Farinas v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MANUELA FARINAS, Case No.: 19-CV-1760-GPC-WVG 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY 14 ANDREW SAUL, Commissioner of JUDGMENT Social Security, [15] Defendant. [18] 19 On November 15, 2013, Manuela Farinas (“Plaintiff”) filed her initial application 20 for Social Security Disability Insurance under Title II of the Social Security Act (“Title II” 21 or “Act”). (AR 21; 158.) On March 19, 2014, Plaintiff renewed her request for Title II 22 benefits after Andrew Saul, Commissioner of Social Security, (“Defendant” or 23 “Commissioner”) denied Plaintiff’s initial application. (AR 158; 186.) Defendant again 24 denied Plaintiff’s application on June 19, 2014. (AR 190.) Plaintiff sought further 25 administrative relief by appealing Defendant’s decision to the Appeals Council. (AR 175; 26 253.) On July 15, 2019, after a series of administrative proceedings, the Appeals Council 27 finalized the Administrative Law Judge’s (“ALJ”) decision that Plaintiff was not disabled 28 under Title II. (AR 1-8.) By doing so, the Appeals Council denied Plaintiff Title II benefits. 1 (Id.) This litigation followed. Before this Court are Plaintiff and Defendant’s (“Parties”) 2 cross-motions for summary judgment. For the reasons below, the Court RECOMMENDS 3 that Plaintiff’s summary judgment motion be DENIED and Defendant’s summary 4 judgment motion be GRANTED. 5 I. PROCEDURAL HISTORY 6 On November 15, 2013, Plaintiff protectively filed her initial application for 7 disability benefits under Title II of the Social Security Act1. (AR 21; 158.) In doing so, 8 Plaintiff identified June 15, 2011 as the onset of her disabling condition, which she 9 described as lower back problems and an injury to her left knee. (Id.) Plaintiff reported in 10 her application that, since June 15, 2011, she had not worked as a result of her disabling 11 condition. (AR 101.) On March 19, 2014, Defendant denied Plaintiff’s application for Title 12 II benefits based on a finding of non-disability. (Id.; AR 158.) 13 On March 24, 2014, Plaintiff requested reconsideration for Title II benefits. (AR 14 186.) On June 19, 2014, Defendant affirmed its March 19, 2014 decision denying Title II 15 benefits. (AR 190.) On July 7, 2014, Plaintiff requested a hearing before an ALJ; Defendant 16 granted Plaintiff’s request on July 21, 2014. (AR 192-198.) On May 24, 2016, 17 Administrative Law Judge Eric V. Benham (“ALJ”) convened a hearing on Plaintiff’s 18 matter. (AR 212-217.) On September 19, 2016, the ALJ issued his Notice of Decision and 19 found Plaintiff was not disabled within the meaning of Title II. (AR 158-168.) Consistent 20 with the ALJ’s Notice of Decision, Defendant again denied Plaintiff’s application. 21 On November 11, 2016, Plaintiff appealed the ALJ’s decision and sought 22 administrative relief from the Appeals Council. (AR 175; 253.) On July 31, 2017, the 23 Appeals Council vacated the ALJ’s decision and remanded Plaintiff’s case to the ALJ for 24 resolution of three specific issues: [26] 1 Prior to the proceedings referenced throughout this Report and Recommendation, Plaintiff filed an 27 earlier application for Title II benefits on June 19, 2012. (AR 158.) The Commissioner denied that application on October 31, 2012. (Id.) Plaintiff did not file a request for reconsideration. (Id.) These [28] 1 (1) “The hearing decision indicates that the claimant has severe mental 2 impairments but does not contain rationale for B and C criteria rated using the 3 special technique described in 20 CFR 404.1520(a);” 4 (2) “The residual functional capacity should address the claimant’s maximum 5 ability to perform work related activities such as her ability to perform simple, 6 detailed, and complex tasks (Social Security Rule 96-8p);” and 7 (3) “On April 26, 2016, approximately a month prior to the hearing, 736 pages 8 [of] medical records document [were] submitted into the F section of the 9 electronic file. The Administrative Law Judge did not enter this evidence into 10 the record, consider it, or label it as duplicative.” (AR 174-176.) 11 On remand, the ALJ convened a hearing on Plaintiff’s case on March 29, 2018. (AR 12 21; 42-70.) On September 5, 2018, the ALJ issued his second and final Notice of Decision. 13 As before, the ALJ found Plaintiff was not disabled within the meaning of Title II after 14 having reviewed the entirety of the record, inclusive of the medical records newly admitted 15 on remand. (AR 21-34.) On July 15, 2019, the Appeals Council denied Plaintiff further 16 review, noting “the reasons (Plaintiff cited in her appeal) do not provide a basis for 17 changing the Administrative Law Judge’s Decision.” (AR 1-8). By so finding, the Appeals 18 Council confirmed the ALJ’s determination of non-disability and denied Plaintiff Title II 19 benefits. 20 On September 13, 2019, Plaintiff initiated this litigation. (Doc. No. 1.) Pursuant to 21 42 U.S. section 405(g), Plaintiff seeks judicial review of Defendant’s denial of Title II 22 benefits. (Id.) On October 11, 2019, Plaintiff filed a First Amended Complaint (“FAC”), 23 which serves as the operative complaint in this matter. (Doc. No. 6.) On December 20, 24 2019, this Court issued an Order Setting Briefing Schedule on Cross-Summary Judgment 25 Motions. (Doc. No. 14.) On February 20, 2020, Plaintiff timely filed her summary 26 judgment motion. (Doc. No. 18.) On April 16, 2020, Defendant timely filed its cross27 summary judgment motion. (Doc. No. 19.) On May 19, 2020, Plaintiff replied to 28 Defendant’s cross-summary judgment motion. (Doc. No. 20.) The Parties’ cross-summary 1 judgment motions are ripe for this Court’s review and recommendation to Judge Curiel. 