1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 NATOSHA S.,1 ) Case No. CV 19-5134-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER 13 )

ANDREW M. SAUL, )

14 Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability insurance 20 benefits (“DIB”) and supplemental security income benefits 21 (“SSI”). The parties consented to the jurisdiction of the 22 undersigned under 28 U.S.C. § 636(c). The matter is before the 23 Court on the parties’ Joint Stipulation, filed July 30, 2020, 24 which the Court has taken under submission without oral argument. 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 For the reasons discussed below, the Commissioner’s decision is 2 affirmed. 3 II. BACKGROUND 4 Plaintiff was born in 1975. (Administrative Record (“AR”) 5 54, 66, 157, 161.) She completed 12th grade (AR 188) and worked 6 as a court clerk, in-home caregiver, and bookkeeper (AR 177, 7 189). 8 On November 5 and 19, 2013, Plaintiff applied for DIB and 9 SSI, respectively, alleging that she had been unable to work 10 since March 6, 2013, because of lower-back pain, arthritis, 11 depression, anxiety, and a spinal tear. (AR 54-55, 66-67, 157- 12 66, 187.) After her applications were denied (AR 78-79, 82-85, 13 87-90), she requested a hearing before an Administrative Law 14 Judge (AR 92-94). A hearing was held on March 12, 2015, at which 15 Plaintiff testified, as did a vocational expert and two medical 16 experts. (See AR 29-53.) In a written decision issued April 23, 17 2015, the ALJ found Plaintiff not disabled. (AR 15-25.) She 18 sought Appeals Council review (AR 9-10), which was denied on 19 November 15, 2016 (AR 1-6). 20 Plaintiff appealed (AR 1578-80), and on May 22, 2018, this 21 Court reversed and remanded for further administrative 22 proceedings (AR 1603-16). On January 22, 2019, an ALJ conducted 23 another hearing, at which Plaintiff, who was again represented by 24 counsel, and a VE and an ME again testified. (See AR 1530-53.) 25 In a written decision dated April 4, 2019, the ALJ again found 26 Plaintiff not disabled. (AR 1373.) This action followed. 27 28 2 1 III. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner’s decision to deny benefits. The ALJ’s findings and 4 decision should be upheld if they are free of legal error and 5 supported by substantial evidence based on the record as a whole. 6 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 7 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 8 means such evidence as a reasonable person might accept as 9 adequate to support a conclusion. Richardson, 402 U.S. at 401; 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 11 is “more than a mere scintilla, but less than a preponderance.” 12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 14 meaning of ‘substantial’ in other contexts, the threshold for 15 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 16 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 17 evidence supports a finding, the reviewing court “must review the 18 administrative record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner’s 20 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 21 1998). “If the evidence can reasonably support either affirming 22 or reversing,” the reviewing court “may not substitute its 23 judgment” for the Commissioner’s. Id. at 720-21. 24 IV. THE EVALUATION OF DISABILITY 25 People are “disabled” for purposes of receiving Social 26 Security benefits if they are unable to engage in any substantial 27 gainful activity owing to a physical or mental impairment that is 28 expected to result in death or has lasted, or is expected to 3 1 last, for a continuous period of at least 12 months. 42 U.S.C. 2 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 1992). 4 A. The Five-Step Evaluation Process 5 An ALJ follows a five-step sequential evaluation process to 6 assess whether someone is disabled. 20 C.F.R. §§ 404.1520(a)(4), 7 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 8 1995) (as amended Apr. 9, 1996). In the first step, the 9 Commissioner must determine whether the claimant is currently 10 engaged in substantial gainful activity; if so, the claimant is 11 not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 12 416.920(a)(4)(i). 13 If the claimant is not engaged in substantial gainful 14 activity, the second step requires the Commissioner to determine 15 whether the claimant has a “severe” impairment or combination of 16 impairments significantly limiting her ability to do basic work 17 activities; if not, a finding of not disabled is made and the 18 claim must be denied. §§ 404.1520(a)(4)(ii) & (c), 19 416.920(a)(4)(ii) & (c). 