Algazzali v. Colvin

Filing 30

ORDER by Judge Maria-Elena James denying 25 Plaintiff's Motion for Summary Judgment; granting 28 Defendant's Cross-Motion for Summary Judgment (cdnS, COURT STAFF) (Filed on 2/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ABULAZEZ MOHAMED ALGAZZALI,

Case No. 15-cv-01847-MEJ

Plaintiff,
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ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
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CAROLYN W. COLVIN,

Re: Dkt. Nos. 25, 28

Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Abulazez Mohamed Algazzali (“Plaintiff”) brings this action pursuant to 42

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U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Carolyn W. Colvin

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(“Defendant”), the Acting Commissioner of Social Security, denying Plaintiff’s claim for

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disability benefits. Pending before the Court are the parties’ cross-motions for summary

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judgment. Dkt. Nos. 25, 28. Pursuant to Civil Local Rule 16-5, the motions have been submitted

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on the papers without oral argument. Having carefully reviewed the parties’ positions, the

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Administrative Record (“AR”), and relevant legal authority, the Court hereby DENIES Plaintiff’s

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motion and GRANTS Defendant’s cross-motion for the reasons set forth below.

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BACKGROUND

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Plaintiff was admitted to the Doctors Medical Center on September 30, 2009 with

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complaints of progressing bilateral leg weakness and vomiting following a trip to Yemen, during

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which he participated in a month-long fast. AR 437-39, 447, 450. Plaintiff stated he had a stroke

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approximately one year prior with left-sided facial droop, and an evaluating doctor wrote that he

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“has made a near-full recovery and is usually spontaneously ambulatory.” AR 450. Plaintiff was

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diagnosed with acute renal failure. AR 443, 445-46, 452-55. However, he stipulated that acute

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renal failure resolved and was not disabling. AR 72, 653, 682, 740.

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In an October 2, 2009 assessment at Doctors Medical Center, Plaintiff had near proficient

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functional mobility and did not require intervention with skilled services to address mobility. AR

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443. Plaintiff’s extremities were normal on November 28, 2009. AR 526. He had normal leg

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strength and was encouraged to walk for exercise on December 2, 2009. AR 673.

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Northern District of California

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On March 11, 2010, Plaintiff complained of bilateral foot swelling. AR 540. He was
given compression stockings and discharged. AR 544.
On June 26, 2011, Plaintiff complained of left leg swelling and hip pain after an 18-hour
plane trip. AR 550. His pain originated from a cellulitis infection, which resolved. AR 549, 56162, 662.
In an Exertion Questionnaire dated August 28, 2011, Plaintiff indicated he has to use a
cane when he walks long distances. AR 346-48.

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On September 7, 2011 and November 17, 2011, Plaintiff presented to the Richmond

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Health Center for medication refills. AR 665-66. He did not have any abnormalities with his legs.

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AR 665-66.

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On October 6, 2011, Eugene McMillan, M.D., performed a consultative examination. AR

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408-10. Plaintiff’s chief complaints were diabetes and left leg weakness. AR 408. Plaintiff told

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Dr. McMillan he had left-sided weakness following a three-day admission to Doctors Medical

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Center, painful eyes, hypertension, kidney problems (15 years prior), and asthma (requiring a visit

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to an emergency room six years prior). AR 408. On examination, Dr. McMillan observed that

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Plaintiff used a cane in his right hand and steadied his gait by “put[ting] his hands on his wife’s

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shoulder” when he entered and exited the examination room, but he could walk normally without

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an assistive device. AR 408.He could get on and off the examining table with some difficulty but

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without assistance. AR 410. He had 4/5 or 5/5 strength, normal range of motion in all

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extremities, no facial weakness, and “made intermittent effort at grip strength in left-sided

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testing.” AR 409.

