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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAREN R. RATTAN,

Case No. 4:16-cv-04779-YGR

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER ON CROSS MOTIONS FOR SUMMARY
JUDGMENT

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NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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17

DKT. NOS.: 18, 21

Claimant Karen Reshma Rattan filed this action against defendant Nancy Berryhill as

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Acting Commissioner of the Social Security Administration (“Commissioner”) seeking judicial

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review of the Commissioner’s finding that she was not disabled under section 1614(a)(3)(A) of the

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Social Security Act (“SSA”). Pending before the Court are the parties’ cross-motions for

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summary judgment. (Dkt. Nos. 18, 21.) Claimant argues that the Administrative Law Judge

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(“ALJ”) erred by improperly discounting her treating physician’s medical opinions that she needs

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to (1) elevate her legs for two hours in an eight-hour workday, and (2) use a cane to ambulate.

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Based thereon, claimant seeks reversal with a finding of disability and an award of benefits, or in

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the alternative, a rehearing.

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Having carefully considered the papers submitted and the record in this case, and for

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reasons set forth below, the Commissioner’s motion is GRANTED, and claimant’s motion is

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DENIED.

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BACKGROUND

I.
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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

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file under Titl XVI of the Social Sec
ed
le
curity Act. (A 129.) T claim wa denied on May 23,
AR
The
as

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201 and denied again afte reconsideration on De
13,
er
ecember 30, 2013. (AR 12.) Claima appeared
ant
d

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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

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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,

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United States District Court
Northern District of California

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12
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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

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AL decision only if it “c
LJ’s
n
contains lega error or is not supported by substa
al
antial eviden
nce.” Orn v.

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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,

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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,
.

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evi
idence is sus
sceptible to more than on rational co
m
ne
onclusion, th Court mu uphold th ALJ’s
he
ust
he

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dec
cision. Burc 400 F.3d at 679.
ch,

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The Ac uses a five
ct
e-step sequen
ntial framew
work to determ whethe a claimant is disabled.
mine
er

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At Step One, th ALJ must determine whether the claimant is e
he
t
w
engaged in s
substantial g
gainful

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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

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is defined as “w
d
work usually done for pa or profit,” regardless of whether t claimant receives a
y
ay
”
the
t

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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

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2

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not disabled. If the claimant does not engage in substantial gainful activity, then the ALJ proceeds

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to Step Two of the evaluation.

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At Step Two, the ALJ must determine whether the claimant has an impairment or

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combination of impairments that is severe. 20 C.F.R. § 404.1520(c). A “severe” impairment is

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defined in the regulations as one that significantly limits an individual’s ability to perform basic

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work activities. If the claimant does not have a severe impairment or combination of impairments,

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she is not disabled. If the claimant does have a severe impairment or combination of impairments,

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then the ALJ proceeds to Step Three.
At Step Three of the sequential evaluation, the ALJ must determine whether a claimant’s

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impairment or combination of impairments “meets or equals” the criteria of an impairment listed

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United States District Court
Northern District of California

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in 20 C.F.R. Part 404, Subpart P, App. 1., 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If

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the claimant’s impairment or combination of impairments meets the criteria of a listing and the

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duration requirement, the claimant is disabled. 20 C.F.R. § 404.1509. If the impairment or

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combination of impairments does not meet the criteria of a listing or does not meet the duration

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requirement, the ALJ proceeds to the next step.

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Before reaching Step Four in the sequential evaluation, the ALJ must determine the

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claimant’s residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant’s RFC

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consists of her ability to engage in physical and mental work activity on an ongoing basis, in spite

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of any limitations from impairments. The ALJ considers both severe and non-severe impairments

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in determining the claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 404.1545.

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At Step Four, the ALJ must determine whether the claimant has the RFC to perform past

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relevant work. 20 C.F.R. § 404.1520(f). If the claimant has the RFC to perform past relevant

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work, she is not disabled. If the claimant is unable to do past relevant work or has no past relevant

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work, the ALJ proceeds to the final step in the sequential evaluation.

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At Step Five, the ALJ considers the claimant’s RFC, age, education, and work experience

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in determining whether the claimant can perform any other work besides past relevant work. 20

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C.F.R. § 404.1520(g). “Substantial work activity is work activity that involves doing significant

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physical or mental activities. . . . [W]ork may be substantial even if it is done on a part-time basis
3

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or if you do less, get paid less, or have less responsibility than when you worked before.” 20

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C.F.R. §§ 404.1572(a), 16.972(a). If the claimant can perform other work, she is not disabled. If

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the claimant cannot perform other work and fulfills the duration requirement, she is disabled.

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In any action brought by or against the United States, the Equal Access to Justice Act

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requires that “a court shall award to a prevailing party other than the United States fees and other

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expenses . . . unless the court finds that the position of the United States was substantially justified

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or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).

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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-

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United States District Court
Northern District of California

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examining physicians, with the opinions of treating physicians generally accorded the most

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weight. See Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 692 (9th Cir. 2009) (noting

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that three types of medical opinions exist in social security cases); Turner v. Comm’r of Soc. Sec.

