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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DOUGLAS G. TWEEDY, Case No. 2:19-cv-00853-DJA 7 Plaintiff, 8 ORDER v. 9 NANCY A. BERRYHILL, 1 Commissioner of 10 Social Security,

11 Defendant.

12 13 This matter involves the review of an administrative action by the Commissioner of Social 14 Security (“Commissioner”) denying Plaintiff Douglas G. Tweedy’s (“Plaintiff”) applications for 15 disability insurance benefits under Title II of the Social Security Act, disabled widower’s benefits 16 (DWB) under Title II of the Act, and supplemental security income under Title XVI of the Act. 17 The Court has reviewed Plaintiff’s Motion for Reversal or to Remand (ECF No. 18), filed on 18 October 17, 2019, and the Commissioner’s Response and Cross-Motion to Affirm (ECF Nos. 23- 19 24), filed on December 18, 2019. Plaintiff filed a Reply (ECF No. 25) on January 7, 2020. 20 I. BACKGROUND 21 1. Procedural History 22 On October 6, 2015, Plaintiff applied for disability insurance benefits, disabled widower’s 23 benefits, and supplemental security income, alleging an onset date of January 1, 2011. AR2 276- 24 96. Plaintiff’s claims were denied initially, and on reconsideration. AR 149-51 and 192-94. A 25 hearing was held before an Administrative Law Judge (“ALJ”) on January 8, 2018. AR 66-109. 26

27 1 Andrew Saul is now the Commissioner of Social Security and substituted as a party. 1 On June 6, 2018, the ALJ issued a decision denying Plaintiff’s claim. AR 16-36. The ALJ’s 2 decision became the Commissioner’s final decision when the Appeals Council finally denied 3 review, on March 18, 2018. AR 1-6. On May 20, 2019 Plaintiff commenced this action for 4 judicial review under

(g). (See Motion/Application for Leave to Proceed in 5 forma pauperis. (ECF No. 1).) 6 2. The ALJ Decision 7 The ALJ followed the five-step sequential evaluation process set forth in

404.1520, 416.920.3 AR 22-31. At step one, the ALJ found that Plaintiff had not engaged in 9 substantial gainful activity from the alleged onset date of January 1, 2011 through the date of the 10 decision. AR 22. At step two, the ALJ found that Plaintiff had medically determinable “severe” 11 impairments of diabetes mellitus, type I with neuropathy and asthma.

He also found 12 Plaintiff’s history of colitis and related iron deficiency anemia to be non-severe, but even if he 13 alternatively found it severe and added a work limitation of ready access to a bathroom, then he 14 would deny at step five.

15 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 16 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 17 Appendix 1.

. At step four, the ALJ found that Plaintiff has the residual functional 18 capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except that 19 he is limited to frequent climbing, balancing, stooping, kneeling, and crouching and occasional 20 crawling, avoid concentrated exposure to heat and cold as well as chemicals and pulmonary 21 irritants such as fumes, odors, dust, gases, smoke and poorly ventilated areas, requires a sit/stand 22 option meaning that he could work while sitting or standing, alternating between the two 23 positions with the time in either position and the frequency of position change at his sole 24 discretion.

25 26 27 3 The regulations relevant to Title II and Title XVI claims are almost identical; the Court will only 1 The ALJ found that Plaintiff is not capable of performing any past relevant work. AR 29. 2 At step five, the ALJ found Plaintiff to be a younger individual age 18-49 on the alleged disability 3 onset date with a subsequent change to closely approaching advanced age, limited education, able 4 to communicate in English, and transferability of job skills not material, and there are jobs that 5 exist in significant numbers in the national economy that he can perform.

. The ALJ 6 considered the Medical-Vocational Rules 203.26 and 203.19 along with the erosion of the 7 unskilled medium occupational base due to the additional RFC limitations and relied on 8 vocational expert testimony to find the following jobs were capable of being performed: office 9 helper, information clerk, and hand packager.

. Accordingly, the ALJ concluded that 10 Plaintiff was not under a disability at any time from January 1, 2011 through the date of the 11 decision.

