Summer v. Colvin et al

Filing 28

ORDER DENYING 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 7/14/2017. (blflc4S, COURT STAFF) (Filed on 7/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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TERREE SUMMER,

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Plaintiff,
v.

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NANCY A. BERRYHILL,

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United States District Court
Northern District of California

Case No. 16-cv-01872-BLF

Defendant.

ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
[Re: ECF 15]

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Plaintiff Terree Summer (“Summer”) appeals from a final decision of Defendant

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Commissioner of Social Security, denying her application for a period of disability and disability

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benefits under Title II of the Social Security Act. Before the Court are the parties’ cross-motions

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for summary judgment, which have been fully briefed. Upon consideration of the briefing

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submitted and for the reasons set forth below, the Court DENIES Plaintiff’s motion and GRANTS

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Defendant’s motion.

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I.

BACKGROUND
A.

Factual Background
Summer, a United States citizen, was born on September 27, 1956. Admin. R. (“AR”) 64,

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149. Summer has held a variety of jobs including District Director for U.S. Congress, Vice

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President of Economic Development for the Chamber of Commerce, and most recently Director of

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Entrepreneurial Services at Arizona State University. Id. at 40. On June 4, 2012, Summer filed an

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application for a period of disability and disability insurance benefits beginning April 26, 2010.

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Id. at 20. Summer filed her initial claim for disability resulting from the following conditions:

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rheumatoid arthritis (“RA”), asthma, Grave’s Disease, irritable bowel syndrome (“IBS”),

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osteoporosis, recurrent sinusitis, and a compromised immune system due to RA medications. Id.

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at 65. Summer’s initial application was denied on October 9, 2012. Id. at 20. Summer filed for

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reconsideration on November 30, 2012, which was later denied on July 16, 2013. Id. at 20, 99.

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On July 25, 2013, Summer requested a hearing before an administrative law judge (“ALJ”), which

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was granted. Id. at 103-104. At the hearing held on June 17, 2014, ALJ Brenton L. Rogozen

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heard testimony from an impartial vocational expert, Victoria Rei, and from Summer herself. Id.

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at 20. On September 15, 2014, ALJ Rogozen issued a written decision finding Su mmer not

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disabled and thus not entitled to benefits. Id. at 20-35. The ALJ’s decision was affirmed by the

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Appeals Council on February 22, 2016, making the ALJ’s decision the final decision of the

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Commissioner of Social Security. Id. at 1-4. Summer now seeks judicial review of the denial of

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benefits.

United States District Court
Northern District of California

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B.

Procedural Background
Summer filed a motion for summary judgment on September 13, 2016. Pl.’s Mot. Summ.

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J. (“Pl.’s Mot.”), ECF 15. Both parties stipulated to two separate extensions of time in order for

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Defendant to file a motion for summary judgment. Stip. & Order First Extension for Def.’s Mot.

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for Summ. J.; Stip. & Order Second Extension for Def.’s Mot. for Summ. J.; ECF 17, 19. On

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November 9, 2016, the Court approved both extensions of time, and the ultimate due date for

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Defendant’s motion for summary judgment was November 22, 2016. Id. When Defendant did not

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file the motion on time, Summer moved for default judgment. ECF 23. In the order denying the

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motion for default judgment, the Court stated that the motion for summary judgment was deemed

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submitted without opposition. ECF 24.
Approximately five and a half months late, on May 9, 2017, Defendant filed a notice,

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motion, and memorandum in support of cross-motion for summary judgment and in opposition to

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Summer’s motion for summary judgment. Def.’s Mot. for Summ. J (“Opp’n”), ECF 26. In filing

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this motion, Defendant did not explain any reason for why the filing was late. Id. On May 23,

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2017, Summer filed a reply brief. Reply, ECF 27.

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II.

LEGAL STANDARD
A.

Standard of Review
District courts “have power to enter, upon the pleadings and transcript of the record, a
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judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,

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with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). However, “a federal

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court’s review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806

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F.3d 487, 492 (9th Cir. 2015). Federal courts “‘leave it to the ALJ to determine credibility,

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resolve conflicts in the testimony, and resolve ambiguities in the record.’” Id. (quoting Treichler

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v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)).
A court “will disturb the Commissioner’s decision to deny benefits only if it is not

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supported by substantial evidence or is based on legal error.” Brown-Hunter, 806 F.3d at 492

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(internal quotation marks and citation omitted). “Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and must be more than a

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United States District Court
Northern District of California

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mere scintilla, but may be less than a preponderance.” Rounds v. Comm’r of Soc. Sec. Admin.,

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807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and citations omitted). A court

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“must consider the evidence as a whole, weighing both the evidence that supports and the

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evidence that detracts from the Commissioner’s conclusion.” Id. (internal quotation marks and

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citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ’s

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findings must be upheld if supported by reasonable inferences drawn from the record. Id.

