1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENEE LYNN OKAFUJI, No. 2:22-cv-1802 AC 12 Plaintiff, 13 v. ORDER 14 MARTIN O’MALLEY, Acting Commissioner of Social Security, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under 20 Title II of the Social Security Act (“the Act”),

For the reasons that follow, 21 plaintiff’s motion for summary judgment will be DENIED, and defendant’s cross-motion for 22 summary judgment will be GRANTED. 23 //// 24 //// 25 //// 26 ///

27 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and who suffer from a mental or physical disability.

(a)(1); Bowen v. City of New

U.S. 467, 470 (1986). 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for DIB on June 29, 2018. Administrative Record (“AR”) 168.2 The 3 disability onset date was alleged to be January 1, 2017, which was later amended to December 31, 4 2016. AR 24, 168. The application was disapproved initially and on reconsideration. AR 67-98. 5 On May 14, 2019, ALJ Matilda Surh presided over the hearing on plaintiff’s challenge to the 6 disapprovals. AR 39 – 66 (transcript). Plaintiff, who appeared with her counsel Ms. Foss, was 7 present at the hearing. AR 41. Susan Allison, a Vocational Expert (“VE”), also testified at the 8 hearing.

On June 5, 2019, the ALJ found plaintiff “not disabled” under Sections 216(i) and 9 223(d) of Title II of the Act,

(i), 423(d). AR 22-33 (decision), 34-37 (exhibit 10 list). Plaintiff appealed this decision to Appeals Council, which denied her appeal on April 13, 11 2020. AR 944-959. Plaintiff then timely filed a complaint in U.S. District Court on September 12 25, 2020. AR 944-950. The case was remanded for a new hearing by the U.S. District Court, per 13 the stipulation of the parties, on March 11, 2021. AR 956-963. 14 Ms. Okafuji appeared and testified at a remand hearing on September 20, 2021, again 15 before ALJ Matilda Surh. AR 897-920. Plaintiff was represented by counsel Jonathan Omar 16 Pena, and Mark J. Kelman testified as the VE. AR 897. The ALJ issued a second unfavorable 17 decision on February 2, 2022. AR 870-896. The Appeals Council denied plaintiff’s request for 18 review on August 6, 2022. AR 864-869. Plaintiff filed this action on October 10, 2022. ECF 19 No. 1; see

(g). The parties consented to the jurisdiction of the magistrate judge. 20 ECF No. 7. The parties’ cross-motions for summary judgment, based upon the Administrative 21 Record filed by the Commissioner, have been fully briefed. ECF Nos. 20 (plaintiff’s amended 22 summary judgment motion), 21 (Commissioner’s amended summary judgment motion). 23 II. FACTUAL BACKGROUND 24 Plaintiff was born on in 1962, and accordingly was, at age 55, a person of advanced age 25 under the regulations, at the time she filed her disability application.3 AR 168. Plaintiff has at 26 least a high school education, and can communicate in English. AR 43. Plaintiff has work 27 2 The AR is electronically filed at ECF No. 12. 28 3 See

(d) (“person of advanced age”). 1 history in data entry and customer service. AR 43-45. 2 III. LEGAL STANDARDS 3 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 4 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 5 Howard ex rel. Wolff v. Barnhart,

(9th Cir. 2003). “‘The findings of the 6 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 7 v. Shalala,

(9th Cir. 1995) (quoting

(g)). 8 Substantial evidence is “more than a mere scintilla,” but “may be less than a 9 preponderance.” Molina v. Astrue,

(9th Cir. 2012). “It means such 10 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 11 Perales,

(1971) (internal quotation marks omitted). “While inferences from the 12 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 13 suffice.” Widmark v. Barnhart,

(9th Cir. 2006) (citation omitted). 14 Although this court cannot substitute its discretion for that of the Commissioner, the court 15 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 16 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 17

