Aydlett v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Cornell Aydlett, No. CV-19-0040-TUC-BGM 10 Plaintiff, 11 v. ORDER 12 Andrew M. Saul,1 Acting Commissioner of Social Security, [13] Defendant. [14] 15 Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 17). 16 Defendant filed his Answering Brief (“Response”) (Doc. 18), and Plaintiff filed his Reply 17 (Doc. 19). Plaintiff brings this cause of action for review of the final decision of the 18 Commissioner for Social Security pursuant to 42 U.S.C. § 405 (g). The United States 19 Magistrate Judge has received the written consent of both parties and presides over this 20 case pursuant to 28 U.S.C. § 636 (c) and Rule 73, Federal Rules of Civil Procedure. [21] 22 I. BACKGROUND 23 A. Procedural History 24 On April 30, 2015, Plaintiff protectively filed a Title XVI application for 25 Supplemental Security Income (“SSI”) alleging disability as of September 1, 2014 due to [26] 27 1 The Court takes judicial notice that Nancy A. Berryhill is no longer Acting Commissioner of the Social Security Administration (“SSA”). The Court will substitute the new Commissioner 28 of the SSA, Thomas M. Saul, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. See also Fed. R. App. P. 43(c)(2). 1 knee problems, shoulder pain, back pain, bone and bone pain, cervical condition, numbness 2 pain and heat in extremities, headaches, and backpain. See Administrative Record (“AR”) 3 at 17, 20, 38, 42–43, 88–90, 102–04, 178, 185, 197, 200, 207. The Social Security 4 Administration (“SSA”) denied this application on July 7, 2015. Id. at 17 , 88–101, 122– 5 25. On August 14, 2015, Plaintiff filed a request for reconsideration, and on November 3, 6 2015, SSA denied Plaintiff’s application upon reconsideration. Id. at 17 , 102–17, 122, 129. 7 On November 19, 2015, Plaintiff filed his request for hearing. Id. at 17 . On November 1, 8 2017, a hearing was held before Administrative Law Judge (“ALJ”) Mary Ann Lunderman. [9] Id. at 17 , 35–57. On January 4, 2018, the ALJ issued an unfavorable decision. AR at 14– 10 30. On March 2, 2018, Plaintiff requested review of the ALJ’s decision by the Appeals 11 Council, and on June 7, 2018, review was denied. Id. at 1–8, 139–43. On July 1, 2019, 12 Plaintiff filed this cause of action. Compl. (Doc. 1). 13 B. Factual History 14 Plaintiff was forty-eight (48) years old at the time of the administrative hearing and 15 forty-five (45) at the time of the alleged onset of his disability. AR at 17, 28, 39, 88–89, 16 102–03, 178, 185, 197. Plaintiff obtained a high school diploma and attended technical 17 school without a degree. Id. at 28, 40, 102, 208 . Prior to his alleged disability, Plaintiff 18 worked as a cook, delivery driver, and stocker. Id. at 28 , 40–42, 167, 169–77, 208, 213. 19 1. Plaintiff’s Testimony 20 a. Administrative Hearing 21 At the administrative hearing, Plaintiff testified that he is married with one daughter. 22 AR at 39. Plaintiff further testified that he has a driver’s license and is able to drive. Id. 23 at 39–40. Plaintiff indicated that he had received some technical training in electronics but 24 did not receive a degree. Id. at 40 . Plaintiff testified that he had unsuccessfully sought 25 work including cooking jobs, deliver jobs, stocking jobs, and phone work. Id. Plaintiff 26 described his last job at the 99 Cents Store as a stocking position, which lasted five (5) 27 months, but ended because he could not physically perform the work. Id. at 40–41. 28 Plaintiff further described working as a pizza delivery driver for two (2) years, and 1 explained that he left the position because it was physically difficult for him to climb up 2 and down stairs. AR at 41. Plaintiff testified that in the last fifteen (15) years, his work 3 included cooking in a restaurant, a cashier, a stocker, a delivery assembly person, and in 4 moving. Id. at 42 . 5 Plaintiff testified that he is unable to work because he can barely put any pressure 6 with his thumb, his knee swells, his back pain prevents him from bending, he has difficulty 7 walking, he has trouble sleeping, his shoulder has a constant burn, and his neck causes 8 constant pain and does not have a full range of motion. Id. at 42–43. Plaintiff further 9 testified that he does not take any medications because of the side effects. Id. at 43 ; see 10 also AR at 215. Plaintiff also expressed a fear of addiction with prescription medications. 11 AR at 43. Plaintiff denied drinking alcohol but admitted to smoking marijuana 12 approximately twice per month. Id. at 43–44. Plaintiff reported that he did not have a 13 medical marijuana card because he could not afford one. Id. at 44 . Plaintiff estimated that 14 he can lift between twenty (20) and twenty-five (25) pounds and stand or walk for 15 approximately ten (10) minutes at a time. Id. Plaintiff described his time during the day 16 as watching television, getting up and trying to do a little something to keep his mind off 17 not being able to do anything. Id. at 44–45. Plaintiff testified that his wife and sister-in18 law do the cleaning and laundry, while he does a little bit of yard work approximately once 19 per month. AR at 45. Plaintiff reported that he “can barely get out of bed when it’s cold.” [20] Id. 21 Plaintiff testified that when he was still working, he could only work part-time 22 because he could not stand, bend, or sit as long as a full-time position would require. Id. 23 at 45–46. Plaintiff further testified that he could not always meet the quotas his job 24 required, but his managers would sometimes overlook this deficiency when they saw 25 Plaintiff trying his hardest. Id. at 46 . Plaintiff also testified that he loses feeling in his hand 26 which causes him to drop things or be unable to grip things. Id. at 46–47. Plaintiff 27 described feeling depressed because he is unable to provide for his family. AR at 47. 