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Finally, even when the ALJ commits legal error, the ALJ’s decision will be upheld so long

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as the error is harmless. Brown-Hunter, 806 F.3d at 492. However, “[a] reviewing court may not

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make independent findings based on the evidence before the ALJ to conclude that the ALJ’s error

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was harmless.” Id. The court is “constrained to review the reasons the ALJ asserts.” Id.

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B.

Standard for Determining Disability
Disability benefits are available under Title II of the Social Security Act when an eligible

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claimant is unable “to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §

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423(d)(1)(A).

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“To determine whether a claimant is disabled, an ALJ is required to employ a five-step
sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2)
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whether the claimant has a severe medically determinable physical or mental impairment or

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combination of impairments that has lasted for more than 12 months; (3) whether the impairment

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meets or equals one of the listings in the regulations; (4) whether, given the claimant’s residual

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functional capacity, the claimant can still do his or her past relevant work; and (5) whether the

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claimant can make an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th

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Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity

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(“RFC”) referenced at step four is what a claimant can still do despite his or her limitations. Id. at

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1160 n.5. “The burden of proof is on the claimant at steps one through four, but shifts to the

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Commissioner at step five.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.
2009).

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United States District Court
Northern District of California

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III.

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DISCUSSION
A.

The Court will Consider the Commissioner’s Late Opposition & Cross-Motion
and Amends its Prior Order in Part.

Before turning to the parties’ briefing on the motions for summary judgment, the Court
must decide whether to consider Defendant’s late-filed cross-motion and opposition to Summer’s
motion for summary judgment. The Court construes the filing of Defendant’s cross-motion for
summary judgment and opposition to Summer’s motion for summary judgment also as a motion to

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extend the time under Fed. R. Civ. Proc. 6(b). Fed. R. Civ. Proc. 6(b)(1)(B) governs extensions of
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time after the relevant deadline has expired and states, in pertinent part:
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(b) Extending Time.
(1) In General. When an act may or must be done within a specified time, the
court may, for good cause, extend the time:
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(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.
Under this rule, when a motion to extend time is filed “after the time has expired,” the
court may extend the time upon a showing of “good cause” and “excusable neglect.” Fed. R. Civ.
P. 6(b)(1)(B). “To determine whether a party’s failure to meet a deadline constitutes ‘excusable
neglect,’ courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to

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the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the

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reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon

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Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. Co. v. Brunswick

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Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).

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A district court abuses its discretion by failing to engage in this four-factor test or at least

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the “equitable analysis” captured by the test. Ahanchian, 624 F.3d at 1261. Additionally, a

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“district court is given broad discretion in supervising the pretrial phase of litigation, and its

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decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless they

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evidence a clear abuse of discretion.” The United States v. Thill, No. 14-29-BLG-SPW-CSO,
2015 WL 12592794, at *1. (D. Mont. Jan. 28, 2015) (citing Jorgensen v. Cassiday, 320 F.3d 906,

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United States District Court
Northern District of California

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913 (9th Cir. 2003)) (internal quotation marks and citations omitted). “The law has a strong

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preference to determine cases on their merits whenever possible.” Barg Coffin Lewis & Trapp,

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LLP v. Arlie & Co., No. 14-4740-LB, 2014 WL 7275360, at *4 (N.D. Cal. Dec. 22, 2014) (citing

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Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111-12 (9th Cir. 2011)).

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Based on the parties’ briefings, the Court first finds that Defendant has not demonstrated

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excusable neglect for the late-filed opposition. Defendant submitted a cross-motion for summary

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judgment and opposition without any mention of or justification for the delay. See Opp’n, ECF

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26. As such, the Court determines that Defendant has not demonstrated excusable neglect for the

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late-filed cross-motion and opposition. The Court next must determine whether it should exercise

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its “broad discretion” to consider Defendant’s cross-motion and opposition nonetheless. See

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Thrill, 2015 WL 12592794, at *1. While the length of delay is five and a half months, the parties

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do not argue and the Court does not find that the delay has impacted the proceeding of this case.

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Defendant also proffers no arguments pertaining to the reason for the delay, and whether the

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Defendant acted in good faith – so these factors do not weigh strongly in favor of this Court’s

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exercise of discretion. Finally, as to “the danger of prejudice” to Summer, the Court

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acknowledges that Defendant’s submission was late by nearly five and a half months. However,

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aside from noting that Defendant’s motion was filed five and a half months late, Summer did not

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provide any argument on whether the Court should consider Defendant’s delayed filing or whether
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she would be prejudiced if the filing were to be considered. Reply 1. In light of all these factors

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and based on the law’s strong preference to determine cases on their merits, see Barg Coffin Lewis

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& Trap, 2014 WL 7275360, at *4, the Court shall exercise its discretion to consider Defendant’s

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late-filed cross-motion and opposition on the merits. Consequently, the Court amends in part its

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order issued on December 20, 2017, and will consider Defendant’s cross-motion and opposition to

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Summer’s motion. See Order Denying Mot. for Default J., ECF 24.
The ALJ’s Determination

B.

