Obed B. Quintero v. Nancy A. Berryhill

Filing 23

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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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OBED B. QUINTERO,

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Case No. EDCV 17-0435 SS

Plaintiff,

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v.

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MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHIL,1
Acting
Commissioner
of
the
Social Security Administration,

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Defendant.

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I.

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INTRODUCTION

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Plaintiff Obed B. Quintero (“Plaintiff”) brings this action

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seeking to overturn the decision of the Commissioner of the Social

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Security

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denying his application for Supplemental Security Income (“SSI”).

Administration

(the

“Commissioner”

or

the

"Agency")

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
1

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(Dkt. No. 8).

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March 13, 2017, Plaintiff filed a complaint (the “Complaint”)

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commencing the instant action.

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filed an Answer to the Complaint (the “Answer”).

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The parties have consented to the jurisdiction of the undersigned

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

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(Dkt. Nos. 12, 14).

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the Commissioner is AFFIRMED.

Alternatively, he asks for a remand.

(Id.).

(Id.).

On

On July 27, 2017, Defendant
(Dkt. No. 19).

For the reasons stated below, the decision of

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II.

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PROCEDURAL HISTORY

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13

On August 29, 2013, Plaintiff filed an application for SSI

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under

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Plaintiff’s application alleges disability beginning on February

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22, 2013 due to “major depression, pain in abdomen, fatigue,

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prolonged symptoms such as blood in stool, knee and hip and back

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pain,

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application was denied both initially on January 10, 2014 and upon

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reconsideration on March 14, 2014.

Title

[and]

XVI.

sleep

(Administrative

apnea.”

(AR

Record

75,

(“AR”)

215).

75,

180).

Plaintiff’s

SSI

(AR 103-06, 110-14).

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22

On

March

26,

2014,

Plaintiff

requested

a

hearing

by

an

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Administrative Law Judge (“ALJ”).

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place in Moreno Valley, California on August 27, 2015 with ALJ

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Andrew Verne presiding.

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Verne issued an unfavorable decision, finding Plaintiff able to

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perform “a range of light work.”

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Plaintiff requested review of the ALJ’s decision before the Appeals

(AR 115-17).

(AR 37-74).

On October 28, 2015, ALJ

(AR 16-36).

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The hearing took

On November 5, 2015,

1

Council.

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Plaintiff’s request for review and the ALJ’s decision became the

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final decision of the Commissioner.

(AR 15).

On January 26, 2017, the Appeals Council denied

(AR 1-7).

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III.

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FACTUAL BACKGROUND

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9

Plaintiff was born on June 29, 1964 and was 49 years old at

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the alleged onset date of disability on August 29, 2013.

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Plaintiff stopped working on that date.

(AR 75).

(AR 215).

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13

A.

Plaintiff’s Medical History2

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15

On December 16, 2011, Plaintiff went to the Emergency Room at

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Menifee Valley Medical Center.

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bleeding, fleeting abdominal pain and feeling weak throughout his

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body.

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247 pounds.

20

feet.

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and gallbladder disease with gallstones.

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stated that he was not taking any medications.

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reported smoking at least one pack of cigarettes per day.

(AR 285).

He complained of rectal

The doctor noted Plaintiff weighed approximately

(AR 285).

(AR 315).

(AR 285).

Plaintiff’s height is approximately six

The doctor also noted a history of hypertension
(AR 285).

Plaintiff

(AR 286).

He also
(AR

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Plaintiff also alleged mental impairments and other physical
impairments. However, in his brief before this Court, Plaintiff
only challenges the ALJ's consideration of treating physician Dr.
Sharif's opinions.
Accordingly, the Court limits the medical
history discussion to that history which is relevant to Dr.
Sharif's opinions.
2

3

1

286).

2

(AR 286).

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assessed

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hypertension, acute.”

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the hypertension.

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medication and gave Plaintiff instructions on hemorrhoids, high

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blood pressure, and blood pressure medication.

Plaintiff presented with a blood pressure of 201/104 mmHg.
He also had visible hemorrhoids.
Plaintiff

with

“hemorrhoidal

(AR 287).

(AR 287).

(AR 286).

bleeding,

The doctor

rectal;

and

Plaintiff received treatment for

The doctor prescribed blood pressure

(AR 287, 289-94).

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9

On August 20, 2012, Plaintiff went to the Emergency Room at

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Riverside County Regional Medical Center.

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complained of chest pain, anxiety, blurry vision and fatigue.

12

393).

13

weeks earlier.

14

medication.

(AR 370).

Plaintiff
(AR

He reported he ran out of blood pressure medication two
(AR 393).

The doctor refilled his blood pressure

(AR 395).

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16

Plaintiff first sought treatment for knee and hip pain at the

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Family Care Clinic at Riverside County Regional Medical Center on

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November 16, 2012.

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knee and hip.

