1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARMIDA B., Case No.: 20-cv-01984-JLB

12 Plaintiff,

ORDER RE: PLAINTIFF’S MERITS

13 v. BRIEF

14 KILOLO KIJAKAZI, (ECF Nos. 11, 12) Commissioner of Social Security, 15 Defendant. 16 17 18 On October 8, 2020, plaintiff Armida B. (“Plaintiff”) filed a Complaint pursuant to 19 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 20 Security (“Commissioner”) denying her application for supplemental security income 21 (“SSI”) benefits. (ECF No. 1.) 22 Now pending before the Court and ready for decision is Plaintiff’s merits brief in 23 support of reversal and/or remand. (ECF No. 11.) The Commissioner filed a cross motion 24 and opposition to Plaintiff’s merits brief (ECF Nos. 12, 13), and Plaintiff filed a reply (ECF 25 No. 14). For the reasons set forth herein, the Court GRANTS Plaintiff’s merits brief, 26 DENIES the Commissioner’s cross motion, and remands this matter for further 27 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 28 /// 1 I. PROCEDURAL BACKGROUND 2 On or about August 23, 2013, Plaintiff filed an application for SSI benefits under 3 Title XVI of the Social Security Act, alleging disability beginning January 1, 2013. (ECF 4 No. 8, Certified Administrative Record (“AR”), at 326–34.) After her application was 5 denied initially and upon reconsideration (AR 164–72, 177–81), Plaintiff requested an 6 administrative hearing before an administrative law judge (“ALJ”). (AR 182–85.) An 7 administrative hearing was held before ALJ Larry Johnson on July 19, 2016. (AR 68– 8 113.) Plaintiff testified at the hearing, unrepresented by counsel. (AR 68–113.) 9 As reflected in his February 23, 2017 hearing decision, ALJ Johnson found that 10 Plaintiff was not disabled, as defined in the Social Security Act, from August 23, 2013, 11 through the date of decision. (AR 137–59.) Plaintiff appealed and the Appeals Council 12 vacated the decision and remanded the case back to an ALJ. (AR 160–63.) A second 13 administrative hearing was held on June 18, 2019, before ALJ James Delphey. (AR 60– 14 67.) On October 17, 2019, Plaintiff, represented by counsel, and a vocational expert 15 (“VE”), testified at a second hearing before ALJ Delphey. (AR 36–59.) During the second 16 hearing before ALJ Delphey, Plaintiff amended her alleged onset date of disability to 17 June 30, 2016, her fiftieth birthday. (AR 39.) 18 On November 26, 2019, ALJ Delphey found that Plaintiff had not been under a 19 disability, as defined by the Social Security Act, since June 30, 2016, the amended alleged 20 onset date. (AR 29.) The ALJ’s decision became the final decision of the Commissioner 21 on August 10, 2020, when the Appeals Council denied Plaintiff’s request for review. (AR 22 1–6.) This timely civil action followed. (See ECF No. 1.) 23 II. SUMMARY OF THE ALJ’S FINDINGS 24 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 25 evaluation process. See 20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had 26 not engaged in substantial gainful activity since June 30, 2016, the amended alleged onset 27 date. (AR 17.) 28 /// 1 At step two, the ALJ found that Plaintiff had the following severe impairments: 2 degenerative disc disease, degenerative joint disease, knee osteoarthritis, and asthma. (AR 3 17.) 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 22.) 7 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 8 “to perform less than a full range of light work” with the following limitations: 9 [Plaintiff] can occasionally climb ramps and stairs; can never climb ladders, 10 ropes, or scaffolding; can frequently balance, stoop, and crouch; can occasionally kneel and crawl; needs to avoid concentrated exposure to dust, 11 fumes, and pulmonary irritants; and can be on her feet no more than four hours 12 (standing or walking) out of an eight-hour workday. 13 (AR 22.) 14 For purposes of his step four determination, the ALJ determined that Plaintiff had 15 no past relevant work. (AR 28.) 16 The ALJ then proceeded to step five of the sequential evaluation process. Based on 17 the VE’s testimony that a hypothetical person with Plaintiff’s vocational profile and RFC 18 could perform the requirements of occupations that existed in significant numbers in the 19 national economy (i.e., assembler of small products, inspector, marker), the ALJ found that 20 Plaintiff was not disabled under the law from June 30, 2016, through the date of decision. 21 (AR 28–29.) 22 III. PLAINTIFF’S CLAIM OF ERROR 23 As reflected in Plaintiff’s merit’s brief, the disputed issue that Plaintiff is raising as 24 the ground for reversal and/or remand is as follows: 25 1. Whether there is medical support for the ALJ’s RFC determination? (ECF 26 No. 11 at 16–22.) 27 /// 28 /// 1 IV. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 3 determine whether the Commissioner’s findings are supported by substantial evidence and 4 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 5 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 6 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 7 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 8 “such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 10 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 11 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 12 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1453 13 (9th Cir. 1984). In reaching his findings, the ALJ is entitled to draw inferences which 14 logically flow from the evidence. Id. 15 V. DISCUSSION 16 Plaintiff argues there is no medical support for the ALJ’s RFC determination. (ECF 17 No. 11 at 16–22.) Plaintiff claims that she suffers from multiple herniated discs in her 18 cervical and lumbar spine and arthritis in both knees. (Id. at 22.) She contends that the 19 two doctors who saw her after her alleged onset date of disability, Michael I. Keller, M.D., 20 and Ibrahim M. Yashruti, M.D., opined that she is more limited in her standing and walking 21 than indicated by her RFC and that she requires an assistive device for prolonged 22 ambulation. (Id.)1 In short, Plaintiff argues that the ALJ improperly rejected the opinions 23

24 25 1 Plaintiff summarizes her argument regarding the alleged error as follows:

26 The ALJ inexplicably determined Plaintiff did not need an assistive 27 device to ambulate, despite two recent doctors [Drs. Keller and Yashruti] stating otherwise. He stated Plaintiff’s condition improved, with no 28 1 of Dr. Keller and Dr. Yashruti. Accordingly, the Court will address below whether the 2 ALJ properly considered the opinions of Dr. Keller and Dr. Yashruti. 3 A. Legal Standard 4 “There are three types of medical opinions in social security cases: those from 5 treating physicians, examining physicians, and non-examining physicians.” Valentine v. 6 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 7 F.3d 821, 830 (9th Cir. 1995)). The medical opinion of a claimant’s treating doctor is given 8 “controlling weight” so long as it “is well-supported by medically acceptable clinical and 9 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence 10 in [the claimant’s] case record.” 20 C.F.R. § 416.927(c)(2). When a treating doctor’s 11 opinion is not controlling, it is weighted according to factors such as the length of the 12 treatment relationship and the frequency of examination, the nature and extent of the 13 treatment relationship, supportability, and consistency with the record. Id. § 14 416.927(c)(2)–(6). Greater weight is also given to the “opinion of a specialist about 15 medical issues related to his or her area of specialty.” 20 C.F.R. § 416.927(c)(5). “A 16 doctor’s specialty is especially relevant with respect to diseases that are ‘poorly 17 understood’ within the rest of the medical community.” Revels v. Berryhill, 874 F.3d 648, 18 654 (9th Cir. 2017) (quoting Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004)). 19 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ 20 must state clear and convincing reasons that are supported by substantial evidence.” Ryan 21 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting 22 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining 23 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 24 25

