FILED □

5 OCT 17 2019 4 SOUTHER DISrRGT OF CALIORA : 5 BY AY DEPUTY

7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || ALITHIA S., Case No.: 18cv905-AJB(KSC) Plamft REPORT AND RECOMMENDA- 13 || TION CROSS MOTIONS FOR 14 || NANCY A. BERRYHILL, Acting SUMMARY JUDGMENT 5 Commissioner of Social Security, 16 Defendant. [Doc. Nos. 18 and 19] 17 18 Pursuant to Title 42, United States Code, Section 405(g), of the Social Security Act 19 (“SSA”), plaintiff filed a Complaint to obtain judicial review of a final decision by the 20 ||Commissioner of Social Security (“Commissioner”) denying her disability benefits. [Doc. 21 ||No. 1]. Presently before the Court are: (1) plaintiff's Motion for Summary Judgment [Doc. 22 ||No. 18]; (2) defendant’s Cross-Motion for Summary Judgment [Doc. No. 19]; 23 defendant’s Opposition to Plaintiff's Motion [Doc. No. 20]; (4) plaintiff's Reply to 24 || defendant’s Opposition [Doc. No. 21]; (5) defendant’s Sur-Reply to plaintiff's Opposition 25 || [Doc. No. 22]; and (6) the Administrative Record [Doc. No. 16]. 26 After careful consideration of the moving and opposing papers, as well as the 27 || Administrative Record and the applicable law, it is RECOMMENDED the District Court 28

1 ||/DENY plaintiff's Motion for Summary Judgment [Doc. No. 18} and GRANT defendant’s 2 Cross-Motion for Summary Judgment [Doc. No. 19.] 3 Procedural History. 4 Plaintiff filed an application for disability insurance benefits (“SSDI”) on April 16, 5 2014 claiming she had been unable to work since January 1, 2012. [Doc. No. 16-5, at p. 2.] 6 || Later, on June 20, 2016, while her application for SSDI was still pending, plaintiff also 7 || filed an application for supplemental security income benefits (“SSI”). [Doc. No. 16-5, at 8 12-20.] Plaintiff's claim for disability benefits (SSDI) was denied on August 13, 2014, 9 || because it was determined that her condition was not severe enough to prevent her from 10 || working. [Doc. No. 16-4, at pp. 5-8.] On September 29, 2014, plaintiff requested 11 |!reconsideration of her disability claim [Doc. No. 16-4, at p. 10], but her request was denied 12 ||on January 23, 2015. [Doc. No. 16-5, at pp. 11-15.] The SSA’s letter of January 23, 2015 13 |;explaimed that plaintiff's request for reconsideration was denied, because it had been 14 determined that she was not disabled as of December 31, 2014, the date she was “last 15 |/insured for disability benefits.”' [Doc. No. 16-4, at p. 11.] 16 On March 20, 2015, plaintiff requested a hearing before an Administrative Law 17 Judge (ALJ). [Doc. No. 16-4, at pp. 18-19.] On February 8, 2017, a Notice of Hearing 18 || was sent to plaintiff informing her that a hearing would be held before an ALJ on March 16, 19 2017 to consider her claims for SSDI and SSI. [Doc. No. 16-4, at pp. 43-45.} The ALJ 20 21 22 “The onset date of a disability can be critical to an individual's application for 23 || disability benefits. A claimant can qualify for SSDI only if her disability begins by her date last insured, and these benefits can be paid for up to 12 months before her application was filed. See 42 U.S.C. § 423(a)(1), (c)(2), (d)(1)(A). In contrast, a claimant 25 eligible for SSI once she becomes disabled, but she cannot receive benefits for any 26 period before her application date. See 42 U.S.C. §§ 1382(c)(2), (c)(7), 1382c(a)(3)(A). For both programs, the onset date is the date when the claimant is unable to engage in any 27 substantial gainful activity due to physical or mental impairments that can be expected to 28 last for at least 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)()\(A).” Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017). 2 :

1 a hearing on March 16, 2017. [Doc. No. 16-2, at pp. 34-77.] On July 6, 2017, the ALJ 2 |/issued a written opinion concluding plaintiff did not qualify for SSDI or SSI, because she 3 not been under a disability within the meaning of the [SSA] from January 1, 2012, 4 || through the date of this decision.” [Doc. No. 16-2, at p. 19.] Thereafter, plaintiff requested 5 ||review of the ALJ’s decision by the Appeals Council, but the Appeals Council denied the 6 {/request on March 13, 2018, finding there was no basis for changing the ALJ’s decision. 7 ||[Doc. No. 16-2, at pp. 2-4.] The ALJ’s decision became the final decision of the 8 Commissioner as of March 13, 2018, when the Appeals Council issued its letter concluding 9 |\there was no basis to change the ALJ’s determination that plaintiff is not disabled. See 20 10 |/C.F.R. § 404.981. Plaintiffthen filed her Complaint in this action on May 10, 2018. [Doc. 11 ||No. 1.] She also filed an Amended Complaint on June 4, 2018. [Doc. No. 5.] 12 Standards of Review — Final Decision of the Commissioner. 13 The final decision of the Commissioner must be affirmed if it is supported by 14 |)substantial evidence and if the Commissioner has applied the correct legal standards. 15 || Batson v. Comm'r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 16 ||Under the substantial evidence standard, the Commissioner's findings are upheld if 17 supported by inferences reasonably drawn from the record. /d. If there is evidence in the 18 || record to support more than one rational interpretation, the District Court must defer to the 19 ||Commissioner's decision. fd. "Substantial evidence means such relevant evidence as a 20 |/reasonable mind might accept as adequate to support a conclusion." Osenbrock v. Apfel, 21 F.3d 1157, 1162 (9th Cir. 2001). "In determining whether the Commissioner's findings 22 supported by substantial evidence, we must consider the evidence as a whole, weighing 23 || both the evidence that supports and the evidence that detracts from the Commissioner's 24 |}conclusion.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 25 Discussion. 26 A, Plaintiff's Claim for Disability Benefits. 27 A Disability Report completed on or about May 5, 2014 represents that plaintiff has 28 || the following physical or mental conditions that support her claim for disability benefits:

