Yuliya Vladimirovna Kasparova v. Nancy Berryhill, No. 2:2019cv02376 - Document 29 (C.D. Cal. 2020)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (es)
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Yuliya Vladimirovna Kasparova v. Nancy Berryhill Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 YULIYA VLADIMIROVNA K.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 I. ) Case No. CV 19-2376-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) ) ) ) ) ) ) PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her application for Social Security Disability Insurance 20 Benefits (“DIB”). 21 Joint Stipulation, filed March 25, 2020, which the Court has 22 taken under submission without oral argument. 23 stated below, the Commissioner’s decision is affirmed. The matter is before the Court on the parties’ For the reasons 24 25 26 27 28 1 Plaintiff’s name is partially redacted in line with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1977. (Administrative Record (“AR”) 3 201.) She has a college degree and has worked as an 4 “[e]ligibility clerk,” office assistant, “[o]ffice [t]echnician,” 5 and “[p]rogram [t]echnician.” 6 September 23, 2015, alleging that she had been unable to work 7 since September 30, 2012, because of chronic fatigue syndrome, 8 “[s]evere PMS (with anovulation),” anxiety, “[s]ensitivity to 9 [m]edication/chemicals,” “[b]ody aches and pains,” “[h]eadaches (AR 217.) She applied for DIB on 10 and [m]igranes,” and being “[p]rone to acne.” 11 After her application was denied initially and on 12 reconsideration, she requested a hearing before an Administrative 13 Law Judge. 14 at which Plaintiff, represented by counsel, testified, as did a 15 vocational expert. 16 16, 2018, the ALJ found her not disabled. 17 requested review from the Appeals Council (AR 183), but it denied 18 her request (AR 1). 19 III. STANDARD OF REVIEW 20 (AR 131.) (AR 184, 216.) A hearing was held on September 20, 2017, (AR 33.) In a written decision dated January (AR 12-30.) Plaintiff This action followed. Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 means such evidence as a reasonable person might accept as 27 adequate to support a conclusion. 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 is “more than a mere scintilla but less than a preponderance.” 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 meaning of ‘substantial’ in other contexts, the threshold for 5 such evidentiary sufficiency is not high.” 6 139 S. Ct. 1148, 1154 (2019).2 7 evidence supports a finding, the reviewing court “must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner’s “[W]hatever the Biestek v. Berryhill, To determine whether substantial 10 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 11 1998). 12 or reversing,” the reviewing court “may not substitute its 13 judgment” for the Commissioner’s. 14 IV. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of Social Security if 16 they are unable to engage in any substantial gainful activity 17 owing to a physical or mental impairment that is expected to 18 result in death or has lasted, or is expected to last, for a 19 continuous period of at least 12 months. 20 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 21 1992). 42 U.S.C. 22 A. 23 The ALJ follows a five-step sequential evaluation process in 24 The Five-Step Evaluation Process assessing whether a claimant is disabled. 20 C.F.R. 25 26 27 28 2 Plaintiff objects to Defendant’s citation to Biestek for the “standard of review,” complaining that the case “addressed vocational experts, not the meaning of ‘substantial evidence.’” (J. Stip. at 19.) But one does not lightly ignore the Supreme Court’s observations on a key term governing an area of law. 3 1 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 2 Cir. 1995) (as amended Apr. 9, 1996). 3 Commissioner must determine whether the claimant is currently 4 engaged in substantial gainful activity; if so, the claimant is 5 not disabled and the claim must be denied. In the first step, the § 404.1520(a)(4)(i). 6 If the claimant is not engaged in substantial gainful 7 activity, the second step requires the Commissioner to determine 8 whether the claimant has a “severe” impairment or combination of 9 impairments significantly limiting her ability to do basic work 10 activities; if not, a finding of not disabled is made and the 11 claim must be denied. 12 § 404.1520(a)(4)(ii) & (c). If the claimant has a “severe” impairment or combination of 13 impairments, the third step requires the Commissioner to 14 determine whether the impairment or combination of impairments 15 meets or equals an impairment in the Listing of Impairments 16 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 17 1; if so, disability is conclusively presumed and benefits are 18 awarded. § 404.1520(a)(4)(iii) & (d). 19 If the claimant’s impairment or combination of impairments 20 does not meet or equal an impairment in the Listing, the fourth 21 step requires the Commissioner to determine whether the claimant 22 has sufficient residual functional capacity (“RFC”)3 to perform 23 her past work; if so, the claimant is not disabled and the claim 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 must be denied. § 404.1520(a)(4)(iv). The claimant has the 2 burden of proving she is unable to perform past relevant work. 3 Drouin, 966 F.2d at 1257. 4 prima facie case of disability is established. If the claimant meets that burden, a Id. 5 If that happens or if the claimant has no past relevant 6 work, the Commissioner then bears the burden of establishing that 7 the claimant is not disabled because she can perform other 8 substantial gainful work available in the national economy, the 9 fifth and final step of the sequential analysis. 10 §§ 404.1520(a)(4)(v), 404.1560(b). 11 B. The ALJ’s Application of the Five-Step Process 12 At step one, the ALJ found that Plaintiff had not engaged in 13 substantial gainful activity since September 30, 2012, the 14 alleged onset date. (AR 17.) 15 September 30, 2018. (Id.) 16 had the severe impairments of chronic fatigue syndrome, 17 depression, and anxiety. 18 her impairments did not meet or equal a Listing. 19 four, he found that she had the RFC to perform “light work” with 20 some additional limitations: she could “stand/walk 4 hours in an 21 8-hour workday,” “perform simple repetitive tasks,” “adapt to 22 occasional workplace changes,” and was precluded from work 23 involving hazards, “such as heights and heavy machinery.” 24 19.) 25 step five, he determined that she could perform jobs existing in 26 significant numbers in the national economy. 27 he found her not disabled. Her date last insured was At step two, he determined that she (Id.) At step three he concluded that (Id.) She could not perform her past relevant work. (AR 26.) 28 5 (Id.) At step (AR (AR 24.) At Accordingly, 1 DISCUSSION4 V. 2 A. 3 Applicable Background 1. Medical opinions and evidence 4 Plaintiff saw Dennis Godby, a naturopathic doctor, on 5 November 10, 2012 (AR 322, 324), shortly after her alleged 6 disability onset (AR 131). 7 issues, including difficulty “eat[ing] enough fruit [and] 8 veg[g]ies.” 9 “just 2 days,” and “used to” cause anemia. 10 (AR 322.) She complained of acne and digestive Her PMS was “really bad,” albeit for (Id.) Godby ran labs (AR 325) and prescribed four nutritional supplements (AR 324). Plaintiff did not return to Godby or otherwise seek medical 11 12 care again until June 19, 2013, nearly a year after her alleged 13 onset date, when she underwent a physical exam at a clinic to 14 “establish care.”5 15 “fatigue.” 16 anemia, she [had] been generally healthy most of [her] life.” 17 (Id.) 18 memory was “intact,” and she was “oriented to time, place, 19 person, and situation.” (Id.) (AR 624.) Her “primary complaint” was She reported that “[b]esides the fatigue and Examination showed no abnormalities. (Id.) (See AR 625.) Her She had “normal insight,” 20 4 21 22 23 24 25 26 27 28 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 33-78, 303-06, 309-16); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019). 5 Many of these records are unsigned. 6 1 “exhibit[ed] normal judgment,” and “demonstrat[ed] . . . 2 appropriate mood and affect.” 3 (Id.) Plaintiff returned to the clinic on July 20, 2013, for a pap 4 smear and breast exam. 5 over the past year” to “stress,” noting that “[h]er job was quite 6 stressful” but that now that she was “on leave” from it, she was 7 “feeling much better.” 8 symptoms with “homeopathic remedies” and “nutrition.” 9 (AR 623.) (Id.) She attributed her “fatigue She preferred to treat her (Id.) At another clinic appointment, on July 30, 2013, Plaintiff 10 reported “fatigue” and “decreas[ed] appetite” but “denie[d] 11 depression.” 12 “able to do her tasks.” 13 job” for the past 10 months. 14 “stressful,” and she had “drag[ged] herself to . . . work every 15 single day.” 16 direction of her career.” 17 (AR 366.) (Id.) She said that in the afternoons she was (Id.) She had been “on leave from her (Id.) Her job had been She was taking online classes “to change the (Id.) Plaintiff first visited James Chang, a licensed 18 acupuncturist,6 on November 5, 2013, complaining of “skin acne.” 19 (AR 531.) 20 “objective” he wrote, She “often [felt] weak and fatigued.” 21 Pulse: 22 coating is medium white. 23 sleep? 24 mornings. (Id.) Under deep, thin, weak Tongue: teethmarks, pale, thin, A: poor. Bad breath. Q: Quality of [C]an hardly get out of bed in the 25 26 27 28 6 (See AR 531 (“L.Ac.” in signature)); see also Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “James” and “Chang” under acupuncturists’ licenses, narrowing results by address (see AR 528)) (last visited Apr. 23, 2020). 7 1 (Id.) 2 indicate[d] deficient chi and blood” and predicted that it would 3 take “more than a year” to “recover her spleen.” 4 Chang noted that her “[w]eak pulse and pale thin tongue (Id.) She returned to Chang two or three times a month through 5 March 2014. (See AR 528-30.) 6 reported that she did not feel “much difference” but did feel 7 “calmer.” 8 her rest [was] better” and she had “[s]lightly more energy.” 9 (Id.) (AR 530.) On November 12, 2013, Plaintiff On November 26, she was “still” tired, “but On December 10, she reported that “the last batch of herbs 10 gave her more energy”; she was “sleeping better” and “in a better 11 mood.” 12 in her daily life”: she was “in a better mood” and no longer 13 “nap[ped] immediately after breakfast” or “spen[t] most of her 14 day in her own room.” 15 symptoms on January 21, 2014, by February 4 her “energy and mood 16 and sleep [were] all better.” 17 “feeling okay”: she could “last until 2:30 pm before needing a 18 nap,” was “not as moody” (her mood was “okay”), had periods that 19 did not “set[] her back as much,” and was “willing to go out and 20 socialize with her friends like before.” 21 thought she was “making good progress.” 22 (Id.) By December 20, she was “notic[ing] a difference (AR 529.) Although she reported worsening (Id.) On February 25, she was (AR 528.) (Id.) Plaintiff returned to her primary-care clinic on June 1, 23 2015, complaining of “increasing” fatigue. 24 exam was normal, and her memory was “intact.” 