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right knee and hip.

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for pain after Plaintiff stated he did not want a narcotic.

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388, 390).

(AR 388).

(AR 388).

He complained of pain in his right

The doctor ordered x-rays of Plaintiff’s

(AR 388).

The doctor also prescribed tramadol
(AR

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On April 2, 2013, Plaintiff went to the Emergency Room at

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Menifee Valley Medical Center.

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in his right flank radiating from his back into his groin area.

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(AR

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hypertension.

297).

The

doctor

(AR 297).

noted

(AR 297).

a

history

He complained of pain

of

kidney

stones

and

A CT scan revealed Plaintiff had a 5 mm
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1

ureteral stone near mid pelvis on his right side.

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doctor diagnosed Plaintiff with right ureterolithiasis and treated

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him. (AR 298). The Radiology Report on Plaintiff’s CT scan further

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concluded Plaintiff had colonic diverticula without inflammation,

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multiple small kidney stones and gallbladder stones.

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The doctor prescribed an antibiotic and Lortab and gave Plaintiff

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instructions on the medications.

(AR 298).

The

(AR 305-06).

(AR 298, 307-10).

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On April 18, 2013, Plaintiff went to the Emergency Room at

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Menifee Valley Medical Center.

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in his right flank area again.

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him with a kidney stone on his right side.

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treated him and discharged him.

(AR 312).
(AR 312).

He complained of pain
The doctor diagnosed
(AR 313).

The doctor

(AR 313).

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15

On April 22, 2013, Plaintiff sought treatment at the Family

16

Care Clinic at Riverside County Regional Medical Center.

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Plaintiff complained of pain from kidney stones.

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clinic prescribed medication.

(AR 382).

(AR 382).

The

(AR 383-87).

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On April 30, 2013, Plaintiff went to the Family Care Clinic

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at Riverside County Regional Medical Center.

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had a follow-up visit since he was previously diagnosed with kidney

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stones.

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and psychiatric presentations were normal.

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also ordered a sleep study and managed Plaintiff’s medications.

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(AR 372).

(AR 370).

(AR 370).

Plaintiff

The doctor found Plaintiff’s musculoskeletal

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5

(AR 371).

The doctor

1

On May 15, 2013, Plaintiff sought treatment at the Family Care

2

Clinic at Riverside County Regional Medical Center.

(AR 374).

3

Plaintiff complained of blood in his stool and fatigue.

(AR 374).

4

The clinic refilled his medication.

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ultrasounds of his bladder and pelvis as well as his abdomen.

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410-11).

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abnormal findings.

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revealed an enlarged liver and gallbladder stones.

(AR 376).

He also underwent
(AR

The ultrasound of his bladder and pelvis revealed no
(AR 410).

The ultrasound of his abdomen
(AR 411).

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On June 4, 2013, Plaintiff went to the Family Care Clinic at

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Riverside County Regional Medical Center.

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refills of his pain and hypertension medications.

(AR 365).

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Plaintiff reported using an antidepressant.

The doctor

14

noted

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psychiatric findings.

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medication but also changed his medications because he was not

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experiencing renal issues.

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underwent a sleep apnea assessment.

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that Plaintiff has sleep apnea.

Plaintiff

was

negative

for

(AR 366).

(AR 365).

joint

He requested

(AR 365).
pain

and

had

normal

The doctor refilled Plaintiff’s

(AR 367).

On July 17, 2013,
(AR 794).

Plaintiff

The test concluded

(AR 794).

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21

On July 9, 2013, Plaintiff went to the Emergency Room at

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Riverside County Regional Medical Center.

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a refill of his pain and hypertension medication.

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doctor partially refilled Plaintiff’s medication but directed him

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to follow up with his primary care provider.

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noted lower back and hip pain.

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medical summary was prepared by the Gastro-Enterology department.

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(AR 363).

(AR 353).

(AR 353).

He requested

(AR 353).

(AR 353).

The

The doctor

On July 11, 2013, a

In that summary, it was reported that Plaintiff smoked
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1

a pack of cigarettes daily, used alcohol occasionally, and used

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marijuana daily.

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psychiatric evaluation, the doctor noted that Plaintiff stated he

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"drank alcohol and used marijuana [after his divorce], as he had

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when he was an older adolescent/young adult. Pt. denies a history

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of other illicit drug use and reports he is not drinking more than

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once or twice a month at this time."

(AR 363).

On an August 8, 2013 report for a

(AR 360),

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On July 15, 2013, Plaintiff went to the Emergency Room at

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Riverside County Regional Medical Center.

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of generalized weakness, depression, and having a reaction to

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medication.

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flat affect.

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(“ECG”)

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depression nonspecific.

(AR 346).

which

He complained

The notes describe Plaintiff as having a

(AR 347).
revealed

(AR 346).

The doctor ordered an echocardiogram
sinus

bradycardia

and

ST

junctional

(AR 347).

