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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 BORYSATH SAYSANASY, Case No. 1:19-cv-00008 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 his 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. 6, 25 9). 26 At a hearing on March 19, 2020, 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 in finding that “[t]he claimant does not have an impairment or combination of impairments that 3 has significantly limited (or is expected to significantly limit) the ability to perform basic work 4 related activities for 12 consecutive months; therefor, the claimant does not have a severe 5 impairment or combination of impairments.” (Administrative Record (“A.R.”) 21). 6 District courts have a limited scope of judicial review for disability claims after a decision 7 by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of 8 fact, such as whether a claimant was disabled, the Court must determine whether the 9 Commissioner’s decision is supported by substantial evidence or is based on legal error. 42 10 U.S.C. § 405(g). The ALJ’s determination that the claimant is not disabled must be upheld by the 11 Court if the proper legal standards were applied and the findings are supported 12 by substantial evidence. See Sanchez v. Sec’y of Health & Human Serv., 812 F.2d 509, 510 (9th 13 Cir. 1987). 14 A. Whether Objective Evidence Supported the ALJ’s Determination 15 Plaintiff challenges the ALJ’s decision on the ground that it is not supported by substantial 16 evidence. 17 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 19 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as 20 a whole must be considered, because “[t]he court must consider both evidence that supports and 21 evidence that detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 22 1985). 23 As an initial matter, the ALJ’s conclusion was supported by the opinions of two state 24 agency medical consultants. As the ALJ explained: 25 On May 19, 2015, after a review of the medical record, State agency medical consultant L. Bobba, M.D., opined there was insufficient evidence of a severe 26 physical impairment (Exhibit 1A, P. 4). On October 5, 2015, after a review of the medical record, State agency medical consultant H. Estrin, M.D. opined there was 27 insufficient evidence of a severe physical impairment (Exhibit 3A, p. 4). 28 2 supporting the ALJ’s conclusion. (A.R. 162, 169). 3 The ALJ also based its decision on the objective medical evidence, explaining: 4 Overall, the objective medical evidence regarding the claimant’s physical 5 condition did not support a finding that he was unable to perform any sustained work activity. In order to establish disability for the purposes of obtaining 6 supplemental security income and disability insurance benefits, the claimant had the burden of providing an inability to perform any sustained work activity. The 7 medical evidence does not support such a finding and is consistent with the finding 8 that the claimant had physical impairments which do not more than minimally limit his ability to perform work related activity. The objective medical evidence 9 failed to support the alleged severity of symptoms and degree of limitation alleged by the claimant. 10 11 (A.R. 24). Plaintiff attempts to refute this reason by pointing to the following objective medical 12 evidence: A medical observation that “The claimant had discoloration to the right upper quadrant, 13 and over his rib cage along the anterior line.” (A.R. 420). A note under “impressions” stating 14 “Obstructive Sleep Apnea Syndrome: Severe.” (A.R. 352). A record indicating that his weight 15 was 205 lbs with a height of 5’ 2”. (A.R. 376). Medical notes observing “tenderness to 16 palpation.” (A.R. 430, 445). 17 The Commissioner counters that these objective findings are very minimal and do not 18 indicate any work related limitations. The Commissioner also points to numerous records 19 indicating normal findings within those same records. For example, in the same examination 20 showing discoloration near the rib cage, every observation regarding the back, upper extremities, 21 and lower extremities were “WNL,” indicating “within normal limits.” (A.R. 420). In the same 22 record indicating tenderness in the knee, the same record indicates “Inspection of the right knee 23 joint reveals no deformity, swelling, quadriceps atrophy, asymmetry or malalignment. No 24 limitation is noted in flexion, extension, adduction, abduction, internal rotation or external 25 rotation.” (A.R. 430). 26 After review of the arguments and record, the Court finds that the Commissioner’s 27 decision is supported by substantial evidence. 28 /// 2 Plaintiff also argues that the ALJ committed legal error in failing to provide sufficient 3 reasons for discounting two medical opinions. 4 1. Dr. Stoltz 5 The ALJ gave little weight to a medical opinion by examining physician Dr. Stoltz. 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, because Dr. Stoltz’s opinion was contradicted, the Court looks to whether the ALJ’s 20 decision was supported by specific and legitimate reasons that are supported by substantial 21 evidence. 