Teresa Munguia v. Andrew Saul, No. 2:2020cv01212 - Document 22 (C.D. Cal. 2021)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. (es)
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Teresa Munguia v. Andrew Saul Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TERESA M.,1 Plaintiff, 12 v. 13 14 15 KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 Defendant. 16 17 18 I. ) Case No. CV 20-1212-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability insurance 20 (“DIB”) and supplemental security income benefits (“SSI”). 21 matter is before the Court on the parties’ Joint Stipulation, 22 filed November 11, 2020, which the Court has taken under The 23 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. 2 Kilolo Kijakazi, who was appointed acting commissioner on July 9, 2021, is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 submission without oral argument. 2 below, the Commissioner’s decision is affirmed. 3 II. BACKGROUND Plaintiff was born in 1971. 4 For the reasons discussed (Administrative Record (“AR”) 5 154, 158.) 6 as a retail sales clerk and home-care provider. 7 178, 190.) (AR 41, 47-48, On January 19 and October 16, 2018, Plaintiff applied for 8 9 She completed some high school and worked part time DIB and SSI, respectively, alleging that she was unable to work 10 because of a heart condition, “lung problems,” hysterectomy, 11 fibromyalgia, stress, and depression. 12 DIB application alleged that she had been unable to work since 13 April 28, 2017, but the SSI application said January 1 of that 14 year. 15 86, 89-93), she requested a hearing before an Administrative Law 16 Judge (AR 94-95). 17 Plaintiff, who was represented by counsel, testified, as did a 18 vocational expert. 19 September 11, 2019, the ALJ found Plaintiff not disabled. 20 17-31.) 21 denied on December 18, 2019 (AR 1-6). 22 III. STANDARD OF REVIEW 23 (AR 154, 159.) (AR 154, 158, 177.) The After her applications were denied (AR 72- One was held on August 23, 2019, at which (See AR 37-51.) In a written decision issued (AR She sought Appeals Council review (AR 149-52), which was This action followed. Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner’s decision to deny benefits. 25 decision should be upheld if they are free of legal error and 26 supported by substantial evidence based on the record as a whole. 27 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 28 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 2 The ALJ’s findings and Substantial evidence 1 means such evidence as a reasonable person might accept as 2 adequate to support a conclusion. 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 4 is “more than a mere scintilla, but less than a preponderance.” 5 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 7 meaning of ‘substantial’ in other contexts, the threshold for 8 such evidentiary sufficiency is not high.” 9 139 S. Ct. 1148, 1154 (2019). Richardson, 402 U.S. at 401; It “[W]hatever the Biestek v. Berryhill, To determine whether substantial 10 evidence supports a finding, the reviewing court “must review the 11 administrative record as a whole, weighing both the evidence that 12 supports and the evidence that detracts from the Commissioner’s 13 conclusion.” 14 1998). 15 or reversing,” the reviewing court “may not substitute its 16 judgment” for the Commissioner’s. 17 IV. 18 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for Social Security purposes if they 19 can’t engage in any substantial gainful activity owing to a 20 physical or mental impairment that is expected to result in death 21 or has lasted, or is expected to last, for a continuous period of 22 at least 12 months. 23 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 42 U.S.C. § 423(d)(1)(A); Drouin v. 24 A. The Five-Step Evaluation Process 25 An ALJ follows a five-step sequential evaluation process to 26 assess whether someone is disabled. 20 C.F.R. §§ 404.1520(a)(4), 27 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 28 1995) (as amended Apr. 9, 1996). In the first step, the 3 1 Commissioner must determine whether the claimant is currently 2 engaged in substantial gainful activity; if so, the claimant is 3 not disabled and the claim must be denied. 4 416.920(a)(4)(i). §§ 404.1520(a)(4)(i), 5 If the claimant is not engaged in substantial gainful 6 activity, the second step requires the Commissioner to determine 7 whether the claimant has a “severe” impairment or combination of 8 impairments significantly limiting the claimant’s ability to do 9 basic work activities; if not, a finding of not disabled is made 10 and the claim must be denied. 11 416.920(a)(4)(ii) & (c). 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. 