Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 1 of 12 Page ID #:1277

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GERMAN H., ) Case No. 2:20-cv-09881-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of Social Security ) Administration, ) 16 ) Defendant. ) 17 ) ) 18 19 I. 20 INTRODUCTION 21 On October 27, 2020, plaintiff German H. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability, disability 24 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties 25 have fully briefed the issue in dispute, and the court deems the matter suitable for 26 adjudication without oral argument. 27 Plaintiff presents one disputed issue for decision, whether the Administrative 28 1 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 2 of 12 Page ID #:1278

1 Law Judge (“ALJ”) properly considered the opinion of plaintiff’s treating 2 physician, Dr. Kayvanfar. Memorandum in Support of Plaintiff’s Complaint (“P. 3 Mem.”) at 5-11; see Memorandum in Support of Defendant’s Answer (“D. Mem.”) 4 at 1-7. 5 Having carefully studied the parties’ memoranda, the Administrative Record 6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 7 the ALJ properly considered Dr. Kayvanfar’s opinion and any deficiency in the 8 analysis was harmless. Consequently, the court affirms the decision of the 9 Commissioner denying benefits. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 Plaintiff, who was 50 years old on the alleged disability onset date, has a 13 tenth grade education. AR at 94, 119, 130. Plaintiff has past relevant work as a 14 machine operator and a maintenance mechanic helper. AR at 113. 15 On May 16, 2017, plaintiff filed applications for DIB and SSI, alleging he 16 became disabled on July 25, 2016 due to a lumbar disc bulge, bilateral shoulder 17 pain, bilateral elbow pain, left knee pain, two pelvic hernias, high blood pressure, 18 arthritis of the back, depression, and anxiety. AR at 119-20, 130-31. The agency 19 denied the application initially and on reconsideration. AR at 181-90, 193-205. 20 On October 4, 2019, plaintiff, represented by counsel and assisted by an 21 interpreter, appeared and testified at a hearing before the ALJ. AR at 88-113. The 22 ALJ also heard testimony from Stephen Davis, a vocational expert. AR at 110-17. 23 On October 28, 2019 the ALJ issued a decision denying plaintiff’s claim for 24 benefits. AR at 48-59. 25 Applying the well-known five-step sequential evaluation process, the ALJ 26 found at step one that plaintiff had not engaged in substantial gainful activity since 27 July 25, 2016, the alleged onset date. AR at 50. 28 2 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 3 of 12 Page ID #:1279

1 At step two, the ALJ found plaintiff suffered from the severe impairments of 2 degenerative disc disease of the lumbar spine, hernias, bilateral shoulder 3 impingement syndrome, torn meniscus and ACL of the left knee, and osteoarthritis. 4 Id. 5 At step three, the ALJ found plaintiff’s impairments, whether individually or 6 in combination, did not meet or medically equal one of the listed impairments set 7 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. AR at 52. 8 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 9 determined plaintiff had the RFC to perform light work, including lifting 20 10 pounds occasionally and 10 pounds frequently, and standing and/or walking up to 11 six hours, and sitting up to six hours, in an eight-hour workday. AR at 53. The 12 ALJ also found the additional limitations that plaintiff: needs a cane to walk; can 13 occasionally push and pull with the upper and lower extremities; can occasionally 14 climb ramps and stairs; can never climb ladders, ropes, or scaffolds; can frequently 15 stoop, kneel, crouch, and crawl; can occasionally reach overhead bilaterally; and 16 must avoid concentrated exposure to cold and vibrations. Id. 17 The ALJ found at step four that plaintiff was unable to perform his past 18 relevant work as a machine operator or maintenance mechanic helper. AR at 58. 19 At step five, considering plaintiff’s age, education, work experience, and 20 RFC, the ALJ determined there were jobs that existed in significant numbers in the 21 national economy that plaintiff could perform, including self-service cashier, 22 marker, and lens matcher. AR at 58-59. Consequently, the ALJ concluded 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 3 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 4 of 12 Page ID #:1280

