Jimenez v. Commissioner of Social Security

Filing 19

ORDER AFFIRMING ALJ'S DECISION signed by Magistrate Judge Sheila K. Oberto on 11/14/2018. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 HELEN MARY JIMENEZ, 11 Case No. 1:17–cv–01552–SKO Plaintiff, 12 v. 13 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 14 (Doc. 1) Defendant. 15 ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT _____________________________________/ 16 17 I. 18 INTRODUCTION On November 20, 2017, Plaintiff Helen Mary Jimenez (“Plaintiff”) filed a complaint 19 20 under 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the 21 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application 22 for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Doc. 1.) 23 The matter is currently before the Court on the parties’ briefs, which were submitted, without 24 oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 II. BACKGROUND 25 On May 10, 2013, Plaintiff filed an application for DIB and SSI, alleging that she became 26 27 disabled on April 20, 2011, due to a torn rotator cuff, carpel tunnel syndrome, and high blood 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 6, 8.) 1 pressure. (Administrative Record (“AR”) 176–89, 208.) Plaintiff was born on May 14, 1954, and 2 was 56 years old on the alleged disability onset date. (See AR 176.) Prior to her alleged onset 3 date, Plaintiff tore the rotator cuff in her right shoulder in 1998 and had surgery on her shoulder 4 in 1999 and 2000. (AR 398.) Plaintiff did not complete high school, and previously worked as a 5 school district clerk from 1995 to 1998, and performed clerical work at a garbage company from 6 2003 to 2011. (AR 209.) 7 A. Relevant Medical Evidence2 8 1. 9 On February 10, 2011, Plaintiff presented to John Emerzian, D.C., a chiropractor with San Workers’ Compensation Doctors 10 Joaquin Total Care in Fresno, California, requesting a referral for an orthopedic consultation in 11 conjunction with her state workers’ compensation claim. (AR 351.) Dr. Emerzian referred 12 Plaintiff to Peter McGann, M.D., for an orthopedic consultation regarding her bilateral shoulders 13 and requested additional in-home physiotherapy for the next two weeks. (AR 351.) 14 On March 29, 2011, Plaintiff returned for a follow up appointment and Dr. Emerzian 15 diagnosed Plaintiff with “shoulder sprain/strain left predominant unresolved.” (AR 352.) Dr. 16 Emerzian noted that Dr. McGann recommended arthroscopic shoulder reconstruction surgery, 17 which Dr. McGann performed in May 2011.3 (AR 352, 356.) Following the surgery, Dr. 18 Emerzian’s treatment notes reflect a significant improvement in Plaintiff’s level of functioning. 19 (See AR 353–58.) On June 16, 2011, Dr. Emerzian noted that Plaintiff’s range of motion was 20 improving and she was actively participating in physical therapy. (AR 353.) On July 11, 2011, 21 Dr. Emerzian noted Plaintiff’s response to care was “overtly positive” and recommended 22 Plaintiff return to work on light duty with no overhead lifting. (AR 354.) Dr. Emerzian noted 23 continued improvement at Plaintiff’s appointments on August 12 and 30, 2011. (AR 355–56.) 24 On October 19, 2011, Dr. Emerzian noted that Plaintiff’s left shoulder was “completely healed,” 25 but there was a lack of response to care in Plaintiff’s right shoulder. (AR 357.) 26 27 28 As Plaintiff’s assertions of error are limited to the ALJ’s consideration of the medical opinions of John Emerzian, D.C., and William Foxley, M.D., only evidence relevant to those arguments is set forth in this Order. 3 The Court notes that Dr. McGann’s treatment notes were not included in the administrative record due to his retirement (see AR 270) and as a result, the only evidence of Dr. McGann’s findings, recommendations, and course of treatment is in the treatment notes of Dr. Emerzian. 2 2 On December 15, 2011, Dr. Emerzian requested an MRI of Plaintiff’s right shoulder 1 2 based on “the clinical presentation of pain, range of motion loss, periarticular crepitance, and 3 instability of the right shoulder.” (AR 359.) However, Dr. Emerzian noted Plaintiff remained 4 “clinically capable of all forms of regular work.” (AR 359.) On April 23, 2012, Dr. Emerzian 5 expressed frustration that Plaintiff’s case “has been stalled” and noted that an MRI and nerve 6 conduction study, were the appropriate protocols to move the case forward, but these evaluations 7 were not being approved by Plaintiff’s workers’ compensation insurance provider. (AR 363.) On May 18, 2012, an MRI was performed on Plaintiff’s right shoulder, which revealed 8 9 findings suggestive of calcific tendonitis. (AR 380.) The MRI showed that Plaintiff’s rotator 10 cuff was intact, but also revealed several minor abnormalities in the shoulder.4 (AR 380.) On 11 May 23, 2012, Dr. Emerzian noted that the nerve conduction studies were normal and requested 12 another orthopedic consultation for Plaintiff’s right and left shoulders. (AR 364.) 13 On June 21, 2012, Plaintiff presented to William Foxley, M.D., a physician practicing 14 Occupational Medicine at San Joaquin Total Care, for a follow up appointment related to her 15 workers’ compensation claim. (AR 368.) Plaintiff continued to complain of right shoulder pain 16 and added that she was now experiencing lumbar spine pain. (AR 368.) Upon physical 17 examination, Dr. Foxley noted reduced range of motion and tenderness in the subacromial space, 18 but Plaintiff’s bicep was otherwise intact and her strength appeared to be intact other than pain 19 related to weakness. (AR 368.) A cortisone shot was administered, which improved Plaintiff’s 20 symptoms. (AR 368.) On July 6, 2012, Dr. Emerzian noted that Plaintiff’s shoulder symptoms 21 persisted, with the right shoulder being worse than the left shoulder, and that he received no 22 response to his previous request for an orthopedic consultation. (AR 365.) 23 On August 21, 2012, Dr. Emerzian noted that Dr. McGann had recommended Plaintiff 24 proceed with surgery on her right shoulder and Dr. Emerzian requested the surgery move 25 forward. (AR 372.) Dr. Emerzian repeated his request for surgery in his treatment notes on 26 27 28 The specific findings by the doctor reviewing the images included “a small amount of fluid in the subacromial subdeltoid bursa” that “may reflect bursitis,” “status post subacromial decompression with an acromioplasty and resection of the distal end of the clavicle,” and “increased signal in the anterior superior labrum” that “may represent labral degeneration or degenerative fraying of the labrum.” (AR 380.) 