1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ) JOYCE THERESA HERBON, ) Case No. CV 19-00838-JEM 12 ) Plaintiff, ) 13 ) MEMORANDUM OPINION AND ORDER v. ) AFFIRMING DECISION OF THE 14 ) COMMISSIONER OF SOCIAL SECURITY ANDREW M. SAUL, ) 15 Commissioner of Social Security, ) ) 16 Defendant. ) ) 17 PROCEEDINGS 18 On February 4, 2019, Joyce Theresa Herbon (“Plaintiff” or “Claimant”) filed a complaint 19 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 20 denying Plaintiff’s application for Social Security Disability Insurance benefits. (Dkt. 1.) The 21 Commissioner filed an Answer on May 13, 2019. (Dkt. 13.) On November 18, 2019, the 22 parties filed a Joint Stipulation (“JS”). (Dkt. 21.) The matter is now ready for decision. 23 Pursuant to

(c), both parties consented to proceed before this 24 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 25 the Court concludes that the Commissioner’s decision must be affirmed and this case 26 dismissed with prejudice. 27 28 1 BACKGROUND 2 Plaintiff is a 56 year-old female who applied for Social Security Disability Insurance 3 benefits on February 2, 2016, alleging disability beginning October 1, 2014. (AR 15.) The ALJ 4 determined that Plaintiff has not engaged in substantial gainful activity since October 1, 2014, 5 the alleged onset date. (AR 17.) 6 Plaintiff’s claim was denied initially on June 24, 2016. (AR 15.) Plaintiff filed a timely 7 request for hearing, which was held before Administrative Law Judge (“ALJ”) James Carberry 8 on February 1, 2018, in Norwalk, California. (AR 15.) Plaintiff appeared and testified at the 9 hearing and was represented by counsel. (AR 15.) Vocational expert (“VE”) June C. Hagen 10 also appeared and testified at the hearing. (AR 15.) 11 The ALJ issued an unfavorable decision on March 21, 2018. (AR 15-30.) The Appeals 12 Council denied review on December 10, 2018. (AR 1-3.) 13 DISPUTED ISSUES 14 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 15 grounds for reversal and remand: 16 1. Whether the ALJ properly considered Plaintiff’s testimony and made appropriate 17 credibility findings. 18 2. Whether the ALJ properly considered the opinions of Plaintiff’s primary doctor, 19 Rafael Rubalcava, M.D. 20 STANDARD OF REVIEW 21 Under

(g), this Court reviews the ALJ’s decision to determine whether 22 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 23 Chater,

, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan,

, 846 24 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 25 based on the proper legal standards). 26 Substantial evidence means “‘more than a mere scintilla,’ but less than a 27 preponderance.” Saelee v. Chater,

(9th Cir. 1996) (quoting Richardson v. 28 Perales,

(1971)). Substantial evidence is “such relevant evidence as a 4 | reasonable mind might accept as adequate to support a conclusion.” Richardson,

|| 401 (internal quotation marks and citation omitted). 3 This Court must review the record as a whole and consider adverse as well as 4|| supporting evidence. Robbins v. Soc. Sec. Admin.,

(9th Cir. 2006). Where 5, | evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be g | upheld. Morgan v. Comm'r of the Soc. Sec. Admin.,

(9th Cir. 1999). 7 | ‘However, a reviewing court must consider the entire record as a whole and may not affirm g | simply by isolating a ‘specific quantum of supporting evidence.” Robbins,

g | (quoting Hammock v. Bowen,

(9th Cir. 1989)); see also Orn v. Astrue, 495 10 | F-3d 625, 630 (9th Cir. 2007). 11 THE SEQUENTIAL EVALUATION 12 The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which 44 | can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months.”