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On September 3, 2013, Plaintiff saw Dr. Yi-Pin Cheng at

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Riverside County Regional Medical Center.

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requested pain pills for joint pain.

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he normally receives 180 pills per month.

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noted Plaintiff had chronic pain in his back, knee, and hip but

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did not have saddle anesthesia.

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"[e]ncourage exercise and lose weight."

(AR 344).

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partially

prescriptions

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hydrochlorothiazide, tramadol, and amlodipine. (AR 336). However,

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Dr. Cheng advised Plaintiff he needed to return to his primary care

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provider to obtain a full refill of his pain pills.

renewed

(AR 343).

7

Plaintiff

Plaintiff claimed

(AR 343).

(AR 344).

Plaintiff’s

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(AR 336).

Dr. Cheng

Dr. Cheng wrote
Dr. Cheng

(AR 343).

for

Dr.

1

Cheng observed Plaintiff was properly oriented and displayed the

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appropriate mood and affect.

(AR 344).

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4

On September 18, 2013, Plaintiff sought treatment at the

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Family Care Clinic at Riverside County Regional Medical Center.

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(AR 337).

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been ongoing for the last six months.

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reported a history of right knee pain resulting from an injury to

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his ACL when he was 19 years old.

He complained of rectal bleeding which he reported had
(AR 337).

(AR 337).

Additionally, he

Plaintiff also said

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he felt “achy” and “heavy.”

(AR 337).

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clinic

“normal

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strength,

13

inspection.”

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properly oriented, exhibited normal judgment and demonstrated “the

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appropriate mood and affect.” (AR 339). The clinic found Plaintiff

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was stable and noted "no need for admission based on symptoms and

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vitals."

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referred him to physical therapy, and continued his medication.

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(AR 339).

noted
and

Plaintiff
stability
(AR 338).

(AR 339).

had
in

all

During this visit, the

range

of

extremities

motion,

with

no

muscle
pain

on

The clinic further noted Plaintiff was

The clinic took an x-ray of Plaintiff’s knee,

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21

The x-ray taken of Plaintiff’s knee on September 18, 2013

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revealed no acute problems with the knee.

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included three views of the knee.

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knee was “unremarkable” but did state a joint effusion could not

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be excluded based on the x-rays.

(AR 409).

(AR 409).

The x-ray

The doctor found the

(AR 409).

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27

On March 25, 2014, Plaintiff completed a physical therapy

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questionnaire for Cure Physical Therapy and Wellness Center (“Cure
8

1

PT”).

2

489).

3

wrist pain.

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when did your current complaints start?" Plaintiff wrote "Approx.

5

1 yr. ago."

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through July 30, 2014 for a total of thirteen sessions.

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503).

(AR 488).

He was referred to Cure PT by Dr. Sharif.

(AR

Plaintiff complained of back, hip, right knee and right
(AR 488).

(AR 488).

In response to the question "Approximately

He attended physical therapy from March 25
(AR 489-

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On July 9, 2014, Plaintiff underwent an x-ray of his abdomen

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and an ultrasound of his kidneys.

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the results of the x-ray showed “[m]ild degenerative changes of

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the bilateral hips and pubic symphysis” but were non-definitive

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regarding kidney stones.

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of the ultrasound were most compatible with nonobstructing left

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renal stones.

(AR 616-17).

(AR 617).

The doctor found

The doctor found the results

(AR 616).

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On July 18, 2014, Plaintiff underwent an x-ray of his right

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shoulder.

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osteophyte".

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a physical therapy questionnaire for Cure PT.

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complained of right shoulder pain. (AR 504). He stated his current

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complaint started one month prior.

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therapy for his right shoulder from September 8 through December

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19, 2014 for a total of 9 visits.

(AR

612).

(AR 612).

The

x-ray

revealed

"inferior

acromial

On September 8, 2014, Plaintiff completed

(AR 504).

(AR 504).

He

He attended physical

(AR 505-13).

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26

On October 16, 2014, Plaintiff underwent an x-ray of his

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lumbar spine.

(AR 595).

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changes

L4-5

at

Three views revealed mild osteoarthritic

including

disc
9

height

loss

and

mild

1

anterolisthesis.

2

levoscoliosis of the lumbar spine centered at L3.

(AR

595).

The

x-rays

also

revealed

mild

(AR 595).

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4

On January 15, 2015, Plaintiff had an initial evaluation for

5

physical therapy at "Cure PT".

(AR 514).

6

PT by Dr. Sharif.

He complained of lower back pain.

7

(AR 514).

8

19 years old but that it began to increase 2 years ago.

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He attended physical therapy for his lower back from January 15

10

(AR 515).

He was referred to Cure

He reported he had experienced this pain since he was

through May 1, 2015 for a total of 9 visits.

(AR 514).

