Rattan v. Colvin

Filing 23

ORDER by Judge Yvonne Gonzalez Rogers denying 18 Motion for Summary Judgment; granting 21 Commissioner's Motion for Summary Judgment. No later than seven (7) days from the date of this Order, the parties must file a proposed form of judgment, approved as to form by the claimant. (fs, COURT STAFF) (Filed on 8/7/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 KAREN R. RATTAN, Case No. 4:16-cv-04779-YGR United States District Court Northern District of California Plaintiff, 12 v. ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT 13 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 DKT. NOS.: 18, 21 Claimant Karen Reshma Rattan filed this action against defendant Nancy Berryhill as 18 Acting Commissioner of the Social Security Administration (“Commissioner”) seeking judicial 19 review of the Commissioner’s finding that she was not disabled under section 1614(a)(3)(A) of the 20 Social Security Act (“SSA”). Pending before the Court are the parties’ cross-motions for 21 summary judgment. (Dkt. Nos. 18, 21.) Claimant argues that the Administrative Law Judge 22 (“ALJ”) erred by improperly discounting her treating physician’s medical opinions that she needs 23 to (1) elevate her legs for two hours in an eight-hour workday, and (2) use a cane to ambulate. 24 Based thereon, claimant seeks reversal with a finding of disability and an award of benefits, or in 25 the alternative, a rehearing. 26 Having carefully considered the papers submitted and the record in this case, and for 27 reasons set forth below, the Commissioner’s motion is GRANTED, and claimant’s motion is 28 DENIED. 1 BACKGROUND I. I On Nov vember 27, 2012 claiman applied fo Suppleme 2 nt or ental Security Income dis y sability 2 3 ben nefits, alleging that she became disab on Janu b bled uary 15, 2012. Claimant based her d t disability 4 cla primarily on a history of severe musculoskel aim y m letal pain in her knees. ( (AR 53.) Th claim was he s 5 file under Titl XVI of the Social Sec ed le curity Act. (A 129.) T claim wa denied on May 23, AR The as 6 201 and denied again afte reconsideration on De 13, er ecember 30, 2013. (AR 12.) Claima appeared ant d 7 and testified at a hearing be d efore an ALJ on Februar 4, 2015. On March 6 2015, the A issued J ry 6, ALJ 8 his decision fin s nding that the claimant was not disab w bled under se ection 1614( (a)(3)(A) of the Social 9 Sec curity Act. (AR 20.) Cl ( laimant appe ealed the AL decision to the Appe Council which LJ’s n eals l, 10 United States District Court Northern District of California 11 12 13 den her requ for revie renderin the ALJ’s decision fin nied uest ew, ng nal. II I. LEGAL FRAMEW L WORK A. GEN NERAL STAN NDARDS This Co has juris ourt sdiction und 42 U.S.C. section 405 der 5(g). The Co may rev ourt verse the 14 AL decision only if it “c LJ’s n contains lega error or is not supported by substa al antial eviden nce.” Orn v. 15 Ast true, 495 F.3 625, 630 (9th Cir. 200 3d 07). Substan ntial evidenc is “such relevant evid ce dence as a 16 rea asonable min might acc as adequ to suppo a conclus nd cept uate ort sion.” Burch v. Barnhar 400 F.3d h rt, 17 676 679 (9th Cir. 2005) (q 6, C quoting Mag gallanes v. Bo owen, 881 F F.2d 747, 750 (9th Cir. 1989)). It is 0 18 “m more than a mere scintilla but less tha a prepond m a an derance.” Ba ayliss v. Bar rnhart, 427 F F.3d 1211, 19 121 n.1 (9th Cir. 2005) (q 14 C quoting Tidw v. Apfel, 161 F.3d 59 601 (9th Cir. 1999)). Where the well 99, . 20 evi idence is sus sceptible to more than on rational co m ne onclusion, th Court mu uphold th ALJ’s he ust he 21 dec cision. Burc 400 F.3d at 679. ch, 22 The Ac uses a five ct e-step sequen ntial framew work to determ whethe a claimant is disabled. mine er 23 At Step One, th ALJ must determine whether the claimant is e he t w engaged in s substantial g gainful 24 act tivity. 20 C.F.R. § 404.1 1520(b). A person is eng p gaged in sub bstantial wor activity if her work rk f 25 inv volves signif ficant physic or mental activities. 