1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABELARDO H., Case No.: 3:19-cv-00230-JM (RNB)

12 Plaintiff,

REPORT AND

13 v. RECOMMENDATION REGARDING

CROSS-MOTIONS FOR SUMMARY

14 ANDREW SAUL, Commissioner of

JUDGMENT

Social Security,1 15 Defendant. (ECF Nos. 14, 17) 16

17 18 This Report and Recommendation is submitted to the Honorable Jeffrey T. Miller, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 20 72.1(c) of the United States District Court for the Southern District of California. 21 On February 1, 2019, plaintiff filed a complaint pursuant to 42 U.S.C. § 405(g) 22 seeking judicial review of a decision by the Commissioner of Social Security denying his 23 application for Supplemental Security Income (“SSI”). (ECF No. 1.) 24 Now pending before the Court and ready for decision are the parties’ cross-motions 25 for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that 26

27 1 Andrew Saul is hereby substituted as the defendant in this case per Fed. R. Civ. P. 28 1 plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s cross- 2 motion for summary judgment be GRANTED, and that Judgment be entered affirming the 3 decision of the Commissioner and dismissing this action with prejudice. 4 5 PROCEDURAL BACKGROUND 6 On January 29, 2015, plaintiff protectively filed an application for SSI under Title 7 XVI of the Social Security Act, alleging disability commencing November 29, 2014. 8 (Certified Administrative Record [“AR”] 276-84; see also AR 147.) The application was 9 denied initially and upon reconsideration. (AR 158-62, 168-72.) Plaintiff then requested 10 an administrative hearing before an Administrative Law Judge (“ALJ”). (AR 174-76.) 11 Hearings were held before the same ALJ on March 14, 2017, August 21, 2017, and January 12 2, 2018. (AR 31-57, 58-112, 113-40.) Plaintiff was represented by counsel at all three 13 hearings, and testimony was taken from him, two medical experts, and three vocational 14 experts. (See id.) The ALJ issued a decision on February 22, 2018, finding that plaintiff 15 was not disabled for purposes of his benefits application. (AR 15-24.) Thereafter, plaintiff 16 requested a review of the decision by the Appeals Council. (AR 275.) The ALJ’s decision 17 became the final decision of the Commissioner on November 28, 2018, when the Appeals 18 Council denied plaintiff’s request for review. (AR 1-6.) This timely civil action followed. 19 20 SUMMARY OF THE ALJ’S FINDINGS 21 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 22 evaluation process. See 20 C.F.R. § 416.920. At step one, the ALJ found that plaintiff had 23 not engaged in substantial gainful activity since January 29, 2015, the application date.2 24 (AR 17.) 25 26

27 2 SSI is not payable prior to the month following the month in which the application 28 1 At step two, the ALJ found that plaintiff had the following severe impairments: 2 diverticulitis and related gastrointestinal impairments; degenerative disc disease; morbid 3 obesity; and osteoarthritis of the hips and knees. (AR 17.)3 4 At step three, the ALJ found that plaintiff did not have an impairment or combination 5 of impairments that met or medically equaled the severity of one of the impairments listed 6 in the Commissioner’s Listing of Impairments. (AR 19.) 7 Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) 8 to perform sedentary work as defined in the Commissioner’s regulations and specifically: 9 “the claimant can stand and/or walk for one to two hours in a workday; the claimant can occasionally climb ramps and stairs; the claimant can 10 occasionally balance, stoop, kneel, crouch and crawl; the claimant cannot 11 climb ladders, ropes or scaffolds; the claimant must avoid all exposure to hazards, such as moving machinery and unprotected heights; the claimant 12 cannot drive; the claimant is limited to understanding, remembering and 13 carrying out simple, routine, repetitive tasks, with standard industry work breaks every two hours; the claimant can have no interaction with the general 14 public and the claimant can have occasional work related, non-personal, non- 15 social interaction with coworkers and supervisors involving no more than a brief exchange of information or hand off of product.” (AR 19.) 16

