1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JUAN S.,1 Case No. 5:18-01495-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner of Social Security,2 15 Defendant. 16

17 I. PROCEDURAL HISTORY 18 Plaintiff Juan S. (“Plaintiff”) filed a complaint seeking review of the decision 19 of the Commissioner of Social Security denying his applications for Disability 20 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). [Dkt. 1.] 21 The parties filed consents to proceed before the undersigned United States 22 Magistrate Judge [Dkt. 12, 13] and briefs addressing a disputed issue in the case 23 [Dkt. 25 (“Pl.’s Br.”) & Dkt. 27 (“Def.’s Br.”)]. The Court has taken the parties’ 24

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26 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 27 2 Andrew M. Saul, the Commissioner of Social Security, is substituted as 28 defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d). 1 briefing under submission without oral argument. For the reasons set forth below, 2 the Court affirms the decision of the ALJ and orders that judgment be entered 3 accordingly. 4 5 II. ADMINISTRATIVE DECISION UNDER REVIEW 6 In 2012, Plaintiff filed applications for DIB and SSI, alleging disability 7 commencing on September 16, 2009. [Dkt. 16, Administrative Record (“AR”) 264, 8 275, 758.] Plaintiff’s claims for benefits were denied initially, upon reconsideration, 9 and following a hearing before Administrative Law Judge Alan J. Markiewicz. [AR 10 18-31, 38-64, 110-14, 120-23.] After the Appeals Council denied review, Plaintiff 11 filed a civil complaint in this Court. [AR 849-50.] On September 15, 2016, this 12 Court issued a Judgment and Order remanding the matter for further consideration 13 of Plaintiff’s fibromyalgia condition. [AR at 848-66.] The Appeals Council then 14 remanded the matter for additional proceedings. [AR 867-68.] 15 On February 9, 2018, Plaintiff had his second administrative hearing. [AR 16 782-819.] On May 16, 2018, Administrative Law Judge Marti Kirby (“ALJ”) issued 17 an unfavorable decision applying the five-step sequential evaluation process to find 18 Plaintiff not disabled. [AR 758-74]; see 20 C.F.R. §§ 404.1520(b)-(g)(1), 19 416.920(b)-(g)(1). The ALJ determined that Plaintiff met the insured status 20 requirements for DIB through December 31, 2014. At step one, the ALJ concluded 21 that Plaintiff has not engaged in substantial gainful activity since the alleged onset 22 date. [AR 760.] At step two, the ALJ found that Plaintiff has the following severe 23 impairments: degenerative disc disease of the cervical spine; cervical radiculopathy; 24 osteoarthritis of the left thumb; bilateral carpal tunnel syndrome; degenerative disc 25 disease of the lumbar spine; and fibromyalgia. [Id.] At step three, the ALJ 26 determined that Plaintiff did not have an impairment or combination of impairments 27 that meets or medically equals the severity of one of the listed impairments. [AR 28 763]; see 20 C.F.R. part 404, subpart P, appendix 1. Next, the ALJ found that 1 Plaintiff has the residual functional capacity (“RFC”) for a range of light work and 2 was able to: lift, carry, push, and/or pull 20 pounds occasionally and 10 pounds 3 frequently; stand and/or walk 6 hours in an 8-hour workday; sit for 6 hours in an 8- 4 hour workday; balance frequently; handle, finger and reach frequently; perform 5 postural activities, use foot pedals bilaterally, climb steps, and interact with the 6 public occasionally; and concentrate for up to 2-hours at a time. [AR 763 (citing 20 7 C.F.R. §§ 404.1567(b), 416.967(b)).] The ALJ further found that Plaintiff is limited 8 to performing unskilled work and is precluded from climbing ladders, ropes, and 9 scaffolds, working at unprotected heights, and reaching over the shoulder bilaterally. 10 [AR 763.] At step four, the ALJ found that Plaintiff is not able to perform his past 11 relevant work as a delivery driver, sander/buffer, or hand sander. [AR 772.] At step 12 five, the ALJ found that Plaintiff is able to perform other work that exists in 13 significant numbers in the economy. [AR 773-74.] This action followed. 14 Plaintiff contends that the ALJ failed to properly consider substantial and 15 relevant medical evidence in assessing Plaintiff’s RFC. [Pl. Br. at 5-13.] The 16 Commissioner asserts that the ALJ’s decision should be affirmed. [Def. Br. at 2-5.] 17 18 III. GOVERNING STANDARD 19 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 20 determine if: (1) the Commissioner’s findings are supported by substantial 21 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 22 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 23 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 24 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 25 is such relevant evidence as a reasonable mind might accept as adequate to support a 26 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 27 2014) (internal citations omitted). 