1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LISA O.,1 Case No. 2:19-cv-00689-MAA 12 Plaintiff,

MEMORANDUM DECISION AND

13 v. ORDER AFFIRMING DECISION OF

THE COMMISSIONER

14 15 ANDREW M. SAUL,2 Commissioner of Social Security, 16 Defendant. 17 18 19 On January 29, 2019, Plaintiff filed a Complaint seeking review of the Social 20 Security Commissioner’s final decision denying her applications for disability 21 insurance benefits and supplemental security income pursuant to Titles II and XVI 22 of the Social Security Act. This matter is fully briefed and ready for decision. For 23 the reasons discussed below, the Commissioner’s final decision is affirmed, and 24 this action is dismissed with prejudice.

25 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 26 Administration and Case Management of the Judicial Conference of the United States. 27 2 The Commissioner of Social Security is substituted as the Defendant pursuant to 28 Federal Rule of Civil Procedure 25(d). 1 PROCEDURAL HISTORY 2 On February 1, 2016, Plaintiff filed applications for disability insurance 3 benefits and supplemental security income, alleging disability beginning on 4 September 24, 2013. (Administrative Record [AR] 158, 489, 501.) Plaintiff 5 alleged disability because of a “Severe case of Cough Variant Asthma,” “Excessive 6 production of Phlegm,” and “Allergic rhinitis.” (AR 488, 500.) After her 7 applications were denied initially, Plaintiff requested a hearing before an 8 Administrative Law Judge (“ALJ”). (AR 564-65.) At a hearing held on November 9 14, 2017, at which Plaintiff appeared with counsel, the ALJ heard testimony from 10 Plaintiff and a vocational expert. (AR 453-87.) 11 In a decision issued on February 26, 2018, the ALJ denied Plaintiff’s 12 applications after making the following findings pursuant to the Commissioner’s 13 five-step evaluation. (AR 158-67.) Plaintiff had not engaged in substantial gainful 14 activity since her alleged disability onset date of September 24, 2013. (AR 160.) 15 She had severe impairments consisting of asthma, chronic bronchitis, and 16 fibromyalgia. (Id.) She did not have an impairment or combination of impairments 17 that met or medically equaled the requirements of one of the impairments from the 18 Commissioner’s Listing of Impairments. (AR 161.) She had a residual functional 19 capacity for medium work except she was to “avoid all exposure to air pollutants 20 (fumes, odors, gases, poor ventilation, etc.).” (Id.) Based on this residual 21 functional capacity, she could perform her past relevant work as a survey worker 22 and a casher, as actually and generally performed. (AR 166.) Thus, the ALJ 23 concluded that Plaintiff was not disabled as defined by the Social Security Act. 24 (AR 166-67.) 25 Plaintiff requested review by the Appeals Council and, as part of the request, 26 submitted additional evidence. (AR 14-452, 612-17.) On December 12, 2018, the 27 Appeals Council issued an order stating that it considered only the additional 28 evidence that related to the period on or before the date of the ALJ’s decision, but 1 that it ultimately denied the request for review. (AR 1-7.) Thus, the ALJ’s decision 2 became the final decision of the Commissioner. 3 4 DISPUTED ISSUE 5 The parties raise the following disputed issue: whether the ALJ properly 6 considered the opinion of Plaintiff’s treating physician, Dr. Ishimori. (ECF No. 21, 7 Parties’ Joint Stipulation [“Joint Stip.”] at 4.) 8 9 STANDARD OF REVIEW 10 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final 11 decision to determine whether the Commissioner’s findings are supported by 12 substantial evidence and whether the proper legal standards were applied. See 13 Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 14 2014). Substantial evidence means “more than a mere scintilla” but less than a 15 preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter 16 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such 17 relevant evidence as a reasonable mind might accept as adequate to support a 18 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a 19 whole, weighing both the evidence that supports and the evidence that detracts from 20 the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is 21 susceptible of more than one rational interpretation, the Commissioner’s 22 interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 23 2007).