(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 16 | established a five-step sequential process to determine whether a claimant is disabled. 20 C-F.R. §§ 404.1520, 416.920. 18 The first step is to determine whether the claimant is presently engaging in substantial 49 | gainful activity. Parra v. Astrue,

(9th Cir. 2007). If the claimant is engaging 20 | in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert,

, 24 | 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 22 | combination of impairments. Parra,

. An impairment is not severe if it does not 23, | Significantly limit the claimant's ability to work. Smolen,

. Third, the ALJ must 24 | determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 25 | Pt. 404, Subpt. P, Appendix | of the regulations. Parra,

. If the impairment 26 | Meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 97 |

. Fourth, the ALJ must determine whether the impairment prevents the 2g | claimant from doing past relevant work. Pinto v. Massanari,

(9th Cir.

1 2001). Before making the step four determination, the ALJ first must determine the claimant’s 2 residual functional capacity (“RFC”).

(e). The RFC is “the most [one] can 3 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 4 evidence.”

(a)(1), 416.945(a)(1). The RFC must consider all of the 5 claimant’s impairments, including those that are not severe.

(e), 6 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 7 If the claimant cannot perform his or her past relevant work or has no past relevant work, 8 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 9 claimant from performing any other substantial gainful activity. Moore v. Apfel,

, 10 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 11 consistent with the general rule that at all times the burden is on the claimant to establish his or 12 her entitlement to benefits. Parra,

. Once this prima facie case is established 13 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 14 other gainful activity. Lounsburry v. Barnhart,

(9th Cir. 2006). To support 15 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 16 demonstrating that other work exists in significant numbers in the national economy that the 17 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 18 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 19 entitled to benefits. Id. 20 THE ALJ DECISION 21 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 22 not engaged in substantial gainful activity since October 1, 2014, the alleged onset date. (AR 23 17.) 24 At step two, the ALJ determined that Plaintiff has the following medically determinable 25 severe impairments: multiple sclerosis, anxiety, affective disorder. (AR 17-18.) 26 At step three, the ALJ determined that Plaintiff does not have an impairment or 27 combination of impairments that meets or medically equals the severity of one of the listed 28 impairments. (AR 18-19.) 1 The ALJ then found that Plaintiff had the RFC to perform light work as defined in 20

(b) with the following limitations: 3 Claimant can lift, carry, push, or pull 20 lbs. occasionally and 10 lbs. frequently; 4 she can stand and/or walk 6 hours in an 8-hour workday; she can sit 6 hours in an 5 8-hour workday; she can frequently climb ramps or stairs, but never ladders, 6 ropes, or scaffolds; she can frequently balance, stoop, kneel, crouch, and crawl; 7 she should have no exposure to unprotected heights or dangerous machines; she 8 can only perform simple, routine, and repetitive tasks, but not at a fast pace. 9 (AR 20-28.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 10 subjective symptom allegations were “not entirely consistent” with the medical evidence and 11 other evidence of record. (AR 20.) 12 At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as 13 an office manager. (AR 28.) The ALJ, however, also found at step five that, considering 14 Claimant’s age, education, work experience and RFC, there are jobs that exist in significant 15 numbers in the national economy that Claimant can perform, including the jobs of marker and 16 routing clerk. (AR 28-29.) 17 Consequently, the ALJ found that Claimant is not disabled within the meaning of the 18 Social Security Act. (AR 29-30.) 19 DISCUSSION 20 The ALJ decision must be affirmed. The ALJ properly considered the medical evidence. 21 The ALJ properly discounted Plaintiff’s subjective symptom allegations. The ALJ’s RFC is 22 supported by substantial evidence. 23 I. THE ALJ’S RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE 24 A. The ALJ Properly Considered The Medical Evidence 25 Plaintiff contends that the ALJ erred in rejecting the testimony of Dr. Rafael Rubalcava. 26 The Court disagrees. 27 28 1 1. Relevant Federal Law 2 The ALJ’s RFC is not a medical determination but an administrative finding or legal 3 || decision reserved to the Commissioner based on consideration of all the relevant evidence, 4|| including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 5 | C.F.R. § 1527(e). In determining a claimant's RFC, an ALJ must consider all relevant evidence g || in the record, including medical records, lay evidence, and the effects of symptoms, including 7 | pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 8 In evaluating medical opinions, the case law and regulations distinguish among the g || Opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) 49 | those who examine but do not treat the claimant (examining physicians); and (3) those who 41 | neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20

, 416.927; see also Lester v. Chater,

(9th Cir. 1995). In general, an ALJ must accord special weight to a treating physician’s opinion because a treating 44 | Physician “is employed to cure and has a greater opportunity to know and observe the patient 45 as an individual.” Magallanes v. Bowen,

(9th Cir. 1989) (citation omitted). If 16 | 2 treating source’s opinion on the issues of the nature and severity of a claimant's impairments 17 | is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 18 not inconsistent with other substantial evidence in the case record, the ALJ must give it 49 || ‘controlling weight.”