4 3 1 October 29, 2012, and noted that all alternative forms of conservative care had failed. (AR 371.) 2 On May 3, 2013, Dr. Emerzian noted that Plaintiff was still in need of surgery on her right 3 shoulder. (AR 373.) Dr. Emerzian also noted that Dr. McGann had retired, and requested an 4 orthopedic evaluation with Dr. Peter Simonian, M.D. (AR 373.) On June 7, 2013, Dr. Emerzian 5 repeated his request for an orthopedic evaluation with Dr. Simonian, and noted that Plaintiff 6 remained at work with no restrictions or limitations. (AR 374.) Following Dr. Emerzian’s repeated requests, the record shows Dr. Simonian performed 7 8 arthroscopic surgery on Plaintiff’s right shoulder in August 2013.5 (See AR 400–01.) However, 9 when Plaintiff next visited Dr. Emerzian on October 3, 2013, he only noted that Plaintiff was 10 experiencing carpal tunnel syndrome symptoms in her bilateral wrists, and did not make any 11 findings or observations related to her shoulders. (AR 375.) Dr. Emerzian diagnosed Plaintiff 12 with bilateral wrist sprain/strain and recommended Plaintiff remain off work for the next month. 13 (AR 375.) 14 On January 3, 2014, Plaintiff reported to Dr. Foxley that her medication, which included 15 Ibuprofen, Norco, Tramadol, and Flexeril, improved her functional activities of daily living, but 16 she continued to experience pain in her bilateral shoulders. (AR 476.) Dr. Foxley noted 17 tenderness in Plaintiff’s bilateral shoulders with right being greater than left, and limited range 18 of motion in both shoulders. (AR 476.) 19 On January 9, 2014, Plaintiff reported to Dr. Emerzian that she wished to move forward 20 with surgical intervention for her wrists. (AR 475.) Dr. Emerzian noted that he had requested 21 wrist braces in December, but he had received no response from Plaintiff’s workers’ 22 compensation insurance provider. (AR 475.) On February 20, 2014, Plaintiff complained to Dr. 23 Foxley of pain in her shoulders, wrists, and lower back, but Dr. Foxley noted Plaintiff had full 24 range of motion in her wrists “with hesitation based on pain from the wrists.” (AR 474.) Dr. 25 Foxley also noted that Plaintiff was not working, but completed her activities of daily living with 26 no problems and “does everything at home except for any heavy lifting.” (AR 474.) Plaintiff 27 continued to report pain to Dr. Foxley in her bilateral shoulders, and Dr. Foxley noted tenderness 28 5 See Section III.A.2 below for a summary of Dr. Simonian’s treatment notes. 4 1 in both shoulders and restricted range of motion bilaterally, at her appointments on March 28, 2 May 5, and June 6, 2014. (AR 470–71, 473.) 3 On June 10, 2014, Plaintiff complained to Dr. Emerzian of problems with her wrists. (AR 4 469.) Dr. Emerzian noted Plaintiff’s “degenerative joint disease in the wrists need[s] further 5 evaluation and care” and requested authorization to proceed with carpal tunnel surgery. (AR 6 469.) On June 13, 2014, Dr. Emerzian noted Plaintiff’s right shoulder needed further 7 intervention and her thumb and hand symptoms also needed further evaluation and care. (AR 8 467.) On June 24, 2014, Dr. Emerzian expressed frustration regarding the care Plaintiff was 9 receiving and stated in his treatment notes that a “combination of events have left [Plaintiff] with 10 a tremendous amount of instability” and “[a]t this point, we either wind down all forms of care 11 or come up with a game plan with all parties in agreement.” (AR 465.) 12 On July 3, 2014, Plaintiff reported to Dr. Foxley that her pain rated a six out of ten in her 13 shoulders and eight out of ten in her wrists. (AR 464.) Plaintiff further reported her pain 14 increased with household chores. (AR 464.) Upon physical examination, Dr. Foxley noted 15 Plaintiff was in no acute distress, but exhibited decreased range of motion in her shoulders and 16 tenderness in her shoulders, deltoids, trapezius, and c-spine. (AR 464.) Dr. Foxley also noted 17 Plaintiff’s grip strength was four out of five in her right hand, and five out of five in her left 18 hand. (AR 464.) Dr. Foxley’s examinations revealed similar findings at Plaintiff’s follow up 19 appointments on July 30, August 27, September 24, October 29, and November 26, 2014. (AR 20 458–62.) At her appointments with Dr. Foxley on December 31, 2014, and January 21, 2015, 21 Plaintiff reported the pain in her wrists was eight out of ten with medications. (AR 456–57.) On 22 January 21, 2015, Dr. Foxley recommended bilateral hand massages to treat the pain in 23 Plaintiff’s wrists, and requested bilateral wrist bands for added comfort. (AR 456.) 24 In February 2015, Plaintiff reported to Dr. Emerzian that the pain in her upper extremities 25 was intolerable, but her symptoms waxed and waned depending on the activities. (AR 454–55.) 26 Dr. Emerzian continued to recommend Plaintiff remain off work and noted that Plaintiff 27 received wrist supports to assist with her activities of daily living, but her wrists were becoming 28 weak. (AR 454–55.) Plaintiff continued to complain to Dr. Foxley of wrist pain at her 5 1 appointments in March and May 2015. (AR 451, 453.) On May 22, 2015, Plaintiff reported to 2 Dr. Foxley that she did not know if her insurance carrier approved the hand massage treatment 3 he previously requested. (AR 451.) Plaintiff further reported that the wrist pain was constant 4 and aggravated by lifting, carrying, pushing, reaching, bending, cooking, and cleaning. (AR 5 451.) 6 In June 2015, Dr. Emerzian noted that Plaintiff’s wrist symptoms waxed and waned 7 depending upon activity, but she continued to be disabled because of her wrists symptoms. (AR 8 450.) Dr. Emerzian also noted “severe spasms in the right and left cervical dorsal area and right 9 wrists” upon palpation. (AR 449.) In June 2015, Plaintiff also reported to Dr. Foxley that the 10 pain in her shoulders and wrists was nine of ten without medications, but seven to eight out of 11 ten with medications. (AR 448.) Plaintiff further reported that the pain was constant, but 12 alleviated by taking medications, resting, and wearing wrist supports. (AR 448.) Dr. Foxley 13 renewed his request for authorization to dispense bilateral wrist braces and requested a 14 consultation with a hand specialist. (AR 448.) Plaintiff continued to experience similar levels 15 of pain in her shoulders and wrists in July 2015, and Dr. Foxley renewed his request for a 16 consultation with a hand specialist. (AR 446.) 