Farinas v. Commissioner of Social Security

Filing 22

JUDGMENT and ORDER: (1) Adopting Report and Recommendation; (2) Denying Plaintiff's Motion for Summary Judgment; and (3) Granting Defendant's Cross-Motion for Summary Judgment [ECF No. 18 , 19 , 21 ]. Signed by Judge Gonzalo P. Curiel on 3/31/2021. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MANUELA FARINAS,

Case No.: 19-cv-1760-GPC-WVG
Plaintiff,

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v.

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JUDGMENT AND ORDER:

ANDREW SAUL, Commissioner of
Social Security,

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(1) ADOPTING REPORT AND
RECOMMENDATION;

Defendant.

(2) DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT; AND

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(3) GRANTING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT

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[ECF Nos. 18, 19, 21]

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Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act

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(“Act”) seeking judicial review of the final administrative decision of the Commissioner

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of the Social Security Administration (“Commissioner”), in which the decision denied

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Plaintiff’s application for disability benefits under Title II of the Act (“Title II benefits”).

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(ECF No. 1.) The parties filed summary judgment motions. (See ECF Nos. 18, 19.) On

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February 3, 2021, Magistrate Judge William V. Gallo issued a report and

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recommendation (“R&R”) recommending that Plaintiff’s motion for summary judgment

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be denied and that Defendant’s cross-motion for summary judgment be granted. (ECF

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No. 21.) Plaintiff did not file an objection. After considering all related documents, the

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Court ADOPTS the R&R. Accordingly, the Court DENIES Plaintiff’s motion for

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summary judgment and GRANTS Defendant’s cross-motion for summary judgment.

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I.

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BACKGROUND
After reviewing the R&R and the Administrative Record, the Court recites the

facts as substantially presented in the R&R,1 (ECF No. 21 at 4–11. 2)

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A.

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Plaintiff was born on March 10, 1963. (AR 1784. 3) In or around 2000, Plaintiff

Plaintiff’s Medical Condition

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worked as a caregiver. (See AR 1785.) Her job duties centered on providing patient

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care. (Id.) Typical responsibilities included bathing, dressing, cooking for and feeding

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patients, housekeeping, and cleaning. (Id.) Plaintiff’s position as a caregiver necessarily

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involved physical activity, namely “sitting, standing, walking, bending, twisting,

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reaching, pushing, pulling, lifting (100+ pounds), squatting, kneeling, climbing, crawling,

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overhead-type work, keyboarding, grasping, and torquing [sic].” (Id.)

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Throughout her years as a caregiver, Plaintiff experienced a series of injuries.
Most, but not all of her injuries were job-related. In 2007, Plaintiff was rear-ended in a

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Section II.A, infra, discusses the legal basis allowing the district court to assume the
correctness of the magistrate judge’s findings.

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References to specific page numbers in a document filed in this case correspond to the
page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system. However,
page numbers in administrative records are annotated as discussed infra note 3.
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When applicable, the Court cites directly to the page numbers in the Administrative
Record (“AR”), ECF Nos. 12–13, in order to avoid any confusion or misinterpretation of
the Administrative Law Judge’s (“ALJ”) findings on Plaintiff’s disability status.
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car accident, which resulted in a neck injury. (AR 1791.) After Plaintiff went through

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physical therapy, her symptoms fully resolved. (Id.) Since then, Plaintiff’s injuries arose

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in the course of her employment. In 2009, Plaintiff reported experiencing pain in both of

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her wrists as a result of carrying groceries for her patients. (Id.) In 2010, Plaintiff fell at

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work, resulting in lower back pain. (Id.) After seeking and receiving treatment,

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Plaintiff’s back issues resolved within two weeks. (Id.)

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Most seriously, on or around January 4, 2011, Plaintiff suffered a workplace injury

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while attempting to dress an elderly patient who weighed approximately 180 pounds.

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(AR 1785.) As a result of her injury, Plaintiff reported “experiencing pain within both of

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her shoulders, knees and hips as well as within her low back and head.” (Id.) Plaintiff’s

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injury prompted her to seek treatment from Dr. Kenneth Romero, who had been treating

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Plaintiff in his capacity as a pain specialist since September 2009. (See AR 1204, 1935.)

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Plaintiff has not returned to work to any extent since June 15, 2011. (AR 1786.)

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B.

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Since at least 2011, Dr. Romero treated Plaintiff for numerous physical conditions

Dr. Romero’s Treatment of Plaintiff and Medical Examinations

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relating to bilateral arm pain, bilateral leg pain, right shoulder and back pain, and right

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rotator cuff repair. (See AR 103.) Dr. Romero also treated Plaintiff for her mental

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conditions, namely depression and generalized anxiety. (See id.) Dr. Romero’s findings

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were addressed extensively in the Administrative Law Judge’s (“ALJ”) final decision on

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September 5, 2018. (See AR 26, 29–31.)

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1.

Dr. Romero’s Progress Notes

Between 2012 and 2016, Dr. Romero reported Plaintiff was responding well to the

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prescribed medication for pain management and observed that Plaintiff’s condition

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continued to improve. (See, e.g., AR 759, 801, 1125, 1235, 1261, 1747, 1750.) Further,

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as to Plaintiff’s lower back and bilateral knee pain stemming from her 2011 workplace

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injury, Dr. Romero conducted ongoing physical examinations and documented

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observations such as mild to moderate tenderness, and normal strength and gait. (See,

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e.g., AR 584–85, 609–10, 714–15, 720, 730, 736–37, 741–42, 746–47, 1112, 1117, 1127,

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1133, 1144.)

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Additionally, Dr. Romero assessed the state of Plaintiff’s mental health on an

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ongoing basis. Dr. Romero’s progress notes reflected that Plaintiff “has no difficulty

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focusing on a subject,” and “no complaints of dizziness or vertigo.” (AR 25–26.) Dr.