17 For purposes of his step four determination, the ALJ adduced and accepted the VE’s 18 testimony that a hypothetical person with plaintiff’s vocational profile and RFC would not 19 be able to perform the requirements of plaintiff’s past relevant work. Accordingly, the ALJ 20 found that plaintiff was unable to perform any of his past relevant work. (AR 22.) 21 The ALJ then proceeded to step five of the sequential evaluation process. Based on 22 the VE’s testimony that a hypothetical person with plaintiff’s vocational profile and RFC 23 could perform the requirements of representative occupations that existed in significant 24

25 3 The ALJ further found that plaintiff’s medically determinable physical impairments 26 of hyperthyroidism, obstructive sleep apnea, and hearing impairment were nonsevere; and 27 that his medically determinable mental impairments of depressive disorder and anxiety disorder, considered singly and in combination, likewise were nonsevere. (AR 18.) 28 1 numbers in the national economy such as a document preparer and assembler, the ALJ 2 found that plaintiff had not been under a disability, as defined in the Social Security Act, 3 since January 29, 2015, the date his application was filed. (AR 23-24.) 4 5 PLAINTIFF’S CLAIMS OF ERROR 6 1. The ALJ erred by failing to find plaintiff meets or equals Listing 7 5.06(B) for inflammatory bowel disease due to his complicated diverticulitis. 8 2. The ALJ erred by failing to find plaintiff meets or equals Listing 9 1.04(A) for disorders of the spine. 10 3. The ALJ improperly discredited the opinions of plaintiff’s treating 11 physician, Dr. Egisto Salerno.4 12 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 15 determine whether the Commissioner’s findings are supported by substantial evidence and 16 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 17 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 18 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 19 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 20 “such relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a whole 22 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 23 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 24 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 25 (9th Cir. 1984). 26

27 4 The Court notes that, in his decision, the ALJ referred to Dr. Salerno as “Dr. 28 1 DISCUSSION 2 I. Reversal is not warranted based on the ALJ’s Listings determination. 3 A. Law relating to Listings determinations 4 In 20 C.F.R. Part 404, Subpart P, Appendix 1, the Commissioner has set forth certain 5 impairments that are presumed to be of sufficient severity to prevent the performance of 6 work. See 20 C.F.R. § 416.925(a). At step three of the Commissioner’s sequential 7 evaluation process, the ALJ must determine whether a claimant’s impairment or 8 combination of impairments meets or equals a listed impairment. See Tackett v. Apfel, 180 9 F.3d 1094, 1099 (9th Cir. 1999). If a claimant has an impairment that meets or equals a 10 listed impairment, disability is presumed and benefits are awarded. See id.; see also 20 11 C.F.R. § 416.920(d). 12 The mere diagnosis of a listed condition does not establish that a claimant “meets” 13 a listed impairment. See 20 C.F.R. § 416.925(d); Young v. Sullivan, 911 F.2d 180, 183-84 14 (9th Cir. 1990). “For a claimant to show that his impairment matches a listing, it must 15 meet all of the specified medical criteria. An impairment that manifests only some of those 16 criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 17 (1990); see also 20 C.F.R. § 416.925(d). “For a claimant to qualify for benefits by showing 18 that his unlisted impairment, or combination of impairments, is ‘equivalent’ to a listed 19 impairment, he must present medical findings equal in severity to all the criteria for the 20 one most similar listed impairment.” Zebley, 493 U.S. at 531; see also 20 C.F.R. § 21 416.926(a). 22 The claimant has the burden of proving disability based on the Listing of 23 Impairments. See Burch v. Barnhart, 400 F.3d 676, 83 (9th Cir. 2005); Roberts v. Shalala, 24 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). 25 26 27 28 1 B. The ALJ’s Listings determination 2 In the part of his decision setting forth his step three determination, the ALJ stated 3 that he had considered plaintiff’s impairments under Listings 1.04 and 5.06. (AR 19.) The 4 ALJ further stated: 5 “The claimant’s impairments, considered singly and in combination, do not meet or medically equal the criteria of any medical listing. No treating or 6 examining physician has recorded findings equivalent in severity to the 7 criteria of any listed impairment, nor does the evidence show medical findings that are the same or equivalent to those of any listed impairments.” (Id.) 8