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Dr. McMillan diagnosed Plaintiff with type 2 diabetes, hypertension, left sided gait

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abnormalities, weakness, and possible history of renal disease. AR 410. He “suspect[ed] that

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[Plaintiff] did have a right hemispheric cerebrovascular accident with residual left-sided

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coordination and gait problems.” AR 410.He opined Plaintiff was limited to less than two hours

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of standing and walking per day and six hours of sitting. AR 410. Plaintiff would also need a cane

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to stabilize his gait, could occasionally lift and carry 10 pounds, and could not bend, stoop, climb,

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or balance. AR 410.
State agency reviewing physician G.B. Williams, M.D., reviewed the treatment evidence,

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as well as Dr. Morris’s examination, on November 7, 2011. AR 109-18, 126-28. Dr. Williams

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noted there was “no documentation to support CVA [cerebrovascular accident] in the MER
[medical evidence of record],” though he opined that CVA was a severe impairment. AR 114,

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124. He opined Plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently,

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stand/walk and sit for six hours each, needed a cane for long distances, and was limited in

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pushing/pulling using his left extremities. AR 115, 126. Dr. Williams also opined Plaintiff could

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only occasionally climb ramps, stairs, ladders, ropes, or scaffolds. AR 115-16, 126-27. Also, he

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said that Plaintiff could only occasionally kneel, crouch, or crawl. AR 115-16, 126-27. He

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thought Plaintiff could frequently balance, stoop and should avoid concentrated exposure to

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hazards such as machinery and heights. AR 115-16, 126-27.
State agency reviewing physician L. DeSouza, M.D., concurred with Dr. Williams on July

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26, 2012. AR 135-39, 147-51. Dr. DeSouza opined that Dr. McMillan’s opinion was “[n]ot

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supported by all the evidence in file,” was “without substantial support from other evidence of

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record,” and that it “relie[d] heavily on [Plaintiff’s] subjective report of symptoms.” AR 140, 149,

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152.

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On May 14, 2012, Plaintiff complained of headache and bilateral lower leg swelling. AR

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576, 579. He was ambulatory, had no peripheral edema, and normal extremities. AR 574, 579.

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Plaintiff was diagnosed with acute asthma and discharged the same day. AR 578. Later that

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month, his asthma stabilized. AR 700.

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On June 16, 2012, Plaintiff complained of left hip pain after a fall. AR 591. He was given
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pain medication and discharged the same day. AR 594.
On July 10, 2012, Plaintiff requested medication refills for allergies and complained of

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“mild knee pain” when ascending stairs. AR 755. He did not have any significant objective

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findings in his extremities. AR 755. (“No edema.”).
On August 8, 2012, Plaintiff’s asthma was exacerbated from a fire, after which he was

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referred to primary care. AR 767, 769. He presented as scheduled for medication refills on

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October 9, 2012, and he did not have any specific complaints or significant exam findings. AR

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743 (“No edema.”).
On December 13, 2012, Plaintiff complained of knee pain, for which he was prescribed

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pain medication. AR 759, 762. The attendant noted Plaintiff had a steady gait. AR 759, 763. As

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of January 2013, Plaintiff had good weight bearing in his extremities, and had no issues with his

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back (he could stand on his toes and heels and squat fully). AR 787. He was referred to physical

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therapy and given Tylenol. AR 787Knee x-rays were normal except for a foreign object near the

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right knee, present since childhood. AR 791, 836 (“not necessarily bothering” him).
On March 1, 2013, Plaintiff was not in acute distress, had “relatively normal gait,” good

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range of motion in his hips, and had normal strength, sensation, reflexes, and ligaments. AR 778.

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In a physical therapy evaluation dated March 20, 2013, Plaintiff’s gait was “non trendelenburg”

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and he had “ok” balance. AR 776. X-rays showed some impingement in the hip and “minimal

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degenerative changes” in the right knee. AR 776.An MRI of the knee showed a torn meniscus.

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AR 809, 817. An MRI of the left hip was normal but showed a “[p]ossible very small . . . labral

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tear. [Also, there was] limited evaluation due to patient’s large size and patient motion” during the

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MRI. AR 820. The MRI report recommended a repeat study. AR 820.Plaintiff’s physical therapy

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treatment plan consisted of therapeutic exercises. AR 778, 814.
Plaintiff had normal range of motion on May 28, 2013. AR 810. In an evaluation of

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Plaintiff’s fitness for surgery, he answered “no” to a question regarding a history of stroke. AR

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802.