2 II. FACTUAL BACKGROUND 3 a. Plaintiff’s Medical Condition 4 Plaintiff was born on March 10, 1963. (AR 1784). In or around 2000, Plaintiff 5 worked as a caregiver with In-Home Support Services (“IHSS”). (AR 1785). Her job duties 6 centered on providing patient care, which encompassed bathing, dressing, and cooking for 7 and feeding patients, as well as housekeeping and cleaning. (Id.) Plaintiff’s position as a 8 caregiver necessarily involved physical activity, namely “sitting, standing, walking, 9 bending, twisting, reaching, pushing, pulling, lifting up to 100 pounds, squatting, kneeling, 10 climbing, crawling, overhead work, keyboarding, grasping, and torqueing.” (Id.) 11 Throughout her years as a caregiver, Plaintiff experienced a series of injuries, most, 12 but not all, of which were job-related. First, Plaintiff was rear-ended in a car accident in 13 2007. (AR 1791.) Consequently, Plaintiff sustained a neck injury and underwent a course 14 of physical therapy for treatment. Her symptoms fully resolved. (Id.) Since then, Plaintiff’s 15 injuries arose in the course of her employment with IHSS. In 2009, Plaintiff reported 16 experiencing pain in both of her wrists as a result of carrying groceries for her patients. 17 (AR 1791.) In 2010, Plaintiff reported slipping and falling at work, which caused Plaintiff 18 lower back pain. (Id.) After seeking and receiving treatment, Plaintiff’s back issues 19 resolved within two weeks. (Id.) 20 Most seriously, on or around January 4, 2011, Plaintiff suffered a workplace injury 21 while attempting to dress an elderly patient who weighed approximately 180 pounds. (AR 22 1791.) As a result of her injury, Plaintiff reported “experiencing pain within both of her 23 shoulders, knees, and hips as well as within her low back and head.” (Id.) Plaintiff’s injury 24 prompted her to seek treatment from Dr. Romero, who had been treating Plaintiff in his 25 capacity as a pain specialist since September 2009. (AR 1204; 1935.) Plaintiff has not 26 returned to work to any extent since June 15, 2011. (AR 1786.) 27 / / / 28 / / / 1 b. Dr.’s Romero’s Medical Examination and Treatment of Plaintiff 2 Over the years, Dr. Romero treated Plaintiff for numerous physical conditions 3 relating to bilateral arm pain, bilateral leg pain, right shoulder and back pain, and right 4 rotator cuff repair, as well as mental conditions, namely depression and generalized 5 anxiety, the findings of which were central to the ALJ’s September 5, 2018 Notice of 6 Decision2. (AR 103.) 7 Between April 2013 through February 2016, Dr. Romero reported Plaintiff was 8 responding well to prescribed medication for pain management and observed that 9 Plaintiff’s condition continued to improve. (AR 759; 801; 1125; 1235; 1261; 1747; 1750.) 10 Further, Dr. Romero conducted ongoing physical examinations in response to Plaintiff’s 11 lower back and bilateral knee pain stemming from her 2011 workplace injury. Dr. 12 Romero’s notes on these physical examinations were largely unremarkable in documenting 13 “mild to moderate tenderness,” “negative SLR [straight leg raising test],” and “normal 14 strength and gait.” (AR 584-585; 609-610; 714-715; 720; 730; 736-737; 741-742; 746-747; 15 1112; 1117; 1127; 1133; 1144.) 16 Additionally, Dr. Romero assessed the state of Plaintiff’s mental health on an 17 ongoing basis. Dr. Romero’s progress notes reflected “[Plaintiff] has no difficulty focusing 18 on a subject” (AR 25), “no complaints of dizziness or vertigo” and a normal CT scan of 19 Plaintiff’s head in August 2015 (Id.), Plaintiff’s ability to “attend to and follow commands 20 normally and with intact memory” (AR 26), “no difficulty focusing on a subject” (Id.), 21 Plaintiff “was exercising by walking half a mile to one mile three times a week” (AR 31), 22 and that, despite Plaintiff’s disabling condition, which including depression and anxiety, 23 Plaintiff “[took] a number of trips, primarily to Mexico that involve[d] taking the bus which 24 [could] last up to 9 hours… [and] she was even able to make the international trip to the [26] 27 2 Various other state agency and independent physicians evaluated and treated Plaintiff for purposes of the relevant proceedings. Those physicians and medical experts’ opinions, notes, and records are [28] 1 Philippines where she stayed for 3 months.” (AR 29-30.) 2 In April 2016, Dr. Romero concluded Plaintiff was limited in her ability to work due 3 to lower back and leg pain. (AR 1204-1205.) Specifically, Dr. Romero found Plaintiff: 4 (1)would be off work 25 percent of the time due to trouble concentrating; 5 (2)would miss more than four days of work per month; 6 (3)could occasionally lift no more than 20 pounds or else worsen Plaintiff’s lower 7 back pain; 8 (4)could sit four hours per day and stand or walk three hours per day; 9 (5) required a sit/stand option at work; 10 (6)could frequently reach in all directions; 11 (7)could occasionally push and pull with the bilateral upper extremities; 12 (8)occasionally climb ramps and stairs but never climb ladders and scaffolds; 13 (9)rarely balance, stoop, kneel, crouch; 14 (10) never crawl; 15 (11) occasionally operate a motor vehicle; 16 (12) occasionally be exposed to extreme temperatures; 17 (13) and never be exposed to unprotected heights, pulmonary irritants, and 18 vibrations. (AR 1204-1207.) 