2 C.F.R. § 404.1572(a) Gainful w cal l 20 ). work activity 26 is defined as “w d work usually done for pa or profit,” regardless of whether t claimant receives a y ay ” the t 27 pro ofit. 20 C.F.R. § 404.157 72(b). If the claimant is engaged in substantial g e s gainful activ vity, she is 28 2 1 not disabled. If the claimant does not engage in substantial gainful activity, then the ALJ proceeds 2 to Step Two of the evaluation. 3 At Step Two, the ALJ must determine whether the claimant has an impairment or 4 combination of impairments that is severe. 20 C.F.R. § 404.1520(c). A “severe” impairment is 5 defined in the regulations as one that significantly limits an individual’s ability to perform basic 6 work activities. If the claimant does not have a severe impairment or combination of impairments, 7 she is not disabled. If the claimant does have a severe impairment or combination of impairments, 8 then the ALJ proceeds to Step Three. At Step Three of the sequential evaluation, the ALJ must determine whether a claimant’s 10 impairment or combination of impairments “meets or equals” the criteria of an impairment listed 11 United States District Court Northern District of California 9 in 20 C.F.R. Part 404, Subpart P, App. 1., 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If 12 the claimant’s impairment or combination of impairments meets the criteria of a listing and the 13 duration requirement, the claimant is disabled. 20 C.F.R. § 404.1509. If the impairment or 14 combination of impairments does not meet the criteria of a listing or does not meet the duration 15 requirement, the ALJ proceeds to the next step. 16 Before reaching Step Four in the sequential evaluation, the ALJ must determine the 17 claimant’s residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant’s RFC 18 consists of her ability to engage in physical and mental work activity on an ongoing basis, in spite 19 of any limitations from impairments. The ALJ considers both severe and non-severe impairments 20 in determining the claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 404.1545. 21 At Step Four, the ALJ must determine whether the claimant has the RFC to perform past 22 relevant work. 20 C.F.R. § 404.1520(f). If the claimant has the RFC to perform past relevant 23 work, she is not disabled. If the claimant is unable to do past relevant work or has no past relevant 24 work, the ALJ proceeds to the final step in the sequential evaluation. 25 At Step Five, the ALJ considers the claimant’s RFC, age, education, and work experience 26 in determining whether the claimant can perform any other work besides past relevant work. 20 27 C.F.R. § 404.1520(g). “Substantial work activity is work activity that involves doing significant 28 physical or mental activities. . . . [W]ork may be substantial even if it is done on a part-time basis 3 1 or if you do less, get paid less, or have less responsibility than when you worked before.” 20 2 C.F.R. §§ 404.1572(a), 16.972(a). If the claimant can perform other work, she is not disabled. If 3 the claimant cannot perform other work and fulfills the duration requirement, she is disabled. 4 In any action brought by or against the United States, the Equal Access to Justice Act 5 requires that “a court shall award to a prevailing party other than the United States fees and other 6 expenses . . . unless the court finds that the position of the United States was substantially justified 7 or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). 8 9 B. MEDICAL OPINIONS Relevant to the instant motions, medical opinions are arranged in a hierarchy of three groups, namely opinions from (i) treating physicians, (ii) examining physicians, and (iii) non- 11 United States District Court Northern District of California 10 examining physicians, with the opinions of treating physicians generally accorded the most 12 weight. See Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 692 (9th Cir. 2009) (noting 13 that three types of medical opinions exist in social security cases); Turner v. Comm’r of Soc. Sec. 14 Admin., 613 F.3d 1217, 1222 (9th Cir. 2010) (explaining that opinions of treating physicians are 15 entitled to more weight than opinions of examining physicians). The rationale for giving greater 16 weight to a treating physician’s opinion is that he or she is “employed to cure and has a greater 17 opportunity to know and observe the patient as an individual.” Sprague v. Bowen, 812 F.2d 1226, 18 1230 (9th Cir.1987). However, an examining physician’s medical opinion may constitute 19 substantial evidence. