Felix v. Commissioner of Social Security

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/18/17, DENYING Plaintiff's 13 motion for summary judgment. The Commissioner's 18 cross-motion for summary judgment is GRANTED. The Clerk is directed to enter judgment in the Commissioner's favor. CASE CLOSED(Kastilahn, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BRIDGETT JANE MARIE FELIX, 11 Plaintiff, 12 13 14 No. 2:16-cv-698-EFB v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant. 15 16 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 17 18 (“Commissioner”) denying his application for Supplemental Security Income under Title XVI of 19 the Social Security Act. The parties have filed cross-motions for summary judgment. For the 20 reasons discussed below, plaintiff’s motion is denied and the Commissioner’s motion is granted. 21 I. BACKGROUND 22 Plaintiff filed an application for SSI, alleging that she had been disabled since December 23 25, 2010. Administrative Record (“AR”) at 259-268. Plaintiff’s application was denied initially 24 and upon reconsideration. Id. at 145-149, 153-157. After a hearing, Administrative Law Judge 25 (“ALJ”) Daniel G. Heely issued a decision finding that plaintiff was not disabled under section 26 1614(a)(3)(A) of the Act. Id. at 125-135. Plaintiff sought review by the Appeals Council, which 27 vacated the ALJ’s decision and remanded the matter back to the ALJ for further consideration of 28 the medical opinion evidence of record and plaintiff’s mental impairments. Id. at 142-143. 1 1 Another hearing was held before the ALJ on March 18, 2014. Id. at 35-57. Plaintiff was 2 represented by counsel at the hearing, at which she, a medical expert, and a vocational expert 3 testified. Id. On April 30, 2014, the ALJ issued a new decision, again finding that plaintiff was 4 not disabled under section 1614(a)(3)(A) of the Act.1 Id. at 15-30. The ALJ made the following 5 specific findings: 6 7 8 9 1. The claimant has not engaged in substantial gainful activity since September 26, 2011, the application date (20 CFR 416.971 et seq.). 2. The claimant has the following severe impairments: depression, anxiety, borderline intellectual functioning, hepatitis C, skin cancer, and migraine headaches (20 CFR 416.920(c)). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 2 28 1 *** 2 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, 416.926). 3 4 *** 5 4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform activities with the following limitations: She is limited to simple, routine, and repetitive tasks. She can lift and carry 25 pounds frequently and 50 pounds occasionally. She can stand for 6 hours in an 8-hour workday with normal breaks. She can walk for 6 hours in an 8-hour workday with normal breaks. She can sit 6 hours in an 8-hour workday with normal breaks. She can never climb ladders, ropes, or scaffolds. She must avoid concentrated exposure to extreme cold and extreme heat. She can never work around hazards, such as dangerous moving machinery and unprotected heights. 6 7 8 9 10 11 *** 12 5. The claimant is capable of performing past relevant work as a Fundraiser II (DOT 293.357-014; light exertional level; unskilled; SVP 2). This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 416.965). 13 14 15 *** 16 6. The claimant has not been under a disability, as defined by the Social Security Act, since September 26, 2011, the date the application was filed (20 CFR 416.920(f)). 17 18 Id. at 17-29. 19 Plaintiff’s request for Appeals Council review was denied on February 5, 2016, leaving 20 the ALJ’s April 30, 2014 decision as the final decision of the Commissioner. Id. at 1-6. 21 II. 22 LEGAL STANDARDS The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 23 of fact are supported by substantial evidence in the record and the proper legal standards were 24 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 25 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 26 180 F.3d 1094, 1097 (9th Cir. 1999). 27 ///// 28 3 1 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 2 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 3 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 4 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 5 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 6 N.L.R.B., 305 U.S. 197, 229 (1938)). 