(AR 522).

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12

On March 5, 2015, Plaintiff underwent an x-ray of his right

13

hip.

14

584).

(AR 584).

The x-ray impression was "normal right hip".

(AR

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16

On May 12, 2015, Plaintiff received an injection to his right

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hip to help alleviate pain.

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recommendation for physical therapy for his right hip.

19

On

20

questionnaire for "Cure PT".

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lower back pain. (AR 523). The physical therapist felt Plaintiff’s

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right hip should be the focus of treatment because of possible

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bursitis.

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therapy for his right hip on June 25, 2015 with

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treatment to last for four weeks with two visits per week.

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524). The physical therapist observed that Plaintiff had treatment

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with the "Cure" facility previously, which "[Plaintiff] notes has

28

provided good relief."

June

25,

2015,

(AR 524).

(AR 570-72).

Plaintiff

completed

(AR 523).

He also received a

a

(AR 573).

physical

therapy

He complained of hip and

Plaintiff’s record shows he started physical

(AR 524).
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recommended
(AR

1

B.

Treating Physician Opinion

2
3

On June 26, 2015, Plaintiff’s treating physician, Dr. Subhi

4

Sharif, filled out a medical opinion form related to Plaintiff’s

5

physical ability to do work-related tasks.

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that Plaintiff can occasionally lift ten pounds or less.

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663).

8

two hours and can sit for less than two hours during an eight-hour

9

day with normal breaks.

(AR 663-65).

He stated
(AR

He indicated that Plaintiff can stand and walk for less than

(AR 663).

Dr. Sharif further qualified

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that Plaintiff can only stand for ten minutes and sit for fifteen

11

minutes before needing to alter position to relieve discomfort.

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(AR 663).

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fifteen minutes and he needs to be able to alternate freely between

14

sitting and standing.

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Plaintiff would need to lie down “several times a day” during

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working hours.

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only occasionally twist, stoop, crouch, and climb stairs and can

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never climb ladders.

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handle, feel, and push/pull are impaired.

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to finger or use fine manipulation is not impaired.

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has no restriction on exposure to wetness.

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avoid even moderate exposure to humidity, noise, and fumes, odors,

23

dusts, gases, poor ventilation, etc.

24

that Plaintiff would miss work more than three times a month as a

25

result of his impairments.

26

Plaintiff must avoid all exposure to extreme cold and heat and

27

hazards such as machinery and heights.

He stated that Plaintiff needs to walk around every

(AR 664).

(AR 664).

Dr. Sharif

also indicated

According to Dr. Sharif, Plaintiff can

(AR 664).

Plaintiff’s ability to reach,
(AR 664).

His ability
(AR 664).

(AR 665).

(AR 665).

He

He needs to

Dr. Sharif opined

Finally, Dr. Sharif believes that

28
11

(AR 665).

1

Dr. Sharif found all of these restrictions were based on

2

Plaintiff’s “significant bone degeneration[,] the slipped disks in

3

vertebrae[,] arthritis in spine[, and] pain (chronic).”

4

Additionally, Dr. Sharif stated Plaintiff has depression which

5

causes anxiety and his chronic pain restricts him from working.

6

(AR 665).

Dr. Sharif is a general practitioner.

(AR 664).

(AR 559).

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8

C.

State Agency Doctors

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10

1.

Initial Level Residual Assessment

11
12

On January 9, 2014, State Agency Medical Consultant Dr. A.

13

Wong completed the Residual Assessment of Plaintiff.

14

For the physical limitations assessment, Dr. Wong found Plaintiff

15

can occasionally lift 50 pounds and can frequently lift 25 pounds.

16

(AR 83).

17

6 hours in an 8-hour work day and can sit for about 6 hours in an

18

8-hour workday.

19

and/or pull subject to the lifting limitations.

20

found

21

frequently climb ramps, ladders and stairs, balance, stoop, kneel,

22

crouch

23

manipulative, visual, communicative or environmental limitations.

24

(AR 84).

(AR 75-84).

Dr. Wong also found Plaintiff can stand and/or walk about

(AR 83).

Plaintiff’s

and

crawl.

Dr. Wong found the Plaintiff can push

postural

(AR

limitations

83-84).

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26
27
28
12

Dr.

were

Wong

(AR 83).
such

did

Dr. Wong

that

not

he

find

can

any

1

2.

Reconsideration Level Residual Assessment

2
3

On March 13, 2014, State Agency Medical Consultant Dr. Mazuryk

4

completed

5

reconsideration level.

6

had the same exertional limitations as the initial level Residual

7

Assessment except that Plaintiff could only occasionally lift 20

8

pounds and frequently lift 10 pounds.

9

that Plaintiff can sit, stand and walk about 6 hours in an 8-hour

the

Residual

Assessment

(AR 88-101).

of

Plaintiff

at

the

Dr. Mazuryk found Plaintiff

(AR 97).