1 ||(1) osteosarcoma; (2) congestive heart failure; (3) renal failure stage 3B; (4) migraine 2 ||headaches; (5) deep vein thrombosis; and (6) anxiety. [Doc. No. 16-6, at p.5.] Her 3 || condition allegedly became severe enough to keep her from working on January 1, 2012. 4 ||[Doc. No. 16-6, at pp. 5-6.] Plaintiff stated she was taking the following medications: 5 || Carvedilol (for high blood pressure/heart), Fioricet (for migraines), Warfarin (for blood 6 |/clots/deep vein thrombosis (DVT)), and Zolpidem (a sedative for insomnia). [Doc. No. 7 16-6, at p. 8.] The Disability Report also indicates that plaintiff has a high school 8 || education, worked in an office job in the field of nutrition from 1999 through 2006, and 9 ||then owned her own business from 2007 through 2012. [Doc. No. 16-6, at pp. 8-9; Doc. 10 ||No. 16-6, at p. 34.] 1] On May 17, 2014, plaintiff completed a Function Report and provided the following 12 |/information about her medical condition: (1) congestive heart failure causes fatigue and 13 || prevents physical activities; (2) renal failure causes fatigue and joint pain; (3) DVT, a blood 14 |) clotting disorder, affects her physical activity and circulation; (4) headaches limit her daily 15 || activities and affect her concentration; (5) insomnia causes exhaustion and concentration 16 problems; and (6) chronic pain interrupts her sleep. [Doc. No. 16-6, at pp. 25-26.] 17 In the daily activities section of the Function Report, plaintiff indicated that she can 18 care of personal grooming; feed pets; prepare simple meals for herself and her 15-year 19 son; do light activities, such as arts and crafts; work on household chores; drive her son 20 school; and shop for groceries at a store. [Doc. No. 16-6, at pp. 26-28.] Her household 21 ||chores include dusting, doing the dishes, laundry, watering house and yard plants, 22 ||sweeping, and sometimes walking the dog. [Doc. No. 16-6, at pp. 26-27.] She does the 23 || chores for 10 to 20 minutes at a time or when she is feeling able. There are times when 24

26, “Osteosarcoma” is “a sarcoma [malignant tumor] derived from bone or containing 27 bone tissue.” Merriam-Webster Medical Dictionary, http://www.merriam-webster. 28 com/dictionary/osteosarcoma.

1 || she is unable to do anything at all. [Doc. No. 16-6, at p. 27.] She is unable to do any lifting 2 |jor vacuuming, because it is physically too difficult. [Doc. No. 16-6, at p. 28.] Plaintiff is 3 able to take care of financial matters, such as paying bills and handling a bank account. 4 ||[Doc. No. 16-6, at p. 28.] The Function Report further states that plaintiff socializes with 5 || friends and relatives but is unable to plan for events or gatherings, because she never knows 6 || how she will feel. [Doc. No. 16-6, at p. 30.] 7 With respect to physical activities, plaintiff indicated in the Function Report that her 8 medical condition affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb 9 || stairs, and concentrate. [Doc. No. 16-6, at p. 30.] In addition, plaintiff represented that she 10 |/is negatively affected both physically and mentally by stress. [Doc. No. 16-6, at p. 31.] 11 || Finally, plaintiff represented that her medications cause drowsiness, dizziness, and fatigue. 12 ||[Doc. No. 16-6, at p. 32.] 13 Plaintiff's mother also completed a Function Report on May 21, 2014. The mother’s 14 statements about plaintiffs activities and abilities in the Function Report are consistent 15 |; with the statements made on the Function Report completed by plaintiff. [Doc. No. 16-6, 16 pp. 14-22.] 17 On May 17, 2014, plaintiff also completed a Headache Questionnaire. [Doc. No. 18 || 16-6, at pp. 23-33.] On this form, plaintiff explained that she began getting severe 19 || headaches in 2004 after chemotherapy for cancer, and the headaches have gotten worse 20 |isince 2011. [Doc. No. 16-6, at p. 23.] She has the headaches on a weekly basis and they 21 last several hours to two days. The symptoms include severe pounding and throbbing, 22 ||nausea, light sensitivity, fatigue, blurry vision, and impaired concentration. She believes 23 || that stress and physical activity are the causes of her headaches. [Doc. No. 16-6, at p. 23.] 24 ||Plaintiff reported she had been taking medications for headaches for three years. The 25 |;medication was Fioricit (a combination of Butalbital, Acetaminophen, and Caffeine). 26 || According to plaintiff, this medication worked well for her tension headaches, but she had 27 ||only had varying results for the migraine headaches. [Doc. No. 16-6, at p. 24.] When she 28 .

1 headaches, her doctor has advised her to sit or lie down and rest {i.e., no physical or 2 ||mental activities that involve concentration). [Doc. No. 16-6, at p. 24.] 3 B. ‘The Parties’ Cross Motions for Summary Judgment. 4 In her Motion for Summary Judgment, plaintiff argues that the District Court should 5 ||reverse the ALJ’s decision and order payment of benefits or remand the case for further 6 |jadministrative proceedings. [Doc. No. 18, at pp. 1-2.] Plaintiff believes that the ALJ’s 7 decision is not supported by substantial evidence, because he impermissibly rejected the 8 |jopinion of her treating physician, Samuel Poniachik, M.D., about her capacity for work 9 || without providing specific and legitimate reasons for doing so. In support of this argument, 10 || plaintiff cites the Arthritis Medical Source Statement completed by Dr. Poniachik on 11 February 20, 2017, about a month before plaintiff's hearing before the ALJ. Plaintiff [2 |/argues that the ALJ should have given the opinions on this form greater or controlling 13 weight, which would have resulted in a finding that she does not have the residual 14 || functional capacity for “light” work or the capacity to perform the requirements of any job. 15 [Doc. No. 18-1, at pp. 4-8.] Defendant’s Opposition and Motion for Summary Judgment 16 argue that the ALJ’s residual functional capacity assessment is supported by substantial 17 ||evidence, and the ALJ gave good reasons for rejecting Dr. Poniachik’s opinion. [Doc. No. 18 || 19-1, at pp. 4-7.] 19 |IV. Sufficiency of the Evidence. 20 A, Weight Afforded to Contradictory Opinions by Treating, Examining, and 21 || Non-Examining Physicians. 22 When a treating physician’s opinion is contradicted by the opinion or opinions of 23 ||other doctors, the ALJ must provide “specific and legitimate reasons” for rejecting the 24 ||treating physician’s opinion. Lester v. Chater, 81 F.3d 821, 830-831 (9" Cir. 1996). 25 “The opinion of an examining physician is, in turn, entitled to greater weight than 26 ||the opinion of a non-examining physician. [Citation omitted.] As is the case with the 27 |opinion of a treating physician, the Commissioner must provide ‘clear and convincing’ 28 ||reasons for rejecting the uncontradicted opinion of an examining physician. [| Citation