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The ALJ determined that Summer met the insured status requirements of the Social

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Security Act through December 31, 2016. AR 22. At step one, the ALJ determined that Summer

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had not engaged in substantial gainful activity since her alleged onset date of April 26, 2010. Id.

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United States District Court
Northern District of California

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At step two, the ALJ found that Summer had the following severe impairments: “rheumatoid

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arthritis[] and status post pulmonary infection with residuals.” Id.

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At step three, the ALJ concluded that Summer did not have an impairment or combination

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of impairments that meets or medically equals the severity of one of the listed impairments in 20

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C.F.R., Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526). Id. at

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23. The ALJ also found that Summer had the RFC “to perform the full range of sedentary work as

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defined in 20 C.F.R. 404.1567(a) and . . . must avoid exposure to heavy concentration of

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respiratory contamination and pollutants.” Id. At step four, the ALJ found that Summer was

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capable of performing past relevant work as a director of education program or vice president of

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any industry. Id. at 28. The ALJ determined that this work did not require the performance of

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work-related activities precluded by Summer’s RFC. Id. Thus, the ALJ concluded that Summer

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had not been under a disability, as defined in the Social Security Act, from April 26, 2010, through

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the date of the decision. Id. at 29.

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Summer challenges the ALJ’s determinations, claiming that the ALJ committed three

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errors. Pl.’s Mot. 6–8. First, Summer argues that the ALJ violated a well-established principle by

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not analyzing all of her severe impairments. Id. at 7. Second, Summer purports that the ALJ’s

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credibility finding is erroneous. Id. Third, Summer states that the ALJ’s decision ignores the

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opinions of numerous treating physicians and therapists. Id. at 8. Summer thus concludes the
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ALJ’s determination must be reversed. Id. at 10. In the alternative, Summer requests that the case

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be remanded for a new hearing. Id. The Court addresses below each of these arguments in turn.
The ALJ’s Decision Considered All Plaintiff’s Impairments and Effects

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C.

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Summer first argues that the ALJ’s decision fails to include all severe impairments and

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effects, specifically arguing that her “numerous severe medical impairments” included “Crohn’s

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Disease/diverticulitis.” Pl.’s Mot. 6–7. Summer claims that “[n]owhere in the discussion of

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severe or non-severe impairments does the ALJ make any mention of Ms. Summer’s diverticulitis

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. . . .” Id. at 7.

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Contrary to Summer’s argument, the Court finds that the ALJ properly considered all of
Summer’s impairments and effects in his decision. The ALJ specifically noted that when

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United States District Court
Northern District of California

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determining the RFC, he “must consider all of the claimant’s impairments, including impairments

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that are not severe.” AR 21. The ALJ first considered Summer’s testimony that “she has

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diverticulitis and a compromised immune system because of the rheumatoid arthritis treatment.”

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Id. at 24. The ALJ further noted that treatment records from 2010 indicate her recurrent

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diverticulitis as confirmed by computed tomography scan. Id. Aside from the treatment records

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indicating Summer’s recurrent diverticulitis, the ALJ considered additional treatment records from

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2010, and found that Summer “was functioning well as manifested by her ability to carry out

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activities of daily living and hobbies . . . .” Id.

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Given the detailed decision set forth by the ALJ, Summer’s contention that the ALJ failed

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to consider all her impairments is unfounded. See Pl.’s Mot. 6-7. The ALJ specifically stated that

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when making the RFC determination, he “must consider all of the claimant’s impairments,

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including impairments that are not severe.” AR 21. The Court is persuaded by Defendant’s

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argument, stating that the central issue is not whether the ALJ has considered Summer’s

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diverticulitis because the record clearly shows that the ALJ did. Notably, Summer provides no

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argument and points to no evidence in the record showing any legal error or abuse of discretion in

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the ALJ’s determination relating to her Crohn’s Disease/diverticulitis. After reviewing the ALJ’s

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decision and analysis, this Court concludes that the ALJ has considered all severe impairments and

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effects – including diverticulitis in his decision.
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D.

The ALJ Articulated Specific, Clear and Convincing Reasons for the Adverse
Credibility Determination Regarding Plaintiff Summer

Summer next argues that the ALJ erred in failing to fully credit her allegations. Pl.’s Mot.

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7. Summer makes two arguments in support of her position. First, Summer argues that the ALJ

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mischaracterized medical evidence and made a mistake of law when he stated that “the credibility

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of [her] allegations regarding the severity of her symptoms and limitations is diminished because

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those allegations are greater than expected in light of the objective evidence of record.” Id.; AR

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24. Second, Summer argues that the ALJ’s credibility analysis fell short of the “clear and

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convincing” evidence standard. Pl.’s Mot. 8.

