’s decision to deny benefits.

The court may set aside

26

the Commissioner’s decision when the ALJ’s findings are based on

27

legal error or are not supported by substantial evidence in the

28

record as a whole.

Aukland v. Massanari, 257 F.3d 1033, 1035 (9th
16

1

Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. Chater,

2

80 F.3d 1273, 1279 (9th Cir. 1996).

3

than a scintilla, but less than a preponderance.”

4

F.3d at 720 (citation omitted).

5

reasonable

6

conclusion.”

7

substantial evidence supports a finding, the court must “‘consider

8

the record as a whole, weighing both evidence that supports and

9

evidence that detracts from the [Commissioner’s] conclusion.’”

10

Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953,

11

956 (9th Cir. 1993)).

12

either affirming or reversing that conclusion, the court may not

13

substitute its judgment for that of the Commissioner.

14

157 F.3d at 720-21.

person

might

“Substantial evidence is more
Reddick, 157

It is “relevant evidence which a

accept

as

adequate

(Id.) (citations omitted).

to

support

a

To determine whether

If the evidence can reasonably support

Reddick,

15
16

VII.

17

DISCUSSION

18
19

Plaintiff asserts the following four claims: the ALJ (1) did

20

not provide clear and convincing reasons to reject Plaintiff’s

21

testimony regarding the severity and persistence of his pain, (MSP

22

at 4-9); (2) failed at step five to show that jobs exist in

23

significant numbers that Plaintiff can perform, (id. at 11-14);

24

(3) did not give specific and legitimate reasons to reject the

25

opinion of examining physician, Dr. Tolbert (id. at 14-16, 18-22);

26

and (4) improperly evaluated Dr. Arad’s opinion, (id. at 17-18).

27

For the reasons discussed below, the Court AFFIRMS the ALJ’s

28

decision.
17

1
2

A.

The ALJ Articulated Clear And Convincing Reasons To Find
Plaintiff’s Testimony Less Than Credible

3
4

Plaintiff claims that the ALJ failed to articulate clear and

5

convincing reasons to find Plaintiff’s pain testimony “less than

6

credible” because the ALJ selectively cited to the record.

7

at 4-9).

(MSP

The Court disagrees.

8
9

When assessing a claimant’s credibility, the ALJ must engage

10

in a two-step analysis.

Molina v. Astrue, 674 F.3d 1104, 1112 (9th

11

Cir. 2012) (citing Vazquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

12

2009)).

13

impairment that could reasonably produce the symptoms alleged, and

14

if there is, in order to reject the testimony, the ALJ must make

15

specific credibility findings.

16

a claimant’s testimony of pain and deny disability benefits solely

17

because the degree of pain alleged by the claimant is not supported

18

by objective medical evidence.

19

680 (9th Cir. 2005); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th

20

Cir. 1991).

The ALJ must determine if there is medical evidence of an

(Id.).

The ALJ may not discredit

Burch v. Barnhart, 400 F.3d 676,

21
22
23

In assessing the claimant’s testimony, the ALJ may consider
many factors, including:

24
25

(1)

ordinary techniques of credibility evaluation, such

26

as

the

claimant's

reputation

27

inconsistent statements concerning the symptoms, and

28

other testimony by the claimant that appears less than
18

for

lying,

prior

1

candid;

2

(2)

unexplained or inadequately explained failure to seek

3

treatment

4

treatment; and

5

(3)

or

to

follow

a

prescribed

course

of

the claimant’s daily activities.

6
7

Smolen, 80 F.3d at 1284.

Additionally, the ALJ may discredit the

8

claimant’s testimony where his normal daily activities can transfer

9

to the work setting.

Morgan v. Comm’r of Soc. Sec. Admin., 169

10

F.3d 595, 600 (9th Cir. 1999); see also Vertigan v. Halter, 260

11

F.3d 1044, 1049 (9th Cir. 2001).

12
13

As discussed above, the ALJ’s decision reflected five grounds

14

to reject Plaintiff’s credibility.

(AR 657-58). The Court finds

15

that these grounds are supported by substantial evidence in the

16

record and are clear and convincing grounds to reject Plaintiff’s

17

testimony.

18
19

First, the ALJ properly found that Plaintiff’s pain testimony

20

was “not fully supported by or consistent with the medical evidence

21

of

22

adjudication were fairly minimal.”

23

physical

24

rendered somewhat normal findings.