26 27 medical support for this opinion. His finding Plaintiff can stand and walk four of eight hours also lacks any medical support. 28 1 providing specific and legitimate reasons that are supported by substantial evidence.” Id. 2 (quoting Bayliss, 427 F.3d at 1216). 3 “The ALJ can meet this burden by setting out a detailed and thorough summary of 4 the facts and conflicting clinical evidence, stating his interpretation thereof, and making 5 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 6 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). “When an examining physician relies on 7 the same clinical findings as a treating physician, but differs only in his or her conclusions, 8 the conclusions of the examining physician are not ‘substantial evidence.’” Orn v. Astrue, 9 495 F.3d 625, 632 (9th Cir. 2007). Additionally, “[t]he opinion of a nonexamining 10 physician cannot by itself constitute substantial evidence that justifies the rejection of the 11 opinion of either an examining physician or a treating physician.” Lester v. Chater, 81 12 F.3d 821, 831 (9th Cir. 1995) (emphasis in original). 13 “Where an ALJ does not explicitly reject a medical opinion or set forth specific, 14 legitimate reasons for crediting one medical opinion over another, he errs.” Garrison v. 15 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “In other words, an ALJ errs when he rejects 16 a medical opinion or assigns it little weight while doing nothing more than ignoring it, 17 asserting without explanation that another medical opinion is more persuasive, or 18 criticizing it with boilerplate language that fails to offer a substantive basis for his 19 conclusion.” Id. at 1012–13. However, an ALJ “may disregard [a] medical opinion that is 20 brief, conclusory, and inadequately supported by clinical findings.” Britton v. Colvin, 787 21 F.3d 1011, 1012 (9th Cir. 2015) (per curiam); see also Burrell v. Colvin, 775 F.3d 1133, 22 1140 (9th Cir. 2014). 23 A claimant’s RFC assessment is a determination of the most a claimant can still do 24 despite his or her physical and mental limitations. See 20 C.F.R. § 416.945(a)(1); see also 25 Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (explaining that the RFC is the 26 most a claimant can still do despite his or her limitations). “In determining a claimant’s 27 RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, 28 medical records, lay evidence, and the effects of symptoms, including pain, that are 1 reasonably attributed to a medically determinable impairment.” Robbins v. Comm’r of Soc. 2 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal quotation marks and citations 3 omitted); see also Social Security Ruling (“SSR”) 96–8p, 1996 WL 374184, at *5; 20 4 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). “When presented with conflicting medical 5 opinions, the ALJ must determine credibility and resolve the conflict.” Batson v. Comm’r 6 of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Matney v. Sullivan, 981 7 F.2d 1016, 1019 (9th Cir. 1992)). 8 B. Analysis 9 1. ALJ’s Decision 10 In assessing Plaintiff’s physical RFC, the ALJ addressed the medical history 11 detailing Plaintiff’s back, knee, and joint pain as follows: 12 December 2012 x-rays of the claimant’s right knee showed mild osteoarthrosis involving the medial femorotibial compartment and the 13 patellofemoral joint. X-rays of her left knee showed degenerative arthrosis. 14 [AR 524, 526.]

15 During a January 2014 consultative orthopedic evaluation with Payam 16 Moazzaz, M.D., the claimant reported a history of bilateral knee pain, right shoulder pain, and low back pain. Upon exam, her gait was normal and she 17 was not using an assistive device. She had tenderness with range of motion 18 testing of her right shoulder. She gave poor effort with range of motion testing of her thoracolumbar spine. Straight leg raise testing was negative. She had 19 pain with range of motion testing of her knees. However, there was no 20 effusion or crepitus. Both knees were stable to varus and valgus testing. She had full strength in her extremities with intact sensation. X-rays of her right 21 knee showed mild narrowing of the medial compartment joint space and x- 22 rays of her lumbar spine showed no scoliosis or fracture and disc space heights were maintained. X-rays of her right shoulder were unremarkable. [AR 567– 23 572.] 24 February 2014 x-rays of her lumbar spine showed degenerative disc disease 25 at L4-L5 and L5-S1. [AR 614.] In May 2014, the claimant was noted to have 26 a history of asthma as well as a remote history of accidental exposure to fumigation in December 2009. The claimant has attributed the sudden onset 27 of pain to this exposure. [AR 576, 873.] Pain management records from 28 May 2014 indicate that she rated her pain level as a 3/10. [AR 713.] 1 A May 2014 MRI of her cervical spine showed disc desiccation with mild associated loss of disc height at C5-C6 and C6-C7; a C5-C6 broad-based 2 posterior disc herniation, which abuts the anterior aspect of the spinal cord, 3 there was concurrent bilateral uncovertebral joint degenerative change, and disc material and uncovertebral joint degenerative change causing stenosis of 4 the left greater than the right bilateral neural foramen that deviate the bilateral 5 C6 exiting nerve roots; a C6-C7 broad-based posterior disc herniation, which abuts the anterior aspect of the spinal cord, there was concurrent bilateral 6 uncovertebral joint degenerative change, disc material and uncovertebral joint 7 degenerative change causing stenosis of the bilateral neural foramen that deviated the bilateral C7 exiting nerve roots; and straightening of the normal 8 cervical lordosis, which may be positional in nature or due to muscle spasm. 9 [AR 655.]

10 A May 2014 MRI of her lumbar spine showed disc desiccation at L1-L2, L4- 11 L5, and L5-S1 and multilevel broad-based posterior disc herniations that caused stenosis. [AR 659.] A May 2014 MRI of her thoracic spine showed 12 mild focal disc herniation at T10-T11, which caused mild stenosis. [AR 663.] 13 A May 2014 MRI of her right knee showed minimal tricompartmental osteoarthritic change; mild globular increased signal intensity in posterior 14 horn of medial meniscus most consistent with mild intrasubstance 15 degeneration; and a tear was not entirely excluded. [AR 651.]

16 In May 2015, she sought emergency treatment for right knee pain. X-rays of 17 her right knee showed mild medial compartment joint space narrowing compatible with degenerative disease; and a joint effusion. [AR 767, 775.] 18 In October 2015, she was treated with an injection for generalized pain. At 19 the time, straight leg raise testing was negative. [AR 875.] Her asthma medication was refilled in September 2016. Notably, findings from a 20 respiratory exam were unremarkable and findings from a musculoskeletal 21 exam indicated that both her gait and station were normal. [AR 1104–05.]