1 |}omitted.] And like the opinion of a treating doctor, the opinion of an examining doctor, 2 |;even if contradicted by another doctor, can only be rejected for specific and legitimate 3 ||reasons that are supported by substantial evidence in the record. [Citation omitted.] □□□□□□ 4 || opinion of a non-examining physician cannot by itself constitute substantial evidence that 5 ||justifies the rejection of the opinion of either an examining physician or a treating 6 ||physician.” Lester v. Chater, 81 F.3d at 831. “If there is ‘substantial evidence’ in the 7 ||record contradicting the opinion of the treating physician, the opinion of the treating 8 || physician is no longer entitled to ‘controlling weight.’” Orn v. Astrue, 495 F.3d 625, 632 9 Cir. 2007). 10 “[AJn ALJ may discredit treating physicians' opinions that are conclusory, brief, and 11 ||} unsupported by the record as a whole, or by objective medical findings.” Batson v. Comm'r 12 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). “{W |hen an examining physician 13 ||provides ‘independent clinical findings that differ from the findings of the treating 14 |j physician,’ such findings are ‘substantial evidence.’”” Orn v. Astrue, 495 F.3d 625, 635 (9® 15 ||Cir. 2007). “A conflict between treatment notes and a treating provider's opinions may 16 |iconstitute an adequate reason to discredit the opinions of a treating physician or another 17 treating provider.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). 18 B. Contradictory Opinions by Treating, Examining, and Non-Examining 19 Physicians. 20 As summarized below, the record includes the opinions of two examining physicians 21 five non-examining physicians who all concluded plaintiff had impairments and 22 || limitations but could still work. In one way or another, the opinions of these physicians all 23 contradict the opinion of plaintiff's treating physician, Dr. Poniachik, that plaintiff has 24 j/extreme limitations that adversely affect her ability to function in a competitive work 25 || situation. 26 1. Treating Physician’s Opinion. 27 Dr. Poniachik, who was plaintiffs treating physician of about 18 months, made the 28 |/following representations on a form entitled Arthritis Medical Source Statement:

1 ||Plaintiff's symptoms include dizziness; fatigue; pain in her head, neck and body; 2 |jheadaches; swelling; and dyspnea (shortness of breath). [Doc. No. 16-8, at p. 149.] 3 Plaintiff had reduced range of motion in her neck; joint instability; myofascial trigger 4 || points; fibromyalgia tender points; impaired sleep; abnormal posture; swelling; and muscle 5 ||spasms and weakness. [Doc. No. 16-8, at p. 149.] Dr. Poniachik further indicated on the 6 || form that plaintiff suffers from medication side effects (dizziness and drowsiness) and has 7 |{anxiety that affects her physical condition. [Doc. No. 16-8, at p. 150.] 8 It was also Dr. Poniachik’s opinion that plaintiff had physical limitations that would 9 ||impair her ability to function in a competitive work situation. For example, Dr. Poniachik 10 |jindicated plaintiff could only walk one block without rest or pain; sit for 30 minutes at a 11 ||time and stand for only 20 minutes at a time; had to take unscheduled breaks for 5 to 10 12 ||minutes every 1 to.2 hours; elevate her legs 90 degrees for 60 to 75 percent of an 8-hour 13 be able to shift positions at will; could rarely lift anything 10 pounds or more; and 14 || would be absent from work more than four days per month. [Doc. No. 16-8, at pp. 150- 15 ||152.] Dr. Poniachik also indicated plaintiff was limited in her ability to use her hands, 16 || fingers, and arms. [Doc. No. 16-8, at p. 152.] Finally, it was Dr. Poniachik’s opinion that 17 || plaintiff's symptoms would interfere with her ability to concentrate 25 or more percent of 18 || the time even when performing “simple work tasks.” [Doc. No. 16-8, at p. 152.] 19 Based on the record, including testimony by a vocational expert at the hearing before 20 |jthe ALJ [Doc. No. 16-2, at pp. 67-73], plaintiff would be considered disabled under SSA 21 ||regulations, if the ALJ credited the limitations set forth by Dr. Poniachik on the Arthritis 22 ||Medical Source Statement. 23 2 Examining Physician, Kathy A. Vandenburgh, Ph.D. 24 On June 13, 2014, about two months after plaintiff applied for disability insurance 25 ||benefits, a psychological evaluation, including objective testing, was completed by 26 Kathy A. Vandenburgh, Ph.D. The evaluation was requested by The Department of Social 27 ||Services, Disability Evaluation Department. [Doc. No. 16-7, at pp. 1 72-178.] 28 || Dr. Vandenburgh reported that plaintiff's “posture, gait and mannerisms were within the

1 ||normal range. She was alert and appeared to understand simple test questions. Her overall 2 |/attitude was characterized by what appeared to be sufficient effort.” [Doc. No. 16-7, at p. 3 |}175.] Her mood was appropriate; she could recall adequate details about her personal 4 history; and she could recall three out of three objects after three minutes. [Doc. No. 16- 5 ||7, at p. 175.| “During the evaluation, [plaintiff] was able to focus on tasks” and “needed 6 |/no supervision to persist at tasks.” [Doc. No. 16-7, at p. 175.] Objective testing indicated 7 |{her verbal comprehension was average; her perceptual reasoning and working memory 8 || were in the lower average range; and her processing speed was in the borderline range. 9 ||[Doc. No. 16-7, at p. 176.] 10 Although Dr. -Vandenburgh indicated plaintiff would benefit from treatment to 11 |jaddress her claims of anxiety, depression, and chronic pain and fatigue, she concluded 12 plaintiff had no limitations in her ability to socially interact, understand instructions, 13 ||sustain an ordinary routine without constant supervision, complete simple and detailed or 14 || complex tasks but at a slower pace, and concentrate for at least two hours at a time. [Doc. 15 16-7, at pp. 177-178.] She had moderate limitations in her ability to complete complex 16 |/tasks, and “may have slight impairment concentrating for longer periods of time.” [Doc. 17 16-7, at p. 178.] 18 The ALJ noted that plaintiff reported mental health symptoms related to anxiety, but 19 |i her medical records and the results of Dr. Vandenburgh’s examination indicated as follows: 20 ||“The claimant has no counseling, therapy, inpatient or outpatient psychiatric treatment 21 |;}from a mental health professional.... The claimant has no history of psychiatric 22 ||hospitalization. A mental status exam showed the claimant had appropriate mood and 23 || affect, she had fair attention and concentration, and good insight and judgment. However, 24 claimant was noted to have low average intellectual functioning upon cognitive testing 25 some issues with memory. The claimant appeared to be relatively within normal limits, 26 |/but she did have an exacerbation of mental health symptoms at times, which was also 27 || contributed to [by] other psychosocial stressors, such as financial difficulties. Overall, the 28 ||claimant’s medical evidence of record, subjective complaints, and her activities of daily