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Plaintiff had arthroscopic knee surgery on June 3, 2013. AR 70. He walked without an
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assistive device after the surgery. AR 831-36. He attended physical therapy from August to

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October 2013, which included weighted exercises, heat, and ice. AR 825-30. During his

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recovery, Plaintiff’s physical therapist observed he had an “antalgic gait pattern [with] mild short

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stance on [the] right side.” AR 834.
SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

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On August 23, 2011, Plaintiff filed a claim for Disability Insurance Benefits. AR 277-94.

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On November 7, 2011, the Social Security Administration (“SSA”) denied Plaintiff’s claim,

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finding that Plaintiff did not qualify for disability benefits. AR 108. Plaintiff subsequently filed a

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request for reconsideration, which was denied. AR 187-92. On August 22, 2012, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). AR 193-94. ALJ Richard P.

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Northern District of California

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Laverdure conducted a hearing on July 23, 2013. AR 60-107. Plaintiff testified in person at the

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hearing and was represented by counsel, Rosemary Dady. AR 62. The ALJ also heard testimony

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from Vocational Expert Joel Greenberg and Medical Expert Kweli Amusa. AR 68-89, 91-94,

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104-107.

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A.

Plaintiff’s Testimony
Plaintiff testified his past work included working as a cashier, during which his duties also

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included packing, unpacking, cleaning, assembling, and stocking. AR 94. He also worked as an

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apartment manager, which consisted of cleaning, and landscaping. AR 96, 101-02. He stopped

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working in 2009, when the company he was working for went out of business. AR 67-68. The

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company was initially his but he began to find it difficult to work and brought in people to help.

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AR 68. Plaintiff testified he underwent arthroscopic surgery on his right knee on June 3, 2009.

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AR 69-70.

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B.

Vocational Expert’s Testimony

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The ALJ questioned Joel Greenberg, the vocational expert, regarding a claimant’s ability to

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perform Plaintiff’s past work with his limitations. AR 105. Mr. Greenberg testified the jobs could

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be performed with such limitations. AR 105.

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C.

Medical Expert’s Testimony
Medical expert Kweli Amusa, M.D., also offered testimony at the hearing. AR 68-89. Dr.

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Amusa opined that from December 1, 2009 through June 15, 2012, Plaintiff could perform light

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work involving six hours of standing/walking and six hours of sitting; he could not climb ladders,

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ropes, or scaffolds; he could perform occasional postural movements; and he should avoid

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concentrated exposure to extreme cold and heat and moderate exposure to fumes, odors, dust, or

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poor ventilation. AR 80-82. After June 15, 2012, Dr. Amusa opined that Plaintiff’s hip condition

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permitted him to perform light work with the same limitations except no more than two hours of

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standing and walking. AR 80-82.

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D.

The regulations promulgated by the Commissioner of Social Security provide for a five-

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Northern District of California

The ALJ’s Findings

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step sequential analysis to determine whether a Social Security claimant is disabled.1 20 C.F.R. §

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404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or

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negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer

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v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential

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inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r

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Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the

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Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v.

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Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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The ALJ must first determine whether the claimant is performing “substantial gainful

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activity,” which would mandate that the claimant be found not disabled regardless of medical

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condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ

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determined that Plaintiff had not performed “substantial gainful activity since December 1, 2009,

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the alleged onset date.” AR 23.

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Disability is “the inability to engage in any substantial gainful activity” because of a medical
impairment which can result in death or “which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
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At step two, the ALJ must determine, based on medical findings, whether the claimant has

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a “severe” 2 impairment or combination of impairments as defined by the Social Security Act. 20

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C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20

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C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe

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impairments: asthma and moderate obesity. AR 23. Beginning on June 16, 2012, Plaintiff had the

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following additional severe impairments: osteoarthritis of the bilateral knees, torn medial

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meniscus, right knee, status post arthroscopic surgery, and left hip pain(likely degenerative joint

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disease). AR 30.
If the ALJ determines that the claimant has a severe impairment, the process proceeds to

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the third step, where the ALJ must determine whether the claimant has an impairment or

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combination of impairments that meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt.

