Natosha Sanders v. Andrew M. Saul

Filing 31

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. [SEE DOCUMENT FOR DETAILS.] (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NATOSHA S.,1
Plaintiff,

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v.

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ANDREW M. SAUL,
Commissioner of Social
Security,
Defendant.

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I.

) Case No. CV 19-5134-JPR
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) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision

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denying her applications for Social Security disability insurance

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benefits (“DIB”) and supplemental security income benefits

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(“SSI”).

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undersigned under 28 U.S.C. § 636(c).

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Court on the parties’ Joint Stipulation, filed July 30, 2020,

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which the Court has taken under submission without oral argument.

The parties consented to the jurisdiction of the
The matter is before the

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Plaintiff’s name is partially redacted in line with
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
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For the reasons discussed below, the Commissioner’s decision is

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affirmed.

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II.

BACKGROUND
Plaintiff was born in 1975.

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(Administrative Record (“AR”)

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54, 66, 157, 161.)

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as a court clerk, in-home caregiver, and bookkeeper (AR 177,

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189).

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She completed 12th grade (AR 188) and worked

On November 5 and 19, 2013, Plaintiff applied for DIB and
SSI, respectively, alleging that she had been unable to work

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since March 6, 2013, because of lower-back pain, arthritis,

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depression, anxiety, and a spinal tear.

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66, 187.)

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87-90), she requested a hearing before an Administrative Law

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Judge (AR 92-94).

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Plaintiff testified, as did a vocational expert and two medical

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experts.

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2015, the ALJ found Plaintiff not disabled.

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sought Appeals Council review (AR 9-10), which was denied on

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November 15, 2016 (AR 1-6).

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(AR 54-55, 66-67, 157-

After her applications were denied (AR 78-79, 82-85,

A hearing was held on March 12, 2015, at which

(See AR 29-53.)

In a written decision issued April 23,
(AR 15-25.)

She

Plaintiff appealed (AR 1578-80), and on May 22, 2018, this

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Court reversed and remanded for further administrative

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proceedings (AR 1603-16).

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another hearing, at which Plaintiff, who was again represented by

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counsel, and a VE and an ME again testified.

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In a written decision dated April 4, 2019, the ALJ again found

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Plaintiff not disabled.

On January 22, 2019, an ALJ conducted

(AR 1373.)

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(See AR 1530-53.)

This action followed.

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III. STANDARD OF REVIEW

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

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Commissioner’s decision to deny benefits.

The ALJ’s findings and

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.

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Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

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means such evidence as a reasonable person might accept as

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adequate to support a conclusion.

Substantial evidence

Richardson, 402 U.S. at 401;

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

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is “more than a mere scintilla, but less than a preponderance.”

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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meaning of ‘substantial’ in other contexts, the threshold for

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such evidentiary sufficiency is not high.”

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139 S. Ct. 1148, 1154 (2019).

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evidence supports a finding, the reviewing court “must review the

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administrative record as a whole, weighing both the evidence that

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supports and the evidence that detracts from the Commissioner’s

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conclusion.”

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1998).

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or reversing,” the reviewing court “may not substitute its

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judgment” for the Commissioner’s.

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IV.

It

“[W]hatever the

Biestek v. Berryhill,

To determine whether substantial

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

“If the evidence can reasonably support either affirming

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to
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last, for a continuous period of at least 12 months.

42 U.S.C.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

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A.

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An ALJ follows a five-step sequential evaluation process to

The Five-Step Evaluation Process

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assess whether someone is disabled.

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416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.

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1995) (as amended Apr. 9, 1996).

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Commissioner must determine whether the claimant is currently

20 C.F.R. §§ 404.1520(a)(4),

In the first step, the

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engaged in substantial gainful activity; if so, the claimant is

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not disabled and the claim must be denied.

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416.920(a)(4)(i).

§§ 404.1520(a)(4)(i),

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine

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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting her ability to do basic work

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activities; if not, a finding of not disabled is made and the

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claim must be denied.

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416.920(a)(4)(ii) & (c).

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§§ 404.1520(a)(4)(ii) & (c),

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments

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(“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix

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1; if so, disability is conclusively presumed and benefits are

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awarded.

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§§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d).