20 If the claimant has a “severe” impairment or combination of 21 impairments, the third step requires the Commissioner to 22 determine whether the impairment or combination of impairments 23 meets or equals an impairment in the Listing of Impairments 24 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 25 1; if so, disability is conclusively presumed and benefits are 26 awarded. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). 27 If the claimant’s impairment or combination of impairments 28 does not meet or equal one in the Listing, the fourth step 4 1 requires the Commissioner to determine whether the claimant has 2 sufficient residual functional capacity (“RFC”)2 to perform her 3 past work; if so, she is not disabled and the claim must be 4 denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant 5 has the burden of proving she is unable to perform past relevant 6 work. Drouin, 966 F.2d at 1257. If the claimant meets that 7 burden, a prima facie case of disability is established. Id. 8 If that happens or if the claimant has no past relevant 9 work, the Commissioner bears the burden of establishing that the 10 claimant is not disabled because she can perform other 11 substantial gainful work available in the national economy, the 12 fifth and final step of the sequential analysis. 13 §§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b). 14 B. The ALJ’s Application of the Five-Step Process 15 At step one, the ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since March 6, 2013, the alleged 17 onset date. (AR 1356.) At step two, he determined that she had 18 severe impairments of “degenerative disc disease of the lumbar 19 spine,” “asthma,” “shoulder impingement,” and “morbid obesity.” 20 (Id.) 21 At step three, he found that Plaintiff’s impairments did not 22 meet or equal any of the impairments in the Listing. (AR 1359.) 23 At step four, he determined that she had the RFC to perform less 24 25 2 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 27 The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 28 2017) (citing § 416.920(a)(4)). 5 1 than the full range of sedentary work: she could “lift, carry, 2 push, and pull 10 pounds occasionally and less than 10 pounds 3 frequently”; “stand/walk a total of 2 hours in an 8-hour 4 workday”; “sit 8 hours in an 8-hour workday, with normal breaks”; 5 “occasionally climb ramps and stairs, but . . . never climb 6 ladders, ropes or scaffolds”; “engage in occasional overhead 7 reaching”; and “occasionally stoop, kneel, crouch and crawl.” 8 (AR 1360.) She could not work around “unprotected heights,” 9 “dangerous machinery,” or “dusts, fumes or gases,” and she “would 10 miss two consecutive days of work” “every 4 months,” “up to 8 11 days a year.” (Id.) 12 The ALJ found that Plaintiff was unable to perform any past 13 relevant work (AR 1365), but she could work as an inspector, 14 assembler, or polisher, positions that “exist[ed] in significant 15 numbers in the national economy” (AR 1366). Accordingly, he 16 found her not disabled. (AR 1366-67.) 17 V. DISCUSSION3 18 Plaintiff alleges that the ALJ improperly rejected a portion 19 of the opinion of internist Harvey Alpern, a consulting medical 20 expert. (See J. Stip. at 6-13.) For the reasons discussed 21 22 3 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission 23 are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social 24 Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 8-11, 25 29-53, 1530-53, 1625-49, 1651-54, 1656-57); Meanel v. Apfel, 172 26 F.3d 1111, 1115 (9th Cir. 1999) (as amended); see also Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting 27 Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 28 (2019). 6 1 below, remand is not warranted. 2 The ALJ Properly Evaluated Dr. Alpern’s Opinion 3 A. Applicable law 4 Three types of physicians may offer opinions in Social 5 Security cases: those who directly treated the plaintiff, those 6 who examined but did not treat the plaintiff, and those who did 7 neither. See Lester, 81 F.3d at 830. A treating physician’s 8 opinion is generally entitled to more weight than an examining 9 physician’s, and an examining physician’s opinion is generally 10 entitled to more weight than a nonexamining physician’s. Id.; 11 see §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).4 But even “the 12 findings of a nontreating, nonexamining physician can amount to 13 substantial evidence, so long as other evidence in the record 14 supports those findings.” Saelee v. Chater, 94 F.3d 520, 522 15 (9th Cir. 1996) (per curiam) (as amended). Moreover, because a 16 testifying medical expert is subject to cross-examination, his 17 opinion may be given greater weight even if he did not examine 18 the claimant. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 19 1995). 20 B. Relevant background 21 Dr. Alpern reviewed Plaintiff’s medical record and testified 22 at the March 12, 2015 hearing that she had a history of “distant” 23 asthma, obesity, and degenerative disc disease. (AR 44.) He 24 25 4 For claims filed on or after March 27, 2017, the rules in 26 §§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply. See §§ 404.1520c, 416.920c (evaluating opinion evidence for 27 claims filed on or after Mar. 27, 2017). Plaintiff’s claims were filed before March 27, 2017, however, and the Court therefore 28 analyzes them under former §§ 404.1527 and 416.927. 7 1 noted that although her degenerative disc disease did not “show 2 classic impingement,” “atrophy,” or “associated findings of 3 ambulation problems,” “she would have restrictions.” (Id.) He 4 limited her to what was essentially a sedentary RFC. (AR 45.) 5 She also would be absent from work “[e]very three months when she 6 has her [epidural] procedure.” (Id.) When the ALJ asked how 7 much time Plaintiff would need off for the procedure, he answered 8 “[a] week,” “maybe less.” (Id.) The ALJ further inquired 9 whether there was a “reasonable likelihood that [Plaintiff’s 10 doctors] would continue [her] epidurals every three months on a 11 sustained basis.” (AR 51.) He testified that if the epidurals 12 “demonstrate[d] true effectiveness[,] they may” continue 13 administering them, but “[o]therwise they would recommend 14 surgery.” (Id.) 15 At the January 22, 2019 hearing, Dr. Alpern clarified how 16 much time Plaintiff would need off for the epidural injections, 17 testifying that she was getting them “about every three months”5 18 and that they “involve[d] being off work for probably two to 19 three days.” (AR 1536.) He explained that his time estimate had 20 changed since the first hearing because once the epidurals became 21 routine, the preoperative portion of the procedure was not always 22 necessary. (AR 1540-41, 1550-51.) 23 The ALJ gave “great weight” to Dr. Alpern’s testimony and 24 5 Plaintiff points to no treating doctor who opined that she 25 needed injections every three months. And her own testimony on 26 this point was far from clear. She testified at the 2019 hearing that the time between them was “four months” (AR 1536-37), but 27 she also agreed that she “g[o]t them quarterly” (id.), which would be every three months. At the 2015 hearing she testified 28 that she received them “every three to four months.” (AR 33.) 8 1 opinion because they were “consistent with the overall medical 2 evidence” and he was “a board certified internist” who “was at 3 the first hearing” and had “had the opportunity to review all the 4 medical records in [their] entirety, consider the longitudinal 5 treatment records from the alleged onset date to the [date of the 6 hearing], as well as question [Plaintiff] at the [January 2019] 7 hearing.” (AR 1363.) 8 The ALJ gave only partial weight to Dr. Alpern’s testimony 9 that Plaintiff would miss two or three days of work every three 10 months, however, because he found that “[i]t d[id] not appear 11 that [Plaintiff] receive[d] injections that frequently,” noting 12 that she had had only five injections from April 2016 through 13 September 2018. (Id.; see AR 1851, 1891-92, 2025-26, 2197-98, 14 2388-91.) Moreover, the ALJ noted, although Plaintiff testified 15 that she stayed in bed after an injection anywhere from two to 16 seven days, Dr. Alpern opined that six or seven days was 17 uncharacteristically long. (AR 1363; see AR 1542.) Indeed, 18 “records show[ed] that [Plaintiff] was walking soon after her 19 injections without difficulty.” (AR 1363; see AR 1891-92, 2198, 20 2392.) The ALJ rejected Plaintiff’s symptom testimony as 21 inconsistent with the objective medical evidence, her 22 conservative treatment, her daily activities, and her collecting 23 unemployment benefits in 2017 (AR 1360-62, 1364-65), a finding 24 she has not challenged on appeal. Based on the evidence, the ALJ 25 found that “every 4 months, [Plaintiff] would miss two 26 consecutive days of work in that month, up to 8 days a year.” 27 (AR 1363.) 28 At the hearing, the ALJ presented hypotheticals to the VE 9 1 limiting Plaintiff to “miss[ing] one day per month,” “two days 2 per month,” “two days” “every four months,” and “three days” 3 “every four months.” (AR 1545-46.) The VE testified that the 4 inspector, assembler, and polisher positions would still be 5 available in significant numbers in the national economy for 6 someone missing one day of work a month, two days every four 7 months, or “eight days a year.” (Id.) But no jobs would be 8 available for someone who missed either two days a month or three 9 days every four months. (AR 1546-47.) 