24 25 DISCUSSION 26 A. Legal Standard. 27 A treating physician’s opinion is entitled to special weight because he or she 28 is “most able to provide a detailed, longitudinal picture” of a claimant’s medical 1 impairments and bring a perspective to the medical evidence that cannot be 2 obtained from objective medical findings alone. See 20 C.F.R. §§ 404.1527(c)(2), 3 416.927(c)(2); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The 4 treating physician’s opinion is not, however, necessarily conclusive as to either a 5 physical condition or the ultimate issue of disability.” Magallanes v. Bowen, 881 6 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician’s opinion 7 depends on whether it is supported by sufficient medical data and is consistent with 8 other evidence in the record. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 9 If the treating physician’s opinion is uncontroverted by another doctor’s 10 opinion, it may be rejected only for “clear and convincing” reasons. See Lester v. 11 Chater, 81 F.3d 821, 830 (9th Cir. 1996). If a treating physician’s opinion is 12 controverted, it may be rejected only if the ALJ makes findings setting forth 13 specific and legitimate reasons that are based on the substantial evidence of record. 14 See id. “The ALJ can meet this burden by setting out a detailed and thorough 15 summary of the facts and conflicting clinical evidence, stating his interpretation 16 thereof, and making findings.” Magallanes, 881 F.2d at 751 (quoting Cotton v. 17 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 18 Here, Dr. Ishimori’s opinion was inconsistent with the opinions of another 19 treating physician (AR 2564-68), an examining physician (AR 1237-45), and two 20 state agency review physicians (AR 507-09, 521-23). Thus, the ALJ was required 21 to state specific and legitimate reasons based on substantial evidence in the record 22 before rejecting Dr. Ishimori’s opinion. 23 24 B. Background. 25 In August 2017, Dr. Ishimori, a rheumatologist, saw Plaintiff for the first 26 time. (AR 1320-21, 1427-31.) In pertinent part, Plaintiff reported shortness of 27 breath, pain “all over her body when she walks or lays down,” migraine headaches, 28 sleeping difficulties, and depression. (AR 1426-27.) Dr. Ishimori conducted a 1 “fibromyalgia trigger point exam” and reported positive findings in all tested areas 2 of Plaintiff’s body. (AR 1430.) Dr. Ishimori diagnosed fibromyalgia and a chronic 3 cough. (AR 1431.) Dr. Ishimori recommended weight loss and better sleep 4 hygiene, prescribed Gabapentin, asked Plaintiff to follow up with a pulmonary 5 clinic, and asked Plaintiff to follow-up with Dr. Ishimori in twelve weeks for a re- 6 evaluation. (Id.) 7 In September 2017, Dr. Ishimori issued an opinion about Plaintiff’s 8 functioning, based on the August 2017 visit. (AR 1361-65.) In pertinent part, Dr. 9 Ishimori stated that, at multiple tender points, Plaintiff experienced sharp pain for 10 five minutes followed by two hours of stiffness. (AR 1362.) However, Dr. 11 Ishimori stated that Plaintiff was capable of low stress jobs. (Id.) As to functional 12 limitations, Dr. Ishimori stated that Plaintiff could sit, stand, or walk for less than 13 two hours in an eight-hour workday (AR 1363); could lift less than ten pounds, 14 rarely (AR 1364); and would be absent from work four days per month (id.). 15 In December 2017, Dr. Ishimori performed a follow-up evaluation. (AR 16 189-98.)3 Plaintiff reported that she had stopped taking Gabapentin in September 17 2017 because of a surgery and instead had started using cannabidiol (“CBD”) oil, 18 which she felt “has helped with her symptoms.” (AR 189.) Plaintiff did complain 19 of itchy hives on her skin. (Id.) Dr. Ishimori performed another fibromyalgia 20 trigger point exam, which was positive. (AR 191.) Dr. Ishimori again diagnosed 21 fibromyalgia and a chronic cough. (AR 192.) Dr. Ishimori discontinued the 22 Gabapentin (AR 197), discussed with Plaintiff the efficacy of CBD oil (AR 192), 23 recommended Allegra for eczema (id.), encouraged “low grade exercise” (id.), and 24 recommended that Plaintiff return to see Dr. Ishimori “as needed” (id.).