22 Pain management records from October 2016 indicate that she was treated 23 with a knee injection. [AR 960.] In April 2017 and October 2017, she reported that her medication was allowing for increased mobility and function. 24 [AR 992, 1016.] February 2018 x-rays of her bilateral knees showed 25 degenerative changes of the patellofemoral joints. [AR 1270.] She continued to report back pain in September 2018. [AR 1217.] She was continued on 26 her pain medication regimen in December 2018 and April 2019. [AR 1039, 27 1055.]

28 1 Treatment notes from May 2019 indicate that her posture was within normal limits. There was no observable gait abnormality and straight leg raise testing 2 was negative. [AR 1061–62, 1184]. Exam findings from June 2019 indicate 3 that she had tenderness in her cervical spine, lumbar spine, and knees, but she had full strength in her upper and lower extremities. Notably, there is no 4 mention of use of an assistive device for ambulation [AR 1078]. 5 During an August 2019 consultative orthopaedic evaluation with Ibrahim 6 Yashruti, M.D., the claimant reported a history of neck pain, back pain, and 7 extremity pain. She reported that she sometime uses a cane or a walker. Upon exam, she was using a chair walker and she reported that she is unable to stand 8 or walk without the walker. Examination of her cervical and lumbar spine 9 revealed tenderness and reduced range of motion. She also had pain in her knees and she declined any movement. Muscle testing revealed no weakness. 10 Straight leg raise testing was negative [AR 1328–39]. 11 12 (AR 23–25.) 13 The ALJ gave “some weight” to the State agency medical consultants at both levels 14 of review who opined in February 2014 and July 2014 that Plaintiff was limited to medium 15 work with some additional postural restrictions. (AR 25, 120–21, 131–33.) The ALJ also 16 gave “some weight” to the January 26, 2014 opinion of Dr. Moazzaz, a consultative 17 examiner, who opined, inter alia, that Plaintiff can stand and/or walk for six hours in an 18 eight-hour workday and can sit for six hours in an eight-hour workday with normal breaks. 19 (AR 26, 567–71.) Additionally, the ALJ gave “some weight” to the opinion of 20 Dr. Yashruti, a consultative examiner, who opined on August 22, 2019, inter alia, that 21 Plaintiff is able to stand and walk on level ground without an assistive device two hours a 22 day, one hour at a time, and is able to ambulate with a cane a total of six hours a day but is 23 unable to walk on uneven ground. (AR 26, 1328–39.) Lastly, the ALJ gave “little weight” 24 to the opinion of Dr. Keller, who opined on June 13, 2019, inter alia, that Plaintiff can only 25 stand, walk, and/or sit for twenty minutes in an eight-hour workday and needs a cane to 26 ambulate. (AR 27, 1082.) 27 /// 28 /// 1 2. Michael I. Keller, MD 2 a. Medical Examination and Opinion 3 Plaintiff began seeking treatment from Michael I. Keller, M.D., in February 2019 4 and saw him monthly through at least June 2019. (AR 1076–80, 1229–51.)2 On 5 June 12, 2019, Plaintiff saw Dr. Keller with her chief complaint being multiple joint pain. 6 (AR 1076.) Plaintiff reported muscle aches, muscle weakness, joint pain, and swelling in 7 her joints. (AR 1077.) She reported stiffness in the morning that lasts sixty minutes, but 8 no back pain and no swelling in the extremities. (AR 1077.) Plaintiff also reported that 9 she did not have restless legs or any dizziness, cramping, tightness, soreness, or numbness. 10 (AR 1077.) At the time of the appointment, Plaintiff reported that her pain was 10/10 but 11 improving. (AR 1077.) She indicated her pain was constant, but it was not a dull, sharp, 12 or throbbing pain. (AR 1077.) 13 Dr. Keller reviewed Plaintiff’s recent labs and tests. (AR 1079.) He noted that 14 April 2019 x-rays of Plaintiff’s spine showed mild spondylosis and C5-6 mild degenerative 15 disc disease. (AR 1079.) He further noted that April 2019 x-rays of Plaintiff’s shoulders 16 and knees were normal, and x-rays of her feet showed mild osteoarthritis. (AR 1079.) 17 Lastly, he noted that an ultrasound of both feet showed degenerative changes of the feet 18 with heel spurs, the left being severe and the right showing mild plantar fasciitis. (AR 19 1079.) 20 Dr. Keller performed a physical exam on Plaintiff. (AR 1078.) His exam showed 21 no tenderness or swelling of any joints. (AR 1078.) Plaintiff also had normal results on 22 examination of her DIP, PIP and MCP joints and her wrists, elbows, shoulders, hips, knees, 23 ankles, and feet. (AR 1078.) However, she had generalized bilateral tenderness of her 24 25 26 2 Some of Dr. Keller’s medical notes in the AR are poor copies and difficult to read. 27 The Court will therefore focus on Plaintiff’s final visit before Dr. Keller offered his medical opinion as those notes can easily be read. The Court notes that Plaintiff only cites to notes 28 1 shoulder joints and range of motion loss, and generalized tenderness of the IP joints of her 2 feet. (AR 1078.) Plaintiff tested positive on a diffuse trigger point exam. (AR 1078.) 3 Plaintiff had full range of motion of the cervical spine, but also demonstrated tenderness 4 and pain in the thoracic spine and lower back pain on palpation. (AR 1078.) Plaintiff had 5 full symmetrical muscle strength and normal grip strength. (AR 1078.) 6 Dr. Keller noted that Plaintiff has a diagnosis of fibromyalgia syndrome with chronic 7 widespread pain, as well as plantar fasciitis, cervical and lumbar spondylosis, and cervical 8 degenerative disc disease. (AR 1079.) He stated that these “conditions are aggravated by 9 prolonged standing/walking/bending, prolonged sitting, and by ADLs.” (AR 1079.) For 10 pain management, Dr. Keller noted that Plaintiff had been taking Oxycodone and Fentanyl 11 and advised that she continue with these medications. (AR 1078–79.) He also noted that 12 Plaintiff had been taking Lyrica and Effexor with only mild benefit, and therefore he 13 discontinued both. (AR 1079.) 14 The day following Plaintiff’s appointment, Dr. Keller filled out a one-page, checklist 15 Physical Capacities Evaluation form. (AR 1082.) Dr. Keller opined that Plaintiff could 16 not sit or stand more than twenty minutes at a time, or total, in an eight-hour workday. (AR 17 1082.) He further opined that Plaintiff could not walk more than twenty minutes total in 18 an eight-hour workday. (AR 1082.) He opined that Plaintiff could occasionally lift or 19 carry up to five pounds, but never lift or carry anything over five pounds. (AR 1082.) 20 Dr. Keller further opined that Plaintiff could engage in simple grasping with both hands 21 but no fine manipulation, and she could not engage in pushing and pulling of foot controls. 22 (AR 1082.)3 Dr. Keller opined that Plaintiff could occasionally bend and reach, but never 23 squat, crawl, or climb. (AR 1082.) Dr. Keller also opined that Plaintiff could not engage 24 in activities involving unprotected heights, being around machinery, exposure to marked 25