17 On August 19, 2015, Plaintiff reported to Dr. Foxley that her hands were going numb, 18 especially during the night. (AR 444.) Upon examination, Dr. Foxley noted moderate muscle 19 spasms, tenderness, and subluxation in both shoulders, wrists, and hands. (AR 444.) Dr. Foxley 20 noted similar findings at Plaintiff’s appointment on September 23, 2015. (AR 443.) At an 21 appointment on October 21, 2015 with Dr. Foxley, Plaintiff complained of pain and numbness in 22 both arms and hands, and reported that the pain in her hands was eight out of ten with 23 medications and ten out of ten without medications. (AR 442.) On October 26, 2015, Dr. 24 Emerzian noted that Plaintiff’s wrist symptoms waxed and waned depending on her activity, and 25 repeated the request for a consultation with a hand specialist. (AR 441.) 26 At an appointment on November 17, 2015 with Dr. Foxley, Plaintiff continued to 27 complain of pain and numbness in both hands and arms, but reported that medication relieved 28 some of her pain. (AR 440.) Dr. Foxley expressed concern at the level of opiates Plaintiff was 6 1 taking, and requested authorization for a referral to a pain management specialist. (AR 440.) 2 Plaintiff continued to report similar symptoms at her appointments with Dr. Foxley in December 3 2015, and January, February, and March 2016. (AR 434, 436, 438, 478.) She also reported that 4 when she took medications, she could perform light household chores such as washing dishes, 5 light loads of laundry, and making her bed. (AR 434, 436, 438, 478.) Dr. Foxley noted in 6 January 2016 that Plaintiff was denied her consultation with a hand specialist, and in February 7 2016, Dr. Foxley renewed his request for a consultation with a hand specialist due to increased 8 pain in Plaintiff’s hands. (AR 435, 437.) 9 Dr. Foxley also completed a medical source statement in March 2016. (AR 481–83.) Dr. 10 Foxley diagnosed Plaintiff with bilateral wrist sprains with numbness in both wrists. (AR 481.) 11 He opined Plaintiff could occasionally lift and carry less than ten pounds and rarely lift ten 12 pounds, but never lift twenty pounds. (AR 482.) Dr. Foxley further opined that Plaintiff could 13 use her upper extremities for handling, fingering, and reaching only 50 percent of the day. (AR 14 482.) 15 2. 16 On June 6, 2013, Plaintiff met with Dr. Simonian for an orthopedic consultation related to Peter Simonian, M.D. 17 her right shoulder. (AR 398–99.) Plaintiff reported that she tore her rotator cuff in 1998 and 18 had surgeries in 1999 and 2000, but continued to experience ongoing pain. (398.) Dr. 19 Simonian’s physical examination was positive for impingement, tenderness, and reduced rotator 20 cuff strength. (AR 398.) Following his physical examination and review of Plaintiff’s medical 21 records, Dr. Simonian diagnosed Plaintiff with “symptomatic calcific tendinitis and 22 impingement” and administered a cortisone injection, which Plaintiff tolerated well. (AR 398– 23 99.) On July 10, 2013, Plaintiff reported that the cortisone shot was only helpful for two weeks, 24 and she would like to proceed with arthroscopic surgery on her right shoulder. (AR 397.) 25 On August 13, 2013, Dr. Simonian performed arthroscopic surgery on Plaintiff’s right 26 shoulder. (AR 400–01.) One week after the surgery, on August 20, 2013, Plaintiff reported she 27 was doing well and her pain was controlled. (AR 395.) Six weeks after her surgery, on 28 September 30, 2013, Plaintiff reported she was still doing well, and Dr. Simonian noted that 7 1 Plaintiff was not working, but was capable of working subject to certain limitations. (AR 394.) 2 Three months after the surgery, on November 15, 2013, Plaintiff reported that she was doing 3 “fairly well,” but she was having some recent “popping and pain” in her shoulder. (AR 393.) 4 Dr. Simonian administered a cortisone injection, which Plaintiff tolerated well. (AR 393.) Four 5 and a half months after the surgery, on December 30, 2013, Plaintiff reported the cortisone shot 6 provided some relief, but she still had ongoing pain in her shoulder. (AR 392.) 7 3. 8 On August 27, 2013, Plaintiff presented to physical therapist Michael Jimenez for an Michael Jimenez, MPT 9 initial evaluation. (AR 391.) Plaintiff reported that she had no pain, but her right shoulder felt 10 “a bit stiff” with limited range of motion. (AR 391.) Mr. Jimenez recommended Plaintiff 11 participate in physical therapy twice a week for six weeks to restore her strength and range of 12 motion in her post-surgery shoulder. (AR 391.) 13 On September 27, 2013, Plaintiff reported that her shoulder was “progressing steadily,” 14 but remained sore. (AR 390.) Mr. Jimenez noted that Plaintiff’s strength and range of motion 15 were improving. (AR 390.) On November 12, 2013, Plaintiff reported that her shoulder 16 continued to be sore. (AR 388.) Mr. Jimenez noted that Plaintiff’s range of motion was restored 17 to within normal limits, but her strength remained compromised due to ongoing soreness and 18 inflammation. (AR 388.) 19 4. 20 In October 2013, Dr. Stoltz, a doctor of internal medicine at Valley Health Resources in Steven Stoltz, M.D. 21 Fresno, California, performed a consultative examination of Plaintiff. (AR 274–82.) Plaintiff 22 reported a history of bilateral shoulder pain, as well as bilateral carpal tunnel syndrome and 23 hypertension. (AR 274.) Plaintiff further reported intermittent back pain and pain in her wrists 24 as well as the base of both thumbs. (AR 274, 276.) 25 Upon physical examination, Dr. Stoltz noted Plaintiff was alert and oriented and in no 26 acute distress. (AR 276.) Range of motion in her neck and back was within normal limits, with 27 the exception of forward flexion of her back, which was limited to 70 degrees. (AR 276–77.) 28 Plaintiff’s grip strength was equal bilaterally, but diminished overall, and the range of motion in 8 1 her wrists and elbows was within normal limits, but the range of motion in her right shoulder 2 was limited. (AR 277.) 3 Dr. Stoltz diagnosed Plaintiff with bilateral shoulder pain, bilateral carpal tunnel 4 syndrome, hypertension, and intermittent low back pain. (AR 278.) Dr. Stoltz opined Plaintiff 5 had no restrictions with sitting, standing, or walking. (AR 279.) He also opined Plaintiff could 6 lift up to ten pounds occasionally and perform postural activities without restriction. (AR 279.) 7 However, due to the pain in both shoulders and carpal tunnel syndrome, Plaintiff could only 8 occasionally perform manipulative activities that would include reaching, handling, grasping, 9 pushing, and pulling. (AR 279.) 10 5. 