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of 20 non-treating or non-examining physicians may also serve as substantial evidence when the 21 opinions are consistent with independent clinical findings or other evidence in the record.”) 22 “As a general rule, more weight should be given to the opinion of a treating source than to 23 the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th 24 Cir.1995). However, an “ALJ may disregard the treating physician’s opinion whether or not that 25 opinion is contradicted.” Magallanes, 881 F.2d at 751. To reject a treating doctor’s opinion, that 26 is contradicted by another doctor, the ALJ must provide “specific and legitimate reasons supported 27 by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 28 (internal quotation marks omitted). An ALJ can satisfy this requirement by “setting out a detailed 4 1 and thorough summary of the facts and conflicting clinical evid d s t d g dence, statin his interpr ng retation 2 the ereof, and ma aking findings.” Id. “Th ALJ mus do more th offer his conclusions He must he st han s. 3 set forth his ow interpreta wn ations and ex xplain why th rather th the doct hey, han tors’, are cor rrect.” Id. 4 “Th is so because, even when contrad his w dicted, a trea ating or exam mining physi ician’s opini is still ion 5 ow deference and will of be ‘entit to the gr wed ften tled reatest weigh . . . even i it does not meet the ht if t 6 test for controlling weight.’” Garrison v. Colvin, 7 F.3d 995 1012 (9th Cir. 2014) ( n 759 5, (quoting 7 Orn, 495 F.3d at 633). 8 III I. THE ALJ’S DECI A ISION In a nin ne-page decision, the AL applied th five-step s LJ he sequential an nalysis descr ribed above 9 to determine cl d laimant was not eligible for disability insurance benefits. A summary of his ty f 11 United States District Court Northern District of California 10 dec cision follow below. ws 12 A. At Step One, the AL found tha the claima has not engaged in su p LJ at ant ubstantial ga ainful 13 14 15 STE ONE EP act tivity since November 27 2012. (AR 14.) N 7, R B. STE TWO EP At Step Two, the ALJ determin that the c p A ned claimant has severe impairments und 20 s der 16 17 C.F section 416.920(c), namely: ost F.R. teoarthritis o the bilatera knees, sta of al atus-post righ ht 18 arth hroscopy (sy ynovectomy/ /chondroplasty), and tho oracic spine abnormality (Id.) y. 19 C. STE THREE EP 20 At Step Three, the ALJ determi p A ined that cla aimant does n have an impairment or not 21 com mbination of impairments that meets or medicall equals the severity of any impairm under f s ly e f ment 22 20 C.F.R. secti 404, Sub ion bpart P, Appe endix 1 (20 C C.F.R. 416.9 920(d), 416.925, and 416.926). (Id.) ) 23 In making his conclusion, the ALJ stated that claim m c t mant’s severe impairmen “do not c e nts cause a 24 com mplete inability to ambu ulate despite the claimant exaggera physical presentation.” (Id. at t’s ated l 25 15. The ALJ cites as evid .) c dence that tre eating physic cian Victoria Barber, M. reported in 2012 that a .D. t 26 cla aimant had “a excellent response to [platelet ric plasma] fo her right k an ch or knee,” that c claimant “is 27 not currently a candidate fo total left knee replacement,” that “ t or k “there is no evidence of significant f 28 mid back impa d airment” or “of the kind of nerve roo compromis or stenosi required u “ o ot se is under listing 5 1 1.04.” (Id.) The ALJ also notes, referring to claimant’s back pain, that “[t]here are no MRI results 2 indicating significant disc pathology,” and that the claimant did not testify to any