26 27 3 Dr. Keller checked both “Yes” and “No” to the question of whether Plaintiff can use her right and left hands for pushing and pulling arm controls. (AR 1082.) It is unclear 28 1 changes in temperature or humidity, or exposure to dust, fumes, gases, but she could have 2 mild involvement in driving automotive equipment. (AR 1082.) Lastly, Dr. Keller opined 3 that Plaintiff requires a cane to ambulate. (AR 1082.) 4 b. ALJ’s Decision 5 ALJ provided the following explanation for assigning little weight to Dr. Keller’s 6 opinion: 7 Michael Keller, M.D., opined that the claimant is limited to occasional lifting 8 and carrying of five pounds; and standing, walking, and/or sitting for 20 minutes each in an eight-hour workday. Dr. Keller further opined that the 9 claimant cannot perform fine manipulation with her upper extremities and she 10 cannot use her feet for repetitive movements. In addition, Dr. Keller opined that she can occasionally bend and reach, but she could never squat, crawl, or 11 climb. Notably, he also opined that she has no environmental limitations for 12 pulmonary irritants, such as dust, fumes, or gases ([AR 1082]). Dr. Keller’s opinion is given little weight because the level of restriction proposed by his 13 opinion is not consistent with or supported by the objective medical evidence, 14 including his own exam findings, which indicates that the claimant has full strength in her extremities. In general, the claimant’s symptoms improved 15 with treatment, including injections and medication, which she reported 16 improved her ability to function. In addition, her reported daily activities suggest a higher level of functioning than alleged. Notably, the objective 17 medical evidence does support environmental limitations related to 18 pulmonary irritants given the claimant’s history of asthma. 19 (AR 27.) 20 In determining Plaintiff’s RFC, the ALJ rejected Dr. Keller’s lifting and carrying 21 restrictions, his standing and walking restrictions, and his limitations on Plaintiff’s ability 22 to engage in fine manipulation and pushing and pulling. The ALJ further rejected 23 Dr. Keller’s restrictions on Plaintiff’s bending, reaching, squatting, crawling, and climbing, 24 as well as his restrictions on being around machinery, exposure to marked changes in 25 temperature or humidity, and involvement in driving. Lastly, the ALJ rejected Dr. Keller’s 26 opinion that Plaintiff requires a cane to ambulate. 27 /// 28 /// 1 c. Analysis 2 In allocating little weight to Dr. Keller’s assessment of Plaintiff, the ALJ provided 3 four reasons: (1) Dr. Keller’s restrictions were inconsistent with and unsupported by the 4 objective medical evidence; (2) the restrictions were inconsistent with Dr. Keller’s own 5 exam findings; (3) Plaintiff’s symptoms improved with treatment; and (4) Plaintiff’s 6 reported daily activities suggest a higher level of functioning than alleged. (AR 27.) As 7 Dr. Keller’s opinion is contradicted by other physicians, the ALJ “may only reject it by 8 providing specific and legitimate reasons that are supported by substantial evidence.” 9 Ryan, 528 F.3d at 1198. The Court will address each of the reasons provided by the ALJ 10 below. 11 i. Inconsistent with and Unsupported by the Objective 12 Medical Evidence and Dr. Keller’s Medical Exam 13 The ALJ gave little weight to Dr. Keller’s opinion because it was inconsistent with, 14 and unsupported by, the objective medical evidence in the record, including his own exam 15 findings, which indicate that Plaintiff “has full strength in her extremities.” (AR 27.) 16 Inconsistency with the medical record is a specific and legitimate reason for rejecting a 17 treating physician’s opinion. Tommasetti, 533 F.3d at 1041. Moreover, a conflict with a 18 physician’s own treatment notes is a specific and legitimate reason to reject a treating 19 physician’s opinion. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692–93 20 (9th Cir. 2009); see also Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Generally, in 21 assessing a medical opinion, “the more consistent a medical opinion is with the record as 22 a whole, the more weight . . . will [be] give[n] to that medical opinion.” 20 C.F.R. § 23 416.927(c)(4). 24 As noted by the ALJ in his decision, the medical record indicates that Plaintiff has 25 full strength in her extremities. (See, e.g., AR 668 (1/16/2013 exam shows muscle strength 26 and tone within normal limits); AR 636 (10/24/2013 exam shows strength is 5/5 in all 27 extremities); AR 570 (Dr. Moazzaz’s 1/26/2014 consultative exam found motor strength 28 to be 5/5 throughout both upper and lower extremities); AR 812 (1/7/2015 exam showed 1 normal strength); AR 874–75 (10/28/15 exam showed 3+/5 strength in upper and lower 2 extremities); AR 1332 (8/22/19 exam revealed no muscle weakness in lower and upper 3 extremities).) During his June 2019 examination, Dr. Keller himself found that Plaintiff 4 had “full symmetrical muscle strength” and “normal grip strength,” noting that “[a]ll 5 muscle groups of the neck, upper and lower extremities both proximal and distal were 6 tested and found to be at full strength.” (AR 1078.) 7 These findings are inconsistent with Dr. Keller’s opined extreme physical limitations 8 for Plaintiff, specifically his opinions that Plaintiff can never lift or carry more than five 9 pounds and is unable to stand or walk more than twenty minutes in an eight-hour day. See 10 Deluca v. Berryhill, 721 F. App’x 608, 610 (9th Cir. 2017) (finding the ALJ provided a 11 specific and legitimate reason for discounting an examining physician’s opinion that the 12 claimant would be unable to return to full time employment when his objective exam notes 13 indicate the claimant had full strength and a normal gait); Rangel v. Berryhill, No. CV 17- 14 02289 AFM, 2017 WL 8186744, at *2 (C.D. Cal. Dec. 29, 2017) (concluding that a finding 15 of full motor strength undermines an opinion that a claimant could stand and walk for only 16 twenty minutes at a time and lift less than ten pounds occasionally).4 Accordingly, the 17 Court finds this is a specific and legitimate reason supported by substantial evidence for 18 giving little weight to Dr. Keller’s opinion. 19 /// 20 21 22 4 Although “a person with fibromyalgia may have muscle strength, sensory functions, 23 and reflexes [that] are normal,” Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017) (internal quotation marks and citation omitted), Plaintiff’s primary complaints are not 24 fibromyalgia related. Plaintiff claims that she “needs an assistive device because of 25 arthritis in her knees, pain from degenerative disc disease in her back, and arthritis in her feet.” (ECF No. 11 at 9.) Further, Plaintiff testified that the serious reason she was seeking 26 disability benefits was pain in her “back, knees, and feet.” (AR 48.) And although Plaintiff 27 has been diagnosed with fibromyalgia, the ALJ determined that her fibromyalgia is not a medically determinable impairment. (AR 20–22.) This conclusion has not been 28 1 ii. Plaintiff’s Condition Improved with Treatment 2 Next, the ALJ gave little weight to Dr. Keller’s opinion because Plaintiff’s 3 symptoms have generally “improved with treatment, including injections and medication, 4 which she reported improved her ability to function.” (AR 27.) An impairment that can 5 be controlled effectively by treatment or medication cannot be considered disabling. Warre 6 v. Comm’r of the SSA, 439 F.3d 1001, 1006 (9th Cir. 2006). 7 As the ALJ noted in his decision, Plaintiff reported improved mobility and function 8 with pain management. (AR 24–25 (citing AR 992, 1016).) During her April 5, 2017, and 9 October 5, 2017, appointments for pain management with David Smith, M.D., Plaintiff 10 reported that injections to her right shoulder were “somewhat effective” and knee injections 11 decreased her pain by 50% for two weeks. (AR 992, 1016.) She also reported that taking 12 Oxycodone and Duragesic patches relieved her pain by 60%, and while her pain never 13 totally abated, her current dosages and frequency allowed for increased mobility and 14 function. (AR 992, 1016.) 15 Plaintiff contends that her pain management records from Dr. Smith show no 16 medical improvement from October 28, 2015, to May 28, 2019, despite aggressive 17 treatment with Oxycodone, Fentanyl, and injections. (ECF No. 11 at 21.) Plaintiff argues 18 that Dr. Smith’s assessments never suggested improvement, as he never removed 19 Plaintiff’s primary diagnosis and his prescriptions never lessened. (Id.) However, one 20 could alternatively conclude from Dr. Smith’s failure to reduce Plaintiff’s prescriptions 21 that his prescribed course of action was appropriate and effective, particularly in light of 22 the fact that Plaintiff continually reported to Dr. Smith an improved ability to function 23 under his prescribed medication and treatment. (See AR 873–913, 935–1074.) 24 For example, on February 24, 2016, Plaintiff reported that an injection to her left 25 foot abated 70% of her pain. (AR 889.) On March 23, 2016, Plaintiff, who was using 26 Oxycodone (one 30 mg tablet 3x/day), Duragesic/fentanyl (one 25 mcg/hr transdermal 27 patch every 72 hours), and Naproxen (one 375 mg tablet 2x/day) to decrease the severity 28 of her generalized pain, noted that her pain severity could be as low as 2/10 while 1 medicated. (AR 893; see also AR 897 (4/27/2016 reported 2/10 pain while medicated).) 2 On May 25, 2016, Plaintiff reported that her current medication of Duragesic patches and 3 Oxycodone were effective and decreased her pain by 80%, thus allowing for increased 4 mobility and function. (AR 902.) On June 22, 2016, Plaintiff similarly reported that her 5 medication decreased her pain by 75% to 80% and stated that she believed she would be 6 confined to her bed with pain without the pain relief afforded by her prescribed Oxycodone 7 and Duragesic patches. (AR 906.) On October 19, 2016, Plaintiff reported that her 8 prescribed Oxycodone and Duragesic patches decreased her pain by 70%, allowing for 9 increased mobility, function, and ability to perform her activities of daily living. (AR 956.) 10 She also reported being in more pain that day because she had held a yard sale the prior 11 Saturday and Sunday and had been doing more bending than usual. (AR 956.) 12 On November 10, 2016, Plaintiff reported that her pain was 4/10 on a pain scale. 13 (AR 968.) The same was true on November 2, 2017, with Plaintiff claiming her 14 medications abated 60% to 70% of her pain. (AR 1020.) In February 2017, Plaintiff started 15 going to physical therapy, but stopped due to family problems. (See AR 984, 1012, 1020.) 16 During that time, Plaintiff’s Oxycodone was increased to one 30 mg tablet four times per 17 day at her request to alleviate any pain brought on by physical therapy. (See AR 1004– 18 06.) That prescription was lowered back to three times per day in December 2018. (AR 19 1043.)5 On May 28, 2019, Plaintiff reported her pain level being 4/10 after Oxycodone. 20 (AR 1061.) 21 At the hearing, Plaintiff testified that she was prescribed a cane by Dr. Smith almost 22 two years prior, but she did not always use it to walk the two blocks to her doctor’s office. 23 (AR 44.) During an appointment with Dr. Smith on October 4, 2018, Plaintiff was reported 24 using a cane for the first time, but there is no indication that one was prescribed, and the 25