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Romero’s notes also indicated a normal CT scan of Plaintiff’s head in August 2015, and

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discussed her ability to “attend to and follow commands normally and with intact

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memory.” (Id.) In 2015, Plaintiff was also “exercising by walking half a mile to one

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mile three times a week.” (AR 31.) Finally, Dr. Romero’s notes expressed that, despite

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Plaintiff’s disabling condition, Plaintiff “[took] a number of trips, primarily to Mexico

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that involve[d] taking the bus which [could] last up to 9 hours,” and “even able to make

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the international trip to the Philippines where she stayed for 3 months.” (AR 29–30.)

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2.

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Dr. Romero’s Treating Source Statement

On April 28, 2016, Dr. Romero drafted and signed a Treating Source Statement.

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In it, he concluded that Plaintiff was limited in her ability to work due to lower back and

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leg pain. Specifically, Dr. Romero found that Plaintiff:

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(1)

would be off work 25 percent of the time due to trouble concentrating;

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(2)

would miss more than four days of work per month;

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(3)

could occasionally lift, but no more than 20 pounds, or else the

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lifting/carrying would worsen Plaintiff’s lower back pain;

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(4)

could sit four hours per day, and stand or walk three hours per day;

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(5)

required a sit/stand option at work;

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(6)

could frequently reach in all directions;

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(7)

could occasionally push and pull with the bilateral upper extremities;

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(8)

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could occasionally climb ramps and stairs, but never climb ladders and
scaffolds;

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(9)

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(10) could never crawl;

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(11) could occasionally operate a motor vehicle;

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(12) could occasionally be exposed to extreme temperatures; and

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(13) could never be exposed to unprotected heights, pulmonary irritants, and

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could rarely balance, stoop, kneel, or crouch;

vibrations.
(See AR 1204–07.)

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C.

Statement by Dr. Levine, Examining Physician

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As part of a worker’s compensation dispute in state court due to the workplace

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injury that occurred around January 4, 2011, Plaintiff also went through a physical and

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mental examination with Dr. Sidney Levine. On March 12, 2012, Dr. Levine prepared an

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Initial Chart Note. In it, Dr. Levine stated Plaintiff “is disabled from carrying out her

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regular work activities.” (AR 1796).

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D.

The Initial ALJ Decision and Remand

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On November 15, 2013, Plaintiff filed an application for Title II benefits, alleging

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disability commencing June 15, 2011. (See AR 158.) After her application was denied

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initially and again upon reconsideration, (see AR 186–87), Plaintiff requested an

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administrative hearing. (See AR 192–98.) On September 19, 2016, the ALJ found that

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Plaintiff was not disabled within the meaning of Title II. (See AR 158–68.)

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Plaintiff appealed, and on July 31, 2017, the Appeals Council vacated the ALJ’s
decision and remanded Plaintiff’s case to the ALJ for resolution of three specific issues:
(1)

“The hearing decision indicates that the claimant has severe mental

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impairments, but does not contain rationale for B and C criteria rated using

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the special technique described in 20 CFR 404.1520a.”;

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(2)

“The residual functional capacity should address the claimant’s maximum

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ability to perform work related activities such as her ability to perform

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simple, detailed, and complex tasks (Social Security Rule 96-8p).”; and

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(3)

“On April 26, 2016, approximately a month prior to the hearing, 736 pages

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[of] medical records document was submitted into the F section of the

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electronic file. The Administrative Law Judge did not enter this evidence

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into the record, consider it, or label it as duplicative.”

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(See AR 174–76.)

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E.

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The Final ALJ Decision

On remand, the ALJ convened a hearing on March 29, 2018 regarding Plaintiff’s

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case. (See AR 21, 42–70.) On September 5, 2018, the ALJ issued his final decision,

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ultimately concluding that Plaintiff was not disabled within the meaning of Title II of the

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Act. After first concluding that “[t]he claimant last met the insured status requirements

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of the Social Security Act on December 31, 2016,” (AR 24,) the ALJ performed a five-

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step sequential evaluation to determine whether Plaintiff was disabled pursuant to 20

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C.F.R. § 404.1520(a)(4).4

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On step one: “The claimant did not engage in substantial gainful activity during the

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period from her alleged onset date of June 15, 2011 through her date last insured of

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December 31, 2016 (20 CFR 404.1571 et seq.).” (AR 24.)

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On step two: “Through the date last insured, the claimant had the following severe

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impairments: degenerative disc disease of the lumbar spine; status post bilateral shoulder

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surgeries with residual bilateral shoulder pain; major depressive disorder; and post-

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traumatic stress disorder (PTSD) (20 CFR 404.1520(c)).” (AR 24.) In so finding, the

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ALJ cited to the evidentiary record as follows:

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A discussion on what each step entails may be found infra pages 13–14 of this Order.
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• “Examinations show normal range of motion of the hips with no neurological
deficits.”;

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• “No severe hip impairment is established.”;

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• “Neurologist Edward Friedman, M.D., who evaluated the claimant in May 2014

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did not find evidence of any neurological disorder and opined that there was no

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evidence to warrant further neurological testing. No severe neurological

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impairment is established in connection with these complaints.”;

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• “MRI scans of the cervical spine in August 2012 and April 2014 were
completely normal. CT scan of the cervical spine in August 2015 was normal.

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Examinations of the cervical spine have been mostly normal other than some

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reduced range of motion with tenderness[,] and paraspinal muscle spasms on

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rare occasions.”;

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• “MRI scan of the left knee in May 2012 was normal. X-ray of the left knee in
November 2012 was negative. MRI of the left knee in September 2012 was
only remarkable for chondromalacia of the medical margin of the patella. MRI
of the right knee in May 2012 was normal. Examinations of the knees reveal
full range of motion of the knees. No severe knee impairment is established by
the record.”;
• “EMG/NCV [electromyography and nerve conduction velocity] testing in July
2012 was normal with no evidence of carpal tunnel syndrome. Further, the
claimant has been consistently neurologically intact. This is not a severe
impairment.”;
• “MRI scan of the left elbow in September 2012 showed mild distal triceps
tendinopathy.”;
• “Attending physician Romero documented no complaints of dizziness or
vertigo. CT scan of [Plaintiff’s] head in August 2015 was normal. Neurologist
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Edward Friedman, M.D., who evaluated the claimant in May 2014 did not find

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evidence of any neurological disorder and opined that there was no evidence to

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warrant further neurological testing. No severe neurological impairment is

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established in connection with the complaints of vertigo and dizziness.”;

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• “There is no evidence of continued alcohol abuse. Therefore, her history of

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alcohol abuse, in reported full remission, is not a severe impairment.”; and

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finally,

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• “There are no records that indicate that the claimant’s asthma had been a
significant problem requiring ongoing or regular treatment. Examinations of
her lungs have been normal. Her asthma is not a severe impairment.”
(AR 24–25 (internal references to evidentiary exhibits omitted).)