25

evidence is relevant to an ALJ’s credibility finding.

26

v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that

27

“[w]hile subjective pain testimony cannot be rejected on the sole

28

ground that it is not fully corroborated by objective evidence,

record”

because

“objective

examinations,

a

MRI,

findings

(AR 657).

and

19

during

x-rays

(Id.).

of

the

period

of

The ALJ then cited
Plaintiff,

which

Such objective medical
See Rollins

1

the medical evidence is still a relevant factor in determining the

2

severity of the claimant’s pain and its disabling effects”).

3
4

Specifically, Plaintiff claimed that he was unable to do any

5

lifting or bending, but examinations conducted by Dr. Kuliev, Dr.

6

Wallack,

7

therapist routinely showed that Plaintiff had a normal straight

8

leg

9

extension,

Dr.

raise

Bleeker,

test,
normal

normal
gait

Dr.

Tolbert,

heel-to-toe
with

mild

and

Plaintiff’s

walk,
antalgic

normal

physical

flexion

symptoms,

and

minimal

10

tenderness to palpation, and no lumbar spine “red flags.”

(AR 228,

11

316, 319, 370-72, 388-89, 482).

12

unable to prepare his own meals, do household chores, or go

13

shopping, (see AR 147-48). However, during examinations, Plaintiff

14

sat and stood with normal posture, rose from a chair normally,

15

could squat, and received a 5 out of 5 on all strength resistance

16

tests.

Plaintiff also stated that he was

(AR 319, 372, 619).

17
18

Moreover, x-rays from 2011 and a MRI from 2012 showed minimal

19

to moderate conditions that would not reasonably lead to the severe

20

functional limitations that Plaintiff alleges. Plaintiff’s January

21

2011 x-ray of the knees showed “mild medial compartment joint space

22

narrowing” bilaterally, and an x-ray of the lumbar spine showed

23

“mild degenerative osteophytes and disc space narrowing.”

24

400).

25

“most prominent at [the] L4-5 level, with moderate thecal sac

26

stenosis,” central disc extrusion, bilateral subarticular zone

27

stenosis, and foraminal stenosis.

28

the 2012 MRI, stating that it showed “some mild o[s]teophytes and

(AR 399-

A 2012 MRI showed degenerative changes in the lumbar spine,

20

(AR 635).

The ALJ referenced

1

disc

space

narrowing,

but

no

compression

fracture,

2

spondylolisthesis or other abnormalities.” (AR 657). Accordingly,

3

the above objective medical evidence supports the ALJ’s finding

4

that Plaintiff’s pain testimony was not fully credible.

5
6

Second, the ALJ gave a detailed explanation demonstrating that

7

Plaintiff

made

inconsistent

statements

regarding

his

daily

8

activities and the length of time that he suffered from a back

9

condition.

See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.

10

2001)

(ALJ’s

11

statements was supported by substantial evidence).

12

the ALJ cited Plaintiff’s adult function report, which stated that

13

Plaintiff did nothing other than eat, nap, exercise in the pool,

14

and watch television.

15

did not do chores, go shopping, or prepare meals for himself.

16

147-48).

17

care of his personal needs, do household chores, and go shopping

18

with

19

inconsistent statements regarding his back condition, stating that

20

it has lasted for 20 years, lasted “on and off” for 15 years,

21

lasted for 20 years but got worse in December 2010, but later said

22

the pain lasted for about six weeks.

23

344, 388).

24

inconsistent statements regarding the nature of his symptoms is

25

supported by substantial evidence.

his

detailed

explanation

(AR 657).

of

Plaintiff’s

inconsistent

To illustrate,

Plaintiff also stated that he
(AR

However, Plaintiff testified that he was able to take

wife.

(AR

780).

Similarly,

Plaintiff

has

made

(AR 212, 243-44, 288, 316,

Accordingly, the ALJ’s finding that Plaintiff made

26
27
28

Third, the ALJ properly found that Plaintiff’s travel abroad
undermined his statements regarding debilitating pain.
21

(AR 657).

1

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ gave

2

clear and convincing reason to doubt claimant’s testimony about

3

the extent of his pain and limitations based on Plaintiff’s ability

4

to travel to Venezuela).

5

made it difficult to get in and out of cars, left the house only

6

two times a day, and relied on his wife for his personal needs.

7

(AR 147-48, 778-78).

