Barker v. Kijakazi, No. 2:2022cv00139 - Document 15 (E.D. Wash. 2023)

Court Description: ORDER DENYING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 14 JUDGMENT IN FAVOR OF THE COMMISSIONER. File is CLOSED. Signed by Senior Judge Rosanna Malouf Peterson. (SG, Case Administrator)

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Barker v. Kijakazi Doc. 15 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2951 Page 1 of 18 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 May 22, 2023 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 STACEY JOE B., NO: 2:22-CV-139-RMP Plaintiff, 8 v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER 11 Defendant. 12 13 BEFORE THE COURT, without oral argument, are briefs from Plaintiff 14 Stacey Joe B.1, ECF No. 11, and Defendant the Commissioner of Social Security 15 (the “Commissioner”), ECF No. 14. Plaintiff seeks judicial review, pursuant to 42 16 U.S.C. §§ 405(g) and 1383(c)(3), of the Commissioner’s denial of his claim for 17 Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the 18 “Act”). See ECF No. 11 at 2. 19 1 20 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first name and middle and last initials. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 1 Dockets.Justia.com Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2952 Page 2 of 18 1 Having considered the parties’ motions, the administrative record, and the 2 applicable law, the Court is fully informed. 2 For the reasons set forth below, the 3 Court denies judgment for Plaintiff and directs entry of judgment in favor of the 4 Commissioner. 5 BACKGROUND 6 General Context 7 Plaintiff applied for DIB on approximately August 24, 2016, alleging an onset 8 date of July 6, 2011. See Administrative Record (“AR”)3 143, 161, 295.4 Plaintiff’s 9 date last insured was June 30, 2017. AR 17. Plaintiff was 37 years old on the 10 alleged disability onset date and asserted that he was unable to work due to “bad 11 shoulders,” “bad back,” and arthritis. AR 339, 343. Plaintiff alleged that he stopped 12 working on July 6, 2011, because of his conditions. AR 339. Plaintiff’s application 13 14 15 16 17 2 The Court notes that Plaintiff did not file any reply. Failure to comply with the filing deadlines set by Local Civil Rule 7 “may be deemed consent to the entry of an order adverse to the party who violates these rules.” LCivR7(e); see also Fed. R. Civ. P. 56(e) (“If the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party.”). 18 3 19 4 20 The Administrative Record is filed at ECF No. 8. Plaintiff indicates that he filed his DIB application on October 3, 2017. ECF No. 11 at 2 (citing AR 142). However, the cited document indicates that Plaintiff filed his application on August 24, 2016. AR 143, 161. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 2 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2953 Page 3 of 18 1 was denied initially and upon reconsideration, and Plaintiff requested a hearing. See 2 AR 173–74. 3 On August 28, 2018, Administrative Law Judge (“ALJ”) Stephanie Martz 4 held a video hearing, and subsequently issued an unfavorable decision, on October 5 1, 2018. AR 139–58, 141. Plaintiff sought review by the Appeals Council, and the 6 Appeals Council remanded the claim to an ALJ to re-adjudicate the claim for a time 7 period up until an updated date last insured. AR 159–63. ALJ Stewart Stallings 8 held a supplemental telephone hearing on September 21, 2020. AR 63. Plaintiff 9 appeared, represented by attorney Jeffrey Schwab, and testified in response to 10 questions from the ALJ and counsel. See AR 63–112. The ALJ further heard from 11 vocational expert (“VE”) Thomas Weiford, Plaintiff’s wife, and medical expert 12 Haddon Alexander, MD. AR 63–112. ALJ Stallings issued an unfavorable decision 13 on April 21, 2021. AR 17–30. After the Appeals Council denied a request by 14 Plaintiff for review, Plaintiff filed a Complaint seeking review by this Court on June 15 9, 2022. ECF No. 1. 16 ALJ’s Decision 17 Applying the five-step evaluation process, ALJ Stallings found: 18 Step one: Plaintiff last met the insured status requirements of the Social 19 Security Act on June 30, 2017. AR 20. Plaintiff did not engage in substantial 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 3 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2954 Page 4 of 18 1 gainful activity since his alleged onset date of July 6, 2011, through his date last 2 insured, June 30, 2017. AR 20 (citing 20 C.F.R. § 404.1571 et seq). 