19 c. The ALJ’s September 5, 2018 Notice of Decision 20 As noted, on September 5, 2018, the ALJ issued his Notice of Decision. The ALJ 21 set forth the following key findings that ultimately informed his conclusion that Plaintiff 22 was not disabled within the meaning of Title II3: 23 (1) “The claimant last met the insured status requirements of the Social Security Act on 24 December 31, 2016” (AR 24); 25 (2) “The claimant did not engage in substantial gainful activity during the period from [27] 3 The Court cites directly to all relevant portions of the ALJ’s September 5, 2018 Notice of Decision to [28] 1 her alleged onset date of June 15, 2011 through her date last insured of December 2 31, 2016 (20 CFR 404.1571, et seq.)” (Id.); 3 (3) “Through the date last insured, the claimant had the following severe impairments: 4 degenerative disc disease of the lumbar spine; status post bilateral shoulder surgeries 5 with residual bilateral shoulder pain; major depressive disorder; and post-traumatic 6 stress disorder (PTSD) (20 CFR 404.1520(c))” (Id.); 7 a. In so finding, the ALJ cited to the evidentiary record as follows: 8 • “Examinations show normal range of motion of the hips with no 9 neurological deficits” (AR 24); 10 • “No severe hip impairment is established” (Id.); 11 • “Neurologist Edward Friedman, M.D., who evaluated the claimant in May 12 2014 did not [find] evidence of any neurological disorder and opined that 13 there was no evidence to warrant further neurological testing. No severe 14 neurological impairment is established in connection with these 15 complaints” (Id.); 16 • “MRI scans of the cervical spine in August 2012 and April 2014 were 17 completely normal. CT scan of the cervical spine in August 2015 was 18 normal. Examinations of the cervical spine have been mostly normal other 19 than some reduced range of motion with tenderness and paraspinal muscle 20 spasms on rare occasions” (AR 25); [21] • “MRI scan of the left knee in May 2012 was normal. X-ray of the left knee [22] in November 2012 was negative. MRI of the left knee in September 2012 [23] was only remarkable for chrondromalacia of the medical margin of the [24] patella. MRI of the right knee in May 2012 was normal. Examinations of [25] the knees reveal full range of motion of the knees. No severe knee [26] impairment is established by the record” (Id.); [27] • “EMG/NCV testing in July 2012 was normal with no evidence of carpal [28] 1 neurologically intact. This is not a severe impairment” (Id.); 2 • “MRI scan of the left elbow in September 2012 showed mild distal triceps 3 tendinopathy” (Id.); 4 • “Attending physician Romero documented no complaints of dizziness or 5 vertigo. CT scan of [Plaintiff’s] head in August 2015 was normal. 6 Neurologist Edward Friedman, M.D., who evaluated the claimant in May 7 2014, did not find evidence of any neurological disorder and opined that 8 there was no evidence to warrant further neurological testing. No severe 9 neurological impairment is established in connection with the complaints 10 of vertigo and dizziness” (Id.); 11 • “There is no evidence of continued alcohol abuse. Therefore, her history 12 of alcohol abuse, in reported full remission, is not a severe impairment” 13 (Id.); and, finally, 14 • “There are no records that indicate that the claimant’s asthma had been a 15 significant problem requiring ongoing or regular treatment. Examinations 16 of her lungs have been normal. Her asthma is not a severe impairment.” 17 (Id.) 18 (4) “Through the date last insured, the claimant did not have an impairment or 19 combination of impairments that met or medically equaled the severity of one of the 20 listed impairments on 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 21 404.1520(d), 404.1525 and 404.1526)” (AR 26); 22 a. In so finding, the ALJ cited to the evidentiary record as follows: [23] • “In understanding, remembering, or applying information, the claimant had a [24] mild limitation. Progress notes from attending physician Romero show that [25] the claimant is able to attend to and follow commands normally and with [26] intact memory. Mental status examinations from PsyCare and Dr. Chavez [27] show that the clamant has been mostly cognitively intact since he began [28] treating the claimant in 2011, except for some visits in which he noted poor 1 memory. This limitation is consistent with the opinion of Dr. Nicholson” (AR 2 26); 3 • “In interacting with others, the claimant had a mild limitation. This limitation 4 is consistent with the opinion of Dr. Nicholson, [another physician who 5 examined Plaintiff]. The record shows that even with the claimant’s physical 6 and mental impairments, she has a fairly good support network consisting of 7 her immediate relative(s) and friends” (Id.); 8 • “With regard to concentrating, persisting, or maintaining pace, the claimant 9 had a moderate limitation. Progress notes from Dr. Romero show that the 10 claimant has no difficulty focusing on a subject. Mental status examinations 11 from PsyCare and Dr. Chavez show that claimant has been mostly cognitively 12 intact since he began treating claimant in 2011, except for some visits in which 13 he noted poor concentration. While Dr. Nicholson opined that the claimant 14 has a mild limitation in this domain, I have given the claimant the benefit of 15 the doubt and found a moderate limitation is indicated when considering the 16 combined effects of her depression, anxiety, and chronic pain” (Id.); and, 17 finally, 18 • “As for adapting or managing oneself, the claimant had experienced a 19 moderate limitation (one inpatient psychiatric hospitalization in July 2014. 