25 Chang (AR 341.) A physical (AR 342-43.) Plaintiff began “individual” therapy at the clinic on July 26 15, 2014, and at her initial consultation complained of “low 27 energy” and “fatigue.” 28 state, moved back home, and [was] attending on-line college (AR 448.) 8 She had “left her job with the 1 classes.” (Id.) She had a “history of anemia related to 2 vegetarian diet,” but that was “now treated.” 3 status examination was normal. 4 appointment on July 30, 2015, Plaintiff reported “trouble 5 concentrating on her online classes”; the doctor suspected 6 depression. 7 previously “diagnosed with depression,” she had taken 8 “medications ‘for a few days’” but “didn’t like how she felt” on 9 them, so she would rather “try ‘amino acids’ before using (AR 445.) A mental- At a follow-up Plaintiff stated that when she was 10 prescriptions.” 11 except for reported sleeping problems. 12 2015 therapy appointment, Plaintiff reported that “[her] body 13 [was] missing something.” 14 ‘natural healing’” and “afraid of having medications pushed on to 15 her.” 16 (Id.) (See id.) (Id.) Her mental-status examination was normal (AR 443.) (Id.) At her August 15, She was “interested in (Id.) Plaintiff visited Deepika Goshike,7 a doctor at her clinic, 17 on October 2, 2015, for a pap smear. 18 saw her again a few weeks later on November 10, she “want[ed] 19 paperwork . . . filled out to file for social security 20 di[s]ability due to her chronic fatigue syndrome.” 21 The doctor noted that she was not taking any of her prescribed 22 medications. 23 24 (AR 406, 409.) When she (AR 403.) (Id.) Dr. Goshike completed a “chronic fatigue syndrome medical source statement” that day, as Plaintiff requested. (AR 454.) 25 26 27 28 7 Dr. Goshike appears to be a family-medicine practitioner. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “Deepika” with “Goshike” under doctors’ licenses) (last visited May 8, 2020). 9 1 Although she had seen Plaintiff only “for [the] last month,” she 2 had been “with [the] Clinic since” June 2013. 3 diagnosed her with PMS, acne, polycystic ovary syndrome, 4 hyperlipidemia, and “unexplained” and “persistent” chronic 5 fatigue. 6 psychiatric disease, rheumatoid arthritis, and alcoholism as 7 causes. 8 impairment in short-term memory and concentration that could 9 “cause substantial reduction” in work abilities. (AR 454.) (Id.) (Id.) She She excluded HIV-AIDS, lyme disease, Among other symptoms, Plaintiff had self-reported (AR 455.) She 10 was not on any medications because she was “sensitive to 11 medication” and had “side effects.” 12 that Plaintiff could walk two blocks without rest or severe pain, 13 sit for 30 minutes at a time and less than two hours in an eight- 14 hour workday, stand for 10 minutes at a time and stand or walk 15 less than two hours in a workday, and required a sit/stand 16 option. 17 long breaks “every hour.” 18 “occasionally” and less than 10 pounds “frequently,” and she 19 could only “rarely” crouch or squat or climb ladders or stairs. 20 (Id.) 21 chemicals, and if it is too cold or hot.” 22 “[A]ccording to patient,” her “symptoms and limitations” started 23 “3 years ago.” 24 (Id.) (Id.) Dr. Goshike opined She needed to take unscheduled 30-minute to hour(AR 456.) She could lift 10 pounds She was also “sensitive to humidity, noise, strong odors, (AR 457.) (Id.) Edward Fuchs, a general practitioner, performed a 25 comprehensive evaluation of Plaintiff at Defendant’s request on 26 November 14, 2015. 27 “was able to walk to the examination room without difficulty,” 28 “sit comfortably,” and “get on and off the exam table.” (AR 458, 461.) 10 Dr. Fuchs observed that she (AR 1 459.) He noted no abnormalities on examination. 2 61.) He diagnosed her with “[c]hronic fatigue.” 3 opined that she could stand and walk “[u]p to four hours in an 4 eight-hour workday” because she gave a “good history for fatigue 5 even though she [had] no physical limitations.” 6 to her size,”8 she could lift, carry, push, and pull only “20 7 pounds occasionally and 10 pounds frequently.” 8 other limitations. 9 (See AR 459(AR 461.) (Id.) (Id.) He “[O]wing She had no (See id.) Plaintiff saw Alysia Liddell, a psychologist (see AR 467), 10 on November 17, 2015, for a “comprehensive psychiatric 11 evaluation,” also at Defendant’s request. 12 noted that Plaintiff’s only “previous mental health treatment” 13 was “secondary to medical concerns,” and she was “not currently 14 under the care of a mental health professional.” 15 denied any “history of psychiatric hospitalizations” or self- 16 harm. 17 within normal limits,” her “thought processes were tight, 18 logical, and goal oriented,” and her speech was “logical, 19 coherent, and concise.” 20 466.) 21 concentration. 22 disorder (id.) and opined that (Id.) (AR 463.) Dr. Liddell (AR 464.) She On examination, her “stream of mental activity was (AR 465.) She appeared depressed. (AR She had no problems with short-term memory or (Id.) Dr. Liddell diagnosed her with anxiety 23 [her] ability to understand and remember, and carry out 24 very 25 [¶][Her] ability to understand and remember detailed short and simple instructions is unimpaired. 26 27 8 28 Plaintiff was five feet six inches tall and weighed 122 pounds. (AR 459.) 11 1 instructions is unimpaired. 2 instructions from a supervisor and respond appropriately 3 is 4 coworkers is unimpaired. [¶][Her] ability to deal with 5 various changes in work 6 impaired given her 7 depression. 8 unimpaired. [¶][Her] the [¶][Her] ability to accept ability current to setting level of interact is with moderately anxiety and (AR 467.) 9 On November 30, 2015, Chang completed a “chronic fatigue 10 syndrome medical source statement” almost identically to Dr. 11 Goshike. 12 months starting” in November 2013 but had not seen her for more 13 than a year.9 14 Fatigue since 2012 to the point of spending most of her day in 15 bed.” 16 deficiency” and “extre[]me PMS.” 17 “25% better now after 6 months of [traditional Chinese medicine] 18 treatment that ended” in April 2014; she could expect “100% 19 recovery if . . . treated for 2 years.” 20 “Chinese herbal formulas with positive results in energy, skin, 21 digestion,” and pain reduction. 22 could walk one or two blocks without rest or severe pain, sit for 23 20 to 30 minutes at a time and less than two hours in an eight- 24 hour workday, stand for 10 to 15 minutes at a time and less than 25 two hours in an eight-hour workday, and needed a sit/stand (AR 471.) (Id.) (Id.) He had treated Plaintiff “weekly for 6 She had been “incapacitated by Chronic He diagnosed her with “spleen [and] liver (Id.) He noted that she was (Id.) (AR 472.) She had taken He opined that she 26 27 28 9 Chang actually saw Plaintiff for less than five months and usually only two or three times a month, not weekly. (See AR 528-31.) 12 1 option. 2 hour-long breaks every hour. 3 “occasionally” and less than 10 pounds “frequently”; she could 4 not climb ladders or stairs. 5 “off task” more than 25 percent of a typical workday. 6 could tolerate “moderate” stress “on a really good day” and was 7 “capable of low stress jobs.” 8 related to “noise, stress, smells, weather, lighting, [and] 9 chemicals.” 10 (Id.) She would need to take unscheduled 30-minute to (Id.) (AR 473.) (Id.) She could lift 10 pounds She could be expected to be (AR 474.) (Id.) She She had limitations She had “[s]elf-reported” memory and concentration impairment. (AR 472.) 11 On January 4, 2016, state-agency doctor S. Amon10 reviewed 12 Plaintiff’s medical records and opined that she could lift and 13 carry 20 pounds occasionally and 10 pounds frequently and could 14 stand or walk and sit “[a]bout 6 hours” each in an eight-hour 15 workday. 16 Amon apparently consulted with Allan Harris, a psychologist,11 17 concerning Plaintiff’s mental limitations, although Dr. Amon 18 alone signed the disability determination. 19 Harris), with AR 93 & 94 (Dr. Amon).) 20 Sheehy12 agreed on reconsideration, assessing identical (AR 90.) She had no other limitations. (Id.) Dr. (Compare AR 88 (Dr. On April 19, 2016, B. 21 22 23 24 25 26 10 Dr. Amon’s electronic signature includes a medicalspecialty code of 12 (AR 94), indicating family or general practice. See Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), https://secure.ssa.gov/apps10/ poms.nsf/lnx/0424501004. 11 Dr. Harris’s electronic signature includes a medicalspecialty code of 38 (AR 88), indicating psychology. See POMS DI 24501.004, supra note 10. 27 12 28 Dr. Sheehy’s electronic signature includes a medical(continued...) 13 1 limitations. 2 by Pamela Hawkins,13 a psychologist. 3 (AR 107, 110.) Dr. Sheehy was similarly assisted (See AR 105.) Plaintiff sought counseling on April 15, 2016, for her 4 “anxiety and low level depression secondary to chronic fatigue 5 syndrome.” 6 concentration but had “tried to return to work.” 7 no “history of psychiatric symptoms prior to getting what she 8 believe[d] [was] chronic fatigue syndrome.” 9 taken a “leave of absence” from her job in 2012: “she pushed (AR 568.) She reported “decreased” strength and (Id.) (AR 570.) She had She had 10 herself outside of her comfort zone but unfortunately she 11 ultimately quit because . . . she wasn’t able to fulfill the 12 responsibilities of her job.” 13 applying for SSDI. 14 anxiety and “depressive episodes.” 15 three more counseling sessions. 16 appointment), 538 (July 1, 2016), 541 (May 5, 2016).) 17 (Id.) (Id.) She was noted to be She was diagnosed with “moderate” (AR 574.) She returned for (See AR 533 (Aug. 5, 2016 Plaintiff underwent a behavioral-health consultation on 18 April 2, 2017, following the birth of her daughter. 19 She was noted to have a “history of undiagnosed anxiety and 20 depression.” 21 exhibited “symptoms of anxiety at the hospital over her inability 22 to breast feed” her baby and concerns about her ability to care 23 for her upon discharge. (Id.) (AR 674.) The consultation arose because she had (Id.) She “did not think . . . her 24 12 25 26 27 28 (...continued) specialty code of 20 (AR 112), indicating neurology. 24501.004, supra note 10. 13 See POMS DI Dr. Hawkins’s electronic signature includes a medicalspecialty code of 38 (AR 88), indicating psychology. See POMS DI 24501.004, supra note 10. 14 1 situation [was] dire enough to require psychiatric help,” 2 stating, “‘I did not say I was suicidal and do not need to be 3 assessed.’” 4 of the new baby.” 5 psychiatrist but was unable to get any appointments.” 6 was “willing to accept a low dose antidepressant, but want[ed] to 7 be watchful to what she takes since her body does not tolerate a 8 lot of medication” and because anxiolytics14 made her “jittery.” 9 (Id.) She was “calm and rational[]” during the assessment. 10 678.) The doctors concluded that she would “benefit from a low 11 dose anti-depressant” and outpatient care with a psychiatrist or 12 therapist. 13 (Id.) (Id.) She had “tried to call around for a (Id.) She (AR (Id.) 2. 14 She “just fe[lt] overwhelmed with the coming Plaintiff’s testimony and statements Plaintiff completed a “pain questionnaire” on October 8, 15 2015. (AR 227, 229.) She reported pain “throughout [her] body — 16 muscle, joints” — that began “[a]bout 2 years ago.” 17 The pain was “dull” and “mild to sometimes moderate” and would 18 spread to her back, legs, arms, shoulders, and neck or manifest 19 as a headache. 