3 Step two: Plaintiff has the following severe impairments that are medically 4 determinable and significantly limit his ability to perform basic work activities: left 5 shoulder degenerative joint disease; status post left shoulder arthroscopic 6 debridement, decompression, and rotator cuff repair; status post right shoulder 7 rotator cuff tear and repair; chronic pain syndrome; mild lumbar foraminal 8 narrowing; and psoriatic arthritis starting in July 2016, pursuant to 20 C.F.R. §§ 9 404.1520(c). AR 20. The ALJ further found that Plaintiff’s medical record 10 “includes reports of other physical symptoms and conditions from the relevant 11 period that were no more than transient and did not last for a continuous period of 12 twelve months, or did not cause significant limitations in functioning.” AR 20. The 13 ALJ also determined that Plaintiff did not have any medically determinable mental 14 impairments during the relevant period. AR 20. 15 Step three: The ALJ concluded that through the date last insured, Plaintiff did 16 not have an impairment or combination of impairments that met or medically 17 equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart 18 P, Appendix 1. AR 21 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). 19 The ALJ memorialized that Plaintiff’s physical impairments did not meet, or 20 medically equal, listings 1.15 for disorders of the skeletal spine resulting in 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 4 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2955 Page 5 of 18 1 compromise of a nerve root, 1.18 for joint dysfunction, or 14.09 for inflammatory 2 arthritis. AR 21. 3 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff, 4 through the date last insured, had the RFC to perform light work as defined in 20 5 C.F.R. § 404.1567(b), with certain exceptions. AR 19. The ALJ restricted 6 Plaintiff’s RFC as follows: 7 8 9 10 11 12 13 14 he can lift and/or carry twenty pounds occasionally and ten pounds frequently using both hands, he should not lift more than ten pounds with his left non-dominant arm, and can occasionally push/pull within these exertional limitations with his left arm. He can sit about six hours and stand and/or walk about six hours in an eight-hour day with regular breaks, frequently climb ramps and stairs, but never climb ladders, ropes or scaffolds, unlimited ability to balance, can frequently stoop, kneel, and crouch, and can occasionally crawl. The claimant can occasionally reach overhead with both arms, and should not lift more than ten pounds overhead at any time, can frequently finger and handle, and must avoid concentrated exposure to vibration and hazards. AR 21 (as written in original). In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements 15 concerning the intensity, persistence, and limiting effects of his alleged symptoms 16 “are not entirely consistent with the medical evidence and other evidence in the 17 record for the reasons explained in this decision.” AR 22–23. 18 19 Step four: The ALJ found that Plaintiff was unable to perform any past relevant work through the date last insured. AR 28 (citing 20 C.F.R. § 404.1565). 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 5 Case 2:22-cv-00139-RMP 1 ECF No. 15 filed 05/22/23 PageID.2956 Page 6 of 18 Step five: The ALJ found that Plaintiff has at least a high school education; 2 was 43 years old, which is defined as a younger individual (age 18-49), on the date 3 last insured; and that transferability of job skills is not material to the determination 4 of disability because Plaintiff is “not disabled” under the Medical-Vocational Rules, 5 whether Plaintiff has transferable job skills. AR 28 (citing 20 C.F.R. §§ 404.1569 6 and 404.1569(a)). The ALJ found that given Plaintiff’s age, education, work 7 experience, and RFC, Plaintiff can make a successful adjustment to other work that 8 exists in significant numbers in the national economy. AR 28–29. Specifically, the 9 ALJ recounted that the VE identified the following representative occupations that 10 Plaintiff could perform with the RFC: Cashier II (light, unskilled, with around 11 800,000 jobs nationally); Cleaner, Housekeeping (light, unskilled work, with around 12 140,000 jobs nationally); and Sales Attendant (light, unskilled work with around 13 200,000 jobs nationally). AR 29. The ALJ concluded that Plaintiff had not been 14 disabled within the meaning of the Act at any time from the alleged onset date of 15 January 6, 2011, through the date last insured, June 30, 2017. AR 29. 