1 living suggest that her mental impairment is not as severe as she alleged.” [Doc. No. 16- 2 at p. 25.] The ALJ afforded Dr. Vandenburgh’s opinion “great weight,” because “it is 3 || consistent with the claimant’s cognitive testing and issues with memory despite relatively 4 ||normal mental status exams and minimal medical management.” [Doc. No. 16-2, at p. 26.] 5 3. Examining Physician Amy L. Kanner, M.D. 6 On July 30, 2014, Amy L. Kanner, M.D., a board eligible internist, completed an 7 extensive internal medicine evaluation of plaintiff, including formal testing, at the request 8 the Department of Social Services, Disability Evaluation Department. [Doc. No. 16-7, 9 pp. 182-191.] Dr. Kanner tested plaintiff's lungs by having her walk briskly for 20 feet 10 ||and then measuring her pulse and respiratory rate. [Doc. No. 16-7, at p. 186.] She also 11 ||tested plaintiff's range of motion in her shoulders, back, and extremities, including her 12 |j}elbows, wrists, hands, hips, knees, and ankles, and they were all “within normal limits” 13 |/except that she had a “poor range of motion of the left shoulder.” [Doc. No. 16-7, at 14 || pp. 187-189.] Dr. Kanner found no evidence of joint deformities in plaintiffs shoulders, 15 |/hips, ankles, or hands. Some tenderness was noted in her lower left extremities “distal to 16 left calf” (2e., in the area where plaintiff had surgery for osteosarcoma). [Doc. No. 17 || 16-7, at p. 184.] There was no swelling in her knees, and no edema in her ankles. [Doc. 18 || No. 16-7, at p. 188.] Plaintiffs strength was “5/5 in all extremities.” [Doc. No. 16-7, at 19 p. 188.] Her gait was “within normal limits,” and she was able to stand on her heels and 20 “and perform tandem gait.” She did not need an assistive device to walk. [Doc. No. 21 16-7, at p. 189] Dr. Kanner also noted that plaintiff was morbidly obese. [Doc. No. 16-7, 22 |/at p. 189.] . 23 Based on her comprehensive physical examination and formal testing Dr. Kanner 24 ||concluded that plaintiff could lift and carry 20 pounds occasionally and 10 pounds 25 frequently; stand, walk, and sit for 6 hours in an 8-hour workday for a maximum of 45 26 || minutes per hour due to her history of deep venous thromboses in the lower left extremity; 27 || push and pull; and reach overhead on the right side with no limitations but reach on the left 28 || side “less than occasional.” [Doc. No. 16-7, at p. 190.] Dr. Kanner also concluded plaintiff 10

1 |)should not do any climbing, work at heights, or around dangerous machinery. [Doc. No. 2 || 16-7, at p. 190.] 3 The ALJ noted that Dr. Kanner “completed a functional assessment” indicating 4 || plaintiff “could perform less than light work with a few exertional, postural, manipulative, 5 environmental limitations.” [Doc. No. 16-2, at p. 26.] The ALJ gave Dr. Kanner’s 6 jjopinion “great weight,” because “it is somewhat consistent with the overall physical 7 ||examinations, treatment notes, and medical management.” [Doc. No. 16-2, at p. 26.] 8 4. Non-Examining Physician, Kim Morris, Psy.D. 9 On July 2, 2014, Kim Morris, Psy.D., reviewed plaintiff's medical records to 10 || determine whether she had any severe impairments and to assess her residual functional 11 |/capacity (RFC). Dr. Morris concluded plaintiff had only mild difficulties in her activities 12 daily living and social functioning and moderate difficulties in maintaining 13 concentration, persistence, and pace. [Doc. No. 16-3, at p. 8.] Citing her activities of daily 14 || living, medical and other treatment, Dr. Morris found that plaintiff's reported symptoms 13 || were “partially credible,” but Dr. Morris did not believe that plaintiff's statements about _16 intensity, persistence, and limiting effects of her impairments were substantiated by the 17 || objective medical evidence alone. [Doc. No. 16-3, at pp. 8-13.] 18 In her physical RFC assessment, Dr. Morris indicated plaintiff may have a severe 19 || limitation in her left shoulder. [Doc. No. 16-3, at p. 9.) However, Dr. Morris believed 20 || plaintiff could lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk 21 about 6 hours in an 8-hour day; and had no other exertional limitations except pushing, 22 ||pulling, or reaching over her head on the left side. [Doc. No. 16-3, at p. 10.] In her mental 23 RFC evaluation, Dr. Morris opined that plaintiff may be moderately limited in her ability 24 concentrate and understand and remember detailed instructions but had no other 25 significant limitations. [Doc. No. 16-3, at pp. 11-12.] 26 The ALJ afforded the opinion of Dr. Morris “great weight,” because “it is consistent 27 ||with the minimal treatment notes, consultative report, mental status examinations, 28 ||cognitive testing, and medical follow up treatment.” [Doc. No. 16-2, at p. 26.] 11

1 5. Non-Examining Physician Thu N. Do, M.D. 2 On August 13, 2014, T. Do, M.D., reviewed plaintiff's medical records to assess 3 || vocational factors, including plaintiffs ability to perform past relevant work. [Doc. No. 4 || 16-3, at p. 13.] Dr. Do determined that plaintiff's ability to do her past relevant work was 5 material, because the guidelines directed a finding that she is not disabled, and she 6 could adjust to other work. [Doc. No. 16-3, at p. 13.] It was his view that plaintiff was 7 ||capable of “light” work with a few limitations. [Doc. No. 16-3, at pp. 14-15.}] The ALJ 8 || afforded Dr. Do’s opinion “great weight,” because it is “consistent with the treatment notes, 9 || physical exams, medical management, and [plaintiff's] activities of daily living.” [Doc. 10 || No. 16-2, at pp. 25-26.] However, the ALJ noted additional environmental limitations were 11 || warranted based on further evidence of plaintiff's ongoing body and joint pain. [Doc. No. 12 || 16-2, at p. 25-26.] 13 6. Non-Examining Physician Sandra Battis, M.D. 14 On January 20, 2015, in connection with plaintiff's request for reconsideration, 15 Sandra Battis, M.D., reviewed plaintiff’s medical records. [Doc. No. 16-3, at pp. 24-31.] 16 ||Essentially, Dr. Battis agreed with the prior mental and physical residual functional 17 ||capacity assessments by Dr. Morris and with the vocational assessment by Dr. Do 18. || indicating that plaintiff is not disabled and is capable of “light” work. [Doc. No. 16-3, at 19 p. 30.] Although she acknowledged that plaintiff had “some limitations,” it was her view 20 plaintiff could still do “less demanding” work than that required in her prior jobs. 21 |{[Doc. No. 16-3, at pp. 30-31.] The ALJ afforded the opinion of Dr. Battis “great weight,” 22 because she reached findings that were similar to Dr. Do’s, and because her opinion is 23 ||“consistent with the treatment notes, physical exams, medical management, and her 24 |\activities of daily living.” [Doc. No. 16-2, at p. 26.] However, the ALJ noted that further 25 ||evidence indicated that additional environmental limitations were warranted, because of 26 || plaintiff's ongoing body and joint pain. [Doc. No. 16-2, at p. 26.] 27 \\/// 28 . 12