20 migraines that began about three years prior).) 21 exacerbated by “weather change,” “walking,” “overexertion,” 22 “certain noises,” “heat,” and “hormonal situations (PMS).” 23 She would lie down to relieve her pain. 24 [couldn’t] handle medications.” (AR 227.) (Id.; see also id. (stating that she had (Id.) (Id.) It was (Id.) “[Her] body Even “[h]alf a pill” of 25 26 27 28 14 Anxiolytics are medications used to prevent or treat anxiety and related disorders. About Anxiolytics, Healthline, https://www.healthline.com/health/anxiolytics (last visited May 8, 2020). 15 1 Tylenol or Excedrin would cause “side effects,” including 2 “digestive problems,” “pain in the liver area (right side),” 3 “dizziness,” “nausea,” and “stomach ache.” 4 “[e]psom salt bath” provided “[t]emporary [r]elief.” 5 Sitting “in front of a computer for more than 20-30” minutes 6 “hurt[] [her] back.” 7 minutes and sit for 20 to 30 minutes at a time. 8 could do “light housekeeping (i.e., dusting, cooking, etc.) 9 without assistance.” (Id.) (AR 227-28.) An (AR 228.) She could stand for five to 10 (AR 229.) She (Id.) Plaintiff completed a function report on October 8, 2015. 10 11 (AR 233-41.) 12 years,” and it was “extremely difficult” for her “to do any type 13 of work or activities” or to “commit to and maintain a job.” 14 233.) 15 fatigue would “continue throughout [the] day.” 16 “[l]ay down” and “often” took naps, making her daytime schedule 17 “unpredictable.” 18 [l]aying down.” 19 “physical and mental performance”: she had “problems with short 20 t[e]rm memory, concentrating on a given work task,” and “keeping 21 up with productivity requir[e]ments.” 22 her “stress” and difficulty “sustain[ing] work/job routines,” 23 resulting in her “regular[ly] calling in sick” to work. 24 She had been “chronically tired for the past 3 (AR She would “wake up very fatigued” “most days,” and her (Id.) (Id.) (Id.) She had to Some days she “just spen[t] mostly Her “constant” fatigue affected her (Id.) Her symptoms caused (Id.) During the day she “might read” or “make a few calls for 25 herself or [her] parents.” 26 somewhere,” she would “nap prior to see if it g[ave] her a little 27 more energy.” 28 min[utes] away” and “nap there”; otherwise she would “stay home (Id.) (AR 234.) If she “need[ed] to go She would “visit her parents who live[d] 5 16 1 all day” and rest “until bed time.” (Id.) On some days she did 2 not have enough energy to dress herself or “take a shower in the 3 morning,” so she would “stay in [her] pajamas.” 4 not need reminders to tend to her personal needs or take 5 medicine. (Id.) She did (AR 235.) 6 She prepared her own meals once or twice a week — 7 “[s]omething simple” that she could “[j]ust put . . . in the 8 oven.” 9 week. (Id.) (Id.) She could make her bed and do dishes about once a She went outside alone a “[c]ouple of days a week,” 10 although she felt “more comfortable” when “someone [was] with 11 [her].” 12 drive and concentrate on the road.” 13 and online for groceries and clothing. 14 bills, count change, and use a checkbook, although sometimes she 15 would “postpone” financial tasks until she “[felt] ok enough to 16 concentrate” on them. 17 watching TV (AR 237); she did yoga “about once a month” (id.; cf. 18 id. (claiming she did not “have energy” for yoga “anymore”)). 19 days that she felt “ok” she would “watch a movie” with her 20 “parents or a friend” or “have a short phone conversation with 21 them.” 22 how she felt. 23 “on a regular basis.” 24 (AR 236.) (Id.) She drove “only when [she felt] ok enough to (AR 236-37.) (Id.) She shopped in stores (Id.) She could pay She enjoyed reading and On She would go to church on holidays, depending on (Id.) She did not “go out” or “socialize anymore” (AR 238.) She could “only lift [about] 5 pounds (occasionally)” and 25 could walk no more than 10 to 15 minutes before she needed to 26 rest for between 20 minutes and “1-2 hours.” 27 “difficulty” finishing tasks “on time” and “concentrating”; when 28 she was “extremely tired” her “speech” was “affected.” 17 (Id.) She had (Id.) 1 She was “sensitive to stress,” which she didn’t “handle . . . 2 well,” especially during her PMS, which lasted “2 weeks every 3 month.” 4 in “crowded stores” or when she heard “certain music.” 5 She was “very sensitive” to any type of medication and could only 6 “occasionally” take an over-the-counter painkiller, although 7 “even that affect[ed her] digestion.” 8 helped her fatigue. 9 (AR 239 (emphasis in original).) She became “anxious” (AR 240.) (Id.) Nothing had (Id.) At the September 20, 2017 hearing, Plaintiff testified that 10 she had recently given birth and had “temporarily” moved to Los 11 Angeles. 12 her] with the baby” and would “probably be there for as long as 13 [she needed] help with [her] baby.” 14 “put a little more strain on [her] body,” so she felt “more 15 tired” and “definitely need[ed] more rest.” 16 parents “help[ed]” her “feed [the baby] at night” and “help[ed]” 17 bathe her. 18 with the baby. 19 herself. 20 (AR 35.) She was living with her parents, who “help[ed (AR 44.) (AR 35-36.) Giving birth (AR 43.) Her She and her parents “[took] turns” walking (AR 45.) She fed the baby and read to her by (AR 53.) She had a valid driver’s license and drove “[o]n good days.” 21 (AR 36.) 22 hour she would “start losing concentration on the road” and feel 23 “exhaust[ed]” and “[j]ust very tired.” 24 taken a Greyhound bus from Los Angeles to Sacramento for her 25 hearing. 26 She tried “not to drive too far” because after half an (AR 36-37.) She had (AR 36.) On bad days she would “not be[] able to take a shower for 27 the first part of the day” and would have to take “two naps 28 during the day.” (AR 48.) She had bad days “[t]wo to three days 18 1 a week.” 2 day” given her “back pain,” which had “got[ten] worse” since her 3 pregnancy. 4 she acknowledged that she could lift her 15-pound baby “for sure” 5 but “wouldn’t carry her around for too long” and would “have to 6 sit with her” and “fix [her] back” to “feel comfortable enough.” 7 (AR 53.) 8 9 (Id.) She could lift “maybe” five pounds “on a good (AR 52-53.) When questioned about the discrepancy, Being around “a lot of people” triggered her anxiety. (AR 58.) For instance, “the last time [she] was in LA,” she 10 “went to . . . an In and Out” and got a “rotisserie chicken to 11 eat,” but she didn’t have time to “cook” it before she “left” 12 because of anxiety. 13 anticipated would want to talk “for at least 15 minutes” would 14 call her, she wouldn’t pick up. 15 (AR 58-59.) When someone who she (AR 60.) She was no longer on any medications. (See AR 45-46.) She 16 had “tried different approaches” in recent years but had found 17 that the antidepressants didn’t help with her fatigue; to the 18 contrary, they gave her “side effects” and “actually [made] her 19 depressed.” 20 Migraine, which was “the only thing that” worked. 21 Apart from half a dose of Tylenol, she did not take anything for 22 pain; she had a “sensitivity” to “all medications” that 23 manifested as adverse “side effects,” including digestive issues 24 and nausea. 25 nauseated and gave her a rash. 26 antianxiety medication “a few times” but it made her feel “very 27 shaky” and “nervous.” 28 anemia. (AR 45.) (AR 51.) (Id.) When she had a migraine she took Excedrin (AR 50-51.) Tylenol made her feel “a little dizzy” and (AR 52.) (Id.) She took her prescribed She had no more issues with Her CFS treatment was “[m]ostly herbal”; her 19 1 doctors had told her that “there is no medication for Chronic 2 Fatigue.” 3 effect on [her] chronic fatigue.” 4 depressed or anxious, she talked to her sister, who “just 5 graduated with a psychology diploma.” 6 given phone numbers for “professionals” but hadn’t contacted 7 them. 8 9 (AR 46.) Her acupuncture had had “almost . . . no (AR 55.) When she felt (AR 46.) She had been (Id.) She had a bachelor’s degree, with a major in government and an international-relations concentration. (AR 37.) She had 10 taken a six-month online nutritional course but had asked for and 11 been granted an “extension” “because of [her] condition” to 12 complete it in two years (AR 37-38), which she did (AR 38). 13 AR 39 (Plaintiff testifying that she got extension because she 14 “needed more time for each session than [she] would if [she] 15 didn’t have the condition”).) 16 did “Yin Yoga” in 30-minute weekly sessions. 17 explained, that type of yoga involves “stretch[ing] and 18 [relaxing]” in a “calm and peaceful environment,” without 19 “straining.” 20 3. 21 (See Before she became pregnant, she (AR 47-48.) As she (AR 47.) Third-party statement Plaintiff’s friend and roommate Alexandre Frolov completed a 22 third-party function report on October 10, 2015. 23 had known Plaintiff for 12 years and saw her “on evenings after 24 work” and “most weekends,” when the two of them would cook, 25 clean, take short walks, and watch TV. 26 worsened “dramatically” over the “past 3 years”: she woke up 27 “very tired in the morning,” was often unable to cook or clean 28 “without help,” and looked “sick and exhausted” “[m]ost of the 20 (Id.) (AR 245.) He Her condition had 1 time.” (Id.) She “often need[ed] help to complete house 2 chores.” 3 dressed the same way she was” when he left in the morning. 4 246.) 5 would “help[] a little” when she felt “ok.” 6 outside a “[f]ew times a week” and could drive. 7 went to a park once a week and took “short walks” around their 8 apartment complex “2-3 times a week.” (AR 249.) 9 time she read, watched TV, or napped. (Id.) (AR 247.) Often when he returned from work, “she [was] (AR He did “most of the household work,” although Plaintiff (AR 247.) She went (AR 248.) She The rest of the “Sometimes she 10 need[ed]” to be “remind[ed] about her” medical appointments or 11 “to make a phone call.” 12 been “minimally social” and avoided “social gatherings.” 13 250-51.) 14 situations.” 15 loud music or speech, [and] violence on TV.” 16 “very sensitive to chemical products/smells.” 17 B. 18 (Id.) Over the “past few years” she had (AR It took her a “long time” to recover from “stressful (AR 251.) She was “extremely sensitive to noise, (Id.) She was (AR 252.) Analysis15 1. The ALJ permissibly discounted Plaintiff’s 19 subjective symptom statements and testimony 20 a. 21 Applicable Law An ALJ’s assessment of a claimant’s allegations concerning 22 the severity of her symptoms is entitled to “great weight.” 23 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 24 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 25 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to 26 27 15 28 The Court addresses the issues in an order different from that briefed by the parties, for clarity and other reasons. 21 1 believe every allegation of disabling pain, or else disability 2 benefits would be available for the asking, a result plainly 3 contrary to 42 U.S.C. § 423(d)(5)(A).’” 4 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 5 597, 603 (9th Cir. 1989)). 6 Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 7 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 8 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 9 2016). First, the ALJ must determine whether the claimant has 10 presented “objective medical evidence of an underlying impairment 11 [that] could reasonably be expected to produce the pain or other 12 symptoms alleged.” 