(9th Cir. 1988); Jones v. Heckler,

(9th Cir. 1985) (“The 18 court must consider both evidence that supports and evidence that detracts from the ALJ’s 19 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 20 “The ALJ is responsible for determining credibility, resolving conflicts in medical 21 testimony, and resolving ambiguities.” Edlund v. Massanari,

(9th 22 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 23 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 24

(9th Cir. 2002). However, the court may review only the reasons stated by the 25 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 26 v. Astrue,

(9th Cir. 2007); Connett v. Barnhart,

(9th Cir. 27 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 28 evidence that the ALJ did not discuss”). 1 The court will not reverse the Commissioner’s decision if it is based on harmless error, 2 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 3 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin.,

(9th Cir. 4 2006) (quoting Stout v. Commissioner,

(9th Cir. 2006)); see also Burch v. 5 Barnhart,

(9th Cir. 2005). 6 IV. RELEVANT LAW 7 Disability Insurance Benefits and Supplemental Security Income are available for every 8 eligible individual who is “disabled.”

(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 9 is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 10 determinable physical or mental impairment . . ..’” Bowen v. Yuckert,

(1987) 11 (quoting identically worded provisions of

(d)(1)(A), 1382c(a)(3)(A)). 12 The Commissioner uses a five-step sequential evaluation process to determine whether an 13 applicant is disabled and entitled to benefits.

(a)(4), 416.920(a)(4); 14 Barnhart v. Thomas,

(2003) (setting forth the “five-step sequential evaluation 15 process to determine disability” under Title II and Title XVI). The following summarizes the 16 sequential evaluation: 17 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 18

(a)(4)(i), (b). 19 Step two: Does the claimant have a “severe” impairment? If so, 20 proceed to step three. If not, the claimant is not disabled. 21

§§ 404.1520(a)(4)(ii), (c). 22 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 23 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 24 Id. §§ 404.1520(a)(4)(iii), (d). 25 Step four: Does the claimant’s residual functional capacity make him 26 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 27 Id. §§ 404.1520(a)(4)(iv), (e), (f). 28 1 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 2 the claimant is disabled. 3 Id. §§ 404.1520(a)(4)(v), (g). 4 The claimant bears the burden of proof in the first four steps of the sequential evaluation 5 process.

(a) (“In general, you have to prove to us that you are blind or 6 disabled”), 416.912(a) (same); Bowen,

n.5. However, “[a]t the fifth step of the 7 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 8 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 9 v. Astrue,

(9th Cir. 2012); Bowen,

n.5. 10 V. THE ALJ’s DECISION 11 The ALJ made the following findings: 12 1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2020. 13 2. [Step 1] The claimant did not engage in substantial gainful activity 14 during the period from her alleged onset date of December 31, 2016 through her date last insured of December 31, 2020 (20 CFR 15 404.1571 et seq.). 16 3. [Step 2] Through the date last insured, the claimant had the following severe impairments: right shoulder impingement 17 syndrome; seronegative inflammatory arthritis; osteoarthritis; lumber degenerative disc disease; mild thoracic degenerative disc 18 disease (20 CFR 404.1520(c)). 19 4. [Step 3] Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically 20 equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 21 404. 1526). 22 5. [Residual Functional Capacity (“RFC”)] After careful consideration of the entire record, I find that, through the date last 23 insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except she can lift 24 and/or carry 10 pounds occasionally and less than 10 pounds frequently; she can stand, walk, and/or sit six hours each in an eight- 25 hour workday; she can occasionally climb ladders, ropes, scaffolds, ramps and stairs, and frequently balance, stoop, kneel, crouch, and 26 crawl; she can occasionally reach overhead and frequently reach in other direction with the dominant upper extremity; and she can 27 frequently handle, finger, and feel with the bilateral upper extremities. 28 1 6. [Step 4] Through the date last insured, the claimant was capable of performing past relevant work as an Order Taker. This work did 2 not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404. 1565). 3 7. The claimant was not under a disability, as defined in the Social 4 Security Act, at any time from December 31, 2016, the alleged onset date, through December 31, 2020, the date last insured (20 CFR 5 404.1520(g)). 6 AR 873-890. As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of the 7 Act. AR 890. 8 VI. ANALYSIS 9 Plaintiff alleges that the ALJ erred by (1) failing to support the RFC with substantial 10 evidence of record, and (2) failing to provide clear and convincing reasons for rejecting plaintiff’s 11 symptom testimony regarding the limited use of her hands, fingers, and writs. ECF No. 20 at 6. 12 A. The ALJ Did Not Err in Supporting the RFC 13 Plaintiff’s argument with respect to the RFC centers on the ALJ’s treatment of the medical 14 opinion of Dr. Sharma, a consultative examiner. ECF No. 20 at 15. With respect to medical 15 opinions, revised regulations apply to claims filed on or after March 27, 2017, which change the 16 framework evaluation of medical opinion evidence. Revisions to Rules Regarding the Evaluation 17 of Medical Evidence,