1 7. Non-Examining Physician Tawnya Brode, Psy.D. 2 On January 20, 2015, also in connection with plaintiff's request for reconsideration, 3 || Tawnya Brode, PsyD, reviewed plaintiff’s medical records to assess her mental residual 4 functional capacity. [Doc. No. 16-3, at pp. 17-24.] She noted there was no new medical 5 ||evidence and no new allegations that plaintiff's condition had changed or become worse. 6 ||It was her view that the record supported the prior denial of benefits because plaintiff's 7 ||condition was not severe enough to prevent her from working. In reaching her conclusions, 8 Brode specifically cited the June 13, 2014, psychological evaluation completed by 9 ||examining physician, Kathy A. Vandenburgh, Ph.D. [Doc. No. 16-3, at pp. 23-24, citing 10 Doc. No. 16-7, at pp. 172-178.] The ALJ afforded Dr. Brode’s opinion “reat weight,” 11 because it is “consistent with the minimal treatment notes, consultative report, mental 12 || status examinations, cognitive testing, and medical follow up treatment.” [Doc. No. 16-2, 13 p. 26.] 14 8. Medical Expert Testimony by Dr. Steven Saul Goldstein, 15 Dr. Goldstein testified that plaintiff's medically determinable impairments as of June 16 || 2016 included congestive heart failure and residual damage to her kidney functions caused 17 chemotherapy for treatment of osteosarcoma in 2004. Based on the record, he 18 || concluded that the osteosarcoma had resolved and had not reoccurred. An ultrasound of 19 ||her heart in 2009 indicated that “her ejection fraction was 60 to 66 percent,” which is in 20 |/the low normal range, and repeat echocardiograms later showed a higher 69 percent. She 21 |jalso developed a hemorrhage, and, as a result, she is being treated with Coumadin or 22 || Warfarin. Dr. Goldstein also testified that plaintiff has a history of obesity and complains 23 || of fatigue, but it was his opinion that her fatigue “is psychiatric in nature,” because he did 24 |/not see a cardiac stress test in her records. In addition, Dr. Goldstein testified that the 25 ||record indicates plaintiff has migraine headaches. [Doc. No. 16-2, at pp. 43-45.] 26 || ‘Dr. Goldstein further testified that plaintiff's impairments did not meet any of the 27 \|Commissioner’s Listings in either 2014 or 2016. It was his opinion that “Warfarin is really 28 ||the only limiting factor other than her obesity.” [Doc. No. 16-2, at pp. 46-47.] Taking 13

1 || Warfarin, a blood thinner, limits her to “light activities,” because medium or heavy work 2 ||might result in “bruising or injury of some sort.” [Doc. No. 16-2, at pp. 46-47.] For the 3 j|same reason, she should also not be around dangerous moving machinery. [Doc. No. 16-2, 4 |lat p. 47.] According to Dr. Goldstein, plaintiff presently has no limitations in her lower 5 || extremities, but earlier, when she had DVT, plaintiff would have been limited to jobs that 6 || did not require pushing and pulling with her legs. [Doc. No. 16-2, at p. 47.] Dr. Goldstein 7 || also did not see any evidence that reaching overhead should be limited to occasionally, but 8 he missed it, he was “happy to stand corrected.” [Doc. No. 16-2, at p. 48.] 9 With respect to migraine headaches, plaintiffs counsel asked Dr. Goldstein whether 10 |) he was “able to assess what limitations that would impose.” [Doc. No. 16-2, at p. 48.] In 11 |iresponse, Dr. Goldstein testified that migraine headaches are extremely common in the 12 || population and most people who have them can work and function. In his view, it is rare 13 || for someone to have migraines so severe that it affects their ability to concentrate. When 14 || he evaluates the severity of migraines, Dr. Goldstein looks to see if there are any instances 15 || of migraine headaches mentioned where the physician noted the patient had difficulty with 16 ||concentration. It was Dr. Goldstein’s opinion that plaintiffs medical records did not 17 support such a finding. [Doc. No. 16-2, at p. 49.] He also testified that the diagnosis of 18 “cluster headaches is not substantiated. There’s not a good description either by history or 19 || physical examination that cluster headaches [were diagnosed]. I see the diagnosis 20 ||mentioned, but nothing objective that would enable me to say that’s true.” [Doc. No. 16-2, 21 p. 55.] . 22 || In response to further questioning by plaintiff's attorney, Dr. Goldstein testified he 23 not believe the records support a finding that plaintiff was unable to work back as far 24 2014 because of congestive heart failure. He also did not believe plaintiff’s alleged 25 ||fatigue could be caused by chronic heart failure. Rather, based in the record, it was 26 || Dr. Goldstein’s view that plaintiff's congestive heart failure resolved in 2009. In support 27 || of this conclusion, Dr. Goldstein cited cardiac evaluations in 2009 and 2015 indicating that 28 |/ her left ventricular ejection fraction was 60 percent in 2009 and 69 in 2015 , both of which

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I ||are normal. [Doc. No. 16-2, at pp. 55-56, citing Doc. No. 16-7, at p. 110; Doc. No. 16-8, 2 p. 129.) 3 Plaintiff's counsel referred Dr. Goldstein to treatment notes dated March 19, 2013, 4 |; which indicate Dr. Pearson prescribed Butalbital-Acetaminophen-Caffeine (Fioricet), and 5 asked Dr. Pearson whether that indicated plaintiff was “dealing with a severe 6 ||headache.” [Doc. No. 16-2, at pp. 56-57.] In response, Dr. Goldstein testified that 7 |\ Butalbital-Acetaminophen-Caffeine is the kind of medicine prescribed to treat pain from 8 || “relatively mild migraine headaches,” and it is not a medicine that is used to “shut down” 9 || or prevent migraines. [Doc. No. 16-2, at pp. 56-57.] The ALJ then commented that 10 Goldstein’s testimony was consistent with plaintiff's statement she takes this 11 || medication to control headache pain. [Doc. No. 16-2, at p. 57.] 12 The ALJ afforded Dr. Goldstein’s opinions “great weight,” because he is “certified 13 ||in his specialty” (internal medicine and neurology),’ and his testimony was “consistent 14 |) with the objective findings in the record.” [Doc. No. 16-2, at p. 26.] 15 C. Specific and Legitimate Reasons. 16 Based on the foregoing, it is apparent that the opinions of the examining, non- 17 ||examining, and testifying experts all conflict with the opinion of plaintiff's treating 18 || physician, Dr. Poniachik, that plaintiff's physical and other limitations are extreme and 19 severely limit her ability to work. Therefore, the ALJ’s decision must include specific and 20 |j legitimate reasons for rejecting Dr. Poniachik’s opinion. 21 i. The ALJ’s Residual Functional Capacity Assessment. 22 The Social Security regulations establish a five-step sequential evaluation for 23 || determining whether an applicant is disabled under this standard. 20 C.F.R. § 404.1520(a); 24 25 26 3 Dr. Goldstein’s Curriculum Vitae states that he is a member of the American Board of Internal Medicine and the American Board of Psychiatry and Neurology. He 27 || graduated from the University of Chicago in 1969 with a degree in internal medicine and 28 neurology. [Doc. No. 16-7, at p. 194.]