19 §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). If the claimant’s impairment or combination of impairments 20 does not meet or equal one in the Listing, the fourth step 21 requires the Commissioner to determine whether the claimant has 22 sufficient residual functional capacity (“RFC”)3 to perform the 23 claimant’s past work; if so, the claimant is not disabled and the 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545(a)(1), 416.945(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 claim must be denied. 2 The claimant has the burden of proving inability to perform past 3 relevant work. 4 that burden, a prima facie case of disability is established. 5 Id. 6 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. If the claimant meets If that happens or if the claimant has no past relevant 7 work, the Commissioner bears the burden of establishing that the 8 claimant is not disabled because the claimant can perform other 9 substantial gainful work available in the national economy, the 10 fifth and final step of the sequential analysis. 11 §§ 404.1520(a)(4)(v), 404.1560(c), 416.920(a)(4)(v), 416.960(c). 12 B. The ALJ’s Application of the Five-Step Process 13 At step one, the ALJ found that Plaintiff had not engaged in 14 substantial gainful activity since April 28, 2017, the alleged 15 DIB-application onset date;4 he found her date last insured to be 16 December 31, 2021. 17 she had severe impairments of fibromyalgia, rheumatoid arthritis, 18 degenerative disc disease of the lumbar spine, asthma, “chest 19 pain syndrome,” obesity, and depression. 20 (AR 19-20.) At step two, he determined that (AR 20.) At step three, he found that Plaintiff’s impairments did not (Id.) At 21 meet or equal any of the impairments in the Listing. 22 step four, he determined that she had the RFC to perform light 23 work with the following limitations: “frequent pushing and 24 pulling with bilateral upper and lower extremities” and “overhead 25 26 27 28 4 The ALJ stated that “[i]n both applications, [Plaintiff] alleged disability beginning April 28, 2017.” (AR 17.) But as previously noted, the SSI application alleged that she became unable to work on January 1, 2017. (AR 154, 159.) 5 1 reaching bilaterally”; “occasional postural activities”; no 2 “climbing ladders, ropes, and scaffolds”; no “concentrated 3 exposure to pulmonary irritants” or “extreme temperatures”; no 4 “work with unprotected heights”; and “limited to non-complex 5 routine tasks.” 6 relevant work (AR 29), but she could work as a merchandise 7 marker, office helper, or information clerk, positions that 8 “exist[ed] in significant numbers in the national economy” (AR 9 30). 10 V. (AR 22.) She could not perform any of her past Accordingly, he found her not disabled. (AR 30-31.) DISCUSSION 11 Plaintiff alleges that the ALJ erred in assessing the 12 medical opinions, evaluating her subjective symptom statements, 13 and finding that she could perform jobs with DOT descriptions 14 that conflicted with the RFC. 15 41, 46-51, 57-59.) 16 not warranted. 17 A. For the reasons discussed below, remand is The ALJ Properly Evaluated the Medical Opinions 1. 18 Relevant background a. 19 20 (See J. Stip. at 5-9, 23-32, 36- Ijeoma Ijeaku On May 12, 2018, consulting psychiatrist Ijeoma Ijeaku 21 conducted a complete psychiatric evaluation of Plaintiff. 22 684-88.) 23 She reported that she had been well until her mother passed away, 24 in fall 2016. 25 psychiatric hospital. 26 prescribed psychotropic medications by her primary-care 27 physician, she had never been evaluated by a psychiatrist or 28 therapist. She complained of depression and fatigue. (Id.) (AR (AR 684.) She had never been admitted to a (Id.) In fact, although she had been (Id.) 6 1 During a mental-status examination, she cooperated and had 2 fair eye contact and normal tone, volume, and rate of speech. 3 (AR 686.) 4 appropriate, there was no psychomotor retardation, and she denied 5 any suicidal or homicidal plans or thoughts. 6 process was goal directed, and she did not exhibit looseness of 7 association, thought disorganization, flight of ideas, thought 8 blocking, tangentiality, or circumstantiality. 9 exhibited no delusions and denied “thought broadcasting” and She reported that her mood was sad, but her affect was (Id.) Her thought (Id.) She 10 “insertion”;5 phobias; obsessions; “derealizations”;6 11 depersonalization;7 and auditory, visual, tactile, or olfactory 12 hallucinations. 13 good. 14 person. 