,

-01 (Jan. 18, 2017);

404.1520c. The new regulations provide that the ALJ will no longer “give any specific 19 evidentiary weight ... to any medical opinion(s)” but instead must consider and evaluate the 20 persuasiveness of all medical opinions or prior administrative medical findings from medical 21 sources and evaluate their persuasiveness. Revisions to Rules,

,

5844, at 5867-68; see

.1520c(a) and (b). 23 The factors for evaluating the persuasiveness of a physician opinion include 24 supportability, consistency, relationship with the claimant (including length of the treatment, 25 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 26 an examination), specialization, and “other factors that tend to support or contradict a medical 27 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 28 a medical source has familiarity with the other evidence in the claim or an understanding of our 1 disability program's policies and evidentiary requirements”).

.1520c(c)(1)-(5). 2 Supportability and consistency are the most important factors, and therefore the ALJ is required 3 to explain how both factors were considered.

.1520c(b)(2). Supportability and 4 consistency are defined in the regulations as follows: 5 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 6 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 7 administrative medical finding(s) will be. 8 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 9 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 10 finding(s) will be. 11

.1520c(c)(1)-(2). 12 The ALJ may, but is not required to, explain how the other factors were considered. 20

.1520c(b)(2). However, when two or more medical opinions or prior administrative 14 findings “about the same issue are both equally well-supported ... and consistent with the record 15 ... but are not exactly the same,” the ALJ must explain how “the other most persuasive factors in 16 paragraphs (c)(3) through (c)(5)” were considered.

.1520c(b)(3). The Ninth 17 Circuit has confirmed that the new regulatory framework eliminates the “treating physician rule” 18 and displaces the longstanding case law requiring an ALJ to provide “specific and legitimate” or 19 “clear and convincing” reasons for rejecting a treating or examining doctor's opinion. Woods v. 20 Kijakazi,

(9th Cir. 2022). Still, in rejecting any medical opinion as unsupported or 21 inconsistent, an ALJ must provide an explanation supported by substantial evidence.

In sum, 22 the ALJ “must ‘articulate ... how persuasive’ [he or she] finds ‘all of the medical opinions’ from 23 each doctor or other source ... and ‘explain how [he or she] considered the supportability and 24 consistency factors’ in reaching these findings.”