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On step three: “Through the date last insured, the claimant did not have an

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impairment or combination of impairments that met or medically equaled the severity of

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one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

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404.1520(d), 404.1525 and 404.1526).” In so finding, the ALJ cited to the evidentiary

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record as follows:

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• “In understanding, remembering, or applying information, the claimant had a

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mild limitation. Progress notes from attending physician Romero show that the

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claimant is able to attend to and follow commands normally and with intact

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memory. Mental status examinations from PsyCare and Dr. Chavez show that

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the clamant has been mostly cognitively intact since he began treating the

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claimant in 2011, except for some visits in which he noted poor memory. This

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limitation is consistent with the opinion of Dr. Nicholson [a physician who

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conducted a consultative psychiatric evaluation of Plaintiff].”;

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• “In interacting with others, the claimant had a mild limitation. This limitation is
consistent with the opinion of Dr. Nicholson. The record shows that even with
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the claimant’s physical and mental impairments, she has a fairly good support

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network consisting of her immediate family, relative, and friends.”;

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• “With regard to concentrating, persisting, or maintaining pace, the claimant had

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a moderate limitation. Progress notes from Dr. Romero show that the claimant

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has no difficulty focusing on a subject. Mental status examinations from

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PsyCare and Dr. Chavez show that claimant has been mostly cognitively intact

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since he began treating claimant in 2011, except for some visits in which he

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noted poor concentration. While Dr. Nicholson opined that the claimant has a

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mild limitation in this domain, I have given the claimant the benefit of the doubt

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and found a moderate limitation is indicated when considering the combined

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effects of her depression, anxiety, and chronic pain.”; and, finally,

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• “As for adapting or managing oneself, the claimant had experienced a moderate

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limitation[,] . . . one inpatient psychiatric hospitalization in July 2014.

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However, mental health treatment records show that the claimant’s symptoms

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have stabilized with treatment; there is no evidence of suicidal ideation, suicide

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attempts, panic attacks, agoraphobia or other exacerbations. She has been able

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to live normally and even take a number of trips, primarily to Mexico that can

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require up to a 9 hour bus ride . . . . She even had a 3 month stay in the

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Philippines. Because the claimant’s mental impairments did not cause at least

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two ‘marked’ limitations or one ‘extreme’ limitation, the ‘paragraph B’ criteria

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were not satisfied.”

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(AR 26–27 (internal references to evidentiary exhibits omitted).)

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On step four, the ALJ first concluded that, “through the date last insured, the

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claimant had the residual functional capacity to perform light work as defined in 20 CFR

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404.1567(b) except for occasional bending, stooping, crouching, climbing stairs,

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kneeling; no crawling or climbing ladders; and due to her depression and anxiety, she is

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limited to no complex or highly detailed work but can do simple or mildly detailed

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work.” (AR 27.) In so finding, the ALJ stated that he “considered all symptoms and the

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extent to which these symptoms can reasonably be accepted as consistent with the

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objective medical evidence and other evidence, based on the requirements of 20 CFR

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404.1529 and SSR [Social Security Ruling] 16-3p.” (AR 27–28.) Of note, the ALJ

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commented that Plaintiff’s course of treatment “generally reflected a conservative

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approach.” (AR 29.) Even in the context of mental health, “the claimant’s symptoms

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have stabilized with conservative mental health treatment.” (Id.)

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“The [ALJ] has also considered opinion evidence in accordance with the

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requirements of 20 CFR 404.1527.” (AR 28.) At the same time, the ALJ decided to give

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“very little weight” to Dr. Romero’s opinion that was articulated in the Treating Source

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Statement, supra Section I.B.2. The ALJ decided that Dr. Romero’s opinions in the

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Treating Source Statement were “not substantiated by objective findings,” but instead

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“based on the claimant’s subjective account of what she could do.” (AR 30–31.) Since

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this Treating Source Statement is at the crux of Plaintiff’s challenge, the Court will

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further discuss the ALJ’s rationale infra Section III.A.1.

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As another part of step four, the ALJ determined that Plaintiff cannot perform any

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of her past relevant work. (AR 32.) The ALJ accepted the testimony of the vocational

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expert on the issue. (Id.)

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Finally, at step five, based on Plaintiff’s residual functional capacity, age,

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education, and work experience, the ALJ determined that Plaintiff was not “disabled,” for

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she can adjust to other work. (See AR 32–33.) Specifically:

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• “The claimant was born on March 10, 1963 and was 53 years old, which is

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defined as a younger individual age 18-49, on the date last insured. The

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claimant subsequently changed age category to closely approaching advanced

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age (20 CFR 404.1563).”;

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• “The claimant has a marginal education and is able to communicate in English

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(20 CFR 404.1564).”;
• “Transferability of job skills is not material to the determination of disability

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because using the Medical-Vocational Rules as a framework supports a finding

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that the claimant is ‘not disabled,’ whether or not the claimant has transferable

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job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).”; and

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• “Through the date last insured, considering the claimant’s age, education, work

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experience, and residual functional capacity, there were jobs that existed in

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significant numbers in the national economy that the claimant could have

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performed (20 CFR 404.1569 and 404.1569a).”
(AR 32 (internal reference to evidentiary exhibits omitted).)

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Based on this five-step analysis, the ALJ decided that “[Plaintiff] was not disabled

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under sections 216(i) and 223(d) of the Social Security Act through December 31, 2016,

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the date last insured.” (AR 33.)