28 1 The Court will uphold the Commissioner’s decision when the evidence is 2 susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d 3 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 4 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 5 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 6 reverse the Commissioner’s decision if it is based on harmless error, which exists if 7 the error is “inconsequential to the ultimate nondisability determination, or if despite 8 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 9 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 10 omitted). 11 12 IV. DISCUSSION 13 Plaintiff contends that the ALJ failed to properly consider the work 14 limitations assessed by the nonexamining medical expert, Dr. Arnold Ostrow. [Pl. 15 Br. at 5-13.] The Court disagrees. 16 A. Background 17 Dr. Ostrow testified as the medical expert at Plaintiff’s February 2018 18 hearing. [AR 788-99.] Dr. Ostrow reported that Plaintiff has the medically 19 determinable impairments of cervical disc degenerative disease, osteoarthritis of the 20 left thumb, fracture of the left distal radius, bilateral carpal tunnel syndrome, 21 lumbosacral disc degenerative disease, and fibromyalgia. [AR 768, 770, 790.] Dr. 22 Ostrow opined, in part, that Plaintiff was limited to occasional fingering, handling, 23 and gripping bilaterally and occasional reaching in all directions. [AR 792.] Dr. 24 Ostrow also testified that Plaintiff would have varying levels of pain from his 25 impairments and could miss 1 to 2 days of a work a month. [AR 795-96.] 26 However, Dr. Ostrow admitted that Plaintiff’s subjective complaints of pain were 27 difficult for him to appreciate, as he had not examined Plaintiff. [AR 795.] 28 In the May 16, 2018 decision, the ALJ gave “less weight” to Dr. Ostrow’s 1 opinion because his finding that Plaintiff was limited to occasional use of the hands 2 was “clearly inconsistent with the objective medical evidence.” [AR 770-71.] 3 Following a lengthy and detailed discussion of the medical evidence, the ALJ found 4 that Plaintiff’s upper extremity impairments were mild, Plaintiff’s fibromyalgia was 5 well managed with the use of pain medications, and a limitation to frequent use of 6 the hands was consistent with the medically documented evidence. [AR 765-71.] 7 B. Federal Law 8 “There are three types of medical opinions in Social Security cases: those 9 from treating physicians, examining physicians, and non-examining physicians.” 10 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); Lester v. 11 Chater, 81 F.3d 821, 830 (9th Cir. 1995); see also 20 C.F.R. §§ 404.1527, 416.927. 12 In general, a treating physician’s opinion is entitled to more weight than an 13 examining physician’s opinion and an examining physician’s opinion is entitled to 14 more weight than a nonexamining physician’s opinion.3 See Lester, 81 F.3d at 830; 15 20 C.F.R. §§ 404.1527, 416.927. 16 An ALJ may reject a nonexamining physician’s opinion “by reference to 17 specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 18 (9th Cir. 1998); see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 19 1195 (9th Cir. 2004) (explaining that if physician’s opinion is not supported by “the 20 record as a whole” or by “objective medical findings,” the ALJ may reject that 21 22 23 3 For claims filed on or after March 27, 2017, the opinions of treating 24 physicians are not given deference over non-treating physicians. See 20 C.F.R. § 404.1520c (providing that the Social Security Administration “will not defer or give 25 any specific evidentiary weight, including controlling weight, to any medical 26 opinion(s) or prior administrative medical finding(s), including those from your medical sources”); 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). Because 27 Plaintiff’s claim was filed before March 27, 2017, the medical evidence is evaluated pursuant to the treating physician rule discussed above. See 20 C.F.R. §§ 404.1527, 28 416.927. 1 opinion). Although an ALJ is not bound by the opinions of a nonexamining 2 physician, the ALJ may not ignore such opinions and “‘must explain the weight 3 given to the opinions’” in the ALJ’s decision. Chavez v. Astrue, 699 F.Supp.2d 4 1125, 1135 (C.D. Cal. 2009) (quoting Social Security Ruling 96-6p). 