16 LEGAL STANDARD 17 Standard of Review 18 Congress has provided a limited scope of judicial review of the 19 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 20 Commissioner’s denial of benefits only if the ALJ’s determination was based on 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 6 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2957 Page 7 of 18 1 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 2 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 3 determination that a claimant is not disabled will be upheld if the findings of fact are 4 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 5 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 6 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 7 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir. 8 1989). Substantial evidence “means such evidence as a reasonable mind might 9 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 10 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the 11 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 12 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the 13 record, not just the evidence supporting the decisions of the Commissioner. 14 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 15 A decision supported by substantial evidence still will be set aside if the 16 proper legal standards were not applied in weighing the evidence and making a 17 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 18 1988). Thus, if there is substantial evidence to support the administrative findings, 19 or if there is conflicting evidence that will support a finding of either disability or 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 7 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2958 Page 8 of 18 1 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 2 812 F.2d 1226, 1229–30 (9th Cir. 1987). 3 Definition of Disability 4 The Social Security Act defines “disability” as the “inability to engage in any 5 substantial gainful activity by reason of any medically determinable physical or 6 mental impairment which can be expected to result in death, or which has lasted or 7 can be expected to last for a continuous period of not less than 12 months.” 42 8 U.S.C. §§ 423(d)(1)(A). The Act also provides that a claimant shall be determined 9 to be under a disability only if the impairments are of such severity that the claimant 10 is not only unable to do their previous work, but cannot, considering the claimant’s 11 age, education, and work experiences, engage in any other substantial gainful work 12 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A). Thus, the 13 definition of disability consists of both medical and vocational components. Edlund 14 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 15 Sequential Evaluation Process 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a claimant is disabled. 20 C.F.R. § 404.1520. Step one 18 determines if they are engaged in substantial gainful activities. If the claimant is 19 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. § 20 404.1520(a)(4)(i). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 8 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2959 Page 9 of 18 1 If the claimant is not engaged in substantial gainful activities, the decision 2 maker proceeds to step two and determines whether the claimant has a medically 3 severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). 4 If the claimant does not have a severe impairment or combination of impairments, 5 the disability claim is denied. 6 If the impairment is severe, the evaluation proceeds to the third step, which 7 compares the claimant’s impairment with listed impairments acknowledged by the 8 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. § 9 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment 10 meets or equals one of the listed impairments, the claimant is conclusively presumed 11 to be disabled. 12 If the impairment is not one conclusively presumed to be disabling, the 13 evaluation proceeds to the fourth step, which determines whether the impairment 14 prevents the claimant from performing work that they have performed in the past. If 15 the claimant can perform their previous work, the claimant is not disabled. 