20 However, mental health treatment records show that the claimant’s symptoms 21 have stabilized with treatment; there is no evidence of suicidal ideation, 22 suicide attempts, panic attacks, agoraphobia, or other exacerbations. She has 23 been able to live normally and even take a number of trips, primarily to 24 Mexico that can require up to a 9 hour bus ride… She even had a 3 month stay 25 in the Philippines. (AR 27.) Because the claimant’s mental impairments did 26 not cause at least two “market” limitations or one “extreme limitation, the 27 paragraph B criteria were not satisfied.” (Id.) 28 (5) “After careful consideration of the entire record, the undersigned finds that, through 1 the date last insured, the claimant had the residual functional capacity to perform 2 light work as defined in 20 CFR 404.1567(b) except for occasional bending, 3 stooping, crouching, climbing stairs, kneeling; no crawling or climbing ladders; and 4 due to her depression and anxiety, she is limited to no complex or highly detailed 5 work but can do simple or mildly detailed work” (AR 27); 6 a. In so finding, the ALJ cited to the evidentiary record as follows: 7 • “In making this finding, the undersigned has considered all symptoms and the 8 extent to which these symptoms can reasonably be accepted as consistent with 9 the objective medical evidence and other evidence, based on the requirements 10 of 20 CFR 404.1529 and SSR 16-3p. The undersigned has also considered 11 opinion evidence in accordance with the requirements of 20 CFR 404.1527.” 12 (AR 27.) 13 (6) “Through the date last insured, the claimant was unable to perform any of her past 14 relevant work (20 CFR 404.1565) (AR 32.) …I accept the testimony of the 15 vocational expert and so find” (AR 32); 16 (7) “The claimant was born on March 10, 1963 and was 53 years old, which is defined 17 as a young individual age 18-49, on the date last insured. The claimant subsequently 18 changed age category to closely approaching advance age (20 CFR 404.1563)” (Id.); 19 (8) “The claimant has a marginal education and is able to communicate in English” (Id.); 20 (9) “Transferability of job skills is not material to the determination of disability because 21 using the Medical-Vocational Rules as a framework supports a finding that the 22 claimant is ‘not disabled,’ whether or not the claimant has transferable job skills (See 23 SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2)” (Id.); 24 (10) “Through the date last insured, considering the claimant’s age, education, 25 work experience, and residual functional capacity, there were jobs that existed in 26 significant numbers in the national economy that the claimant could have performed 27 (20 CFR 404.1569 and 404.1569(a)” (Id.); and 28 (11) “The claimant was not under a disability, as defined in the Social Security 1 Act, at any time from June 15, 2011, the alleged onset date, through December 31, 2 2016, the date last insured (20 CFR 404.1520(g))” (AR 33). 3 Taking these findings together, the ALJ determined Plaintiff’s residual functional 4 capacity (“RFC”) was restricted by certain exertional limitations, specifically: (1) 5 occasionally lifting and/or carrying up to 20 pounds; (2) frequently lifting and/or carrying 6 up to 10 pounds; (3) standing and/or walking with normal breaks for approximately six 7 hours in an eight-hour workday; (4) occasionally climbing ramps and/or stairs; (5) never 8 climbing ladders, ropes, and/or scaffolds; and (6) occasionally stopping, kneeling, 9 crouching, and crawling. (AR 106-7.) In light of these limitations, the ALJ concluded, 10 “considering [Plaintiff’s] age, education, work experience, and residual functional 11 capacity, the claimant was capable of making a successful adjustment to other work that 12 existed in significant numbers in the national economy.” (Id.) Accordingly, the ALJ held 13 “Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act 14 through December 31, 2016, the date last insured.” (AR 33.) 15 III. LEGAL STANDARD 16 a. Title II Analysis 17 Under Title II of the Social Security Act, an applicant merits Social Security 18 Disability Insurance if (1) she suffers from a medically determinable impairment that has 19 endured or can be expected to endure for at least twelve consecutive months or is 20 reasonably likely to result in death; and (2) as a result of her impairment, she cannot 21 perform the work that she previously performed or any other gainful work within the 22 national economy. 42 U.S.C. § 423 (d)(2)(A) (emphasis added). At all times, the applicant 23 bears the burden of establishing her disability and entitlement to benefits. Valentine v. 24 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2007); Rhinehart v. Finch, 438 25 F.2d 920, 921 (9th Cir. 1971). Where the applicant makes such showing, the burden shifts 26 to the Commissioner to prove the applicant is still able to work and there is work available 27 for her. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); Kail v. Heckler, 722 F.2d 1496 , 28 1498 (9th Cir. 1984). 1 To evaluate whether an applicant is qualified under the Act, the court undertakes a 2 five-step inquiry, namely whether (1) the applicant is presently working in a substantially 3 gainful activity; (2) the subject impairment is severe; (3) the impairment “meets or equals” 4 one of the list of impairments itemized in the Social Security Regulations; (4) the applicant 5 is able to perform any work that she has not previously performed; and (5) the applicant is 6 able to perform any other work, where, if so, the Commissioner bears the burden of proving 7 “that there are a significant number of jobs in the national economy that the [applicant] can 8 do.” 20 C.F.R. § 404.1520 (1999). Importantly, the court’s inquiry ends where an applicant 9 is found to be “disabled” or “not disabled” at any step in the analysis. Id. 10 b. Judicial Review of Administrative Decisions on Title II Applications 11 Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of 12 the Commissioner’s final administrative decisions. 