1 plaintiff did not suffer from a disability as defined by the Social Security Act. AR 2 at 59. 3 Plaintiff filed a timely request for review of the ALJ’s decision, which the 4 Appeals Council denied. AR at 1-9. The ALJ’s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines the ALJ’s findings are based on legal 13 error or are not supported by substantial evidence in the record, the court may 14 reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 “Substantial evidence is more than a mere scintilla, but less than a 18 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 19 “relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 22 finding, the reviewing court must review the administrative record as a whole, 23 “weighing both the evidence that supports and the evidence that detracts from the 24 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence.’” 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 4 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 5 of 12 Page ID #:1281

1 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 2 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 3 1992)). 4 IV. 5 DISCUSSION 6 Plaintiff argues that the ALJ improperly rejected his treating physician’s 7 opinion. P. Mem. at 5-12. Specifically, plaintiff contends that in discounting Dr. 8 Kayvanfar’s opinion the ALJ failed to articulate sufficient reasons supported by 9 substantial evidence. Id. 10 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 11 § 404.1545(a)(1). Among the evidence an ALJ relies on in an RFC assessment is 12 medical evidence and opinions. 20 C.F.R. § 404.1545(a)(3). 13 For claims filed before March 27, 2017, the opinion of a treating physician 14 was given more weight then an examining physician’s opinion, which was given 15 more weight than a reviewing physician’s opinion. See Holohan v. Massanari, 246 16 F.3d 1195, 1202 (9th Cir. 2001). Under this previous hierarchy of medical 17 opinions framework, the Ninth Circuit required an ALJ to provide clear and 18 convincing reasons supported by substantial evidence to reject an uncontradicted 19 opinion of a treating or examining physician, or specific and legitimate reasons 20 supported by substantial evidence to reject a contradicted opinion of a treating or 21 examining physician. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (as 22 amended). 23 Under the revised regulations, for cases filed on or after March 27, 2017 24 such as this one, an ALJ will no longer defer or give specific evidentiary weight to 25 any medical opinions. 20 C.F.R. § 404.1520c(a). 26 For claims subject to the new regulations, the former hierarchy of 27 medical opinions – in which we assign presumptive weight based on 28 5 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 6 of 12 Page ID #:1282

1 the extent of the doctor’s relationship with the claimant – no longer 2 applies. Now, an ALJ’s decision, including the decision to discredit 3 any medical opinion, must simply be supported by substantial 4 evidence. 5 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). As such, the previous 6 requirement that an ALJ provide “specific and legitimate” reasons to reject a 7 treating or examining physician’s opinion “is clearly irreconcilable” with the new 8 regulations. Id. at 790. 9 An ALJ now will consider the persuasiveness of the medical opinions and 10 findings based on five factors: (1) supportability; (2) consistency; (3) relationship 11 with the claimant; (4) specialization; and (5) other factors that tend to support or 12 contradict the medical opinion. 20 C.F.R. § 404.1520c(a), (c). The most important 13 of these factors are supportability and consistency. 20 C.F.R. § 404.1520c(a), 14 (b)(2). The ALJ “must ‘articulate . . . how persuasive’ [he or she] finds ‘all of the 15 medical opinions’ from each doctor or other source . . . and ‘explain how [he or 16 she] considered the supportability and consistency factors’ in reaching these 17 findings.” Woods, 32 F.4th at 792 (quoting 20 C.F.R. § 404.1520c(b), (b)(2)). The 18 ALJ may, but is not required to, explain how he or she considered the other three 19 factors. 20 C.F.R. § 404.1520c(b)(2). But when two or more medical opinions 20 “about the same issue are both equally well-supported . . . and consistent with the 21 record . . . but are not exactly the same,” the ALJ is then required to explain how 22 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were 23 considered. 20 C.F.R. § 404.1520c(b)(3). 24 With respect to supportability, the regulations state: “[t]he more relevant the 25 objective medical evidence and supporting explanations presented by a medical 26 source are to support his or her medical opinion(s) or prior administrative medical 27 finding(s), the more persuasive the medical opinions or prior administrative 28 6 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 7 of 12 Page ID #:1283