. 12 II. DISCUSSION 13 1. Standard of Review 14 Administrative decisions in social security disability benefits cases are reviewed under 42

(g). See Akopyan v. Barnhart,

(9th Cir. 2002). Section 405(g) 16 states: “Any individual, after any final decision of the Commissioner of Social Security made 17 after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a 18 review of such decision by a civil action . . . brought in the district court of the United States for 19 the judicial district in which the plaintiff resides.” The court may enter “upon the pleadings and 20 transcripts of the record, a judgment affirming, modifying, or reversing the decision of the 21 Commissioner of Social Security, with or without remanding the cause for a rehearing.”

The 22 Ninth Circuit reviews a decision affirming, modifying, or reversing a decision of the 23 Commissioner de novo. See Batson v. Comm’r,

(9th Cir. 2004). 24 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 25 See

(g); Ukolov v. Barnhart,

(9th Cir. 2005). However, the 26 Commissioner’s findings may be set aside if they are based on legal error or not supported by 27 substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin.,

(9th Cir. 1 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 2 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 Andrews v. Shalala,

(9th Cir. 1995); see also Bayliss v. Barnhart,

, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 5 supported by substantial evidence, the court “must review the administrative record as a whole, 6 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 7 conclusion.” Reddick v. Chater,

(9th Cir. 1998); see also Smolen v. Chater, 80

, 1279 (9th Cir. 1996). 9 Under the substantial evidence test, findings must be upheld if supported by inferences 10 reasonably drawn from the record. Batson,

. When the evidence will support 11 more than one rational interpretation, the court must defer to the Commissioner’s interpretation. 12 See Burch v. Barnhart,

(9th Cir. 2005); Flaten v. Sec’y of Health and Human 13 Serv.,

(9th Cir. 1995). Consequently, the issue before the court is not whether 14 the Commissioner could reasonably have reached a different conclusion, but whether the final 15 decision is supported by substantial evidence. It is incumbent on the ALJ to make specific 16 findings so that the court does not speculate as to the basis of the findings when determining if the 17 Commissioner’s decision is supported by substantial evidence. Mere cursory findings of fact 18 without explicit statements as to what portions of the evidence were accepted or rejected are not 19 sufficient. Lewin v. Schweiker,

(9th Cir. 1981). The ALJ’s findings “should 20 be as comprehensive and analytical as feasible, and where appropriate, should include a statement 21 of subordinate factual foundations on which the ultimate factual conclusions are based.”

22 2. Disability Evaluation Process 23 The individual seeking disability benefits has the initial burden of proving disability. 24 Roberts v. Shalala,

(9th Cir 1995). To meet this burden, the individual must 25 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 26 determinable physical or mental impairment which can be expected . . . to last for a continuous 27 period of not less than 12 months.”

(d)(1)(A). More specifically, the individual 1 404.1514. If the individual establishes an inability to perform her prior work, then the burden 2 shifts to the Commissioner to show that the individual can perform other substantial gainful work 3 that exists in the national economy. Reddick,

. 4 The ALJ follows a five-step sequential evaluation process in determining whether an 5 individual is disabled. See

; Bowen v. Yuckert,

(1987). If 6 at any step the ALJ determines that he can make a finding of disability or nondisability, a 7 determination will be made and no further evaluation is required. See

404.1520(a)(4); Barnhart v. Thomas,

(2003). Step one requires the ALJ to 9 determine whether the individual is engaged in substantial gainful activity (“SGA”).

404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves 11 doing significant physical or mental activities usually for pay or profit.

§ 404.1572(a)-(b). If 12 the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not 13 engaged in SGA, then the analysis proceeds to the step two. Step two addresses whether the 14 individual has a medically determinable impairment that is severe or a combination of 15 impairments that significantly limits him from performing basic work activities. Id. § 16 404.1520(c). An impairment or combination of impairments is not severe when medical and 17 other evidence establishes only a slight abnormality or a combination of slight abnormalities that 18 would have no more than a minimal effect on the individual’s ability to work. Id. § 404.1521; see 19 also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.4 If the individual does not have a 20 severe medically determinable impairment or combination of impairments, then a finding of not 21 disabled is made. If the individual has a severe medically determinable impairment or 22 combination of impairments, then the analysis proceeds to step three. 23 Step three requires the ALJ to determine whether the individual’s impairments or 24 combination of impairments meet or medically equal the criteria of an impairment listed in 20 25

26 4 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. 27 Comm’r of Soc. Sec. Admin.,

(9th Cir. 2009); see also

(b)(1). They are entitled to some deference as long as they are consistent with the Social Security Act and 1 C.F.R. Part 404, Subpart P, Appendix 1.

