Dalal Felderman v. Nancy A. Berryhill, No. 2:2017cv06822 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is AFFIRMED. (See document for details.) (sbou)
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Dalal Felderman v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DALAL FELDERMAN, 12 Plaintiff, 13 14 15 16 v. Case No. CV 17-6822 JC MEMORANDUM OPINION NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, 17 18 I. 19 Defendant. SUMMARY On September 15, 2017, plaintiff Dalal Felderman filed a Complaint 20 seeking review of the Commissioner of Social Security’s denial of plaintiff’s 21 application for benefits. The parties have consented to proceed before the 22 undersigned United States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 25 (collectively “Motions”). The Court has taken the Motions under submission 26 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 19, 2017 27 Case Management Order ¶ 5. 28 /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On May 1, 2013, plaintiff filed an application for Disability Insurance 7 Benefits alleging disability beginning in February 2013, due to major depression 8 and mental breakdown. (Administrative Record (“AR”) 17, 19, 211, 238). The 9 ALJ examined the medical record, and on January 14 and April 26, 2016 heard 10 testimony from plaintiff (who appeared with a non-attorney representative) and 11 vocational experts. (AR 17, 32-87). 12 On May 25, 2016, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 17-26). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: depressive disorder, 15 panic disorder with agoraphobia, mood disorder not otherwise specified, 16 generalized anxiety with agoraphobia, obsessive- compulsive disorder, psychosis 17 not otherwise specified, and bipolar disorder, mixed (AR 20); (2) plaintiff’s 18 impairments, considered individually or in combination, did not meet or medically 19 equal a listed impairment (AR 22); (3) plaintiff retained the residual functional 20 capacity to perform the full range of work at all exertional levels, with the 21 following nonexertional limitations: plaintiff is able to perform simple routine 22 tasks not involving fast-paced or assembly line type work, and is able to accept 23 occasional changes in work setting (AR 23); (4) plaintiff could perform past 24 relevant work as a bagger (AR 25); and (5) plaintiff’s statements regarding the 25 intensity, persistence, and limiting effects of subjective symptoms were not 26 entirely consistent with the medical evidence and other evidence in the record (AR 27 23). 28 /// 2 1 On July 17, 2017, the Appeals Council denied plaintiff’s application for 2 review. (AR 1). 3 III. APPLICABLE LEGAL STANDARDS 4 A. 5 To qualify for disability benefits, a claimant must show that he or she is Administrative Evaluation of Disability Claims 6 unable “to engage in any substantial gainful activity by reason of any medically 7 determinable physical or mental impairment which can be expected to result in 8 death or which has lasted or can be expected to last for a continuous period of not 9 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 10 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). To be 11 considered disabled, a claimant must have an impairment of such severity that he 12 or she is incapable of performing work the claimant previously performed (“past 13 relevant work”) as well as any other “work which exists in the national economy.” 14 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 15 To assess whether a claimant is disabled, an ALJ is required to use the five- 16 step sequential evaluation process set forth in Social Security regulations. See 17 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 18 Cir. 2006) (citations omitted) (describing five-step sequential evaluation process) 19 (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at 20 steps one through four – i.e., determination of whether the claimant was engaging 21 in substantial gainful activity (step 1), has a sufficiently severe impairment (step 22 2), has an impairment or combination of impairments that meets or medically 23 equals one of the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 24 (“Listings”) (step 3), and retains the residual functional capacity to perform past 25 relevant work (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 26 (citation omitted). The Commissioner has the burden of proof at step five – i.e., 27 establishing that the claimant could perform other work in the national economy. 28 Id. 3 1 B. 2 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 3 Commissioner’s “final decision” was “based on legal error or not supported by 4 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 5 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 6 standard of review in disability cases is “highly deferential.” Rounds v. 7 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 8 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be 9 upheld if the evidence could reasonably support either affirming or reversing the 10 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s 11 decision contains error, it must be affirmed if the error was harmless. Treichler v. 12 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 13 2014) (citation omitted). 