1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 IMIESHA M. S., ) No. CV 18-6934 FFM 12 ) Plaintiff, ) MEMORANDUM DECISION AND 13 ) ORDER v. ) 14 ) ANDREW SAUL, Commissioner of ) 15 Social Security, ) ) 16 Defendant. ) ) 17 18 Plaintiff Imiesha M. S. (“Plaintiff”) brings this action seeking to overturn the 19 decision of the Commissioner of the Social Security Administration denying her 20 application for disability insurance benefits. Plaintiff and defendant consented to the 21 jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 22 636(c). Pursuant to the Order Granting Plaintiff’s Request re Cross-Motions for 23 Summary Judgment, filed on June 25, 2019, on August 30, 2019, Plaintiff filed her 24 motion for summary judgment; on September 9, 2019 defendant filed his cross-motion 25 for summary judgment; on September 30, 2019 defendant filed his opposition to 26 Plaintiff’s motion for summary judgment; and on December 5, 2019, Plaintiff filed her 27 opposition to defendant’s cross-motion for summary judgment. The Court has reviewed 28 / / / 1 the administrative record (the “AR”) and the filings of the parties. For the reasons 2 stated below, the Court DENIES Plaintiff’s motion for summary judgment, GRANTS 3 defendant’s cross-motion for summary judgment, and affirms the decision of the 4 Commissioner.

PRIOR PROCEEDINGS

5 6 On December 29, 2014, Plaintiff filed applications for disability insurance 7 benefits and supplemental security income benefits. (AR 127, 133.) After her 8 applications were denied, Plaintiff requested a hearing before an administrative law judge (“ALJ”). On February 14, 2017, ALJ John Giannikas held a hearing. (AR 34- 9 61.) Plaintiff appeared at the hearing with counsel and testified. (See id.) 10 On May 31, 2017, the ALJ issued a decision denying Plaintiff benefits. (AR 33.) 11 Therein, the ALJ found that plaintiff suffers from the following severe impairments: 12 “depressive disorder, secondary to general medical condition, and malingering.” (AR 13 19.) The ALJ also determined that Plaintiff possesses the residual functional capacity 14 (“RFC”) “to perform a full range of work at all exertional levels but with the following 15 nonexertional limitations: “the ability to understand, remember, and carry out simple 16 instructions, interact with coworkers and supervisors on an occasional and superficial 17 basis, and adjust to changes in a routine work setting.” (AR 20.) In determining 18 plaintiff’s RFC, the ALJ found that Plaintiff’s “statements concerning the intensity, 19 persistence and limiting effects of these symptoms [were] not entirely consistent with 20 the medical evidence and other evidence in the record.” (AR 21.) Based on Plaintiff’s 21 RFC and the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff is 22 capable of performing work existing in the national economy and is therefore not 23 disabled. (AR 28.) 24 On June 12, 2018, the Appeals Council denied review. Plaintiff initiated this 25 action on August 13, 2018. (Dkt. 1.) 26 / / / 27 / / / 28 1 PLAINTIFF’S CONTENTIONS 2 Plaintiff contends that her own statements as to her physical limitations and 3 medical statements from Dr. Wengel, Dr. Wang, and Dr. Iseke (D.C.) all support her 4 claim. Plaintiff attaches the medical statements to her motion and attaches additional 5 medical statements, some of which are not in the AR, to her opposition to defendant’s 6 cross-motion. 7 STANDARD OF REVIEW 8 Under 42 U.S.C. § 405(g), this Court reviews the Administration’s decisions to 9 determine if: (1) the Administration’s findings are supported by substantial evidence; 10 and (2) the Administration used proper legal standards. Smolen v. Chater, 80 F.3d 11 1273, 1279 (9th Cir. 1996) (citations omitted). “Substantial evidence is more than a 12 scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998) (citation omitted). To determine whether substantial evidence supports a finding, 14 “a court must consider the record as a whole, weighing both evidence that supports and 15 evidence that detracts from the [Commissioner’s] conclusion.” Auckland v. Massanari, 16 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted). 17 If the evidence in the record can reasonably support either affirming or reversing 18 the ALJ’s conclusion, the Court may not substitute its judgment for that of the ALJ. 19 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Sec’y of 20 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). However, even if 21 substantial evidence exists to support the Commissioner’s decision, the decision must 22 be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. 23 Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen, 80 F.3d at 1279. 