13 omitted). 14 not reject a claimant’s testimony “simply because there is no 15 showing that the impairment can reasonably produce the degree of 16 symptom alleged.” 17 Lingenfelter, 504 F.3d at 1036 (citation If such objective medical evidence exists, the ALJ may Id. (citation omitted & emphasis in original). If the claimant meets the first test, the ALJ may discount 18 the claimant’s subjective symptom testimony only if he makes 19 specific findings that support the conclusion. 20 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 21 affirmative evidence of malingering, the ALJ must provide a 22 “clear and convincing” reason for rejecting the claimant’s 23 testimony. 24 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 25 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 26 Cir. 2014). 27 claimant’s (1) reputation for truthfulness, prior inconsistent 28 statements, and other testimony that appears less than candid; See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. The ALJ may consider, among other factors, the 22 1 (2) unexplained or inadequately explained failure to seek 2 treatment or to follow a prescribed course of treatment; (3) 3 daily activities; (4) work record; and (5) physicians’ and third 4 parties’ statements. 5 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 6 278 F.3d 947, 958-59 (9th Cir. 2002). 7 a claimant’s alleged symptoms is supported by substantial 8 evidence in the record, the reviewing court “may not engage in 9 second-guessing.” 10 b. 11 See Rounds v. Comm’r Soc. Sec. Admin., 807 If the ALJ’s evaluation of Thomas, 278 F.3d at 959 (citation omitted). The ALJ’s Decision The ALJ found Plaintiff’s “statements concerning the 12 intensity, persistence and limiting effects” of her symptoms “not 13 entirely consistent with the medical evidence and other evidence 14 in the record.” 15 objective medical evidence, noting a “lack of objective 16 diagnostic studies” and “few significant findings” on physical 17 examination. 18 treatment records” showing that her physical and mental 19 conditions were “well controlled.” 20 mental-status examinations had “often revealed few significant 21 findings”).) 22 “conservative in nature,” consisting entirely of “office visits 23 for routine complaints and check-ups,” with “no surgeries, 24 hospitalizations, or extended or specialized care.” 25 AR 21 (noting that she was “not on any psychotropic medications” 26 and had “refused to take medications” for her chronic fatigue, 27 primary insomnia, and recurrent depression).) 28 allegations inconsistent with medical-opinion evidence showing (AR 20.) (Id.) He found them unsubstantiated by Moreover, they were “inconsistent with (Id.; see AR 21 (noting that He noted as well that her treatment had been 23 (AR 20; see He also found her 1 that she had “considerable work-related abilities despite her 2 impairment” (AR 21) and, specifically, with the opinions of the 3 two consulting examiners, Drs. Fuchs and Liddell (see AR 22 4 (giving those opinions “great weight”)). 5 The ALJ also found Plaintiff’s allegations “inconsistent 6 with” her activities of daily living because they showed she was 7 “functional.” 8 personal care,” took “care of her baby,” “perform[ed] household 9 chores,” shopped “in store” and “online,” ran “errands . . . (AR 22.) For instance, she had “no problems with 10 without assistance,” attended online classes, and could handle 11 her finances. 12 took walks around her apartment complex, and did yoga. 13 She took a Greyhound bus from Los Angeles to Sacramento for her 14 hearing. 15 (Id.) 16 as limited as would be expected “given [her] complaints.” 17 Finally, the ALJ concluded that Plaintiff had “provided 18 inconsistent information” about “how much she can lift,” namely, 19 she “stated that she cannot lift 10 pounds”16 but “testified that 20 she lifts her 15-pound baby.” 21 (AR 22-23.) (Id.) She went “to the park once a week,” (AR 23.) She had a “valid drivers license” and drove. Overall, he found her “wide range” of activities was not (Id.) (Id.) Ultimately, the ALJ found Plaintiff’s allegations “partially 22 consistent” with and “supported by her diligence in seeking care 23 for her mental disability and fatigue syndrome.” 24 concluded that although she continued to experience some (Id.) But he 25 26 27 28 16 Plaintiff actually stated in her function report that she could “only lift [about] 5 pounds (occasionally)” (AR 238) and later testified that she could lift “maybe” five pounds “[o]n a good day” (AR 52). 24 1 symptoms, they were “so well controlled” that she could still 2 “perform a wide range of light work with simple repetitive 3 tasks.” (Id.) 4 5 c. Analysis Plaintiff challenges the ALJ’s partial discounting of her (See J. Stip. at 12-16.)17 6 subjective symptom statements. 7 the reasons discussed below, the ALJ did not err. i. 8 9 For Medical and other evidence The ALJ properly concluded that Plaintiff’s subjective 10 symptom statements were inconsistent with the medical evidence. 11 (See AR 20); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 12 600 (9th Cir. 1999) (finding “conflict” with “objective medical 13 evidence in the record” to be “specific and substantial reason” 14 undermining plaintiff’s allegations); § 404.1529(c)(2). 15 Plaintiff alleged that her “constant[] fatigue” caused 16 symptoms that made it difficult for her to “sustain work/job 17 related routines.” 18 fatigue-related “problems with short t[e]rm memory” that affected 19 her ability to “concentrate on a given work task” or “keep[] up 20 with productivity requir[e]ments.” 21 constant feeling of being fatigued for quite a long time already 22 gets [i]n the way of my productivity and ability to do basic 23 tasks.”).) (AR 233.) More specifically, she had (Id.; see also AR 223 (“My But repeatedly on examination she was noted to have 24 25 26 27 28 17 For nonconsecutively paginated documents, the Court uses the pagination generated by its Case Management/Electronic Case Filing system. 25 1 no memory problems18 (see, e.g., AR 343 (memory “intact” on June 2 1, 2015), 346 (same on Mar. 17, 2015), 348 (same on Jan. 22, 3 2015), 361 (same on July 15, 2014), 369 (“negative” for “memory 4 impairment” on June 18, 2013), 491 (“negative” for “memory loss” 5 on Aug. 3, 2017), 547 (memory “normal” on Apr. 9, 2017), 555 6 (same on Aug. 23, 2016)), as the ALJ noted (AR 20, 23). 7 AR 351 (“positive” for “[m]emory impairment” on Dec. 1, 2014).) 8 Her mental-health providers did not note any memory problems 9 either. (But see (See, e.g., AR 443 (memory “intact” at Aug. 15, 2014 10 therapy session), 445 (same on July 30, 2014), 448 (same on July 11 15, 2014).) 12 psychiatric evaluation revealed no problems with her “immediate,” 13 “recent,” or “long-term” recall. 14 symptoms of CFS are often of necessity “self-reported,” see 15 Reddick, 157 F.3d at 726, the ALJ did not err in discounting 16 Plaintiff’s statements when doctors’ treatment notes routinely 17 directly contradicted the existence of alleged memory issues, see 18 id. (distinguishing other common symptoms of CFS, including 19 “memory problems,” which can be objectively assessed).19 20 And Dr. Liddell’s November 17, 2015 comprehensive (See AR 466.) Although fatigue Similarly, Plaintiff testified that her speech often became 21 “affected” as a result of her fatigue (AR 238), but doctors noted 22 no such affectation (see, e.g., AR 445 (speech “appropriate” on 23 24 25 26 27 28 18 Observable abnormalities of thought, memory, mood, and perception are objective medical evidence. See § 404.1502(f) & (g). 19 Notably, Plaintiff’s roommate, in filling out a thirdparty function report, did not check the box for “memory” when asked to indicate things the “disabled person’s illnesses, injuries, or conditions affect.” (AR 250.) 26 1 July 30, 2014), 448 (same on July 15, 2014), 459 (Dr. Fuchs 2 finding her speech “audible, understandable, and sustainable” on 3 Nov. 14, 2015), 574 (speech “clear” on Apr. 15, 2016), 678 4 (speech “appropriate in rate, rhythm, volume and tone” on March 5 27, 2017)). 6 of mental activity” was “normal,” “thought processes were tight, 7 logical, and goal oriented,” speech was “logical, coherent, and 8 concise,” “[a]rticulation was clear,” and “[v]elocity and volume 9 were normal.” 10 To the contrary, Dr. Liddell noted that her “stream (AR 465 (Nov. 17, 2015 comprehensive psychological-evaluation report).) 11 The ALJ also properly concluded, based on his thorough 12 review of the treatment records, that Plaintiff’s symptoms could 13 be adequately managed with medication and other treatments. 14 AR 20-21 (ALJ finding that Plaintiff’s mental and physical 15 conditions were “well controlled”)); SSR 16-3p, 2016 WL 1119029, 16 at *6 (ALJ may consider information in medical records about 17 onset of symptoms, their change over time, and plaintiff’s self- 18 reported activities in evaluating subjective symptoms); 19 § 404.1527(c)(3). 20 reported to her acupuncturist that her fatigue was improving. 21 (See AR 21; see also AR 23 (ALJ noting that Plaintiff “reported 22 . . . that the [acupuncture] treatment has been generally 23 successful in controlling [her] symptoms”).) 24 reported “[s]lightly more energy” on November 26, 2013, just a 25 few weeks after she began acupuncture treatment. 26 December 10, 2013, she had “more energy” still and was “sleeping 27 better.” 28 improved to the extent she “notice[d] a difference in her daily (Id.) (See As he detailed at length, Plaintiff repeatedly Specifically, she (AR 530.) By And by December 20, 2013, her symptoms had 27 1 life”: she was no longer napping in the mornings or spending most 2 of her day in the bedroom. 3 reported that her “energy and mood and sleep [were] all better,” 4 and she was going “out for walks.” 5 on Feb. 18, 2014, that she was going on 30-minute walks “every 6 day”).) 7 before needing a nap.” On February 4, 2014, she (Id.; see also id. (reporting By February 25, 2014, she could “last until 2:30 pm (AR 528.) And as the ALJ noted, none of Plaintiff’s conditions 8 9 (AR 529.) required specialized or extended medical care or 10 hospitalization.20 11 health care only intermittently, first for three appointments in 12 2015 (see AR 443-48) and then for three more in 2016 (see AR 559- 13 74). 14 care was brief”).) 15 was an in-hospital consultation following the birth of her 16 daughter, apparently related to concerns about possible 17 postpartum depression. 18 health-consultation record).) 19 Plaintiff reported symptoms of depression and anxiety but “did 20 not think that her situation [was] dire enough to require 21 psychiatric help” (id.; see id. (Plaintiff stating, “I did not 22 say I was suicidal and do not need to be assessed.”)), and the 23 doctors recommended only a “low dose” antidepressant and 24 “outpatient” therapy (AR 674, 678). (See AR 20.) Notably, she sought mental- (See also AR 23 (ALJ noting that Plaintiff’s “mental health The only other record of mental-health care (See AR 674 (Mar. 29, 2017 behavioralDuring that consultation, Otherwise, the treatment 25 26 27 28 20 The ALJ stated that there were no hospitalizations in the record. (AR 20.) That is not strictly true, however, given that Plaintiff was hospitalized for the birth of her daughter. (See AR 674.) 