(d)(2), 416.927(d)(2). 20 Where a treating doctor’s opinion is not contradicted by another doctor, it may be 24 | rejected only for “clear and convincing” reasons. Lester,

. However, if the 99 | treating physician's opinion is contradicted by another doctor, such as an examining physician, 93 | the ALJ may reject the treating physician’s opinion by providing specific, legitimate reasons, 24 | Supported by substantial evidence in the record. Lester,

; see also Orn, 495 25 F.3d at 632; Thomas v. Barnhart,

(9th Cir. 2002). Where a treating 26 | Physician's opinion is contradicted by an examining professional's opinion, the Commissioner 97 | may resolve the conflict by relying on the examining physician’s opinion if the examining 28 | Physician’s opinion is supported by different, independent clinical findings. See Andrews v.

Rr

1 Shalala,

(9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 2 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 3 reasons. Bayliss v. Barnhart,

(9th Cir. 2005). If an examining physician’s 4 opinion is contradicted by another physician’s opinion, an ALJ must provide specific and 5 legitimate reasons to reject it.

However, “[t]he opinion of a non-examining physician cannot 6 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 7 examining physician or a treating physician”; such an opinion may serve as substantial 8 evidence only when it is consistent with and supported by other independent evidence in the 9 record. Lester,

; Morgan,

. 10 2. Analysis 11 Plaintiff claims she is unable to work because of multiple sclerosis with concentration 12 deficits. (AR 20.) She alleges symptoms of fatigue, imbalance, dizziness, depression, anxiety, 13 frustration, heat and cold intolerance, leg numbness, leg spasms, diffuse pain, lower extremity 14 weakness, and difficulty concentrating. (AR 21.) The ALJ did find that Plaintiff has the 15 medically determinable severe impairments of multiple sclerosis, anxiety, and affective 16 disorder. (AR 17.) Notwithstanding those impairments, the ALJ assessed Plaintiff with a 17 reduced range of light work RFC (AR 19-20) and thus concluded Plaintiff was not disabled from 18 the alleged onset date of October 1, 2014, through the date of decision on March 21, 2018. 19 (AR 30.) 20 In June 2016, consulting psychiatrist Dr. Ernest Bagner assessed that Plaintiff had 21 mostly mild functional limitations due to her mental impairments. (AR 23-24, 25.) There was 22 no evidence of significant ongoing mental status abnormalities. (AR 21, 24-25, 26.) Her 23 mental health treatment has been generally conservative involving routine medication 24 management. (AR 21, 24-25, 26.) Plaintiff admitted at the hearing that she was no longer 25 seeing a mental health professional. (AR 21, 25, 26.) In June 2016, State agency reviewing 26 physician Dara Goosby opined that Plaintiff has retained the mental capacity to perform work 27 involving simple and some detailed tasks, with limited public contact. (AR 24.) In January 1 out simple and repetitive instructions. (AR 25.) The ALJ adopted these limitations in the RFC. 2 (AR 20.) Plaintiff does not challenge the ALJ’s findings regarding Plaintiff’s mental 3 impairments. 4 Physically, Plaintiff’s treatment notes demonstrate generally stable symptoms and 5 routine medical treatment that remained generally unchanged during the alleged period of 6 disability. (AR 25, 27.) No less than four physicians assessed Plaintiff with a light work RFC 7 with restrictions. On May 24, 2016, Plaintiff was evaluated by consulting internist Dr. Rocyely 8 Ella-Tamayo. (AR 23.) Dr. Tamayo noted a 2014 MRI study that showed lesions of multiple 9 sclerosis. (AR 23.) Plaintiff reported she was able to drive. (AR 23.) She was in no acute 10 distress, her gait was normal, and physical and neurological examinations were normal. (AR 11 23.) Dr. Ella-Tamayo opined that Plaintiff could perform light work. (AR 126.) The ALJ gave 12 significant weight to this opinion. (AR 26.) 13 On June 18, 2016, State agency reviewing physician Dr. A. Alston opined Plaintiff can 14 perform a restricted range of light work. (AR 25.) On November 28, 2017, State agency 15 reviewing physician Dr. R. Cohen also opined that Plaintiff can perform light work with 16 restrictions. (AR 26.) 17 On January 17, 2018, Plaintiff underwent a consulting examination with consulting 18 internist, Dr. Sheila Benrazavi. (AR 24.) Dr. Benrazavi’s examination was largely normal with 19 no atrophy; Plaintiff had normal reflexes, and her gait was normal. (AR 24.) Dr. Benrazavi 20 opined Plaintiff was capable of performing a reduced range of medium work. (AR 26.) 21 In marked contrast to the above medical opinion evidence, Plaintiff’s treating doctor 22 Dr. Rafael Rubalcava opined Plaintiff was totally disabled, could perform only less than 23 sedentary work, would miss more than 4 days of work per month, and was incapable of even 24 low stress work. (AR 27.) The ALJ rejected Dr. Rubalcava’s opinion as poorly supported and 25 inconsistent with the medical record. An ALJ may reject a treating physician’s opinion that is 26 unsupported by the record as a whole. Batson v. Comm’r,