8

Plaintiff went on a month-long trip and a separate two-week trip

9

to Costa Rica.

Plaintiff testified that his conditions

However, during the relevant time period,

(AR 345, 591).6

Based on Plaintiff’s travel, the

10

ALJ properly inferred that Plaintiff was not as limited as he

11

claimed to be.

12
13

Fourth, the ALJ properly found that Plaintiff did not follow

14

prescribed treatment.

An ALJ may properly rely on “unexplained or

15

inadequately explained failure to seek treatment or to follow a

16

prescribed course of treatment.”

17

Tommasetti, 533 F.3d at 1039).

18

therapy progress notes indicate the claimant improved overall, it

19

was noted that he was not doing his exercises properly, continued

20

to demonstrate improper body mechanics, and continued to complain

21

of back and knee pain.”

22

noted that because Plaintiff did not do the exercises properly,

23

patient did not improve as he should have, (AR 345), and Plaintiff

24

stopped attending physical therapy sessions altogether.

25

493).

26

through with recommendations from his doctors, including to get a

Molina, 674 F.3d at 1113 (quoting
The ALJ noted that “while physical

(AR 658).

Plaintiff’s physical therapist

(See AR

The ALJ also determined that Plaintiff had “not followed

27
28

In January 2007, Plaintiff went on a three-week guided trip to
Thailand. (266).
6

22

1

knee

brace.”

(AR

658).

2

geriatrics consult on June 6, 2012, which Plaintiff declined, and

3

Dr. Haberman referred Plaintiff for a knee brace, which he did not

4

obtain.

5

physical

6

obtain a knee brace support the ALJ’s finding that Plaintiff did

7

not follow prescribed treatment.

(AR 380, 620).
therapy

Indeed,

Dr.

Elperin

recommended

a

Accordingly, Plaintiff’s failure to follow

treatment,

attend

medical

consultations,

and

8
9

Fifth, the record supports the ALJ’s finding that Plaintiff

10

took

“little

pain

medication,

which

is

inconsistent

11

allegation of severe, debilitating pain.”

12

“conservative treatment” is sufficient to discount a claimant’s

13

testimony regarding the severity of pain.

14

600.

15

sometimes took Vicodin when his pain was severe.

16

Dr. Kuliev also emphasized the importance of a healthy diet and

17

exercise to mitigate Plaintiff’s symptoms, (AR 389), and Plaintiff

18

was never recommended for surgery.

19

Plaintiff was prescribed a low dose of Meloxicam for pain, (AR

20

620), but Plaintiff’s overall course of treatment was conservative.

21

Thus,

22

medications, which is a legitimate reason to reject a Plaintiff’s

23

pain testimony.

24

2007) (ALJ properly found that claimant’s pain testimony was not

25

credible

26

medication).

(AR 658).

with

his

Evidence of

See Morgan, 169 F.3d at

Plaintiff generally took Advil and Tylenol for pain, and he

as

the

where

ALJ

described,

(AR 316).

Plaintiff

took

(AR 316, 479).

In June 2012,

minimal

pain

See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.

conditions

were

27
28
23

treated

with

limited

pain

1

Plaintiff’s subjective pain was not supported by the medical

2

record and was undermined by inconsistent statements, trips abroad,

3

failure to follow prescribed medical treatment, and conservative

4

treatment.

5

reasons to give less weight to Plaintiff’s testimony regarding the

6

severity and intensity of his symptoms.

Accordingly, the ALJ articulated clear and convincing

7
8

B.

9

The ALJ Properly Adopted VE Testimony That Plaintiff Can
Perform Jobs In Significant Numbers In The National Economy

10
11

Plaintiff contends that (1) there was an apparent conflict

12

between the VE’s testimony that Plaintiff could perform the job of

13

kitchen helper and the DOT; (2) the ALJ did not provide persuasive

14

evidence to address this conflict; and (3) because Plaintiff could

15

not perform the job of kitchen helper, the ALJ erred in finding

16

that there were a significant number of jobs in the national economy

17

that Plaintiff could perform. (MSP at 11-14). The Court disagrees.

18
19

At step five, “the burden shifts to the Commissioner to

20

demonstrate that the claimant is not disabled and can engage in

21

work that exists in significant numbers in the national economy.”

22

Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); see also 42

23

U.S.C.

24

416.920(a)(1)(v).