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1 || Batson, 359 F.3d at 1194. At steps one and two, the ALJ concluded that plaintiff has not 2 engaged in substantial gainful activity since January 1, 2012, but the records submitted in 3 || support of her claim indicate she has or has had the severe impairments of osteosarcoma, 4 || congestive heart failure, renal failure stage 3B, migraines, headaches, obesity, deep vein 5 thrombosis, and anxiety. [Doc. 16-2, at pp. 21.] At step three, the ALJ concluded that 6 || plaintiffs impairments do not meet or equal any of the relevant listings in the SSA’s Listing 7 Impairments. [Doc. No. 16-2, at pp. 22-23.] 8 Here, plaintiff only challenges the ALJ’s step four determination that she retains the 9 residual functional capacity for “light work” with certain limitations. [Doc. No. 16-2, at p. 10 A step four determination of the claimant’s residual functional capacity is based on 11 |/all impairments, including impairments that are not severe. 20 C.F.R. § 404.1520(e), 12 404.1545(a)(2). “Residual functional capacity” is “the most [an applicant] can still do 13 ||despite [his or her] limitations.” 20 C.F.R. § 404.1545(a\(1). The ALJ must determine 14 |; whether the applicant retains the residual functional capacity to perform his or her past 15 |}relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). 16 A residual functional capacity assessment considers a claimant’s “ability to meet the 17 ||physical, mental, sensory, and other requirements of work....” 20 C.FR. 18 || § 404.1545(a)(4). The physical demands of work activities are “sitting, standing, walking, 19 || lifting, carrying, pushing, pulling, or other physical functions (including manipulative or 20 || postural functions, such as reaching, handling, stooping, or crouching)... .” 20 C.F.R. 21 || § 404.1545(b). Mental activities considered in a residual functional capacity assessment 22 |;include the abilities to understand; remember, carry out instructions, and respond 23 ||appropriately to supervisors, co-workers, and pressures in a work setting. 20 C.F.R. 24 ||§ 404.1545(c). Other limiting factors, such as epilepsy, vision, hearing, and pain or other 25 ||symptoms, may also be considered in a residual functional capacity assessment. 20 C.F.R. 26 404.1545(d)&(e). After functional limitations or restrictions are assessed on a function- 27 || by-function basis, an individual’s residual functional capacity is expressed in terms of 28

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I |\ exertional levels: “sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996 WL 2 11374184 (July 2, 1996). 3 The ALJ’s residual functional capacity assessment states as follows: “[TJhe 4 |/claimant has the residual functional capacity to perform light work ..., such that she can 5 || lift and carry 20 pounds occasionally and 10 pounds frequently; and can sit for 6 hours in 6 8 hour day, and stand or walk for 6 hours in an 8 hour day. The claimant can frequently 7 push or pull with the lower extremities. The claimant can occasionally reach over head 8 || with the left upper extremity and can frequently push or pull with the left upper extremity. 9 || The claimant must avoid exposure to workplace hazards, such as dangerous machinery and 10 unprotected heights. In addition, the claimant can understand, remember, and carry out 11 || simple instructions for simpie tasks.” [Doc. No. 16-2, at pp. 28-29.] 12 2. The ALJ's Reasons for Rejecting the Treating Physician’s Opinion. 13 With respect to Dr. Poniachik’s opinion as expressed on the Arthritis Medical 14 || Source Statement, the ALJ’s decision states as follows: 15 [Dr. Poniachik, a treating physician] opined that the claimant could 16 perform less than sedentary work with a few exertional, postural, manipulative, and environmental limitations. Moreover, the doctor opined 17 that the claimant would require low stress work and would miss more than 4 18 days of work per month (Ex. 13F). The opinion of the treating doctor is given little weight, as the extreme limitations. appeared to be based on 19 subjective complaints and are not supported by, and are inconsistent with, 20 the objective findings in the overall medical evidence of record (Ex. 5F, 7F, 9F, 10F, & 12F). [The cited exhibits essentially refer to most of the medical 21 treatment notes in the Administrative Record, as well as the extensive internal 29 medicine evaluation prepared by examining physician, Dr. Kanner.] 23 ||[Doc. No. 16-2, at p. 26 (emphasis added).] 24 3. Inconsistencies Between the Treating Physician’s Opinion and the 25 Overall Medical Evidence in the Record. 26 Based on a thorough review of the whole record, this Court agrees with the ALJ that 27 ||the limitations reported by Dr. Poniachik on the Arthritis Medical Source Statement are 28

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1 ||“extreme” and are inconsistent with the “overall medical evidence of record” and with 2 || Dr. Poniachik’s own treatment notes. The main inconsistences are summarized below. 3 Use_of Hands and Fingers. On the Arthritis Medical Source Statement, 4 Poniachik stated that plaintiff was limited in her ability to use her hands and fingers. 5 || [Doc. No. 16-8, at p. 152.] The Court was unable to locate any evidence in Dr. Ponichik’s 6 treatment records or in any other medical evidence in the record to support Dr. Poniachik’s _7 opinion that plaintiff was limited in in her ability to use her hands or fingers. To the 8 ||contrary, Dr. Kanner’s extensive physical examination of plaintiff, which included formal 9 ||testing, specifically states as follows with respect to plaintiffs hands: “There is no 10 evidence of joint deformities. Finger approximation is intact. The claimant is able to make 11 fist and oppose the thumbs. The hand can be fully extended.” [Doc. No. 16-7, at p. 188.] 12 || Dr. Kanner also made specific findings that plaintiff has no limitations with “handling” or 13 ||“‘fingering.” [Doc. No. 16-7, at p. 190.] 14 Use of Arms. On February 20, 2017, Dr. Poniachick stated on the Arthritis Medical 15 ||Source Statement that plaintiff could only use her arms to reach in front of her body 50 16 || percent of an 8-hour working day and could never use her left or right arms to reach over 17 head. [Doc. No. 16-8, at p. 152.] The Court was unable to locate any evidence in the 18 || treatment records to support Dr. Poniachik’s opinion that plaintiff was severely limited in 19 || her ability to use her arms for reaching. Dr. Poniachik’s treatment notes of March 11, 2016 20 April 13, 2016 indicate plaintiff had been having “increasing shoulder pain” in her 21 || “right shoulder region” for a few months that was causing discomfort and difficulty with 22 ||her activities of daily living. A decrease in her range of motion was noted, and she was 23 referred to x-ray “to evaluate degree of arthritis,” and to physical therapy for “conservative 24 treatment.” [Doc. No. 16-8, at pp. 61, 64-67 (emphasis added).] 25 Dr. Poniachik’s treatment notes and his opinion on the Arthritis Medical Source 26 Statement are at odds with Dr. Kanner’s July 30, 2014 physical evaluation which noted 27 || plaintiff had “a poor range of motion of the left shoulder.” [Doc. No. 16-7, at pp. 188-189 28 (emphasis added).] Therefore, Dr. Kanner concluded plaintiff was limited in her ability to