14 Substantial evidence is “such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (citation 16 and quotation marks omitted). It is “more than a mere scintilla, but less than a 17 preponderance.” Id. When determining whether substantial evidence supports an 18 ALJ’s finding, a court “must consider the entire record as a whole, weighing both 19 the evidence that supports and the evidence that detracts from the Commissioner’s 20 conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation 21 and quotation marks omitted). 22 Federal courts review only the reasoning the ALJ provided, and may not 23 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 24 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 25 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 26 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 27 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 28 /// 4 1 IV. DISCUSSION 2 A. 3 4 The ALJ Properly Evaluated the Opinions of Plaintiff’s Treating Physician Plaintiff contends that the ALJ failed properly to consider the opinions of 5 plaintiff’s treating physician, Dr. Salvador Arella (Plaintiff’s Motion at 5-10), 6 specifically a Mental Residual Functional Capacity Questionnaire dated April 21, 7 2014 in which Dr. Arella essentially opined that plaintiff lacked the mental 8 abilities and aptitudes to perform even unskilled work (collectively “Dr. Arella’s 9 Opinions”). (AR 334-37; see AR 382). A remand or reversal on this basis is not 10 warranted. 11 12 1. Pertinent Law In Social Security cases, the amount of weight given to medical opinions 13 generally varies depending on the type of medical professional who provided the 14 opinions, namely “treating physicians,” “examining physicians,” and 15 “nonexamining physicians.” 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 16 404.1513(a); Garrison, 759 F.3d at 1012 (citation and quotation marks omitted). 17 A treating physician’s opinion is generally given the most weight, and may be 18 “controlling” if it is “well-supported by medically acceptable clinical and 19 laboratory diagnostic techniques and is not inconsistent with the other substantial 20 evidence in [the claimant’s] case record[.]” 20 C.F.R. § 404.1527(c)(2); Revels v. 21 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). In turn, an 22 examining, but non-treating physician’s opinion is entitled to less weight than a 23 treating physician’s, but more weight than a nonexamining physician’s opinion. 24 Garrison, 759 F.3d at 1012 (citation omitted). 25 A treating physician’s opinion, however, is not necessarily conclusive as to 26 either a physical condition or the ultimate issue of disability. Magallanes v. 27 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). An ALJ may reject 28 the uncontroverted opinion of a treating physician by providing “clear and 5 1 convincing reasons that are supported by substantial evidence” for doing so. 2 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). 3 Where a treating physician’s opinion is contradicted by another doctor’s opinion, 4 an ALJ may reject such opinion only “by providing specific and legitimate reasons 5 that are supported by substantial evidence.” Garrison, 759 F.3d at 1012 (citation 6 and footnote omitted). In addition, an ALJ may reject the opinion of any 7 physician, including a treating physician, to the extent the opinion is “brief, 8 conclusory and inadequately supported by clinical findings.” Bray v. 9 Commissioner of Social Security Administration, 554 F.3d 1219, 1228 (9th Cir. 10 2009) (citation omitted). 11 An ALJ may provide “substantial evidence” for rejecting a medical opinion 12 by “setting out a detailed and thorough summary of the facts and conflicting 13 clinical evidence, stating his [or her] interpretation thereof, and making findings.” 14 Garrison, 759 F.3d at 1012 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 15 1998)) (quotation marks omitted). An ALJ must provide more than mere 16 “conclusions” or “broad and vague” reasons for rejecting a treating or examining 17 physician’s opinion. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988); 18 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (citation omitted). 19 “[The ALJ] must set forth his [or her] own interpretations and explain why they, 20 rather than the [physician’s], are correct.” Embrey, 849 F.2d at 421-22. 21 22 2. Analysis First, the ALJ properly rejected in part and gave only “partial weight” to Dr. 23 Arella’s Opinions because plaintiff had generally been prescribed a conservative 24 course of treatment. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) 25 (ALJ properly rejected opinion of treating physician where physician had 26 prescribed conservative treatment and the plaintiff’s activities and lack of 27 complaints were inconsistent with the physician’s disability assessment). For 28 example, as the ALJ noted, contrary to Dr. Arella’s findings that plaintiff had 6 1 disabling mental limitations (AR 336), the record evidence reflects that since April 2 2013, Dr. Arella only provided routine medication management for plaintiff with 3 directions to return as infrequently as every three months. (AR 25, 65, 334, 3424 53, 385-87). To the extent plaintiff suggests that the medical evidence actually 5 reflects more severe mental limitations (Plaintiff’s Motion at 6-8), this Court will 6 not second guess the ALJ’s reasonable determination that it does not, even if such 7 evidence could give rise to inferences more favorable to plaintiff. See Trevizo, 8 871 F.3d at 674-75 (citations omitted). 9 Second, the ALJ properly rejected in part/gave less weight to Dr. Arella’s 10 Opinions because they were not supported by the physician’s own clinical 11 findings. See Bayliss, 427 F.3d at 1217 (“The ALJ need not accept the opinion of 12 any physician, including a treating physician, if that opinion is brief, conclusory, 13 and inadequately supported by clinical findings.”) (citation and internal quotation 14 marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating 15 physician’s opinion properly rejected where treating physician’s treatment notes 16 “provide no basis for the functional restrictions he opined should be imposed on 17 [the claimant]”). For example, as the ALJ noted, on the whole Dr. Arella’s mental 18 status examinations mostly noted that plaintiff’s behavior was “anxious,” “sad,” 19 and/or “irritable” and were otherwise unremarkable. (AR 342, 344, 346, 348, 350; 20 compare AR 352). In addition, as the ALJ noted, Dr. Arella’s treatment notes 21 consistently reflected that plaintiff’s condition had remained stable, and noted that 22 plaintiff had been prescribed medication which she took “as directed” and found 23 “beneficial.” (AR 342-52); see generally Warre v. Commissioner of Social 24 Security Administration, 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that 25 can be controlled effectively with medication are not disabling. . . .”) (citations 26 omitted). As the ALJ noted, Dr. Arella’s Opinions were also inconsistent with 27 other observations in the physician’s treatment notes for plaintiff. See Bayliss, 28 427 F.3d at 1216 (A discrepancy between a physician’s notes and recorded 7 1 observations and opinions and the physician’s assessment of limitations is a clear 2 and convincing reason for rejecting the opinion.). For example, Dr. Arella’s 3 Opinions identify multiple “signs and symptoms” for plaintiff that either directly 4 conflict with, or are not documented at all in Dr. Arella’s observations in treatment 5 notes. (Compare AR 335 [Dr. Arella’s Opinions noting “hallucinations or 6 delusions” and “paranoid thinking” among plaintiff’s “signs and symptoms”] with 7 AR 342, 344, 346, 348, 350, 352 [treatment notes repeatedly documenting no 8 auditory or visual hallucinations, and no “delusions” in “thought content”] and AR 9 385 [“patient denies hallucinations and paranoia”]). Similarly, although plaintiff 10 complained of “insomnia,” she still reported getting six to eight hours of sleep. 11 (AR 344, 346, 348, 350, 384). 12 Third, the ALJ properly rejected in part/gave less weight to Dr. Arella’s 13 Opinions to the extent they were inconsistent with plaintiff’s own statements 14 regarding her functional abilities. See Morgan v. Commissioner of Social Security 15 Administration, 169 F.3d 595, 601-02 (9th Cir. 1999) (ALJ may reject medical 16 opinion that is inconsistent with other evidence of record including claimant’s 17 statements regarding daily activities). For example, as discussed in more detail 18 below, the ALJ noted that, contrary to her alleged disabling mental symptoms, 19 plaintiff has stated that she was able to, among other things, drive a car and do 20 various household chores. (AR 24, 38, 59-60, 65, 69-73). 21 Finally, the ALJ properly rejected Dr. Arella’s Opinions in favor of the 22 conflicting opinions of the state-agency examining psychologist, Dr. Ahmad R. 23 Riahinejad, who essentially opined that plaintiff had no limitation in her mental 24 abilities to understand, remember, and carry out simple instructions, and only 25 moderate limitation in her ability to respond appropriately to changes in a routine 26 work setting. (AR 375, 377-78). The opinions of Dr. Riahinejad were supported 27 by such physician’s independent examination of plaintiff (AR 372-75), and thus, 28 without more, constituted substantial evidence upon which the ALJ could properly 8 1 rely to discount Dr. Arella’s Opinions. See, e.g., Tonapetyan v. Halter, 242 F.3d 2 1144, 1149 (9th Cir. 2001) (examining physician’s opinion on its own constituted 3 substantial evidence, because it rested on physician’s independent examination of 4 claimant) (citations omitted). 5 Accordingly, a remand or reversal is not warranted on this basis. 6 B. 7 8 The ALJ Properly Evaluated Plaintiff’s Subjective Symptom Statements Plaintiff essentially contends that a remand or reversal is warranted because 9 the ALJ failed to articulate legally sufficient reasons for finding that plaintiff’s 10 statements regarding her subjective symptoms were not entirely consistent with 11 the evidence. (Plaintiff’s Motion at 10-13). The Court disagrees. 