11 On October 17, 2013, L. Kiger, M.D., a Disability Determination Services medical State Agency Physicians 12 consultant, reviewed the medical evidence of record and concluded Plaintiff could lift and carry 13 twenty pounds occasionally and ten pounds frequently, stand and/or walk six hours in an eight14 hour day with normal breaks, and sit six hours in an eight-hour day with normal breaks. (AR 15 62.) Dr. Kiger also concluded Plaintiff could perform frequent handling and fingering with her 16 bilateral upper extremities and had no limitations balancing, stooping, kneeling, crouching, 17 crawling, and climbing ramps or stairs, but could only occasionally climb ladders, ropes and 18 scaffolds. (AR 62–63.) Plaintiff requested reconsideration of Dr. Kiger’s opinion, and on 19 February 24, 2014, another Disability Determination Services medical consultant, I. Ocrant, 20 M.D., performed an independent review of Plaintiff’s medical records and affirmed Dr. Kiger’s 21 opinion. (AR 96–97.) 22 B. Administrative Proceedings 23 The Commissioner denied Plaintiff’s application for DIB and SSI initially on October 30, 24 2013, and again on reconsideration on March 27, 2014. (AR 102–06, 113–18.) Consequently, 25 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 119–21.) 26 Plaintiff appeared with counsel at the hearing on May 11, 2016, and testified before an ALJ as 27 to her alleged disabling conditions. (AR 17; see generally AR 34–55.) 28 9 Plaintiff’s Testimony 1 1. 2 Plaintiff testified that she is unable to work because of the pain in her hands and fingers. 3 (AR 42–43.) Plaintiff also testified that her right shoulder limits her ability to work because she 4 is always in pain and her shoulder locks up. (AR 45.) Plaintiff takes medication for the pain, 5 which helps relieve the pain, but makes her drowsy. (AR 43–44.) When Plaintiff does not take 6 medication, the pain in her hands and shoulders is an eight or nine out of ten. (AR 44.) When 7 she takes medication, the pain is about a six out of ten. (AR 44.) According to Plaintiff, Nurse 8 Practitioner Cynthia Guerra, who Plaintiff also saw at San Joaquin Total Care, prescribed splints 9 for her wrists one month prior to the hearing. (AR 48–49.) However, according to Plaintiff, 10 they do not help. (AR 49.) 11 Plaintiff lives in a house with her husband and drives her car two to seven times a week. 12 (AR 35–36, 38.) She drives to doctors’ appointments, to go shopping, and to her daughter’s 13 house where she visits with her grandchildren. (AR 38–39.) However, she testified that driving 14 is “very hard” for her because holding the steering wheel is painful on her shoulders and hands. 15 (AR 38.) According to Plaintiff, she can lift and carry about five pounds, but she can only do 16 housework, such as washing dishes, for five minutes at a time because of the pain in her hands 17 and fingers. (AR 42, 44.) When her hands and fingers are too painful to work, Plaintiff rests for 18 at least an hour before she can go back to work. (AR 42–43.) She lays down and massages or 19 exercises her hands, but she does not use ice or heat packs because they do not help. (AR 46.) 20 Plaintiff’s hands also swell about three days per week. (AR 47.) When her hands get 21 swollen, she massages them or sometimes uses a heating pad. (AR 47.) She also experiences 22 constant weakness and numbness in her hands. (AR 48.) According to Plaintiff, she has 23 difficulty using her fingers to button buttons, zip zippers, or pick up a coin, but she can eventually 24 do these things after a few tries. (AR 47, 49.) Plaintiff can also hold a pen or pencil and write 25 for ten to fifteen minutes, but would have to take a break for about forty-five minutes before she 26 could write again. (AR 47–48.) Vocational Expert’s Testimony 27 2. 28 A Vocational Expert (“VE”) testified at the hearing that Plaintiff has past work experience 10 1 as an accounting clerk, Dictionary of Operational Titles (“DOT”) code 216.482-010, which was 2 skilled, sedentary work. (AR 52.) 3 The ALJ then asked the VE four hypothetical questions considering a person of Plaintiff’s 4 age, education, and work experience. First, the ALJ asked the VE to consider a person who can 5 lift and carry twenty pounds occasionally and ten pounds frequently. (AR 52.) This person 6 could also occasionally climb ladders, ropes, and scaffolds; occasionally reach overhead with 7 her right upper extremity; and frequently handle, finger, and feel bilaterally. (AR 52.) The ALJ 8 then asked the VE whether such a person could perform any of Plaintiff’s past work. (AR 52.) 9 The VE testified that such a person could perform Plaintiff’s previous work as an accounting 10 clerk. (AR 52.) 11 The ALJ then asked the VE a second hypothetical question considering a person than can 12 lift and carry ten pounds, and occasionally reach, handle, grasp, push, and pull bilaterally. (AR 13 52–53.) The VE testified that such a person could not perform any of Plaintiff’s previous work 14 and there would be no other jobs available. (AR 53.) 15 The ALJ asked the VE a third hypothetical question considering an individual that can lift 16 and carry less than ten pounds rarely and occasionally, and use her hands, fingers, and arms four 17 hours out of an eight-hour workday. (AR 53.) The VE testified such an individual could not 18 perform any of Plaintiff’s previous work, and there would be no other jobs this individual could 19 perform. (AR 53.) 20 Finally, the ALJ asked the VE a fourth hypothetical question considering the same person 21 with the same capabilities as outlined in the first hypothetical, except this person would be 22 limited to occasional handling, fingering, and feeling. (AR 53.) The VE testified that such a 23 person could not perform any of Plaintiff’s past work. (AR 53–54.) 24 Plaintiff’s counsel also asked the VE one hypothetical question. Plaintiff’s counsel asked 25 whether the individual in the ALJ first hypothetical question would still be able to perform 26 Plaintiff’s previous work if the individual needed an additional one-hour break each day. (AR 27 54.) The VE responded that such a person would not be able to retain any work. (AR 54.) 28 11 1 C. The ALJ’s Decision 2 In a decision dated July 12, 2016, the ALJ found that Plaintiff was not disabled. (AR 17– 3 27.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. §§ 404.1520 and 4 416.920. (AR 19–27.) First, the ALJ found that Plaintiff had not engaged in substantial gainful 5 activity from the alleged onset date, April 20, 2011. (AR 19.) At Step Two, the ALJ found that 6 Plaintiff had the severe impairments of “right shoulder calcific tendinitis and impingement with 7 anterior and superior labral tears of the glenohumeral joint, status post right arthroscopic shoulder 8 decompression and debridement on August 13, 2013; right thumb carpometacarpal degenerative 9 arthritis and local tendonitis; and a history of bilateral carpal tunnel releases.” (AR 19–20.) 