25 3 The evidence of Dr. Ishimori’s December 2017 follow-up evaluation was 26 presented for the first time to the Appeals Council. (AR 2.) The Court considers 27 this evidence to determine whether the ALJ’s decision was supported by substantial evidence. See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1163 28 (9th Cir. 2012). 1 C. Analysis. 2 The ALJ gave “no weight” to Dr. Ishimori’s September 2017 opinion for 3 three reasons. (AR 16.) The Court reviews each reason in turn. As discussed 4 below, two of the three reasons were specific and legitimate reasons based on 5 substantial evidence. 6 7 1. Inconsistency with Plaintiff’s stated ability to sit. 8 The ALJ first stated that Dr. Ishimori’s opinion was inconsistent with 9 Plaintiff’s testimony about her ability to sit. (AR 166.) While Dr. Ishimori limited 10 Plaintiff to less than two hours of sitting in an eight-hour workday (AR 1363), 11 Plaintiff testified that she could sit for “maybe three to four hours” in an eight-hour 12 day. (AR 465.) 13 “A conflict between a treating physician’s opinion and a claimant’s activity 14 level is a specific and legitimate reason for rejecting the opinion.” Ford v. Saul, 15 950 F.3d 1141, 1155 (9th Cir. 2020) (citing Rollins v. Massanari, 261 F.3d 853, 16 856 (9th Cir. 2001)); see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 17 2003) (holding that a treating physician’s opinion was properly rejected where the 18 assessed limitations were inconsistent with and more restrictive than the record on 19 the whole, including, inter alia, the physician’s treatment notes, the opinions of 20 other physicians, and the claimant’s self-reported limitations); Reichley v. Berryhill, 21 723 F. App’x 540, 541 (9th Cir. 2018) (holding that an ALJ satisfied the higher 22 “clear and convincing” standard where a treating physician’s fibromyalgia 23 questionnaire “assessed limitations exceeded those reported by [the claimant]”). 24 Here, for purposes of an eight-hour workday, Dr. Ishimori’s assessed limitation in 25 sitting for less than two hours was inconsistent with Plaintiff’s admitted ability to 26 sit for three to four hours. 27 Plaintiff contends that this inconsistency, which reflected a difference of as 28 little as one hour plus one minute of sitting, was too insignificant to justify rejecting 1 Dr. Ishimori’s opinion. (Joint Stip. at 7-8.) The inconsistency identified by the 2 ALJ must be significant in order to form a specific and legitimate basis to reject a 3 treating physician’s opinion. See Sprague v. Bowen, 812 F.2d 1226, 1230-31 (9th 4 Cir. 1987) (finding insignificant a purported inconsistency between a treating 5 physician’s opinion about a claimant’s back pain and the claimant’s efforts to learn 6 to type); see also Heine-O’Brien v. Astrue, 359 F. App’x 699, 700 (9th Cir. 2009) 7 (finding insignificant a difference between a treating doctor’s opinion and the 8 claimant’s testimony as to whether the claimant could walk for thirty or only fifteen 9 minutes). 10 But here, the inconsistency that the ALJ identified — less than two hours of 11 sitting versus three to four hours of sitting — was sufficiently significant, 12 depending on how it is interpreted. Although Plaintiff interprets her testimony as 13 indicating only one hour plus one minute of additional sitting, the ALJ reasonably 14 could have interpreted her testimony as indicating more than double the time of 15 sitting, which was a significant inconsistency. See Connett, 340 F.3d at 875 16 (holding that inconsistencies of similar magnitude, as well as a lack of support by 17 treatment notes, were sufficient to reject a treating physician’s opinion). Because 18 the ALJ’s interpretation was permissible, it is upheld. See Orn, 495 F.3d at 630 19 (where evidence is susceptible of more than one rational interpretation, the 20 Commissioner’s interpretation must be upheld). Accordingly, this was a specific 21 and legitimate reason based on substantial evidence to reject Dr. Ishimori’s opinion. 22 23 2. Apparent sympathy for Plaintiff. 24 The ALJ next stated that Dr. Ishimori’s opinion appeared to have been based 25 on sympathy: “While the opinion of a treating source is generally entitled to 26 significant weight[,] that is only applicable if supported by objective evidence, and 27 such is not the case regarding the opinion of Dr. Ishimori as functional limitations 28 indicated appear to be a sympathetic rather than objective opinion in the absence of 1 supporting evidence.” (AR 166.) 2 An ALJ must offer “facts to support [his] suspicion” that an opinion was 3 issued out of “sympathy” for the claimant. See Popa v. Berryhill, 872 F.3d 901, 4 907 (9th Cir. 2017). Here, the ALJ offered the fact that Dr. Ishimori’s opinion was 5 unsupported by objective evidence, which led to an inference that the opinion was 6 based on something other than objective evidence, namely, sympathy for Plaintiff. 