ongoing 3 complaints at the hearing. (Id.) 4 5 D. RFC DETERMINATION Before reaching Step Four, the ALJ found that the claimant has the RFC to perform 6 sedentary work as defined in 20 C.F.R section 416.967(a), with additional limitations: claimant 7 can lift or carry no more than 10 pounds, can sit for 6-hours and stand for 2-hours in an 8-hour 8 day. (Id.) The ALJ also found that claimant’s RFC includes mental work activity. (Id.) In reaching his conclusions regarding claimant’s RFC, the ALJ found that claimant’s 10 testimony about “the intensity, persistence, and limiting effects of her symptoms” were “not 11 United States District Court Northern District of California 9 entirely credible.” (Id. at 16.) The ALJ points to surgical records and describes them as showing 12 improvement of claimant’s knee condition with only mild-to-moderate findings, with grade 2–3 13 chondromalacia, and with no evidence of defect after knee surgery. (Id.) The ALJ describes 14 claimant’s MRI as showing intact meniscus and ligaments. (Id.) The ALJ also notes that 15 claimant’s pain is related to physical therapy but is alleviated with rest. (Id.) Additionally, the 16 ALJ cites treating physician Dr. Barber’s notes showing mild physical findings, no effusion, and 17 ineligibility for knee surgery. (Id. at 17.) 18 The ALJ attributed “little weight” to claimant’s treating physician’s opinions regarding 19 claimant’s physical limitations. The ALJ listed three reasons for discounting Dr. Barber’s 20 opinion: “[1] Dr. Barber’s treatment notes do not support such extreme physical limitations; [2 21 Dr. Barber’s treatment notes] do not comport with an earlier musculoskeletal questionnaire 22 completed by Dr. Barber that indicates note [sic] of the physical limitations later noted and show a 23 good range of active movement”; and “[3] claimant’s own testimony concerning her functional 24 capacity shows much fewer limitations and a greater capacity [than Dr. Barber’s assertions]. (Id. 25 at 16.) Relevant to the instant motion, the ALJ specifically rejected Dr. Barber’s opinions that 26 claimant needed to elevate her legs for 25% of an 8-hour work day and that she needed a cane to 27 ambulate. (Id. at 16–17.) 28 6 The AL relied inst LJ tead on the conclusions o orthopedi Consulting Examiner, Terrance c of ic g 1 2 Fla anagan, M.D Dr. Flanag reported that “claim D. gan d mant’s right k knee is secon ndary to chon ndromalacia a 3 pat tella as well as lateral me eniscal tear, while the le knee pain is secondar to chondro eft n ry omalacia as 4 we as degener ell ration of late meniscu corrobora eral us, ated by MRI report prov I vided for revi today.” iew 5 (Id at 343.) Based on thes findings, Dr. Flanagan concluded that the clai d. se D n imant can lif twenty ft 6 pou unds occasio onally and te pounds fre en equently and that she ca stand or w for six h d an walk hours in an 7 eig ght-hour wor rkday, and si for six hou in an eigh it urs ht-hour work kday. (Id.) The AL found a more restrictiv RFC than Dr. Flanag limiting claimant to lifting up to LJ m ve n gan, o 8 9 10 ten pounds at any time, sitt n a ting for six hours and sta h anding and w walking for t hours in an eighttwo n hou day. ur United States District Court Northern District of California 11 E. STE FOUR EP At Step Four, the ALJ found th claimant i unable to perform pas relevant w p A hat is st work. 12 13 F. STE FIVE EP At Step Five, the Vocational Ex p V xpert (“VE”) testified th given the claimant’s l ) hat limitations, 14 15 as described by the ALJ, th claimant would be abl to perform the full ran of unskilled d y he w le m nge 16 sed dentary occu upations and that there ar thousands of jobs in th category. (Id. at 46.) The VE re s his ) 17 also testified th a need to elevate legs above the h hat s heart for two hours out o an eight-h o of hour workday y 18 ould render an individual unemploya a l able. (Id. at 4 47.) wo 19 IV V. 20 DISCU USSION Claiman argues the ALJ erred when he fai led to provid specific a legitimat reasons nt e de and te 21 sup pported by su