25

exists in significant numbers either in the region where you live

26

or

27

404.1566(a); Barker v. Sec'y of Health & Human Servs., 882 F.2d

28

1474, 1478 (9th Cir. 1989).

in

§

423(d)(2)(A);

several

20

C.F.R.

§§

404.1520(a)(1)(v),

“[W]ork exists in the national economy when it

other

regions

of

24

the

country.”

20

C.F.R.

§

1

The DOT is the Commissioner’s “primary source of reliable job

2

information” and creates a rebuttable presumption as to a job

3

classification.

4

Cir. 1995); see also Tommasetti, 533 F.3d at 1042.

5

seek VE testimony in order to determine whether a plaintiff can

6

perform any work.

7

[VE’s] testimony and the DOT — for example, expert testimony that

8

a claimant can perform an occupation involving DOT requirements

9

that appear to be more than the claimant can handle — the ALJ is

Johnson v. Shalala, 60 F.3d 1428, 1434 n.6 (9th
An ALJ may also

“When there is an apparent conflict between the

10

required to reconcile the inconsistency.”

11

F.3d 842, 846 (9th Cir. 2015) (citing Massachi v. Astrue, 486 F.3d

12

1149, 1153–54 (9th Cir. 2007)). An ALJ may not rely on VE testimony

13

regarding

the

14

inquiring

whether

15

Massachi, 486 F.3d at 1152–53.

16

an apparent conflict is harmless where there is no actual conflict

17

between the RFC and the DOT.

18

cf Rounds v. Comm’r of Social Security, 795 F.3d 1177, 1184 (9th

19

Cir. 2015).

requirements
the

VE’s

of

a

Zavalin v. Colvin, 778

particular

testimony

job

conflicts

without
with

first

the

DOT.

An ALJ's failure to inquire into

Massachi, 486 F.3d at 1154 n. 19);

20
21

In order to accept VE testimony that deviates from the DOT,

22

the

record

must

contain

“persuasive

23

deviation.” Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001)

24

(quoting Johnson, 60 F.3d at 1435).

25

such a deviation may be either specific findings of fact regarding

26

the claimant's residual functionality, or inferences drawn from

27

the context of the [VE]'s testimony.”

28

119 F.3d 789, 793 (9th Cir. 1997) (citations omitted).
25

evidence

to

support

the

“Evidence sufficient to permit

Light v. Soc. Sec. Admin.,
If the ALJ

1

fails to address the contradiction, then a “gap” exists in the

2

record, and that “gap” precludes the court from determining whether

3

the ALJ’s Decision is supported by substantial evidence.

4

778 F.3d at 846.

Zavalin,

5
6

In

adopting

the

7

occupations,

8

Plaintiff can perform considering his age, education, and RFC.

9

662).

kitchen

VE’s
helper

testimony,
and

the

linen

ALJ

room

identified
attendant,

two
that
(AR

Plaintiff contends that he cannot perform the occupation of

10

kitchen helper because the DOT description for kitchen helper

11

requires frequent crouching,7 and Plaintiff’s RFC limits him to

12

occasional crouching.8

(MSP at 13).

13
14

Plaintiff correctly asserts that there is a conflict between

15

Plaintiff’s RFC and the DOT description for kitchen helper.

16

ALJ assigned Plaintiff with a medium RFC and

17

occasional crouching.

18

testified that Plaintiff could perform the job of kitchen helper,

19

and the ALJ did not question the VE regarding his testimony.

20

AR 707).

21

could perform the job of kitchen helper, stating it “was consistent

22

with the information contained in the [DOT].”

23

adopting the VE’s testimony without questioning the VE or giving

(AR 655).

The

limited him to

At the second hearing, the VE

(See

The ALJ then adopted the VE’s testimony that Plaintiff

(AR 662).

By fully

24
25
26
27
28

The DOT states that the job of kitchen helper requires frequent
crouching, i.e. “exists from 1/3 to 2/3 of the time.” DOT 318.687010.
7

The DOT defines the word “occasionally” as “a condition or
activity [that] exists up to 1/3 of the time.”
See, e.g., DOT
318.687-010.
8

26

1

specific

support

from

the

record,

the

ALJ

2

persuasive evidence to resolve the conflict.

3

at 1435.

4

failed

to

provide

could perform the job of kitchen helper.