28 Plaintiff confirmed that he does not see a doctor very often and explained that he does not 1 have health insurance because he cannot afford it. Id. at 48 . Plaintiff testified that the 2 neurosurgeon required the down payment for surgery of $4,000.00 to even schedule an 3 appointment. Id. at 48–49. Plaintiff further testified that did not have that amount of 4 money. Id. at 49 . 5 b. Administrative Forms 6 i. Exertional Daily Activities Questionnaire 7 On October 14, 2015, Plaintiff completed an Exertional Daily Activities 8 Questionnaire in this matter. AR 183–84, 194–96. Plaintiff reported that he lived in an 9 apartment with his family. Id. at 183, 194 . Plaintiff described his average day as follows: 10 Make breakfast, take daughter to school, come back home & take out garbage, rest for a few hours, run errands. Pick up daughter from band [11] practice, go to work, deliver pizza & wash dishes, sweep, go home, take time 12 to relax and wind down, ice or heat pack for 30–45 min. go to bed. [13] Id. at 194 . Plaintiff described his symptoms as including dizziness or lightheadedness; 14 extreme back pain; heat radiating down his right side including his lower lumbar, right leg, 15 and complete arm; pain and no strength in his hands, including carpal tunnel in his right 16 arm; and an inability to get comfortable due to pain when sleeping. Id. at 183,194 . Plaintiff 17 reported he walks from his house to the car and estimated that it took between two (2) and 18 ten (10) minutes to walk approximately 200 feet. Id. Plaintiff also reported that he carries 19 a garbage bag daily and dishes, pans, and pizza dough approximately four (4) times per 20 week. AR at 195. 21 Plaintiff reported that while his wife does the cleaning, he cooks, takes out the 22 garbage, and does the dishes. Id. Plaintiff further reported that lifting certain things makes 23 his arm give out. Id. Plaintiff confirmed that he can drive a car. Id. Plaintiff described 24 visiting his sons approximately four (4) times per week as his activity outside of the home. [25] Id. Plaintiff indicated that he was able to do physical activities and chores more easily 26 prior to the onset of his disability. AR at 195. Plaintiff reported that he sleeps 27 approximately three (3) hours per night and naps for approximately fifteen (15) to twenty 28 (20) minutes, three (3) times per week. Id. Plaintiff denied taking any medications and 1 reported using a back and knee brace daily, as well as reading glasses, and sometimes a 2 cane depending on pain. Id. at 184, 196 . Plaintiff noted that his right leg gives out on a 3 daily basis when he steps down with heat and pain down his leg. Id. at 196 . 4 ii. Headache Questionnaire 5 On June 10, 2015, Plaintiff completed a Headache Questionnaire. AR at 181–82. 6 Plaintiff reported that he began having headaches approximately three (3) months prior and 7 described having them four (4) times per week. Id. at 181 . Plaintiff noted that his 8 headaches had not yet been diagnosed by a doctor. Id. Plaintiff indicated that his 9 headaches generally lasted between two (2) and four (4) days and described that they 10 started at the back of his head and extended to his temples and caused constant pain with 11 nausea. Id. Plaintiff stated that there were no factors which caused his headaches. Id. at 12 182. Plaintiff further noted that he is unable to function due to the headache pain. AR at 13 182. Plaintiff reported taking Naproxen, as needed, for his headache, which gives some 14 relief. Id. Plaintiff also indicated that laying down in a quiet, dark room provided relief. [15] Id. 16 2. Vocational Expert Ashley Haroldson Johnson’s Testimony 17 Ms. Ashley Haroldson Johnson testified as a vocational expert at the administrative 18 hearing. AR at 17, 50–56. The ALJ asked Ms. Johnson to classify Plaintiff’s past work. [19] Id. at 51 . Ms. Johnson described Plaintiff’s past relevant work as a store laborer, Dictionary 20 of Occupational Titles (“DOT”) number 922.687-058, unskilled, and medium in physical 21 demand. Id. at 52 . Ms. Johnson described Plaintiff’s work as a delivery driver, DOT 22 number 292.353-010, with a Specific Vocational Preparation (“SVP”) of 3—semi-skilled, 23 and a light exertional level. Id. Ms. Johnson also described Plaintiff’s position as a cashier 24 II, DOT number 211.462-010, with an SVP of 2—unskilled, and a light exertional level. [25] Id. Finally, Ms. Johnson described Plaintiff’s past work as a cook, DOT number 313.36126 014, with an SVP of 7—skilled, and a medium exertional level. AR at 52. 