1 medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). Regarding consistency, 2 the regulations state: “[t]he more consistent a medical opinion(s) or prior 3 administrative medical finding(s) is with the evidence from other medical sources 4 and nonmedical sources in the claim, the more persuasive the medical opinion(s) or 5 prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). 6 Dr. Kayvanfar completed a physical capacities evaluation on September 2, 7 2019, and opined that in an eight-hour workday plaintiff could: sit, stand, or walk 8 for three hours, and would need to alternate positions every 30 minutes; frequently 9 engage in simple grasping; occasionally push and pull with both upper extremities; 10 and could occasionally use feet for repetitive movements as in operating foot 11 controls. AR at 1167. Additionally, Dr. Kayvanfar opined that plaintiff could lift 12 and carry up to 10 pounds frequently and 20 pounds occasionally; occasionally 13 perform most postural activities, but never crawl; and had mild restrictions with 14 respect to driving and exposure to dust, fumes, and gases. AR at 1167-68. The 15 doctor further opined that plaintiff would be absent from work about four days per 16 month and would be off task 20 percent of a typical workday. AR at 1168. 17 In reaching her RFC determination, the ALJ did not find Dr. Kayvanfar’s 18 opinion to be persuasive. AR at 57. The ALJ first reasoned that the doctor’s 19 opinion was “inconsistent with the medical evidence, which shows fairly limited 20 objective evidence of severe impairments and treatment.” Id. Second, the ALJ 21 determined that Dr. Kayvanfar’s opinion was inconsistent with plaintiff’s 22 testimony that he can lift 20 pounds. Id. Finally, the ALJ found Dr. Kayvanfar’s 23 opinion “somewhat inconsistent” with plaintiff’s ability to work for Uber at least 24 one day a week. Id. Plaintiff challenges all of these reasons given. 25 Plaintiff first argues that the ALJ mischaracterized Dr. Kayvanfar’s opinion 26 regarding plaintiff’s ability to lift or carry up to 20 pounds. P. Mem. at 7. The 27 ALJ stated that Dr. Kayvanfar opined plaintiff could “lift and/or carry up to 10 28 7 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 8 of 12 Page ID #:1284

1 pounds frequently and 10 pounds occasionally.” AR at 57. This is incorrect, since 2 Dr. Kayvanfar in fact opined that plaintiff could lift and carry up to 10 pounds 3 frequently and 20 pounds occasionally. AR at 1167. Given Dr. Kayvanfar’s actual 4 opinion, there is no inconsistency between it and plaintiff’s testimony that he can 5 lift 20 pounds. As such, this was not a legitimate reason to discount Dr. 6 Kayvanfar’s opinion. This error, however, was harmless. An ALJ’s error is 7 harmless where it is inconsequential to the ultimate non-disability determination. 8 Stout v. Comm'r, Soc. Sec. Admin. , 454 F.3d 1050, 1055 (9th Cir. 2006); see also 9 Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005) (“A decision of the ALJ will 10 not be reversed for errors that are harmless.”). Here, although the ALJ discounted 11 Dr. Kayvanfar’s opinion because it was inconsistent with plaintiff’s own testimony 12 that he could lift 20 pounds when in fact it was not, the ALJ’s RFC determination 13 was consistent on this point with both plaintiff’s testimony and Dr. Kayvanfar’s 14 opinion, in that the ALJ also found plaintiff could “lift[] up to 20 pounds 15 occasionally and 10 pounds frequently.” AR at 53. Thus, the ALJ’s mistaken 16 recitation of Dr. Kayvanfar’s opinion and resulting error in finding it inconsistent 17 with what plaintiff testified he could lift had no ultimate effect on her RFC 18 determination.2 19 Plaintiff next argues that the ALJ erred by discounting Dr. Kayvanfar’s 20 opinion as “somewhat inconsistent” with plaintiff’s ability to work for Uber at 21 least one day a week. P. Mem. at 8. As indicated by the ALJ, Dr. Kayvanfar 22 opined that plaintiff could only sit for three hours in an eight hour work day. AR 23 at 1167. The ALJ found this opinion inconsistent with plaintiff’s testimony that 24 25 2 This was not the ALJ’s only error in recounting Dr. Kayvanfar’s opinion. 26 She also stated Dr. Kayvanfar found plaintiff should never work at unprotected heights, around moving machinery, or with exposure to marked changes in 27 temperature (AR at 57), when in fact Dr. Kayvanfar determined plaintiff had no 28 restrictions in those areas. AR at 168. 8 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 9 of 12 Page ID #:1285