Dr. Mazuryk found

10

work day.

11

Mazuryk

12

ladders and stair, balance, stoop, kneel, crouch and crawl.

13

97).

14

limitations.

15

limitations.

16

avoid concentrated exposure to extreme cold, vibration, and hazards

17

such as machinery and heights.

18

that Plaintiff needed to avoid cold and vibration because it could

19

exacerbate his pain. (AR 98). Dr. Mazuryk further stated Plaintiff

20

should avoid uneven terrain because it might cause his right knee

21

might to become unstable.

(AR 97).

found

For Plaintiff’s postural limitations, Dr.

Plaintiff

could

only

occasionally

climb

ramps,
(AR

Dr. Mazuryk found no manipulative, visual or communicative
(AR 97).

However, Dr. Mazuryk did find environmental

(AR 97).

Dr. Mazuryk stated Plaintiff needed to

(AR 98).

Dr. Mazuryk explained

(AR 98).

22
23

Overall, the State Agency doctors at the reconsideration level

24

found Plaintiff was not disabled and had the residual functional

25

capacity to perform light work.

26

Plaintiff could perform some of his past relevant work.

27

100).

28

(AR 94, 100).

3
13

Dr. Mazuryk found
(AR 99-

1

D.

Orthopedic Consultant

2
3

Dr. Vicente R. Bernabe, a board certified orthopedic surgeon,

4

examined Plaintiff on December 13, 2013.

5

reported low back, right hip and right knee pain.

6

stated he “tore his right knee” when he was 19 but did not have

7

surgery to repair it and has experienced pain since then.

8

418).

9

medications

(AR 418-23).

Plaintiff

(AR 418).

He

(AR

He also stated his current treatment only involved pain
including

Tramadol.

(AR

418).

He

reported

10

occasionally using a cane but not a knee brace.

11

doctor further noted Plaintiff’s family history included his father

12

having “arthritis and bone and joint disease.”

(AR 418).

The

(AR 419).

13
14

Dr. Bernabe concluded Plaintiff had “lumbar musculoligamentus

15

strain,

16

trochanteric bursitis of the right hip.”

17

observed Plaintiff could walk without a cane and perform a fifty

18

percent squat.

19

at the lumbosacral region” and observed a paravertebral muscle

20

spasm on Plaintiff’s left side.

21

leg raise test returned negative results bilaterally both in the

22

seated position to 90 degrees and the supine position.

23

Plaintiff’s right shoulder had the same range of motion as his left

24

shoulder.

25

test.

26

no instability.

27

Bernabe palpated his right hip along the greater trochanter area.

28

(AR 421).

internal

derangement

(AR 419).

(AR 420).

(AR 420).

of

the

right

knee,

and

(AR 422).

greater

The doctor

The doctor found Plaintiff was “tender

(AR 420).

However, the straight-

(AR 420).

He also had a negative cross arm adduction

The doctor found Plaintiff’s right shoulder had
(AR 420).

Plaintiff experienced pain when Dr.

However, the doctor found Plaintiff’s range of motion
14

1

in both hips was within normal limits.

2

had 1+ effusion and tenderness at the medial patella femoral joint

3

line

4

Plaintiff’s right knee ligament appeared to be stable.

with

crepitus.

(AR

421).

(AR 421).

However,

His right knee

the

doctor

found

(AR 421).

5
6

Dr. Bernabe took two radiological views of Plaintiff’s lumbar

7

spine, right knee and right hip each.

8

lumbar spine revealed straightening of the lumbar lordosis.

9

422).

However,

Plaintiff’s

(AR 422).

intervertebral

The views of the

disc

spaces

(AR
were

10

preserved and there was no compression fracture or dislocation.

11

(AR 422).

12

422).

13

(AR 422).

The views of the right knee showed no findings.

(AR

The views of the right hip also resulted in no findings.

14
15

Dr. Bernabe completed a functional assessment of Plaintiff.

16

(AR 422).

17

occasionally and 25 pounds frequently.

18

limitations on Plaintiff’s pushing and pulling abilities.

19

422).

20

out of an eight-hour work day.

21

Plaintiff can sit for six hours out of an eight-hour work day.

22

422).

23

crouch frequently and can walk on uneven terrain, climb ladders

24

and work at heights frequently.

He opined that Plaintiff can lift and carry 50 pounds
(AR 422).

He found no
(AR

He opined that Plaintiff can walk and stand for six hours
(AR 422).

He further opined that
(AR

He also found Plaintiff can bend, kneel, stoop, crawl and

(AR 422).

25
26
27
28
15

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 him from engaging in substantial gainful activity3

7

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

8

period of at least twelve months.

Reddick v. Chater, 157 F.3d 715,

9

721

U.S.C.

(9th

Cir.

1998)(citing

42

§

423(d)(1)(A)).