(d), 404.1525, and 404.1526. If 2 the individual’s impairment or combination of impairments meet or equal the criteria of a listing 3 and the duration requirement (

), then a finding of disabled is made. 20

(h). If the individual’s impairment or combination of impairments does not 5 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 6 to step four. 7 Before moving to step four, however, the ALJ must first determine the individual’s 8 residual functional capacity (“RFC”), which is a function-by-function assessment of the 9 individual’s ability to do physical and mental work-related activities on a sustained basis despite 10 limitations from impairments. See

(e); see also SSR 96-8p. In making this 11 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 12 which the symptoms can reasonably be accepted as consistent with the objective medical 13 evidence and other evidence.

; see also SSRs 96-4p and 16-3p. To the 14 extent that statements about the intensity, persistence, or functionally limiting effects of pain or 15 other symptoms are not substantiated by objective medical evidence, the ALJ must evaluate the 16 individual’s statements based on a consideration of the entire case record. The ALJ must also 17 consider opinion evidence in accordance with the requirements of

and 18 SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 19 Step four requires the ALJ to determine whether the individual has the RFC to perform his 20 past relevant work (“PRW”).

(f). PRW means work performed either as the 21 individual actually performed it or as it is generally performed in the national economy within the 22 last 15 years or 15 years before the date that disability must be established. In addition, the work 23 must have lasted long enough for the individual to learn the job and performed at SGA. 20

(b) and 404.1565. If the individual has the RFC to perform his past work, 25 then a finding of not disabled is made. If the individual is unable to perform any PRW or does 26 not have any PRW, then the analysis proceeds to step five. 27 The fifth and final step requires the ALJ to determine whether the individual is able to do 1 404.1520(g). If he is able to do other work, then a finding of not disabled is made. Although the 2 individual generally continues to have the burden of proving disability at this step, a limited 3 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 4 responsible for providing evidence that demonstrates that other work exists in significant numbers 5 in the national economy that the individual can do. Yuckert,

. 6 3. Analysis 7 a. Whether the ALJ Properly Assessed the Opinion Evidence 8 Plaintiff contends that the ALJ failed to properly weigh the opinion of Plaintiff’s treating 9 endocrinologist, Guang T. Nguyen, D.O., and thus, the RFC is not supported by substantial 10 evidence. (ECF No. 18). Specifically, he contends that the ALJ erred in discounting Plaintiff’s 11 reported neuropathic limitations by affording Dr. Nguyen’s more restrictive opinion little weight 12 and adopting the opinion of the non-examining State agency physician who specializes in 13 gynecology to find that Plaintiff could perform medium work. (Id. at 15-19). Plaintiff also 14 argues that the ALJ’s reliance on the fact that Plaintiff failed to follow the treatment prescribed by 15 Dr. Nguyen is misplaced given the side effects that Plaintiff suffered in managing his Type I 16 diabetes. (Id. at 19-20). Finally, Plaintiff claims that the ALJ’s failure to provide adequate 17 reasons for rejecting Dr. Nguyen’s opinion warrants remand or reversal because under Dr. 18 Nguyen’s recommended RFC, Plaintiff would be found disabled at step five. (Id. at 21). 19 The Commissioner responds that Dr. Nguyen’s opinion is inconsistent with the minimal 20 objective findings in the record, lacked any explanation to support the severe limitations assessed 21 and contradicted by Plaintiff’s good response to medication when he was compliant with the 22 treatment prescribed. (ECF No. 23, 8-16). Plaintiff replies that the Commissioner is attempting 23 to support the ALJ’s opinion evidence assessment with reasons not included in the ALJ’s 24 explanation of the weight assigned. (ECF No. 25, 2-4).He further underscores his argument that 25 the ALJ failed to address probative evidence in the record, cited unrelated objective evidence to 26 discount Dr. Nguyen’s opinion, failed to discuss the side effects suffered by Plaintiff, and the 27 factors set forth in SSR 16-3p that are relevant as to why Plaintiff had difficulty managing his 1 The Court finds that ALJ’s assignment of little weight to Dr. Nguyen’s opinion is 2 supported by substantial evidence. In deciding how much weight to give a medical opinion, the 3 ALJ considers factors including, e.g., the treating or examining relationship of the opinion’s 4 source and the claimant; how well the opinion is supported; and how consistent the opinion is 5 with the record as a whole. See