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Admin., 613 F.3d 1217, 1222 (9th Cir. 2010) (explaining that opinions of treating physicians are

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entitled to more weight than opinions of examining physicians). The rationale for giving greater

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weight to a treating physician’s opinion is that he or she is “employed to cure and has a greater

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opportunity to know and observe the patient as an individual.” Sprague v. Bowen, 812 F.2d 1226,

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1230 (9th Cir.1987). However, an examining physician’s medical opinion may constitute

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substantial evidence. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of

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non-treating or non-examining physicians may also serve as substantial evidence when the

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opinions are consistent with independent clinical findings or other evidence in the record.”)

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“As a general rule, more weight should be given to the opinion of a treating source than to

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the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir.1995). However, an “ALJ may disregard the treating physician’s opinion whether or not that

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opinion is contradicted.” Magallanes, 881 F.2d at 751. To reject a treating doctor’s opinion, that

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is contradicted by another doctor, the ALJ must provide “specific and legitimate reasons supported

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by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)

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(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

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the
ereof, and ma
aking findings.” Id. “Th ALJ mus do more th offer his conclusions He must
he
st
han
s.

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set forth his ow interpreta
wn
ations and ex
xplain why th rather th the doct
hey,
han
tors’, are cor
rrect.” Id.

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“Th is so because, even when contrad
his
w
dicted, a trea
ating or exam
mining physi
ician’s opini is still
ion

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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

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test for controlling weight.’” Garrison v. Colvin, 7 F.3d 995 1012 (9th Cir. 2014) (
n
759
5,
(quoting

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Orn, 495 F.3d at 633).

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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

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to determine cl
d
laimant was not eligible for disability insurance benefits. A summary of his
ty
f

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United States District Court
Northern District of California

10

dec
cision follow below.
ws

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A.

At Step One, the AL found tha the claima has not engaged in su
p
LJ
at
ant
ubstantial ga
ainful

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14
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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

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C.F section 416.920(c), namely: ost
F.R.
teoarthritis o the bilatera knees, sta
of
al
atus-post righ
ht

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arth
hroscopy (sy
ynovectomy/
/chondroplasty), and tho
oracic spine abnormality (Id.)
y.

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C.

STE THREE
EP

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At Step Three, the ALJ determi
p
A
ined that cla
aimant does n have an impairment or
not

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com
mbination of impairments that meets or medicall equals the severity of any impairm under
f
s
ly
e
f
ment

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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.)
)

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In making his conclusion, the ALJ stated that claim
m
c
t
mant’s severe impairmen “do not c
e
nts
cause a

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com
mplete inability to ambu
ulate despite the claimant exaggera physical presentation.” (Id. at
t’s
ated
l

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15. The ALJ cites as evid
.)
c
dence that tre
eating physic
cian Victoria Barber, M. reported in 2012 that
a
.D.
t

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cla
aimant had “a excellent response to [platelet ric plasma] fo her right k
an
ch
or
knee,” that c
claimant “is

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not currently a candidate fo total left knee replacement,” that “
t
or
k
“there is no evidence of significant
f

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mid back impa
d
airment” or “of the kind of nerve roo compromis or stenosi required u
“
o
ot
se
is
under listing
5

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1.04.” (Id.) The ALJ also notes, referring to claimant’s back pain, that “[t]here are no MRI results

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indicating significant disc pathology,” and that the claimant did not testify to any ongoing

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complaints at the hearing. (Id.)

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5

D.

RFC DETERMINATION
Before reaching Step Four, the ALJ found that the claimant has the RFC to perform

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sedentary work as defined in 20 C.F.R section 416.967(a), with additional limitations: claimant

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can lift or carry no more than 10 pounds, can sit for 6-hours and stand for 2-hours in an 8-hour

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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

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testimony about “the intensity, persistence, and limiting effects of her symptoms” were “not

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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

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improvement of claimant’s knee condition with only mild-to-moderate findings, with grade 2–3

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chondromalacia, and with no evidence of defect after knee surgery. (Id.) The ALJ describes

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claimant’s MRI as showing intact meniscus and ligaments. (Id.) The ALJ also notes that

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claimant’s pain is related to physical therapy but is alleviated with rest. (Id.) Additionally, the

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ALJ cites treating physician Dr. Barber’s notes showing mild physical findings, no effusion, and

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ineligibility for knee surgery. (Id. at 17.)

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The ALJ attributed “little weight” to claimant’s treating physician’s opinions regarding

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claimant’s physical limitations. The ALJ listed three reasons for discounting Dr. Barber’s

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opinion: “[1] Dr. Barber’s treatment notes do not support such extreme physical limitations; [2

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Dr. Barber’s treatment notes] do not comport with an earlier musculoskeletal questionnaire

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completed by Dr. Barber that indicates note [sic] of the physical limitations later noted and show a

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good range of active movement”; and “[3] claimant’s own testimony concerning her functional

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capacity shows much fewer limitations and a greater capacity [than Dr. Barber’s assertions]. (Id.