9 C. Analysis 10 (1) Listing 1.04(A) 11 Plaintiff claims that the ALJ erred by failing to find that plaintiff met or equaled 12 Listing 1.04(A) for disorders of the spine. (See ECF No. 14 at 16-18.) 13 Listing 1.04 requires a finding of disability for a claimant who: (1) has a disorder of 14 the spine, such as “herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, 15 osteoarthritis, degenerative disc disease, facet arthritis, [or] vertebral fracture,” (2) that 16 results in “compromise of a nerve root . . . or the spinal cord,” and (3) which is accompanied 17 by the additional requirements set forth under subsections 1.04(A), 1.04(B), or 1.04(C). 18 See 20 C.F.R. 404, subpart P, Appendix 1, § 1.04. 19 Subsection 1.04(A), the subsection at issue here, requires: 20 “Evidence of nerve root compression characterized by neuro-anatomic 21 distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or 22 reflex loss and, if there is involvement of the lower back, positive straight-leg 23 raising test (sitting and supine). Id. § 1.04(A).

24 Thus, where as here the claimant has been diagnosed as suffering from a specified 25 spinal disorder impairment that involves the lower back, the following criteria need to be 26 satisfied in order to meet Listing 1.04(A): (1) evidence of nerve root compression; (2) 27 limitation of motion of the spine; (3) motor loss (atrophy with associated muscle weakness 28 1 or muscle weakness) accompanied by (4) sensory or reflex loss; and (5) a positive straight- 2 leg raising test (sitting and supine). Furthermore, since Listing 1.04(A) does not specify a 3 shorter durational period, the claimant must establish that the impairment meeting the 4 Listing has lasted or can be expected to last for a continuous period of at least 12 months. 5 See 20 C.F.R. § 416.925(c)(4). 6 Here, as the ALJ noted twice in his decision, the medical evidence of record did not 7 contain evidence establishing nerve root compromise or compression. (See AR 20, 21.) 8 Indeed, at the January 2, 2018 administrative hearing, the medical expert (Dr. Zarrius 9 Ghazi) testified to that effect and plaintiff’s attorney conceded that the record contained no 10 MRI of the lumbar spine. (See AR 43.)5 The lack of medical evidence establishing nerve 11 root compression in itself is dispositive of plaintiff’s claim that the ALJ erred by failing to 12 find that plaintiff met or equaled Listing 1.04(A). 13 Further, as the Commissioner points out, the medical evidence of record fails to 14 establish the motor loss and muscle weakness necessary to satisfy Listing 1.04(A). While 15 plaintiff has cited a single treatment note made on November 19, 2015 that states 16 “weakness notable” (see ECF No. 14 at 9, citing AR 1123), plaintiff’s treating physicians 17 found on examination on numerous other occasions that plaintiff did not suffer from motor 18 loss or muscle weakness, but rather had full strength in all muscle groups. (See, e.g., AR 19 553 (“Strength (5/5) in all muscle groups”), 624 (same), 625 (“There is no evidence of . . . 20 atrophy, muscle weakness”), 1133 (“No motor weakness notable”), 1152 (same), 1170 21 (same), 1176 (same), 1188 (same), 1196 (same), 1204 (same), 1211 (same), 1373 (same), 22 1425 (same), 1458 (same), 1468 (same), 1492 (same), 1500 (same), 1512 (same), 1523 23 (same), 1534 (same), 1551 (same), 1565 (same), 1600 (same), 1636 (same), 1651 (same).) 24