26 27 5 Plaintiff has submitted no pain management records of Dr. Smith between November 2017 and September 2018. It is unclear whether none exist or if they were not 28 1 medical record indicates that Plaintiff does not have any gait disturbance. (AR 1029–30.) 2 Plaintiff claimed the cane made her feel safer when walking. (AR 1029.) 3 For the foregoing reasons, the Court finds that improvement with treatment is a 4 specific and legitimate reason supported by substantial evidence for giving little weight to 5 Dr. Keller’s opinion. 6 iii. Plaintiff’s Daily Activities Suggest Higher Functioning 7 Lastly, the ALJ gave little weight to Dr. Keller’s opinion because Plaintiff’s self- 8 reported daily activities suggested she is capable of a higher level of functioning than 9 alleged. (AR 27.) A conflict between a treating physician’s opinion and a claimant’s 10 activity level is a specific and legitimate reason for rejecting the opinion. Ford, 950 F.3d 11 at 1155. 12 In considering Plaintiff’s statements about the intensity, persistence, and limiting 13 effects of her symptoms, the ALJ stated the following with respect to Plaintiff’s self- 14 reported testimony of daily activities: 15 [Plaintiff’s] reported daily activities suggests a higher level of functioning than alleged. For example, she can drive, she can prepare meals, she is 16 independent with personal care, she can perform general tasks around the 17 home, and she can perform household chores, such as dusting, mopping, sweeping, vacuuming, laundry, dishes, and taking out the trash. 18