7 “The ALJ is responsible for determining credibility, resolving conflicts in medical 8 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 9 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 10 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 11 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 12 III. 13 ANALYSIS Plaintiff argues that the ALJ’s decision must be reversed because: (1) his analysis contains 14 inconsistent, unclear, and confusing findings; and (2) he failed to provide legally sufficient 15 reasons for rejecting opinions from examining and non-examining sources. ECF No. 13-1 at 14- 16 23. 17 A. 18 Plaintiff first argues that remand for further proceedings is necessary because the ALJ’s Inconsistencies in the ALJ’s Decision 19 decision contains imprecise and conflicting findings. Id. at 14-17. Plaintiff contends that in a 20 single paragraph of the decision, the ALJ found that she had both moderate difficulties and no 21 more than mild limitations in social functioning. Id. at 15. She further argues that throughout the 22 “decision, the ALJ seemed to confuse the meaning of the words ‘understate’ and ‘overstate’ 23 making it a guessing game to figure out what the ALJ actually was finding with regarding to the 24 medical opinions that he was supposedly crediting . . . .” Id. at 14. Plaintiff contends that the 25 internal inconsistencies and misuse of words precludes meaningful review of the ALJ’s findings 26 and warrants remand. Id. at 14-17. 27 28 In evaluating plaintiff’s mental impairments at step-three of the sequential evaluation process, the ALJ states, in the same paragraph, that plaintiff “has moderate difficulties” and “no 4 1 more than mild limitations in” social functioning. See AR 19. The paragraph containing the 2 inconsistency in regard to social functioning begins with the statement that plaintiff “has 3 moderate difficulties” in social functioning. AR 19. The sentence that then follows notes 4 plaintiff’s allegation of difficulty being around other people. Id. However, the remainder of the 5 paragraph discusses evidence refuting plaintiff’s allegation of impaired social functioning. For 6 instance, the ALJ observed that plaintiff “demonstrated appropriate attitude, cooperative 7 behavior, good eye contact, and appropriate facial expressions” during medical evaluations. Id. 8 The ALJ then noted plaintiff’s reports of spending time with her family and doing her own 9 grocery shopping, “which shows she can be around people.” Id. The ALJ also observed that 10 plaintiff did not exhibit any impairment in social functioning at the hearing or during a telephone 11 interview with a Social Security Administration (“SSA”) employee. Id. Lastly, the ALJ found 12 that plaintiff had “received little specialized mental health treatment, which indicates that her 13 mental functioning is generally intact. Therefore, she has no more than mild limitations in” social 14 functioning. Id. When considering the additional findings provided in the paragraph at issue, 15 there is little doubt that the ALJ concluded that plaintiff had no more than mild limitations, rather 16 than moderate difficulties, in social functioning. 17 This interpretation is reinforced by other portions of the decision. Notably, the ALJ’s 18 residual functional capacity (“RFC”) determination did not include any limitations in social 19 functioning. Id. at 21. Indeed, the ALJ specifically rejected the opinions of physicians finding 20 that plaintiff was impaired in social functioning. Id. at 26-27. Accordingly, the inconsistency 21 identified by plaintiff is harmless and does not warrant remand. See Curry v. Sullivan, 925 F.2d 22 1127, 1129 (9th Cir. 1990) (harmless error analysis applicable in judicial review of social security 23 cases); Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (holding that a 24 court may affirm an ALJ’s decision “under the rubric of harmless error where the mistake was 25 nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion.”). 