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On July 15, 2019, the Appeals Council denied Plaintiff’s request for further

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review, noting “the reasons [Plaintiff cited in her appeal] do not provide a basis for

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changing the Administrative Law Judge’s Decision.” (See AR 1–8.) By so finding, the

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Appeals Council confirmed the ALJ’s determination of non-disability and denied

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Plaintiff Title II benefits.

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F.

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On September 13, 2019, Plaintiff initiated this litigation. (ECF No. 1.) Pursuant to

The Instant Lawsuit

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42 U.S.C. § 405(g), Plaintiff seeks judicial review of Defendant’s denial of Title II

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benefits. (See id.) On October 11, 2019, Plaintiff filed a First Amended Complaint,

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which serves as the operative complaint in this matter. (ECF No. 6.) On December 20,

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2019, Magistrate Judge Gallo issued a Scheduling Order on cross-summary judgment

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motions. (ECF No. 14.) On February 20, 2020, Plaintiff timely filed her summary

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judgment motion. (ECF No. 18.) On April 16, 2020, Defendant timely filed its cross-

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summary judgment motion (and opposition to Plaintiff’s summary judgment motion).

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(ECF No. 19.) On May 19, 2020, Plaintiff replied to Defendant’s cross-summary

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judgment motion. (ECF No. 20.)

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On February 3, 2021, Magistrate Judge Gallo issued an R&R recommending

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Plaintiff’s motion for summary judgment be denied and Defendant’s cross-motion for

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summary judgment be granted. (ECF No. 21.) No objections have been filed by either

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party by the February 11, 2021 deadline provided in the R&R.

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II.

STANDARD OF REVIEW

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A.

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The district court’s duties in connection with an R&R of a magistrate judge are set

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forth in 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b). The district judge

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must “make a de novo determination of those portions of the report . . . to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court

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need not review de novo those portions of an R&R to which neither party objects. See

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Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (citing United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)).

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The Magistrate Judge’s R&R

Specifically regarding the magistrate judge’s findings of fact, when no objections

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are filed, the Court may assume the correctness of it and decide the motion on the

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applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.

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1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Here, because

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no objections have been filed, the Court assumes the correctness of the Magistrate

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Judge’s factual findings and substantially adopts them in full.

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B.

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A court “will disturb the denial of benefits only if the decision contains legal error

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or is not supported by substantial evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038

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(9th Cir. 2008) (quotations omitted). “Substantial evidence is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Id. (quotation

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omitted). “[T]he evidence must be more than a mere scintilla but not necessarily a

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preponderance.” Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation

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omitted). The court will uphold the ALJ’s conclusion when the evidence is susceptible to

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more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

The Commissioner’s Final Agency Decision

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2005) (citation omitted). “When evidence reasonably supports either confirming or

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reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”

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Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (citing

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

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The Court must consider the record as a whole, weighing both the evidence that

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supports and detracts from the ALJ’s conclusions. Desrosiers v. Secretary of Health &

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Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). If the evidence is

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inconclusive, “questions of credibility and resolution of conflicts in the testimony are

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functions solely of the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.

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1982) (quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)).

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DISCUSSION

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For purposes of the Social Security Act, a claimant is disabled if she is unable “to

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engage in any substantial gainful activity by reason of any medically determinable

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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

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U.S.C. § 423(d)(1)(A). ALJs determine such “disability” pursuant to a five-step

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evaluation process under 20 C.F.R. § 404.1520(a)(4), where generally speaking, the ALJ

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considers: (1) the claimant’s work activity, i.e., “substantial gainful activity”; (2) the

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severity of claimant’s medical impairments; (3) whether the severe medical impairments

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satisfy the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1 and meets the duration

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requirement (where if it does, the claimant is deemed disabled and if not, the ALJ moves

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on to step four); (4) the claimant’s residual functional capacity (“RFC”) and past relevant

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work; and (5) the possibility of adjusting to other work, based on the claimant’s RFC,

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age, education, and work experience. The claimant carries the initial burden of proving

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disability. See 42 U.S.C. § 423(d)(5). “The burden of proof is on the claimant at steps

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one through four, but shifts to the Commissioner at step five.” Bray v. Comm’r of Soc.

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Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (citation omitted). And concerning the

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claimant’s possibility of adjusting to other work (step five), the ALJ may call upon a

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“vocational expert” to testify what jobs the claimant would be able to do given his/her

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RFC, and the availability of such jobs in the national economy. Garrison v. Colvin, 759

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F.3d 995, 1011 (9th Cir. 2014) (citation omitted).

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Here, the ALJ’s five-step analysis concluded that Plaintiff was not disabled. (See

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AR 21–34.) Plaintiff challenges this on two grounds. First, Plaintiff argues that the ALJ

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failed to properly accord the medical evidence of her treating physician and examining

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physician (Dr. Romero and Dr. Levine, respectively). (ECF No. 18-1 at 6–21.) Second,

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Plaintiff argues that the ALJ’s finding of Plaintiff’s “moderate difficulties” (in terms of

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mental impairments) is inconsistent with the lack of limitations regarding concentration,

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persistence, or pace in Plaintiff’s RFC. (Id. at 22–23.)

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The Magistrate Judge found that the ALJ properly assessed the opinion evidence of

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Plaintiff’s treating and examining physicians. (See ECF No. 21 at 13–19.) The

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Magistrate Judge also concluded that the ALJ properly assessed Plaintiff’s RFC. (Id. at

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19–21.)

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The Court agrees with the Magistrate Judge and finds that the ALJ did not err. The

2

ALJ did not broadly reject Dr. Romero’s opinion; the ALJ’s reservation was specifically

3

against Dr. Romero’s Treating Source Statement from April 28, 2016. The ALJ took

4

issue with this document because several conclusions were made without objective

5

evidentiary support to support the conclusion that Plaintiff cannot conduct light work

6

with certain limitations. While Plaintiff had severe medical ailments, ultimately they

7

were controlled. In addition, it was acceptable for the ALJ to not explicitly mention Dr.