See Johnson, 60 F.3d

Accordingly, the ALJ erred in finding that Plaintiff

5
6

However,

the

ALJ

also

adopted

the

VE’s

testimony

that

7

Plaintiff could perform the job of linen room attendant, which has

8

1,000 positions available regionally and 50,000 positions available

9

nationally.

(AR 662).

Plaintiff does not dispute that, given his

10

RFC, he could perform the job requirements of linen room attendant.

11

(MSP at 14).

12

linen room attendant does not exist in significant numbers in the

13

national economy.

Rather, Plaintiff asserts that the occupation of

(Id.).

14
15

There is no “bright-line” rule in the Ninth Circuit as to what

16

number

of

available

jobs

constitutes

“significant

numbers.”

17

However, courts have found it “instructive” to compare cases in

18

this inquiry.

19

2012).

20

regionally is a significant number of jobs, see Meanel v. Apfel,

21

172 F.3d 1111, 1115 (9th Cir. 1999); Barker, 882 F.2d at 1479, and

22

25,000 positions nationally is a significant number of jobs, see

23

Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014).

24

If either the number of regional jobs or the number of national

25

jobs is found to be significant, the court must uphold the ALJ’s

26

decision.

See Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir.

The Ninth Circuit has held that 1,000 to 1,500 positions

42 U.S.C. § 423(d)(2)(A); Beltran, 700 F.3d at 389-90.

27
28
27

1

Here, there are 1,000 regional and 50,000 national positions

2

available for linen room attendant.

3

positions available for linen room attendant align with the 1,000

4

regional positions available in Meanel and Barker, and the 50,000

5

national

6

substantially more than the 25,000 national positions available in

7

Gutierrez.

8

the ALJ’s finding that Plaintiff could perform other jobs in

9

significant numbers in the national economy.

positions

available

for

(AR 662).

linen

The 1,000 regional

room

attendant

are

Accordingly, there is substantial evidence to support

10
11

C.

The ALJ Gave Specific And Legitimate Reasons Supported By

12

The Record To Reject The Opinion Of Examining Physician, Dr.

13

Tolbert, In Favor Of Nonexamining Medical Expert, Dr. Francis

14
15

Plaintiff contends that the ALJ did not provide sufficiently

16

specific reasons to reject the opinion of Dr. Tolbert, an examining

17

physician, in favor of the opinion of Dr. Francis, a nonexamining

18

medical expert.

19

that Dr. Tolbert’s opinion was based on objective medical evidence,

20

and Dr. Francis’s opinion was too ambiguous for the ALJ to adopt

21

in concluding that Plaintiff had a medium RFC.

22

disagrees.

(MSP at 15-18).

Specifically, Plaintiff asserts

(Id.).

The Court

23
24

Social Security regulations require the Agency to “evaluate

25

every medical opinion we receive,” giving more weight to evidence

26

from a claimant’s treating physician.

27

Where a treating or examining physician's opinion is contradicted

28

by another doctor, the “[Commissioner] must determine credibility
28

20 C.F.R. § 404.1527(c).

1

and resolve the conflict.”

2

574 F.3d 685, 692 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278

3

F.3d 947, 956–57 (9th Cir. 2002)). “An ALJ may reject the testimony

4

of an examining, but non-treating physician, in favor of a non-

5

examining,

6

legitimate reasons for doing so, and those reasons are supported

7

by substantial record evidence.”

8

831 (9th Cir. 1995), as amended (Apr. 9, 1996) (quoting Roberts v.

9

Shalala, 66 F.3d at 179, 184 (9th Cir. 1995)).

non-treating

Valentine v. Comm'r Soc. Sec. Admin.,

physician

when

he

gives

specific,

Lester v. Chater, 81 F.3d 821,

The opinion of a

10

nonexamining physician cannot by itself constitute substantial

11

evidence that justifies rejecting the opinion of an examining

12

physician.

13

examining physicians may serve as substantial evidence when the

14

opinions are consistent with “independent clinical findings or

15

other evidence in the record.”

Lester, 81 F.3d 821 at 831.

The opinions of non-

Thomas, 278 F.3d 947 at 957.

16
17

The ALJ gave Dr. Tolbert’s opinion “little weight” because

18

her “examination of the claimant was largely unremarkable and

19

objective abnormalities were minimal,” which supported the record

20

as a whole because “medical evidence of record show[ed] little

21

treatment and minor abnormalities.”