25 5 Although Dr. Leonard Rubin, the medical expert at the August 21, 2017 26 administrative hearing, acknowledged in response to questioning by plaintiff’s counsel that 27 plaintiff’s positive straight-let raising tests were “consistent” with nerve root impingement (see AR 85), neither plaintiff’s counsel not Dr. Rubin cited any actual findings in the 28 1 Plaintiff’s failure to establish the requisite motor loss and muscle weakness for a 2 continuous 12-month period also is dispositive of his claim that the ALJ erred by failing to 3 find that plaintiff met or equaled Listing 1.04(A). 4 In addition, as the Commissioner also points out, plaintiff does not even assert that 5 he experienced the requisite sensory or reflex loss. Indeed, the medical evidence of record 6 is to the contrary. (See AR 553 (“Reflexes are equal and symmetric bilaterally in the upper 7 and lower extremities”), 625 (“Reflexes are equal and symmetric bilaterally in the upper 8 and lower extremities”), 875 (“He displays normal reflexes”), 1010 (“Motor and sensory 9 function grossly intact”), 1052 (“reflexes are normal”), 1238 (“reflexes are normal”), 1620 10 (“reflexes were intact”).) Plaintiff’s failure to establish the requite sensory or reflex loss 11 for a continuous 12-month period also is dispositive of his claim that the ALJ erred by 12 failing to find that plaintiff met or equaled Listing 1.04(A). See Cattano v. Berryhill, 686 13 F. App’x 408, 410 (9th Cir. 2017) (holding that the claimant did not meet all of the 14 requirements for Listing 1.04(A) because he was unable to point to evidence that he had 15 suffered sensory or reflex loss). 16 Finally, as the Commissioner also points out, while plaintiff has cited evidence in 17 the medical record of positive straight leg raising (see ECF No. 14 at 9, citing AR 1621- 18 24), that evidence does not reflect the performance of testing in both the seated and supine 19 positions, as Listing 1.04(A) requires where, as here, the lower back is involved. For this 20 reason as well, the Court rejects plaintiff’s claim that the ALJ erred by failing to find that 21 plaintiff met or equaled Listing 1.04(A). See, e.g., Kallenbach v. Berryhill, 766 F. App’x 22 518, 520 (9th Cir. 2019) (holding that the claimant did not satisfy Listing 1.04(A)’s 23 requirement of “positive straight-leg raising test results, both sitting and supine,” because 24 the “examination results state [claimant] had a positive left straight-leg raise but d[id] not 25 specify if the testing conducted included sitting, supine, or both types of straight-leg 26 testing”); Yanchar v. Berryhill, 720 F. App’x 367, 370 (9th Cir. 2017) (holding that the 27 claimant did not meet Listing 1.04 because “the positive straight-leg raising tests in the 28 record do not specify whether she tested positive both sitting and supine”); Cattano, 686 1 F. App’x at 410 (holding that the claimant did not meet all of the requirements for Listing 2 1.04(A) because he was unable to point to evidence of positive straight-leg raising tests in 3 both the sitting and supine positions). 4 The Court also notes that plaintiff’s Reply and Response to the Commissioner’s 5 Opposition/Cross-Motion is nonresponsive to the points raised by the Commissioner. 6 Instead, plaintiff purports to make a new argument--i.e., that the ALJ committed reversible 7 error in failing to address Dr. Rubin’s opinion that plaintiff met Listing 1.04. (See ECF 8 No. 18 at 4-5.) 9 At August 21, 2017 administrative hearing, Dr. Rubin did opine that plaintiff’s 10 degenerative disc disease met Listing 1.04 as of December 2015. However, Dr. Rubin was 11 unable to render an opinion with respect to the duration of time for which plaintiff 12 continued to meet the Listing. (See AR 90-96.) In the Court’s view, Dr. Rubin’s opinion 13 consequently was not probative of whether plaintiff had met his burden of establishing 14 disability under Listing 1.04(A). It follows that the ALJ did not err in failing to address 15 this opinion of Dr. Rubin. See Mitchell v. Colvin, 2015 WL 1487022, at *3-*4 (C.D. Cal. 16 Mar. 31, 2015) (ALJ did not err in failing to address treating physician’s opinion that did 17 not demonstrate the claimant satisfied the durational requirement of the Listing in 18 question); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 19 (the ALJ need only discuss evidence that is significant and probative). 20 For all of the foregoing reasons, the Court finds that reversal is not warranted based 21 on the ALJ’s failure to find that plaintiff’s degenerative disc disease met or equaled Listing 22 1.04(A). 23 24 (2) Listing 5.06(B) 25 Plaintiff also claims that the ALJ erred by failing to find plaintiff met or equaled 26 Listing 5.06(B) for inflammatory bowel disease due to his complicated diverticulitis. (See 27 ECF No. 14 at 13-16.) 28 1 In response to the ALJ’s questioning at the August 21, 2017 administrative hearing, 2 Dr. Rubin testified that, with respect to plaintiff’s perforated diverticulitis, the closest and 3 most comparable listed impairment was Listing 5.06. (AR 70-71.) In response to further 4 questioning by the ALJ, Dr. Rubin opined that plaintiff’s condition equaled this listing 5 from December 15, 2014 until November 27, 2015. (AR 72.) 6 In his decision, the ALJ noted that Dr. Rubin had testified that plaintiff met the 7 Listing from December 2014 through November 2015, which was not 12 months. (AR 8 21.) Thus, it appears from the decision, as well as from the ALJ’s questioning of Dr. Rubin, 9 that the basis for the ALJ’s determination that plaintiff’s perforated diverticulitis did not 10 equal Listing 5.06 was the ALJ’s belief that plaintiff needed to meet the requirements of 11 the Listing for 12 months. This is the gravamen of the Commissioner’s argument. (See 12 ECF No. 17-1 at 4-6.) 13 To be sure, the general durational requirement for disabling impairments under the 14 Commissioner’s regulations is “a continuous period of not less than 12 months.” See 20 15 C.F.R. § 416.905. However, as plaintiff points out, 20 C.F.R. § 416.926(c)(4) also 16 explicitly provides: 17 “Most of the listed impairments are permanent or expected to result in death. For some listings, we state a specific period of time for which your 18 impairment(s) will meet the listing. For all others, the evidence must show 19 that your impairment(s) has lasted or can be expected to last for a continuous period of at least 12 months.” 20