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“In assessing the credibility of a claimant’s testimony regarding subjective pain or the
intensity of symptoms, the ALJ engages in a two-step analysis.” Ghanim, 763 F.3d at 1163

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United States District Court
Northern District of California

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(internal quotation marks and citation omitted). “First, the ALJ must determine whether the

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claimant has presented objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotation

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marks and citation omitted). “If the claimant meets the first test and there is no evidence of

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malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms

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if she gives specific, clear and convincing reasons for the rejection.” Id. (internal quotation marks

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and citation omitted). An ALJ may not simply “make a single, conclusory statement that ‘the

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individual’s statements about his or her symptoms have been considered’ or that ‘the statements

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about the individual’s symptoms are (or are not) supported or consistent.’” Brown-Hunter, 806

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F.3d at 493.

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“[T]he ALJ may not discredit a claimant’s testimony of pain and deny disability benefits

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solely because the degree of pain alleged by the claimant is not supported by objective medical

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evidence,” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1994) (internal quotation marks and

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citation omitted), since “subjective descriptions may indicate more severe limitations or

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restrictions than can be shown by medical evidence alone.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 883 (9th Cir. 2006) (citing Titles II & XVI: Assessing Residual Functional Capacity in Initial

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Claims, Social Security Ruling 96-8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996)). However,

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an individual’s statements about pain or other symptoms “will not alone establish that [an
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individual is] disabled.” 20 C.F.R. §404.1529(a). When weighing an individual’s credibility, the

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ALJ may consider the following factors: “claimant's reputation for truthfulness, inconsistencies

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either in claimant's testimony or between her testimony and her conduct, claimant's daily

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activities, her work record, and testimony from physicians and third parties concerning the nature,

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severity, and effect of the symptoms of which claimant complains.” Thomas v. Barnhart, 278

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F.3d 947, 958-59 (9th Cir. 2002).

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Here, the ALJ determined that Summer had reduced credibility based on her RFC to

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perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a) (“Sedentary work

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involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools.”). For the first step of determining Summer’s credibility, the

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United States District Court
Northern District of California

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ALJ determined that Summer met the first requirement since her “medically determinable

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impairments could reasonably be expected to cause the alleged symptoms . . . .” AR 24. For the

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second step of determining Summer’s credibility, the ALJ did not note any evidence of

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malingering; however, the ALJ reasoned that “the intensity, persistence and limiting effects of

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[Summer’s] symptoms [were] not entirely credible to the extent that they [were] inconsistent with

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the residual functional capacity herein.” Id. at 24-25. The ALJ reasoned that the medical

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evidence is consistent with the RFC, but found clear and convincing reasons to discredit Summer

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based on the inconsistency with Summer’s allegations of her disabling limitations. Id. at 25. In

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light of the ALJ’s analysis, the Court finds that the ALJ properly followed the required two-step

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process and did not committed any mistake of law.

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The Court now turns to the evidence in the record that the ALJ relied upon to make an

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adverse credibility determination to assess whether the ALJ provided a clear and convincing

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reason supported by substantial evidence. See Brown-Hunter, 806 F.3d at 488–89; AR 24. The

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ALJ first noted that Summer’s testimony concerning the severity of her symptoms and limitations

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“are greater than expected in light of the objective evidence of record.” Id. While a lack of

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objective medical evidence supporting a plaintiff’s subjective complaints cannot provide the only

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basis to reject a claimant’s subjective symptom testimony, it is one factor that an ALJ can consider

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in evaluating symptom testimony. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997);
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Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot

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form the sole basis for discounting pain testimony, it is a factor the ALJ can consider in his

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credibility analysis.”). Specifically, Summer alleged that her conditions caused her frequent pain,

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fatigue, nausea, double vision, heart palpitations, and other symptoms. AR 24. Yet, the objective

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medical evidence suggested otherwise, which the ALJ noted. Id. at 25 (“It appears that the

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claimant’s flares occur only every few months and do not cause disabling symptoms, as the

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claimant is still able to complete her normal, routine activities.”). As another example, Summer

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alleges that her condition limited her to do normal routine activities such that she could “only walk

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from the car to the garage or from the parking lot to the store,” yet the record indicates that she

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United States District Court
Northern District of California

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attended “Zumba two to three times a week for 60 minutes each session.” Id.
Additionally, the ALJ noted that Summer “has described a wide variety of activities of

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daily living that are compatible with competitive work activity.” Id. at 24. For example, Summer

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admits that “she is able to do light stretching, use the computer, . . . drive, play piano at church

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weekly, and exercise three times a week.” Id.; see Mayes v. Massanari, 276 F.3d 453, 457, 461

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(9th Cir. 2001) (noting that claimant’s “testimony that she could do many daily activities,” such as

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watch television, straighten up her house, shop and wash laundry with help, paint by numbers, do

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puzzles, listen to music, try to exercise, and sometimes go to lunch and dinner with her boyfriend,

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“suggested that she could also work”). Further, the record indicates that Summer has been able to

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go on vacation internationally for a couple of weeks at a time, and spend time between Arizona

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and California for a couple of weeks at a time. AR 24; see Tommasetti v. Astrue, 533 F.3d 1035,

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1040 (9th Cir. 2008) (holding that the ALJ properly doubted the claimant’s testimony regarding

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the extent of his pain and limitations based on his ability to travel to Venezuela for an extended

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time to care for his ailing sister).

