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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1 2 3 4 5 6 7 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. 28 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 19 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; 28 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.” 18 the x-rays showed “mild medial compartment joint space narrowing 19 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). 21 22 On January 10, 2011, Plaintiff saw David Haberman, M.D., 23 regarding Plaintiff’s complaints of lower back pain and right 24 sciatica “made worse with bending.” 25 reviewed the January 2011 x-rays, concluding that Plaintiff had 26 moderate L5-S1 and mild L4-5 disc degenerative changes. 27 Upon examination, Plaintiff was toe walking “with effort,” had a 28 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 16 L4-5, mild stenosis at L5-S, a small annulus bulge at L2-L3 and 17 L1-L2, a small to moderate annulus bulge 18 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. 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. 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. 12 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 16 Vicodin, Advil, and Tylenol for pain. 17 Plaintiff had normal posture, gait, and range of motion; rose from 18 a chair without difficulty; did straight leg raising at 90 degrees 19 with a positive tripod sign; could forward flex at 60 degrees; did 20 supine straight leg raising at 80 degrees with low back pain; and 21 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. 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

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