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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 VIRGINIA GUTIERREZ, Case No. 1:18-cv-01279 EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL

SECURITY,

16 Defendant. 17 18 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding her 22 application for Disability Insurance Benefits and Supplemental Security Income. The parties have 23 consented to entry of final judgment by the United States Magistrate Judge under the provisions 24 of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 25 8). 26 At a hearing on October 10, 2019, the Court heard from the parties and, having reviewed 27 the record, administrative transcript, the briefs of the parties, and the applicable law, finds as 28 follows: 2 Plaintiff first challenges the ALJ’s decision on the basis that “the ALJ erred by relying on 3 the unsupported, unexplained opinion of a non-examining expert, rather than the well-supported 4 opinion of the consultative examiner, who opined Plaintiff does not have the ability to sustain an 5 8-hour workday.” (ECF No. 14, at p. 1). 6 In weighing medical source opinions in Social Security cases, there are three categories of 7 physicians: (i) treating physicians, who actually treat the claimant; (2) examining physicians, 8 who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat 9 nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must 10 provide clear and convincing reasons that are supported by substantial evidence for rejecting the 11 uncontradicted opinion of a treating or examining doctor. Id.at 830–31; Bayliss v. Barnhart, 427 12 F.3d 1211, 1216 (9th Cir. 2005). An ALJ cannot reject a treating or examining physician's 13 opinion in favor of another physician's opinion without first providing specific and legitimate 14 reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. § 15 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as a 16 whole); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti v. Astrue, 533 F.3d 17 1035, 1041 (9th Cir. 2008) (finding it not improper for an ALJ to reject a treating physician's 18 opinion that is inconsistent with the record). 19 Here, the ALJ discussed the examining consulting physician, Dr. Damania’s, opinion in 20 two places. In the context of the step two analysis to determine whether Plaintiff has any 21 medically determinable impairments that are severe, the ALJ stated as follows:

22 On August 31, 2016, the claimant identified herself to consultative internist 23 Rustom Damania, M.D. by displaying her California driver’s license. The claimant contended that she could not stand for more than a half an hour due to 24 low back pain, and her grip strength measurements were only 5 lbs. with her right hand and no weight at all with her left hand. However, the examination itself had 25 found normal motor strength with good musculoskeletal range of motion, grossly 26 intact sensation, and equal reflexes. Based then apparently on a combination of the examination findings and the claimant’s subjective complaints, Dr. Damania 27 assessed the claimant with Cushing’s Syndrome, status-post pituitary adenoma post-surgery, osteoporosis, lumbar stenosis, old fractures of the vertebrae, possible 28 Ex. 12F. The undersigned notes that osteopenia is the claimant’s diagnosed 2 condition, and not the more severe, osteoporosis. Further, as explained above, there is insufficient medical evidence to support a clinical diagnosis of 3 fibromyalgia. In addition, radiographs have shown only “mild” central canal stenosis at once disc space level and without nerve root compression or 4 impingement, and Dr. [] Damania did not question the discrepancy between the 5 claimant’s nearly absent grip strength results and her normal and full signs of muscle strength on examination. Dr. Damania even adds a finding of “visual 6 limitations” for the claimant, Exh. 12F, without considering that she had displayed a driver’s license as ID. 7 (A.R. 35). Additionally, the ALJ stated as follows regarding Dr. Damania’s opinion in the 8 context of step four, regarding Plaintiff’s residual functional capacity:1 9

10 Less reliance is accorded to the consultative physician’s RFC . . . because some of these specific limitations such as a restriction to sitting for less than 4 hours total in 11 an 8-hour workday have no medical foundation in the record. Therefore, like the 12 reference to the claimant’s visual limitations, this limitation appears to have been disproportionately based on the claimant’s subjective complaints without objective 13 medical or clinical findings in the record or consulting examination for objective support. 14 15 (A.R. 36). 16 As discussed at the hearing, while Dr. Damania examined Plaintiff, the findings from the 17 examination were mostly normal. The critical limitations that “[t]he claimant can stand and walk 18 less than four hours out of an eight hour work day” and “[t]he claimant can sit less than four 19 hours out of an eight hour work day,” do not appear based on the examination itself. Thus, the 20 additional weight accorded an examining physician has less relevance here. With this in mind, 21 and given that the ALJ’s opinion was supported by the non-examining consultative examiner, the 22 Court finds that the ALJ’s reasons for the weight given to Dr. Damania’s opinion were legally 23 sufficient. 24 \\\ 25 \\\ 26