26 As for plaintiff’s contention that the ALJ consistently misused the words “understate” and 27 “overstate,” she is mistaken. For instance, the ALJ found that examining physician Dr. Sharma 28 and non-examining physician Dr. Zheutlin’s opinions “understate the [plaintiff’s] ability to 5 1 perform postural activities.” AR 25 (emphasis added). Stated differently, the ALJ concluded that 2 these physicians assessed greater postural limitations than plaintiff actually possessed. This is 3 consistent with the ALJ’s RFC determination, which did not include postural limitations, and his 4 finding that the assessed postural limitations are not supported by “the general absence of positive 5 findings and signs concerning [plaintiff’s] spine and joints in the objective medical evidence.” Id. 6 The ALJ also stated that Drs. Kivowitz, Warren, and Brode’s opinions “understate the 7 [plaintiff’s] social functioning ability . . . .” AR 26 (emphasis added).2 As observed by the ALJ, 8 Dr. Kivowitz opined that plaintiff was limited to only occasional interaction with supervisors, 9 coworkers, and the public, and Dr. Warran and Dr. Brode opined that plaintiff could perform 10 simple work with limited social interaction.” The ALJ’s finding that these opinions “understate” 11 plaintiff’s social functioning ability is consistent with his RFC determination that did not include 12 any limitations in social functioning, as well as his observation that the opinions are “inconsistent 13 with the relatively normal social functioning that the [plaintiff] demonstrated at the mental 14 consultative examinations . . . .” Id. at 21, 26.. 15 As a final example, the ALJ found Dr. Torrez and Dr. Richwerger’s “opinions overstate 16 the [plaintiff’s] mental capacity.” AR 26 (emphasis added). The ALJ noted that both physicians 17 determined that plaintiff “had no significant mental limitations,” but ultimately concluded that 18 these physicians failed to “adequately consider the [plaintiff’s] somewhat credible complaints of 19 anhedonia, decreased energy, confusion, poor memory, and poor concentration.” Thus, the ALJ’s 20 use of the “overstate” is consistent with his finding that plaintiff was more restricted than the 21 opinions provided by Dr. Torrez and Richwerger. Accordingly, plaintiff fails to demonstrate any 22 prejudicial error. 23 B. 24 Plaintiff also argues that the ALJ erred in weighing the medical opinion evidence. 25 2 26 27 28 Medical Opinion Evidence Plaintiff’s argument appears to be premised on a misreading of the ALJ’s decision. Plaintiff contends that “if Dr. Kivowitz, Dr. Warren and Dr. Brode all “understated” the social functioning, then the ALJ was saying that the social functioning was worse than what these doctors indicated.” ECF No. 13-1 at 15-16. The ALJ did not find that these physicians understated plaintiff’s limitations in social function. He found that the physicians understated plaintiff’s abilities in social functioning. 6 1 Specifically, she contends that the ALJ failed to give legally sufficient reasons for rejecting (1) 2 opinions from multiple medical sources regarding her mental impairments, and (2) examining 3 physician Dr. Karon’s opinion that plaintiff is unable to work. ECF No. 13-1 at 17-23. 4 The weight given to medical opinions depends in part on whether they are proffered by 5 treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more 6 weight is given to the opinion of a treating professional, who has a greater opportunity to know 7 and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 8 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to 9 considering its source, the court considers whether (1) contradictory opinions are in the record; 10 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 11 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 12 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional 13 may be rejected for “specific and legitimate” reasons that are supported by substantial evidence. 14 Id. at 830. While a treating professional’s opinion generally is accorded superior weight, if it is 15 contradicted by a supported examining professional’s opinion (e.g., supported by different 16 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 17 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 18 However, “[w]hen an examining physician relies on the same clinical findings as a treating 19 physician, but differs only in his or her conclusions, the conclusions of the examining physician 20 are not ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 21 22 1. Mental Impairments Plaintiff was examined by three mental health care professionals. She was first evaluated 23 by Dr. Silvia Torrez, Psy.D., an examining physician. Id. at 382-388. On examination, plaintiff’s 24 behavior was cooperative, her attitude was appropriate and no unusual psychomotor activity was 25 noted, but her mood was dysthymic. Id. at 385. Her speech was logical, coherent, and concise, 26 intellectual