20 16 C.F.R. § 404.1520(a)(4)(iv). At this step, the claimant’s RFC assessment is 17 considered. 18 If the claimant cannot perform this work, the fifth and final step in the process 19 determines whether the claimant is able to perform other work in the national 20 economy considering their residual functional capacity and age, education, and past 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 9 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2960 Page 10 of 18 1 work experience. 20 C.F.R. § 404.1520(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 2 142 (1987). 3 The initial burden of proof rests upon the claimant to establish a prima facie 4 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 5 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 6 is met once the claimant establishes that a physical or mental impairment prevents 7 them from engaging in their previous occupation. Meanel, 172 F.3d at 1113. The 8 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 9 can perform other substantial gainful activity, and (2) a “significant number of jobs 10 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 11 F.2d 1496, 1498 (9th Cir. 1984). 12 ISSUES ON APPEAL 13 The parties’ briefs raise the following issues regarding the ALJ’s decision: 14 1. Did the ALJ erroneously reject Plaintiff’s subjective complaints? 2. Did the ALJ fail to conduct an adequate analysis of Plaintiff’s RFC at 15 step four? 16 3. Did the ALJ err at step five by failing to conduct an adequate analysis? 17 Plaintiff’s Subjective Complaints 18 Plaintiff argues that Plaintiff’s wife testified extensively about Plaintiff’s 19 deteriorated health since 2011 and contrasted his pre-2011 abilities with his 20 contemporary capacity for work and other activities. ECF No. 11 at 16–17 (citing 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 10 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2961 Page 11 of 18 1 AR 96–100). Plaintiff submits that his wife’s testimony was consistent with his own 2 and with the medical record. Id. at 17–18 (citing Plaintiff’s testimony at AR 102– 3 03). Plaintiff further asserts that “there is nothing in the medical record from any 4 medical doctor suggesting that [Plaintiff] is malingering.” Id. at 17–18 (no citation). 5 The Commissioner responds that the ALJ provided specific, clear, and 6 convincing reasons for discounting Plaintiff’s testimony. ECF No. 14 at 2–3. The 7 Commissioner argues that the Ninth Circuit recognizes that evidence of exaggeration 8 can be considered in weighing a claimant’s statements and that the ALJ cited 9 substantial evidence in Plaintiff’s record supporting exaggeration. Id. at 3 (citing 10 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); AR 23, 955, 1007, 11 1030). The Commissioner continues that the ALJ also relied on substantial evidence 12 in discounting Plaintiff’s statements based on his activities. Id. at 4. The 13 Commissioner contends that Plaintiff’s enrollment in a college fitness course for 14 several quarters during the relevant period undermined his report that he had very 15 significant physical limitations. Id. (citing AR 119). The Commissioner submits 16 that the ALJ could discount Plaintiff’s allegations, based on substantial evidence, 17 even though Plaintiff’s allegations may have been consistent with reports from 18 Plaintiff’s spouse. Id. at 5 (citing Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 19 685, 694 (9th Cir. 2009)). 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 11 Case 2:22-cv-00139-RMP 1 ECF No. 15 filed 05/22/23 PageID.2962 Page 12 of 18 In deciding whether to accept a claimant’s subjective pain or symptom 2 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 3 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has 4 presented objective medical evidence of an underlying impairment ‘which could 5 reasonably be expected to produce the pain or other symptoms alleged.’” 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 7 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there 8 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about 9 the severity of [his] symptoms only by offering specific, clear[,] and convincing 10 reasons for doing so.” Smolen, 80 F.3d at 1281. 