19 (AR 25.) The ALJ repeated his statement that Plaintiff’s “reported daily activities suggest 20 a higher level of functioning than alleged” in giving little weight to Dr. Keller’s opinion. 21 (AR 27.) 22 During a consultative examination with Dan Whitehead, Ph.D., on February 4, 2019, 23 Plaintiff claimed that she was able to cook or prepare simple foods. (AR 927.) She also 24 claimed that she requires no assistance with showering, dressing, bathing, toileting, or other 25 personal hygiene activities. (AR 927.) She further claimed she is able to perform general 26 daily tasks and activities around the home, which include dusting, general cleaning, 27 mopping, sweeping, vacuuming, laundry, dishes, taking out the trash, and other general 28 household tasks and duties. (AR 927.) 1 Plaintiff’s self-reported daily activities after the alleged onset date of disability are 2 inconsistent with someone who cannot ambulate without a cane and who cannot stand, 3 walk, or sit more than twenty minutes in an eight-hour day or carry more than five pounds. 4 The activities are also inconsistent with someone who cannot push or pull or engage in fine 5 manipulation. Accordingly, the Court finds this is a specific and legitimate reason 6 supported by substantial evidence for giving little weight to Dr. Keller’s opinion. 7 Based on the foregoing, the Court finds that the ALJ did not err in giving little weight 8 to Dr. Keller’s opinion and his decision is supported by substantial evidence in the record. 9 3. Dr. Yashruti 10 Next, Plaintiff argues that the ALJ improperly rejected Dr. Yashruti’s opinion of 11 Plaintiff’s need for an ambulatory device, and by inference, Dr. Yashruti’s limitation to 12 two hours of unassisted standing in an eight-hour day. (ECF No. 11 at 21.) 13 a. Dr. Yashruti’s Opinion 14 Plaintiff saw Dr. Yashruti on August 22, 2019, for a consultative orthopedic 15 evaluation. (AR 1328–35.) Plaintiff’s chief complaint was pain in the neck, right shoulder, 16 hands, upper and lower back, hips, knee, ankle, and foot. (AR 1328.) Plaintiff reported 17 that she had been in a car accident in December 2009 in which her chest hit the steering 18 wheel. (AR 1328.) She started developing pain that gradually became total body pain. 19 (AR 1328.) She described the pain as throbbing, dull, and sharp, and aggravated by sitting, 20 standing, walking, and bending. (AR 1328.) She treated her pain with Oxycodone, 21 Fentanyl patches, and antidepressants. (AR 1328.) She stated that the treatment “helped a 22 little.” (AR 1328.) She reported using a cane intermittently when she had pain on bad 23 days for a year, as well as a chair walker. (AR 1328.) She stated that she alternated 24 between the two and would use one or the other all the time. (AR 1328.) 25 Dr. Yashruti reported that Plaintiff arrived using a chair walker for ambulation and 26 claimed she was unable to stand or walk without it and declined walking on her toes or 27 heels or squatting or standing without the walker. (AR 1330, 1333.) Dr. Yashruti observed 28 no abnormalities of Plaintiff’s cervical or dorsal spine and shoulders, but noted Plaintiff 1 experienced generalized tenderness when stroking the skin. (AR 1330–31.) Plaintiff 2 demonstrated various degrees of range of motion of her cervical spine, with less than 3 normal findings on right and left rotation, extension, and left side bending. (AR 1331.) 4 Her right-side bending and forward flexion were normal. (AR 1331.) Plaintiff also 5 demonstrated various degrees of range of motion of her shoulders, with less than normal 6 findings on forward flexion, extension, and adduction. (AR 1331.) Her external and 7 internal rotation were normal. (AR 1331.) Dr. Yashruti reported normal findings on 8 examination of Plaintiff’s elbows, wrists, and hands. (AR 1331.) 9 Dr. Yashruti observed no deformity, masses, and/or scars on Plaintiff’s lumbosacral 10 spine, hips, knees, ankles, and feet, and no effusion upon palpation. (AR 1332.) Plaintiff 11 complained of generalized tenderness in these areas but declined any movement, active or 12 passive. (AR 1332.) Dr. Yashruti reported that a gross evaluation of selectively tested 13 muscles in Plaintiff’s upper and lower extremities revealed “no weakness.” (AR 1332.) 14 Plaintiff complained of decreased sensation over the medial aspect localized at the level of 15 the knee. (AR 1332.) Dr. Yashruti also observed that Plaintiff’s straight leg raising was 16 negative, bilaterally, in both the sitting and supine positions, and the range of motion of 17 her joints was “grossly normal.” (AR 1333.) Dr. Yashruti also performed the Lasegue’s 18 and Febere’s maneuvers on Plaintiff, and found both negative, bilaterally. (AR 1333.) 19 Dr. Yashruti reviewed Plaintiff’s medical records and summarized them as follows: 20 All medical records were reviewed by the examiner including a report by 21 Michael Keller, MD dated June 12, 2019 where there is a description of x-ray of the cervical spine with mild spondylosis at CS-C6, mild degenerative disc 22 disease, x-ray of the thoracic spine with mild spondylosis, x-rays of bilateral 23 shoulder are normal, x-rays of bilateral knee are normal and x-rays of bilateral foot with mild osteoarthritis. The report describes generalized pain listed no. 24 10 as primary fibromyalgia syndrome. 25 (AR 1333.) 26 Dr. Yashruti completed no diagnostic studies, but reported the following impression: 27 The claimant is a 53-year-old female who subjectively complains of neck, 28 right shoulder, bilateral hand, upper back, low back, and bilateral hip, knee, 1 ankle and foot pain. Objectively, she is constantly moaning and groaning with difficulty deep breathing. She is using a chair walker to get around. She 2 declines walking on her toes or heels or squatting or standing without the 3 walker. She limits her cervical motion significantly. She complains of tenderness even when stroking the skin in the neck, upper back and low back. 4 She limits certain motions of the shoulders. She declined any movement in 5 the lumbar spine in any direction. She states that she could not get on the examination table or lay down. She complains of decreased sensation over 6 the medial aspect of the knees. Her medical records indicate the diagnosis of 7 fibromyalgia. There is a reference to x-rays of the cervical spine with mild spondylosis at C5-C6 and of the thoracic spine with mild spondylosis. 8 Bilateral shoulder and knee x-rays were normal. X-rays of the feet were 9 referred to as mild osteoarthritis. 10 (AR 1333.) 11 Based on his evaluation, Dr. Yashruti opined that Plaintiff can sit six hours a day. 12 (AR 1334.) He further opined the following: Plaintiff can stand and walk on level ground 13 without an assistive device two hours a day. (AR 1334.) She can ambulate with a cane for 14 a total of six hours a day. (AR 1334.) She is unable to walk on uneven ground. (AR 1334.) 15 She can squat, kneel, crouch, and crawl occasionally. (AR 1334.) She can lift twenty 16 pounds occasionally and ten pounds frequently and is able to reach with her arms and 17 frequently manipulate her hands. (AR 1334.) 18 After his examination, Dr. Yashruti also filled out a Medical Statement of Ability to 19 do Work-Related Activities (Physical). (AR 1329, 1335–39.) Dr. Yashruti opined that 20 Plaintiff could lift and carry up to ten pounds frequently and twenty pounds occasionally. 21 (AR 1334.) These limitations were supported by Plaintiff’s mild cervical and thoracic 22 spine degenerative disc disease and degenerative changes in her feet with heel spurs. (AR 23 1329.) Based on the same findings, Dr. Yashruti opined that Plaintiff could stand and walk 24 only one hour at a time without interruption and could stand and walk two hours total in an 25 eight-hour workday. (AR 1335.) Dr. Yashruti opined that Plaintiff does not require the 26 27 28 1 use of a cane to ambulate. (AR 1335.) Dr. Yashruti further opined that Plaintiff could 2 frequently reach, handle, finger, feel, push, and pull with both her right and left hands. (AR 3 1336.) Plaintiff could also frequently operate foot controls with her right and left feet. (AR 4 1336.) 