functioning appeared to be average, and thought content was appropriate. Id. Dr. 27 Torrez diagnosed plaintiff with depressive disorder, not otherwise specified; nicotine dependence; 28 polysubstance dependence in remission; and alcohol dependence in remission. Id. It was her 7 1 opinion that, among other things, plaintiff’s ability to accept instruction from a supervisors was 2 fair, and her ability to interact with coworkers was good. Id. at 388. Dr. Torrez ultimately 3 concluded that despite plaintiff’s “reported symptoms and history, she does not appear to be 4 suffering from a major mental disorder at this time . . . [and] appears to be able to function 5 adequately.” Id. at 387. 6 Dr. Les Kalman, M.D., Psy.D., an examining physician, also completed a psychiatric 7 evaluation of plaintiff. AR 565-568. Dr. Kalman observed that plaintiff appeared sickly, holding 8 her head in hands head and complaining of migraine headaches. Id. at 565. Plaintiff’s speech 9 was slow, mood depressed, and effect blunted and shallow, but she was cooperative, alert, and 10 largely oriented. Id. at 556-567. Her intelligence appeared below average and her insight was 11 poor, but her judgment was fair and thought process was logical and goal directed. Id. at 567. 12 Dr. Kalman diagnosed plaintiff with dysthymia, rule out major depression, and borderline 13 intellectual functioning. Id. at 567. It was his opinion that plaintiff had marked limitation in 14 understanding, remembering, and carrying out detailed instructions; making simple work-related 15 decisions; completing a normal workday and workweek without interruptions from 16 psychologically based symptoms; and accepting instructions and responding appropriately to 17 criticism from supervisors. Id. at 569-570. He opined that plaintiff had moderate limitations in 18 carrying out very short and simple tasks, but only mild limitations in understanding and 19 remembering such tasks. Id. It was also his opinion that plaintiff had mild limitations in 20 performing activities within a schedule, maintaining regular attendance, and being punctual 21 within customary tolerance; interacting appropriately with the general public; asking questions or 22 requesting assistance from supervisors; and getting along with coworkers or peers without 23 distracting them or exhibiting behavioral extremes; but was moderately limited in accepting 24 instructions and responding appropriately to criticism from supervisors. Id. at 570. Dr. Kalman 25 also opined that plaintiff’s impairments would cause her to be absent from work three days 26 month. Id. at 571. 27 28 Plaintiff was also evaluated by licensed psychologist Dr. David C. Richwerger, Ed.D., an examining consultant. Id. at 585-592. Plaintiff was fully oriented and her thought process was 8 1 normal, although somewhat vague. Id. at 588. Dr. Richwerger diagnosed plaintiff with 2 depressive disorder, not otherwise specified, and borderline intellectual functioning. It was his 3 opinion that plaintiff had no more than mild mental impairments. Id. at 591. 4 The record also contains three mental health assessments provided by non-examining 5 physicians. Dr. Warren, M.D., opined that plaintiff had moderate limitations in interacting 6 appropriately with the general public, accepting instructions and responding appropriately to 7 criticism from supervisors, and getting along with coworkers or peers without distracting them or 8 exhibiting behavioral extremes. Id. at 100. Notwithstanding these moderate limitations, Dr. 9 Warren concluded that plaintiff maintained the ability to interact appropriately with peers and 10 supervisors. Id. at 101. Dr. Tawny Brode, Psy.D., also a non-examining source, concurred with 11 Dr. Warren’s opinion regarding plaintiff’s social functioning. Id. at 117. 12 Lastly, the record contains an opinion from non-examining physician Dr. Julian Kivowitz, 13 who testified at the first administrative hearing. Based on his review of the record, Dr. Kivowitz 14 diagnosed plaintiff with depression, not otherwise specified; borderline intellectual functioning; 15 polysubstance abuse in remission; and alcohol abuse in remission. Id. at 39-10. He opined that 16 plaintiff could perform work involving simple, routine, and repetitive tasks with occasional 17 contact with coworker, the general public, and supervisors. Id. at 41. 