27 The ALJ asked Ms. Johnson to consider a hypothetical individual of Plaintiff’s age, 28 education, and work experience and who is limited to light exertional work, but with 1 standing and walking limited to two (2) hours; able to occasionally climb ramps and stairs, 2 but never ladders, ropes, or scaffolds; able to occasionally balance, stoop, bend at the waist, 3 but never kneel, crouch, bend at the knees, or crawl; cannot reach overhead bilaterally; 4 limited to frequent handling and gross manipulation; and who’s assigned work area must 5 have less than occasional, seldom or rare exposure to concentrated extreme cold, vibration, 6 and hazards such as unprotected heights. Id. at 53 . Ms. Johnson testified that such an 7 individual would not be able to perform Plaintiff’s past work. Id. Ms. Johnson further 8 opined that there would not be any jobs at the light level based on the limited standing and 9 walking. Id. 10 Accordingly, the ALJ asked Ms. Johnson to consider the same hypothetical 11 individual but reduced the exertional level from light to sedentary. Id. Ms. Johnson opined 12 that such an individual would not be able to perform Plaintiff’s past work. AR at 53. Ms. 13 Johnson further opined that there would be other work available to such an individual. Id. 14 Ms. Johnson testified that such an individual would be able to perform other work, 15 including a document preparer, DOT number 249.587-018, with an SVP of 2—unskilled, 16 and sedentary exertional level, and 104,000 jobs in the national economy. Id. Ms. Johnson 17 also suggested that the hypothetical individual could work as an order clerk, DOT number 18 209.567-014, with an SVP of 2, and sedentary exertional level, and approximately 20,000 19 jobs in the United States. Id. at 53–54. Ms. Johnson’s third work suggestion was a charge20 account clerk, DOT number 205.367-014, with an SVP of 2, and sedentary exertional level, 21 with approximately 17,000 jobs in the national economy. Id. at 54 . 22 Ms. Johnson confirmed that the identified jobs were consistent with the DOT and 23 Selected Characteristics of Occupations (“SCO”) occupational descriptions and 24 characteristics, except for with regard to the overhead reaching. AR at 54. Ms. Johnson 25 testified that the overhead reaching limitation is not specifically addressed by the DOT, 26 and her testimony in that regard is based on her experience and training. Id. Ms. Johnson 27 confirmed that she had considered all of the limitations contained in the hypothetical when 28 identifying available jobs. Id. Ms. Johnson also noted that there would not be any further 1 erosion of the number of available jobs due to any specific limitation. Id. 2 Plaintiff’s counsel asked about possible jobs available to the same hypothetical 3 individual but with handling, fingering, and feeling to occasional. Id. at 54–55. Ms. 4 Johnson testified that the identified jobs would be eliminated and opined that there would 5 not be other jobs available. AR at 55. Ms. Johnson further testified that there would not 6 be any jobs available at the semi-skilled level either. Id. Ms. Johnson noted that if the 7 handling, fingering, and feeling limitation were reduced to frequently the identified 8 positions would still be available. Id. at 56 . Plaintiff’s counsel also asked about the 9 availability of jobs if the hypothetical individual required alternating sitting and standing 10 every half-hour. Id. at 55 . Ms. Johnson testified that the identified jobs would remain. Id. 11 3. Plaintiff’s Medical Records 12 a. Treatment records 13 On March 28, 2014, Plaintiff was seen by Steven B. Wallach, D.O. regarding lower 14 back pain and right ankle pain. AR at 234. Plaintiff reported having undergone Magnetic 15 Resonance Imaging (“MRI”) in 2010 and was diagnosed with herniation of the nucleus 16 pulposus (“HNP”) in his lumbar spine. Id. Plaintiff described the pain as intermittent, with 17 numbness in his legs, and pain down his right leg. Id. Plaintiff further reported bilateral 18 shoulder pain. Id. Dr. Wallach observed restricted range of motion in Plaintiff’s lumbar 19 spine and pain with complete abduction in his shoulders. Id. Dr. Wallach’s assessment 20 included low back pain with a history of HNP and chronic shoulder dislocation. AR at 21 234. Dr. Wallach’s plan included lumbar physical therapy and a meloxicam prescription. [22] Id. 23 On August 12, 2014, Plaintiff returned to Dr. Wallach regarding right arm 24 numbness, the inability to lift his left arm over his head, and heat in his right leg. Id. at 25 233. Plaintiff reported having had physical therapy for his low back, that his right hand 26 goes numb and caused him to drop things, and his right leg gives way. Id. Dr. Wallach 27 reported that Plaintiff’s right hand had negative Tinel’s and Phalen’s signs with good 28 sensation and no atrophy. Id. Dr. Wallach assessed lower back pain with radicular right 1 leg pain and intermittent right hand numbness ruling out carpel tunnel syndrome. AR at 2 233. Dr. Wallach prescribed a lumbar spine MRI. Id. On August 29, 2014, Plaintiff was 3 seen at the Center for Neurosciences for a nerve conduction study. See id. at 244–48, 257. 4 W. Horace Noland, M.D. reported that nerve conduction studies were performed on 5 Plaintiff’s right upper extremity. Id. at 244, 257 . Dr. Noland noted that Plaintiff’s “median 6 sensory response showed mildly prolonged peak latency[,] . . . [and] [n]eedle exam of the 7 right upper extremity showed rare fibrillation potential abnormalities in the triceps 8 muscle.” Id. Dr. Noland interpreted the study to be compatible with mild right carpal 9 tunnel syndrome and noted that the electromyography (“EMG”) results suggested some 10 right C7 radiculopathy. AR at 244, 257. 