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1 ||reach over her head with her left arm. [Doc. No. 16-7, at p. 190.] Dr. Kanner’s evaluation 2 ||states that plaintiff had no limitations with using her right arm for reaching, but she could 3 j| only reach over her head with her left arm on a “less than occasional” basis. As to all other 4 ||reaching with her left arm, plaintiff was limited to “frequent.” [Doc. No. 16-7, at p. 190.] - 3 noted above, the ALJ’s residual functional capacity assessment credits Dr. Kanner’s 6 |/evaluation, because it states that plaintiff “can occasionally reach over head with the left 7 upper extremity.” [Doc. No. 16-2, at p. 24.] 8 Since the examination dates by Dr. Poniachik and Dr. Kanner are significantly 9 || different (.e., March/April 2016 versus July 30, 2014), this is one possible explanation for 10 || the differences noted in the left and right shoulders. However, given this and other conflicts 11 |) between the record and Dr. Poniachik’s opinion, it was reasonable for the ALJ to resolve 12 conflict by crediting Dr. Kanner’s evaluation. In any event, the medical evidence of 13 ||record supports the ALJ’s conclusion that plaintiff's ability to use her arms for reaching is 14 as limited as represented by Dr. Poniachik on the Arthritis Medical Source Statement. 15 Swelling. Dr. Poniachik stated on the Arthritis Medical Source Statement that one 16 || of plaintiff's symptoms is “swelling” and that plaintiff would have to elevate her legs 90 17 || degrees with prolonged sitting and would need to elevate her legs 60 to 75 degrees for 4 to 18 ||6 hours in an 8-hour working day. [Doc. No. 16-8, at p. 151.] 19 Dr. Poniachik’s treatment records indicate plaintiff is at risk for blood clots (deep 20 || vein thrombosis or “DVT”) and, as a result, she is being treated with a blood thinner 21 ||(Coumadin). [Doc. No. 16-8, at pp. 2-84.] Medical records from 2012 state that plaintiff 22 || went to the doctor, because she had stopped taking the blood thinner and was having pain 23 |{in her left lower leg. She was concerned about a blood clot. The doctor who was treating 24 |\her at the time re-started her prescription for the blood thinner and recommended warm 25 |)|compresses. [Doc. No. 16-7, at p. 135.] At the hearing before the ALJ, plaintiff testified 26 || she has not had a blood clot since 2012. [Doc. No. 16-2, at p. 73.] 27 Plaintiff testified at the hearing before the ALJ that in 2012 when she stopped 28 || working she was having a lot of swelling and discomfort in her lower left leg, where she

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1 the osteosarcoma removed in 2004. [Doc. 10-2, at p. 61.] Plaintiff also testified she 2 || does sit with her legs elevated if her foot or leg feels swollen. She indicated she has “a lot 3 || of problems” with swelling at the end of the day. However, she did not testify how often 4 || this problem occurs or that she must elevate her legs during the day for extended periods 5 a regular basis. [Doc. No. 16-2, at pp. 74-75.] | 6 The Court could not locate any evidence in Dr. Poniachik’s treatment records to 7 |/indicate that plaintiff had swelling in her legs on a frequent basis, that Dr. Poniachik 8 || recommended that plaintiff elevate her legs, or that Dr. Poniachik believed it was medically 9 |\necessary for plaintiff to elevate her legs for 4 to 6 hours during an 8-hour working day as 10 represented in the Arthritis Medical Source Statement. Nor is there anything in 11 Poniachik’s treatment notes indicating plaintiff's prescription for Coumadin, a blood 12 thinner, was not effective in preventing blood clots. 13 The examining physician, Dr. Kanner, stated in her report that plaintiff reported she 14 “occasionally” had “swelling of her legs, feet, and hands with heat or activity.” [Doc. No. 15 || 16-7, at p. 183.] At the time she examined plaintiff, Dr. Kanner reported there was no 16 edema or swelling in any of plaintiff's extremities, including her knees or ankles. [Doc. 17 || No. 16-7, at pp. 187-188.] Because of her history of DVT, it was Dr. Kanner’s view that 18 || plaintiff could sit for 6 hours out of an 8-hour workday but could only sit for 45 minutes 19 hour. In other words, she would need to stand or walk for about 15 minutes per hour. 20 || (Doc. No. 16-7, at p. 190.] Dr. Kanner also opined that plaintiff should not work at heights 21 || or around dangerous machinery. [Doc. No. 16-7, at p. 190.] 22 On this topic, Dr. Kanner’s opinion is closer to the opinion of the testifying expert, 23 || Dr. Goldstein, than to Dr. Poniachik’s opinion. It was Dr. Goldstein’s view that plaintiff 24 || was being adequately treated with a blood thinner (Warfarin/Coumadin), and, unless she 25 || had recently had an incident of DVT, she would be limited to “light activities.” Because 26 ||she was taking Warfarin/Coumadin, medium or heavy work might result in “bruising or 27 |\\injury of some sort.” [Doc. No. 16-2, at pp. 46-47.] For the same reason, Dr. Goldstein 28 || testified plaintiff should not work around dangerous moving machinery. [Doc. No. 16-2, 20

1 p. 47.] Around the time she had the incident of DVT in 2012, it was Dr. Goldstein’s 2 || view that plaintiff would have been limited to jobs that did not require pushing and pulling 3 || with her legs. [Doc. No. 16-2, at pp. 46-47] 4 In sum, the overall medical evidence of record only supports a conclusion that 5 ||plaintiff “occasionally” has swelling in her legs. To address this occasional swelling, 6 || plaintiff sits with her legs elevated. However, the medical evidence of record does not 7 \|support Dr. Poniachik’s opinion that plaintiff is extremely limited in her ability to work, 8 because she must elevate her leg(s) for 4 to 6 hours in an 8-hour working day or elevate 9 leg(s) at 90 degrees with prolonged sitting. [Doc. No. 16-8, at p. 151.] 10 Attention and Concentration. Dr. Poniachik indicated on the Arthritis Medical 11 ||Source Statement that plaintiff's symptoms would interfere with the attention and 12 ||concentration needed in a typical work day and that she would be “off task” 25 percent or 13 ||more of the time even if she was only performing simple work tasks. [Doc. No. 16-8, at p. 14 |/152.] The Court was unable to locate anything in Dr. Poniachik’s treatment notes 15 |\indicating he determined plaintiff had any deficits in her ability to concentrate. 16 The opinion expressed by Dr. Poniachik in the Arthritis Medical Source Statement 17 ||about plaintiff's ability to concentrate and complete simple work tasks conflicts with 18 Vandenburgh’s psychological evaluation of plaintiff, which included objective testing. 19 || Based on her evaluation and objective testing, Dr. Vandenburgh determined that plaintiff 20 |{had no limitations in her ability to socially interact, understand instructions, sustain an 21 |/ordinary routine without constant supervision, complete simple and detailed or complex 22 ||tasks but at a slower pace, and concentrate for at least two hours at a time. [Doc. No. 16- 23 \|7, at pp. 177-178.] Dr. Vandenburgh also determined plaintiff had only moderate 24 ||limitations in her ability to complete complex tasks, and “may have slight impairment 25 ||concentrating for longer periods of time.” [Doc. No. 16-7, at p. 178.] Therefore, the 26 |/overall medical evidence of record contradicts Dr. Poniachik’s opinion that plaintiff is 27 || severely limited in her ability to concentrate and would be off task 25 percent or more of 28 time when completing simple work tasks, [Doc. No. 16-8, at p. 152.] The record does 21