(c). In evaluating medical opinions, the ALJ 6 must provide “clear and convincing” reasons supported by substantial evidence for rejecting the 7 uncontradicted opinion of an examining physician. Lester v. Chater,

(9th 8 Cir. 1995). 9 Here, the ALJ specifically explained that Dr. Nguyen’s opinion is not proportionate and 10 inconsistent with the objective medical findings. AR 28. For example, the ALJ noted that there 11 were limited abnormal findings of elevated glycated hemoglobin, decreased or absent sensation in 12 the first digit of Plaintiff’s left foot and episodes of dyspnea during an upper respiratory infection, 13 but otherwise normal findings on examination.

As such, the ALJ articulated the lack of 14 support in the objective medical records as one reason for assigning little weight to Dr. Nguyen’s 15 opinion. The Court is not persuaded by Plaintiff’s claim that the ALJ ignored probative evidence 16 by only mentioning loss of sensation in one digit of Plaintiff’s foot. He clearly provided a 17 summary of the overall medical evidence and Plaintiff’s attempt to cherry-pick some objective 18 medical evidence does not warrant overturning the ALJ’s assessment of Dr Nguyen’s opinion. 19 The ALJ also noted that Dr. Nguyen’s opinion as to the more restrictive sitting, 20 walking/standing, break, and absence limitations lacked any explanation. See Caudhry v. Astrue, 21

(9th Cir. 2012) (“The ALJ need not accept the opinion of any physician, including a 22 treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical 23 findings.”) (quoting Bray,

). The Court finds that this second reason articulated 24 by the ALJ for assigning little weight to Dr. Nguyen’s opinion is supported by substantial 25 evidence. The ALJ is not bound to rubber stamp an opinion – even that from a treating physician 26 and a specialist – that is conclusory and inadequately supported. See, e.g., Thomas, 278 F.3d at 27 957. Although Plaintiff seeks to discount the ALJ’s consideration of the non-examining State 1 properly considered this other opinion evidence as an indication that Dr. Nguyen’s restrictions 2 were inconsistent with the entirety of the record. Indeed, the ALJ actually assigned a more 3 restrictive RFC than that proposed by consultative examiner Dr. Cabaluna. He also assigned 4 some weight and little weight to the opinions from State agency medical consultants Dr. 5 Michelson and Dr. Duong, respectively, and provided an explanation for his evaluation. 6 Further, the ALJ properly considered the fact that Plaintiff responded well to medication 7 when he was compliant with treatment. AR 28. This does not mean that the ALJ ignored the side 8 effects of Plaintiff’s medication or difficulties in dealing with his Type I diabetes. This appears to 9 be an attempt to conflate the ALJ’s evaluation of Plaintiff’s subjective testimony with the ALJ’s 10 evaluation of Dr. Nguyen’s opinion. Overall, the Court finds that the ALJ’s assignment of little 11 weight to Dr. Nguyen’s opinion is sufficiently explained in the decision and well-supported by 12 the overall record such that the Court may not substitute its judgment. See Burch,

679. Therefore, the Court concludes that the ALJ’s decision is supported by substantial evidence 14 and free from reversible legal error. 15 III. CONCLUSION AND ORDER 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (ECF No. 17 18) is denied. 18 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm (ECF No. 19 23) is granted. 20 The Clerk shall enter judgment accordingly and close the case. 21 DATED: February 7, 2020 22 23 DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE 25 26 27