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at 16.) Relevant to the instant motion, the ALJ specifically rejected Dr. Barber’s opinions that

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claimant needed to elevate her legs for 25% of an 8-hour work day and that she needed a cane to

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ambulate. (Id. at 16–17.)

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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

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we as degener
ell
ration of late meniscu corrobora
eral
us,
ated by MRI report prov
I
vided for revi today.”
iew

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(Id at 343.) Based on thes findings, Dr. Flanagan concluded that the clai
d.
se
D
n
imant can lif twenty
ft

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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

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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

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9
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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.

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13

F.

STE FIVE
EP
At Step Five, the Vocational Ex
p
V
xpert (“VE”) testified th given the claimant’s l
)
hat
limitations,

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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

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sed
dentary occu
upations and that there ar thousands of jobs in th category. (Id. at 46.) The VE
re
s
his
)

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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

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ould render an individual unemploya
a
l
able. (Id. at 4
47.)
wo

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IV
V.

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DISCU
USSION
Claiman argues the ALJ erred when he fai led to provid specific a legitimat reasons
nt
e
de
and
te

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sup
pported by su
ubstantial ev
vidence that claimant nee to (a) ele
eds
evate her leg for two ho in a
gs
ours

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wo
orkday, and (b) use a can
(
ne.

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In oppo
osition, the Commissione argues tha the ALJ pr
C
er
at
roperly eval
luated claima
ant’s

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trea
ating physician’s credibi
ility and gav specific an legitimate reasons to afford the tr
ve
nd
reating

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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.
.

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7

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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

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as a whole, and contradicted by Dr. Flanagan’s medical opinion. The Court determines whether

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these findings constitute substantial evidence.

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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

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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

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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)).

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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
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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.

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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

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other independent evidence in the record”); see also Bayliss, 427 F.3d at 1216 (stating that ALJ

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can reject a treating physician’s assessment of limitations when the physician’s clinical notes and

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other recorded observations regarding the claimant’s capabilities contradict the assessment).

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Dr. Flanagan noted that claimant’s range of motion in her knees and hips were within

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normal limits, there were no deformities, no evidence of swelling, and no palpable mass or

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inflammation. (AR 342.) Dr. Flanagan found motor strength was within normal limits and no

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evidence of muscle atrophy or spasm. (Id.) Despite the claimant’s crepitus (audible click) with

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extension in her right knee and some pain upon range of motion, all other testing on her knees was

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that Dr. Barber’s opinions regarding claimant’s physical limitations are not entirely credible.
10

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negative. (Id.) Dr. Flanagan concluded that claimant could lift and carry 20 pounds occasionally

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and 10 pounds frequently; sit, stand, and walk 6 hours in an 8-hour workday; and was limited to

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occasional postural activities. (AR 343.)
Dr. Flanagan found a less restrictive RFC than Dr. Barber. The ALJ arrived at a middle

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5

point between the two opinions, with an RFC less restrictive than Dr. Barber’s, but more

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restrictive than Dr. Flanagan’s. In so doing, the ALJ properly exercised his discretion in resolving

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inconsistencies between Dr. Flanagan’s and Dr. Barber’s opinion in determining claimant’s RFC.

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20 C.F.R. § 416.927(e)(2); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“[I]t is the

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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

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United States District Court
Northern District of California

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that the claimant needs to elevate her legs above the heart for two hours in an eight-hour workday.

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Accordingly, the Court GRANTS the Commissioner’s motion and DENIES claimant’s motion in this

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regard.

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B.

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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.

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Barber’s opinion that claimant needs to use a cane. With regard to claimant’s need for a cane, the

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ALJ states that “[p]hysical therapy notes support the records from Dr. Barber indicating

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improvement following surgery, and do not support the claimant’s need for a cane to ambulate.”

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(AR 17.) For the same reasons stated above, the ALJ properly discounted Dr. Barber’s opinions

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regarding claimant’s need for a cane.

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Additionally, Dr. Flanagan specifically addressed claimant’s need for a cane: “The

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claimant also holds on to the furniture in the room while ambulating. Although a single-point

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cane was present in the room, she did not utilize it during formal gait analysis.” (AR 341.) Dr.

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Flanagan further noted that the “use of an assistive device is not medically necessary.” (AR 343.)

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For the reasons stated above regarding inconsistences in Dr. Barber’s assessments, the ALJ

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properly described his reasons for finding Dr. Flanagan’s opinions to be more credible, and thus

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assigning them greater weight. (AR 18); see Andrews, 53 F.3d at 1039–40; see also Tonapetyan,

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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

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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.

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9

This Or
rder terminates Docket Numbers 18 and 21.
N
IT IS SO ORDER .
RED

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United States District Court
Northern District of California

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Da _______ 2017
ate: August__________
7,

_____
__________
___________
__________
______
YVONNE GONZALEZ ROGERS
E
Z
UN
NITED STATE DISTRICT COURT JU
ES
T
UDGE

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