5 With respect to postural activities, Dr. Yashruti opined that Plaintiff could never 6 climb stairs, ramps, ladders, or scaffolds, and could occasionally balance, stoop, kneel, 7 crouch, and crawl. (AR 1337.) These limitations were supported by Plaintiff’s plantar 8 fasciitis in her feet and degenerative joint disease in her feet. (AR 1337.) With respect to 9 environmental limitations, Dr. Yashruti opined that Plaintiff could never be exposed to 10 unprotected heights or moving mechanical parts, but she could occasionally operate a 11 motor vehicle. (AR 1338.) Lastly, with respect to Plaintiff’s daily activities, Dr. Yashruti 12 opined that Plaintiff could travel without a companion for assistance, ambulate without 13 using a wheelchair, walker, or two canes or two crutches, use standard public 14 transportation, climb a few steps at a reasonable pace with the use of a single handrail, 15 prepare a simple meal and feed herself, and care for her personal hygiene. (AR 1339.) 16 Dr. Yashruti further opined that Plaintiff could not walk a block at a reasonable pace on 17 rough or uneven surfaces. (AR 1339.) 18 b. ALJ’s Decision 19 The ALJ provided the following explanation for allocating “some” weight to 20 Dr. Yashruti’s opinion: 21 Dr. Yashruti’s opinion is given some weight because it is consistent with and 22 supported by the medical evidence, which indicates that the claimant has some 23 exertional and postural restrictions. However, the objective medical evidence does not support the level of restriction or all of the limitations proposed by 24 the Dr. Yashruti’s opinion. The claimant does not require an assistive device 25 to walk and she has full strength in her extremities. Manipulative limitations are not supported by exam findings. The claimant is able to perform 26 27 6 Dr. Yashruti opined that use of a cane increased Plaintiff’s ability to walk from two 28 1 household chores that require a number of manipulative movements and examination of her hands was normal at the consultative exam. Overall, her 2 physical symptoms improved and stabilized with treatment. There is also a 3 question of the claimant’s effort at the two most recent consultative exams. Dr. Whitehead did not provide an opinion because of the claimant’s lack of 4 effort at the February 2019 [mental] consultative exam and there appears to 5 be a similar lack of effort at the June 2019 consultative exam with Dr. Yashruti. For example, the claimant would not cooperate with range of 6 motion testing and merely brushing her skin elicited expression of pain. 7 8 (AR 26–27.) 9 Accordingly, the ALJ rejected Dr. Yashruti’s opinions that Plaintiff was able to stand 10 and walk on level ground without an assistive device for only two hours a day and would 11 be unable to walk on uneven ground. The ALJ also rejected Dr. Yashruti’s limitations on 12 Plaintiff’s ability to crouch, squat, climb ramps and stairs, balance, and stoop. In addition, 13 the ALJ did not incorporate all of Dr. Yashruti’s opined environmental limitations. 14 c. Analysis 15 In allocating “some weight” to Dr. Yashruti’s opinion, the ALJ provided the 16 following reasons for rejecting the level of restriction or all of the limitations proposed by 17 the Dr. Yashruti: (1) the objective medical evidence does not support the level of restriction 18 or all of the proposed limitations; (2) Plaintiff’s physical symptoms have improved and 19 stabilized with treatment; and (3) Plaintiff gave questionable effort during her examination. 20 (AR 26–27.) As Dr. Yashruti’s opinions are contradicted, the ALJ could only reject his 21 opinions by providing specific and legitimate reasons that are supported by substantial 22 evidence. Ryan, 528 F.3d at 1198. The Court discusses each reason the ALJ provided for 23 according only “some weight” to Dr. Yashruti’s opinion below. 24 i. Medical Record Does Not Support Proposed Restrictions 25 First, the ALJ rejected the level of restriction proposed by Dr. Yashruti because the 26 objective medical evidence does not support the level of restriction or all of the limitations 27 proposed by the Dr. Yashruti’s opinion. (AR 26.) Specifically, the ALJ claimed that 28 Plaintiff does not require an assistive device to walk, noting that she has full strength in her 1 extremities. (AR 26.) He further stated that the proposed manipulative limitations are not 2 supported by exam findings. (AR 26.)7 An ALJ may reject an examining physician’s 3 opinion that is not supported by clinical findings. See Magallanes, 881 F.2d at 754; see 4 also Batson, 359 F.3d at 1195 (“[A]n ALJ may discredit treating physicians’ opinions that 5 are conclusory, brief, and unsupported by the record as a whole, . . . or by objective medical 6 findings.” (citation omitted)). 7 Dr. Yashruti, like Dr. Keller, opined that Plaintiff has full strength in her extremities. 8 However, Dr. Yashruti’s opined limitations are not as restrictive as Dr. Keller’s opined 9 limitations. While Dr. Keller opined that Plaintiff can only walk twenty minutes in an 10 eight-hour day, Dr. Yashruti opined that Plaintiff is able to ambulate with a cane for six 11 hours a day and ambulate without an assistive device for two hours a day. Dr. Yashruti 12 specifically tied these limitations to Plaintiff’s mild cervical and thoracic spine 13 degenerative disc disease and degenerative changes in her feet with heel spurs. Given this 14 difference, the fact that Plaintiff has full strength in her extremities does not undermine 15 Dr. Yashruti’s opinion regarding Plaintiff’s ability to walk and need for an assistive device. 16 The ALJ does not identify any additional objective evidence that undermines 17 Dr. Yashruti’s opinion in this area. Accordingly, the Court finds this is not a specific and 18 legitimate reason supported by substantial evidence. 19 ii. Symptoms Improved and Stabilized with Treatment 20 Second, the ALJ rejected the level of restriction proposed by Dr. Yashruti because 21 Plaintiff’s overall physical symptoms improved and stabilized with treatment. (AR 26– 22 27.) As stated above, an impairment that can be controlled effectively by treatment or 23 medication cannot be considered disabling. Warre, 439 F.3d at 1006. 24 25 26 7 Plaintiff only complains of the ALJ’s rejection of Dr Yashruti’s opinion related to 27 how many hours Plaintiff can stand/walk without the use of an assistive device. (ECF No. 11 at 20–21.) Accordingly, the Court does not address whether the ALJ properly 28 1 As discussed above in addressing Dr. Keller’s opinion, Plaintiff continually reported 2 improved mobility and function with pain management. Plaintiff also complained 3 primarily of knee and/or back pain when visiting Dr. Smith for pain management from 4 2017 to 2019, thus suggesting her foot pain had improved or stabilized. (See, e.g., AR 5 996–1064.) However, Plaintiff’s RFC for less than a full range of light work8 provides that 6 she “can be on her feet . . . four hours (standing or walking) out of an eight-hour workday.” 7 (AR 22.) In other words, the RFC suggests that Plaintiff has the capability to walk for four 8 hours in an eight-hour workday without an assistive device. There is nothing in the record 9 after the onset of disability to indicate that Plaintiff can do so, even with improved mobility 10 and function with pain management. Moreover, there is nothing in the record after the 11 onset of disability that is inconsistent with, or undermines, Dr. Yashruti’s conclusion that 12 Plaintiff is limited to ambulating with a cane for six hours a day and without an assistive 13 device for two hours a day. Accordingly, the Court finds that this is not a specific and 14 legitimate reason supported by substantial evidence. 15 iii. Lack of Effort During Exam 16 Third, the ALJ rejected the level of restriction proposed by Dr. Yashruti because of 17 Plaintiff’s questionable effort at her two most recent consultative exams. (AR 27.) He 18 noted that “Dr. Whitehead did not provide an opinion because of the claimant’s lack of 19 effort at the February 2019 consultative exam and there appears to be a similar lack of 20 effort at the June 2019 consultative exam with Dr. Yashruti.” (AR 27.) With respect to 21 Plaintiff’s exam with Dr. Yashruti, the ALJ identified Plaintiff’s lack of cooperation with 22 range of motion testing and the fact that merely brushing her skin elicited expression of 23 pain. (AR 27.) 24 25