21 Thus, the 12-month durational requirement does not apply to all the Listings. Plaintiff 22 contends that Listing 5.06(B) is one for which the durational requirement is shorter than 23 12 months. Specifically, plaintiff contends that the Listing “sets forth its own time 24 parameters in terms of a six-month period.” (See ECF No. 14 at 15.) The Court concurs. 25 Listing 5.06(B) for inflammatory bowel disease requires a claimant to meet “[t]wo of the 26 following despite continuing treatment as prescribed and occurring within the same 27 consecutive 6-month period: 28 1 1. Anemia with hemoglobin of less than 10.0 g/dl, present on at least two evaluations at least 60 days apart; or 2 2. Serum albumin of 3.0 g/dl or less, present on at least two evaluations 3 at least 60 days apart; or 3. Clinically documented tender abdominal pain or cramping that is not 4 completely controlled by prescribed narcotic medication, present on at least 5 two evaluations at least 60 days apart; or 4. Perineal disease with draining abscess or fistula, with pain that is not 6 completely controlled by prescribed narcotic medication, present on at least 7 two evaluations at least 60 days apart; or 5. Involuntary weight loss of at least 10 percent from baseline, as 8 computed in pounds, kilograms or BMI, present on at least two evaluations at 9 least 60 days apart; or 6. Need for supplemental daily enteral nutrition via a gastrostomy or 10 daily parenteral nutrition via a central venous catheter.” 20 C.F.R. Pt. 404, 11 Subpt. P, App. 1 § 5.06(B) (emphasis added).