8

Levine’s opinion, since the substantive content of it (i.e., those that were not conclusory

9

on the issue of disability) was incorporated in other parts of the decision. Finally, the

10

ALJ appropriately determined Plaintiff’s RFC. As to Plaintiff’s protests, case law

11

supports the proposition that a claimant may be able to perform simple or mildly detailed

12

work, despite “moderate limitations” in certain mental capabilities (which was a decision

13

that the ALJ was already making under “the benefit of the doubt,” (AR 26)).

14

A.

15

Plaintiff argues that the ALJ failed to analyze medical opinion evidence, namely

The Opinions of Plaintiff’s Physicians

16

the opinions of Plaintiff’s treating physician Dr. Romero and Plaintiff’s examining

17

physician Dr. Levine. The Court ultimately concludes that the ALJ gave appropriate

18

weight to each opinion, and that the ALJ’s findings (to an extent, in spite of the opinions)

19

were supported by substantial evidence and did not contain legal error.

20

“Regardless of its source, [an ALJ] will evaluate every medical opinion” it

21

receives. 20 C.F.R. § 404.1527(c). Generally, the treating physician’s opinion is

22

afforded the greatest weight. However, its authority is not absolute; “[the treating

23

physician’s opinion] is not binding on an ALJ with respect to the existence of an

24

impairment or the ultimate determination of disability.” Batson v. Comm’r of Soc. Sec.

25

Admin., 359 F.3d 1190, 1194–95 (9th Cir. 2004) (quoting Tonapetyan v. Halter, 242 F.3d

26

1144, 1149 (9th Cir. 2001)). Specifically, “an ALJ may discredit treating physicians’

27
28

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opinions that are conclusory, brief, and unsupported by the record as a whole, or by

2

objective medical findings.” Id. at 1195 (internal citations omitted).

3

Further, “conflict between treatment notes and a treating provider’s opinions may

4

constitute an adequate reason to discredit the opinions of a treating physician or another

5

treating provider.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citations

6

omitted); cf. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (requiring “clear and

7

convincing reasons that are supported by substantial evidence” if the ALJ is rejecting the

8

“uncontradicted opinion” of the treating physician). Indeed, deference to the treating

9

physician’s opinion is only given if the opinion is “not inconsistent with the other

10

substantial evidence in [the claimant’s] case record.” See 20 C.F.R. § 404.1527(c)(2).

11

And if the treating physician’s opinion is not given controlling weight, the following

12

factors determine the appropriate weight: (1) length of the treatment relationship and the

13

frequency of the examinations, (2) nature and extent of the treatment relationship, (3)

14

supportability, (4) consistency, (5), specialization, and (6) other factors the claimant

15

presents. See id. § 404.1527(c).

16
17
18

1.

Dr. Romero’s Opinion
a.

Nature of the Dispute

Primarily at issue in this case is Plaintiff’s assertion that the ALJ did not accord the

19

appropriate weight to Dr. Romero, who is the treating physician for Plaintiff. But the

20

Court first clarifies this assertion’s scope. The ALJ’s decision is actually replete with Dr.

21

Romero’s observations. For example, when determining severe medical impairments

22

under step two of the disability analysis, the ALJ refers to a variety of Dr. Romero’s

23

progress notes. (See AR 24–25.) This is true for step three as well, where progress notes

24

from Dr. Romero show “that the claimant is able to attend to and follow commands

25

normally and with intact memory,” “that the claimant has no difficulty focusing on a

26

subject,” etc. (AR 26.) Further, in analyzing step four: “Repeat physical examinations

27
28

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by treating sources, including Dr. Romero, do not substantiate the claimant’s allegations

2

of pain and limitation . . . .” (AR 29.) Indeed, “physician Romero noted that the claimant

3

is ‘stable’ regarding her pain as it is well managed.” (Id.)

4

Rather, Plaintiff’s frustration is targeted at the ALJ giving “very little weight” to

5

Dr. Romero’s Treating Source Statement from April 28, 2016. (AR 31.) Upon close

6

review of the Treating Source Statement and the ALJ decision, it is plain that the Treating

7

Source Statement was carefully considered, compared with the record evidence, and

8

given the weight that it deserved.

9

b.

The Treating Source Statement and the ALJ Decision

10

Dr. Romero’s Treating Source Statement opined that Plaintiff is likely to be: “off

11

task” 25% of a typical workday, absent from work more than 4 days per month, able to

12

lift or carry up to 20 pounds at most, able to sit a total of 4 hours in an 8-hour workday,

13

able to stand or walk for a total of 3 hours in an 8-hour workday, needing the option to sit

14

or stand at will but not needing an assistive device to ambulate, having some limitations

15

in the left and right arms/hands (such as only occasionally being able to push and pull),

16

occasionally able to climb ramps and stairs but never for ladders and scaffolds, and rarely

17

able to balance, stoop, kneel, crouch and never able to crawl. (See AR 1204–07.)

18

Further, the Treating Source Statement opined that there will be certain environmental

19

limitations for Plaintiff. She can occasionally operate a motor vehicle and be exposed to

20

temperature extremes, but can never be exposed to unprotected heights, pulmonary

21

irritants, and vibrations. (See AR 1207.)

22

The ALJ decided to not give this document much weight because he concluded

23

that the opinions contained in it were “not substantiated by objective findings,” but

24

instead “based on the claimant’s subjective account of what she could do.” (AR 30–31.)

25

The ALJ reached this conclusion because while the Treating Source Statement stated that

26

Dr. Romero’s findings were based on the diagnoses of lumbar spondylosis, disc disorder,

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28

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neuritis, and idiopathic polyneuropathy, (AR 1204 (item 3),) the record evidence did not

2

support such diagnoses.

3

Concerning the diagnoses of lumbar spondylosis, disc disorder, and neuritis, the

4

ALJ discussed how “imaging showed only mild degenerative changes” and how Dr.

5

Romero’s own notes indicated that Plaintiff only had “mild” degenerative disc disease.