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The Court finds nothing in the record or the ALJ’s decision indicating that the ALJ

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mischaracterized the evidence. Moreover, Summer’s ability to engage in extended travel is

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inconsistent with her allegations of extreme limitations is a clear and convincing reason in support

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of ALJ’s decision to reduce Summer’s credibility. AR 24. The minimal objective evidence of any

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significant impairment and the conflicting evidence from Summer herself also constituted
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substantial evidence in support of the ALJ’s clear and convincing reasons that Summer’s

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statements are not entirely credible. Id.; see Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)

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(“[T]he adjudicator may discredit the claimant’s allegations based on inconsistencies in the

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testimony or on relevant character evidence.”). Because the ALJ set forth valid reasons for

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diminishing Summer’s credibility, all supported by substantial evidence in the record, the Court

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finds that the ALJ properly evaluated the credibility of Summer’s subjective complaints.

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E.

The ALJ provided sufficient reasons for why he found Dr. Masood’s report
probative and rejected the opinion of treating physicians and therapists.
First, Summer argues that the ALJ gave preference to an amended report of Dr. Masood

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over the opinions of the aforementioned physicians and therapists (Mr. Randall, Dr. Lewis, and
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United States District Court
Northern District of California

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Dr. Sudduth). Pl.’s Mot. 9. Summer alleges that Dr. Masood’s amended opinion is “far less
restrictive” than the first opinion and was signed a month after Dr. Masood’s only examination of

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Summer. Id. Summer argues that there is no reason for the change of opinion or the issuance of a
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new opinion stated in the record and describes the ALJ’s review of the records as “sketchy at best .
. . .” Id. In response, Defendant argues that Summer’s argument is moot “because the ALJ in fact
limited [Summer] to sedentary work consistent with Dr. Masood’s initial opinion.” Opp’n 12.
Defendant reasons that the ALJ only gave Dr. Masood “some weight” and the RFC of sedentary
work generously considered Summer’s subjective complaints. Id.
Next, Summer argues that the ALJ’s decision improperly ignored the opinions of
numerous treating physicians and therapists – specifically including Dr. Mark Lewis, Dr. Nicole
Suddath, and physical therapist Richard S. Randall. Pl.’s Mot. 8-9. Summer contends that “the
opinions of treating physicians are ordinarily preferred to those of consulting examiners,” and that
these opinions “clearly establish that [she] has no residual functional capacity.” Id. at 9. Summer
avers that “the alleged reasons for disregarding the opinions of the treating physicians are not
supported by the regulations or the record,” and argues that the ALJ failed to articulate a reasoned
basis for deviating from the regulations. Id. In response, Defendant argues that Summer’s
assertion is misleading as the ALJ is permitted to consider many factors in weighing doctors’
opinions aside from treatment relationships. Opp’n 9; see generally 20 C.F.R. § 404.1527

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(Evaluating opinion evidence includes consideration of the examining relationship, treatment

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relationship, supportability, consistency, specialization, and any other factors that tend to support

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or contradict the medical opinion). The Court will discuss below Summer’s objection as to each

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of the doctors in turn.

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“Generally, the opinion of a treating physician must be given more weight than the opinion

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of an examining physician, and the opinion of an examining physician must be afforded more

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weight than the opinion of a reviewing physician.” Ghanim, 763 F.3d at 1160. “If a treating

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physician’s opinion is well-supported by medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with the other substantial evidence in the case record, it will be

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Northern District of California

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given controlling weight.” Id. (internal quotation marks, citation, and brackets omitted).
If the treating physician’s opinion is contradicted by the opinion of another physician, the

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ALJ may reject the treating physician’s opinion but only based upon “specific and legitimate

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reasons that are supported by substantial evidence.” Id. (internal quotation marks and citation

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omitted). In determining how much weight to give a treating physician’s opinion, the ALJ must

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consider the following factors: the length of the treatment relationship and the frequency of

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examination by the treating physician, the nature and extent of the treatment relationship between

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the patient and the treating physician, the supportability of the physician’s opinion with medical

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evidence, and the consistency of the physician’s opinion with the record as a whole.” Id. (internal

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quotation marks, citation, and brackets omitted). “An ALJ may only reject a treating physician’s

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contradicted opinions by providing ‘specific and legitimate reasons that are supported by

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substantial evidence.’” Id.; see also Bray, 554 F.3d at 1228 (“[T]he ALJ need not accept the

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opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and

23

inadequately supported by clinical findings.” (internal quotation marks, citation and alteration

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omitted)).

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i.