7 Such a fact, however, has less meaning for fibromyalgia, which is not amenable to 8 support by objective medical evidence. See Benecke v. Barnhart, 379 F.3d 587, 9 594 (9th Cir. 2004) (“The ALJ erred by effectively requiring objective evidence for 10 a disease that eludes such measurement.”) (citation and internal quotation marks 11 omitted); see also Revels, 874 F.3d at 663 (“Fibromyalgia is diagnosed ‘entirely on 12 the basis of patients’ reports of pain and other symptoms,’ and ‘there are no 13 laboratory tests to confirm the diagnosis.’”) (quoting Benecke, 379 F.3d at 590). 14 Thus, the basis for the inference here that Dr. Ishimori wrote the opinion from 15 sympathy was not well-founded. This was not a specific and legitimate reason 16 based on substantial evidence to reject Dr. Ishimori’s opinion. 17 18 3. Inconsistency with Plaintiff’s conservative treatment. 19 The ALJ finally stated that Dr. Ishimori’s opinion was inconsistent with 20 Plaintiff’s treatment: “[Dr. Ishimori] opines extreme restrictions preventing work 21 activity yet advises minimal/conservative treatment, with follow up not scheduled 22 for 3-4 months.” (AR 166.) 23 “Any evaluation of the aggressiveness of a treatment regimen must take into 24 account the condition being treated.” Revels v. Berryhill, 874 F.3d 648, 667 (9th 25 Cir. 2017). For fibromyalgia, the Ninth Circuit has considered treatment at both 26 ends. Compare Rollins, 261 F.3d at 856 (proper to characterize fibromyalgia 27 treatment as conservative when it consisted of a recommendation to “avoid 28 strenuous activities”); with Revels, 874 F.3d at 667 (improper to characterize 1 fibromyalgia treatment as conservative when it consisted of facet and epidural 2 injections in the neck and back, steroid injections in the hands, and pain 3 medications such as Valium, Vlector, Soma, Vicodin, Percocet, Neurontin, 4 Robaxin, Trazodone, and Lyrica). 5 Plaintiff’s treatment for fibromyalgia was closer to the conservative 6 treatment in Rollins than to the non-conservative treatment in Revels. Dr. 7 Ishimori’s initial treatment plan consisted of a course of Gabapentin (which 8 Plaintiff stopped taking after one month), recommendations for weight loss and 9 better sleep hygiene, and a follow-up visit twelve weeks later. (AR 189, 1431.) At 10 the follow-up visit, the Gabapentin was discontinued, and the treatment plan 11 consisted of CBD oil (which Plaintiff apparently had obtained on her own 12 initiative), Allegra for eczema, “low grade exercise,” and no future plans to see Dr. 13 Ishimori other than “as needed.” (AR 189, 192, 197.) Plaintiff’s treatment was less 14 aggressive and thus distinguishable from the treatment in Revels, which consisted 15 of numerous types of injections and numerous prescription pain medications. See 16 Revels, 874 F.3d at 667. Thus, this was a specific and legitimate reason based on 17 substantial evidence to reject Dr. Ishimori’s opinion. 18 19 D. Conclusion. 20 One of the three reasons stated by the ALJ to reject Dr. Ishimori’s opinion 21 was invalid, given that the ALJ did not support his reasoning that the treating 22 physician’s opinion apparently was written because of sympathy. The error was 23 harmless because the ALJ otherwise stated two specific and legitimate reasons 24 based on substantial evidence. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 25 2012) (an error is harmless where it is “inconsequential to the ultimate nondisability 26 determination”); Monta v. Saul, 776 F. App’x 473, 474 (9th Cir. 2019) (ALJ’s 27 erroneous reason in rejecting a medical opinion was harmless when other reasons 28 were specific and legitimate). 1 Substantial evidence is only “such relevant evidence as a reasonable mind 2 || might accept as adequate to support a conclusion.” See Richardson, 402 U.S. at 3 || 401; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (commenting that 4 || the evidentiary threshold for “substantial evidence” is “not high’). The Court 5 || cannot substitute its own judgment for that of the ALJ where substantial evidence 6 || supports the ALJ’s findings. See Robbins v. Social Sec. Admin., 466 F.3d 880, 882 7 || (9th Cir. 2006) (“If the evidence can support either affirming or reversing the ALJ’s 8 || conclusion, we may not substitute our judgment for that of the ALJ.”) (citation 9 || omitted). In sum, reversal on this basis is not warranted. 10 11 ORDER 12 It is ordered that Judgment be entered affirming the decision of the 13 || Commissioner of Social Security and dismissing this action with prejudice. 14 {| pry 15 | DATED: March 23, 2020 | i ya “| 16 ee 17 MARIA A, AUDERO.. 18 UNITED STATES MAGISTRATE JUDGE

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