6

(AR 31 (citing AR 585).)

7

As to the diagnoses of idiopathic polyneuropathy, the ALJ concluded that there

8

was no evidence in the record to support this disorder. (AR 31.) The ALJ referred to

9

four sources of evidentiary exhibits in reaching his conclusion. First, the ALJ referenced

10

Dr. Romero’s January 22, 2014 office note. “Neither the lumbar spine impairment nor

11

the left knee impairment limits the claimant’s ability to walk as indicated by Dr.

12

Romero’s own examinations that reveal no motor weakness in the lower extremities;

13

intact reflexes; no sensory diminishment; and a normal gait.” (AR 31 (citing AR 714–

14

15).) Second, the ALJ referred to Dr. Romero’s May 19, 2015 office note, in which Dr.

15

Romero documented that Plaintiff was walking half a mile to a mile, three times a week.

16

(AR 31 (citing AR 1120).) Third, the ALJ referred to Dr. Romero’s November 14, 2016

17

office note, (AR 1750,) where Plaintiff’s pain was stable and well managed with 3

18

Percocet per day. (AR 31.) The ALJ also referenced Dr. Romero’s February 29, 2016

19

and August 3, 2016 office notes, (AR 1235, 1261,) which evinced similar pain

20

management and Percocet prescriptions. (See AR 31.) Fourth and finally, the ALJ

21

referenced Plaintiff’s travel records to argue that they conflicted with Dr. Romero’s

22

opinions on Plaintiff’s ability to perform certain tasks. (See AR 31 (citing AR 1110,

23

1113–14, 1258, 1712, 1741, 1751, 1756, 2499).)

24

c.

The Evidentiary Record

25

The Magistrate Judge found that there was no impropriety in the ALJ’s decision

26

since the underlying evidentiary record controverts Dr. Romero’s broad conclusions of

27
28

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Plaintiff’s disability status. The Court agrees with the Magistrate Judge’s finding

2

because the Treating Source Statement’s claims of “diagnoses” are at odds with the rest

3

of the administrative record. Important to note here, the ALJ is analyzing the Treating

4

Source Statement at stage four, i.e., determining Plaintiff’s RFC, not medical

5

impairments generally. The RFC is “what [one] can still do despite [one’s] limitations

6

. . . based on all the relevant evidence in [one’s] case record.” 20 C.F.R. § 416.945(a)(1).

7

In other words, when the Treating Source Statement represents that Plaintiff will

8

be off task 25% of a typical workday and absent from work more than 4 days per month,

9

there must be a “relevant evidence” that could back such claim. Similarly, when Dr.

10

Romero opines that Plaintiff can stand/walk for 3 hours and sit for 4 hours, there must be

11

a record to support this. The Treating Source Statement referenced the “diagnoses” as

12

such support.

13

Yet none of these diagnoses translates to the conclusion that Plaintiff seeks,

14

because they all stop short of indicating that Plaintiff cannot perform “light work” per 20

15

C.F.R. § 404.1567. Plaintiff attempts to present a variety of “objective evidence,” (ECF

16

No. 18-1 at 12–14, 15–20,) but they are not convincing. None of Plaintiff’s evidence

17

(including recent observations from 2015 to 2017) account for the fact that her ailments

18

are well-managed. In fact, the ALJ highlighted how the physicians have adopted a

19

“conservative” approach to Plaintiff’s physical and mental health treatment. (AR 29.)

20

Thus even when Plaintiff was diagnosed with idiopathic polyneuropathy, bilateral leg

21

numbness, or other lumbar spine impairments, (see AR 1233,) these cannot be the basis

22

to then conclude that light work is impossible. To illustrate, the next page of that same

23

medical report details how her “functional status [is] maintained with medication use,”

24

with “[n]o aberrant behavior or substance misuse demonstrated,” (AR 1234.) There is

25

simply no evidence to counter Dr. Romero’s own 2016 to 2018 opinions which state that,

26

despite all of Plaintiff’s symptoms, her pain is generally under adequate control. (See,

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28

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e.g., AR 1235, 1708, 1715, 1740, 1746.) Indeed, the ALJ explicitly discussed how “the

2

medications have been relatively effective in controlling the claimant’s symptoms.” (AR

3

29.) This is true for Plaintiff’s mental health conditions as well. (See AR 28–29

4

(discussing how Plaintiff’s moods have been “stable”).)

5

Given that multiple evidentiary records indicate a control over Plaintiff’s ailment,

6

which permits her to conduct light work with certain exceptions, the ALJ’s observation of

7

inconsistencies between the Treating Source Statement and Plaintiff’s own admissions

8

also becomes more salient. For example, the Treating Source Statement disclaimed how

9

Plaintiff can only sit a total of 4 hours in an 8-hour workday, or stand or walk for a total

10

of 3 hours in an 8-hour workday. (See AR 1205.) Such disclaimer is in clear tension

11

with enduring a 9-hour bus ride to Mexico, taking an international flight to the

12

Philippines, or walking half a mile to one mile three times a week. (See, e.g., AR 1120,

13

1712, 1751.)

14
15

d.

Other Defenses for the Treating Source Statement

Because the evidentiary record, including Dr. Romero’s own notes and Plaintiff’s

16

admissions, indicate that Plaintiff is still able to perform light work (albeit certain

17

limitations discussed by the ALJ), the ALJ did not err in rejecting the conclusions made

18

in Dr. Romero’s Treating Source Statement. The Court now addresses several other

19

claims made by Plaintiff.

20

First, Plaintiff claims that the ALJ “ignored or failed to address” Section 404.1527

21

factors. (See ECF No. 18-1 at 10–12.) The Court disagrees. To start, “the ALJ has no

22

obligation to explicitly enumerate each of the six factors described in the Social Security

23

regulations,” because the regulations only require “good reasons” to be provided when

24

giving weight to the treating physician’s opinion. See Grant v. Astrue, 857 F. Supp. 2d

25

146, 155 (D.D.C. 2012) (citations omitted). Indeed, Plaintiff concedes that the ALJ

26

acknowledged Dr. Romero’s reasonable knowledge of Plaintiff’s impairment based upon

27
28

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the treatment relationship and his specialization, (see ECF No. 18-1 at 10–11,) so

2

Plaintiff’s frustration boils down to why these two factors were not deemed to be

3

determinative. The answer is that the other factors prevailed, especially given the

4

inconsistencies the ALJ identified between the Treating Source Statement and the record

5

evidence.