22

that Dr. Tolbert’s RFC assessment was largely based on Plaintiff’s

23

subjective

24

that the claimant could not sit or stand for more than 20 to 30

25

minutes

26

subjectively reported assessment rather than on any objective

27

findings or clinical observations.”

28

found Dr. Francis’s opinion was “well-supported by the objective

complaints,

continuously

(AR 660).

“particularly

was

based

29

[Dr.

entirely

(Id.).

The ALJ also found

Tolbert’s]

on

the

statement

claimant’s

In contrast, the ALJ

1

evidence,

as

well

as

2

“significant weight.”

the

record

as

a

whole,”

allocating

it

(AR 660).

3
4

The

ALJ

properly

rejected

Dr.

Tolbert’s

opinion

because

5

Tolbert’s opinion contradicted her own examination findings.

A

6

contradiction between a physician’s opinion and her own treatment

7

notes constitutes a specific and legitimate reason to reject the

8

physician’s opinion.

9

2009).

See Valentine, 574 F.3d at 692–93 (9th Cir.

Although Dr. Tolbert opined that Plaintiff cannot lift more

10

than 10 pounds and sit or stand for more than 20 to 30 minutes,

11

Dr. Tolbert’s examination findings were minimal.

12

Dr. Tolbert noted that Plaintiff could “independently transfer

13

without complaint,” no gross atrophy or deformity of the lumbar

14

spine, a normal heel and toe walk, 5 out 5 knee flexion and

15

extension bilaterally, and a “negative straight leg raise with [a]

16

positive right tight hamstring.”

17

Plaintiff had “increased pain with extension and right lateral

18

flexion.”

19

Dr. Tolbert’s sedentary functional capacity finding.

20

the ALJ gave a specific and legitimate reason to reject Dr.

21

Tolbert’s

22

contradicted her opinion.

(AR 228).

Specifically,

Dr. Tolbert noted that

(Id.). However, some increased pain does not support

opinion

because

Dr.

Tolbert’s

own

Accordingly,

exam

findings

23
24

Moreover, the ALJ properly found that Dr. Tolbert’s opinion

25

was

largely

based

on

Plaintiff’s

26

Tommasetti, 533 F.3d at 1041 (“An ALJ may reject a treating

27

physician’s opinion if it is based ‘to a large extent’ on a

28

claimant’s self-reports that have been properly discounted as
30

subjective

complaints.

1

incredible.”).

Plaintiff stated in a questionnaire for Dr. Tolbert

2

that he can “only lift very light weights” and pain prevents him

3

from sitting for more than 30 minutes.

4

Tolbert opined that Plaintiff should avoid lifting more than 10

5

pounds and can sit or stand no longer than 20 to 30 minutes

6

continuously.

7

relied on the medical record to come to her opinion, but Dr. Tolbert

8

only cited to Dr. Arad’s notes finding Plaintiff had “localized

9

lower back pain,” and Dr. Tolbert determined that other records

(AR 229).

(AR 227).

Similarly, Dr.

Plaintiff contends that Dr. Tolbert also

10

were “illegible” or “unremarkable.”

11

other doctor opined that Plaintiff cannot sit or stand for up to

12

30 minutes.

13

testimony

14

statements, the ALJ provided a specific and legitimate reason to

15

reject Dr. Tolbert’s opinion.

16
17
18
19
20
21
22
23
24
25
26
27
28

(AR 228-29).

Further, no

Accordingly, because the ALJ found Plaintiff’s pain

not

credible

and

Dr.

Tolbert

relied

on

Plaintiff’s

Moreover, Dr. Francis’s medium RFC assessment is supported by
substantial evidence in the record.

A court will affirm an ALJ’s

RFC if it is supported by substantial evidence and the ALJ properly
applies the legal standard.

Bayliss v. Barnhart, 427 F.3d 1211,

1217 (9th Cir. 2005); See Tommasetti, 533 F.3d at 1038 (an appellate
court will only disturb the Commissioner’s decision if it contains
legal error or is not supported by substantial evidence).

Dr.

Francis opined that Plaintiff could lift 50 pounds occasionally
and 25 pounds frequently; stand, sit or walk for six hours in an
eight-hour workday; climb stairs and ramps two-thirds of the day;
not climb ladders, ropes or scaffolds; stoop and bend frequently;
crouch

kneel,

crawl,

and

balance

31

occasionally;

use

his

lower

1

extremities

to

operate

2

unprotected

heights,

3

industrial vibration; and should avoid hazardous machines with

4

moving

5

examinations,

6

findings.