12 The Court notes that, in his Opposition/Cross-Motion, the only argument being made 13 by the Commissioner in support of the ALJ’s Listing determination with respect to Listing 14 5.06(B) is that plaintiff did not meet the 12-month durational requirement. The 15 Commissioner has failed to address plaintiff’s contention regarding the shorter durational 16 requirement for Listing 5.06(B). (See ECF No. 17 at 4-6.) However, even assuming the 17 ALJ committed error in his determination with respect to Listing 5.06(B), that is not 18 dispositive of plaintiff’s claim because the question remains whether the ALJ’s error was 19 harmless. The answer to that question turns on whether plaintiff has met his burden of 20 demonstrating that he met all of Listing 5.06(B)’s criteria in the same consecutive 6-month 21 period.6 See Kallenbach, 766 F. Appx at 520 (holding that any error the ALJ committed 22 in finding the claimant’s impairments did not meet a particular Listing was harmless 23 24

25 6 The Court does not find Dr. Rubin’s testimony sufficient to satisfy plaintiff’s burden 26 because medical equivalence must be based on medical findings. See 20 C.F.R. § 27 416.926(b)(2). While Dr. Rubin opined that plaintiff’s perforated diverticulitis equaled Listing 5.06(b), he did not provide any explanation of the basis for his opinion or identify 28 1 because the claimant had not demonstrated he had met all of the Listing’s remaining 2 criteria). 3 Plaintiff maintains that the medical evidence satisfied no. 4 of the specified medical 4 criteria of Listing 5.06(B): “Perineal disease with draining abscess or fistula, with pain that 5 is not completely controlled by prescribed narcotic medication, present on at least two 6 evaluations at least 60 days apart.” (See ECF No. 14 at 14.) However, plaintiff has failed 7 to cite any medical records evidencing uncontrolled pain present on at least two evaluations 8 at least 60 days apart within a consecutive 6-month period. Evidence that plaintiff was 9 experiencing abdominal time at the time of his first admission to the hospital on November 10 30, 2014 (see AR 874) and that plaintiff was again experiencing abdominal pain at the time 11 of his second admission on December 31, 2014 (see AR 497) is not sufficient because those 12 two evaluations were not at least 60 days apart. There is no indication in plaintiff’s medical 13 records that, at time of his discharge from the hospital on January 7, 2015, plaintiff still 14 was experiencing abdominal pain that could not be controlled by his prescribed narcotic 15 medication. (See AR 501 (“No significant physical examination findings at the time of 16 discharge.”).) When plaintiff was seen for follow-up on January 21, 2015, the treatment 17 notes state, “Denies pain.” (See AR 538, 650, 1029.) When the first drain was removed 18 on February 11, 2015, the treatment note states, “Denies fevers, increasing abdominal 19 pain.” (See AR 867.) There also is no indication in plaintiff’s medical records that, as of 20 March 6, 2015, when the second drain was removed, plaintiff was experiencing abdominal 21 pain. (See AR 1031.) When plaintiff was seen for follow-up on March 18, 2015, the 22 treatment note states: “Has been doing very well, eating normally, normal bowel 23 movements, no abdominal pain.” (See AR 1032.) Thus, contrary to plaintiff’s 24 characterization, plaintiff’s medical records for the period from December 2014 to March 25 2015, when plaintiff was being treated with drains for his perforated diverticulitis, do not 26 evidence “persistent pain throughout.” 27 The other criterion of Listing 5.06(B) that plaintiff maintains he satisfied in the same 28 consecutive 6-month period is no. 5: “Involuntary weight loss of at least 10 percent from 1 baseline, as computed in pounds, kilograms or BMI, present on at least two evaluations at 2 least 60 days apart.” (See ECF No. 14 at 14.) In support of his contention that he satisfied 3 this element, plaintiff has cited only a notation in a treatment note dated October 8, 2015 4 under the heading “Overweight – ongoing,” which describes plaintiff’s weight fluctuation 5 from when he was in prison, to after he was released from prison, to after his 6 hospitalization, and to the present. (See ECF No. 14 at 15, citing AR 1050.) However, 7 plaintiff has failed to cite medical records documenting involuntary weight loss of at least 8 10 percent “present on at least two evaluations at least 60 days apart.” 9 Because plaintiff has done an inadequate job of demonstrating that the medical 10 evidence of record in fact did satisfy two of the specified medical criteria of Listing 5.06(B) 11 in the same consecutive 6-month period, the Court is compelled to find that any error by 12 the ALJ in his determination with respect to Listing 5.06(B) was harmless. It follows that 13 reversal is not warranted based on the ALJ’s failure to find that plaintiff’s degenerative 14 disc disease met or equaled Listing 5.06(B). 15 16 II. Reversal is not warranted based on the ALJ’s alleged failure to properly 17 consider Dr. Salerno’s opinions. 18 Plaintiff’s third claim is that the ALJ improperly discredited the opinions reflected 19 in the July 31, 2017 “medical source statement” provided by Dr. Salerno, who plaintiff has 20 characterized as his treating physician. (See ECF No. 14 at 18-20.) 21 In the July 31, 2017 medical source statement, Dr. Salerno listed as plaintiff’s 22 diagnoses degenerative joint disease in both knees and hips, lumbar spinal stenosis, morbid 23 obesity, sleep apnea, and hypothyroidism. (AR 1581.) He indicated that the date of first 24 contact with plaintiff was April 23, 2015, but he did not specify the frequency of treatment. 25 (Id.) Dr. Salerno checked off boxes indicating that plaintiff’s maximum capacity to lift 26 and/or carry was less than 10 pounds both occasionally and frequently, and he wrote that 27 plaintiff was “unable to lift.” (Id.). Further, he checked off a box indicating that plaintiff’s 28 maximum capacity to stand and/or walk with normal breaks was less than 2 hours in an 8- 1 hour workday. (AR 1582). Dr. Salerno wrote that plaintiff was “unable to stand for more 2 than 15 minutes,” and used assistive devices (i.e., a cane, a walker, and bilateral knee 3 braces) that were medically necessary and had been prescribed by Dr. Steven Li. (Id.). Dr. 4 Salerno also checked off boxes indicating that (1) plaintiff’s ability to sit with normal 5 breaks was less than 6 hours in an 8-hour workday, (2) plaintiff needed to alternate standing 6 and sitting, (3) plaintiff could never perform climbing, balancing, kneeling, crouching, or 7 crawling, (4) plaintiff also had environmental restrictions, (4) plaintiff’s physical 8 impairments would cause absence from full-time work more than 3 times a month, and (5) 9 plaintiff would be off task due to pain or other symptoms more than 20% of the work day. 10 (See AR 1582-1584). Dr. Salerno opined that plaintiff’s impairment had lasted or was 11 expected to last at least 12 months, and his prognosis was that plaintiff “appears totally 12 disabled at present time.” (AR 1584.) 13 The law is well established in this Circuit that a treating physician’s opinions are 14 entitled to special weight because a treating physician is employed to cure and has a greater 15 opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 16 888 F.2d 599, 602 (9th Cir. 1989). “The treating physician’s opinion is not, however, 17 necessarily conclusive as to either a physical condition or the ultimate issue of disability.” 18 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating 19 physician’s opinion depends on whether it is supported by sufficient medical data and is 20 consistent with other evidence in the record. See 20 C.F.R. § 416.927(d)(2). If the treating 21 physician’s opinion is uncontroverted by another doctor, it may be rejected only for “clear 22 and convincing” reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter 23 v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where the treating physician’s opinion 24 is controverted,7 it may be rejected only if the ALJ makes findings setting forth specific 25 26