6

Next, Plaintiff argues that there was “no basis in the record” for the ALJ to assume

7

that Dr. Romero’s assessment was based on Plaintiff’s subjective account. (ECF No. 18-

8

1 at 12.) But contrary to Plaintiff’s assertion, the ALJ cited to at least five different

9

sources of records to make his supposition. As discussed supra pages 17–18 of this

10

Order, the ALJ first identified that Dr. Romero’s opinions were based on his diagnoses,

11

and then discussed how those diagnoses were not supported by the record. Plaintiff cites

12

to Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194 (9th Cir. 2008), but Ryan took issue with

13

the underlying ALJ’s decision because there was “nothing in the record to suggest that

14

[the treating physician] . . . relied on [the claimant’s] descriptions more heavily than his

15

own clinical observations.” Id. at 1200. Such is far from the case here. The ALJ cited to

16

multiple parts of the record to conclude that the Treating Source Statement’s reference to

17

Dr. Romero’s “diagnoses” was unconvincing. Once Dr. Romero’s diagnoses no longer

18

were a valid basis for his opinion on light work, it is reasonable to conclude that

19

Plaintiff’s subjective accounts of her condition factored in more than it should have.

20

Relatedly, Plaintiff doubles down on Dr. Romero considering Plaintiff’s subjective

21

complaints, arguing that all medical examinations account for patients’ self-description of

22

their impairments and limitations. Of course, all physicians start from their patients’ self-

23

descriptions of their health. However, the governing law indicates that for claimants of

24

Title II benefits, they must go beyond. The treating physician’s opinion must always be

25

supported by the record and objective evidence, and not just the claimant’s “subjective

26
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28

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descriptions of pain.” See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195

2

(9th Cir. 2004).

3

Finally, Plaintiff argues that the ALJ’s discussion of inconsistency constituted a

4

“substitution” of the ALJ’s own opinion for that of the medical provider, citing to Miller

5

v. Astrue, 695 F. Supp. 2d 1042 (C.D. Cal. 2010). (ECF No. 18-1 at 15–16.) As the

6

Magistrate Judge commented too, Miller v. Astrue is not applicable to the facts in the

7

present lawsuit. The court in Miller v. Astrue disapproved “the ALJ [from acting] as his

8

own medical expert, [or] substituting his opinion for [the treating physician’s]

9

professional interpretation of the clinical testing.” 695 F. Supp. 2d at 1048. Here, the

10

issue is what constitutes such “substitution.” Contrary to Plaintiff’s suggestion, Miller v.

11

Astrue did not equate finding inconsistencies in treatment notes with an ALJ acting as his

12

own medical expert. The court instead took issue with the ALJ substituting a medical

13

expert’s opinion with his own based in part on his own observations at the hearing. See

14

id. at 1048.

15

Such is not the case here. Rather, inconsistency between a treating physician’s

16

opinion and medical evidence in the record can be a specific, legitimate reason to

17

discount the treating physician’s opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041

18

(9th Cir. 2008) (“The incongruity between [the treating physician’s q]uestionnaire

19

responses and her medical records provides an additional specific and legitimate reason

20

for rejecting [the treating physician’s] opinion of [the claimant’s] limitations.”); see also

21

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001 (“[A]n ALJ need not accept a

22

treating physician’s opinion that is . . . unsupported by clinical findings.”). In the present

23

case, the ALJ provided specific and legitimate reasons for discounting the conclusions

24

made in the Treating Source Statement. The ALJ did not ignore the requisite regulatory

25

///

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28

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factors in considering Dr. Romero’s opinion, nor did the ALJ substitute the opinion with

2

his own judgment. 5

3

2.

4

Dr. Levine’s Opinion

Plaintiff also briefly questions the ALJ’s decision for not acknowledging the

5

opinion of Dr. Levine, who at a different lawsuit evaluated Plaintiff and concluded that

6

she was disabled. (See ECF No. 18-1 at 8, 20.)

7

As previously discussed, “[r]egardless of its source, [an ALJ] will evaluate every

8

medical opinion” it receives. 20 C.F.R. § 404.1527(c). However, this does not mean that

9

the ALJ must discuss every piece of evidence in his or her decision. See Vincent on

10

Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984). Further, a

11

statement by a medical source that a plaintiff is “disabled” or “unable to work” does not

12

mean that the Commissioner is compelled to make that same finding. See id. §

13

404.1527(d)(3). The Commissioner “will not give any special significance to the source

14

of an opinion on issues reserved for the Commissioner,” such as whether a claimant

15

qualifies as “disabled” under the Act. Id.

16

Here, Dr. Levine discussed how Plaintiff previously was able to lift more than 100

17

pounds, squat, kneel, climb, crawl, etc. (See AR 1785.) These same considerations are

18

referenced already. The ALJ determined that Plaintiff had the RFC in which she cannot

19

climb, kneel, crawl, etc. (AR 27.) And upon hearing from the vocational expert, the ALJ

20
21
22
23
24
25
26
27
28

Plaintiff also discusses that consistency is a “nuanced” medical consideration, and how
Dr. Romero’s opinion could be read as consistent since consistency does not need to be
free of any doubt. But even assuming a “nuanced” view, Plaintiff simply fails to direct
the Court as to which of Dr. Romero’s opinion concludes that Plaintiff cannot conduct
light work with limitations whatsoever. At best, Plaintiff’s argument demonstrates how
the evidence is susceptible to more than one rational interpretation, in which case the
Court must defer to the ALJ’s conclusion as discussed supra Section II.B.
5

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concluded that Plaintiff can no longer perform her past relevant work, which was work at

2

the heavy/very heavy exertional level. (AR 32.)