7

Plaintiff

8

placing him well within the ALJ’s RFC.

parts.

(AR
x-rays,

These
has

a

foot

controls

around

excessive

684-85).
and

records
medium

a

frequently;

As

MRI

support

capacity

cold

or

discussed

all

level

minimal

Francis’s
with

work

around

above,

rendered

Dr.

not

heavy

physical
medical

opinion

some

at

that

limitations,

9
Plaintiff asserts that Dr. Francis’s opinion was too ambiguous

10
11
12
13
14
15
16

as to whether he gave Plaintiff a light or medium RFC.
18-22).

(MSP at

Dr. Francis testified at multiple points that Plaintiff

had a medium to light RFC depending on the ALJ’s credibility
findings, (AR 683, 696), and the ALJ found Plaintiff not credible.
(See AR 656-58).

The ALJ’s finding that Plaintiff had a medium

RFC, based on Dr. Francis’s testimony, was not error.

17
As discussed, substantial evidence supports Dr. Francis’s

18
19
20
21

testimony that Plaintiff has a medium RFC.

Accordingly, the ALJ

gave specific and legitimate reasons for rejecting Dr. Tolbert’s
opinion and giving more weight to Dr. Francis’s opinion.

22
23

D.

The ALJ Properly Evaluated And Rejected Dr. Arad’s Opinion

24
25
26
27
28

Plaintiff asserts that the ALJ improperly evaluated Dr. Arad’s
opinion on three grounds: (1) the ALJ incorrectly found that Dr.
Arad believed Plaintiff was precluded from repetitive stooping and
bending, (2) Dr. Arad’s opinion that Plaintiff cannot repetitively

32

1

bend and stoop is inconsistent with the ALJ’s RFC finding that

2

Plaintiff can frequently bend and stoop; and (3) the ALJ did not

3

provide

4

Plaintiff could not lift more than 5 or 10 pounds.

5

18).

6
7
8
9
10
11
12
13
14

17
18
19
20
21
22
23
24
25
26
27

germane

reason

to

reject

Dr.

Arad’s

The ALJ made two findings regarding Dr. Arad.

opinion

that

(MSP at 17-

First, the ALJ

gave “significant weight” to Dr. Arad’s opinion that Plaintiff
“cannot engage in repetitive stooping and bending [because it was]
reasonable on the record . . . ” (AR 658).

Second, the ALJ “gave

little weight” to Dr. Arad’s opinion that Plaintiff cannot lift
more than 5 or 10 pounds because it was “not supported by the
objective evidence or the record as a whole,” (id.).
1.

15
16

a

The ALJ Reasonably Interpreted Dr. Arad’s Opinion To Mean
That Plaintiff Cannot Do Repetitive Stooping Or Bending

In his disability reports, Dr. Arad stated that Plaintiff was
precluded from “regular bending and stooping,” (AR 210), unable to
do “repetitive stooping and bending,” (AR 216), and should “avoid
any lifting/bending,” (AR 236).

The ALJ reasonably interpreted

Dr. Arad’s treatment notes to mean that Plaintiff is precluded from
“repetitive stooping or bending.”

(AR 658).

With regard to any

ambiguity in Dr. Arad’s treatment notes, “the ALJ is the final
arbiter

with

evidence.”

respect

to

resolving

ambiguities

Tommasetti, 533 F.3d at 1041.

in

the

medical

Accordingly, the ALJ

did not err in giving weight to Dr. Arad’s opinion that Plaintiff
cannot engage in repetitive stooping and bending.

28
33

1

2.

The ALJ’s RFC For Plaintiff Is Not Inconsistent With Dr.

2

Arad’s Opinion That Plaintiff Cannot Engage In Repetitive

3

Stooping And Bending

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Under Social Security Ruling (“SSR”) 83–10, “‘[f]requent’
means occurring from one-third to two-thirds of the time.”
83–10, 1983 WL 31251 (1983).

SSR

The Agency therefore routinely uses

“frequent” to describe different physical movements associated with
its category of medium work, but it does not employ the term
“repetitive” in the same way.

Courts have generally concluded that

“frequent”

are

Astrue, 257

and

“repetitive”

Fed.

Appx.

28,

30

not
n.

synonymous.9
5

(9th

Cir.