Dr. Nayyar Masood

Dr. Nayyar Masood, an internal medicine consultative examiner, assessed Summer. AR

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27. Dr. Masood initially assessed Summer with sedentary RFC, specifically regarding her history

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of rheumatoid arthritis. Id. At the consultative examination, Summer was found to have “limited
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range of motion of the neck with some paraspinal muscle spasm with mild tenderness posteriorly

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about the cervical spine and upper borders of the trapezius.” Id. In the initial report, Dr. Masood

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determined that Summer was capable of occasional postural activities including bending, stooping,

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crouching, crawling, and climbing. Id. However, Dr. Masood submitted a corrected report,

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increasing Summer’s functionality, indicating that Summer was capable of performing a range of

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light residual functional capacity, with lifting and carrying up to 20 pounds occasionally and 10

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pounds frequently. Id. (citing to Ex. 30F, pp. 3-4). The State agency medical consultants adopted

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a majority of Dr. Masood’s assessments and opined that the claimant was capable of less than a

9

full range of light work with frequent postural activities (including bending, stooping, crouching,

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crawling, and climbing). Id.

United States District Court
Northern District of California

11

The ALJ provided “specific and legitimate reasons that are supported by substantial

12

evidence” for considering Dr. Masood’s opinion more probative than those of other doctors. The

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ALJ gave some weight to the opinion of Dr. Masood, the internal medicine consultative examiner

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since the opinion was generally consistent with Summer’s medical treatment history and objective

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medical findings. Id. The ALJ further determined that the RFC of sedentary work as assessed

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took into account the “benign objective findings but also generously consider[ed Summer’s]

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subjective complaints.” Id. at 28. The ALJ provided specific reasoning for why he gave some

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weight to Dr. Masood’s opinions. AR 27. For example, the ALJ considered Summer’s extensive

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medical history, limitations, medical evidence, motor examinations, neurological examinations,

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and environmental limitations in order to assess Summer’s RFC. Id. The ALJ stated that though

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Summer “is limited by rheumatoid arthritis, the condition is under excellent management by her

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rheumatology specialists.” Id. As a result, the ALJ found that “[i]n view of all of the medical

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evidence, medical opinions, and other factors discussed above, the limitations on the claimant’s

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capacities, which were described earlier in this decision, are considered warranted, but no greater

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or additional limitations are justified.” Id. Given the consistency with Summer’s medical history

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and objective medical findings, the Court finds no error in the weight assigned to Dr. Masood’s

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amended opinion.

28

Although Summer takes issue with Dr. Masood’s amending his opinion, Summer fails to
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explain why the sole fact that Dr. Masood amended his opinion would constitute error on the part

2

of the ALJ. The Court notes that the only difference between Dr. Masood’s initial opinion and his

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amended opinion is in the functional capacity assessment (changing the initial assessment of

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“using both hands, she can lift, push or pull up to 5 pounds frequently and 10 pounds

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occasionally” to “using both hands, she can lift, push or pull up to 10 pound frequently and 20

6

pounds occasionally”). AR 648. The ALJ also relied on Dr. Masood’s initial opinion in support

7

of his finding and not his amended opinion. 1 AR 27-28. Though Summer argues that there is no

8

reason for Dr. Masood to have altered his opinion, this argument is inapposite because the ALJ

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relied on Dr. Massod’s initial opinion. Further, the amendment of the Dr. Masood’s opinion also

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does not affect this Court’s review of the ALJ’s decision since the ALJ’s finding that Summer’s

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United States District Court
Northern District of California

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RFC to be consistent with Dr. Masood’s initial opinion is still supported by substantial evidence,

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as explained above.

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ii.

Richard S. Randall, P.T.

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Mr. Randall, a physical therapist, performed a Functional Capacity Evaluation (“FCE”) of

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Summer on December 18, 2012. AR 482. At the request and referral of Scott E. Davis, Attorney

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at Law, Mr. Randall performed an FCE to determine Summer’s current fitness-for-duty and

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functional capacity to perform work for compensation or gain. Id. In his report, Mr. Randall

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recorded his observations of Summer including her cooperation, consistency of performance, pain

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behavior, safety, and quality of movement. Id. at 485-86. Specifically, Mr. Randall stated that

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Summer could not perform work since she was unable to perform “sitting manipulative activities

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longer than 20 minutes maximum at one single interval . . . and had difficulty with reaching

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forward.” Id. at 26. Mr. Randall concluded that Summer “would be unable to perform a job

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description at the sedentary work level on a full-time or even part-time basis.” Id. at 489.
Summer broadly argues that the ALJ’s decision ignored the opinions of Summer’s treating

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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
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physical therapist – Richard S. Randall. Pl.’s Mot. 8-9. Defendant disagrees, however, and states

2

that Summer fails to discuss or challenge the ALJ’s reasoning beyond conclusory assertions of

3

error. Opp’n 9. Further, the Defendant urges this Court to reject Summer’s argument as lacking

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any meaningful details. Id.

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The Court finds that the ALJ did not err by giving little weight to Mr. Randall’s opinions.