10 C. Analysis 11 Plaintiff argues that in finding that she would receive 12 injections only every four months, the ALJ improperly “focused on 13 th[e] 29-month period [between April 2016 and September 2018] 14 without looking at the entire medical record.” (J. Stip. at 8.) 15 But as previously noted, apparently no treating doctor ever 16 opined that she needed injections every three months. 17 Regardless, the ALJ would not have found that she received 18 injections more often than every four months even if he had 19 considered all the epidural injections referenced in the record. 20 The record indicates that Plaintiff had a total of 15 epidural 21 injections — an average of one every four and four-fifths months 22 — between March 13, 2013, and the ALJ’s April 4, 2019 decision. 23 (AR 403-05 (Mar. 13, 2013), 419 (Apr. 4, 2013), 440 (June 11, 24 2013), 530 (Aug. 31, 2013), 661 (Jan. 16, 2014), 950, 964-65 (May 25 6, 2014), 750 (Sept. 3, 2014), 1208-09 (Feb. 7, 2015), 1427-28 26 (May 30, 2015), 1514 (Oct. 17, 2015 (Sept. 10, 2015 progress note 27 indicating that injection was scheduled)), 1891-92 (Apr. 7, 28 2016), 1851 (Feb. 2, 2017), 2025-26 (Nov. 14, 2017), 2197-98 (May 10 1 3, 2018), 2388-91 (Sept. 1, 2018); see also AR 1536-37 (Plaintiff 2 testifying on January 22, 2019, that she had not had injection 3 since September or October 2018 and not mentioning any upcoming 4 scheduled injections).) 5 Plaintiff correctly notes that she received more than three 6 injections in 2013, and if the ALJ had focused solely on the 7 period between March 13, 2013, and January 16, 2014, the average 8 time between Plaintiff’s injections was less than four months. 9 (AR 403-05, 419, 454, 530, 661.) But focusing only on that time 10 period would have been improper. As Plaintiff concedes, the ALJ 11 was required to review the record as a whole and “is not free to 12 ignore relevant, competent evidence.” Kelly v. Berryhill, 732 F. 13 App’x 558, 562 (9th Cir. 2018) (citing Gallant v. Heckler, 753 14 F.2d 1450, 1455-56 (9th Cir. 1984)). Viewing the record as a 15 whole, the ALJ’s finding that Plaintiff had injections no more 16 than once every four months was supported by substantial evidence 17 — indeed, for most of the relevant period it was generous. 18 Plaintiff provides a litany of reasons why she did not have 19 the injections every three months, as she claimed she needed. 20 (See J. Stip. at 8-10 (attributing delays at various times to 21 rash and excision of neck mass, among other things).) But the 22 ALJ was entitled to extrapolate from a years-long course of 23 conduct covering nearly the entire relevant period that 24 Plaintiff’s schedule was unlikely to change. Cf. Molina v. 25 Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (ALJ properly 26 relied on past frequency of treatment in assessing symptoms’ 27 effect on ability to work), superseded by regulation on other 28 grounds as recognized in Schuyler v. Saul, 813 F. App’x 341, 342 11 (9th Cir. 2020); Luevano v. Berryhill, No. ED CV 16-0380-DFM, WL 2413686, at *6 (C.D. Cal. June 2, 2017) (ALJ entitled to 3 rely on history of infrequent treatment in assessing frequency 4]/ and severity of symptoms). 5 Plaintiff’s RFC would allow her to be absent from work up to 6 || eight days a year for the epidural injections (AR 1360), which 7 || translates into three days for two of the three sets of 8 || injections a year and two for the other. This is fully 9 || consistent with Dr. Alpern’s statement that she would need “two 10 |} to three days” for each injection. (AR 1536.) Moreover, 11 Plaintiff testified that she “tr[ied] to get [the injections] 12 | during the week,” while her son was at school. (AR 1550.) At 13 || least on occasion, Plaintiff would presumably be able to schedule 14 || her injections for a Friday, thereby requiring her to miss only 15 || one day of work and making the ALJ’s eight-day yearly allowance 16 even more reasonable. Remand is not warranted on this issue. 17 |} VI. CONCLUSION 18 Consistent with the foregoing and under sentence four of 42 19f}U.S.Cc. § 405(g),° IT IS ORDERED that judgment be entered 20 |] AFFIRMING the Commissioner’s decision, DENYING Plaintiff's 21 || request for remand, and DISMISSING this action with prejudice. 22 23 || patrp: September 11, 2020 Prcadlat~

JEAN ROSENBLUTH

24 U.S. Magistrate Judge 25 | 26 ° That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, 27 judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the 28 ll cause for a rehearing.” 12