28 1 records contain only isolated appointments for discrete issues. 2 (See, e.g., AR 322 (Nov. 10, 2012 naturopathic appointment for 3 acne, digestion, and PMS), 337 (Oct. 2, 2015 “well woman” visit 4 with Dr. Goshike), 494-526 (prenatal-care records dated Sept. 27, 5 2016 through Apr. 21, 2017), 575 (Mar. 7, 2016 appointment for 6 “left foot pain”); see also AR 20 (ALJ noting that “treatment 7 [Plaintiff] has received for all of her impairments have been 8 office visits for routine complaints and check-ups”).) 9 Moreover, Plaintiff repeatedly refused medicinal treatment 10 and often failed to take medication she had been prescribed, as 11 the ALJ noted. 12 “refused to take medications” for her chronic fatigue, primary 13 insomnia, and recurrent depression), 23 (ALJ noting that 14 “[d]espite the complaints of allegedly disabling symptoms, 15 [Plaintiff] has not taken any medications for those symptoms”).) 16 Indeed, Plaintiff’s doctors prescribed at least four medications 17 for her fatigue during 2015. 18 “quadruple therapy” for lethargy).) 19 Goshike to fill out her disability form in November “due to her 20 chronic fatigue,” the doctor noted that she was “not taking” any 21 of them. 22 times indicated that she did not take her medications because 23 they caused adverse side effects. 24 stating on Oct. 8, 2015, that she “can’t take [medicine] for 25 body/muscle pain” because she is “very sensitive” to “any types 26 of medications”), 459 (stating to Dr. Fuchs on Nov. 14, 2015, 27 that “every medicine she has tried has had side effects”); see 28 also AR 455 (Dr. Goshike noting that Plaintiff was “sensitive to (See, e.g., AR 21 (ALJ noting that she had (See AR 341, 344, & 346 (discussing But when she asked Dr. (AR 403; see also AR 22 (ALJ noting same).) 29 She at (See, e.g., AR 240 (Plaintiff 1 medication and has side effects, so she is not on any 2 medication”).) 3 ideological preference for alternative medicine. 4 on August 15, 2015, she terminated her individual-therapy 5 treatment, stating that she was “interested in ‘natural healing’” 6 and “afraid of having medications pushed on” her. 7 see also AR 623 (Plaintiff stating on July 30, 2013, that she 8 preferred to treat her symptoms with “homeopathic remedies” and 9 “nutrition”).) At other times, however, she expressed an For instance, (See AR 443; And she told a doctor in March 2017 that she 10 didn’t want to take antidepressants because a friend took them 11 and killed herself. 12 Plaintiff’s failure to follow medically advised treatment in 13 evaluating her subjective symptom testimony. 14 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Sights v. Colvin, 15 No. 6:15-cv-00717-AA, 2016 WL 5402746, at *3 (D. Or. Sept. 26, 16 2016) (that plaintiff “chose not to take prescribed medications” 17 and elected “homeopathic remedies” over “suggested treatments 18 . . . permit[ted] an inference that [her] symptoms [were] not as 19 severe as alleged”).21 (AR 674.) The ALJ properly considered See Tommasetti v. 20 The ALJ also properly discounted Plaintiff’s allegations as 21 inconsistent with the medical-opinion evidence (AR 21), which is 22 a valid basis to discount a claimant’s subjective symptom 23 testimony. 24 opinion that condition “was not severe” and could be 25 “control[led]” was “specific, clear, and convincing reason[]” to See Molina, 674 F.3d at 1113 (examining doctor’s 26 27 28 21 Because Plaintiff was prescribed treatments she didn’t follow, her argument that CFS has an “absence of treatment . . . modalities” (J. Stip. at 14) is off the mark. 30 1 reject subjective symptom testimony). Although Plaintiff claimed 2 that her symptoms rendered her unable to “do any type of work or 3 activities” (AR 233), two examining doctors and the state-agency 4 reviewing doctors disagreed. 5 credited her subjective symptoms in his assessment, limiting her 6 standing and walking to four hours in an eight-hour workday to 7 accommodate her chronic fatigue. 8 she gave “a good history for fatigue even though she [had] no 9 physical limitations”).) Notably, Dr. Fuchs partially (See AR 461 (Fuchs noting that Nonetheless, he opined that she was 10 capable of light work with some additional limitations (see id.), 11 far less limited than she claimed to be (see, e.g., AR 238 12 (claiming she could lift only “about” five pounds and walk 10 to 13 15 minutes at a time)). 14 her comprehensive psychiatric evaluation, that Plaintiff had no 15 mental or cognitive limitations apart from moderate impairment in 16 her ability to deal with workplace changes because of her 17 “anxiety and depression” (AR 467), which was inconsistent with 18 Plaintiff’s claims of fatigue-related “problems” with her short- 19 term memory and concentration (AR 233). 20 reviewing doctors agreed that Plaintiff’s impairments were not 21 severe enough to prevent her from working. 22 Discounting her allegations because they were inconsistent with 23 the medical and other evidence was proper. 24 25 ii. Moreover, Dr. Liddell opined, based on The state-agency (AR 90, 110.) Daily activities The ALJ also properly discounted Plaintiff’s allegations as 26 inconsistent with her daily activities. 27 discredit a claimant’s subjective symptom testimony “when [she] 28 reports participation in everyday activities indicating 31 (AR 22.) An ALJ may 1 capacities that are transferable to a work setting.” 2 F.3d at 1113 (citation omitted). 3 suggest some difficulty functioning, they may be grounds for 4 discrediting the claimant’s testimony to the extent that they 5 contradict claims of a totally debilitating impairment,” id. 6 (citations omitted), or “suggest” that her “claims about the 7 severity of [her] limitations were exaggerated,” Valentine v. 8 Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). 9 Molina, 674 “Even where those activities As the ALJ noted, Plaintiff’s activities demonstrated that 10 she was “functional.” (AR 22.) She was able to prepare her own 11 meals, make her bed, do dishes, shop online and in-store, and 12 manage her finances. 13 noting that he and Plaintiff cooked, cleaned, took short walks, 14 and watched TV together).) 15 and she went to church on holidays. 16 (AR 237; see AR 47-48.) 17 and, with an extension, completed the program.22 18 She had recently had a baby and cared for her with her family’s 19 “help.” (AR 235-36; see also AR 245 (roommate She had a driver’s license and drove, (AR 36, 236.) She did yoga. She took online courses in nutrition (See AR 37-39.) (AR 35-36; see AR 44 (Plaintiff testifying that her 20 21 22 23 24 25 26 27 28 22 Plaintiff told the agency she enrolled in the nutrition course “to help [herself] eat a more balanced diet” (AR 217), but she told her doctor she was taking classes online “to change the direction of her career” (AR 366). Indeed, Plaintiff appears to have taken online courses — apparently including but not limited to the nutrition class — for at least three years during the alleged disability period. (See, e.g., AR 366 (telling doctor in July 2013 that she was taking online classes), 448 (reporting taking online “college classes” in July 2014), 38 (Plaintiff testifying that she finished two-year online nutrition class about a year before baby was born, which was March 2017).) Plaintiff told the ALJ that the only class she had taken after graduating college was the nutrition course. (AR 37.) 32 1 parents helped her feed baby “at night,” bathe her, and walk with 2 her), 53-54 (testifying that she sometimes fed and read to baby 3 by herself).) 4 suggested some ability to work and were inconsistent with 5 Plaintiff’s claims of extreme fatigue. 6 400 F.3d 676, 680 (9th Cir. 2005) (ALJ properly discounted 7 plaintiff’s credibility when her activities “suggest[ed] that she 8 is quite functional” because she was “able to care for her own 9 personal needs, cook, clean and shop,” “interact[] with her The ALJ properly concluded that these activities See Burch v. Barnhart, 10 nephew and her boyfriend,” and “manage her own finances”); 11 Fleming v. Astrue, 274 F. App’x 571, 572 (9th Cir. 2008) (ALJ 12 properly discounted plaintiff’s claims concerning effects of her 13 CFS given her daily activities, which included gardening and 14 bicycling). 15 Plaintiff complains that the ALJ “omit[ted] important 16 qualifiers and information” about her ability to complete these 17 tasks on a regular basis. 18 (challenging ALJ’s characterization of her testimony).) 19 alleged that her “[b]ody aches and pains” limited her ability to 20 work (AR 216), and she completed a pain questionnaire alleging 21 specific pain-related limitations (see AR 227).23 22 she stated that she couldn’t sit for 20 to 30 minutes without 23 back pain. (AR 228.) (J. Stip. at 16; see also id. at 3-4 She For instance, But she was able to take a Greyhound bus 24 25 26 27 28 23 Plaintiff suggests that her primary or even sole “disabling allegation [was] fatigue and fatigability.” (J. Stip. at 16.) But as discussed, in addition to her fatigue and fatigue-derived symptoms, she also alleged, for example, “[s]evere PMS,” anxiety, “[s]ensitivity to medication/chemicals,” acne, and “[h]eadaches and [m]igraines.” (AR 216.) 33 1 from Los Angeles to Sacramento for her hearing (AR 36), as the 2 ALJ specifically noted (AR 23). 3 relied on the inconsistency of her stating that she could lift 4 “maybe” five pounds because of her “back pain” (AR 51-53; see 5 also AR 237) but when questioned admitting that she could lift 6 her 15-pound baby (AR 52-53 (“I can lift the baby weight for 7 sure”; “I want to say she’s 15 [pounds]”)). 8 Comm’r of Soc. Sec., 352 F. App’x 173, 177 (9th Cir. 2009) 9 (holding that ALJ did not err in discounting plaintiff’s Similarly, the ALJ properly See DeBerry v. 10 testimony concerning her CFS based on inconsistencies between her 11 claimed functional limitations and what she told nurse about 12 them); Fleming, 274 F. App’x at 572 (ALJ properly discounted 13 plaintiff’s claims about fatigue based in part on 14 “inconsistenc[i]es regarding complaints of discomfort when 15 undergoing an abdominal exam”). 16 Although Plaintiff disputes the ALJ’s characterization of 17 her testimony, her qualifier that she “wouldn’t carry her [baby] 18 around for too long” (J. Stip. at 16 (citing AR 53)) doesn’t 19 undermine his observation that she “provided inconsistent 20 information regarding how much she can lift” (AR 23). 21 properly concluded that the inconsistencies not only undermined 22 her allegations about her exertional limitations (see id.) but 23 suggested that she was exaggerating her symptoms, including her 24 fatigue (see AR 22 (finding Plaintiff’s “general allegations of 25 disability” “inconsistent with” her daily activities)). 26 entitled to so infer. 27 properly discounted plaintiff’s testimony when inconsistency 28 “suggest[ed] that [his] later claims about the severity of his The ALJ He was See Valentine, 574 F.3d at 693 (ALJ 34 1 limitations were exaggerated”); Rounds, 807 F.3d at 1006 (in 2 assessing whether to credit plaintiff’s subjective symptom 3 testimony, court can consider other inconsistent statements). 