27 7 Here, Dr. Salerno’s conclusion that plaintiff was unable to work was controverted 28 1 and legitimate reasons that are based on the substantial evidence of record. See Lester, 2 supra; Baxter, supra. 3 The Court notes that one of the reasons proffered by the ALJ for not crediting Dr. 4 Salerno’s conclusion that plaintiff was unable to work was that such an opinion had no 5 probative value because it was an opinion reserved to the Commissioner. (See AR 21-22.) 6 The Court is mindful of Ninth Circuit authority for the proposition that the fact a treating 7 physician rendered an opinion on the ultimate issue of disability does not relieve the 8 Commissioner of the obligation to state specific and legitimate reasons for rejecting it. See, 9 e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“In disability benefits cases 10 such as this, physicians may render medical, clinical opinions, or they may render opinions 11 on the ultimate issue of disability - the claimant’s ability to perform work. . . . A treating 12 physician’s opinion on disability, even if controverted, can be rejected only with specific 13 and legitimate reasons supported by substantial evidence in the record.”); Embrey v. 14 Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (finding that ALJ had failed to give 15 sufficiently specific reasons for rejecting the conclusion of plaintiff’s treating orthopedist 16 that plaintiff was “permanently disabled from his medical condition as well as his 17 orthopaedic problems”). 18 Here, however, it does not appear to the Court that Dr. Salerno actually was one of 19 plaintiff’s treating physicians. Plaintiff did not identify Dr. Salerno as one of the health 20 professionals who had treated him in any of plaintiff’s disability reports. (See AR 317-24, 21 343-50, 355-64.) Moreover, none of plaintiff’s medical records evidence that Dr. Salerno 22 saw plaintiff on April 23, 2015, the supposed date of his first contact with plaintiff, or that 23 Dr. Salerno ever treated or even examined plaintiff. 24 25