ubstantial ev vidence that claimant nee to (a) ele eds evate her leg for two ho in a gs ours 22 wo orkday, and (b) use a can ( ne. 23 In oppo osition, the Commissione argues tha the ALJ pr C er at roperly eval luated claima ant’s 24 trea ating physician’s credibi ility and gav specific an legitimate reasons to afford the tr ve nd reating 25 phy ysician’s opi inion “little weight.” Th Commissi w he ioner mainta that the ALJ’s deter ains rmination 26 wa supported by substanti evidence and is free o reversible error. The Court consid the two as ial of e ders o 27 issu addresse by the par ues ed rties, in turn. . 28 7 1 2 A. DISCOUNTING OPINION OF DR. BARBER THAT CLAIMANT NEEDS TO ELEVATE LEGS Claimant argues that the ALJ did not reasonably evaluate the treating source’s opinion. 3 The Commissioner argues that the ALJ’s rejection of the treating physician’s opinions was proper 4 because he articulated that Dr. Barber’s opinions were inconsistent and unsupported by the record 5 as a whole, and contradicted by Dr. Flanagan’s medical opinion. The Court determines whether 6 these findings constitute substantial evidence. 7 8 1. Inconsistencies in Dr. Barber’s Medical Opinion Internal inconsistencies in a doctor’s opinion are a legitimate basis upon which an ALJ may properly discredit or discount the same. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 10 685, 692 (9th Cir. 2009) (holding that ALJ sufficiently justified rejection of treating psychologist’s 11 United States District Court Northern District of California 9 testimony by identifying contradiction in her opinion, in that she “repeatedly reported [claimant] 12 was unemployable while acknowledging he was continuing to work full-time”); see also Johnson 13 v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (stating that doctor’s opinion may be rejected 14 because it is self-contradictory and medical reports during relevant time period made “only limited 15 references to medically observed limitations on functional capacity”). Additionally, Social 16 Security regulations provide that “[g]enerally, the more consistent an opinion is with the record as 17 a whole, the more weight we will give to that opinion.” 20 C.F.R. § 416.927(c)(4)). 18 Claimant argues that the ALJ did not provide specific and legitimate reasons for 19 discounting Dr. Barber’s opinions. Claimant does not persuade. The ALJ provided a detailed 20 analysis of the record, explaining what he found to be inconsistencies between the record and Dr. 21 Barber’s opinions regarding claimant’s physical limitations. Specifically: 22 The ALJ found Dr. Barber’s 2015 Medical Source Statement to be inconsistent with the 23 Musculoskeletal Questionnaire she completed on March 15, 2013, and with her treatment notes 24 from November 23, 2011 to December 10, 2014. Notably, the restriction that claimant must 25 elevate her legs for two hours in an eight-hour work day appears only in the 2015 Medical Source 26 Statement. The ALJ explained that “such extreme physical limitations [in the Medical Source 27 Statement] . . . do not comport with an earlier musculoskeletal questionnaire completed by Dr. 28 Barber that indicates note [sic] of the physical limitations later noted and show a good range of 8 active movement [AR 335.]” (AR 16.) The ALJ found that the findings reflected in such notes 2 “were hardly the findings expected for the extreme limitations later noted by Dr. Barber [in the 3 Medical Source Statement].” (AR 17.) For instance, in the 2013 Musculoskeletal Questionnaire, 4 Dr. Barber indicated claimant had a good range of active movement, reflected no abnormal range 5 of motion, instability in claimant’s knees, or limitation affecting claimant’s ability to lift or carry, 6 and gave no indication that claimant had any sitting limitation or that she needed to elevate her 7 legs. (AR 16, 334–37.) Despite such conclusions in 2013, the ALJ found that Dr. Barber failed to 8 provide adequate reasons regarding claimant’s physical limitations in 2015. (AR 16.) Rather, Dr. 9 Barber stated in less than a sentence that claimant needs to elevate her legs for 25% of any given 10 work day. (Id.); see Matney v. Sullivan, 981 F.2d 1016, 1019–20 (9th Cir. 1992) (holding that an 11 United States District Court Northern District of California 1 “ALJ need not accept an opinion of a physician—even a treating physician—if it is conclusory 12 and brief and is unsupported by clinical findings”). 