11 On September 23, 2014, Plaintiff was seen by Dr. Wallach for increased lower back 12 pain on the right without radiation and his right hand going numb. Id. at 232 . Dr. Wallach 13 assessed low back pain with radicular symptoms on the right, and right hand numbness 14 with the need to rule out HNP in the cervical spine. Id. Dr. Wallach ordered an MRI and 15 prescribed tramadol. Id. On September 27, 2014, Plaintiff was seen at Northwest Medical 16 Center and underwent MRI of the lumbar spine and the cervical spine, both without 17 contrast. AR at 227–29, 240–43, 252–56. Guy Thompson Borders, M.D. reviewed the 18 images. See id. Regarding Plaintiff’s lumbar spine, at the L5-S1 level, Dr. Borders found: [19] There is disc desiccation with loss of disc space height and a broad-based 20 posterior disc herniation identified flattening the anterior thecal sac and mildly narrowing the right and left lateral recess. Lateral extension of disc [21] herniation is identified in both the right and left neural foramen with 22 foraminal narrowing. Adjacent endplate degenerative edematous changes are present in the anterior inferior 05 and superior anterior S1 vertebral body. [24] Id. at 227, 240 , 253–54, 255–56. Dr. Borders’s impression noted that these changes were 25 causing foraminal stenosis. Id. at 228, 241, 254, 256 . Regarding Plaintiff’s cervical spine, 26 at the C3-C4 level, Dr. Borders’s impression noted: [27] Findings most consistent with cord myelomalacia. Spinal canal stenosis is 28 present from a posterior disc osteophyte complex. Cord edema cannot be definitively excluded and if prior studies are available, these would be useful 1 from outside institutions. This abnormal focus of myelomalacia may represent sequela of prior trauma. [3] Id. at 229, 242, 243, 252 . 4 On October 7, 2014, Plaintiff returned to Dr. Wallach complaining of considerable 5 low back pain into the right leg and seeking a work excuse. AR at 231. Dr. Wallach noted 6 the broad based disk herniation at L5-S1 reported on the MRI. Id. Dr. Wallach assessed 7 HNP of the lumbar spine at L5-S1 and chronic neck pain. Id. Dr. Wallach referred Plaintiff 8 to a neurosurgeon and prescribed Vicodin. Id. Dr. Wallach also recommended no physical 9 activity at work until Plaintiff’s work up and treatment were completed. Id. On October 10 20, 2014, Plaintiff saw Dr. Noland for a follow-up regarding his MRI. AR at 237–43, 251– 11 56. Dr. Noland noted that he had not received the MRI results. Id. at 237, 251 . Dr. 12 Noland’s review of Plaintiff’s systems was unremarkable, as was his general examination. [13] Id. Dr. Noland reported that Plaintiff’s “[s]trength was normal in the upper and lower 14 extremities[,] but [he] thought [Plaintiff’s] effort on right triceps testing was poor[] [and] 15 [g]rip effort bilaterally was not good.” Id. at 238 . Dr. Noland assessed lower back pain 16 and spinal stenosis in Plaintiff’s cervical region but noted that Plaintiff did not exhibit 17 clinical findings of C7 radiculopathy. Id. at 239 . On October 24, 2014, Plaintiff was seen 18 by Dr. Wallach regarding his DES paperwork. AR at 230. Plaintiff reported that his right 19 leg pain was resolved; however, he had left hip pain. Id. Plaintiff further reported that the 20 pain was not “terrible” but remained present. Id. Dr. Wallach observed that Plaintiff 21 walked with a limp and exhibited pain with palpation over the left hip greater trochanter 22 and with abduction. Id. Plaintiff declined treatment for his left hip. Id. Dr. Wallach also 23 expressed confusion regarding Plaintiff’s feelings that he could not work. Id. 24 On November 13, 2014, Plaintiff saw Brian P. Callahan, M.D. at the Center for 25 Neurosciences. AR at 235–36, 249–50, 274–75. Dr. Callahan’s impression was that 26 Plaintiff “ha[d] severe spinal stenosis and cervical myelopathy . . . [and] cord signal 27 change.” Id. at 235, 249, 274 . Dr. Callahan further noted that Plaintiff exhibited a Hoffman 28 sign on examination. Id. Dr. Callahan highly recommended surgery and described the 1 surgery and its risks to Plaintiff. Id. Plaintiff indicated that “he [wa]s having financial 2 problems . . . [and] need[ed] to look into things before he can have surgery.” Id. 3 On June 18, 2015, Plaintiff had imaging studies of his knees to assess his bilateral 4 knee pain. AR at 259. Troy McDaniel, M.D. found “[m]ild narrowing of the medial 5 compartment of the right knee without osteophytes or other abnormality.” Id. Dr. 6 McDaniel further found that Plaintiff’s “[l]eft knee demonstrate[d] postoperative changes 7 of anterior cruciate ligament reconstruction with screws in the distal femur and proximal 8 tibia[;] [m]oderately severe narrowing of the medial and lateral compartments with medial 9 offset of the distal femur relative to the proximal tibia[;] [and] [a]bnormal lucencies [we]re 10 seen in the proximal tibia which may represent postoperative change only.” Id. 11 On April 5, 2016, Plaintiff was seen by Dr. Wallach seeking a physical therapy 12 referral. AR at 276–77. Dr. Wallach noted that Plaintiff reported he was doing well with 13 no current complaints. Id. at 277 . Dr. Wallach’s examination was