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P, App. 1. 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s impairment either meets the listed

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criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is

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conclusively presumed to be disabled, without considering age, education, and work experience.

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20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or

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combination of impairments that meet the listings. AR 25, 30.

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Before proceeding to step four, the ALJ must determine the claimant’s Residual Function

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Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work

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setting, despite mental or physical limitations caused by impairments or related symptoms. 20

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C.F.R. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the

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claimant’s medically determinable impairments, including the medically determinable

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impairments that are nonsevere2. 20 C.F.R. § 404.1545(e). Here, the ALJ determined Plaintiff,

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Severe condition(s) or impairment(s) of a claimant are required for that claimant to recover
Social Security Disability benefits. According to Title 20 of the Code of Federal Regulations,
“[Claimants] must have a severe impairment. If [claimants] do not have any impairment or
combination of impairments which significantly limits [their] physical or mental ability to do basic
work activities, we will find that [they] do not have a severe impairment and are, therefore, not
disabled.” 20 C.F.R. § 404.1520(c). (Differentiation of the law regarding what qualifies as
‘severe’ and what is ‘nonsevere’).

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from the alleged onset date of December 1, 2009 through June 15, 2012, has the RFC “to perform

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a range of light work” as follows:

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[H]e 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 workday with regular breaks. He can sit for six hours out of an
eight-hour workday with regular breaks. He cannot climb ladders,
ropes, or scaffolds. He can occasionally crouch, crawl, kneel, stoop,
and balance, and use ramps and stairs. He is precluded from
concentrated exposure to cold, heat, fumes, odors, dust, and poor
ventilation.

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AR 25. Beginning on June 16, 2012, the ALJ determined Plaintiff had the ability “to perform a

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range of sedentary work” as follows:

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[He] can lift and/or carry 20 pounds occasionally and 10 pounds
frequently. He can stand and/or walk for two hours out of an eighthour workday with regular breaks. He can sit for six hours out of an
eight-hour workday with regular breaks. He cannot climb ladders,
ropes, or scaffolds. He can occasionally crouch, crawl, kneel, stoop,
and balance. He is precluded from concentrated exposure to cold,
heat, fumes, odors, dust, and poor ventilation.

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Northern District of California

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AR 31.
The fourth step of the evaluation process requires that the ALJ determine whether the

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claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv);

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404.1520(f). “”Past relevant work is work performed within the past 15 years that was substantial

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gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. §

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404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not

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disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ determined that Plaintiff could perform

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past relevant work as a cashier II and apartment manager. AR 29. Beginning June 16, 2012, the

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ALJ determined Plaintiff could perform past relevant work as a cashier II. AR 33.
As the ALJ determined Plaintiff could perform his past relevant work, he did not proceed

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to the fifth step of the analysis.

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E.

ALJ’s Decision and Plaintiff’s Appeal

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On August 13, 2013, the ALJ issued an unfavorable decision finding that Plaintiff was not

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disabled. AR 18-34. This decision became final when the Appeals Council declined to review it

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on February 20, 2015. AR 1. Having exhausted all administrative remedies, Plaintiff commenced

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this action for judicial review pursuant to 42 U.S.C. § 405(g). On October 9, 2015, Plaintiff filed

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the present Motion for Summary Judgment. Dkt. No. 25. On November 5, 2015, Defendant filed

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a Cross-Motion for Summary Judgment. Dkt. No. 28.
LEGAL STANDARD

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This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42

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U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by

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substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari,

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246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a
scintilla but less than a preponderance” of evidence that “a reasonable person might accept as

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Northern District of California

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adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002)

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(quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The

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court must consider the administrative record as a whole, weighing the evidence that both supports

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and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

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However, “where the evidence is susceptible to more than one rational interpretation,” the court

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must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

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Determinations of credibility, resolution of conflicts in medical testimony, and all other

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ambiguities are to be resolved by the ALJ. Id.

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Additionally, the harmless error rule applies where substantial evidence otherwise supports

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the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not

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reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d

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1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56

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(9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party

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attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409

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(2009)).