42 U.S.C. § 405 (g). The scope of 13 judicial review is limited. The Commissioner’s denial of benefits “will be disturbed only 14 if it is not supported by substantial evidence or is based on legal error.” Brawner v. Sec’y 15 of Health and Human Servs., 830 F.2d 432 , 433 (9th Cir. 1988); see also Sandgather v. 16 Chater, 108 F.3d 978 , 980 (9th Cir. 1997) (substantial evidence is “more than a mere 17 scintilla” but less than a preponderance). 18 At all times, the court must consider the record in its totality, weighing evidence that 19 both supports and weakens the Commissioner’s conclusions. Desrosiers v. Sec’y of Health 20 & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). Where an Administrative Law Judge 21 (“ALJ”) fails to apply the proper legal standards in reaching his decision, the court must 22 set aside the ALJ’s decision. Bayliss v. Barnhart, 427 F.3d 1211 , 1214 n.1 (9th Cir. 2005). 23 On the other hand, where the evidence supports more than one rational interpretation, the 24 court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 25 Under such circumstances, the court’s deference to the ALJ’s decision is compulsory. 26 Bayliss, 427 F.3d at1214 n.1; Sandqathe v. Chater, 108 F.3d 978 , 980 (9th Cir. 1997). 27 / / / 28 / / / 1 IV. DISCUSSION 2 a. The ALJ Properly Assessed Opinion Evidence 3 Plaintiff’s summary judgment motion is largely premised upon the contention that 4 the ALJ improperly weighed medical opinion evidence from Plaintiff’s treating physician, 5 Dr. Romero, in finding Plaintiff not disabled under Title II. (Doc. No. 18, 6-21.) In 6 particular, Plaintiff charges the ALJ with “substituting his own lay opinion for that of the 7 medical provider” by “reject[ing]… a medical provider’s opinion as inconsistent with their 8 own treatment notes.” (Doc. No. 18, 15:5-8.) Plaintiff also argues the ALJ wrongly 9 discounted Plaintiff’s examining physician, Dr. Sidney Levine’s (“Dr. Levine”), medical 10 opinion that Plaintiff was “disabled from carrying out her regular work activities” for 11 purposes of Plaintiff’s then-pending Worker’s Compensation claim. (AR 1796.) The Court 12 examines these two assertions in turn and finds neither persuasive. 13 i. Dr. Romero’s Medical Opinion 14 As a threshold matter, an ALJ is authorized to assess the credibility of medical 15 opinions in the record and assign weight to those opinions accordingly. 20 C.F.R. § 16 404.1527. In doing so, the ALJ must be able to articulate the basis for assigning more or 17 less weight to the relevant medical opinions. 20 C.F.R. § 404.1527 (c); Batson v. Comm’r 18 of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004). Contrary to what Plaintiff suggests, an 19 ALJ is not obligated to assign more weight to a medical opinion solely because that the 20 opinion was provided by a litigant’s treating physician. Rather, a medical opinion earns its 21 weight in proportion to the evidence and its consistency with “the record as a whole.” 20 22 C.F.R. § 404.1527 (c)(4); Valentine v. Astrue, 574 F.3d 685, 692-93 (9th Cir. 2009); Bray 23 v. Astrue, 554 F.3d 1219, 1228 (9th Cir. 2009). 24 Plaintiff cites a single case, Miller v. Astrue, in support of her proposition that the 25 ALJ improperly substituted his judgment for that of Dr. Romero’s regarding Plaintiff’s 26 medical condition. The pin cite Plaintiff submits to the Court states that an ALJ is “not at 27 liberty to ignore medical evidence or substitute his own views for uncontroverted medical 28 opinion.” Miller v. Astrue, 695 F.Supp.2d 1042, 1048 (C.D. Cal., Jan. 28, 2010) (citing 1 Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999); Day v. Weinberger, 522 F.2d 1154 , 1156 2 (9th Cir.1975); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998); Rohan v. Chater, 98 3 F.3d 966 , 970 (7th Cir.1996); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985)). As 4 a foundational matter, the Miller pin cite sets forth well-established law, and when applied 5 to the facts of this case, is rather inconsequential. To that end, the facts of Miller starkly 6 contrast the record here and does not support Plaintiff’s position regarding the ALJ’s 7 treatment of Dr. Romero’s medical opinion. Nevertheless, Plaintiff opted to 8 mischaracterize Miller to suggest the ALJ was not entitled to accounting for obvious 9 inconsistencies throughout Dr. Romero’s records in the ALJ’s Notice of Decision. 10 Plaintiff’s misleading citation to Miller is not well taken and makes apparent that Plaintiff 11 lacks legal authority to support her position, especially given that Miller is Plaintiff’s sole 12 legal support. 13 Moreover, Plaintiff fails to show any factual basis that the ALJ substituted his own 14 conceptions about Plaintiff’s medical condition for Dr. Romero’s medical opinion. Plaintiff 15 also does not present evidence the ALJ ignored Dr. Romero’s medical records to any 16 extent. Having reviewed the more than 2,500 pages of the administrative record, the Court 17 finds no such evidence exists. In fact, the ALJ’s Notice of Decision is supported by 18 citations to Dr. Romero’s medical opinion, the evidentiary record, and the inconsistencies 19 between the two. Plaintiff attempts to skirt this uncomfortable truth by suggesting the 20 inconsistencies within Dr. Romero’s medical opinions arise from Plaintiff’s “self21 description of her impairments and limitations,” which Dr. Romero noted during Plaintiff’s 22 medical appointments. (Doc. No. 18, 12:1-8.) Not so. 23 Discrepancies plainly exist between Dr. Romero’s opinions and the evidentiary 24 record itself, which includes the results of examinations Dr. Romero conducted on Plaintiff 25 and Dr. Romero’s notes on Plaintiff’s medical condition. As noted, since 2009, Dr. Romero 26 