unremarkable. Id. 14 b. Examining physicians 15 i. Jeri Hassman, M.D. 16 On January 18, 2015, Jeri Hassman, M.D. examined Plaintiff at the request of 17 Arizona Department of Economic Security. AR at 260–67. Dr. Hassman noted that 18 Plaintiff alleged knee problems, shoulder pain, back pain and bone pain, a cervical 19 condition, numbness, pain and heat in his extremities, and headaches. Id. at 260 . Plaintiff 20 reported frequent neck pain, mid and low back pain, occasional headaches, occasional loss 21 of balance, occasional dizziness, and occasional burning down the right upper or lower 22 extremity. Id. at 261 . Dr. Hassman noted that Petitioner “was independent getting in an 23 out of the chair, but he was a little guarded getting out of the chair . . . and slightly favored 24 his left knee[.]” Id. Dr. Hassman further noted that Petitioner “had a minimal limp, slightly 25 favoring his left knee with ambulation, but he was able to tolerate full weightbearing on 26 both the left leg and the right leg[] . . . [and] did not have any assistive device.” Id. 27 Dr. Hassman reported that Plaintiff exhibited “pain and catching and palpable 28 clunking with range of motion of both shoulders, left worse than right.” AR at 261. Dr. 1 Hassman observed that “[i]t felt as if there were minor subluxations of the left shoulder 2 during left shoulder range of motion.” Id. at 261–62. Dr. Hassman further observed 3 moderate pain with range of motion and a positive apprehension sign with Plaintiff’s left 4 shoulder, and minimal pain with range of motion and a negative apprehension sign with 5 Plaintiff’s right shoulder. Id. at 262 . Dr. Hassman also noted minimal pain in the left 6 shoulder upon impingement testing, but no pain for the right shoulder. Id. Plaintiff 7 exhibited 4+/5 strength for left shoulder abduction and normal strength for his right 8 shoulder. Id. 9 Dr. Hassman reported a full range of motion of both elbows, wrists, and fingers, as 10 well as normal manual dexterity and normal fine motor coordination of the fingers. AR at 11 262. Dr. Hassman indicated Plaintiff’s right grip strength was 36 kg and left grip strength 12 was 19–20 kg. Id. Dr. Hassman noted negative Phalen’s test and Tinel’s sign bilaterally. [13] Id. Dr. Hassman further noted that motor examination of both upper extremities was 14 normal except for minimal left shoulder weakness associated with pain. Id. 15 Examination of Plaintiff’s thoracic and lumbar spine was unremarkable except for 16 mild-to-moderate tenderness over the lumbar spine and paraspinal muscles. Id. Plaintiff 17 also exhibited a full range of motion of both hips, knees, and ankles without pain except 18 for minimal-to-moderate pain with range of motion and 4+ grinding in both knees. AR at 19 262. Dr. Hassman indicated that Plaintiff’s lower legs had no atrophy, tenderness, or 20 edema and neurological examination revealed normal motor strength and sensation and 1+ 21 knee and ankle reflexes bilaterally. Id. 22 Dr. Hassman’s diagnoses again noted 4+ grinding/crepitus and pain with range of 23 motion in both knees, but no swelling, warmth, or tenderness in either knee. Id. Dr. 24 Hassman also noted Plaintiff had a slightly antalgic gain, with a slight limp on the left knee. [25] Id. Dr. Hassman noted mild pain with lumbar range of motion, as well as low back pain 26 with heel walking, hopping, and bending. Id. Finally, Dr. Hassman noted Plaintiff’s 27 palpable clunking and abnormal range of motion of both shoulders, with the left shoulder 28 worse than right, and a positive apprehension test of the left shoulder. Id. at 263 . 1 Dr. Hassman also completed a Medical Source Statement of Ability to Do Work2 Related Activities (Physical). AR at 263–67. Dr. Hassman opined that Plaintiff’s 3 condition would impose any limitations for twelve (12) continuous months. Id. at 263 . Dr. 4 Hassman also confirmed that Plaintiff had restrictions in lifting and carrying. Id. Dr. 5 Hassman opined that Plaintiff could lift or carry twenty (20) pounds occasionally and ten 6 (10) pounds frequently. Id. at 264 . Dr. Hassman further opined that Plaintiff’s ability to 7 stand and/or walk was limited to at least two (2) hours but less than six (6) hours in an eight 8 (8) hour day. Id. Dr. Hassman noted that Plaintiff did not use an assistive device and had 9 no limitations in sitting. AR at 264. Dr. Hassman found Plaintiff unlimited in his ability 10 to see, hear, or speak. Id. Dr. Hassman opined that Plaintiff could frequently stoop, handle, 11 and finger; occasionally climb ramp, stairs, ladder, rope, and scaffolds, kneel, crouch, 12 crawl, and reach; and feel without limitation. Id. at 265 . Dr. Hassman also found Plaintiff 13 to be unrestricted in his ability to work around heights; moving machinery; extremes in 14 temperature; chemicals; dust, fumes, or gases; and excessive noise. Id. 15 ii. Noel L. Shaw, D.C. 16 On October 4, 2017, Plaintiff was seen by Noel L. Shaw, D.C. for examination. AR 17 at 270–71. Dr. Shaw noted that Plaintiff’s active range of motion in his lumbar spine was 18 limited and extension and rotation of both the lumbar spine, as well as external rotation 19 and extension of the hip elicited hip and low back pain. Id. at 270 . Dr. Shaw also reported 20 Plaintiff’s active range of motion in his cervical spine were limited. Id. Dr. Shaw noted 21 that Plaintiff had markedly reduced finger/grip strength. Id. at 271 . 