22 The ALJ addressed Dr. Stoltz’s opinion as follows: 23 On May 27, 2017, after completion of a physical examination, consultative internist Dr. Stoltz opined that the claimant could lift and carry 50 pounds 24 occasionally and 10 pounds frequently; stand or walk for two hours at one time but otherwise without limitation in an eight-hour work day; and sit for eight hours in 25 an eight-hour day. He could frequently balance. He could occasionally stoop, 26 kneel, crouch, and crawl. He could climb stairs, ramps, ladders, and scaffolds occasionally. His sleep apnea was well controlled. He could tolerate occasional 27 exposure to extreme cold, extreme heat, dusts, and other pulmonary irritants that 28 might flare-up his asthma (Exhibit 6F, p. 14). The undersigned gives the opinion findings of examination which are within normal limitations and unsupported by 2 objective med records, clinical findings or treatment history, including the documented complaints of the claimant in the treatment record. 3 (A.R. 24). These reasons are specific and legitimate reasons for giving little weight to such an 4 opinion. Moreover, the Court has reviewed Dr. Stoltz’s opinion and related record and finds that 5 these reasons are supported by substantial evidence. As referred to above, Dr. Stoltz did a 6 physical examination that found all physical indications to be within normal limits. Indeed, the 7 only abnormal observation upon physical examination appears to be the observation that “The 8 claimant had discoloration to the right upper quadrant and over his rib cage along the anterior 9 line.” (A.R. 420). Dr. Stoltz also notes that Plaintiff “has had imaging studies performed in the 10 past but none of those were available for my review.” (A.R. 417). 11 2. Physician Assistant Moua 12 The ALJ also gave little weight to the opinion of physician assistant Kongmong Moua. 13 Because P.A. Moua is a physician assistant, the ALJ need only provide reasons germane to each 14 witness for discounting P.A. Moua’s opinion. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 15 2012). The ALJ addressed P.A. Moua’s opinion as follows: 16 On November 2, 2015, treating physician assistant Kongmong Moua, PA-C 17 completed a Verification of Incapacity and opined that the claimant was temporarily unable to work due to COPD, sleep apnea, and hypertension (Exhibit 18 4F, p. 1). The undersigned gives this opinion great weight with respect to 19 establishing that the claimant has the medically determinable impairments stated and that such cause the claimant limitations. However, as to a findings [sic] of 20 severity, this opinion is given little weight because by its own terms it denotes any limits as temporary, and although PA-C Moua indicates the period of incapacity 21 was from 2011 to 2016, the timeframe is disconnected from objective medical 22 records or treatment a treatment [sic] history. On December 2, 2015, Kongmong Moua, PA-C opined that, due to COPD, nicotine dependence, obesity, 23 hyperlipidemia, and obstructive sleep apnea, the claimant was unable to work. He had shortness of breath. PA-C Moua opined the claimant was capable of a low 24 stress job; could walk for 1-2 blocks; rarely stoop and couch; frequently twist; 25 occasionally climb ladders or stairs; and was likely to be absent from work for about three days per month (Exhibit 5F, p. 3). The undersigned gives this opinion 26 little weight because it is overrestrictive with respect to the limitations associated with the claimant’s impairments. It appears that the claimant’s impairments are 27 mild in nature, such that they are susceptible to medication control and 28 compliance. While not an acceptable medical source, PA-C Moua’s treatment statement. This is evidenced by gaps in treatment which do not establish more 2 than minimal limitations, for a duration of 12 months, in the ability to perform work related activity owing to the claimant’s impairments. 3 (A.R. 25). The Court has evaluated these reasons and the associated record and finds that they 4 are legally sufficient. 5 C. Whether the Appeals Council Committed Legal Error by Failing to Consider 6 Exhibits Submitted After the Hearing 7 Plaintiff also claims that the Appeals Council committed harmful, legal error by failing to 8 consider or exhibit certain exhibits submitted after the hearing. 9 The Appeals Council provided the following reason for rejecting additional evidence: 10 You submitted medical records dated July 10, 2017 through December 22, 2017 11 from North Marks Medical Clinic (17 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. 12 We did not exhibit this evidence. 13 You also submitted medical records dated March 20, 2018 from Fresno Imaging Center (2 pages), medical records dated May 4, 2018 from InSight Vision Center 14 (4 pages), and medical records dated March 16, 2018 through June 11, 2018 from 15 North Marks Medical Clinic (17 pages). The Administrative Law Judge decided your case through December 28, 2017. This additional evidence does not relate to 16 the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before December 28, 2017. 