27 1 The ALJ referred to Exhibits 9F and 10F in this paragraph, which do not correspond to Dr. Damania’s opinion. At oral argument, both parties confirmed that this was a typographical error, and that the ALJ was referring to Dr. 28 Damania’s opinion, which is Exhibit 12F of the record. 2 Plaintiff next claims the “ALJ failed to include work-related limitations in the RFC 3 consistent with the nature and intensity of Ms. Gutierrez’s symptoms, and failed to offer any 4 reason for discounting her symptoms of fatigue.” (ECF No. 14, at p. 1). 5 As to subjective testimony, the Ninth Circuit has summarized the ALJ’s task with respect 6 to assessing a claimant’s credibility as follows: 7 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ 8 must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain 9 or other symptoms alleged. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she 10 has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony ... 11 simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged. 12 Second, if the claimant meets this first test, and there is no evidence of 13 malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so[.] 14 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 15 omitted). Given that there is objective medical evidence of an underlying impairment, the Court 16 examines whether the ALJ rejected Plaintiff’s subjective symptom testimony by offering specific, 17 clear, and convincing reasons. 18 The ALJ stated as follows regarding Plaintiff’s subjective symptoms: 19 The claimant contends quite significant limitations in standing and walking, yet 20 she does not use a cane or walker. The claimant wears a back brace but stated that she was not wearing one when she came to the hearing. The claimant alternated 21 between sitting and standing during her hearing, as if either position caused her significant pain after relatively short periods of time. However, the record does 22 not document any significant neurological deficits, but instead repeatedly confirmed that the claimant maintained full (‘5/5’) motor strength with intact 23 sensation and equal reflexes. Despite this lack of neurological signs, the claimant alleged during the hearing that she could not wear clothes with buttons or zippers 24 because she was unable to close them. Again, while the claimant demonstrated only 5 lbs. of grip strength at the consulting examination in her right hand and no 25 weight at all with her left hand, Ex. 12F, these measurements are contradicted by the claimant’s normal motor strength, good musculoskeletal range of motion, and 26 grossly intact sensation findings on this same examination. It is noted that the results of grip strength test are subjective in nature since they depend upon the 27 claimant’s exertion for the task. 28 The claimant testified that she takes “a lot of pain medications” that makes her vomit and then she cannot eat. Yet, the record does not document the claimant 1 having made these complaints regularly to her treating gastroenterologist. 2 3 | (ALR. 38). 4 | However, regarding Plaintiff's complaint of fatigue in particular, the ALJ wrote: 5 [A]lthough subjectively reporting fatigue so severe that the claimant needs to sit up in bed for an hour or two each morning before being able to get out of bed, the 6 record does not document a diagnosis of chronic fatigue syndrome that would satisfy the specific criteria of SSR 14-1p(I(A)(2). As with fibromyalgia, there are 7 possibly other explanation for the claimant’s reported fatigue including that she has often taken as many as 13 different medications daily. As these other causes 8 have not been ruled out, and the record does not document a regularly diagnosed chronic fatigue syndrome impression, it cannot be considered a medically 9 determinable impairment for purposes of this decision. 10 | (A.R. 32). Plaintiff claims that this reasoning is insufficient because the ALJ did not provide 11 | clear and convincing reasons for discounting Plaintiffs subjective symptoms about fatigue in 12 particular. Defendant, in contrast, claims that this reasoning was legally sufficient given the 13 detailed reasons for discounting Plaintiffs subjective symptoms as a whole. M4 The Court finds that the ALJ’s reasoning was legally sufficient. The ALJ need only 15 provide clear and convincing reasons for rejecting the claimant’s testimony about the severity of 16 her symptoms—not clear and convincing reasons for rejecting the claimant’s testimony about 17 each of those individual symptoms. The ALJ’s opinion was otherwise supported by substantial 18 19 evidence including the opinion of a consulting physician. (Exh. 10F)

I. Conclusion

20 Thus, the Court finds that the decision of the Commissioner of Social Security is supported by substantial evidence, and the same is hereby affirmed. 3 The Clerk of the Court is directed to close this case. 24

IT IS SO ORDERED.

25 26 | Dated: _ October 11, 2019 [see ey

UNITED STATES MAGISTRATE JUDGE

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