12 13 1. Pertinent Law When determining disability, an ALJ is required to consider a claimant’s 14 impairment-related pain and other subjective symptoms at each step of the 15 sequential evaluation process. 20 C.F.R. §§ 404.1529(a) & (d). Accordingly, 16 when a claimant presents “objective medical evidence of an underlying 17 impairment which might reasonably produce the pain or other symptoms [the 18 claimant] alleged,” the ALJ is required to determine the extent to which the 19 claimant’s statements regarding the intensity, persistence, and limiting effects of 20 his or her symptoms (“subjective statements” or “subjective complaints”) are 21 consistent with the record evidence as a whole and, consequently, whether any of 22 the individual’s symptom-related functional limitations and restrictions are likely 23 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R. 24 §§ 404.1529(a), (c)(4); Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, 25 at *4-*10; see also SSR 96-7p, 1996 WL 374186, at *1-*5.1 When an individual’s 26 27 1 Social Security Rulings reflect the Social Security Administration’s (“SSA”) official 28 interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although (continued...) 9 1 subjective statements are inconsistent with other evidence in the record, an ALJ 2 may give less weight to such statements and, in turn, find that the individual’s 3 symptoms are less likely to reduce the claimant’s capacity to perform work-related 4 activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases, when there is 5 no affirmative finding of malingering, an ALJ may “reject” or give less weight to 6 the individual’s subjective statements “only by providing specific, clear, and 7 convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89.2 If an 8 ALJ’s evaluation of a claimant’s statements is reasonable and is supported by 9 substantial evidence, it is not the court’s role to second-guess it. See Thomas v. 10 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). 11 12 2. Analysis First, the ALJ properly gave less weight to plaintiff’s subjective statements 13 based on plaintiff’s failure to seek a level or frequency of psychological treatment 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 (...continued) they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of the . . . Administration[,]” and are entitled to deference if they are “consistent with the Social Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray, 554 F.3d at 1224 (citations and quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security rulings). Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. The SSA republished SSR 16-3p making no change to the substantive policy interpretation regarding evaluation of a claimant’s subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “[when making] determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply “the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, *13 n.27. 2 It appears to the Court, based upon its research of the origins of the requirement that there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s subjective statements absent an affirmative finding of malingering, that such standard of proof remains applicable even where, like here, SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5 (citations omitted). 10 1 that was consistent with the alleged severity of plaintiff’s subjective complaints. 2 See Molina, 674 F.3d at 1113 (ALJ may properly consider “unexplained or 3 inadequately explained failure to seek treatment or to follow a prescribed course of 4 treatment” when evaluating claimant’s subjective complaints) (citations and 5 internal quotation marks omitted); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 6 2007) (“[E]vidence of ‘conservative treatment’ is sufficient to discount a 7 claimant’s testimony regarding severity of an impairment.”) (citation omitted), 8 cert. denied, 552 U.S. 1141 (2008); SSR 16-3p, 2016 WL 1119029, at *7-*8 (ALJ 9 may give less weight to subjective statements where “the frequency or extent of 10 the treatment sought by an individual is not comparable with the degree of the 11 individual’s subjective complaints, or if the individual fails to follow prescribed 12 treatment that might improve symptoms. . . .”). Here, like discussed above, Dr. 13 Arella’s treatment notes generally document routine, infrequent, and conservative 14 treatment (AR 24, 334, 342-53, 385-87), which is inconsistent with plaintiff’s 15 allegations of disabling mental limitations. 