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The ALJ reasoned that Mr. Randall’s opinion “[was] brief, conclusory, inadequately supported by

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clinical findings, and inconsistent with the claimant’s admitted activities.” AR 26. The ALJ

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further stated that according to 20 C.F.R. 404.1513(a) and (e)), a “physical therapist is not an

9

acceptable medical source and an opinion that is not from an acceptable medical sources is not
entitled to be given the same weight as a qualifying medical source opinion.” Id. Finally, the ALJ

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United States District Court
Northern District of California

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found that Mr. Randall’s opinion was inconsistent with other medical evidence since he noted

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“significant physical limitations and deficits that were not noted by other physicians who treated

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or examined the claimant.” Id.

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After reviewing ALJ’s reasoning, the record, and the governing authority, the Court

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concludes that Mr. Randall is not an “acceptable medical source[ ]” under 20 C.F.R. §

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404.1513(a). Rather, Mr. Randall is considered an “other source[ ]” that the ALJ may consider

17

pursuant to 20 C.F.R. § 404.1513(d). As a result, “the ALJ is free to reject the testimony of an

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“other source[ ]” by furnishing reasons germane to that particular witness.” Bowser v. Comm'r of

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Soc. Sec., 121 F. App’x 231, 239 (9th Cir. 2005) (holding that the ALJ did not commit legal error

20

by rejecting the opinion of claimant’s physical therapist, a non-medical source, who reached

21

conclusions that differed significantly from both the claimant's testimony and the acceptable

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medical sources) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)).

23

Further, the ALJ noted that Mr. Randall’s assessments were inconsistent with the

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claimant’s admitted activities and other medical evidence. Lay testimony may be discounted if it

25

conflicts with the medical evidence. Bowser, 121 F. App’x at 239. The ALJ’s finding that Mr.

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Randall’s assessment is inconsistent with the record is supported by substantial evidence. Not

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only do Mr. Randall’s assessments conflict with those of Dr. Masood and the state agency

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reviewers, they contradict the testimony provided by Summer at her administrative hearing.
15

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Whereas Mr. Randall opined that Summer could sit for no longer than 20 minutes at one single

2

interval and had a limited ability to perform tasks in the standing position, Summer testified that

3

she was able to sit for three hours total, stand for 30 minutes at a time, and walk for about 50

4

minutes at a time. AR 24, 26. Thus, the Court finds the ALJ committed no error in the weight

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assigned to the opinion of physical therapist, Mr. Randall.

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iii.

Dr. Mark Lewis

Dr. Lewis, Summer’s internist at the time, relied on the report of Mr. Randall and, at

8

Summer’s request, submitted a letter stating that Summer was able to lift and carry 5 to 10 pounds

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rarely. AR 26 (citing Ex. 24F, 4-8). Dr. Lewis further stated that Summer was unable to crawl,

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kneel, climb step ladders, or squat and can only sit and stand for 1 to 2 hours with breaks every

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United States District Court
Northern District of California

7

hour or so. Id. Dr. Lewis opined that “due to the claimant’s age, chronic medical conditions, and

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consistent medication side effects, the claimant would be unable to sustain gainful employment.”

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Id.
Similar to the arguments pertaining to Mr. Randall, Summer generally argues that ALJ’s

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decision incorrectly ignored the opinion of Dr. Lewis without pointing to any specific evidence in

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the record in support of her argument. Pl.’s Mot. 8-9. Defendant disagrees, however, and states

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that Summer fails to discuss or challenge the ALJ’s reasoning beyond conclusory assertions of

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error. Opp’n 9.
The Court finds no error in the ALJ’s conclusion that Dr. Lewis’ opinion merited little

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weight because “the doctor relied almost entirely on the claimant’s subjective complaints and the

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report of the physical therapist, Mr. Randall, for his assessment of the claimant’s condition.” AR

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26. Though the ALJ noted that the doctor included laboratory reports in his letter, he stated that

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the laboratory reports merely supported the existence of medical impairments but did not provide

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an appropriate explanation to support the functional assessment. Id. The ALJ reasoned that

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pursuant to 20 C.F.R. § 404.1527(e) and SSR 96-5 2, Dr. Lewis’ statement was not entitled to

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2

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Social Security Ruling 96-5 states that “[f]rom time-to-time, medical sources may provide
opinions that an individual is limited to ‘sedentary work,’ ‘sedentary activity,’ ‘light work,’ or
similar statements that appear to use the terms set out in our regulations and Rulings to describe
exertional levels of maximum sustained work capability. Adjudicators must not assume that a
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controlling weight or special significance since he did not provide an explanation for the

2

functional assessment with medically acceptable clinical or diagnostic findings. Id. at 26-27.
The reasoning proffered above by the ALJ supports his exercise of discretion to “reject a

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treating physician’s contradicted opinions by providing ‘specific and legitimate reasons that are

5

supported by substantial evidence.’” Ghanim, 763 F.3d at 1163 (internal quotation marks and

6

citation omitted); see also Bray, 554 F.3d at 1228 (“[T]he ALJ need not accept the opinion of any

7

physician, including a treating physician, if that opinion is brief, conclusory, and inadequately

8

supported by clinical findings.” (internal quotation marks, citation and alteration omitted)).