22 Dr. Shaw completed a Physical Residual Functional Capacity Assessment (“RFC”) 23 regarding Plaintiff. Id. at 269 . Dr. Shaw opined that Plaintiff could stand more than two 24 (2) hours during an eight (8) hour day. AR at 269. Dr. Shaw further opined that Plaintiff 25 could sit for thirty (30) to sixty (60) minutes before needing to change position and could 26 walk more than one (1) block before needing to stop. Id. Dr. Shaw noted that Plaintiff had 27 the ability to occasionally lift and carry twenty (20) pounds; reach; stoop; and crouch; but 28 could never lift and carry more than twenty (20) pounds; feel, finger, or handle; grasp; or 1 kneel. Id. Dr. Shaw indicated that Plaintiff did not need to lie down during the day but 2 needed to alternate sitting and standing every hour. Id. Dr. Shaw opined that Plaintiff 3 would be unable to work due to his physical conditions more than five (5) days per month. [4] Id. 5 c. Reviewing physicians 6 i. Charles Combs, M.D. 7 On July 7, 2015, Charles Combs, M.D. reviewed Plaintiff’s medical records for the 8 initial determination and provided a physical residual functional capacity assessment. AR 9 at 96–99. Dr. Combs opined that Plaintiff had exertional limitations. Id. at 96 . Dr. Combs 10 further opined that Plaintiff could frequently lift and carry up to ten (10) pounds, could 11 stand and/or walk for a total of two (2) hours, and sit for approximately six (6) hours in an 12 eight (8) hour workday with periodic alternating between sitting and standing to relieve 13 pain and discomfort. Id. at 96–97. Dr. Combs found Plaintiff unlimited in his ability to 14 push and/or pull other than the limitations for lifting and carrying. Id. at 97 . Dr. Combs 15 delineated Plaintiff’s postural limitations to include occasionally climbing ramps and 16 stairs; balancing; and stooping; but never climbing ladders, ropes, or scaffolds; kneeling; 17 crouching; or crawling. Id. Dr. Combs noted that Plaintiff was limited in his ability to 18 reach overhead bilaterally, as well as handling, but was unlimited in his ability to finger or 19 feel. AR at 97–98. Dr. Combs indicated that Plaintiff did not have any visual or 20 communicative limitations. Id. at 98 . Dr. Combs also indicated that Plaintiff was unlimited 21 regarding exposure to extreme heat; wetness; humidity; noise; fumes, odors, dusts, gases, 22 and poor ventilation. Id. Dr. Combs found that Plaintiff should avoid concentrated 23 exposure to extreme cold, vibration, or hazards. Id. 24 ii. Charles Fina, M.D. 25 On October 26, 2015, Charles Fina, M.D. reviewed Plaintiff’s medical records for 26 a determination on reconsideration and provided a physical residual functional capacity 27 assessment. AR at 112–15. Dr. Fina opined that Plaintiff was limited to frequently lifting 28 or carrying ten (10) pounds, standing and/or walking for two (2) hours, and sitting for 1 approximately six (6) hours in an eight (8) hour workday. Id. at 113 . Dr. Fina further 2 opined that Plaintiff was unlimited in his ability to push and/or pull other than the lift/carry 3 restriction. Id. Dr. Fina reported that Plaintiff could occasionally climb ramps and stairs; 4 balance; and stoop; but could never climb ladders, ropes, and scaffolds; kneel; crouch; and 5 crawl. Id. Dr. Fina opined that Plaintiff’s ability to reach overhead was limited bilaterally, 6 as was his ability to handle. Id. at 114 . Dr. Fina noted that Plaintiff was unlimited in his 7 ability to finger and feel. Id. Dr. Fina found no limitation regarding Plaintiff’s vision or 8 ability to communicate. Id. Additionally, Plaintiff’s did not have limitation regarding 9 exposure to extreme heat; wetness; humidity; noise; fumes, odors, dusts, gases, or poor 10 ventilation. Id. Dr. Fina opined that Plaintiff should avoid concentrated exposure to 11 extreme cold, vibration, and hazards. Id. [12] 13 II. STANDARD OF REVIEW 14 The factual findings of the Commissioner shall be conclusive so long as they are 15 based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405 (g), 16 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may 17 “set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s 18 findings are based on legal error or are not supported by substantial evidence in the record 19 as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see 20 also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 21 Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a 22 preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 23 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 24 Further, substantial evidence is “such relevant evidence as a reasonable mind might accept 25 as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 Where “the evidence can support either outcome, the court may not substitute its judgment 27 for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016 , 28 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). 1 Moreover, the court may not focus on an isolated piece of supporting evidence, rather it 2 must consider the entirety of the record weighing both evidence that supports as well as 3 that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations 4 omitted). [5] 6 III. ANALYSIS 7 A. The Five-Step Evaluation 8 The Commissioner follows a five-step sequential evaluation process to assess 9 whether a claimant is disabled. 