(citing

.1520c(b), 25 404.1520(b)(2)). 26 Here, Dr. Sharma conducted a consultative examination on November 30, 2021, after the 27 date last insured. AR 1526-1535. Dr. Sharma noted that plaintiff complained of low back pain 28 that had been ongoing for several years and had gotten progressively worse. AR 1526. Dr. 1 Sharma noted that plaintiff walked with a limp on the lower right extremity and could not do 2 heal-toe walking, but that she did not use an assistive device to walk. AR 1528. Dr. Sharma 3 limited plaintiff to no more than 2 hours of standing and walking in an 8-hour work day. AR 4 1529. In a “check the box” opinion attached to the substantive opinion, Dr. Sharma marked that 5 plaintiff is only able to stand and/or walk for no more than 2 hours in an 8-hour workday due to 6 low back pain (AR 1530); and to sit for 30 minutes at one time; stand for 30 minutes at one time; 7 walk for 30 minutes at one time; sit for 30 minutes to six hours in an 8-hour workday; stand 8 and/or walk for 30 minutes to 2 hours in an 8-hour workday due to low back pain and bilateral 9 knee pain. AR 1531. Further, Dr. Sharma concluded that plaintiff would be unable to walk a 10 block at a reasonable pace on a rough or uneven surface due to bilateral knee pain. AR 1535. 11 The ALJ found that Dr. Sharma’s opinion was somewhat persuasive and incorporated 12 some of the limitations assessed, but expressly did not adopt Dr. Sharma’s opinion “regarding 13 standing and walking, nor his finding of occasionally bending and stooping [because] Dr. Sharma 14 examined claimant eleven months after the expiration of the Date Last Insured. His observations 15 that the claimant limped and could not heel/toe walk are not consistent with the evidence prior to 16 the Date Last Insured, which consistently notes normal gait.” AR 889. The ALJ further noted 17 that the back, hip, and knee pain found by Dr. Sharma were conditions that “received scant 18 reference in the record prior to the Date Last Insured, and even the February 2021, treatment note 19 found that [claimant’s] hips and knees had normal range of motion without swelling or 20 tenderness, and her spine had no tenderness.”

To support this position, the ALJ cited knee 21 and hip x-rays from April of 2021 which revealed only mild findings and a back MRI from June 22 of 2021 which showed only mild degenerative changes. AR 889, 1333-34, 1425-26. 23 Plaintiff challenges the ALJ’s determination that the limitations assessed by Dr. Sharma 24 with respect to sitting, standing, and walking were not supported by or consistent with the record 25 prior to the date last insured, but plaintiff identifies only occasional instances from the years-long 26 period at issue to support her argument. For example, plaintiff cites instances of reports of 27 thoracic pain in October 2016 and March 2017 (AR 348, 358, addressed by the ALJ at AR 882), 28 but these complaints appear isolated and subsequent x-rays showed only mild thoracic issues. AR 1 1349. Plaintiff also points to a diagnosis of polyarthritis from November 2016, but this stemmed 2 from an examination of her hands and wrists, not her back, hip, or knees. AR 351–52. Plaintiff 3 cites an isolated report of “knee grind” in August 2017 (AR 341), but there were no other reports 4 of knee grind (also called crepitus) until April 2021, after the date last insured, when x-rays 5 showed plaintiff had “mild arthritis.” AR 1320, 1333–34. These sporadic reports do not 6 undermine the ALJ’s conclusion that Dr. Sharma’s opinion was not consistent with or supported 7 by the record prior to the date last insured. The court concludes there was no error. 8 B. The ALJ Adequately Supported the Rejection of Plaintiff’s Subjective Testimony 9 Plaintiff asserts that the ALJ erred by failing to directly address her “extensive testimony 10 at both hearings regarding her very particular limitations regarding the use of her 11 hands/fingers/wrists as a result of her polyarthritis which support more restrictive limitations on 12 handling and fingering than the ALJ’s limitation to ‘frequent.’” ECF No. 20 at 23. Evaluating 13 the credibility of a plaintiff’s subjective testimony is a two-step process. First, the ALJ must 14 “determine whether the claimant has presented objective medical evidence of an underlying 15 impairment which could reasonably be expected to produce the pain or other symptoms alleged. . 16 . . In this analysis, the claimant is not required to show that her impairment could reasonably be 17 expected to cause the severity of the symptom she has alleged; she need only show that it could 18 reasonably have caused some degree of the symptom.” Garrison v. Colvin,

, 1014 19 (9th Cir. 2014) (internal citations omitted). Objective medical evidence of the pain or fatigue 20 itself is not required.

(internal citations omitted). Second, if the ALJ does not find evidence 21 of malingering, the ALJ may only reject the claimant’s testimony by offering “specific, clear and 22 convincing reasons for doing so.”