If the claimant’s impairment or combination of impairments
does not meet or equal one in the Listing, the fourth step
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requires the Commissioner to determine whether the claimant has

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sufficient residual functional capacity (“RFC”)2 to perform her

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past work; if so, she is not disabled and the claim must be

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denied.

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has the burden of proving she is unable to perform past relevant

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work.

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burden, a prima facie case of disability is established.

Drouin, 966 F.2d at 1257.

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§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

The claimant

If the claimant meets that
Id.

If that happens or if the claimant has no past relevant
work, the Commissioner bears the burden of establishing that the

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claimant is not disabled because she can perform other

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substantial gainful work available in the national economy, the

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fifth and final step of the sequential analysis.

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§§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b).

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B.

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At step one, the ALJ found that Plaintiff had not engaged in

The ALJ’s Application of the Five-Step Process

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substantial gainful activity since March 6, 2013, the alleged

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onset date.

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severe impairments of “degenerative disc disease of the lumbar

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spine,” “asthma,” “shoulder impingement,” and “morbid obesity.”

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(Id.)

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(AR 1356.)

At step two, he determined that she had

At step three, he found that Plaintiff’s impairments did not

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meet or equal any of the impairments in the Listing.

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At step four, he determined that she had the RFC to perform less

(AR 1359.)

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1);
see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
The Commissioner assesses the claimant’s RFC between steps three
and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir.
2017) (citing § 416.920(a)(4)).
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than the full range of sedentary work: she could “lift, carry,

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push, and pull 10 pounds occasionally and less than 10 pounds

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frequently”; “stand/walk a total of 2 hours in an 8-hour

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workday”; “sit 8 hours in an 8-hour workday, with normal breaks”;

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“occasionally climb ramps and stairs, but . . . never climb

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ladders, ropes or scaffolds”; “engage in occasional overhead

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reaching”; and “occasionally stoop, kneel, crouch and crawl.”

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(AR 1360.)

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“dangerous machinery,” or “dusts, fumes or gases,” and she “would

She could not work around “unprotected heights,”

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miss two consecutive days of work” “every 4 months,” “up to 8

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days a year.”

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(Id.)

The ALJ found that Plaintiff was unable to perform any past

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relevant work (AR 1365), but she could work as an inspector,

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assembler, or polisher, positions that “exist[ed] in significant

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numbers in the national economy” (AR 1366).

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found her not disabled.

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V.

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Accordingly, he

(AR 1366-67.)

DISCUSSION3
Plaintiff alleges that the ALJ improperly rejected a portion

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of the opinion of internist Harvey Alpern, a consulting medical

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expert.

(See J. Stip. at 6-13.)

For the reasons discussed

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In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme
Court held that ALJs of the Securities and Exchange Commission
are “Officers of the United States” and thus subject to the
Appointments Clause. To the extent Lucia applies to Social
Security ALJs, Plaintiff has forfeited the issue by failing to
raise it during her administrative proceedings. (See AR 8-11,
29-53, 1530-53, 1625-49, 1651-54, 1656-57); Meanel v. Apfel, 172
F.3d 1111, 1115 (9th Cir. 1999) (as amended); see also Kabani &
Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting
Lucia challenge because plaintiff did not raise it during
administrative proceedings), cert. denied, 139 S. Ct. 2013
(2019).
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below, remand is not warranted.
The ALJ Properly Evaluated Dr. Alpern’s Opinion

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A.

Applicable law

Three types of physicians may offer opinions in Social

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Security cases: those who directly treated the plaintiff, those

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who examined but did not treat the plaintiff, and those who did

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neither.

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opinion is generally entitled to more weight than an examining

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physician’s, and an examining physician’s opinion is generally

See Lester, 81 F.3d at 830.

A treating physician’s

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entitled to more weight than a nonexamining physician’s.

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see §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).4

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findings of a nontreating, nonexamining physician can amount to

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substantial evidence, so long as other evidence in the record

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supports those findings.”

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(9th Cir. 1996) (per curiam) (as amended).

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testifying medical expert is subject to cross-examination, his

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opinion may be given greater weight even if he did not examine

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the claimant.

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1995).

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B.

Id.;

But even “the

Saelee v. Chater, 94 F.3d 520, 522
Moreover, because a

Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir.

Relevant background

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Dr. Alpern reviewed Plaintiff’s medical record and testified

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at the March 12, 2015 hearing that she had a history of “distant”

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asthma, obesity, and degenerative disc disease.