treated Plaintiff for numerous physical conditions relating to bilateral arm pain; bilateral 27 leg pain; right shoulder and back pain; and right rotator cuff repair, as well as mental 28 conditions, namely depression and generalized anxiety. (AR 103; 1204; 1935.) Throughout 1 his evaluation and treatment of Plaintiff, Dr. Romero conducted numerous physical and 2 mental examinations of Plaintiff’s medical condition, the findings of which are, at times, 3 at odds with Dr. Romero’s conclusions about Plaintiff’s disability status. To refresh, in 4 April 2016, Dr. Romero concluded Plaintiff was limited in her ability to work due to lower 5 back and leg pain. (AR 1204-1205.) As aforementioned, Dr. Romero found Plaintiff: 6 (1) would be off work 2 percent of the time due to trouble concentrating; 7 (2) would miss more than four days of work per month; 8 (3) could occasionally lift no more than 20 pounds or else worsen Plaintiff’s lower 9 back pain; 10 (4) could sit four hours per day and stand or walk three hours per day; 11 (5) required a sit/stand option at work; 12 (6) could frequently reach in all directions; 13 (7) could occasionally push and pull with the bilateral upper extremities; 14 (8) occasionally climb ramps and stairs but never climb ladders and scaffolds; 15 (9) rarely balance, stoop, kneel, crouch; 16 (10) never crawl; 17 (11) occasionally operate a motor vehicle; 18 (12) occasionally be exposed to extreme temperatures; 19 (13) and never be exposed to unprotected heights, pulmonary irritants, and 20 vibrations. (AR 1204-1207.) 21 Having considered Dr. Romero’s findings, the ALJ ultimately assigned marginal 22 weight to Dr. Romero’s opinion because it conflicted with Dr. Romero’s own notes, 23 Plaintiff’s examination results, evidence of Plaintiff’s rehabilitation and effective 24 treatment, Plaintiff’s own admissions regarding her physical and mental abilities, and the 25 opinions of agency physicians. (AR 30-31.) To that end, and rather notably, the ALJ 26 observed “the claimant has not generally received the type of medical treatment one would 27 expect for a totally disabled individual.” (AR 29.) 28 As to Plaintiff’s physical health, the ALJ observed Dr. Romero’s notes, Plaintiff’s 1 examination results under his care, and Plaintiff’s own admissions undermined Dr. 2 Romero’s finding of Plaintiff’s disabling condition. Between April 2013 through February 3 2016, Dr. Romero reported Plaintiff was responding well to prescribed medication for pain 4 management and observed Plaintiff’s condition continued to improve. (AR 759; 801; 1125; 5 1235; 1261; 1747; 1750.) Further, Dr. Romero conducted ongoing physical examinations 6 in response to Plaintiff’s alleged lower back and bilateral knee pain stemming from 2012 7 and the results of those examinations did not support Dr. Romero’s ultimate conclusions 8 on Plaintiff’s disability status. Specifically, between February 2012 and October 2014, 9 Plaintiff’s examination results were largely unremarkable and repeatedly comprised of Dr. 10 Romero’s notes of “mild to moderate tenderness,” “negative SLR [straight leg raising 11 test],” and “normal strength and gait.” (AR 584-585; 609-610; 714-715; 720; 730; 73612 737; 741-742; 746-747; 1112; 1117; 1127; 1133; 1144.) 13 Equally important, Plaintiff admitted to frequently traveling to Mexico, which 14 involved sitting through a nine-hour bus ride, and travelling internationally to the 15 Philippines for a period of three months. Dr. Romero acknowledged so in his notes. 16 Further, Dr. Romero also documented that Plaintiff “was exercising by walking half a mile 17 to one mile three times a week.” (AR 31.) Taken together, Plaintiff’s cross-border and 18 international travels and ability to exercise multiple times on a weekly basis belied Dr. 19 Romero’s position that Plaintiff would be substantially limited in her range of motion and 20 physical stamina in a functional capacity at work. (AR 30-31.) It was, therefore, reasonable 21 for the ALJ to discount Dr. Romero’s assessment of Plaintiff’s physical health when 22 viewed in totality of the evidentiary record. 23 As to Plaintiff’s mental health, the ALJ noted “mental health treatment records show 24 that claimant’s symptoms have stabilized with conservative mental health treatment.” (AR 25 29.) The ALJ highlighted a lack of evidence of weight loss, sleep deprivation, and cognitive 26 deficits “due to pain or depression.” (AR 30.) As noted immediately above, Dr. Romero’s 27 own notes indicate that, despite her reportedly disabling condition, Plaintiff “has been able 28 to take a number of trips, primarily to Mexico that involve taking the bus which can last 1 up to 9 hours… she was even able to make the international trip to the Philippines where 2 she stayed for 3 months.” (AR 29-30.) Plaintiff’s general mental wellness was underscored 3 by other medical consultants, including state agency doctors and attending psychiatrist Dr. 4 Mario Chavez, who observed Plaintiff was “doing okay” and that she “had no problems,” 5 which was affirmed in a progress note on June 15, 2015.” (Id.) Further, the ALJ observed 6 “the objective medical evidence shows that the medications have been relatively effective 7 in controlling the claimant’s symptoms… Moreover, the claimant has not alleged any side 8 effects from the use of medications…” (Id.) With these circumstances in mind, the Court 9 finds no basis to conclude the ALJ acted improperly when he declined to place more weight 10 on Dr. Romero’s medical opinion. In view of the record the ALJ cited in his Notice of 11 Decision, the evidence suggests Plaintiff was objectively better off than Dr. Romero 12 concluded in April 2016 and not limited to the severe extent Dr. Romero represented. 