1 for about a year he drove for Uber “one day a week, [or] two days a week” (AR at 2 94), which would in theory require sitting longer than three hours. But as plaintiff 3 notes, he clearly testified that he stopped driving for Uber on July 25, 2016, his 4 alleged onset date. See AR at 94, 309, 329. Indeed, he testified that he stopped 5 driving for Uber because he almost had an accident when he needed to brake but 6 his legs did not respond. AR at 98. There is no apparent inconsistency between 7 plaintiff’s ability to drive for Uber prior to his alleged disability onset and Dr. 8 Kayvanfar’s opinion three years later that by then plaintiff could only sit for three 9 hours in an eight-hour workday. Thus, this was not a persuasive reason to reject 10 Dr. Kayvanfar’s opinion. 11 What remains, then, is the primary reason the ALJ gave for rejecting Dr. 12 Kayvanfar’s opinion, that it was inconsistent with the medical evidence. In 13 particular, the ALJ found the medical records showed “fairly limited objective 14 evidence of severe impairments and treatment.” AR at 57. Plaintiff argues that 15 this is an insufficient explanation. P. Mem. at 8. 16 If the record as a whole does not support the medical source’s opinion, the 17 ALJ may reject that opinion. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 18 1190, 1195 (9th Cir. 2004). Items in the record that may not support the treating 19 physician’s opinion include clinical findings from examinations, conflicting 20 medical opinions, conflicting physician’s treatment notes, and the claimant’s daily 21 activities. See id.; Bayliss v. Barnhart, 427 F.3d 1211, 1216-217 (9th Cir. 2005); 22 Connett v. Barnhart, 340 F.3d 871, 874-75 (9th Cir. 2003); Morgan v. Comm’r of 23 Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). 24 Here, the ALJ provided an overview of plaintiff’s medical records. AR at 25 54-56. On March 20, 2014 plaintiff sustained an injury as a result of a slip and fall 26 accident at work while lifting approximately 50 pounds. AR at 412. When 27 plaintiff applied for disability, he alleged that walking was painful and he 28 9 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 10 of 12 Page ID #:1286

1 sometimes lost balance. AR at 342. He complained of lower back pain as well as 2 injuries to his left shoulder, pain in the right shoulder and left elbow, and received 3 worker’s compensation treatment for his injuries. Id. MRI records from December 4 2016 showed: a mild to moderate tendonitis in the left shoulder (AR at 880); mild 5 discogenic disease at L4 and L5-S1 in the lumbar spine, as well as multilevel mild 6 to moderate foraminal stenosis (AR at 879). Radiology records from March and 7 April, 2017, revealed that: plaintiff’s left knee showed a tear (AR at 904); bilateral 8 elbows were unremarkable (AR at 906-09); his right shoulder evidenced only mild 9 findings, except for mild to moderate tendinosis of the superior distal fibers of the 10 subscapularis, and mild to moderate degenerative changes of the acromioclavicular 11 joint with downsloping of acromion (AR at 910-911); and his left shoulder 12 evidenced inferolateral acromion causing impingement on the supraspinatus tendon 13 with tendonsis (AR at 913). 14 Plaintiff was subsequently recommended physical therapy as well as home 15 exercises. AR at 857, 998. Plaintiff also received chiropractic treatment. AR at 16 629-648. Plaintiff also testified to receiving injections, which were recommended 17 by Dr. Kayvanfar. AR at 100, 103, 1171. 18 Records of physical examinations from May 2018 and February 2019 show 19 range of motion 80% of normal with tender flexion rotation and lateral flexion 7- 20 8/10, and “collateral and cruciate ligaments maneuvers/tests [were] normal. AR at 21 1121, 1132. Meniscus tests were also normal on the right and left knee. Id. 22 In March 2019, plaintiff reported difficulty standing, sitting and walking for 23 short periods of time. AR at 1127. But a radiologic report of the right and left 24 knee showed minimal degenerative changes, and imaging of the right shoulder 25 indicated a normal finding for lateral shoulder. AR at 1128. In June 2019, an MR 26 of the left knee joint showed nondisplaced oblique tear of the posterior horn of the 27 medial meniscus, superficial low grade chondral fissuring at the median ridge of 28 10 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 11 of 12 Page ID #:1287