4 Similarly, Plaintiff asserts that the ALJ did not “expressly 5 or visibly account for fatigue, never mention[ed] SSR 14-1p,” and 6 showed “no signs of comprehending CFS.” 7 But the ALJ mentioned Plaintiff’s fatigue more than 20 times 8 during his RFC discussion (see AR 19-23), and during the hearing 9 he repeatedly asked her about it (see, e.g., AR 43 (“I know you 10 were having Chronic Fatigue and other related symptoms prior to 11 your pregnancy and childbirth.”)) and any treatments she had 12 tried or medications she was taking for it (see, e.g., AR 45 13 (“What do you still do to try to address [chronic fatigue] 14 symptoms?”), 46 (“[I]s there any medication that you currently 15 take for [chronic fatigue]?”)). 16 her allegations of fatigue, he partially credited them (see AR 23 17 (finding her allegations “partially consistent and supported by 18 her diligence in seeking care for her . . . fatigue syndrome”)), 19 assessing limitations in excess of those found by any credited 20 doctor. 21 DeBerry, 352 F. App’x at 176 (declining to consider argument that 22 ALJ “failed to properly apply” SSR concerning CFS because 23 plaintiff did “not argue the contention with any specificity”). 24 Substantial evidence supported each of the reasons the ALJ (J. Stip. at 15 n.6.) Not only did he fully consider Thus, Plaintiff’s assertion is without merit. See also 25 gave to discount Plaintiff’s subjective symptom testimony. 26 Remand is not warranted on this basis. 27 28 35 1 2. Any error in discounting the third-party statement 2 was harmless 3 a. 4 Applicable Law “In determining whether a claimant is disabled, an ALJ must 5 consider lay witness testimony concerning a claimant’s ability to 6 work.” 7 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 8 (9th Cir. 2006)). 9 “cannot be disregarded without comment.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) Such testimony is competent evidence and Bruce, 557 F.3d at 1115 10 (emphasis in original) (citing Nguyen v. Chater, 100 F.3d 1462, 11 1467 (9th Cir. 1996)); Robbins, 466 F.3d at 885 (“[T]he ALJ is 12 required to account for all lay witness testimony in the 13 discussion of his or her findings.” (citation omitted)). 14 rejecting the statements of a lay witness, an ALJ must give 15 specific reasons germane to that witness. 16 874 F.3d 634, 640 (9th Cir. 2017); Bruce, 557 F.3d at 1115. 17 When Diedrich v. Berryhill, If an ALJ errs by providing reasons that are not germane, 18 the error may be harmless. 19 error is harmless if it is “‘inconsequential to the ultimate 20 nondisability determination’ in the context of the record as a 21 whole,” Molina, 674 F.3d at 1122 (citations omitted); see also 22 Tommasetti, 533 F.3d at 1038, such as when “the same evidence 23 that the ALJ referred to in discrediting [the claimant’s] claims 24 also discredits [the lay witness’s] claims,” Molina, 674 F.3d at 25 1122 (alterations in original) (citing Buckner v. Astrue, 646 26 F.3d 549, 560 (8th Cir. 2011)). See Valentine, 574 F.3d at 694. 27 28 36 An 1 2 b. Analysis As noted, Plaintiff’s friend Frolov completed a third-party 3 function report in which he stated that Plaintiff had severe 4 limitations as a result of her fatigue. 5 Although the ALJ did not assign weight to Frolov’s statement, he 6 implicitly rejected it by noting that “the medical evidence [did] 7 not support” it. 8 747, 755 (9th Cir. 1989) (court may draw “specific and legitimate 9 inferences from the ALJ’s opinion”). 10 (See AR 245-52.) (AR 24); see also Magallanes v. Bowen, 881 F.2d The Ninth Circuit has held that lack of support from medical 11 evidence is not a germane reason for discounting lay 12 observations, at least in some cases. 13 640 (noting that lay observations “may offer a different 14 perspective than medical records alone,” which “is precisely why 15 such evidence is valuable at a hearing”). 16 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (inconsistency with 17 medical evidence can be germane reason for reecting testimony of 18 “friends and family”). 19 have erred by rejecting Frolov’s observations on this ground. 20 Any error was harmless, however.24 21 22 See Diedrich, 874 F.3d at But see Bayliss v. Thus, as a matter of law, the ALJ may As discussed, the ALJ provided clear and convincing reasons for partially discounting Plaintiff’s own testimony, thereby 23 24 25 26 27 28 24 Plaintiff includes a number of undeveloped arguments about the sufficiency of the ALJ’s analysis of Frolov’s statement. (See, e.g., J. Stip. at 17 (complaining that ALJ’s stated reason was “casual” and “unexplained”); id. (suggesting that ALJ’s analysis was inconsistent with SSR 14-1p).) Because the Court finds that the ALJ likely failed to provide a valid reason for discounting Frolov’s statement but that any error was harmless, it does not address those arguments. 37 1 establishing a sufficient basis for rejecting the friend’s 2 similar statements. 3 although ALJ improperly discounted claimant’s wife’s testimony in 4 part because she was “an interested party,” any error was 5 harmless because ALJ gave clear and convincing reasons for 6 rejecting claimant’s “similar” subjective complaints); Molina, 7 674 F.3d at 1122 (holding that ALJ’s error in rejecting lay 8 witnesses’ testimony was “harmless” because “ALJ had validly 9 rejected all the limitations described by the lay witnesses in 10 See Valentine, 574 F.3d at 694 (finding that discussing [claimant’s] testimony”). Indeed, Frolov’s function report was quite consistent with 11 12 Plaintiff’s. 13 difficulty lifting, walking, stair climbing, standing, talking, 14 “[c]ompleting [t]asks,” and concentrating. 15 reported the same, plus problems sitting and with “memory.” 16 238.) 17 morning (see AR 246, (Frolov), 234 (Plaintiff)) and that stress 18 was a problem for her (AR 251 (Frolov), 239 (Plaintiff)). 19 Notably, both Plaintiff and Frolov agreed that her condition had 20 existed for the “past 3 years.” 21 AR 233 (Plaintiff).) 22 parrots Plaintiff. 23 doesn’t get enough rest at night time.”).) 24 For example, he indicated that Plaintiff had (AR 250.) Plaintiff (AR Similarly, both said she had difficulty getting up in the (Compare AR 245 (Frolov), with And one of Frolov’s responses simply (See AR 246 (“She always complains she Thus, because the ALJ provided sufficient reasons to 25 discount Plaintiff’s similar testimony, any error by him in 26 rejecting Frolov’s statements was harmless and remand is not 27 warranted on this ground. See Molina, 674 F.3d at 1122. 28 38 1 3. 2 3 The ALJ permissibly discounted the treating-source opinions Plaintiff contends that the ALJ’s weighing of the opinion 4 evidence “requires reversal.” 5 she argues that the ALJ improperly rejected the opinions of Dr. 6 Goshike and Chang, her acupuncturist (id.), both of whom 7 completed CFS-specific forms indicating that Plaintiff had 8 extreme limitations (see AR 454-57, 471-74).25 9 discussed below, remand is not warranted. a. 10 11 (J. Stip. at 8.) Specifically, For the reasons Applicable Law Three types of physicians may offer opinions in Social 12 Security cases: those who directly treated the plaintiff, those 13 who examined but did not treat the plaintiff, and those who did 14 neither. 15 opinion is generally entitled to more weight than an examining 16 physician’s, and an examining physician’s opinion is generally 17 entitled to more weight than a nonexamining physician’s. 18 see § 404.1527(c)(1)-(2).26 See Lester, 81 F.3d at 830. A treating physician’s Id.; This is so because treating 19 20 21 22 23 24 25 26 27 28 25 The two forms were filled out essentially identically, with even the same portions of the form left blank. (See AR 456 & 473 (leaving blank questions pertaining to manipulative restrictions).) 26 For claims filed on or after March 27, 2017, the rules in § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” § 404.1520c(a). Thus, the new regulations eliminate the term “treating source” as well as what (continued...) 39 1 physicians are employed to cure and have a greater opportunity to 2 know and observe the claimant. 3 1285 (9th Cir. 1996). 4 nonexamining physician can amount to substantial evidence, so 5 long as other evidence in the record supports those findings.” 6 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 7 (as amended). But even “the findings of a nontreating, The ALJ may discount a physician’s opinion regardless of 8 9 Smolen v. Chater, 80 F.3d 1273, whether it is contradicted. Magallanes, 881 F.2d at 751; see 10 also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 11 (9th Cir. 2008). 12 other medical-opinion evidence, however, it may be rejected only 13 for a “clear and convincing” reason. 14 (citations omitted); Carmickle, 533 F.3d at 1164 (citing Lester, 15 81 F.3d at 830-31). 16 provide only a “specific and legitimate” reason for discounting 17 it. Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830- 18 31). The weight given a doctor’s opinion, moreover, depends on 19 whether it is consistent with the record and accompanied by 20 adequate explanation, among other things. 21 also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors in 22 assessing physician’s opinion include length of treatment 23 relationship, frequency of examination, and nature and extent of 24 treatment relationship). When a doctor’s opinion is not contradicted by Magallanes, 881 F.2d at 751 When it is contradicted, the ALJ need See § 404.1527(c); see 25 26 27 28 26 (...continued) is customarily known as the treating-source or treating-physician rule. See § 404.1520c. Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it under the treatingsource rule in § 404.1527. 40 1 “Medical opinions” are statements from “acceptable medical 2 sources,” § 404.1527(a)(1), and “[o]nly physicians and certain 3 other qualified specialists are considered ‘[a]cceptable medical 4 sources,’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) 5 (quoting Molina, 674 F.3d at 1111); § 404.1502(a); see also 6 § 404.1513(a). 7 source, see Wennet v. Saul, 777 F. App’x 875, 878 (9th Cir. 2019) 8 (citing § 404.1502(a)), and whether an acupuncturist is a 9 “medical source” at all turns on whether he is a licensed health- 10 care worker, see §§ 404.1502(a) & (d), 404.1527(a). b. 11 12 An acupuncturist is not an acceptable medical The ALJ’s Decision The ALJ gave “great weight” to the opinions of consulting 13 doctors Fuchs and Liddell and initial reviewing doctors Amon and 14 Harris because their opinions were consistent with each other and 15 with “the medical record as a whole.” (AR 24.) 16 The ALJ gave Dr. Goshike’s opinion “little weight” because 17 it was, when it was rendered, the product of a “short treatment 18 relationship.” 19 all on symptoms or severity.” (AR 24.) Moreover, it was “not descriptive at (Id.) 20 The ALJ gave Chang’s opinion “[l]ittle weight,” in part 21 because the acupuncturist was “not an acceptable medical source.” 22 (AR 22; see AR 24.) 23 “[n]o objective evidence” (AR 22) — inconsistent “with the record 24 as a whole and not supported with relevant evidence.” 25 Moreover, it “appear[ed] to be a reflection of the claimant’s own 26 self reported subjective complaints.” 