18 Plaintiff first contends that the ALJ erred in rejecting Dr. Kalman’s opinion that plaintiff 19 was limited in social functioning; an opinion that plaintiff argues is in accord with Drs. 20 Krivowitz, Warren, Brode’s opinions. ECF No. 13-1 at 17-21. In assessing plaintiff’s RFC, the 21 ALJ gave some weight to Dr. Kalman’s opinion that plaintiff could perform simple tasks and 22 interact appropriately with coworkers and the general public, concluding that the opinion was 23 consistent with findings from the three consultative evaluations and plaintiff’s daily activities. 24 AR 27. However, the ALJ found that Dr. Kalman’s opinion that plaintiff was limited in her 25 ability to interact with supervisors was inconsistent with the evidence of record. Id. Specifically, 26 the ALJ found that it was inconsistent with the normal social functioning plaintiff demonstrated 27 during her consultative examinations, observations made by an SSA interviewer, and the absence 28 of evidence of specialized mental health treatment. Id. 9 1 An ALJ may reject a physician’s opinion that is unsupported by objective medical 2 findings or the record as a whole. Baston v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 3 Cir. 2004); see also Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 601-602 (9th Cir.1999) 4 (an ALJ may reject a treating opinion that is inconsistent with other evidence in the record); 20 5 C.F.R. § 416.927(c)(4) (“the more consistent an opinion is with the record as a whole, the more 6 weight we will give to that opinion.”). 7 As observed by the ALJ, it was noted that during an examination with Dr. Torrez 8 plaintiff’s behavior was cooperative, eye contact was good, facial expressions were appropriate, 9 and responses to questions were open and honest. AR 19, 27; see id. 385-386. Based on his 10 findings, Dr. Torrez ultimately concluded that plaintiff’s symptoms were “considered to be within 11 the mild range.” Id. at 387. Similar findings were made by Dr. Richwerger, who noted that 12 plaintiff’s mannerisms were within normal limits and that although she initially appeared 13 guarded, “she calm[ed] to some degree with occasional laughter at some of the test questions.” 14 Id. at 588-589. Dr. Richwerger also concluded that plaintiff’s impairments caused no more than 15 mild limitations. Id. at 591. Even Dr. Kalman, who assessed more severe limitations, noted that 16 plaintiff was cooperative during examination. Id. 566. Additionally, the record shows that during 17 an interview with an SSA employee, plaintiff “was cooperative[,] answering all questions 18 necessary to complete the application.” Id. at 280. The ALJ also noted that during the March 18, 19 2014 hearing, plaintiff was able to respond to questions and interact appropriately. Id. at 19. The 20 ALJ reasonably concluded that this evidence undermined Dr. Kalman’s opinion that plaintiff had 21 impaired social functioning. See Marci v. Chater, 93 F.3d 540, 543 (9th Cir. 1996) (“[T]he ALJ 22 is entitled to draw inferences logically flowing from the evidence.”) (quotation omitted). 23 Plaintiff also contends that the ALJ failed to give legally sufficient reasons for rejecting 24 Dr. Kalman’s opinion that plaintiff would miss approximately three days of work per month due 25 to her impairments. ECF No. 13-1 at 19. The ALJ specifically rejected that opinion, finding that 26 the opinion was internally inconsistent with Dr. Kalman’s own opinion that plaintiff had an 27 adequate ability to maintain regular attendance. An ALJ may reject an opinion that is internally 28 inconsistent. See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999); see 10 1 also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (finding that inconsistencies in a 2 doctor’s opinions, observations, and clinical notes “is a clear and convincing reason for not 3 relying on the doctor’s opinion.”). As noted above, Dr. Kalman opined that plaintiff was only 4 mildly limited in her ability to maintain regular attendance. AR 570. The ALJ reasonably 5 concluded that this opinion was inconsistent with Dr. Kalman’s conclusion that plaintiff would 6 miss three days of work each month.3 7 Accordingly, the ALJ gave legally sufficient reasons for giving reduced weight to Dr. 8 Kalman’s opinion that plaintiff was limited in social functioning and would be absent from work 9 3 times a month. 