15 five minutes; what she had for breakfast, lunch, and dinner; and 16 her date of birth. (Id.) (Id.) Her concentration was fair and her memory She was alert and oriented to date, place, and (Id.) She was able to recall three of three objects in (Id.) She was able to spell the word “world” 17 18 19 20 21 22 23 24 25 26 27 28 5 Thought broadcasting is the delusion that one’s thoughts are being disseminated for all to hear. Thought Broadcasting, APA Dictionary of Psych., https://dictionary.apa.org/ thought-broadcasting (last visited July 12, 2021). Thought insertion is a delusion that thoughts ascribed to outside sources have been forced into one’s mind. Thought Insertion, APA Dictionary of Psych., https://dictionary.apa.org/ thought-insertion (last visited July 12, 2021). 6 Derealization is feeling detached from one’s surroundings. Derealization Explained, WebMD, https://www.webmd.com/ mental-health/mental-derealization-overview (last visited July 12, 2021). 7 Depersonalization is feeling disconnected or detached from one’s body and thoughts. Mental Health and Depersonalization Disorder, WebMD, https://www.webmd.com/mental-health/ depersonalization-disorder-mental-health (last visited July 12, 2021). 7 1 forward and backward, but she was unable to perform serial sevens 2 or threes. 3 and her judgment were fair. 4 “dependent disorder,” not otherwise specified, and was assigned a 5 GAF score of 58.8 6 (Id.) Her interpretation of proverbs, her insight, (Id.) She was diagnosed with (AR 686-87.) Dr. Ijeaku opined that Plaintiff was mildly limited in the 7 ability to understand, remember, and carry out simple 8 instructions. 9 ability to understand, remember, and carry out complex (AR 687.) She was moderately limited in the 10 instructions; maintain concentration, “attendance,”9 and 11 persistence; perform activities within a schedule and maintain 12 regular attendance; complete a normal workday or workweek without 13 interruption from psychiatric symptoms; and respond appropriately 14 to changes in a work setting. (Id.) 15 16 17 18 19 20 21 22 23 24 25 26 8 GAF scores assess a person’s overall psychological functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). A GAF score between 51 and 60 describes “moderate symptoms” or any moderate difficulty in social, occupational, or school functioning. Garrison v. Colvin, 759 F.3d 995, 1023 n.4 (9th Cir. 2014). The Commissioner has declined to endorse GAF scores, see Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score “does not have a direct correlation to the severity requirements in our mental disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice, see DSMV 16 (5th ed. 2013). Because GAF scores continue to be included in claimant medical records, however, the Social Security Administration has clarified that they are medical opinion evidence if they come from an acceptable medical source. Wellington v. Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017). 27 9 28 As discussed later, this was most likely a scrivener’s error and was meant to read “attention.” 8 1 2 b. Arthur Lewy Psychologist Arthur Lewy reviewed portions of Plaintiff’s 3 medical records on initial determination. (AR 53-62.) He 4 observed that although she received medication therapy for 5 depression, she had “no acute mental complaints.” 6 did her treating source have any “psych[iatric] concerns.” 7 The “available observations [were] benign,” “most limitations 8 appear[ed] due to physical ailments,” she claimed to pay good 9 attention, she was “independent in her” activities of daily (AR 62.) Nor (Id.) 10 living, she had “positive relations with family,” and her “social 11 skills with medical encounters [were] intact.” 12 observed on one occasion to be “off topic,” but she “managed [her 13 face-to-face] interview . . . without difficulties,” and a prior 14 neurological consultative examination noted “no concerns about 15 cognition.” 16 Ijeaku’s findings were “at odds with the rest of the records, 17 especially those suggesting reduced cognitive abilities.” 18 He further noted that “[e]ven the expressions of sadness” at the 19 consultative examination were “at odds with available . . . 20 records.” 21 cognition, Dr. Lewy found that there might be “reduced cognitive 22 efficiency in the context of heightened affect, especially in the 23 context of physical discomfort.” 24 that Plaintiff “appear[ed] to self manage adequately,” exhibited 25 “no indications of needs for higher level psych interventions,” 26 and “retained” “the capacities needed for work involving basic 27 and familiar detailed tasks in a predictable setting.” 