1 j/support the ALJ’s conclusion in the Residual Functional Capacity assessment that plaintiff 2 understand, remember, and carry out simple instructions for simple tasks.” [Doc. No. 3 || 16-2, at p. 23.] 4 Medication Side Effects. Dr. Poniachik stated in the Arthritis Medical Source 5 || Statement that the side effects of plaintiffs medications (dizziness and drowsiness) affect 6 || her ability to work. [Doc. No. 16-8, at p. 150.] However, Dr. Poniachik’s treatment notes 7 ||do not support a conclusion that plaintiff had any significant side effects from her 8 ||medications. One treatment note does state plaintiff complained of drowsiness from her 9 || medications while they were being adjusted, but this was not repeated in other treatment 10 |jnotes. [Doc. No. 16-8, at pp. 74, 76.] Other treatment notes indicate plaintiff had “[n]o 11 ||dizziness” and “[n]o side effects” from medications. [Doc. No. 16-8, at p. 58.] Most of 12 Poniachik’s treatment notes simply do not mention plaintiff had any side effects from 13 |/her medications. [Doc. No. 16-8, at pp. 2-84.] Therefore, the medical evidence of record 14 contradicts and does not support Dr. Poniachik’s opinion that side effects from plaintiff's 15 ||medications adversely affect her ability to work. 16 Dyspnea. Dr. Poniachik indicated in the Arthritis Medical Source Statement that 17 ||plaintiff's symptoms included dyspnea (labored breathing). [Doc. No. 16-8, at p. 149.] 18 || However, Dr. Poniachik’s notes do not support a conclusion that dyspnea was a significant 19 ||symptom that affected plaintiffs ability to work, as there are several treatment notes that 20 “[n]o dyspnea.” [Doc. No. 16-8, at pp. 9, 24, 39, 58.] 21 Anxiety. Dr. Poniachik indicated in the Arthritis Medical Source Statement that 22 ||plaintiff’s anxiety affects her physical condition and ability to work. However, this 23 ||statement is not supported by Dr. Poniachik’s treatment notes. A treatment note dated 24 September 18, 2015 does state plaintiff had been taking Xanax for anxiety in the past 25 because of stress but she was “doing well at this time.” [Doc. No. 16-8, at p. 81.] Later 26 ||treatment notes state that plaintiff did not have any symptoms of anxiety. [Doc. No. 16-8, 27 pp. 34, 58, 64, 81, 83.] Accordingly, the medical evidence of record conflicts with and 28

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1 || does not support Dr. Poniachik’s opinion that plaintiff suffers from anxiety that adversely 2 affects her ability to work. 3 Other Conditions and Symptoms. As to other conditions and symptoms listed on 4 ||Dr. Poniachik’s Arthritis Medical Source Statement, such as migraine headaches, chronic 5 |) pain, fatigue, there is conflicting evidence in the record on the intensity, persistence, and 6 || limiting effects of these conditions and symptoms. Based on this Court’s review of the 7 ||overall medical evidence of record, however, it would be reasonable for the ALJ to 8 || conclude that these conditions or symptoms were not severe enough to be disabling based 9 ||on factors, such as the effectiveness of medications, inconsistent symptoms over time, 10 || conservative treatment, and expert testimony. The Court notes that it is not necessary for 11 |}an ALJ to “discuss every piece of evidence in the record and is prohibited only from 12 ||ignoring an entire line of evidence that supports a finding of disability.” Jones v. Astrue, 13 F.3d 1155, 1162 (7th Cir. 2010). In addition, as noted above, the substantial evidence 14 ||standard requires the District Court to uphold the Commissioner's findings if they are 15 || supported by inferences reasonably drawn from the record. Batson v. Comm'r of the Social 16 || Security Admin., 359 F.3d at 1193. Id. If there is evidence in the record to support more 17 ||than one rational interpretation, the District Court must defer to the Commissioner's 18 || decision. Jd. 19 Based on the foregoing, the ALJ was justified in rejecting the opinion of 20 || Dr. Poniachik as expressed on the Arthritis Medical Source Statement, and his reasons for 21 || doing so are supported by specific and legitimate reasons. Dr. Poniachik’s opinion is not 22 || only contradicted by two examining physicians and five non-examining physicians, there 23 significant inconsistencies between Dr. Ponichik’s opinion and the medical evidence 24 record, including Dr. Ponichik’s own treatment records. Under these circumstances, it 25 this Court’s view that substantial evidence supports the ALJ’s rejection of 26 || Dr. Poniachik’s opinion that plaintiff suffers from extreme limitations that significantly 27 |jand adversely affect her ability to work. In addition, based on a thorough review of the 28 || entire administrative record, it is also this Court’s view that substantial evidence supports

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1 ALJ’s decision that plaintiff is not entitled to disability benefits, because she is not 2 ||disabled and retains the residual functional capacity to do light work. 3 || F. Conclusion. 4 Based on the foregoing, it is RECOMMENDED that the District Court DENY 5 plaintiff's Motion for Summary Judgment [Doc. No. 18]; and GRANT defendant’s Cross- 6 || Motion for Summary Judgment [Doc. No. 19]. Contrary to plaintiff's contention, the ALJ 7 ||had specific and legitimate reasons to reject the opinion of her treating physician, and 8 || substantial evidence supports the ALJ’s decision that plaintiff is not disabled because she 9 ||has the residual functional capacity to do light work that is available in the national 10 economy. . 11 This Report and Recommendation is submitted to the United States District Judge 12 |) assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Civil Local 13 || Rule 72.1(d). Within fourteen (14) days after being served with a copy of this Report and 14 Recommendation, “any party may serve and file written objections.” 28 U.S.C. § 15 636(b)(1)(B)&(C). The document should be captioned “Objections to Report and 16 ||Recommendation.” The parties are advised that failure to file objections within this 17 || specific time may waive the right to raise those objections on appeal of the Court’s order. 18 || Martinez v. Yist,951 F.2d 1153, 1156-57 (9th Cir. 1991). 19 IT IS SO ORDERED. 20 || Dated: October L7, 2019 (yy ") □□

9 Hon. Karen S. Crawford United States Magistrate Judge 23 24 25 26 27 28

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