10 However, at Step Three, the ALJ found Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1 (“the Listings”). (AR 21.) The ALJ determined that Plaintiff had the 13 residual functional capacity (“RFC”)6 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can lift and carry 20 pounds occasionally and 10 pounds frequently, occasionally climb ladders, ropes, and scaffolds, and perform occasional overhead reaching with the right upper extremity, and frequent handling and fingering with the bilateral upper extremities. 14 15 16 17 18 (AR 21.) Of particular relevance to the claims asserted by Plaintiff in the instant action, the ALJ 19 gave little weight to the opinion of Dr. Foxley because there was little explanation for the 20 limitations and it was inconsistent with Plaintiff’s treatment records including unremarkable grip 21 strength examinations and normal nerve conduction studies, as well as other medical opinions in 22 the record including the opinions of Drs. Kiger and Ocrant. (AR 25–26.) The ALJ also gave little 23 weight to statements by Plaintiff’s chiropractor, Dr. Emerzian, because chiropractors are not 24 acceptable medical sources. (AR 25.) The ALJ further reasoned Dr. Emerzian’s opinion was 25 6 26 27 28 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours a day, for five days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 12 1 conclusory and made in the context of a workers’ compensation claim, not a social security claim. 2 (AR 25.) The ALJ determined that, given her RFC, Plaintiff was able to perform her past relevant 3 work as an accounting clerk (Step Four), and thus she was not disabled (Step Five). (AR 26.) 4 Plaintiff sought review of this decision before the Appeals Council, which denied review 5 on September 15, 2017. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of 6 the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed a complaint before this Court 7 on November 20, 2017, seeking review of the ALJ’s decision. (Doc. 1.) 8 9 III. SCOPE OF REVIEW The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 10 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th 11 Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment 12 for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the 13 Court must determine whether the Commissioner applied the proper legal standards and whether 14 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 15 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 16 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept 17 as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting 18 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more 19 than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 20 1198 (9th Cir. 2008). The Court “must consider the entire record as a whole, weighing both the 21 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and 22 may not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. 23 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 24 25 IV. APPLICABLE LAW An individual is considered disabled for purposes of disability benefits if he or she is unable 26 to engage in any substantial, gainful activity by reason of any medically determinable physical or 27 mental impairment that can be expected to result in death or that has lasted, or can be expected to 28 last, for a continuous period of not less than twelve months. 13 42 U.S.C. §§ 423(d)(1)(A), 1 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or 2 impairments must result from anatomical, physiological, or psychological abnormalities that are 3 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of 4 such severity that the claimant is not only unable to do his previous work, but cannot, considering 5 his age, education, and work experience, engage in any other kind of substantial, gainful work that 6 exists in the national economy. 42 U.S.C. §§ 423(d)(2)–(3), 1382c(a)(3)(B), (D). 7 The regulations provide that the ALJ must undertake a specific five-step sequential analysis 8 in the process of evaluating a disability. In the First Step, the ALJ must determine whether the 9 claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 10 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe 11 impairment or a combination of impairments significantly limiting him from performing basic 12 work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine 13 whether the claimant has a severe impairment or combination of impairments that meets or equals 14 the requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. 15 §§ 404.1520(d), 416.920(d). If not, before considering the Fourth Step, the ALJ must determine 16 the claimant’s residual functional capacity, which is the claimant’s ability to do physical and 17 mental work activities on a sustained basis despite limitations from the claimant’s impairments. 18 Id. §§ 404.1520(e), 416.920(e). Next, at Step Four, the ALJ must determine whether the claimant 19 has sufficient residual functional capacity despite the impairment or various limitations to perform 20 his past work. Id. §§ 404.1520(f), 416.920(f). If not, in Step Five, the burden shifts to the 21 Commissioner to show that the claimant can perform other work that exists in significant numbers 22 in the national economy. Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or 23 not disabled at any step in the sequence, there is no need to consider subsequent steps. Tackett v. 24 Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920. 25 26 V. DISCUSSION In her Opening Brief, Plaintiff contends the ALJ erred in two respects: (1) the ALJ failed 27 to articulate sufficient reasons for discrediting Dr. Foxley’s opinion; and (2) the ALJ erroneously 28 discredited the statements of Plaintiff’s chiropractor, Dr. Emerzian. (See Doc. 16 at 20–23.) 14 1 Defendant responds that the ALJ properly weighed the conflicting evidence and medical opinions 2 regarding Plaintiff’s physical limitations. (Doc. 17 at 6–9.) 3 A. Legal Standard 4 The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. § 5 404.1527(b) and (c) (applying to claims filed before March 27, 2017); Mora v. Berryhill, No. 6 1:16–cv–01279–SKO, 2018 WL 636923, at *10 (E.D. Cal. Jan. 31, 2018). In doing so, 7 the ALJ “cannot reject [medical] evidence for no reason or the wrong reason.” Mora, 2018 WL 8 636923, at *10. 