28 (Id.) (Id.) (Id.) She was Therefore, Dr. Lewy found that some of Dr. (Id.) Although there was no indication of reduced (Id.) Nevertheless, he found (Id.) He opined that she had no limitations in understanding and 9 1 memory; was not significantly limited in the ability to carry out 2 very short and simple instructions, maintain attention and 3 concentration for extended periods, sustain an ordinary routine 4 without special supervision, make simple work-related decisions, 5 complete a normal workday and workweek without interruptions from 6 psychologically based symptoms, perform at a consistent pace 7 without an unreasonable number and length of rest periods, ask 8 simple questions or request assistance, accept instructions and 9 respond appropriately to criticism from supervisors, maintain 10 socially appropriate behavior and adhere to basic standards of 11 neatness and cleanliness, be aware of normal hazards and take 12 appropriate precautions, travel in unfamiliar places or use 13 public transportation, and set realistic goals or make plans 14 independently of others; and was moderately limited in the 15 ability to carry out detailed instructions, perform activities 16 within a schedule, maintain regular attendance, be punctual 17 within customary tolerances, interact appropriately with the 18 general public, and respond appropriately to changes in the work 19 setting. c. 20 21 (AR 67-68.)10 Seung Ha Lim Plaintiff saw internist Seung Ha Lim in March 2018 for an 22 internal-medicine consultation. (AR 691-95.) 23 a history of chest, neck, back, and joint pain; pulmonary 24 embolism; and fibromyalgia. (AR 691.) Plaintiff reported She complained of 25 26 27 28 10 Plaintiff claims that Dr. Lewy “found that [she] had a depressive, bipolar and related disorder classified under Listing 12.04,” citing AR 63. (See J. Stip. at 5.) That is not accurate. AR 63 says merely that that Listing was “considered.” 10 1 shortness of breath but denied coughing up blood. 2 examination revealed Jamar dynamometer grip-strength test results 3 of 55 pounds of force in the right (dominant) hand and 20 in the 4 left.11 5 motor deficits. 6 nourished, and in no acute distress; had a slow gait; and 7 complained of back pain. 8 neck motion, but Plaintiff exhibited pain on motion. 9 lungs were “clear to auscultation”12 bilaterally, and there was (AR 693.) (Id.) An Otherwise her strength was 5/5 without focal (AR 694.) She was well developed, well (AR 693) Dr. Lim noted normal range of (Id.) Her 10 normal “excursion with respirations.”13 11 curvature was normal, but she had pain on motion, paravertebral 12 tenderness, decreased range of motion of the back, and multiple 13 points that were tender to palpation. 14 motion of the knees and wrists but normal range of motion. 15 The range of motion of the rest of the joints of the upper and 16 lower extremities was within normal limits bilaterally. 17 Her sensation was grossly intact to soft touch throughout the 18 19 20 21 22 (Id.) Her spine (AR 694.) She had pain on (Id.) (Id.) 11 A “normal” grip strength for a woman between 45 and 49 years old, as was Plaintiff (AR 154, 158), is between 18.6 and 32.4 kilograms, or between 41.01 and 71.43 pounds. See Grip Strength Ratings for Females, Topendsports, https:// www.topendsports.com/testing/norms/handgrip.htm (last visited July 12, 2021); Convert Kilograms to Pounds, Calculateme, https://www.calculateme.com/weight/kilograms/to-pounds/ (last visited July 12, 2021). 23 12 24 25 26 27 28 Lung auscultation is listening to the lungs, usually with a stethoscope, during breathing. Breath Sounds, MedlinePlus, https://medlineplus.gov/ency/article/007535.htm (last visited July 12, 2021). 13 Diaphragmatic excursion is the movement of the diaphragm during exhalation and inhalation. Diaphragmatic Excursion, Free Dictionary, https://medical-dictionary.thefreedictionary.com/ diaphragmatic+excursion (last visited July 12, 2021). 11 1 upper and lower extremities bilaterally. (Id.) 2 reflexes were 2/2 and symmetrical throughout. Her deep-tendon (Id.) 3 Dr. Lim assessed her with a history of chest pain, pulmonary 4 embolism, fibromyalgia, neck and back pain, and generalized joint 5 pain. 6 and walking “about six hours” and sitting six hours in an eight- 7 hour workday; lifting or carrying 20 pounds occasionally and 10 8 pounds frequently; bilateral pushing, pulling, and overhead 9 reaching frequently; and climbing, crouching, stooping, crawling, 10 11 12 (Id.) Dr. Lim opined that she was restricted to standing and kneeling occasionally. d. (AR 695.) E. Christian Some of Plaintiff’s medical records were evaluated on June 13 4, 2018, by state-agency reviewer Dr. E. Christian, who used a 14 medical specialty code of 19 (AR 71), indicating internal 15 medicine, see Soc. Sec. Admin., Program Operations Manual System 16 (POMS) DI 24501.004 (May 5, 2015), https://secure.ssa.gov/apps10/ 17 poms.nsf/lnx/0424501004. 18 degenerative disc disease, chronic pulmonary heart disease, and 19 asthma (AR 61) and had the RFC to perform light work with some 20 additional limitations (AR 64-66). 21 six hours in an eight-hour workday; sit for about six hours in an 22 eight-hour workday; occasionally climb ramps, stairs, ladders, 23 ropes, and scaffolds; and occasionally balance, stoop, kneel, 24 crouch, and crawl. 