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Moreover, an ALJ may reject a treating physician’s opinion if it is primarily based on a claimant’s

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statements of his own symptoms that have been discounted as incredible. Tommasetti, 533 F.3d at

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United States District Court
Northern District of California

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1041 (holding the ALJ's adverse credibility determination supported the limited rejection of a

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doctor’s opinion since it was primarily based on the claimant’s subjective comments concerning

13

his condition). Given the ALJ’s adverse credibility determination of Summer, as discussed above,

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the ALJ has properly rejected Dr. Lewis’ opinion since it was primarily based on Summer’s

15

subjective comments concerning her condition and the physical therapist’s assessment. See id.

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Thus, the Court finds that the ALJ committed no error in the weight assigned to the opinion of Dr.

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Lewis.

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iv.

Dr. Nicole Sudduth

Following Dr. Lewis, Summer was under the care of another primary care physician, Dr.

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Sudduth. AR 27. On September 9, 2013, Dr. Sudduth submitted an Arthritis Medical Source

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Statement, in which she opined specific details of Summer’s restrictive limitations. Id. For

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example, Dr. Sudduth indicated that Summer could sit for less than two hours in an eight-hour

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day, stand and walk for less than two hours in an eight-hour day, rarely lift and carry less than 10

24

pounds, needed unscheduled breaks, and would be off task from performing even simple work

25

tasks for 25% of the workday or more. Id.

26

Summer reiterates the same argument as for the other doctors discussed above, summarily

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medical source using terms such as ‘sedentary’ and ‘light’ is aware of our definitions of these
terms.”
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1

contending that the ALJ’s decision also incorrectly ignored the opinion of Dr. Sudduth. Pl.’s Mot.

2

8-9. Defendant also disagrees and states that Summer fails to discuss or challenge the ALJ’s

3

reasoning beyond her conclusory assertions of error. Opp’n 9.

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The Court finds that substantial evidence supports the ALJ’s conclusion that the lack of

5

rationale for Dr. Sudduth’s conclusory statements rendered her of “limited probative value

6

because the objective evidence [did] not support the highly restrictive limitations assessed.” AR

7

27. Specifically, the ALJ found that the objective medical evidence was inconsistent with

8

Summer’s activities of daily living. Id. Further, the ALJ noted that Dr. Sudduth did not have a

9

longitudinal treatment relationship with Summer and that Dr. Sudduth primarily summarized
Summer’s subjective symptoms, her diagnoses, and course of treatment. Id. The ALJ reasoned

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United States District Court
Northern District of California

10

that Dr. Sudduth did not provide specific medically acceptable clinical or diagnostic findings with

12

respect to the Summer’s functional abilities and stated that “the checklist-style form appears to

13

have been completed as an accommodation to the claimant and includes only conclusions

14

regarding functional limitations without any rationale for those conclusions.” Id.

15

In light of the ALJ’s reasoning, the ALJ's decision to give little weight to Dr. Sudduth’s

16

opinions is supported by substantial evidence in the record. Not only do Dr. Sudduth’s

17

assessments conflict with those of Dr. Masood and the state agency reviewers, they contradict the

18

testimony provided by Summer at her administrative hearing. Whereas Dr. Sudduth opined that

19

Summer could rarely lift and carry less than 10 pounds, Dr. Masood reported that Summer was

20

capable of performing a range of light residual functional capacity, with lifting and carrying up to

21

20 pounds occasionally and 10 pounds frequently. Id. Moreover, Dr. Sudduth stated that Summer

22

could sit for less than two hours a day and walk for less than two hours a day; however, Summer

23

testified being able to sit for three hours total, stand for 30 minutes at a time, and walk for about

24

50 minutes at a time. AR 24, 27. Lastly, Dr. Sudduth’s assessment of Summer’s restrictive

25

limitations is incompatible with Summer’s admitted activities including her ability to do light

26

stretching, use the computer, take Zumba classes several days per week, drive, play piano at

27

church weekly, and exercise three times a week. Id. Thus, the Court finds no error in the weight

28

assigned to the opinion of Dr. Sudduth.
18

F.

1

Conclusion
This Court’s task in performing the very limited review permitted by law is to determine

2
whether the ALJ applied the correct legal standards and whether his written decision is supported
3
by substantial evidence in the record. If the evidence could support either a favorable or an
4

unfavorable outcome for Summer, the ALJ’s decision must be upheld. Rounds, 807 F.3d at 1002.

5
In this case, the ALJ applied the correct legal standards and his findings are supported by
6
substantial evidence.
7
8
9

IV.

ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:

10
1.

Plaintiff Terree Summer’s motion for summary judgment is DENIED; and

2.

Defendant’s motion for summary judgment is GRANTED.

United States District Court
Northern District of California

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The Clerk is instructed to close the file.
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Dated: July 14, 2017
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______________________________________
BETH LABSON FREEMAN
United States District Judge

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