27 that Chang “relied heavily” on Plaintiff’s “subjective report of 28 symptoms and limitations”).) He also found the opinion — which cited 41 (AR 24.) (AR 22; see AR 24 (noting 1 c. Analysis 2 i. 3 Dr. Goshike Because Dr. Goshike’s opinion was inconsistent with the 4 opinions of the consulting examiners and state-agency reviewing 5 doctors, the ALJ needed to provide only a “specific and 6 legitimate reason” for discounting it, Carmickle, 533 F.3d at 7 1164 (citation omitted), and he did so. To start, the ALJ properly discounted Dr. Goshike’s opinion 8 9 based on her “short treatment relationship” with Plaintiff. (AR 10 24.) She is correct that a treating doctor’s opinion should be 11 given “more weight” as a “general rule.” 12 Lester, 81 F.3d at 830).) 13 “are likely to be the medical professionals most able to provide 14 a detailed, longitudinal picture of [a claimant’s] medical 15 impairment(s)” and therefore “bring a unique perspective to the 16 medical evidence that cannot be obtained from the objective 17 medical findings alone or from . . . consultative examinations.” 18 § 404.1527(c)(2). 19 when the doctor has seen the claimant “long enough to have 20 obtained a longitudinal picture of [her] impairment.” 21 § 404.1527(c)(2)(i). 22 “treating” source, she had seen Plaintiff only “for the last 23 month” (AR 454). 24 during their third appointment, on November 10, 2015. 25 403, 454-57.) 26 fatigue (see AR 338 (Sept. 18, 2015 treatment notes for “chronic 27 fatigue”)); the other was for a “well woman” exam (AR 337 (Oct. 28 2, 2015 treatment notes)). (J. Stip. at 8 (quoting But that’s because treating doctors Consequently, the “general rule” applies only Although Dr. Goshike was nominally a Indeed, she filled out her disability form (See AR Only one of the previous appointments concerned Nonetheless, Dr. Goshike opined that 42 1 Plaintiff’s fatigue had been “persistent” for three years and 2 that she had symptoms that “persisted or recurred during six or 3 more consecutive months.” 4 that this opinion was based on Dr. Goshike’s review of 5 Plaintiff’s records (J. Stip. at 8-9), nothing in the record so 6 indicates. 7 what Plaintiff told her. 8 “symptoms and limitations” described had lasted for three years 9 “according to patient.” (AR 454.) Although Plaintiff contends It is just as likely that the doctor simply wrote Indeed, at one point she wrote that the (AR 457.) The ALJ was not required to 10 give Dr. Goshike’s opinion more weight just because she had seen 11 Plaintiff twice before completing her disability forms. 12 e.g., Quezada v. Berryhill, No. EDCV 16-1013-KS, 2017 WL 2312353, 13 at *5 (C.D. Cal. May 26, 2017) (“short treatment relationship” 14 with plaintiff was “specific and legitimate” reason to discount 15 treating-source opinion).27 16 See, The ALJ’s conclusion that Dr. Goshike’s CFS-specific form 17 opinion was “not descriptive at all on symptoms or severity” was 18 also sound. (AR 24.) An ALJ “need not accept the opinion of any 19 20 21 22 23 24 25 26 27 28 27 Even if Dr. Goshike’s notation that Plaintiff had been “with the Clinic since 6/2013” indicated that the doctor had reviewed her records, as she claims (J. Stip. at 8-9), it does not undermine the ALJ’s observation that their relationship was a “short” one (AR 24). Indeed, reviewing the records would not have put Dr. Goshike in a better position to opine about Plaintiff’s limitations than, for instance, the consulting and reviewing doctors who reviewed the same records. (AR 90, 110, 461, 467); see DeBerry, 352 F. App’x at 176-77 (upholding ALJ’s discounting of treating doctor’s opinion concerning history of plaintiff’s CFS because “she ha[d] no personal knowledge of [plaintiff’s] condition” before treatment began and her perspective based on “retrospective review of the medical records” “was . . . no different” from nontreating doctors); § 404.1527(c)(2)(i). 43 1 physician, including a treating physician, if that opinion is 2 brief, conclusory, and inadequately supported by clinical 3 findings.” 4 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 5 Cir. 2004); see also Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 6 2020) (“An ALJ is not required to take medical opinions at face 7 value, but may take into account the quality of the explanation 8 when determining how much weight to give a medical opinion.”). 9 Thomas, 278 F.3d at 957 (citation omitted); see Although Dr. Goshike checked off “symptoms” from a form, she 10 did not indicate the duration, frequency, or severity of any of 11 them. 12 side effects” from medication but nowhere indicated what they 13 were or whether they were severe enough to justify her aversion 14 to them. 15 contribute[d] to” her symptoms but did not identify what those 16 factors were or how they contributed to her fatigue. 17 she listed that she was “sensitive to humidity, noise, strong 18 odors, chemicals, and if it is too hot or cold” but did not opine 19 as to the cause or severity of those sensitivities. 20 And contrary to Plaintiff’s contention (J. Stip. at 9-10), Dr. 21 Goshike’s treatment notes are equally vague. 22 (Plaintiff presents with “muscle pain”), 405 (diagnosing 23 Plaintiff with “Other fatigue (R53.83)”)). 24 mention Plaintiff’s purported sensitivities to, for example, 25 noise and odors at all. (AR 455.) (Id.) For instance, she noted that Plaintiff “ha[d] Similarly, she checked that “emotional factors (Id.) (AR 457.) (See, e.g., AR 403 Notably, they don’t (See AR 334-40, 403-05).28 The ALJ 26 27 28 28 Nor do any other treatment records, from Plaintiff’s primary-care clinic or elsewhere. 44 And 1 properly noted the conclusory and unsupported nature of Dr. 2 Goshike’s opinion and appropriately discounted it accordingly. 3 See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ 4 properly rejected doctor’s opinion because check-off reports did 5 not contain any explanation of bases for their conclusions). 6 The ALJ properly discounted Dr. Goshike’s form opinion. ii. 7 8 9 James Chang Initially, Chang is not an “acceptable medical source,” as the ALJ noted (AR 22, 24) and as Plaintiff apparently concedes 10 (see J. Stip. at 10 (contending that Chang was “medical source” 11 but not “acceptable medical source”)). 12 at 878 (acupuncturist not “[a]cceptable medical source” (citing 13 § 404.1502(a))).29 14 valid reason to discount his opinion, see Haagenson v. Colvin, 15 656 F. App’x 800, 802 (9th Cir. 2016), because Chang’s was not a 16 “medical opinion” under §§ 404.1527(a)(1) and 404.1513(a)(2), the 17 ALJ needed to give only a “germane” reason to discount it, 18 Ghanim, 763 F.3d at 1161; see also Greger v. Barnhart, 464 F.3d 19 968, 972 (9th Cir. 2006) (ALJ must take into account lay 20 testimony but may discount that testimony by providing reasons See Wennet, 777 F. App’x Although that may not itself have been a 21 22 23 24 25 26 27 28 29 Defendant states that whether Chang is “licensed as a healthcare worker by the state,” and therefore whether he is a “medical source” under § 404.1502(d), is “unclear.” (J. Stip. at 39 n.3.) Chang is licensed, however. (See AR 531 (“L.Ac.” in Chang’s signature)); see also Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for license number 5606 under acupuncturists’ licenses) (last visited May 7, 2020). But the distinction is of little significance given that “[o]pinions from medical sources who are not acceptable medical sources and from nonmedical sources” are evaluated identically. § 404.1527(f). 45 1 germane to that witness), and he did so. See Hayes v. Berryhill, 2 721 F. App’x 648, 651 (9th Cir. 2018) (ALJ “erred by discounting 3 vocational counselor[’s] . . . lay opinion because he [was] not 4 an ‘acceptable medical source,’” but any error was harmless 5 because “ALJ properly discounted [his] opinion for two other 6 germane reasons”). The ALJ properly discounted Chang’s opinion as premised 7 8 primarily on Plaintiff’s self-reported complaints. 9 24.) (See AR 22, Indeed, some of Chang’s opinions explicitly incorporated 10 Plaintiff’s subjective complaints. 11 suffered from “self-reported impairment in short-term memory”).) 12 Others can only be explained as regurgitations of them. 13 e.g., AR 471 (Plaintiff “spent most of her day in bed”), 472 14 (Plaintiff experienced “[u]nrefreshing sleep” and “[p]ost- 15 exertional malaise lasting more than 24 hours”).) 16 stated that she had been “incapacitated since 2012” even though 17 he had treated her only for five months beginning in November 18 2013. 19 Plaintiff’s subjective symptoms, as discussed, he was entitled to 20 discount Chang’s opinion stemming from them. 21 Saul, Comm’r of Soc. Sec., No. 2:19-cv-00253-MKD, 2020 WL 22 1433580, at *12 (E.D. Wash. Mar. 23, 2020) (that mental-health 23 counselor’s opinion “relied on [p]laintiff’s discredited symptom 24 complaints in assessing serious limitations” was “germane reason 25 for discounting” it); see also Tommasetti, 533 F.3d at 1041 (ALJ 26 may reject treating physician’s opinion “based ‘to a large 27 extent’ on a claimant’s self-reports that have been properly 28 discounted as incredible” (citation omitted)). (AR 471.) (See, e.g., AR 472 (Plaintiff (See, Moreover, he Because the ALJ had already properly discounted 46 See Vanessa P. v. 1 Moreover, the opinion cited no objective evidence, as the 2 ALJ noted. (AR 22.) Plaintiff does not dispute that but instead 3 points to certain notations in Chang’s treatment notes — which, 4 she concedes, “rarely included an ‘[o]bjective’ entry” (J. Stip. 5 at 11) — that she contends constituted “objective” evidence to 6 support Chang’s CFS form opinion (id.), including the following, 7 from his November 5, 2013 intake notes: 8 Pulse: deep, thin, weak Tongue: teethmarks, pale, thin, 9 coating is medium white. Bad breath. 10 (AR 531.) The regulations define “[o]bjective medical evidence” 11 to mean “laboratory findings” and observable “anatomical, 12 physiological, or psychological abnormalities” shown by 13 “medically acceptable clinical diagnostic techniques.” 14 § 404.1502(f) & (g). 15 described observable conditions, nothing indicates that they were 16 obtained through medically acceptable clinical diagnostic 17 techniques.30 18 objective evidence supported Chang’s opinion, and he properly 19 discounted it accordingly. 20 13-cv-05844 JRC., 2014 WL 3511124, at *6 (W.D. Wash. July 14, 21 2014) (that lay opinion “contain[ed] few objective findings in Although Chang’s notations arguably The ALJ thus reasonably concluded that no See Haberman v. Colvin, No. 22 23 24 25 26 27 28 30 Plaintiff suggests that the ALJ discounted Chang’s opinion because it was based on “traditional-Chinese” medicine but concedes that the “regulations don’t address [the] issue.” (J. Stip. at 12; see id. (“[C]ould the decision mean that Chang’s citations to Chinese medical principles are inconsistent with the allopathic orientation of the record’s remainder?”).) The ALJ did not discount the opinion on that basis, however; he discounted it because it did not contain objective findings. That, as noted, is squarely addressed by the regulations. See § 404.1527(c)(3). 47 1 support of the degree of limitation opined” was “germane” reason 2 to reject it); § 404.1527(c)(3) (ALJ may consider extent to which 3 medical source “presents relevant evidence to support” opinion, 4 “particularly medical signs and laboratory findings”); see also 5 Orn, 495 F.3d at 634 (greater weight given opinion containing 6 “results from medical tests and laboratory findings”). 