10 Moreover, the court notes that the ALJ was permitted to reject the opinion of Dr. Kalman 11 (as well as opinions from non-examining sources), in favor of opinions provided Dr. Torrez and 12 Dr. Richwerger. All three opinions are from examining sources and therefore entitled to equal 13 weight. Consequently, the ALJ was permitted to resolve the conflict and give greater weight to 14 the social functional limitations assessed by Drs. Torrez and Richwerger over the more restrictive 15 opinion provided by Dr. Kalman. See Edlund, 253 F.3d at 1156 (an ALJ is responsible for 16 resolving conflicts in medical testimony); Sheffer v. Barnhart, 45 F. App’x 644, 645 (9th Cir. 17 2002) (“Because the ALJ was entitled to resolve this evidentiary conflict between conflicting 18 opinions of equal weight, he did not need to provide specific and legitimate reasons for rejecting 19 [two treating physicians’ opinions].”). Likewise, the ALJ permissibly rejected the social 20 functioning limitations assessed by the non-examining physicians, including Dr. Kivowitz, in 21 favor of the examining opinions proved by Drs. Torrez and Richwerger. See Lester, 81 F.3d at 22 830 (the opinion of an examining physician is entitled to greater weight than the opinion of a non- 23 examining physician). 24 ///// 25 3 26 27 28 Plaintiff contends that Dr. Kalman opined that she “was moderately limited as far as maintaining attendance,” which she argues is consistent with three absences a month. ECF No. 13-1 at 19. Plaintiff is mistaken. Dr. Kalman opined that she is mildly limited in maintaining attendance, not moderately limited. See AR 570 (checking the box for “Category II,” which coincides with “Mildly Limited.”). 11 1 Accordingly, the ALJ properly weighed the medical opinion evidence concerning 2 plaintiff’s mental impairments. 3 2. 4 Dr. Karon Lastly, plaintiff argues that the ALJ failed to articulate specific and legitimate reasons for 5 not crediting examining physician Dr. Karon’s opinion that plaintiff was unable to work. ECF 6 No. 13-1 at 21-23. 7 Dr. Jeffery Karon, an examining physician, completed a comprehensive internal medicine 8 evaluation in February 2012. AR 438-442. Plaintiff’s primary complaints were frequent 9 nosebleeds (twice a day), recurring headaches, chronic anxiety, and extensive skin cancer. Id. at 10 438-439. Plaintiff reported that her daughter, with whom she lives, will not allow her to perform 11 house work because her “blood is so contaminated.” Id. at 439. On examination, plaintiff had 12 normal range of motion in all joints and straight leg testing was negative. Id. at 440-441. She 13 appeared to be in poor health, but her motor strength was 5/5 bilaterally. Id. at 441. It was Dr. 14 Karon’s opinion that plaintiff, due to her chronic hepatitis C, could only walk up to four hours. 15 He further opined that plaintiff could sit without limitation, lift/carry 20 pounds occasionally and 16 10 pounds frequently, but only occasionally engage in postural activities due to chronic 17 debilitation and hepatitis. Id. at 441-442. Dr. Karon also stated that plaintiff “has active hepatitis 18 C and has frequent nosebleeds and thus should not be in the workforce. The nosebleeds must be 19 eradicated and then the claimant perhaps could work on some limited basis; however, her 20 constellation of hepatitis C, chronic headaches, and chronic anxiety make this a problematic 21 possibility.” Id. at 442. 22 Plaintiff subsequently underwent a second internal medicine consultation, this one 23 performed by Dr. Satish Sharma, also an examining physician. Id. at 576-582. On examination, 24 plaintiff had tenderness to palpation in the lumbar spine and reduced range of motion, with 25 negative results on straight leg raising. Id. at 580. She had full range of motion in her upper and 26 lower extremities with 5/5 strength bilaterally, with no swelling or tenderness of the joints. Id. at 27 580-581. Fine motor coordination was good and her gait was normal. Id. at 581. Dr. Sharma 28 diagnosed plaintiff with hepatitis C, with complaints of fatigue, nausea, and abdominal cramps; 12 1 recurrent epitaxies; history of recurrent multiple skin cancers; low back pain secondary to 2 musculoskeletal strain; chronic obstructive pulmonary disease; migraine headaches; anxiety; and 3 depression. Id. at 581. It was his opinion that plaintiff could lift 25 pounds frequently and 50 4 pounds occasionally, stand and walk up to 6 hours per day with normal breaks, sit up to 6 hours 5 per day, and occasionally bend and stoop. Id. 6 The record also contains opinions