24 DISCUSSION 25 A. The ALJ Properly Considered the Medical Opinion Evidence 26 Plaintiff does not argue that the ALJ’s decision was not supported by sufficient 27 evidence. Rather, Plaintiff simply argues that other evidence would support a finding of 28 disability. However, the ALJ is entitled to resolve an evidentiary conflict between 1 conflicting opinions and need not provide specific and legitimate reasons for giving 2 weight to, e.g., one treating physician’s opinion over another’s. See Thomas v. 3 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to 4 more than one rational interpretation, one of which supports the ALJ’s decision, the 5 ALJ’s conclusion must be upheld”). In any event, no evidence from an acceptable 6 medical source supports the degree of limitations Plaintiff contends that she has. 7 None of the statements from Drs. Wengel and Wang supports any limitations in 8 excess to what the ALJ determined. Moreover, the ALJ properly rejected the only 9 opinion on which Plaintiff relies that provided greater limitations than those found by 10 the ALJ. In this regard, Plaintiff relies on the opinion of Dr. Iseke, a chiropractor not a 11 medical doctor, limiting Plaintiff to not prolonged standing and sitting. In rejecting this 12 opinion, the ALJ explained: 13 First, the objective record thus far did not support any allegation or 14 treatment of back or wrist pain arising from the July 2014 accident. All 15 treatment notes pointed to bilateral ankle sprains and pain. (Exhibit lF). 16 Secondly, SSR 06-03p provides that “acceptable medical sources” are 17 licensed physicians, licensed or qualified psychologists, licensed 18 optometrists, licensed podiatrists, or qualified speech-language 19 pathologists. Making a distinction between “acceptable medical sources” 20 and medical sources who are not “acceptable medical sources” facilitates 21 the application of our rules on establishing the existence of an impairment, evaluating medical opinions, and who can be considered a treating source. 22 While a chiropractor is not an “acceptable medical source,” his opinion can 23 still be used to show the severity of an impairment and how it affects the 24 claimant's ability to function. Nevertheless, in this case, he failed to 25 provide a scintilla of clinical evidence to support his contentions regarding 26 the claimant's limitations. He appeared to base the proposed limitations on 27 / / / 28 1 the claimant's subjective complaints and the alleged implementation of various 2 conservative treatment methods. 3 AR 22. 4 The foregoing reasons were permissible ones for rejecting the chiropractor’s 5 opinion. First, an ALJ is not required to give the opinion from a source that is not an 6 acceptable medical source the same weight as he would the opinion from an acceptable 7 medical source. See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (defining “medical 8 opinions” as, in pertinent part, statements from “acceptable medical sources”), 9 404.1527(d), 416.927(d) (describing weight to give medical opinions); see also Gomez 10 v. Chater, 74 F.3d 967, 970-971 (9th Cir. 1996) (holding that the regulations permit the 11 Commissioner to give “less weight” to opinions from “other sources”). 12 Second, “[a]n ALJ may reject [even a] treating physician’s opinion if it is based 13 ‘to a large extent’ on a claimant’s self-reports that have been properly discounted as 14 incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 15 Third, failure of the record to support the opinion is a legitimate reason to reject 16 the opinion. See e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ 17 provided specific and legitimate reasons for rejecting treating doctor’s opinion, as that 18 opinion was inconsistent with doctor’s examination notes as well as internally 19 inconsistent and not supported by any findings made by treating doctor or any other 20 doctor). 21 The ALJ followed this discussion of permissible reasons for rejecting the opinion of the chiropractor with additional reasons: 22 Moreover, Mr. Iseke's description of the claimant’s multiple attempts with 23 treatment was inconsistent with the record. As of February 2015, she had 24 not used crutches or the CAM boot provided to her. She had not attended 25 any physical therapy sessions she received referrals for. Her only complaint 26 was bilateral ankle pain and she claimed she had not worked since July 27 / / / 28 1 2014 due to the bilateral ankle/heel injury. The claimant’s main purpose for 2 the visit, however, was to complete disability forms. (Exhibit 3F/l l). 3 Id. 4 Plaintiff argues that the ALJ misconstrued the record, because there are 5 references in the record to her using crutches and a CAM boot. Plaintiff is correct to the 6 extent that there was no evidence that Plaintiff had never used the crutches or a CAM 7 boot. On the contrary, the treatment note referenced by the ALJ merely indicated that 8 Plaintiff no longer was using the crutches or a CAM boot as of February 2015. (AR 9 232.) Although the ALJ’s statement, depending on how it is interpreted, may have been 10 incorrect, the Court finds any error with respect to Plaintiff’s use of crutches and a 11 CAM boot to be harmless. 