13 Upon reviewing the record, the ALJ instead found that “there [was] no medical evidence to 14 support such an extreme limitation” in the record, and, to the contrary, the record supported fewer 15 limitations. (AR 19). For example, an MRI two months after her surgery to her right knee in 16 March 2012 demonstrated only “mild tricompartmental osteoarthritis.” (AR 301.) Furthermore, 17 the treatment notes written closest in time to the 2015 Statement show no remarkable impairments 18 that would support Dr. Barber’s diagnoses contained therein. (AR 524–31.) As recently as May 19 2014, the treatment notes show sustained progress, described as: “improved pain,” “range of 20 motion intact,” “no effusion,” and “mild swelling.” (AR 539–40.) Additionally, the claimant was 21 also able to complete physical therapy exercises (AR 17–18; 339–45), which provides substantial 22 evidence that her condition is not so severe as to require leg elevation for 25% of the work day at a 23 sedentary job.1 24 1 25 26 27 28 Additionally, as the Commissioner argues, Dr. Barber’s recommended treatment for claimant involved only injections and physical therapy, and evidence in the record demonstrates that these methods had a positive effect. (AR 14–15, 19, 253.) Moreover, claimant was not a candidate for total knee replacement. (Id.) Conservative treatment such as this is indicative of a severity of impairment less than that suggested by Dr. Barber in the Medical Source Statement. See Tommasetti v. Astrue, 533 F.3d 1035, 1039–40 (9th Cir. 2012) (holding that claimant’s favorable response to conservative treatment can be evidence undermining the alleged severity of a claimant’s condition.) Such reasons, therefore, are also sufficient to support the ALJ’s finding 9 1 Thus, the Court finds that the ALJ’s explanation for rejecting Dr. Barber’s conclusions 2 were justified and supported in this regard. See, e.g., Clay v. Colvin, No.14-CV-2893-BAS, 2017 3 WL 1478618, at *12 (S.D. Cal. Apr. 25, 2017) (finding that the ALJ’s discounting of a treating 4 physician’s opinion was proper where the doctors found leg elevation necessary for claimant with 5 osteoarthritis but two forms completed by the same doctor indicated different limitations); see also 6 Dias v. Colvin, No. 14-CV-5271-NJV, 2016 WL 758345, at *3 (N.D. Cal. Feb. 26, 2016) (holding 7 that the record did not have the “objective findings that would justify the more extreme limitations 8 the doctor assessed” in a case where the doctor stated that claimant needed to elevate her legs 9 during the workday). 2. 11 United States District Court Northern District of California 10 Dr. Flanagan’s Medical Opinions The ALJ further found the opinions of consulting examining physician, Dr. Flanagan, more 12 persuasive, and discounted Dr. Barber’s opinion on those grounds. The ALJ has discretion in 13 resolving conflicts between medical opinions. See Tommasetti, 533 F.3d at 1041–42 (“[T]he ALJ 14 is the final arbiter with respect to resolving ambiguities in the medical evidence”); see also 15 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir.1995) (holding that the “ALJ is responsible 16 for determining credibility, resolving conflicts in medical testimony, and for resolving 17 ambiguities.”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (explaining that 18 examining physician’s opinion alone can constitute substantial evidence when “consistent with 19 other independent evidence in the record”); see also Bayliss, 427 F.3d at 1216 (stating that ALJ 20 can reject a treating physician’s assessment of limitations when the physician’s clinical notes and 21 other recorded observations regarding the claimant’s capabilities contradict the assessment). 