9 Cases in this circuit distinguish between three types of medical opinions: (1) those given 10 by a physician who treated the claimant (treating physician); (2) those given by a physician who 11 examined but did not treat the claimant (examining physicians); and (3) those given by a 12 physician who neither examined nor treated the claimant (non-examining physicians). Fatheree 13 v. Colvin, No. 1:13–cv–01577–SKO, 2015 WL 1201669, at *13 (E.D. Cal. Mar. 16, 2015). 14 “Generally, a treating physician’s opinion carries more weight than an examining physician’s, 15 and an examining physician’s opinion carries more weight than a reviewing physician’s.” 16 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see also Orn v. 17 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (“By rule, the Social Security Administration favors 18 the opinion of a treating physician over non-treating physicians.” (citing 20 C.F.R. § 404.1527)). 19 The opinions of treating physicians “are given greater weight than the opinions of other 20 physicians” because “treating physicians are employed to cure and thus have a greater 21 opportunity to know and observe the patient as an individual.” Smolen v. Chater, 80 F.3d 1273, 22 1285 (9th Cir. 1996) (citations omitted). 23 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 24 considering its source, the court considers whether (1) contradictory opinions are in the record; 25 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of 26 a treating or examining medical professional only for “clear and convincing” reasons. Lester v. 27 Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). In contrast, a contradicted opinion of a treating or 28 examining professional may be rejected for “specific and legitimate reasons that are supported 15 1 by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 2 528 F.3d at 1198); see also Lester, 81 F.3d at 830–31. “The ALJ can meet this burden by setting 3 out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 4 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 5 1989). While a treating professional’s opinion generally is accorded superior weight, if it is 6 contradicted by a supported examining professional’s opinion (supported by different 7 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 8 1035, 1041 (9th Cir. 1995) (citing Magallanes, 881 F.2d at 751). The regulations require the ALJ 9 to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152, 1157 10 (9th Cir. 2001),7 except that the ALJ in any event need not give it any weight if it is conclusory 11 and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 12 1999) (treating physician’s conclusory, minimally supported opinion rejected); see also 13 Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, by itself, is 14 insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831. 15 B. The ALJ Stated Sufficient Reasons for Rejecting Dr. Foxley’s Opinion. 16 Dr. Foxley treated Plaintiff in conjunction with her workers’ compensation claim and 17 provided an opinion in March 2016 regarding Plaintiff’s ability to work. (AR 481–83.) Dr. Foxley 18 opined Plaintiff could occasionally lift and carry less than ten pounds and rarely lift ten pounds, 19 but never lift twenty pounds. (AR 482.) Dr. Foxley further opined that Plaintiff could use her 20 upper extremities for handling, fingering, and reaching only 50 percent of the day. (AR 482.) 21 In discrediting Dr. Foxley’s opinion, the ALJ stated: 22 This opinion is given little weight also, as Dr. Foxley provides little explanation as to why the claimant can only use her upper extremities for 50 percent of the day. The record does indicate complaints of wrist pain and numbness, but nerve conductions studies were normal (Exhibits 5F, p. 82; 9F). The weight bearing restrictions also appear excessive in light of normal nerve conduction studies, four out of five grip strength on examination, conservative course of treatment previously discussed and the inconsistency with other medical opinions concerning the claimant’s weight bearing capacity. 23 24 25 26 27 28 7 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. § 404.1527. 16 1 (AR 25–26.) In sum, the ALJ discounted Dr. Foxley’s opinion because 1) it was conclusory and 2 inconsistent with other medical evidence in the record, 2) it was contradicted by other medical 3 opinions, and 3) it was inconsistent with Plaintiff’s conservative treatment record. Because Dr. 4 Foxley’s opinion was contradicted by the medical opinion evidence of Disability Determination 5 Services non-examining consultants Drs. Kiger and Ocrant, the ALJ was required to state “specific 6 and legitimate” reasons, supported by substantial evidence, for rejecting Foxley’s opinion. 7 Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. Here, the ALJ properly discredited Dr. Foxley’s opinion because the opinion was 8 9 conclusory and inconsistent with other medical evidence in the record. Specifically, the ALJ noted 10 that Dr. Foxley provided little explanation why Plaintiff could only use her upper extremities for 11 50 percent of the day. (AR 25–26.) Dr. Foxley’s opinion is set forth in a check-the-box 12 questionnaire with “50%” entered as the limitation in Plaintiff’s ability to twist objects with her 13 hands, manipulate objects with her fingers, and reach in front of her body and overhead with her 14 hands. (AR 482.) The questionnaire provides no reason why 50 percent is the appropriate 15 limitation or why the right upper extremities are limited to the same extent as the left. (AR 482.) 16 The ALJ also noted that Dr. Foxley’s weight bearing restrictions were inconsistent with objective 17 medical evidence in the record including normal nerve conduction studies8 and Plaintiff’s four out 18 of five grip strength. (AR 26 (citing AR 364).) Accordingly, the ALJ provided specific and 19 legitimate reasons for discrediting Dr. Foxley’s opinion. Batson v. Comm’r of Soc. Sec. Admin., 20 359 F.3d 1190, 1195 (9th Cir. 2004) (An ALJ may properly discount a treating physician’s opinion 21 that is “conclusory, brief, and unsupported by the record as a whole . . . or by objective medical 22 findings.”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (incongruity between 23 treating physician’s questionnaire responses and the medical records provides a specific and 24 legitimate reason for rejecting treating physician’s conclusion); Magallenes, 881 F.2d at 751 (A 25 Plaintiff attempts to discredit the normal nerve conduction studies by emphasizing that “the record does not indicate whether testing was conducted on the shoulder, wrist, or otherwise.” (Doc. 18 at 3.) However, the Court notes that Plaintiff’s treatment notes indicate Dr. Emerzian requested the nerve conduction studies for Plaintiff’s shoulders. (AR 363 (summarizing the status of Plaintiff’s right shoulder injury and stating that “right shoulder MRI and EMG are appropriate protocols” to move the case forward).) Accordingly, the record demonstrates that Dr. Emerzian’s reference to normal nerve conduction studies (AR 364), is a reference to the unremarkable condition of Plaintiff’s shoulders, which is inconsistent with the extreme limitations in Dr. Foxley’s opinion. 