7 The ALJ also properly concluded that Chang’s opinion was 8 inconsistent with the medical record (see AR 24 (ALJ finding 9 Chang’s opinion inconsistent “with the record as a whole and not 10 supported with relevant evidence”)), which is a valid reason to 11 discount a medical source’s opinion. 12 734 F. App’x 489, 490 (9th Cir. 2018) (holding that ALJ did not 13 err in rejecting physical therapist’s opinion concerning 14 plaintiff’s CFS because it conflicted with opinions of 15 “acceptable medical sources” and record as a whole); Vanessa P., 16 2020 WL 1433580, at *13 (inconsistency with “record as a whole” 17 was “germane” reason to discount counselor’s opinion); see also 18 Orn, 495 F.3d at 631 (“consistency of . . . opinion with the 19 record as a whole” is relevant factor in evaluating medical 20 opinion). 21 opinions of the consulting and reviewing doctors, all of whom 22 opined that Plaintiff had less than marked limitation (see AR 90, 23 110, 461, 467). 24 “great weight” (AR 24), he was entitled to discount Chang’s 25 inconsistent opinion accordingly. 26 See Roberts v. Berryhill, As noted, the opinion was directly contradicted by the Because the ALJ properly gave those opinions The ALJ gave valid reasons for discounting the opinions of 27 Plaintiff’s treating sources. 28 basis. Remand is not warranted on this 48 1 2 4. The ALJ’s RFC explanation was adequate Plaintiff asserts that the ALJ’s “RFC explanation is 3 legally” inadequate. 4 that “the decision simply gives no explanation” for its 5 conclusions, appears to rest on Social Security Ruling 96-8p, 6 1996 WL 374184 (July 2, 1996). 7 That argument is without merit. 8 9 (J. Stip. at 4.) Her primary argument, (J. Stip. at 5; see id. at 4-7.) “Although the ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for [a reviewing court] to 10 meaningfully determine whether the ALJ’s conclusions were 11 supported by substantial evidence.” 12 (citation omitted); see also Alaska Dep’t of Envtl. Conservation 13 v. E.P.A., 540 U.S. 461, 497 (2004) (“Even when an agency 14 explains its decision with ‘less than ideal clarity,’ a reviewing 15 court will not upset the decision on that account ‘if the 16 agency’s path may reasonably be discerned.’” (quoting Bowman 17 Transp., Inc. v. Arkansas—Best Freight Sys., Inc., 419 U.S. 281, 18 286 (1974))). 19 Treichler, 775 F.3d at 1103 Social Security Ruling 96-8p provides that the ALJ’s RFC 20 assessment must include a “narrative discussion” describing how 21 the evidence supports his conclusions, with citation to 22 “specific” medical facts and nonmedical evidence. 23 1996 WL 374184, at *7. 24 inconsistencies or ambiguities in the evidence” and explain how 25 he “considered and resolved” them. 26 claimant’s subjective symptoms, moreover, must “[c]ontain a 27 thorough discussion and analysis of the objective medical and 28 other evidence, including the individual’s complaints of pain and SSR 96-8p, The ALJ must identify any “material 49 Id. Any discussion of a 1 other symptoms,” “[i]nclude a resolution of any inconsistencies 2 in the evidence as a whole,” and “[s]et forth a logical 3 explanation of the effects of the symptoms, including pain, on 4 the individual’s ability to work.” Id. 5 Initially, the ALJ’s decision includes more than five pages 6 of discussion concerning his RFC determination that complies, on 7 its face, with SSR 96-8p’s requirements. 8 holistic discussion of the medical and nonmedical evidence has 9 citations to specific facts, including conflicting ones. (See AR 19-24.) Its (See 10 generally id.) 11 subjective allegations, with a detailed analysis explaining why 12 they should be partially discounted. 13 the Court found the decision more than sufficient to facilitate 14 review. 15 of explication requirement is to enable judicial review of 16 administrative decisions). 17 And it includes a complete summary of Plaintiff’s (See AR 20-23.) Indeed, See Treichler, 775 F.3d at 1103 (indicating that purpose Plaintiff argues that the ALJ’s ultimate RFC determination 18 was not entirely consistent with any particular doctor’s opinion, 19 especially given that he gave all the consulting and reviewing 20 doctors’ opinions “great weight” even though they were not 21 completely consistent with each other. 22 (complaining that “equally credited [medical] sources differ from 23 each other and from the decision”).) 24 administrative determination, not a medical one, and the ALJ was 25 not required to adopt any specific medical source’s RFC opinion 26 as his own. 27 Cir. 2001) (“It is clear that it is the responsibility of the 28 ALJ, not the claimant’s physician, to determine residual (See J. Stip. at 6 But RFC is an See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 50 1 functional capacity.”); § 404.1546(c) (“[T]he administrative law 2 judge . . . is responsible for assessing your residual functional 3 capacity.”). 4 be somewhat more severe than did the examining and reviewing 5 doctors — the “equally credited sources” (J. Stip. at 6). 6 even if the ALJ failed to explain any inconsistencies among those 7 sources’ opinions, any error was harmless. 8 at 1055 (nonprejudicial or irrelevant mistakes are harmless). 9 Plaintiff’s suggestion that she was prejudiced because “there Moreover, the ALJ found Plaintiff’s limitations to So See Stout, 454 F.3d 10 were more limiting RFC opinions” (J. Stip. at 7) is a red 11 herring. 12 opinions because they were, as discussed, properly discounted. 13 Moreover, the purported error at issue here concerns the ALJ’s 14 handling only of the consulting and reviewing doctors’ opinions, 15 and none of those opinions support her allegations of disability. 16 Initially, she cannot rely on Dr. Goshike’s or Chang’s Plaintiff also complains that the ALJ did not assign weight 17 to the state-agency reconsideration doctors. 18 ALJ indeed failed to assign weight to those opinions, and he 19 erred in so doing. 20 “must always consider and address medical source opinions”; if 21 his assessment conflicts with an opinion, he must “explain” the 22 departure); § 404.1527(c). 23 opinions were based on the same evidence as the initial doctors’ 24 opinions and were identical to them. 25 initial opinions great weight. 26 was plainly harmless. 27 KJN., 2012 WL 4364278, at *10 (E.D. Cal. Sept. 21, 2012) (finding 28 ALJ’s failure to assign weight to reviewing reconsideration (Id. at 6.) The See SSR 96-8p, 1996 WL 374184, at *7 (ALJ But the reconsideration doctors’ As noted, the ALJ gave the (See AR 24.) The error, thus, See Ushakova v. Astrue, No. 2:11-cv-01920 51 1 doctor harmless because doctor rendered same functional 2 assessment as initial doctor, and his assessment was based on 3 review of same clinical findings). 4 Plaintiff argues that the ALJ’s reasons for discounting her 5 subjective symptom testimony “do not serve as reviewable 6 explanations of the RFC elements of light capacity (the 7 individual components of which SSR 96-8p says must first be 8 explained before deploying this umbrella-term).” 9 (emphasis in original).) (J. Stip. at 5 Although her exact argument is 10 difficult to discern, to the extent she argues that the ALJ erred 11 by not describing her RFC on a function-by-function basis, the 12 argument fails. Social Security Ruling 96-8p provides that 13 [t]he [ALJ’s] RFC assessment must first identify the 14 [claimant’s] functional limitations or restrictions and 15 assess 16 function-by-function basis . . . . 17 RFC be expressed in terms of the exertional levels of 18 work, sedentary, light, medium, heavy, and very heavy. his or her work-related abilities on a Only after that may 19 SSR 96-8p, 1996 WL 374184, at *1. 20 Plaintiff could “perform light work as defined in 20 CFR 21 404.1567(b)” with some additional limitations, which he 22 specifically outlined. 23 “light work” on a function-by-function basis, see § 404.1567(b), 24 and because the ALJ incorporated that definition into his RFC 25 (see AR 19), he necessarily complied with SSR 96-8p’s function- 26 by-function requirement. 27 App’x 626, 627 (9th Cir. 2011) (“[I]n accordance with Social 28 Security Ruling 96-8p, the ALJ defined [plaintiff’s] RFC as (AR 19.) As noted, the ALJ found that Because the regulations define See Buckner-Larkin v. Astrue, 450 F. 52 1 ‘sedentary,’ . . . which includes well-defined function-by- 2 function parameters.” (citation omitted)).31 3 Finally, Plaintiff speculates that the ALJ based his finding 4 that she could “adapt to occasional workplace changes” (AR 19) on 5 Dr. Liddell’s opinion that she was “moderately impaired” in her 6 ability to deal with workplace changes (AR 467). 7 at 7.) 8 same thing” and that the ALJ’s purported translation of one into 9 the other was therefore error. (See J. Stip. She argues that “moderate” and “occasional” are “not the (Id.) But Plaintiff concedes 10 that “moderate” is not defined by the regulations. (Id.) 11 Moreover, the two findings were made in different contexts: 12 “moderate” as used by Dr. Liddell described the severity of one 13 of Plaintiff’s impairments (see AR 467), whereas “occasional” 14 quantified her workplace abilities (see AR 20). 15 no basis to conclude that the ALJ’s RFC and Dr. Liddell’s opinion 16 were inconsistent, as Plaintiff claims, let alone that the ALJ’s 17 consideration of Dr. Liddell’s finding was unreasonable. 18 contrary, the Ninth Circuit has repeatedly held that a “moderate” 19 limitation in an area like ability to deal with workplace changes 20 translates into the type of RFC the ALJ assessed here. 21 e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 22 2008) (ALJ reasonably translated finding that plaintiff was 23 “moderately limited” in several mental-functioning areas into RFC 24 to perform “simple, routine, repetitive” work); Rogers v. Comm’r Thus, there is To the See, 25 26 27 28 31 Plaintiff’s attorney has raised this argument before, and at least one court has called it “frivolous.” See Rodriguez v. Colvin, No. 2:15-cv-0231-CKD, 2016 WL 258341, at *2 (E.D. Cal. Jan. 21, 2016), aff’d sub nom., Rodriguez v. Berryhill, 709 F. App’x 859 (9th Cir. 2017). 53 1 of Soc. Sec. Admin., 490 F. App’x 15, 17 (9th Cir. 2012) (finding 2 that plaintiff who was “moderately limited” in ability to, among 3 other things, “respond appropriately to changes in the work 4 setting” was properly evaluated in RFC to perform “simple routine 5 tasks” “in unskilled work”). 6 Plaintiff argues in her reply that her “interpretation” of 7 the facts underlying the ALJ’s reasoning — and purported error — 8 is “equally plausible.” 9 true, however, a tie goes to the Commissioner. 10 Even if that were See Reddick, 157 F.3d at 720-21. The ALJ’s RFC explanation was legally adequate, and any 11 12 error was harmless. 13 VI. 14 (J. Stip. at 21.) Remand is not warranted on this basis. CONCLUSION Consistent with the foregoing and under sentence four of 42 15 U.S.C. § 405(g),32 IT IS ORDERED that judgment be entered 16 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 17 request for remand, and DISMISSING this action with prejudice. 18 19 DATED: May 13, 2020 20 ______________________________ JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 32 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 54
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