Gardner
2007);

v.

see,

e.g., Gallegos v. Barnhart, 99 Fed. Appx. 222, 224 (10th Cir.,
2004) (“frequent” and “repetitive” are not synonymous, and ALJ's
finding that plaintiff could perform jobs requiring “frequent”
reaching,

handling,

or

fingering

was

not

inconsistent

with

physician's recommendation against “repetitive” actions); LeFevers
v. Comm'r, 476 Fed. Appx. 608, 611 (6th Cir. 2012) (“In ordinary
nomenclature,
preclude

a

a

prohibition

capacity

for

on

‘repetitive’

‘frequent’

lifting

lifting,”

and

does

not

non-Agency

doctor's use of term “repetitive” was not inconsistent with RFC
for light work.”).

23
24
25
26
27
28

The court in Gardner also found that “‘repetitively’ in this
context appears to refer to a qualitative characteristic —
i.e., how one uses his hands, or what type of motion is required whereas
‘constantly’
and
‘frequently’
seem
to
describe
a quantitative characteristic — i.e., how often one uses his hands
in a certain manner. Under this reading, a job might require that
an employee use his hands in a repetitive manner frequently, or it
might
require
him
to
use
his
hands
in
a
repetitive
manner constantly.” Gardner, 257 Fed. Appx. at 30 n. 5.
9

34

1

The Court therefore disagrees with Plaintiff’s contention that

2

the ALJ adopted a RFC that was inconsistent with Dr. Arad’s opinion

3

that Plaintiff cannot engage in repetitive stooping and bending.

4

The ALJ gave weight to Dr. Arad’s assessment, which did not

5

specifically bar frequent bending and stooping.

6

ALJ’s hypotheticals did not require the individual to perform

7

repetitive stooping and bending.

8

they fell within Dr. Arad’s bending and stooping restriction, which

9

the ALJ adopted.

10

3.

11

Moreover, the

(See AR 704-05).

Accordingly,

The ALJ Gave A Reason Germane To Dr. Arad To Reject His
Opinion That Plaintiff Is Limited to Lifting 5 Or 10

12

Pounds

13
14

Medical sources are divided into two categories: “acceptable

15

medical sources” and “other sources.”

16

404.1513.

17

medical sources.

18

sources classified as “other sources” include, but are not limited

19

to,

20

workers, and chiropractors.

21

The ALJ may reject the opinion of “other sources” by giving reasons

22

germane

23

1111 (quoting Turner v. Comm'r Soc. Sec., 613 F.3d 1217, 1224 (9th

24

Cir. 2010)).

nurse

20 C.F.R. §§ 404.1513,

Physicians and psychologists are considered acceptable
20 C.F.R. §§ 404.1513, 416.913(a).

practitioners,

to

each

witness

therapists,

licensed

clinical

Medical

social

20 C.F.R. §§ 404.1513(d), 416.913(d).

for

doing

so.

Molina, 674

F.3d

at

25
26

Dr. Arad did not qualify as a medically acceptable source

27

because he was a chiropractor.

See 20 C.F.R. § 404.1513(d)(1).

28

The ALJ’s finding that objective evidence in the record does not
35

1

support Dr. Arad’s opinion that Plaintiff cannot lift more than 5

2

or 10 pounds is supported by reasonable inferences.

3

her decision, the ALJ referenced objective medical evidence, such

4

as physical exams, x-rays, and a MRI, to show that Plaintiff had a

5

medium RFC, and to support Dr. Francis’s finding that Plaintiff

6

had a medium RFC.

7

rejected

8

contradicted by other doctors’ opinions).

9

gave germane reasons to reject Dr. Arad’s opinion.

Throughout

See Molina, 674 F.3d 1104 at 1112 (ALJ properly

physician’s

assistant’s

opinion

where

opinion

was

Accordingly, the ALJ

10
11

VIII.

12

CONCLUSION

13
14

Accordingly, IT IS ORDERED that judgment be entered AFFIRMING

15

the decision of the Commissioner and dismissing this action with

16

prejudice.

17

serve copies of this Order and the Judgment on counsel for both

18

parties.

IT FURTHER IS ORDERED that the Clerk of the Court shall

19
20

DATED:

May 31, 2017

21
22
23

/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

24
25
26
27

NOTICE
THIS MEMORANDUM DECISION IS NOT INTENDED FOR PUBLICATION IN
LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE.

28
36