(AR 44.)

He

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For claims filed on or after March 27, 2017, the rules in
§§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply.
See §§ 404.1520c, 416.920c (evaluating opinion evidence for
claims filed on or after Mar. 27, 2017). Plaintiff’s claims were
filed before March 27, 2017, however, and the Court therefore
analyzes them under former §§ 404.1527 and 416.927.
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noted that although her degenerative disc disease did not “show

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classic impingement,” “atrophy,” or “associated findings of

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ambulation problems,” “she would have restrictions.”

(Id.)

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limited her to what was essentially a sedentary RFC.

(AR 45.)

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She also would be absent from work “[e]very three months when she

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has her [epidural] procedure.”

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much time Plaintiff would need off for the procedure, he answered

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“[a] week,” “maybe less.”

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whether there was a “reasonable likelihood that [Plaintiff’s

(Id.)

(Id.)

He

When the ALJ asked how

The ALJ further inquired

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doctors] would continue [her] epidurals every three months on a

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sustained basis.”

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“demonstrate[d] true effectiveness[,] they may” continue

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administering them, but “[o]therwise they would recommend

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surgery.”

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(AR 51.)

He testified that if the epidurals

(Id.)

At the January 22, 2019 hearing, Dr. Alpern clarified how

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much time Plaintiff would need off for the epidural injections,

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testifying that she was getting them “about every three months”5

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and that they “involve[d] being off work for probably two to

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three days.”

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changed since the first hearing because once the epidurals became

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routine, the preoperative portion of the procedure was not always

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necessary.

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(AR 1536.)

He explained that his time estimate had

(AR 1540-41, 1550-51.)

The ALJ gave “great weight” to Dr. Alpern’s testimony and

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Plaintiff points to no treating doctor who opined that she
needed injections every three months. And her own testimony on
this point was far from clear. She testified at the 2019 hearing
that the time between them was “four months” (AR 1536-37), but
she also agreed that she “g[o]t them quarterly” (id.), which
would be every three months. At the 2015 hearing she testified
that she received them “every three to four months.” (AR 33.)
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opinion because they were “consistent with the overall medical

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evidence” and he was “a board certified internist” who “was at

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the first hearing” and had “had the opportunity to review all the

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medical records in [their] entirety, consider the longitudinal

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treatment records from the alleged onset date to the [date of the

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hearing], as well as question [Plaintiff] at the [January 2019]

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hearing.”

(AR 1363.)

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The ALJ gave only partial weight to Dr. Alpern’s testimony

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that Plaintiff would miss two or three days of work every three

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months, however, because he found that “[i]t d[id] not appear

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that [Plaintiff] receive[d] injections that frequently,” noting

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that she had had only five injections from April 2016 through

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September 2018.

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2388-91.)

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that she stayed in bed after an injection anywhere from two to

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seven days, Dr. Alpern opined that six or seven days was

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uncharacteristically long.

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“records show[ed] that [Plaintiff] was walking soon after her

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injections without difficulty.”

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2392.)

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inconsistent with the objective medical evidence, her

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conservative treatment, her daily activities, and her collecting

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unemployment benefits in 2017 (AR 1360-62, 1364-65), a finding

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she has not challenged on appeal.

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found that “every 4 months, [Plaintiff] would miss two

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consecutive days of work in that month, up to 8 days a year.”

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(AR 1363.)

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(Id.; see AR 1851, 1891-92, 2025-26, 2197-98,

Moreover, the ALJ noted, although Plaintiff testified

(AR 1363; see AR 1542.)

Indeed,

(AR 1363; see AR 1891-92, 2198,

The ALJ rejected Plaintiff’s symptom testimony as

Based on the evidence, the ALJ

At the hearing, the ALJ presented hypotheticals to the VE
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limiting Plaintiff to “miss[ing] one day per month,” “two days

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per month,” “two days” “every four months,” and “three days”

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“every four months.”

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inspector, assembler, and polisher positions would still be

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available in significant numbers in the national economy for

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someone missing one day of work a month, two days every four

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months, or “eight days a year.”

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available for someone who missed either two days a month or three

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days every four months.

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C.

(AR 1545-46.)

The VE testified that the

(Id.)

But no jobs would be

(AR 1546-47.)