20 C.F.R. § 404.1520 (a)(4). This process is defined as 10 follows: Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the 11 claimant is not disabled; step two considers if the claimant has a “severe medically 12 determinable physical or mental impairment[.]” If not, the claimant is not disabled; step 13 three determines whether the claimant’s impairments or combination thereof meet or equal 14 an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. If not, the claimant is not 15 disabled; step four considers the claimant’s residual functional capacity and past relevant 16 work. If claimant can still do past relevant work, then he or she is not disabled; step five 17 assesses the claimant’s residual functional capacity, age, education, and work experience. 18 If it is determined that the claimant can make an adjust6ment to other work, then he or she 19 is not disabled. 20 C.F.R. § 404.1520 (a)(4)(i)-(v). 20 In the instant case, the ALJ found that Plaintiff engaged in substantial gainful 21 activity during the fourth quarter of 2015 but determined that there had been a continuous 22 12-month period during which he did not engage in substantial gainful activity. AR at 20. 23 At step two of the sequential evaluation, the ALJ found that “[t]he claimant has the 24 following severe impairments: cervical spondylosis with myelopathy; lumbar spinal 25 stenosis; and degenerative changes in the bilateral knees (20 CFR 416.920(c)).” Id. The 26 ALJ further found that “[t]he claimant does not have an impairment or combination of 27 impairments that meets or medically equals the severity of one of the listed impairments in 28 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Id. 1 at 21. Prior to step four and “[a]fter careful consideration of the entire record,” the ALJ 2 determined that “the claimant has the residual functional capacity to perform sedentary 3 work as defined in 20 CFR 416.967(a) with certain exceptions[,] [including] . . . standing 4 and/or walking must be limited to two hours in an eight-hour workday[,] . . . the climbing 5 of ramps and stairs must be limited to occasionally and the climbing of ladders, ropes or 6 scaffolds must be entirely precluded from work duties as assigned[,] . . . occasionally 7 balancing and stooping (bending at the waist) must also be limited to occasionally while 8 kneeling, crouching (bending at the knees) and crawling must be precluded entirely from 9 the work duties as assigned[,] . . . reaching overhead with the bilateral upper extremities 10 must also be precluded entirely from work duties and handling (gross manipulation) with 11 the bilateral upper extremities must be limited to frequently[,] [and] [w]ithin the assigned 12 work area, there must be less than occasional (seldom to rare) exposure to concentrated 13 extreme cold, vibrations, and hazards, such as unprotected heights.” Id. at 22 . At step four, 14 the ALJ found that “[t]he claimant is unable to perform any past relevant work (20 CFR 15 416.965).” AR at 27. At step five, the ALJ found that after “[c]onsidering the claimant’s 16 age, education, work experience, and residual functional capacity, there are jobs that exist 17 in significant numbers in the national economy that the claimant can perform (20 CFR 18 416.969, and 416.969(a)).” Id. at 28 . Accordingly, the ALJ determined that Plaintiff was 19 not disabled. Id. 20 Plaintiff asserts that the ALJ erred in failing to give the appropriate weight to the 21 examining source opinion of Dr. Hassman regarding his reaching limitations. See Opening 22 Br. (Doc. 18). Plaintiff further asserts that the ALJ impermissibly relied on non-examining 23 state agency consultants with regard to his reaching limitations. See id. 24 B. Examining Physician 25 Plaintiff asserts that “although the ALJ gave ‘great weight’ to Dr. Hassman’s 26 opinion (ostensibly the same weight she gave to the opinions of the non-examining State 27 Agency consultants) [Tr. 25, 27], the ALJ did not articulate a specific and legitimate reason 28 for deviating from Dr. Hassman’s opinion with respect to reaching limitations.” Pl.’s Br. 1 at 9. 2 “As a general rule, more weight should be given to the opinion of a treating source 3 than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 4 821, 830 (9th Cir. 1996) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)); see 5 also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “The opinion of a treating 6 physician is given deference because ‘he is employed to cure and has a greater opportunity 7 to know and observe the patient as an individual.’” Morgan v. Comm’r of the SSA, 169 8 F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 9 1987) (citations omitted)). “The ALJ may not reject the opinion of a treating physician, 10 even if it is contradicted by the opinions of other doctors, without providing ‘specific and 11 legitimate reasons’ supported by substantial evidence in the record.” Rollins v. Massanari, [12] 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 13 1998)); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Embrey v. Bowen, 849 14 F.2d 418, 421 (9th Cir. 1988). Similarly, “[t]he opinion of an examining physician is, in 15 turn, entitled to greater weight that the opinion of a nonexamining physician.” Lester v. 16 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted). “As is the case with the 17 opinion of a treating physician, the Commissioner must provide ‘clear and convincing’ 18 reasons for rejecting the uncontradicted opinion of an examining physician.” Id. (citations 19 omitted). Furthermore, “like the opinion of a treating doctor, the opinion of an examining 20 doctor, even if contradicted by another doctor, can only be rejected for specific and 21 legitimate reasons that are supported by substantial evidence in the record.” Id. at 830–31 22 (citations omitted). “[T]he more consistent an opinion is with the record as a whole, the 23 more weight we will give to that opinion.” 