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DISCUSSION
In his Motion, Plaintiff argues the ALJ committed reversible error in failing to properly
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consider the opinion of Dr. McMillan. Pl.’s Mot. at 3. Plaintiff maintains the ALJ rejected Dr.

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McMillan’s opinion without specific and legitimate reasons for doing so. Pl.’s Mot.at 4. In

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response, Defendant argues the ALJ reasonably gave little weight to Dr. McMillan’s opinion

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because, while Dr. McMillan suspected Plaintiff had left side weakness and gait problems due to a

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history of stroke, he correctly noted the absence of treatment records for a stroke. Def.’s Mot. at

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5. Defendant further argues the ALJ correctly noted physical examinations dated after Dr.

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McMillan’s opinion revealed normal findings and no gait abnormalities. Def.’s Mot.at 7.

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A.

Legal Standard
When determining whether a claimant is disabled, the ALJ must consider each medical

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opinion in the record together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b).);

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Northern District of California

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Zamora v. Astrue, 2010 WL 3814179, at *3 (N.D. Cal. Sept. 27, 2010). In deciding how much

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weight to give to any medical opinion, the ALJ considers the extent to which the medical source

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presents relevant evidence to support the opinion. 20 C.F.R. § 416.927(c)(3). Generally, more

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weight will be given to an opinion that is supported by medical signs and laboratory findings, and

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the degree to which the opinion provides supporting explanations and is consistent with the record

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as a whole. 20 C.F.R. § 416.927(c)(3)-(4).

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In conjunction with the relevant regulations, the Ninth Circuit “developed standards that

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guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec.,

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528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Courts “distinguish among the

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opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2)

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those who examine but do not treat the claimant (examining physicians); and (3) those who neither

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examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830

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(9th Cir. 1995). “By rule, the Social Security Administration [SSA] favors the opinion of a

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treating physician over non-treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007)

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(citing 20 C.F.R. § 404.1527). If a claimant has a treatment relationship with a provider, and

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clinical evidence supports that provider’s opinion and is consistent with the record, the provider

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will be given controlling weight. 20 C.F.R. § 416.927(c)(2). “The opinion of a treating physician

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is given deference because ‘he is employed to cure and has a greater opportunity to know and

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observe the patient as an individual.’” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595,

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600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).
“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

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supported’ or because it is inconsistent with other substantial evidence in the record, the [SSA]

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considers specified factors in determining the weight it will be given.” Orn, 495 F.3d at 631.

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“Those factors include the ‘[l]ength of the treatment relationship and the frequency of

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examination’ by the treating physician; and the ‘nature and extent of the treatment relationship’

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between the patient and the treating physician.” Id. (citing 20 C.F.R. § 404.1527(d)(2)(i)-(ii)).

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Additional factors relevant to evaluating any medical opinion, not limited to the
opinion of the treating physician, include the amount of relevant evidence that
supports the opinion and the quality of the explanation provided; the consistency of
the medical opinion with the record as a whole; the specialty of the physician
providing the opinion; and “[o]ther factors” such as the degree of understanding a
physician has of the [Social Security] Administration’s “disability programs and
their evidentiary requirements” and the degree of his or her familiarity with other
information in the case record.

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Id. (citing 20 C.F.R. § 404.1527(d)(3)-(6)). Nonetheless, even if the treating physician’s opinion

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is not entitled to controlling weight, it is still entitled to deference. See Orn, 495 F.3d at 632

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(citing SSR 96–2p,3 1996 WL 374188, at *4 (July 2, 1996)). “In many cases, a treating source’s

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medical opinion will be entitled to the greatest weight and should be adopted, even if it does not

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meet the test for controlling weight.” SSR 96-2p at *4.

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B.

Application to the Case at Bar
There is no dispute Dr. McMillan is an examining physician. Pl.’s Mot. at 3; Def.’s Mot.