Analysis

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Plaintiff argues that in finding that she would receive

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injections only every four months, the ALJ improperly “focused on

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th[e] 29-month period [between April 2016 and September 2018]

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without looking at the entire medical record.”

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But as previously noted, apparently no treating doctor ever

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opined that she needed injections every three months.

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Regardless, the ALJ would not have found that she received

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injections more often than every four months even if he had

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considered all the epidural injections referenced in the record.

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The record indicates that Plaintiff had a total of 15 epidural

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injections — an average of one every four and four-fifths months

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— between March 13, 2013, and the ALJ’s April 4, 2019 decision.

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(AR 403-05 (Mar. 13, 2013), 419 (Apr. 4, 2013), 440 (June 11,

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2013), 530 (Aug. 31, 2013), 661 (Jan. 16, 2014), 950, 964-65 (May

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6, 2014), 750 (Sept. 3, 2014), 1208-09 (Feb. 7, 2015), 1427-28

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(May 30, 2015), 1514 (Oct. 17, 2015 (Sept. 10, 2015 progress note

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indicating that injection was scheduled)), 1891-92 (Apr. 7,

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2016), 1851 (Feb. 2, 2017), 2025-26 (Nov. 14, 2017), 2197-98 (May
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(J. Stip. at 8.)

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3, 2018), 2388-91 (Sept. 1, 2018); see also AR 1536-37 (Plaintiff

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testifying on January 22, 2019, that she had not had injection

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since September or October 2018 and not mentioning any upcoming

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scheduled injections).)

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Plaintiff correctly notes that she received more than three

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injections in 2013, and if the ALJ had focused solely on the

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period between March 13, 2013, and January 16, 2014, the average

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time between Plaintiff’s injections was less than four months.

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(AR 403-05, 419, 454, 530, 661.)

But focusing only on that time

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period would have been improper.

As Plaintiff concedes, the ALJ

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was required to review the record as a whole and “is not free to

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ignore relevant, competent evidence.”

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App’x 558, 562 (9th Cir. 2018) (citing Gallant v. Heckler, 753

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F.2d 1450, 1455-56 (9th Cir. 1984)).

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whole, the ALJ’s finding that Plaintiff had injections no more

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than once every four months was supported by substantial evidence

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— indeed, for most of the relevant period it was generous.

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Kelly v. Berryhill, 732 F.

Viewing the record as a

Plaintiff provides a litany of reasons why she did not have

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the injections every three months, as she claimed she needed.

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(See J. Stip. at 8-10 (attributing delays at various times to

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rash and excision of neck mass, among other things).)

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ALJ was entitled to extrapolate from a years-long course of

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conduct covering nearly the entire relevant period that

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Plaintiff’s schedule was unlikely to change.

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Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (ALJ properly

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relied on past frequency of treatment in assessing symptoms’

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effect on ability to work), superseded by regulation on other

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grounds as recognized in Schuyler v. Saul, 813 F. App’x 341, 342
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But the

Cf. Molina v.

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(9th Cir. 2020); Luevano v. Berryhill, No. ED CV 16-0380-DFM,

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2017 WL 2413686, at *6 (C.D. Cal. June 2, 2017) (ALJ entitled to

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rely on history of infrequent treatment in assessing frequency

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and severity of symptoms).

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Plaintiff’s RFC would allow her to be absent from work up to

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eight days a year for the epidural injections (AR 1360), which

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translates into three days for two of the three sets of

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injections a year and two for the other.

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consistent with Dr. Alpern’s statement that she would need “two

This is fully

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to three days” for each injection.

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Plaintiff testified that she “tr[ied] to get [the injections]

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during the week,” while her son was at school.

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least on occasion, Plaintiff would presumably be able to schedule

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her injections for a Friday, thereby requiring her to miss only

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one day of work and making the ALJ’s eight-day yearly allowance

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even more reasonable.

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VI.

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(AR 1536.)

Moreover,

(AR 1550.)

At

Remand is not warranted on this issue.

CONCLUSION
Consistent with the foregoing and under sentence four of 42

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U.S.C. § 405(g),6 IT IS ORDERED that judgment be entered

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AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s

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request for remand, and DISMISSING this action with prejudice.

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DATED: September 11, 2020
JEAN ROSENBLUTH
U.S. Magistrate Judge

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That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
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