, 1195 and n.3 (9th 27 Cir. 2004); Bayliss,

. Dr. Rubalcava’s opinion is contradicted by the four medical opinions discussed above, which conclude that Plaintiff is capable of light or medium 1 || work. (AR 27.) The contradictory opinions of other physicians provide specific, legitimate 2 || reasons for rejecting a physician’s opinion. Tonapetyan v. Halter,

(9th 3 Cir. 2001). The ALJ also noted that Plaintiff has been able to perform significant activities of 4 || daily living (discussed below) indicative of greater functional capacity than alleged. (AR 27.) 5 | An ALJ may reject a physician’s opinion that is contradicted by a claimant’s own admitted or 6 | observed abilities. Bayliss,

. 7 Plaintiff disagrees with the ALJ’s evaluation of the record, but it is the ALJ’s 8 || responsibility to resolve conflicts in the medical evidence and ambiguities in the record. 9 || Andrews,

. Where the ALJ’s interpretation of the record is reasonable, as it is 10 | here, it should not be second-guessed. Rollins v. Massanari, 261 F.3d at 853, 857 (9th Cir. 11 || 2001); Thomas,

(“Where the evidence is susceptible to more than rational 12 | interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 13 | upheld.”). 14 The ALJ’s rejection of the opinion of Dr. Rubalcava is based on substantial evidence. The ALJ properly considered the medical evidence. 16 B. The ALJ Properly Discounted Plaintiff's Subjective Symptom Allegations " Plaintiff contends that the ALJ erred in discounting Plaintiff's subjective symptom "8 allegations. The Court disagrees. "9 1. Relevant Federal Law 20 The test for deciding whether to accept a claimant’s subjective symptom testimony turns a" on whether the claimant produces medical evidence of an impairment that reasonably could be 22 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan,

(9th Cir. 1991); see also Reddick v. Chater,

(9th Cir. 1998); Smolen, 80 “a F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 2 severity of symptoms merely because they are unsupported by objective medical evidence. Reddick,

; Bunnell,

. If the ALJ finds the claimant’s pain testimony not credible, the ALJ “must specifically make findings which support this conclusion.”