17 If you want us to consider whether you were disabled after December 28, 2017, 18 you need to apply again. . . 19 (A.R. 7). 20 The Court has reviewed the records dated July 10, 2017 through December 22, 2017 from 21 North Marks Medical Clinic and agrees with the Appeals Council’s assessment. Although the 22 records do indicate diagnoses of chronic obstructive pulmonary disease (COPD) and obstructive 23 sleep apnea (OSA) and associated symptoms, they also indicate that he had poor compliance with 24 his CPAP machine and did much better when using it correctly. (A.R. 35 (“He was diagnosed 25 with sleep apnea in 2012 and has been using the CPAP machine since, although with poor 26 compliance. He states that he feels better with use.”); A.R. 46 (“He reports feeling better with the 27 APAP and denies snoring while wearing the mask.”); A.R. 47 (“I have informed the patient about 28 the poor compliance.”)). Furthermore, after making adjustments to compliance, the doctor 2 sleep. Otherwise, follow up will be in 1 year,” (A.R. 57), which indicates that Plaintiff was stable 3 with compliance. 4 As for the records postdating December 28, 2017, the Court agrees that these are not 5 related to the period at issue. The Court has reviewed them and they speak to his current 6 condition as of the examination date, and do not offer any evidence or opinions regarding his 7 condition prior to those dates. 8 D. Whether the ALJ Erred in Failing to Credit Plaintiff’s Subjective Symptom 9 Testimony 10 Plaintiff also challenges the ALJ’s finding that Plaintiff’s subjective symptom testimony 11 could not be fully credited. 12 The Court looks to whether the ALJ offered clear and convincing reasons for discounting 13 Plaintiff’s subjective symptom testimony. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 14 2014). 15 The ALJ stated as follows regarding Plaintiff’s subjective symptom testimony: 16 After considering the evidence of record, the undersigned found that the claimant’s medically determinable impairments could reasonably be expected to produce the 17 alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent 18 with the medical evidence and other evidence in the record for the reasons 19 explained in this decision. 20 (A.R. 22). Plaintiff is correct that this statement alone is not sufficient. The ALJ then 21 summarizes various portions of the record and concludes, “The objective medical evidence failed 22 to support the alleged severity of symptoms and degree of limitation alleged by the claimant.” 23 (A.R. 24). 24 While the Court is troubled by the general reference to its summary, it ultimately 25 concludes that the ALJ’s reasoning was legally sufficient in this case. As discussed above, there 26 is an extreme dearth of any objective medical evidence to support the claimed symptoms. 27 Instead, repeated medical examinations exhibit normal findings. The following portions of the 28 ALJ’s opinion discuss these issues: 1 On March 21, 2015, a physical examination was normal (Exhibit 2F, p. 8). There was no evidence of joint pain, tenderness, or deformity. He had a full range of 2 motion intact to all major joints. He had normal bulk and tone for age. His lungs were clear to auscultation. There were no wheezes, rales, or rhonchi noted. His 3 respirations were equal and unlabored. 4 Lees 5 ....A respiratory examination was normal... □ On February 21, 2017, x-rays of the claimant’s right rib cage were normal (Exhibit 7F, p. 25). The claimant’s 6 physical examinations were generally normal (Exhibit 7F, p. 15).... 7 tee 8 Upon examination by Dr. Stoltz, claimant’s blood pressure was elevated at 151/89. His grip strength was 40-40-40 on the right and 60-60-60 on the left. His breath 9 sounds were symmetric. There was no wheezes, rhonchi, or rales. His expiratory phase was within normal limits. He had discoloration to the right upper quadrant 10 and over his rib cage along the anterior line. A straight leg-raising test was 11 negative. His range of motion of his back was normal. His range of motion of his spine and major joints was normal. He had mild crepitation of both knee joints 12 with flexion and extension, but had no tenderness or effusion. He had good tone B bilaterally with good active motion. His strength was 5/5 in all extremities, including handgrip. A neurological examination was normal. His gait was 14 normal.... 15 | (A.R. 23). With this summary in mind, the ALJ’s statements that Plaintiffs subjective symptoms 16 | Were not borne out by objective evidence is legally sufficient. The record, as summarized by the 17 | ALJ, repeatedly showed that normal examinations did not support the level of impairment 1g | claimed by Plaintiff. 19 E. Conclusion 20 Thus, the Court finds that the decision of the Commissioner of Social Security is 21 | supported by substantial evidence, and the same is hereby affirmed. 22 The Clerk of the Court is directed to close this case. 23

IT IS SO ORDERED.

25 | Dated: _ March 20, 2020 [sf hey □□ 26 UNITED STATES MAGISTRATE JUDGE 27 28