22 Dr. Flanagan noted that claimant’s range of motion in her knees and hips were within 23 normal limits, there were no deformities, no evidence of swelling, and no palpable mass or 24 inflammation. (AR 342.) Dr. Flanagan found motor strength was within normal limits and no 25 evidence of muscle atrophy or spasm. (Id.) Despite the claimant’s crepitus (audible click) with 26 extension in her right knee and some pain upon range of motion, all other testing on her knees was 27 28 that Dr. Barber’s opinions regarding claimant’s physical limitations are not entirely credible. 10 1 negative. (Id.) Dr. Flanagan concluded that claimant could lift and carry 20 pounds occasionally 2 and 10 pounds frequently; sit, stand, and walk 6 hours in an 8-hour workday; and was limited to 3 occasional postural activities. (AR 343.) Dr. Flanagan found a less restrictive RFC than Dr. Barber. The ALJ arrived at a middle 4 5 point between the two opinions, with an RFC less restrictive than Dr. Barber’s, but more 6 restrictive than Dr. Flanagan’s. In so doing, the ALJ properly exercised his discretion in resolving 7 inconsistencies between Dr. Flanagan’s and Dr. Barber’s opinion in determining claimant’s RFC. 8 20 C.F.R. § 416.927(e)(2); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“[I]t is the 9 responsibility of the ALJ, not the claimant’s physician, to determine residual functional capacity”). For these reasons, the Court finds that the ALJ properly dismissed Dr. Barber’s opinion 10 United States District Court Northern District of California 11 that the claimant needs to elevate her legs above the heart for two hours in an eight-hour workday. 12 Accordingly, the Court GRANTS the Commissioner’s motion and DENIES claimant’s motion in this 13 regard. 14 B. 15 DISCOUNTING DR. BARBER’S OPINION THAT CLAIMANT MUST USE A CANE Claimant also argues that the ALJ did not give legally sufficient reasons for rejecting Dr. 16 Barber’s opinion that claimant needs to use a cane. With regard to claimant’s need for a cane, the 17 ALJ states that “[p]hysical therapy notes support the records from Dr. Barber indicating 18 improvement following surgery, and do not support the claimant’s need for a cane to ambulate.” 19 (AR 17.) For the same reasons stated above, the ALJ properly discounted Dr. Barber’s opinions 20 regarding claimant’s need for a cane. 21 Additionally, Dr. Flanagan specifically addressed claimant’s need for a cane: “The 22 claimant also holds on to the furniture in the room while ambulating. Although a single-point 23 cane was present in the room, she did not utilize it during formal gait analysis.” (AR 341.) Dr. 24 Flanagan further noted that the “use of an assistive device is not medically necessary.” (AR 343.) 25 For the reasons stated above regarding inconsistences in Dr. Barber’s assessments, the ALJ 26 properly described his reasons for finding Dr. Flanagan’s opinions to be more credible, and thus 27 assigning them greater weight. (AR 18); see Andrews, 53 F.3d at 1039–40; see also Tonapetyan, 28 11 1 242 F.3d at 114 Bayliss, 427 F.3d at 1216. Thus the ALJ pr 2 49; s, roperly dism missed Dr. Ba arber’s 2 con nclusion that the claiman needs a ca to ambul t nt ane late. Accord dingly, the ALJ’s decisio is supporte on this is A on ssue as well. ed 3 4 5 V. CONCLUS SION For the foregoing re easons, the Court GRAN the Comm C NTS missioner’s motion and DENIES 6 cla aimant’s mot tion for summ mary judgment. No late than seven (7) days fro the date of this er n om 7 Ord the parti must file a proposed form of judg der, ies e gment, appr roved as to fo by claim form mant. 8 9 This Or rder terminates Docket Numbers 18 and 21. N IT IS SO ORDER . RED 10 United States District Court Northern District of California 11 12 Da _______ 2017 ate: August__________ 7, _____ __________ ___________ __________ ______ YVONNE GONZALEZ ROGERS E Z UN NITED STATE DISTRICT COURT JU ES T UDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 2

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