11 There is no allegation of malingering in this case. Plaintiff testified at the 12 supplemental hearing that he is incapacitated by pain from his shoulder issues or 13 psoriatic arthritis, some combination of the two, or from the medication he takes to 14 ease the pain, “about three-quarters of the month,” with only two or three good days 15 per month. AR 102–04. ALJ Stallings found that Plaintiff’s allegation that he is 16 completely unable to work was undermined by: (1) physical examination findings 17 suggesting that Plaintiff was exaggerating his pain response; (2) a lack of 18 observation by medical providers of Plaintiff in acute distress or discomfort; (3) 19 Plaintiff’s activities; and (4) Plaintiff’s minimal treatment. AR 23–26. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 12 Case 2:22-cv-00139-RMP 1 ECF No. 15 filed 05/22/23 PageID.2963 Page 13 of 18 The ALJ’s reasoning that Plaintiff’s subjective symptom testimony is 2 undermined by physical examinations indicating a possibly exaggerated pain 3 response is supported by the evidence cited by the ALJ. See AR 23. Specifically, 4 Plaintiff’s treatment record from July 2014 recorded that the “[e]xam reveals severe 5 pain during exam with self-limiting behavior and symptom amplification.” AR 955. 6 An examination in September 2014 by a different physician similarly noted, 7 regarding Plaintiff’s shoulder examination, that Plaintiff’s “[r]ange of motion shows 8 a slightly exaggerated pain response . . . .” and that the physician could not “explain 9 the high level of pain [Plaintiff] is experiencing in his spine” based on the lumbar x- 10 11 ray and MRI results. AR 1007. Likewise, the ALJ cited substantial evidence in discounting Plaintiff’s 12 complaints based on presenting in no acute distress at appointments during the 13 relevant period. For instance, as the ALJ noted, Plaintiff did not appear in acute 14 distress at an appointment the same month as his alleged onset, with the provider 15 noting that Plaintiff presented as a “[h]ealthy male no acute distress has a difficult 16 time removing his T-shirt does not want to flex or abduct either shoulder. His gait is 17 normal.” AR 540 (as written in original). Other treatment records throughout the 18 relevant period also record that Plaintiff presented in no distress, even while seeking 19 treatment for physical discomfort. See, e.g., AR 915 (September 2013); 934 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 13 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2964 Page 14 of 18 1 (January 2014); 1007 (September 2014); 1096 (December 2014); 1123 (February 2 2015); 1138 (May 2015); 1162 (July 2016); 1192 (September 2016). 3 Finding that the ALJ provided at least two specific, clear, and convincing 4 reasons, supported by substantial evidence, for discounting Plaintiff’s testimony, the 5 Court need not analyze the ALJ’s further reasoning. With respect to Plaintiff’s 6 contention that the consistency between Plaintiff and his wife’s testimony supports 7 that the ALJ erred, the Court will not usurp the ALJ’s role of weighing the evidence. 8 See Tackett v. Apfel, 180 F.3d 1094, (9th Cir. 1999) (holding that the court may not 9 substitute its judgment for that of the ALJ where the evidence can support more than 10 11 one outcome) (internal quotation omitted). The Court finds no reversible error regarding the ALJ’s evaluation of 12 Plaintiff’s subjective symptom statements, grants judgment to the Commissioner on 13 this issue, and denies judgment to Plaintiff on the same. 14 Step Four 15 Plaintiff argues that the ALJ erred in giving great weight to medical expert Dr. 16 Alexander’s testimony when Dr. Alexander allegedly demonstrated an incomplete 17 and/or inaccurate understanding of the record. ECF No. 11 at 7. Plaintiff argues 18 that Dr. Alexander incorrectly claimed that Plaintiff’s treating rheumatologist, Dr. 19 Byrd, found that Plaintiff’s arthritis was in remission. Id. at 8 (citing AR 76–77). 20 However, Plaintiff argues, Dr. Byrd did not find that Plaintiff was in remission. Id. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 14 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2965 Page 15 of 18 1 (no cite to the record). Plaintiff also argues that Dr. Alexander overlooked evidence 2 in the record when he testified that he had found “no other information in the file 3 regarding synovitis after October of ’17.” Id. at 8 (citing AR 77). Plaintiff further 4 maintains that the ALJ should have heeded the medical source opinions that Plaintiff 5 should be limited to sedentary work. Id. at 10–12. 