from two non-examining physicians. Dr. E.L. Gilpeer, 7 M.D. opined that plaintiff could lift 20 pounds occasionally and 10 pounds frequently; stand 8 and/or walk for about 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, 9 and occasionally climb, balance, stoop, kneel, crouch, and crawl. Id. at 98-99. Dr. J. Zheultin, 10 also a non-examining opinion, opined that plaintiff could lift 50 pounds occasionally and 25 11 pounds frequently; stand and/or walk for about 6 hours in an 8-hour workday; sit for about 6 12 hours in an 8-hour workday; frequently climb ramps and stairs, but never ladders, ropes, or 13 scaffolds; and frequently balance, stoop, kneel, crouch, and crawl. Id. at 113-114. Dr. Zheultin 14 further opined that plaintiff should avoid all exposure to hazards. Id. at 114. 15 In assessing plaintiff’s RFC, the ALJ accorded little weight Dr. Karon’s opinion, finding 16 that it was inconsistent with: (1) the routine and conservative nature of plaintiff’s treatment for 17 hepatitis C, (2) the lack of objective medical evidence of frequent nosebleeds and skin cancer 18 metastasis; (3) the normal findings during both internal medicine examinations; and (4) plaintiff’s 19 admissions of receiving relief from her migraine medication. AR 26. 20 Plaintiff does not challenge the ALJ’s rejection of significant portions of Dr. Karon’s 21 opinion. Rather, plaintiff only contends that the ALJ failed to provide specific and legitimate 22 reasons for rejecting Dr. Karon’s opinion that plaintiff was unable to work due to nose bleeds and 23 the combined effect of her hepatitis C, chronic headaches, and chronic anxiety. The argument 24 lacks merit. 25 Dr. Karon’s opinion that plaintiff should not be in the workforce, which was rendered in 26 February 2011, was predicated on plaintiff’s reports of frequent nosebleeds. See AR 442. 27 Plaintiff reported to Dr. Karon that she was experiencing nosebleeds twice a day. Id. at 385. 28 ///// 13 1 However, as reiterated multiple times in the ALJ’s decision, plaintiff testified that the medical 2 issue related to her nosebleeds was corrected in early 2013 and, as a result, the nosebleeds 3 reduced to “maybe twice a month.” Id. at 49, 73. As the medical problem forming the basis of 4 Dr. Karon’s opinion was resolved, the ALJ properly rejected that opinion. 5 Notwithstanding her testimony, plaintiff argues that there is no evidence that the 6 nosebleeds have completely ceased and given that she still has hepatitis C, it would be risky for 7 any employer to place in the work force. ECF No. 13-1 at 22. Plaintiff’s argument is 8 unpersuasive. After the procedure to correct the nosebleeds, plaintiff was examined by Dr. 9 Sharma. Plaintiff notified him that she had hepatitis C and that she still continued to have nose 10 bleeds twice a month. Id. at 581. Dr. Sharma, however, did not opine that plaintiff’s nosebleeds 11 interfered with her ability to work. Id. 12 Plaintiff also notes that Dr. Karon opined that even if the nosebleeds were irradiated, 13 plaintiff’s “constellation of hepatitis C, chronic headaches, and chronic anxiety make” working 14 on a limited basis problematic. ECF No. 13-1 at 21; AR 442. The ALJ, however, specifically 15 addressed these other impairments. As noted above, the ALJ found that Dr. Karon’s opinion was 16 inconsistent with routine and conservative nature of treatment for plaintiff’s hepatitis C, and that 17 the evidence showed that plaintiff’s migraines were controlled with medications.4 AR 26. 18 In any event, the record contained conflicting opinions from two examining physicians, 19 Dr. Karon and Dr. Sharma. As discussed above, the ALJ was tasked with resolving the any 20 conflict between opinions of equal weight, and was not required to articulate specific and 21 legitimate reasons for selecting one opinion over the other. See Edlund, 253 F.3d at 1156; 22 Sheffer, 45 Fed. Appx. at 645. 23 24 Accordingly, the ALJ did not err in weighing the medical opinion evidence of record. IV. CONCLUSION 25 Accordingly, it is hereby ORDERED that: 26 1. Plaintiff’s motion for summary judgment is denied; 27 28 4 Plaintiff does not challenge these findings. 14 1 2. The Commissioner’s cross-motion for summary judgment is granted; and 2 3. The Clerk is directed to enter judgment in the Commissioner’s favor. 3 DATED: September 18, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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