26 27 opinion regarding plaintiff’s functional limitations was controverted in part by Dr. Rubin’s opinion regarding plaintiff’s functional limitations (see AR 86-89). 28 1 In any event, the Court concurs with the ALJ that Dr. Salerno did not provide 2 objective clinical or diagnostic findings to support his assessment of plaintiff’s underlying 3 functional limitations. (See AR 22.) Instead, Dr. Salerno merely made conclusory 4 assertions. For example, when asked what findings supported his assessment of plaintiff’s 5 maximum capacity to lift and/or carry, Dr. Salerno asserted “unable to lift.” (See AR 6 1581.) And, when asked what medical findings supported his assessment of plaintiff’s 7 maximum capacity to stand and/or walk, Dr. Salerno asserted “unable to stand for more 8 than 15 [minutes].” The ALJ was not obliged to accept medical opinions that were “brief, 9 conclusory and inadequately supported by clinical findings.” Lingenfelter v. Astrue, 504 10 F.3d 1028, 1044–45 (9th Cir. 2007) (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th 11 Cir.2002)); see also, e.g., Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that 12 ALJ permissibly rejected “check-off reports that did not contain any explanation of the 13 bases of their conclusions”); Young v. Heckler, 803 F.2d 963, 967, 968 (9th Cir. 1986) 14 (treating physician’s most recent medical opinion that claimant was disabled was properly 15 rejected as “brief and conclusionary in form with little in the way of clinical findings”). 16 The Court therefore finds that, even if Dr. Salerno was one of plaintiff’s treating 17 physicians and even if the ALJ arguably did err in rejecting Dr. Salerno’s conclusion that 18 plaintiff was unable to work, the error was harmless because the ALJ did state a legally 19 sufficient reason for not crediting Dr. Salerno’s assessment of plaintiff’s underlying 20 functional limitations. See Howell v. Comm’r Soc. Sec. Admin., 349 Fed. Appx. 181, 184 21 (9th Cir. 2009) (ALJ’s erroneous rationale for rejecting treating physician’s opinion was 22 harmless because the ALJ otherwise provided legally sufficient reasons to reject opinion). 23 Accordingly, the Court finds that reversal is not warranted based on the ALJ’s alleged 24 failure to properly consider Dr. Salerno’s opinions. 25 26 RECOMMENDATION 27 For the foregoing reasons, the Court RECOMMENDS that plaintiff’s motion for 28 summary judgment be DENIED, that the Commissioner’s cross-motion for summary 1 ||judgment be GRANTED, and that Judgment be entered affirming the decision of the 2 || Commissioner and dismissing this action with prejudice. 3 Any party having objections to the Court’s proposed findings and recommendations 4 ||shall serve and file specific written objections within 14 days after being served with a 5 ||copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections 6 ||should be captioned “Objections to Report and Recommendation.” A party may respond 7 the other party’s objections within 14 days after being served with a copy of the 8 ||objections. See id. 9 IT IS SO ORDERED. 10 We 11 ||Dated: November 12, 2019 2 ROBERTN.BLOCK. 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28