5 C. Discussion 6 Here, the ALJ found Dr. Ostrow’s opinion indicating that Plaintiff had 7 functional limitations beyond those included in the ALJ’s RFC assessment (i.e., 8 occasional fingering, handling and gripping bilaterally, occasional reaching in all 9 directions, and missing work 1 to 2 days a month) was unsupported by the objective 10 medical evidence. [AR 770-71.] The ALJ referenced “specific evidence in the 11 medical record” to support the rejection of Dr. Ostrow’s opinion. Sousa, 143 F.3d at 12 1244. For example, the ALJ noted that Plaintiff’s carpal tunnel syndrome was 13 diagnosed as mild, the record reflected infrequent complaints related to this 14 condition, and surgery was not recommended given the minimal findings. [AR 769, 15 771.] Similarly, Plaintiff rarely mentioned a thumb impairment and received little to 16 no treatment for that condition. [AR 771.] The ALJ also found that Plaintiff’s 17 cervical radiculopathy did not appear to be chronic, as several of Plaintiff’s 18 examinations revealed no symptoms of neurological deficits in the upper 19 extremities. [AR 771.] As for Plaintiff’s fibromyalgia symptoms, the ALJ found 20 that Plaintiff’s pain appeared to be well managed with the use of medications, 21 Plaintiff often denied side effects from his medications, and Plaintiff was not 22 receiving treatment from a specialist. [AR 768, 771.] The ALJ did not, as Plaintiff 23 suggests, substitute “her own lay opinion in place of the medical expert Dr. 24 Ostrow’s opinion[].” [Pl. Br. at 11.] Rather, the ALJ simply concluded that Dr. 25 Ostrow’s opinion was entitled to “less weight,” because the manipulative and 26 absence from work limitations were “inconsistent with the objective medical 27 evidence and other evidence of record.” [AR 770-71.] 28 In addition, the ALJ gave “significant, but not full” weight to the opinions of 1 two examining physicians, Dr. V. Prabhu Dhalla and Dr. Gabriel Fabella. [AR 356- 2 77, 466-70, 765-67, 769.] Dr. Dhalla, an orthopedic surgeon, completed an agreed 3 medical examination of Plaintiff in January 2011 and found that Plaintiff could not 4 engage in repetitive gripping, grasping, and fingering.4 [AR 373.] Dr. Fabella, an 5 internal medicine specialist, conducted a consultative examination of Plaintiff in 6 April 2013 and opined that Plaintiff was capable of “repetitive handling” bilaterally. 7 [AR 470.] Because Dr. Dhalla and Dr. Fabella completed independent examinations 8 of Plaintiff, their opinions constituted substantial evidence supporting the ALJ’s 9 rejection of Dr. Ostrow’s opinion.5 See Tonapetyan v. Halter, 242 F.3d 1144, 1149 10 (9th Cir. 2001) (examining physician’s opinion assessing claimant’s impairments 11 and limitations that rested on physician’s independent examination of claimant 12 provided substantial evidence for supporting ALJ’s rejection of other physicians’ 13 opinions). Although Plaintiff argues that other record medical evidence supports 14

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16 4 Dr. Dhalla’s recommendation against “repetitive gripping, grasping or fingering” actions is not inconsistent with the ALJ’s finding that Plaintiff is able to 17 “frequently handle, finger, and reach.” [AR 373, 763]; see, e.g., De Munoz v. Comm’r of Soc. Sec., No. 1:18-CV-00483-SAB, 2019 WL 1243718, at *7 (E.D. Cal. 18 Mar. 18, 2019) (“The ALJ’s interpretation that [physician’s] limitation to no 19 repetitive use of her hands on a consistent basis would allow her to use her hands frequently under the social security regulations is reasonable.”); Jimenez v. Colvin, 20 No. CV 13-8676 SS, 2014 WL 5464949, at *12 (C.D. Cal. Oct. 28, 2014) (rejecting plaintiff’s contention that ALJ’s RFC permitting “frequent” handling and fingering 21 was inconsistent with the opinion of plaintiff’s physician to avoid “repetitive” hand 22 motions); Gallegos v. Barnhart, 99 F. App’x 222, 224 (10th Cir. 2004) (“frequent” and “repetitive” are not synonymous, and ALJ’s finding that plaintiff could perform 23 jobs requiring “frequent” reaching, handling or fingering was not inconsistent with physician’s recommendation against “repetitive” actions). 24 5 The ALJ was not, as Plaintiff suggests, obligated to give greater weight to Dr. 25 Ostrow’s nonexamining physician opinion than the opinions of Plaintiff’s 26 examining physicians simply because “Dr. Ostrow was the only medical source to have reviewed the entire record.” [Pl. Br. at 10]; see Orn, 495 F.3d at 631 27 (“[g]enerally, the opinions of examining physicians are afforded more weight than those of non-examining physicians”); Lester, 81 F.3d at 830; 20 C.F.R. §§ 28 404.1527(c)(1), 416.927(c)(1). 1 || Dr. Ostrow’s opinion [Pl. Br. at 11-12], the Court will not second guess the ALJ’s 2 || reasonable determination to the contrary, even if such evidence could give rise to 3 || inferences more favorable to Plaintiff. See Molina v. Astrue, 674 F.3d 1104, 1111 4 || (9th Cir. 2012) (“Even when the evidence is susceptible to more than one rational 5 || interpretation, we must uphold the ALJ’s findings if they are supported by 6 || inferences reasonably drawn from the record.”); see also Thomas v. Barnhart, 278 7 || F.3d 947, 954 (9th Cir. 2002) (same). 8 Accordingly, reversal or remand is not warranted based on the ALJ’s 9 || consideration of the medical evidence and RFC assessment. 10 11 CONCLUSION 12 For all of the foregoing reasons, IT IS ORDERED that the decision of the 13. |} Commissioner finding Plaintiff not disabled is AFFIRMED. 14 IT IS ORDERED. 15 16 || DATED: September 16, 2019 7 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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