3

In fact, the rest of Dr. Levine’s March 12, 2012 report contravenes Plaintiff’s

4

conclusions, for it summarizes unremarkable physical examination results: “slight

5

narrowing of the L5-S1 intervertebral disc space[, where the] remaining disc spaces are

6

adequately maintained,” “no evidence of fracture or bony abnormalities” in the hips,

7

“[n]ormal x-ray examination of the pelvis,” “[t]he glenohumeral joint appears normal” in

8

the left shoulder, “no evidence of fracture, soft tissue calcification or bony abnormality”

9

in either the right or left knee, and “[n]ormal x-ray examination of the right and left

10
11

knees. (AR 1792.)
What Plaintiff is asking—i.e., go a step further and take Dr. Levine’s conclusion

12

that Plaintiff is “disabled” at face value—is expressly not required. See 20 C.F.R. §

13

404.1527(d)(3); see also id. § 404.1527(d)(1) (“A statement by a medical source that you

14

are ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will determine

15

that you are disabled.”).

16

B.

17

Finally, Plaintiff contends that despite the ALJ’s determination that Plaintiff has

18

moderate difficulties concerning concentration, persistence, or pace, the ALJ “included

19

no limitations regarding concentration, persistence or pace in the RFC, but only limited

20

her to simple or mildly detailed work.” (ECF No. 18-1 at 22 (emphasis removed).)

21

Further, Plaintiff asserts that the ALJ failed to give “a more detailed assessment” of the

22

evaluation process. (See id.) According to the R&R, the ALJ properly assessed

23

Plaintiff’s RFC. The Magistrate Judge noted there is “ample detail” in the record in

24

which the ALJ examined and accounted for evidence bearing on Plaintiff’s ability to

25

concentrate, maintain stamina, and pace herself in mental tasks. (ECF No. 21 at 19–20.)

26

Once again, the Court agrees with the Magistrate Judge.

27
28

Plaintiff’s Residual Functional Capacity (“RFC”)

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To reiterate, the RFC is the most a claimant can still do despite any physical or

2

mental limitations that affect her ability to perform work-related tasks. See 20 C.F.R. §§

3

404.1545(a)(1), 416.945(a)(1). The ALJ’s RFC findings “will be upheld ‘if supported by

4

inferences reasonably drawn from the record’” and “when the evidence is susceptible to

5

more than one rational interpretation.” See Tommasetti v. Astrue, 533 F.3d 1035, 1038

6

(9th Cir. 2008) (citations omitted).

7

Applying the above standard, the ALJ appropriately considered the evidentiary

8

record in determining that, in spite of “moderate limitation,” Plaintiff could still perform

9

“simple or mildly detailed work,” and could perform “the requirements of representative

10

occupations such as: sub-assembler . . . with 30,000 national jobs[, and] handpacker . . .

11

with 110,000 national jobs.” (AR 27, 33.) In finding Plaintiff’s moderate limitation with

12

regard to concentrating, persisting, or maintaining pace, the ALJ considered Dr.

13

Romero’s progress notes and mental status examinations. (See AR 26.) The ALJ flagged

14

how these progress notes indicated that Plaintiff had “no difficulty focusing on a subject.”

15

(Id.) Further, the underlying mental status examinations demonstrated that Plaintiff “has

16

been mostly cognitively intact,” except for some visits where she had “poor

17

concentration.” (Id.) The ALJ even gave Plaintiff “the benefit of the doubt” and found a

18

moderate limitation when Dr. Gregory Nicholson conducted a consultative psychiatric

19

evaluation of Plaintiff and opined that Plaintiff had only a mild limitation. (Id.; see also

20

AR 789.) At worst, the fact that the ALJ elevated his finding to moderate limitation

21

explains why the ALJ also concluded that Plaintiff could still perform simple or mildly

22

detailed work.

23

And contrary to Plaintiff’s suggestion, finding that Plaintiff has “moderate

24

limitations” and deciding that Plaintiff could perform simple or mildly detailed work are

25

///

26
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28

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not inconsistent conclusions. 6 See, e.g., Lee v. Berryhill, 721 F. App’x 604, 608 (9th Cir.

2

2017) (“[T]he ALJ accounted for his finding that [plaintiff] had moderate difficulties in

3

concentration, persistence, or pace by limiting [plaintiff] to ‘simple repetitive tasks’

4

because this limitation accorded with the restrictions discussed in the medical record.”);

5

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“The ALJ translated

6

[plaintiff’s] condition, including the pace and mental limitations, into the only concrete

7

restrictions available to him—[the doctor’s] recommended restriction to ‘simple tasks.’”);

8

Valdez v. Berryhill, 746 F. App’x 676, 678 (9th Cir. 2018) (“By limiting [plaintiff] to

9

simple instructions and work that requires only occasional changes, the ALJ reasonably

10

assessed specific functional limitations consistent with the record as a whole . . . .”).

11

Thus, upon reviewing the ALJ’s assessment of the RFC, the Court agrees with the

12

R&R and finds that the ALJ engaged in a sufficient assessment that was also consistent

13

with the moderate mental limitations identified in the medical record. See 20 C.F.R. §

14

416.945(a)(2). Accordingly, the Court finds that the ALJ’s assessment of Plaintiff's RFC

15

is supported by substantial evidence and is free from material legal error.

16 IV.

CONCLUSION

17

Based on the above, the Court ADOPTS the R&R and GRANTS Defendant’s

18

cross-motion for summary judgment, DENIES Plaintiff’s motion for summary judgment,

19

and AFFIRMS the decision of the Commissioner. The Clerk of the Court shall enter

20

///

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23
24
25
26
27
28

Plaintiff also mischaracterizes the ALJ decision as somehow conceding a need for “a
more detailed assessment.” (See ECF No. 18-1 at 22–23; ECF No. 20 at 2.) To the
contrary, the ALJ makes that assessment in the subsequent pages. (See AR 27–31.)
6

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2

judgment in accordance with this Order.
IT IS SO ORDERED.

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Dated: March 31, 2021

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