The

10

impairment must render the claimant incapable of performing the

11

work he 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

To decide if a claimant is entitled to benefits, an ALJ

17

conducts a five-step inquiry.

18

steps are:

20 C.F.R. §§ 404.1520, 416.920.

The

19
20

(1)

Is the claimant presently engaged in substantial gainful

21

activity? If so, the claimant is found not disabled.

22

not, proceed to step two.

23

(2)

24

Is the claimant’s impairment severe?
is found not disabled.

25

(3)

If

If not, the claimant

If so, proceed to step three.

Does the claimant’s impairment meet or equal one of a list

26
27
28

Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done
for pay or profit. 20 C.F.R. §§ 404.1510, 416.910.
3

16

1

of specific impairments described in 20 C.F.R. Part 404,

2

Subpart P, Appendix 1?

3

disabled.

4

(4)

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work?

5

so, the claimant is found not disabled.

6

If

step five.

7

(5)

If not, proceed to

Is the claimant able to do any other work?

8

claimant is found disabled.

9

If not, the

not disabled.

If so, the claimant is found

10
11

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

12

262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b) –

13

404.1520(f)(1) & 416.920(b) – 416.920(f)(1).

14
15

The claimant has the burden of proof at steps one through

16

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

17

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

18

affirmative duty to assist the claimant in developing the record

19

at every step of the inquiry.

20

claimant meets his burden of establishing an inability to perform

21

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

22

some

23

national economy, taking into account the claimant’s residual

24

functional

25

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20

other

work

that

capacity,4

exists

age,

Additionally, the ALJ has an

Id. at 954.

in

If, at step four, the

“significant

education,

and

numbers”

work

in

the

experience.

26
27
28

Residual functional capacity is “what [one] can still do despite
[his] limitations” and represents an “assessment based upon all of
the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a).
4

17

1

C.F.R. §§ 404.1520(g)(1), 416.920(g)(1) (2017).

2

may do so by the testimony of a vocational expert or by reference

3

to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part

4

404,

5

Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).

6

claimant has both exertional (strength-related) and nonexertional

7

limitations, the Grids are inapplicable and the ALJ must take the

8

testimony of a vocational expert.

9

869 (9th Cir. 2000)(citing Burkhart v. Bowen, 856 F.2d 1335, 1340

10

Subpart

P,

Appendix

2

(commonly

known

The Commissioner

as

“the

Grids”).
When a

Moore v. Apfel, 216 F.3d 864,

(9th Cir. 1988)).

11
12

V.

13

THE ALJ’S DECISION

14
15

The ALJ used the above five-step process and found Plaintiff

16

was not disabled according to the Social Security Act.

17

31).

18

substantial gainful activity from the application date of August

19

29, 2013.

20

following severe impairments:

(AR 19-

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

21

(AR 21).

At step two, the ALJ found Plaintiff had

“pain in the hip, knees, and back; lumbar
musculoligamentous strain; internal derangement of
the right knee; and greater trochanteric bursitis
of the right hip.”

22
23
24

(AR 21).

The ALJ further found Plaintiff’s hemorrhoids with rectal

25

bleeding, hypertension and depressive disorder with anxiety were

26

nonsevere impairments.

(AR 21-23).

27
28
18

1

At step three, the ALJ found Plaintiff’s impairments did not

2

meet or medically equal in whole or in part any of the specific

3

impairments as required under this step of the process.

4

Next, the ALJ determined Plaintiff’s residual functional capacity

5

for use in steps four and five.

6

Plaintiff

7

exceptions:

had

the

RFC

to

(AR 25-31).

perform

light

work

(AR 24).

The ALJ found
with

certain

8
9
10
11
12
13
14
15

“the claimant can lift and/or carry 20 pounds
occasionally and 10 pounds frequently; he can
stand and/or walk for six hours out of an eighthour work day with regular breaks; he can sit for
six hours out of an eight-hour workday with
regular breaks; he can occasionally climb ramps
and stairs; he can occasionally climb ladders,
ropes, and scaffolds, stoop, balance, kneel,
crouch, and crawl; he is precluded from
concentrated exposure to extreme cold, wetness,
vibration, uneven terrain and hazards including
machinery and unprotected heights.” (AR 25).

16
17

Based on this residual functional capacity, at step four the

18

ALJ found Plaintiff is capable of performing some of his past

19

relevant work.

20

disabled under the Social Security Act.

(AR 30).

Thus, the ALJ found Plaintiff was not
(AR 31).

21
22
23

VI.
STANDARD OF REVIEW

24
25

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

26

Commissioner’s decision to deny benefits.

27

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

28

legal error or are not supported by substantial evidence in the
19

The court may set aside

1

record as a whole.

2

2014)(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052

3

(9th Cir. 2006); Auckland v. Massanari, 257 F.3d 1033, 1035 (9th

4

Cir. 2001)(citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80

5

F.3d 1273, 1279 (9th Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597,

6

601 (9th Cir. 1989)).