26 27 8 “[T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251 at *5–6 28 1 Although the ALJ’s concern about Plaintiff’s apparent lack of effort during her 2 consultative examination is well taken, the Court does not find this to be a specific and 3 legitimate reason supported by substantial evidence for according less weight to 4 Dr. Yashruti’s opinion. First, Dr. Yashruti, a consultative examiner, could have declined 5 to provide an opinion, as Dr. Whitehead did, if he did not feel he had enough information 6 to opine on Plaintiff’s limitations based upon her lack of cooperation. Instead, Dr. Yashruti 7 noted Plaintiff’s lack of cooperation and proceeded to render an opinion, implicitly 8 concluding he had adequate medical information to reach the opinions rendered. Second, 9 as to Plaintiff’s complaint of pain in response to light touch, the Court notes that Plaintiff 10 has been diagnosed with fibromyalgia. Fibromyalgia is “classified by the presence of 11 chronic widespread pain and tactile allodynia,” Montanez v. Astrue, No. 3:07cv1039 MRK 12 WIG, 2008 WL 3891961, at *8 n.5 (D. Conn. Aug. 1, 2008), which is “pain due to a 13 stimulus that does not normally provoke pain” such as “a light feather touch,” Suzanne O. 14 v. Saul, No. 3:20cv61, 2021 WL 1195930, at *8 n.4 (E.D. Va. Mar. 30, 2021) (quoting 15 Allodynia, National Center for Biotechnology Information, 16 https://www.ncbi.nlm.nih.gov/books/NBK537129/ (last visited March 23, 2021)). Thus, 17 tenderness to light touch can be one of the symptoms of Plaintiff’s diagnosed disease. 18 Based on the foregoing, the Court finds that the ALJ did not provide specific and 19 legitimate reasons supported by substantial evidence for rejecting the opinion of 20 Dr. Yashruti regarding Plaintiff’s ability to walk and need for an assistive device. 21 C. Remand is Appropriate 22 Plaintiff asks the Court to reverse for the payment of benefits, or in the alternative, 23 remand for the correction of legal errors. (ECF Nos. 11 at 22–23; 14.) Defendant maintains 24 that the ALJ’s decision is “supported by substantial evidence and free from legal error,” 25 but if the Court overturns the ALJ’s decision, remand is the proper remedy. (ECF No. 12- 26 1 at 8.) 27 When an ALJ commits error that is not harmless, “[t]he decision whether to remand 28 for further proceedings or simply to award benefits is within the discretion of [the] court.” 1 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (citing Winans v. Bowen, 853 2 F.2d 643, 647 (9th Cir. 1987)). “Remand for further administrative proceedings is 3 appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 4 587, 593 (9th Cir. 2004). Furthermore, “[i]f additional proceedings can remedy defects in 5 the original administrative proceeding, a social security case should be remanded.” Lewin 6 v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). On the other hand, “where the record has 7 been fully developed such that further administrative proceedings would serve no useful 8 purpose, the district court should remand for an immediate award of benefits.” Benecke, 9 379 F.3d at 593. 10 Here, the ALJ committed legal error that was not harmless,9 but this is not a case 11 where further administrative proceedings would lack purpose. Plaintiff argues that the VE 12 testified that Plaintiff would be limited to sedentary work if Dr. Yashruti’s opinion was 13 accepted. (ECF No. 14 at 2.) However, Plaintiff did not specifically ask the VE about a 14 hypothetical person incorporating Dr. Yashruti’s opinion. Rather, Plaintiff asked the VE 15 during the hearing about a hypothetical person who was only capable of “standing two 16 hours a day but while standing would need to utilize an assistive device and therefore only 17 have one hand and arm available to work.” (AR 57.) However, Dr. Yashruti opined that 18 Plaintiff is capable of walking and standing without an assistive device for one hour at a 19 time without interruption and for two hours total in an eight-hour workday. Because this 20 21 22 9 As noted above, Dr. Keller and Dr. Yashruti were the only two physicians who 23 provided medical opinions after the alleged onset of disability, June 30, 2016. The Commissioner points to Dr. Moazzaz’s opinion as medical support for the ALJ’s RFC. 24 (ECF No. 12-1 at 5–6.) However, Dr. Moazzaz’s opinion, dated January 26, 2014, 25 significantly predates the alleged onset date and is therefore of “limited relevance.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical 26 opinions that predate the alleged onset of disability are of limited relevance.”). The 27 opinions of the State Agency medical consultants similarly predate the alleged onset of disability. As such, the Court finds that the ALJ’s error with respect to Dr. Yashruti is not 28 | |} was not explored at the hearing, the record does not reflect what jobs may be available for 2 ||a person with such limitations. Therefore, remand for further proceedings is the 3 || appropriate remedy. 4 ||VI. CONCLUSION AND RECOMMENDATION 5 For the reasons discussed above, the Court GRANTS Plaintiff's merits brief, 6 DENIES the Commissioner’s cross motion, and remands this matter for further 7 ||administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 8 IT IS SO ORDERED. 9 Dated: March 18, 2022 .

n. Jill L. Burkhardt ited States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28