13 Based on the above, the ALJ concluded, “the record does not show that the claimant 14 requires any special accommodations to relieve her pain or other symptoms… In contrast 15 to the allegations of claimant’s disabling pain and limitation, she does not exhibit any 16 significant atrophy, loss of strength, or difficulty moving that are indicative of severe and 17 disabling pain…. There is no evidence of weight loss… there is no evidence of sleep 18 deprivation... there is no evidence of cognitive deficits… Consequently, taking into account 19 the claimant’s statements concerning the intensity, persistence, and limiting effective of 20 her symptoms, the record does not support a more restrictive residual functional capacity 21 than that found above for the period prior to the date last insured.” (AR 29-30.) The Court 22 strains to find impropriety in ALJ’s decision to assign less weight to Dr. Romero’s medical 23 opinion, considering the evidentiary record controverts Dr. Romero’s broad conclusions of 24 Plaintiff’s disability status. 25 ii. Dr. Levine’s Vocational Statement 26 Plaintiff also argues the ALJ’s Notice of Decision did not sufficiently account for 27 Dr. Levine’s March 12, 2012 statement that “Plaintiff was disabled from carrying out her 28 regular work activities.” (AR 1796.) Plaintiff adds that Dr. Levine testified “an individual 1 who requires even one extra unscheduled break, and/or would be absent three days per 2 months, is unable to maintain competitive employment.” (AR 65.) From this solitary 3 excerpt, Plaintiff concludes she sufficiently demonstrated her total disability to the ALJ, 4 when taken together with Dr. Romero’s medical opinion described above. (AR 65.) 5 Plaintiff errs in doing so. “Opinions on some issues… are, instead, opinions on issues 6 reserved to the Commissioner because they are administrative findings that are dispositive 7 of a case.” 20 C.F.R. § 404.1527 (d). Specifically, the Code of Federal Regulations on 8 employee disability benefits reserves “opinions that you are disabled” exclusively for the 9 Commissioner’s determination. 20 C.F.R. § 404.1527 (d)(1). Importantly, and for this very 10 reason, the Commissioner “will not give any special significance to the source of an 11 opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) 12 of this section.” 20 C.F.R. § 404.1527 (d)(3). 13 As a foundational matter, Dr. Levine’s statement regarding Plaintiff’s inability to 14 carry out her “regular work activities” does not de facto make Plaintiff totally or partially 15 disabled such that Plaintiff may be precluded from maintaining any employment available 16 in the national economy. See generally 20 C.F.R. § 404.1520 . As Defendant points out, 17 taking his statement in the context of the entirety of his March 12, 2012 report, Dr. Levine 18 noted Plaintiff was specifically limited in one aspect of her prior work as a caregiver, 19 namely lifting 100 or more pounds at a time. Beyond this observation, Dr. Levine’s March 20 12, 2012 report summarizes overall unremarkable physical examination results, including, 21 but not limited to, “slight narrowing of the L5-S1 intervertebral disc space, [where] the 22 remaining disc spaces are adequately maintained,” “no evidence of fracture or bony 23 abnormalities” in the hips, “normal x-ray examination of the pelvis,” “the glenohumeral 24 joint appears normal” in the left shoulder, “no evidence of fracture, soft tissue calcification, 25 or bony abnormality” in either the right or left knee, and “normal x-ray examination” of 26 both the right and left knees. (AR 1792.) 27 The ALJ ultimately accepted and found in favor of Dr. Levine’s testimony as a 28 vocational expert, first as to Dr. Levine’s determination that Plaintiff “actually performed 1 her past work at the heavy/ very heavy exertional level” and second as to Dr. Levine’s 2 opinion, based on Plaintiff’s RFC finding, that Plaintiff was “unable to perform any of her 3 past relevant work, either as actually done or as generally done in the national economy.” 4 (AR 32.) Concurrently, however, the ALJ’s acceptance of Dr. Levine’s two central findings 5 does not require the ALJ to extrapolate from Dr. Levine’s opinion and conclude Plaintiff 6 was totally disabled and unable to participate in any capacity in the national economy. To 7 do so would subvert the very regulations to which the ALJ is bound, namely to make 8 independent decisions on the matter of a claimant’s disability status. 9 Based on the totality of the record, the ALJ’s own determinations that Plaintiff (1) 10 was able to perform light work consisting of, in part, carrying up to 20 pounds at a time 11 and (2) could no longer work as a caregiver due to her physical condition align with Dr. 12 Levine’s findings about Plaintiff’s functional limitations. Thus, the ALJ accounted for Dr. 13 Levine’s vocational statement in, appropriately, making an independent and objective 14 decision regarding Plaintiff’s disability status. For these reasons, the Court finds the ALJ 15 appropriately treated Dr. Levine’s vocational statement in the context of issuing his 16 September 5, 2018 Notice of Decision. 17 b. The ALJ Properly Assessed Plaintiff’s Residual Functional Capacity 18 In supplementing her argument regarding the ALJ’s failure to properly evaluate 19 medical opinion evidence, Plaintiff maintains the ALJ neglected to consider Plaintiff’s 20 “moderate difficulties in concentration, persistence, or pace” in issuing his RFC finding. 