(internal citations omitted). The Ninth Circuit has 23 “repeatedly warned that ALJs must be especially cautious in concluding that daily activities are 24 inconsistent with testimony about pain, because impairments that would unquestionably preclude 25 work and all the pressures of a workplace environment will often be consistent with doing more 26 than merely resting in bed all day.”

. 27 The ALJ summarized plaintiff’s testimony as asserting that she has “severe bilateral hand 28 pain,” that she can barely rinse dishes due to wrist pain, that her fingers hurt, writing is difficult, 1 and she cannot hold or grasp things. AR 882. The ALJ found that “the claimant’s medically 2 determinable impairments could reasonably be expected to cause the alleged symptoms; however, 3 the claimant’s statements concerning the intensity, persistence and limiting effects of these 4 symptoms are not entirely consistent with the medical evidence and other evidence in the record 5 for the reasons explained in this decision.”

With respect to plaintiff’s writs and hands, the 6 ALJ noted that “[s]welling and tenderness of her hands and wrists has been noted, but she also 7 has been noted to have full range of motion on November 7, 2016 (Exhibit 2F, page 23), full, pain 8 free range of motion November 22, 2016, January 26, 2017 (Exhibit 2F, pages 18, 23), full range 9 of motion on August 24, 2017 (Exhibit 2F, page 12), full, pain free range of motion was noted on 10 June 28, 2018 (Exhibit 3F, page 37), August 2, 2018 (Exhibit 5F, page 74), January 31, 2019 11 (Exhibit 6F, page 101).” AR 886. The ALJ also discussed a history of normal imaging, including 12 left wrist MRI dated July 10, 2018 that revealed only mild synovitis, while the right wrist was 13 normal (AR 583) and an MRI of the left wrist dated December 5, 2019 which revealed very mild 14 inflammation of the MCP joints and mild to moderate arthritic changes with joint space 15 narrowing and subcortical marrow edema including at the thumb IP joint, first MCP joint and first 16 CMC joint and STT joints (AR 1122-23).

Finally, the ALJ referenced an MRI of the right- 17 hand dated October 19, 2020, which revealed stable arthritic changes including chondral thinning 18 and mild synovial enhancement at the thumb IP joint with no new osseous erosions or new areas 19 of synovitis to suggest worsening inflammatory arthropathy. AR 886, 1149. Though lack of 20 objective evidence cannot be a sole basis for discounting pain testimony, when “objective 21 medical evidence in the record is inconsistent with the claimant’s subjective testimony, the ALJ 22 may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi,

, 498 (9th 23 Cir. 2022). The ALJ did not err. 24 As a secondary basis for discounting plaintiff’s pain testimony, the ALJ permissibly 25 concluded that plaintiff’s pain testimony was not consistent with her discontinuation of pain 26 medication and history of conservative treatment. AR 887. The Ninth Circuit has recognized that 27 electing conservative treatment rather than a more tailored treatment program is a sufficient 28 reason to discount a claimant’s alleged pain. Tommasetti v. Astrue,

(9th 1 |} Cir. 2008). Here, the ALJ noted plaintiff's explanation that she does not want to be dependent on 2 || pain pills, but nonetheless reasonably found that “the degree of pain reported (1000/10) is not 3 || consistent with stopping pain medication.” AR 887. This is another valid basis for discounting 4 || plaintiffs allegations of debilitating pain. The undersigned concludes that the ALJ did not err in 5 || evaluating plaintiff's subjective testimony. 6 VI. CONCLUSION 7 For the reasons set forth above, IT IS HEREBY ORDERED that: 8 1. Plaintiffs motion for summary judgment (ECF No. 20) is DENIED; 9 2. The Commissioner’s cross-motion for summary judgment (ECF No. 21) is 10 | GRANTED; and 11 3. The Clerk of the Court shall enter judgment for defendant, and close this case. 12 | DATED: March 19, 2024 ~ 13 Chthwen— Clare ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1]