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at 3. As noted above, Dr. McMillan diagnosed Plaintiff with diabetes, hypertension, possible

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history of renal disease, history of asthma, and left-sided gait abnormalities/weakness. AR 410,

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778. He “suspect[ed] that [Plaintiff] did have a right hemispheric cerebrovascular accident with

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“[Social Security Rulings] do not carry the force of law, but they are binding on ALJs nonetheless.” Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009); see 20 C.F.R. § 402.35(b)(1). The
Ninth Circuit defers to the rulings unless they are “plainly erroneous or inconsistent with the Act or
regulations.” Chavez v. Dep’t. of Health and Human Serv., 103 F.3d 849, 851 (9th Cir. 1996).
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residual left-sided coordination and gait problems.” AR 410, 778. Dr. McMillan opined Plaintiff

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was limited to less than two hours of standing and walking per day, limited to six hours of sitting,

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would need a cane to stabilize his gait, could occasionally lift and carry 10 pounds, and could not

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bend, stoop, climb, or balance. AR 410, 778.

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The ALJ considered Dr. McMillan’s opinion, but found it “contrasts sharply with the other

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evidence of record, which renders it less persuasive.” AR 29. As to Dr. McMillan’s suspicion

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that Plaintiff had left sided weakness and gait problems due to a history of stroke, the ALJ noted

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the absence of treatment records for a stroke stating (AR 29 [“there is nothing in the treatment

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record that suggests [Plaintiff] suffered a stroke”]). The Court finds the record supports this
determination. Plaintiff argues the “[t]reatment records document [Plaintiff’s] medical history is

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Northern District of California

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significant for stroke.” Pl.’s Mot. at 6 (citing AR 450). However, there are no treatment records

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for stroke, and the cite Plaintiff provides constitutes Plaintiff’s own report to a treating physician

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in September 2009 that he had a stroke the year prior. AR 437-39, 447, 450. Despite this report,

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Plaintiff denied a history of stroke or paralysis in May 2013. AR 29, 802; see Bowen v. Yuckert,

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482 U.S. 137, 146, n.5 (1987) (“It is not unreasonable to require the claimant, who is in a better

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position to provide information about his own medical condition, to do so.”). Likewise, the

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remainder of Plaintiff’s medical records does not document a history of stroke. See AR 410 (Dr.

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McMillan noted the absence of facial weakness in his examination), 437 (CVA/TIA not checked),

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443 (stroke not noted in mobility assessment), 447, 450, 524, 540, 550, 560, 573, 591, 704

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(Plaintiff circled “N” when asked if he had a problem with stroke), 734, 759, 767, 787.

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Further, although Plaintiff cites his report that he had a stroke the year before, the doctor to

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whom he reported it wrote in the same note that Plaintiff “made a near-full recovery and is usually

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spontaneously ambulatory.” AR 450. In addition, acute renal failure—not stroke—caused

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Plaintiff’s complaints of leg weakness in September 2009, which resolved with treatment, and

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which Plaintiff stipulated was not disabling. AR 72, 443, 445-46, 452-55. Even if the Court were

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to find the ALJ erred in not discussing the September 2009 note, it was harmless because the same

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note documented Plaintiff’s recovery, and it did not detract from the ALJ’s recognition that the

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medical evidence failed to document a medically determinable impairment related to stroke. See

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20 C.F.R. § 404.1528 (requiring evidence in the form of signs, symptoms, and laboratory findings

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to support a medically determinable impairment); Carmickle v. Comm’r, Soc. Sec. Admin., 533

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F.3d 1155, 1162-1163 (9th Cir. 2008) (if there is “‘substantial evidence supporting the ALJ’s

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conclusions’” and “the error ‘does not negate the validity of the ALJ’s ultimate conclusion,’ such

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[error] is deemed harmless”) (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

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1197-98 (9th Cir. 2004)).