1 the patella, and mild mucoid degeneration versus low grade sprain of the anterior 2 cruciate ligament, no acute osseous abnormality. AR at 1181. An MR of the left 3 shoulder joined revealed mild to moderate supraspinatus tendinosis with low grade 4 fraying of the anterior fibers and mild subacromial/subdeltoid bursel inflamation, 5 mild bicep tendinosis. AR at 1183. At an examination in July 2019, the MRI of 6 the left knee showed minimal arthritis and oblique tear of the posterior horn of the 7 medial meniscus with spraining of anterior cruciate ligament. AR at 1108. 8 Considering the medical evidence in the record as a whole, there is 9 substantial evidence to support the ALJ’s finding that the objective evidence of 10 severe impairments is “fairly limited,” as was plaintiff’s treatment, and was thus 11 inconsistent with Dr. Kayvanfar’s opinion. It is worth noting that the ALJ’s RFC 12 determination was consistent with the limitations found by Dr. Kayvanfar in many 13 respects, but the ALJ did not adopt Dr. Kayvanfar’s opinion that, for example, 14 plaintiff is limited to standing, walking, and sitting for three hours a day, and to 15 only occasional postural activities. While it would have been helpful if the ALJ 16 had more precisely pointed to the evidence she found inconsistent with Dr. 17 Kayvanfar’s opinion on these points, on balance the court finds the ALJ adequately 18 explained how she considered the supportability and consistency factors in finding 19 Dr. Kayvanfar’s opinion not persuasive. See Woods, 32 F.4th at 792. This 20 includes her finding that plaintiff’s treatment was fairly limited. Although plaintiff 21 is correct that steroid injections may not be considered conservative (see Garrison 22 v. Colvin, 759 F.3d 995, 1015 n.20 (9th Cir. 2014)), the remainder of her treatment 23 was fairly limited when considered next to some of limitations opined by Dr. 24 Kayvanfar. 25 The court notes that the ALJ also considered the findings of Dr. T. Liu’s 26 consultative examination conducted on May 26, 2019, and found them persuasive. 27 AR at 57. Dr. T. Liu reported that plaintiff’s gait was slow and he refused to walk 28 11 Case 2:20-cv-09881-SP Document 27 Filed 09/30/22 Page 12o0f12 Page ID #:1288

1 || on toes or heels but was able to squat about 30%, he had decreased motion in the 2 || shoulders, and no tenderness over the lumbosacral spine. AR at 1035. Plaintiff's 3 || range of motion of elbows and wrists were “grossly normal.” AR at 1036. The 4 || doctor documented that plaintiff's knees were stable with no tenderness or 5 || effusion, negative stress tests and “grossly normal” range of motion. AR at 1037. 6 || The doctor opined plaintiff was capable of lifting and/or carrying 50 pounds 7 | occasionally and 25 pounds frequently, walking and standing six hours in an eight 8 || hour work day, sitting without restriction, and performing postural activities 9 || occasionally. AR at 1039-45. 10 Viewing the evidence as a whole, the court concludes that plaintiff has failed 11 } to show that any of the alleged errors made by the ALJ in considering Dr. 12 | Kayvanfar’s opinion and formulating the RFC were harmful. Indeed, the court is 13 || persuaded that the ALJ’s RFC determination was supported by substantial 14 | evidence. See Aukland, 257 F.3d at 1035 (“Substantial evidence is more than a 15 || mere scintilla, but less than a preponderance.’’). 16 In sum, the court finds the ALJ properly discounted Dr. Kayvanfar’s opinion 17 || as inconsistent with the medical evidence, and although the ALJ gave other reasons 18 || that were not supported by substantial evidence, they were harmless. 19 V. 20 CONCLUSION 21 IT IS THEREFORE ORDERED that Judgment shall be entered 22 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 23 || this action with prejudice. 24 25 | DATED: September 30, 2022 LRP 26 SHERIPYM ———— 57 United States Magistrate Judge 28 12