Garrison v. Colvin, 759 F.3d 995 (9th Cir.

7
8
9

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

Reddick, 157 F.3d at 720 (citing Jamerson v.

10

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

11

evidence which a reasonable person might accept as adequate to

12

support a conclusion.”

13

Smolen,

14

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

15

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

16

detracts from the [Commissioner’s] conclusion.’” Auckland, 257 F.3d

17

at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

18

If

19

reversing

20

judgment for that of the Commissioner.

21

21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

the

80

F.3d

at

evidence
that

can

It is “relevant

Id. (citing Jamerson, 112 F.3d at 1066;

1279).

To

determine

reasonably

conclusion,

the

support
court

may

whether

either
not

substantial

affirming
substitute

or
its

Reddick, 157 F.3d at 720-

22
23

VII.

24

DISCUSSION

25
26

Plaintiff contends the ALJ failed to properly consider the

27

opinion of treating physician, Subhi Sharif, M.D.

28

Support Of Plaintiff’s Complaint (“MSC”), Dkt. No. 21, at 2-6).
20

(Memorandum In

1

Specifically, Plaintiff argues that “the ALJ failed to provide

2

specific and legitimate reasons supported by substantial evidence

3

for rejecting” Dr. Sharif’s opinion.

(Id. at 4).

4
5

The Court disagrees with Plaintiff’s contentions.

The ALJ

6

provided specific and legitimate reasons supported by substantial

7

evidence for rejecting Dr. Sharif’s opinion.

8

ALJ’s decision must be AFFIRMED.

Accordingly, the

9
10

The ALJ Provided Specific And Legitimate Reasons To Reject

11

Plaintiff’s Treating Doctor’s Opinion

12
13
14
15

As a matter of law, the greatest weight is accorded to the
claimant's treating physician.
1160-61 (9th Cir. 2014).

Ghanim v. Golvin, 763 F.3d 1154,

The opinions of treating physicians are

16
17
18

entitled to special weight because the treating physician is hired
to cure and has a better opportunity to know and observe the

19

claimant as an individual.

20

a treating or examining physician’s opinion is not contradicted by

21

another

22

convincing” reasons.

23
24

physician,

(9th Cir. 2017).

it

may

Id.

Further, as a general rule, when

be

rejected

for

“clear

and

See Trevizo v. Berryhill, 871 F.3d 664, 675

The ALJ can meet this burden by setting forth a

detailed and thorough summary of the facts.

25
26

only

675.

27
28
21

Trevizo, 871 F.3d at

1
2
3
4
5
6
7

When

a

treating

or

an

examining

physician’s

opinion

is

contradicted by another doctor, it may only be rejected if the ALJ
provides “specific and legitimate” reasons supported by substantial
evidence in the record.

See Garrison v. Colvin, 759 F.3d 995, 1012

(9th Cir. 2014); see also Orn v. Astrue, 495 F.3d 625, 633 (9th
Cir. 2007).

8
Here, Consultative Examiner Vincente Bernabe, D.O., and the

9
10

State

Agency

Medical

Consultants

contradicted

treating

doctor

11

Sharif’s opinion.

12

23).

13

at most, and can sit, stand, and walk 2 hours in an 8-hour day.

14

(AR 663).

15

Medical Consultants opined Plaintiff can lift and carry at least

16

20 pounds occasionally, and can sit, stand, and walk 6 hours in an

17

8-hour day.

18

opinions, the ALJ is required to provide “specific and legitimate”

19

reasons for rejecting Dr. Sharif’s opinion.

(Compare AR 663-65 with AR 82-84, 96-98 and 418-

Dr. Sharif opined that Plaintiff can lift and carry 10 pounds

Consultative examiner Dr. Bernabe and the State Agency

(AR 83, 97, and 422).

Because of the conflicting

20
The Court finds that the ALJ provided specific and legitimate

21
22

reasons

supported

23

Sharif’s opinion.

24

summarized the objective medical evidence prior to assigning weight

25

to the opinions of the physicians.

26

Dr.

27

legitimate reasons.

Sharif’s

by

substantial

evidence

for

rejecting

Dr.

Specifically, in the written decision, the ALJ

opinion,

the

ALJ

28
22

In assigning little weight to
provided

three

specific

and

1

First, the ALJ explained that Dr. Sharif’s opinion is “grossly

2

[inconsistent] with the x-rays contained in the record, which

3

revealed no more than mild findings.” (AR 29). There is sufficient

4

evidence in the record to support the ALJ’s determination.

5

regard to Plaintiff’s hip, x-rays taken in 2013 and 2015 both

6

revealed a “Normal right hip.”

7

of plaintiff’s right knee taken in September and December 2013

8

revealed unremarkable findings.