16 Second, the ALJ properly gave less weight to plaintiff’s subjective 17 complaints to the extent plaintiff engaged in daily activities which require a 18 greater level of mental functioning than plaintiff alleges she can actually do. See 19 Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (inconsistencies between 20 claimant’s testimony and claimant’s reported activities valid reason for giving less 21 weight to claimant’s subjective complaints) (citation omitted); SSR 16-3p, 2016 22 WL 1119029, at *7 (ALJ may determine that claimant’s symptoms “are less likely 23 to reduce his or her capacities to perform work-related activities” where claimant’s 24 subjective complaints are inconsistent with evidence of claimant’s daily activities) 25 (citing 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)). For example, as the ALJ 26 noted, contrary to plaintiff’s allegations of disabling mental symptoms, plaintiff 27 stated that she was able to do chores (i.e., laundry for her and her husband, 28 sweeping, minimal yard work, cleaning), drive a car, take public transportation to 11 1 the doctor by herself every three months, cook her own simple meals, do her own 2 grocery shopping every other day, talk with her mother and sister every day, walk 3 to her mother’s house three times a week, and watch television with her husband. 4 (AR 24, 38, 59-60, 65, 69-73). 5 As plaintiff correctly suggests (Plaintiff’s Motion at 13), a claimant “does 6 not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 7 260 F.3d 1044, 1050 (9th Cir. 2001) (citation omitted). Nonetheless, this does not 8 mean that an ALJ must find that a claimant’s daily activities demonstrate an ability 9 to engage in full-time work (i.e., eight hours a day, five days a week) in order to 10 discount conflicting subjective symptom testimony. To the contrary, even where a 11 claimant’s activities suggest difficulty in functioning, an ALJ may give less weight 12 to subjective complaints to the extent a claimant’s apparent actual level of activity 13 is inconsistent with the extent of functional limitation the claimant has alleged. 14 See Reddick, 157 F.3d at 722 (ALJ may consider daily activities to extent 15 plaintiff’s “level of activity [is] inconsistent with [the] . . . claimed limitations”); 16 cf. Molina, 674 F.3d at 1113 (“Even where [claimant’s] activities suggest some 17 difficulty functioning, they may be grounds for [giving less weight to] the 18 claimant’s testimony to the extent that they contradict claims of a totally 19 debilitating impairment.”) (citations omitted). Here, even though plaintiff stated 20 that she had some difficulty functioning, substantial evidence supports the ALJ’s 21 conclusion that plaintiff’s ability to engage in the daily activities noted above “are 22 not corroborative of her alleged degree of [mental] impairment. . . .” (AR 24); cf., 23 e.g., Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (claimant’s ability to 24 “take care of her personal needs, prepare easy meals, do light housework and shop 25 for some groceries . . . may be seen as inconsistent with the presence of a 26 condition which would preclude all work activity”) (citing Fair v. Bowen, 885 27 F.2d 597, 604 (9th Cir. 1989)). 28 /// 12 1 Third, the ALJ noted that, despite alleged “serious problems with [] 2 concentration,” plaintiff “was able to answer questions rationally without undue 3 delay at both hearings.” (AR 24). The ALJ was permitted to rely on his own 4 observations of plaintiff as one of the several factors for evaluating plaintiff’s 5 symptom testimony. See Social Security Ruling 16-3p, 2016 WL 1119029, *7 6 (ALJ “will consider any personal observations of the [claimant] in terms of how 7 consistent those observations are with the individual’s statements about his or her 8 symptoms as well as with all of the evidence in the file.”); see also Verduzco v. 9 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (when evaluating symptom testimony 10 ALJ may consider observations that claimant acted in manner at hearing that was 11 inconsistent with alleged disabling symptoms) (citation omitted). 12 Finally, the ALJ properly gave less weight to plaintiff’s subjective 13 complaints due, in part, to the absence of supporting objective medical evidence. 14 See Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the 15 sole basis for discounting pain testimony, it is a factor that the ALJ can consider 16 . . . .”); SSR 16-3p, 2016 WL 1119029, at *5 (“[ALJ may] not disregard an 17 individual’s statements about the intensity, persistence, and limiting effects of 18 symptoms solely because the objective medical evidence does not substantiate the 19 degree of impairment-related symptoms alleged by the individual.”). For one 20 example, as discussed above, treatment notes reflect that plaintiff found her 21 prescribed medication “beneficial.” (AR 342-52; see also AR 384 [April 4, 2016 22 treatment record noting plaintiff stated “I do very well[]” and reported waking in 23 the morning “with good energy” and having “no physical symptoms of pain 24 anywhere in the body”]). 25 Although plaintiff argues that the medical evidence actually supports her 26 subjective complaints (Plaintiff’s Motion at 11-13), the Court may not second 27 guess the ALJ’s reasonable determination to the contrary, even if the evidence 28 /// 13 1 could give rise to inferences more favorable to plaintiff. See Thomas, 278 F.3d at 2 959 (citation omitted). 3 Accordingly, a remand or reversal is not warranted on this basis. 4 V. CONCLUSION 5 For the foregoing reasons, the decision of the Commissioner of Social 6 Security is AFFIRMED. 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: December 21, 2018 9 10 11 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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