21 (Doc. No. 18., 22:10-13.) Plaintiff contends that, despite acknowledging her “poor 22 concentration at some [medical] visits, and, due to her depression, anxiety and chronic 23 pain,” the ALJ “included no limitations regarding concentration, persistence, or pace in the 24 RFC, but only limited [Plaintiff] to simple or mildly detailed work.” (Id., 22:13-21.) For 25 this reason, Plaintiff posits the ALJ fell short of providing the “more detailed assessment” 26 the RFC inquiry calls. The Court disagrees. In looking to the ALJ’s Notice of Decision, 27 there is ample detail to demonstrate the ALJ examined and accounted for evidence bearing 28 on Plaintiff’s ability to concentrate, maintain stamina, and pace herself in mental tasks, 1 amongst other categories of assessment, that commonly arise in the workplace. 2 At all times, “it is the responsibility of the ALJ ... to determine residual functional 3 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Consequently, the ALJ 4 is considered the final arbiter in resolving ambiguities in the medical evidence; thus, his 5 conclusions are subject to substantial deference. Tommasetti v. Astrue, 533 F.3d 1035 , 1041 6 (9th Cir. 2008); Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). Notably, “the 7 Commissioner’s findings are upheld if supported by inferences reasonably drawn from the 8 record.” Id. Here, the ALJ’s Notice of Decision is readily supported by inferences that are 9 reasonably drawn from the record as it pertains to Plaintiff’s mental faculties and range. 10 The ALJ notes Plaintiff had a “mild limitation” in “understanding, remembering, or 11 applying information,” Dr. Romero’s progress notes “show[ed] [Plaintiff] is able to attend 12 to and follow commands normally and with intact memory,” Dr. Chavez’s examinations 13 also demonstrated Plaintiff “has been mostly cognitively intact since he began treating 14 [Plaintiff] in 2011, except for some visits in which he noted poor memory,” and that Dr. 15 Chavez’s report was consistent with Dr. Nicholson’s medical opinion. (AR 26.) 16 The ALJ continued in noting that, although Plaintiff had a “moderate limitation” in 17 concentrating, persisting, or maintaining pace, Dr. Romero’s progress notes “show[ed] that 18 [Plaintiff] has no difficulty focusing on a subject” and that Dr. Chavez determined Plaintiff 19 “has been mostly cognitively intact since he began treating [her] in 2011, except for some 20 visits in which he noted poor concentration.” (AR 26.) Further, despite observing that Dr. 21 Nicholson opined Plaintiff only had a “mild limitation” in this area, the ALJ “ha[d] given 22 [Plaintiff] the benefit of the doubt and found a moderate limitation [was] indicated when 23 considering the combined effects of her depression, anxiety, and chronic pain.” (Id.) 24 Additionally, regarding Plaintiff’s ability to adapt and manage herself, the ALJ 25 found Plaintiff “had experienced a moderate limitation, including of one in-patient 26 psychiatric hospitalization in July 2014. (AR 27.) Concurrently, the ALJ noted Plaintiff’s 27 mental health records indicated that she had “stabilized with treatment, [and] there [was] 28 no evidence of suicidal ideation, suicidal attempts, panic attacks, agoraphobia, or other 1 exacerbations.” (Id.) The ALJ also accounted for Plaintiff’s admissions regarding her 2 ability to travel multiple times to Mexico per year and travel internationally to the 3 Philippines and stay there for a period of three months. (Id.) 4 Taken together, the ALJ’s assessments of Plaintiff’s mental health and, specifically, 5 her ability to concentrate, persist, and maintain pace were sufficiently detailed and 6 supported by the record. Further, the ALJ exercised his discretion to Plaintiff’s benefit in 7 finding a “moderate limitation” in Plaintiff’s ability to concentrate, persist, and maintain 8 pace and, from there, determining that Plaintiff could still perform simple or mildly detailed 9 worked. (AR 26-27, 30-31.) Lee v. Berryhill, 721 F. App’x 604 , 608 (9th Cir. 2017) (that 10 plaintiff experienced moderate mental limitations reasonably supported the ALJ’s RFC 11 finding that plaintiff could still perform simple tasks); Stubbs-Danielson v. Astrue, 539 12 F.3d 1169, 1174-1176 (9th Cir. 2008) (same, and noting no impropriety in ALJ’s decision 13 that plaintiff could perform simple, repetitive tasks in light of his moderate difficulties 14 concentrating, persisting, and maintaining pace and the medical record in evidence). The 15 ALJ made these determinations in spite of Dr. Nicholson’s medical opinion that Plaintiff 16 was only mildly limited in such mental functions. Thus, the ALJ appropriately considered 17 the evidentiary record and, where warranted, gave Plaintiff the benefit of the doubt in 18 determining she “did not have an impairment or combination of impairments that met or 19 medically equaled the severity of one of the listed impairments on 20 CFR Part 404, 20 Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” (AR 26.) 21 V. CONCLUSION 22 For the foregoing reasons, the Court recommends that Plaintiff’s summary judgment 23 motion be DENIED and Defendant’s cross-summary judgment motion be GRANTED. 24 This Report and Recommendation is hereby submitted to the United States District Judge 25 Gonzalo P. Curiel, pursuant to 28 U.S.C section 636(b)(1) and Rule 72(b) of the Federal 26 Rules of Civil Procedure. 27 / / / 28 / / / 1 Finally, it is ORDERED that, no later than Thursday, February 11, 2021, any 2 || party to this action may file written objections with the Court and serve a copy on all 3 || parties. The document should be captioned “Objections to Report and Recommendation.” A ||No reply briefs in response to the Objections will be accepted. 5 IT IS SO ORDERED. 6 || Dated: February 3, 2021 □ Se [7] g Hon. William V. Gallo United States Magistrate Judge