12 An ALJ’s error is harmless where it is “inconsequential to the ultimate 13 nondisability determination.” Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 14 1055 (9th Cir. 2006); see also Carmickle v. Commissioner, Soc. Sec. Admin., 533 F.3d 15 1155, 1162-63 (9th Cir. 2008). Harmless error may occur when the ALJ provides other 16 record-supported reasons for the determination in question; when the error occurs in a 17 step the ALJ was not required to perform; when the mistake was nonprejudicial to the 18 claimant; or when the error was irrelevant to the ultimate disability conclusion. Stout, 19 454 F.3d at 1055; see also Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 20 1197 (9th Cir. 2004) (error in asserting that plaintiff sat while watching television 21 harmless where ALJ provided numerous other reasons supported by substantial evidence for discounting plaintiff’s testimony). 22 Here, the medical record thoroughly supported the rejection of the chiropractor’s 23 opinion. Whether Plaintiff had used crutches and a CAM boot initially was of no 24 moment. Her injuries were far less severe than she had claimed and no approved 25 medical source suggested any limitations similar to those suggested by the chiropractor. 26 Therefore, remand is not required with respect to the rejection of the chiropractor’s 27 opinion. 28 1 B. The ALJ Permissibly Discredited Plaintiff 2 ALJs engage in a two-step analysis to determine whether a claimant’s subjective 3 complaints about the severity of her symptoms are credible. First, the ALJ must 4 determine whether the claimant has produced evidence of an impairment that is 5 reasonably likely to cause the alleged symptoms. Bunnell v. Sullivan, 947 F.2d 341, 6 349 (9th Cir. 1991) (en banc). If the claimant satisfies the first prong of the analysis, 7 she is not required to produce medical evidence supporting her symptoms’ alleged 8 severity. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citations 9 omitted). Rather, the ALJ moves on to the second step of the analysis and may 10 discredit the claimant’s subjective complaints only upon: (1) providing clear and 11 convincing reasons for doing so or (2) finding affirmative evidence of malingering. 12 Smolen, 80 F.3d at 1281. The ALJ noted that “the record suggests significant issues with the consistency 13 of the claimant’s allegations and presentations during examinations,” and described in 14 detail those inconsistencies. (See AR 21-27.) Among other such instances, the ALJ 15 described an instance where Plaintiff told an orthopedic examining physician that a car 16 had run over both of her legs, fracturing them, and requiring her to use leg braces for 17 six months. In fact, the car had struck the back of her heels, did not even knock her off 18 her feet, and broke no bones. (AR 23.) Moreover, Plaintiff never was prescribed or 19 used leg braces. (Id.) The ALJ also referenced an instance where an examining 20 physician opined that Plaintiff was making a conscious effort to perform poorly. (AR 21 26.) The ALJ also found that the objective medical evidence did not support any of 22 Plaintiff’s excess symptom allegations. (AR 21.) 23 In determining credibility, an ALJ may consider conflicts between the claimant’s 24 statements and the rest of the evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). 25 Moreover, although an ALJ may not premise the rejection of the claimant’s testimony 26 regarding subjective symptoms solely on the lack of medical support (Light v. Social 27 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); Lester v. Chater, 81 F.3d 821, 834 (9th 28 Cir. 1995), limited on other grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1 1996), weak objective support does undermine subjective complaints of disabling 2 symptoms. See Tidwell v. Apfel, 161 F.3d 599, 601-02 (9th Cir. 1998); see also 3 Thomas, 278 F.3d at 959; Regennitter v. Commissioner of Soc. Sec. Admin., 166 F.3d 4 1294, 1297 (9th Cir. 1999) (finding that subjective complaint is “inconsistent with 5 clinical observations” can constitute clear and convincing reason for rejecting 6 testimony if supported by specific findings). 7 The Court finds that the ALJ did not err in discrediting Plaintiff’s testimony. 8 CONCLUSION 9 For the foregoing reasons, Plaintiff’s motion for summary judgment is DENIED 10 and defendant’s cross-motion for summary judgement is GRANTED. The judgement 11 of the Commissioner is affirmed.

IT IS SO ORDERED.

12 13 DATED: April 8, 2020 14 /S/ FREDERICK F. MUMM 15 FREDERICK F. MUMM United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28