20 C.F.R. § 404.1527 (c)(4). Additionally, 24 “[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence 25 that justifies the rejection of the opinion of either an examining physician or a treating 26 physician.” Lester, 81 F.3d at 831 (citations omitted); Buck v. Berryhill, 869 F.3d 1040 , 27 1050 (9th Cir. 2017). 28 Here, the ALJ reviewed Plaintiff’s allegations, his treatment records, the examining 1 physicians’ reports, and the medical consultants’ findings. See AR at 22–30. The ALJ 2 noted that “there is minimal evidence to support the presence and limiting effect of other 3 impairments, including right leg pain, shoulder pain with limited range of motion, and 4 thumb pain with difficulty grasping and lifting.” Id. at 24. The ALJ further observed that 5 “As for the . . . shoulder pain and associated limitations identified by Dr. Hassman in June 6 2015, the earlier objective findings (as discussed above) of the neurologists – Dr. Noland 7 and Dr. Callahan – minimally support the presence of those impairments and do not support 8 any associated limitations.” Id. (citations omitted). Moreover, “[w]hen the claimant next 9 saw Dr. Wallach in March 2016, he reported that he was doing well and had no complaints 10 . . . and a concurrent objective examination found . . . full range of motion in his 11 extremities.” Id. at 24–25 (citations omitted). Contrary to Plaintiff’s assertion, the ALJ 12 identified the objective findings that led to her determination that Plaintiff was limited in 13 overhead reaching rather than any broader restriction. “The ALJ is responsible for 14 determining credibility, resolving conflicts in medical testimony, and for resolving 15 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citations omitted). 16 The Court finds that the ALJ properly considered the record as a whole in making her 17 determination and provided specific and legitimate reasons for deviating from Dr. 18 Hassman’s opinion with respect to reaching limitations. 19 C. Non-examining Medical Consultants 20 Plaintiff asserts that the ALJ relied on the “flawed opinions” of the non-examining 21 state agency consultants. Pl.’s Br. (Doc. 17) at 10. Plaintiff further asserts that “the ALJ 22 gave ‘great’ weight to the opinions of the non-examining State Agency physicians, 23 adopting their opinions as the residual functional capacity.” Id. 24 The ALJ explained that she “considered the findings of fact made by state agency 25 medical consultants” and determined that their findings were consistent with the evidence 26 as a whole and “their assessment of the claimant’s capacity to perform fine manipulation 27 is consistent with the medical treatment evidence, the neurological examinations conducted 28 in late 2014, and the consultative physical examination conducted in June 2015.” AR at || 27. There is no evidence to suggest that the ALJ relied on or even considered Dr. Fina’s 2|| opinions regarding Plaintiff's knowledge of the social security system. /d. In rejecting Dr. || Hassman’s functional capacity, the ALJ observed that “while [Dr. Hassman’s] assessment of the claimant’s functional capacity is generally consistent with the evidence, I give || greater weight to the evidence as a whole and significant benefit of the doubt to the 6|| claimant, and find that he is more limited than Dr. Hassman determined.” Jd. at 26. In 7\| adopting the opinions of Dr. Combs and Dr. Fina, the ALJ observed that “[a]lthough the 8 || subsequent examination conducted by Dr. Shaw documents significant limitations in the 9|| claimant’s right hand, thumb and fingers, there is no evidence in prior to [sic] treatment 10 || records to support those limitations and no evidence to support a worsening in his condition after he was last seen by his primary care provider in April 2016.” Jd. at 27 (citations || omitted). This Court “will affirm the ALJ’s determination of [Plaintiff's] RFC if the ALJ 13 | applied the proper legal standard and [her] decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In making her RFC 15} determination, the ALJ properly weighed and considered Plaintiff's subjective complaints || and the medical records and opinions in the record. Substantial evidence supports the ALJ’s decision. [18] 19] IV. CONCLUSION 20 Based upon the foregoing, the Court affirms the ALJ’s decision. Accordingly, IT || IS HEREBY ORDERED that: 22 1) Plaintiff's Opening Brief (Doc. 17) is DENIED; 23 2) The Commissioner’s decision is AFFIRMED; and 24 3) The Clerk of the Court shall enter judgment and close its file in this case. 25 Dated this 25th day of March, 2020. 27 Honorable Bruce G. Macdonald 3 United States Magistrate Judge -19-