8 26 27 28 17 1 brief and conclusory form opinion which lacks supporting clinical findings is a legitimate reason 2 to reject a treating physician’s conclusion). 3 Plaintiff responds that the ALJ failed to apply the appropriate factors in weighing Dr. 4 Foxley’s opinion because the ALJ did not consider the length of the treatment relationship, the 5 frequency of examination, the nature and extent of the treating relationship, or the supportability 6 of the opinion. (Doc. 16 at 20 (citing Trevizo, 871 F.3d at 676).) The Court finds, however, that 7 the ALJ properly analyzed Plaintiff’s treatment relationship with Dr. Foxley because the ALJ 8 summarized Plaintiff’s treatment notes dating back to 2011 and identified specific evidence from 9 those treatment notes that contradicted Dr. Foxley’s opinion including the normal nerve 10 conduction studies and grip strength examination. Magallenes, 881 F.2d at 751 (ALJ may 11 discredit a treating physician’s opinion “by setting out a detailed and thorough summary of the 12 facts and conflicting clinical evidence, stating his interpretation thereof, and making findings”). 13 Moreover, while Plaintiff identifies other evidence in the record that she contends supports Dr. 14 Foxley’s opinion (Doc. 16 at 20–21), it is “the ALJ’s responsibility to make credibility findings 15 and resolve conflicts in the medical evidence.” Weimer v. Callahan, 124 F.3d 215 (9th Cir. 1997) 16 (citing Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996)). “If the evidence supports more than 17 one rational interpretation, we must uphold the decision of the ALJ; we are in no position to 18 second-guess the ALJ’s choice among conflicting medical opinions.” Id. (citing Allen v. Heckler, 19 749 F.2d 577, 579, 580 (9th Cir. 1984)). Accordingly, the Courts finds the ALJ properly 20 discredited Dr. Foxley’s opinion because it was conclusory and inconsistent with objective 21 medical findings in the record. 22 The ALJ also discredited Dr. Foxley’s opinion because his opinion was contradicted by 23 other medical opinions in the record including the opinions of state agency medical consultants 24 Drs. Kiger and Ocrant. (AR 26.) Such opinions “may serve as substantial evidence when they 25 are supported by other evidence in the record and are consistent with it.” Andrews v. Shalala, 53 26 at 1041; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (“Although the contrary 27 opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason 28 18 1 for rejecting a treating or examining physician’s opinion, it may constitute substantial evidence 2 when it is consistent with other independent evidence in the record.”). 3 Here, Drs. Kiger and Ocrant both opined Plaintiff could lift and carry twenty pounds 4 occasionally and ten pounds frequently, and perform frequent handling and fingering with her 5 bilateral upper extremities. These opinions are supported by medical evidence in the record 6 including Plaintiff’s physical therapist’s opinion that Plaintiff’s range of motion in her right 7 shoulder was restored to within normal limits three months after surgery (AR 382), Plaintiff’s 8 treatment notes from August 2014 noting normal range of motion and normal strength (AR 516), 9 and Plaintiff’s statements in March 2016 that she can perform her activities of daily living such as 10 washing dishes and taking care of her personal hygiene after she takes her medication (AR 478). 11 Moreover, while Plaintiff identifies evidence in the record that is consistent with Dr. Foxley’s 12 opinion, Plaintiff does not contend no evidence in the record supports the opinions of Drs. Kiger 13 and Ocrant. (Doc. 16 at 22.) Accordingly, the ALJ did not err by relying on their opinions to 14 discredit Dr. Foxley’s opinion. Corder v. Comm’r, No. 2:16–cv–1969–KJN, 2018 WL 466265, 15 at *4 (E.D. Cal. Jan. 18, 2018) (holding the ALJ properly relied on contrary opinions from state 16 agency physicians to discount a treating physician’s opinion where the state agency physicians’ 17 opinions were consistent with the medical record); Lott v. Berryhill, No. 2:17–cv–00986–KJN, 18 2018 WL 4292247, at *4 (E.D. Cal. Sept. 7, 2018) (same); Delgadillo v. Colvin, No. 1:12–cv–703 19 GSA, 2013 WL 5476413, at *7 (E.D. Cal. Sept. 30, 2013) (same). 20 Finally, the ALJ discredited Dr. Foxley’s opinion because it was undermined by Plaintiff’s 21 conservative treatment record. Generally, an “ALJ may discount a physician’s opinion if it is 22 inconsistent with the plaintiff’s conservative treatment.” Embernate v. Berryhill, No. 2:17–cv– 23 0040–JAM–DB, 2018 WL 888986, at *6 (E.D. Cal. Feb. 14, 2018); Rollins v. Massanari, 261 24 F.3d 853, 856 (9th Cir. 2001) (finding an ALJ reasonably discounted a physician’s opinion where 25 the claimant received conservative treatment). Plaintiff gives little attention to this reason offered 26 by the ALJ for discounting Dr. Foxley’s opinion. Plaintiff responds with one sentence that simply 27 asserts that the ALJ’s characterization of Plaintiff’s treatment as “conservative” fails to account 28 for Plaintiff’s narcotic pain medication regime, trigger-point injections, past shoulder surgeries, 19 1 and failed attempts to obtain a surgical authorization for carpal tunnel syndrome. (Doc. 16 at 22). 2 While Plaintiff cites to one unpublished Ninth Circuit case that questioned whether narcotics are 3 properly characterized as a conservative treatment, Plaintiff fails to cite any authority where a 4 court expressly found an ALJ erred by characterizing treatments similar to Plaintiff’s as 5 conservative. Defendant also did not respond to Plaintiff’s undeveloped argument regarding the 6 conservative nature of Plaintiff’s treatment in her opposition brief and Plaintiff did not bring up 7 the issue in her reply brief. (See Docs. 17 at 8–9 and 18 at 2–4.) 