6 The Commissioner responds that the ALJ’s formulation of Plaintiff’s RFC 7 was supported by substantial evidence. ECF No. 14 at 5–6. The Commissioner 8 argues that the RFC is consistent with the opinions of Drs. Alexander, Bauer, 9 Robbins, Staley, and Hurly, and Plaintiff’s allegations of error amount to a request to 10 11 reweigh the evidence in Plaintiff’s favor. Id. at 7. “At step four, claimants have the burden of showing that they can no longer 12 perform their past relevant work.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 13 2001) (citing 20 C.F.R. §§ 404.1520(e), 416.920(e). However, the ALJ retains “the 14 duty to make the requisite factual findings to support his conclusions.” Pinto, 249 15 F.3d at 844. 16 The ALJ found that Plaintiff can perform light work with numerous 17 limitations, as set forth above. See AR 21. Plaintiff does not dispute that the 18 formulation of the RFC is consistent with some of the medical source opinions, and 19 Plaintiff does not allege error with respect to the ALJ’s evaluation of the medical 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 15 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2966 Page 16 of 18 1 source opinions. See ECF No. 11. Rather, Plaintiff challenges how the ALJ 2 resolved a conflict among the medical source opinions. See id. at 7–15. 3 The ALJ is charged with resolving a conflict in the medical evidence. Benton 4 v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). Moreover, “[t]he ALJ’s RFC 5 determination need not precisely reflect any particular medical provider’s 6 assessment.” Althoff-Gromer v. Comm'r of Soc. Sec., No. 2:18-cv-00082-KJN, 2019 7 U.S. Dist. LEXIS 48387, at *34 (E.D. Cal. Mar. 22, 2019) (citing Turner v. Comm’r 8 Soc. Sec. Admin., 613 F.3d 1217, 1222–23 (9th Cir. 2010)). The ALJ provided a 9 thorough review and evaluation of the record in formulating the RFC, and the Court 10 finds no error at this step. See AR 21–28. Therefore, the Court directs entry of 11 judgment for the Commissioner regarding this assignment of error. 12 Step Five 13 Plaintiff contends that the ALJ erred at step five because the VE testified in 14 response to questions from Plaintiff’s counsel that productivity falling below fifteen 15 percent is not tolerated in the category of persons who are seeking the unskilled jobs 16 that met the ALJ’s hypotheticals. ECF No. 11 at 19. The ALJ’s hypothetical must 17 be based on medical assumptions supported by substantial evidence in the record 18 that reflect all of a claimant’s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1165 19 (9th Cir. 2001). The ALJ is not bound to accept as true the restrictions presented in 20 a hypothetical question propounded by a claimant’s counsel. Osenbrock, 240 F.3d 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 16 Case 2:22-cv-00139-RMP ECF No. 15 filed 05/22/23 PageID.2967 Page 17 of 18 1 at 1164. The ALJ may accept or reject these restrictions if they are supported by 2 substantial evidence, even when there is conflicting medical evidence. Magallanes 3 v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). 4 Plaintiff's argument assumes that the ALJ erred in his treatment of Plaintiff’s 5 subjective symptom testimony and in formulating the RFC. As discussed above, the 6 ALJ’s assessment of this evidence was not erroneous. Therefore, the RFC and 7 hypothetical contained the limitations that the ALJ found credible and supported by 8 substantial evidence in the record. The ALJ’s reliance on testimony that the VE 9 gave in response to the hypothetical was proper. See Bayliss v. Barnhart, 427 F.3d 10 1211, 1217–18 (9th Cir. 2005). The Court grants judgment to the Commissioner on 11 this final ground. 12 13 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes that 14 the ALJ’s decision is supported by substantial evidence and free of harmful legal 15 error. Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s Brief, ECF No. 11, is DENIED. 17 2. Defendant the Commissioner’s Brief, ECF No. 14, is GRANTED. 18 4. Judgment shall be entered for Defendant the Commissioner. 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 17 Case 2:22-cv-00139-RMP 1 ECF No. 15 filed 05/22/23 PageID.2968 Page 18 of 18 IT IS SO ORDERED. The District Court Clerk is directed to enter this 2 Order, enter judgment as directed, provide copies to counsel, and close the file in 3 this case. 4 DATED May 22, 2023. 5 6 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING JUDGMENT IN FAVOR OF THE COMMISSIONER ~ 18

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