9

rays performed of his right shoulder, which revealed that he had

10

“inferior acromial osteophyte,” but there is no evidence that

11

Plaintiff received more than routine physical therapy treatment

12

for any shoulder pain.

13

lumbar spine also yielded unremarkable findings.

14

2013 revealed that Plaintiff had a “straightening of the lumbar

15

lordosis” but his lumbar spine was otherwise normal.

16

X-rays taken on October 16, 2014 revealed that Plaintiff had only

17

mild osteoarthritic changes and mild levoscoliosis.

18

These

19

Sharif’s extremely limiting opinions.

20

results are a specific and legitimate reason for rejecting Dr.

21

Sharif’s opinion.

largely

(AR 422, 584).

(AR 409, 422).

(AR 612).

unremarkable

x-ray

With

Similarly, x-rays

Plaintiff had x-

Finally, X-rays of Plaintiff’s

results

do

X-rays taken in

not

(AR 422).

(AR 595).
support

Dr.

Accordingly, the x-ray

22
23

Second, the ALJ rejected Dr. Sharif’s opinion because it was

24

“inconsistent with the general benign findings from the orthopedic

25

consultative examination.”

26

is not a specific and legitimate reason because the ALJ gave little

27

weight

28

Plaintiff’s argument lacks merit because the ALJ did not reject

to

the

consultative

(AR 29).

Plaintiff argues that this

examiner’s

23

opinion.

(MSC

at

6).

1

Dr. Sharif’s opinion based on the consultative examiner’s opinion.

2

Instead, the ALJ found that Dr. Sharif’s opinion was inconsistent

3

with the “benign findings” of the consultative examination.

4

29).

There is sufficient evidence in the record to support the

5

ALJ’s

determination.

6

physical examination, which reflected that Plaintiff was in “no

7

acute or chronic distress.”

(AR 419).

8

not use a brace.

Although Plaintiff claims to use a

9

cane, it is “not medically necessary.”

The

consultative

(AR 418).

examiner

(AR

performed

a

Further, Plaintiff does

(AR 419).

The consultative

10

examiner observed plaintiff ambulate without a cane and walked

11

unassisted.

12

extremities was largely unrevealing.

13

mentioned above, the consultative examiner performed x-rays of

14

Plaintiff’s lumbar spine, right knee, and right hip, which all

15

yielded unremarkable findings.

16

do

17

Accordingly, the benign findings of the consultative examination

18

are a specific and legitimate reason for rejecting Dr. Sharif’s

19

more limiting opinion.

not

(AR 419).

support

Dr.

The examination of Plaintiff’s spine and
(See AR 420-21). Finally, as

(AR 422).

Sharif’s

These benign findings

extremely

limiting

opinions.

20
21

Third,

the

ALJ

wrote

that

it

appears

Dr.

Sharif

was

22

"sympathetic"

23

“supported by the longitudinal treatment notes.”

24

Plaintiff

25

"sympathetic"

26

treating doctor, Plaintiff overlooks the entire reason provided by

27

the ALJ.

to

Plaintiff

challenges
to

the

Plaintiff

as

Dr.

ALJ's
as

Sharif's

comment
an

opinions

that

improper

are

(AR 29).
Dr.

basis

While

Sharif
to

not

was

reject

a

The ALJ expressly stated that the "longitudinal treatment

28
24

1

notes" do not support the degree of limitation suggested by the

2

treating doctor.

3
4

Reliance upon the longitudinal treatment notes -- essentially

5

the totality of Plaintiff's treatment history -- was a specific

6

and legitimate reason to reject Dr. Sharif's extremely limiting

7

opinion.

8

physical capability, Dr. Sharif did not distinguish any of the

9

treatment

When completing the questionnaire regarding Plaintiff’s

notes

or

contrary

test

results

to

explain

his

10

determinations.

11

the reason for the limitations.

12

treatment notes show that Plaintiff received physical therapy and

13

pain

14

themselves fail to support the degree of limitation suggested by

15

Dr. Sharif.

16

was a specific and legitimate reason for rejecting Dr. Sharif’s

17

opinion.

medication

Instead, Dr. Sharif repeatedly listed “pain” as

for

his

(See AR 664-65).

symptoms,

but

the

The longitudinal

treatment

notes

Accordingly, the conflict with the treatment record

18 \\\
19 \\\
20 \\\
21 \\\
22 \\\
23 \\\
24 \\\
25 \\\
26
27
28
25

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment be

5

entered AFFIRMING the decision of the Commissioner and dismissing

6

this action with prejudice.

7

of the Court serve copies of this Order and the Judgment on counsel

8

for both parties.

IT IS FURTHER ORDERED that the Clerk

9
10

DATED:

December 5, 2017

11

/S/

12

SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

13
14

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

15
16
17
18
19
20
21
22
23
24
25
26
27
28
26