8 In view of the parties’ cursory treatment of this argument, the Court declines to determine 9 whether Plaintiff’s treatment is properly characterized as conservative. See Babick v. Comm’r, 10 No. 2:14–cv–1312–KJN, 2015 WL 5009064, at *7 n.5 (E.D. Cal. Aug. 20, 2015) (declining to 11 address an argument that was “too undeveloped for the court’s consideration”); Carmickle v. 12 Comm’r, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (“We do not address this finding because 13 Carmickle failed to argue this issue with any specificity in his briefing.”); see also Molina v. 14 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“[T]he burden of showing that an error is harmful 15 normally falls upon the party attacking the agency’s determination.” (alterations in original) 16 (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009))). Moreover, even if the ALJ erred in 17 characterizing Plaintiff’s treatment as conservative, such error would be harmless because the ALJ 18 properly found Dr. Foxley’s opinion was conclusory and inconsistent with other medical evidence 19 in the record including objective medical evidence and other medical opinions. Barber v. Astrue, 20 No. 1:10–cv–01432–AWI–SKO, 2012 WL 458076, at *13 (E.D. Cal. Feb. 10, 2012) (finding 21 harmless error where the ALJ “stated other valid reasons” for rejecting a physician’s opinion) 22 (citing Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006) and Burch v. Barnhart, 400 F.3d 23 676 (9th Cir. 2005)). 24 C. 25 The ALJ Stated Sufficient Reasons for Rejecting Dr. Emerzian’s Opinion. Dr. Emerzian was Plaintiff’s chiropractor and treated her in conjunction with her state 26 workers’ compensation claims. While Dr. Emerzian regularly opined that Plaintiff could return 27 to work without restrictions between 2011 and 2013 (e.g., AR 291–330, 332–51), Dr. Emerzian 28 also opined that Plaintiff was temporarily disabled on a monthly basis at various times in the record 20 1 (e.g., AR 283–86, 331, 441, 445, 447, 449–50, 454–55, 463, 465–69, 472, 475). In discrediting 2 Dr. Emerzian’s opinions that Plaintiff was disabled, the ALJ noted that Dr. Emerzian is a 3 chiropractor and thus, not an acceptable medical source. (AR 25.) The ALJ further noted that Dr. 4 Emerzian’s opinions were in the context of Plaintiff’s workers’ compensation claim, which applies 5 different standards for disability than a social security claim, and Dr. Emerzian’s conclusory 6 statements that Plaintiff was disabled is a finding reserved for the Commissioner. (AR 25.) Chiropractors, such as Dr. Emerzian, are not included in the list of “acceptable medical 7 8 sources” who may provide an opinion as to whether a claimant has a medically determinable 9 impairment. 20 C.F.R. §§ 404.913(a), 404.1513(a) (effective Sept. 3, 2013 to Mar. 26, 2017);9 10 Figueroa v. Astrue, No. 2:10–cv–01818 KJN, 2011 WL 4084852, at *3 (E.D. Cal. Sept. 13, 2011) 11 (“Under the applicable regulations, chiropractors . . . are not ‘acceptable medical sources.’ . . . 12 Only acceptable medical sources may provide medical opinions.”). Instead, chiropractors are 13 “other sources,” whose opinions are given less weight than those from “acceptable medical 14 sources,” but who may help the ALJ “understand how [the claimant’s] impairment affects [the 15 claimant’s] ability to work.” Lederle v. Astrue, No. 1:09–cv–01736–JLT, 2011 WL 839346, at 16 *11 (E.D. Cal. Feb. 17, 2011) (citing Gomez v. Chater, 74 F.3d 967, 970–71 (9th Cir. 1996)); 20 17 C.F.R. §§ 404.913(d), 404.1513(d). While chiropractors are not “acceptable medical sources” for 18 evidence of impairment, the ALJ still must “provide reasons that are germane to the witness” when 19 discounting their opinions. Hill v. Comm’r, No. 1:14–cv–01813–SAB, 2016 WL 5341274, at *2 20 (E.D. Cal. Sept. 23, 2016) (citing Molina, 674 F.3d at 1111). Here, the ALJ provided multiple germane reasons for discounting Dr. Emerzian’s opinions. 21 22 Specifically, the ALJ noted that Dr. Emerzian opinions related to temporary restrictions in 23 Plaintiff’s ability to work for purposes of her workers’ compensation claim. (AR 25.) As the ALJ 24 discussed, the rules for disability for a workers’ compensation claim are different from the rules 25 for social security claims, which require Plaintiff to be disabled for a continuous period of twelve 26 months. 20 C.F.R. §§ 404.1509, 416.909. Dr. Emerzian only opined Plaintiff was temporarily 27 28 The Court “applies the law in effect at the time of the ALJ’s decision.” Rose v. Berryhill, 256 F.Supp.3d 1079, 1083 n.3 (C.D. Cal. 2017) (citing cases). 9 21 1 disabled for approximately one month at a time, but did not opine that Plaintiff was disabled for a 2 continuous period of twelve months. Thus, the ALJ properly gave Dr. Emerzian’s opinions little 3 weight in determining Plaintiff’s eligibility for DIB and SSI under the applicable social security 4 regulations. 5 Additionally, the ALJ discounted Dr. Emerzian’s opinions because they were conclusory 6 statements on an issue reserved for the Commissioner. (AR 25.) Between 2013 and 2015, Dr. 7 Emerzian regularly checked the box on Plaintiff’s treatment notes indicating she is to “remain off 8 work” and added a “total temporary disability” period of approximately a month without any 9 further explanation. While the treatment notes also include Plaintiff’s subjective complaints and 10 Dr. Emerzian’s examination findings, Dr. Emerzian does not explain why these findings cause 11 Plaintiff to be totally disabled for the subsequent month. In other words, Dr. Emerzian regularly 12 concludes Plaintiff cannot work for one month a time, but never explains which subjective 13 complaints or examination findings, preclude Plaintiff from working. Further, whether Plaintiff 14 is “disabled” or “unable to work” is an administrative finding reserved to the Commissioner. 20 15 C.F.R. §§ 404.1527(d), 416.927(d). As the ALJ is entitled to discount such conclusory statements 16 on issues reserved to the Commissioner, the ALJ did not err in giving little weight to Dr. 17 Emerzian’s opinions. Britton v. Colvin, 787 F.3d 1011, 1012 (9th Cir. 2015) (An ALJ “may 18 disregard medical opinion that is brief, conclusory, and inadequately supported by clinical 19 findings.”); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (“Conclusory opinions by 20 medical experts regarding the ultimate question of disability are not binding on the ALJ”). 21 22 VI. CONCLUSION AND ORDER After consideration of Plaintiff’s and Defendant’s briefs and a thorough review of the 23 record, the Court finds that the ALJ’s decision is supported by substantial evidence and is therefore 24 AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant 25 Nancy A. Berryhill, Acting Commissioner of Social Security, and against Plaintiff. IT IS SO ORDERED. 26 27 Dated: 28 November 14, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 .

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