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The ALJ also rejected Dr. McMillan’s opinion because “subsequent physical examinations
. . . revealed normal findings and no gait abnormalities.” AR 29. Substantial evidence supports
this finding. For example, Plaintiff had normal extremities and leg strength in November and

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United States District Court
Northern District of California

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December 2009, and his doctor recommended he walk for exercise. AR 526, 673-74. Left hip

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pain in June 2011 was related to a skin infection that resolved. AR 549-50, 561-62, 662. There

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were no abnormalities noted with his legs in September or November 2011, which was the same

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period that Dr. McMillan examined Plaintiff. AR 408, 665-66. Although Dr. McMillan observed

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Plaintiff had “made intermittent effort at grip strength in left-sided testing,” he also found Plaintiff

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had 4/5 or 5/5 strength and normal range of motion in all extremities and no facial weakness. AR

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409. On May 14, 2012, Plaintiff complained of bilateral lower leg swelling but was ambulatory,

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did not have peripheral edema, and had normal extremities on examination. AR 29, 574, 576,

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579. On July 10, 2012, Plaintiff complained of “mild knee pain when he goes up the stairs” but

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did not have any swelling. AR 27, 29, 755. On October 9, 2012, Plaintiff did not have any

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complaints or significant examination findings. AR 27, 29, 743. He had a steady gait in

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December 2012. AR 27, 759, 763. In January 2013, he had stable ligaments, good weight

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bearing, could stand on toes and heels, and could squat fully. AR 29, 32, 787. In March 2013, he

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walked with a “relatively normal gait” despite complaints of hip and knee pain; he had normal

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strength, sensation, reflexes, ligaments, and “ok” balance. AR 27, 29, 776, 778. In May 2013,

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Plaintiff did not have any leg swelling and had normal range of motion. AR 810. The Court finds

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the ALJ’s decision consistent with this record. See 20 C.F.R. § 404.1527(c)(3)-(4) (in evaluating a

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medical opinion, the agency considers the support the source provides for the opinion and the

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consistency with the record as a whole), 404.1528 (a claimant’s report of symptoms alone is

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insufficient to prove a medically determinable impairment; there must be evidence in the form of

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signs, symptoms, and laboratory findings).

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The ALJ also rejected Dr. McMillan’s opinion that Plaintiff needed a cane to walk. AR

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29, 410. Plaintiff argues the medical record supports Dr. McMillan’s finding. Pl.’s Mot. at 6. In

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support of his position, Plaintiff notes the August 2011 Exertion Questionnaire he completed, in

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which he indicated he has to use a cane to walk long distances. AR 348. However, the ALJ found

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Plaintiff’s testimony was not fully credible (AR 29), and Plaintiff does not challenge that
assessment here and therefore cannot rely on his own testimony to support this claim. Plaintiff

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United States District Court
Northern District of California

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also cites a July 2013 treatment note noting an antalgic gait pattern, but the same note reflects that

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he was “ambulating without [an] adaptive device at this point.” AR 834. In November 2011, Dr.

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Williams opined Plaintiff would require a cane for long distances. AR 114-15. However, Plaintiff

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did not indicate he used a cane to walk at the hearing, nor is there any indication of the use of a

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cane in the treatment record. AR 79 (medical expert Dr. Amusa testifying he did not “see[] the

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need to use an aid to ambulate” in the record), 94-104 (Plaintiff’s testimony regarding his previous

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work). See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (ALJ properly rejected

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plaintiff’s assertion he needed a cane given the lack of a prescription). Indeed, the only mention

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of a cane in the record was at the consultative examination with Dr. McMillan. AR 409. Plaintiff

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used a cane when he entered and exited the examination room, but he could walk normally

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without any assistive device. AR 409. He could also get on and off the examining table with

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some difficulty but without assistance, and he had normal or nearly normal strength. AR 410. As

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the ALJ’s finding that Plaintiff did not need to use a cane was reasonable in light of the substantial

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evidence in the record, the ALJ properly rejected Dr. McMillan’s opinion on this basis.

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While Plaintiff may disagree with the ALJ’s findings, the Court finds the record as a whole

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constitutes substantial evidence supporting the ALJ’s decision to give Dr. McMillan’s opinion

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little weight. Further, even “where the evidence is susceptible to more than one rational

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interpretation,” the Court must uphold the ALJ’s decision. Magallanes, 881 F.2d at 750 (citing

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Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984); Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984)). The ALJ must resolve determinations of credibility, resolution of conflicts in medical

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testimony, and all other ambiguities. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196

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(9th Cir. 2004).
CONCLUSION

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For the reasons stated above, the Court hereby DENIES Plaintiff’s Motion and GRANTS
Defendant’s Cross-Motion.
IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: February 1, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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