GQ

1 | Bunnell,

. The ALJ must set forth “findings sufficiently specific to permit the 2 || court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. 3 | Barnhart,

; see also Rollins, 261 F.3d at 857; Bunnell,

. 4] Unless there is evidence of malingering, the ALJ can reject the claimant’s testimony about the 5 | severity of a claimant’s symptoms only by offering “specific, clear and convincing reasons for 6 | doing so.” Smolen,

; see also Reddick,

. The ALJ must 7 | identify what testimony is not credible and what evidence discredits the testimony. Reddick, 8 |

; Smolen,

. 9 2. Analysis 10 In determining Plaintiffs RFC, the ALJ concluded that Plaintiff's medically determinable 11 || severe impairments reasonably could be expected to cause the alleged symptoms. (AR 20.) 12 || The ALJ, however, also found that Plaintiff's statements regarding the intensity, persistence, 13 | and limiting effects of these symptoms are “not entirely consistent” with the medical evidence 14 || and other evidence of record. (AR 20.) Because the ALJ did not make any finding of 15 || malingering, he was required to provide clear and convincing reasons supported by substantial 16 | evidence for discounting Plaintiff's subjective symptom allegations. Smolen,

- 17 | 84; Tommasetti v. Astrue,

(9th Cir. 2008). The ALJ did so. 18 First, the ALJ found that a number of extensive medical evaluations demonstrated 19 || objective medical findings indicative of greater functional capacity than alleged. (AR 21, 23, 20 | 25.) An ALJ is permitted to consider whether there is a lack of medical evidence to corroborate 21 || claimant’s alleged symptoms so long as it is not the only reason for discounting a claimant’s 22 | subjective symptom allegations. Burch v. Barnhart,

(9th Cir. 2005). 23 | Here, Plaintiff's treatment notes demonstrate generally stable symptoms and greater physical 24 || functional capacity than alleged. (AR 21.) Independent consulting examinations showed 25 | clinical abnormalities indicative of lesser severity of symptoms than alleged by Plaintiff. (AR 26 | 23.) Four physicians opined Plaintiff could perform light or medium work, as summarized 27 | above. Mental health professionals found Plaintiff could carry out simple, repetitive 28 || instructions. (AR 24, 25.) 4N

1 Second, Plaintiff's treatment was largely conservative in nature consisting of medication 2 || and some physical and occupational therapy. (AR 21-24.) An ALJ may consider conservative 3 || treatment in evaluating subjective symptom allegations. Tommasetti,

. Impairments that can be controlled with medication are not disabling. Warre v. Comm’r of Soc. 5 || Sec.,

(9th Cir. 2006). 6 Third, the ALJ found that Plaintiff's activities of daily living were inconsistent with her 7 | subjective symptom allegations, which is a legitimate consideration in evaluating those 8 || allegations. Bunnell,

. Here, the ALJ found that Plaintiff had reported 9 | “significant activities of daily living.” (AR 21.) These include performing household chores, 10 | running errands, shopping, and cooking. (AR 23.) She also is able to drive. (AR 23.) Plaintiff 11 || contends that these activities do not mean she can work a full time job but the inconsistent 12 | daily activities prove that her alleged symptoms are not as severe as alleged. See Valentine v. 13 | Comm’r,

(9th Cir. 2009). 14 Plaintiff disagrees with the ALJ’s evaluation of the evidence, but it is the ALJ’s 15 | responsibility to resolve conflicts in the medical evidence and ambiguities in the record. 16 | Andrews,

. Where the ALJ’s interpretation of the record is reasonable, as it is 17 | here, it should not be second-guessed. Rollins, 261 F.3d at 857; Thomas,

18 | (“Where the evidence is susceptible to more than rational interpretation, one of which supports 19 || the ALJ’s decision, the ALJ’s conclusion must be upheld.”). 20 The ALJ discounted Plaintiff's subjective symptom allegations for clear and convincing 21 || reasons supported by substantial evidence. 99 23 The ALJ’s RFC is supported by substantial evidence.

25 The ALJ’s nondisability determination is supported by substantial evidence and free of 26 | legal error. 27 | 28 || /// 44

1 ORDER 2 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 3 Commissioner of Social Security and dismissing this case with prejudice. 4 5 DATED: March 17, 2020 /s/ John E. McDermott JOHN E. MCDERMOTT 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27