25 exposure to extreme cold. 26 27 28 e. (Id.) The doctor opined that Plaintiff had She could stand or walk about She was prohibited from concentrated (AR 66.) James Song On May 24, 2019, internist James Song completed a “Residual Functional Capacity Assessment Form.” 12 (AR 860.) He stated that 1 he had treated Plaintiff every month for the past two years. 2 (Id.) 3 arthritis, fibromyalgia, pulmonary embolism, and “abdormal [sic] 4 . . . coronary arteries.” 5 or walk one hour in an eight-hour day and sit for four hours in 6 an eight-hour day. 7 pushing, pulling, stooping, and bending and would need to be 8 absent from work more than four days a month. He diagnosed her with high blood pressure, rheumatoid 2. 9 10 (Id.) (Id.) He opined that she could stand She had unspecified limitations in (Id.) Applicable law For claims like Plaintiff’s filed on or after March 27, 11 2017, the rules in §§ 404.1520c and 416.920c, governing 12 evaluation of medical opinions, apply. 13 §§ 404.1520c, 416.920c (evaluating opinion evidence for claims 14 filed on or after Mar. 27, 2017). 15 that the Social Security Administration “will not defer or give 16 any specific evidentiary weight, including controlling weight, to 17 any medical opinion(s) or prior administrative medical 18 finding(s), including those from your medical sources.” 19 404.1520c(a), 416.920c(a). 20 what was customarily known as the treating-source or treating- 21 physician rule.14 (AR 154, 177); see The new regulations provide §§ Thus, the new regulations eliminate See §§ 404.1520c, 416.920c. 22 23 24 25 26 27 28 14 The relationship between the medical source and the plaintiff remains a factor in considering a medical opinion, however. See §§ 404.1520c(c)(3) (listing “Relationship with the claimant” as factor), 416.920c(c)(3) (same). Thus, the new regulations still acknowledge that a “medical source may have a better understanding of [a plaintiff’s] impairment(s) if he or she examines [plaintiff] than if the medical source only reviews evidence in [a plaintiff’s] folder.” §§ 404.1520c(c)(3)(v), 416.920c(c)(3)(v). Accordingly, although the new regulatory (continued...) 13 1 The revised rules require ALJs to evaluate the 2 “persuasiveness” of medical opinions according to the following 3 factors: supportability; consistency; relationship with the 4 plaintiff;15 specialization; and other factors, such as the 5 medical source’s familiarity with evidence in the record and with 6 disability-program requirements. 7 416.920c(c). 8 supportability and consistency. 9 416.920c(b)(2). See §§ 404.1520c(c), The most important of these factors are §§ 404.1520c(b)(2), The supportability factor recognizes that “[t]he 10 more relevant the objective medical evidence and supporting 11 explanations presented by a medical source are to support [the 12 source’s] medical opinion(s) . . . the more persuasive [they] 13 will be.” 14 consistency is the extent to which an opinion is consistent with 15 the “evidence from other medical sources and nonmedical sources.” 16 §§ 404.1520c(c)(2), 416.920c(c)(2). 17 he considered the supportability and consistency factors in 18 assessing a medical opinion and “may, but [is] not required to, 19 explain how [he] considered the [other] factors . . . as 20 appropriate.” 21 §§ 404.1520c(c)(1), 416.920c(c)(1). Similarly, The ALJ should explain how §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may discount a physician’s opinion regardless of 22 23 24 25 26 27 28 14 (...continued) scheme does not give “controlling weight” to any medical opinion, neither does it place all medical opinions on an equal footing, as Defendant suggests. (J. Stip. at 20.) 15 The relationship-with-plaintiff factor combines consideration of length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship, and existence of an examining relationship. §§ 404.1520c(c)(3), 416.920c(c)(3). 14 1 whether it is contradicted. 2 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 3 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 4 has required that when a doctor’s opinion is not contradicted by 5 other medical-opinion evidence, it may be rejected only for a 6 “clear and convincing” reason. 7 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 8 When it is contradicted, the ALJ need provide only a “specific 9 and legitimate” reason for discounting it. 10 The Ninth Circuit Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31).16 3. 11 12 Magallanes v. Bowen, 881 F.2d 747, The ALJ’s assessment of the doctors’ opinions The ALJ found Dr. Ijeaku’s and Dr. Lewy’s opinions “somewhat 13 persuasive.” (AR 28.) He found persuasive Dr. Ijeaku’s opinion 14 that Plaintiff had moderate limitations in the ability to 15 understand, remember, and carry out complex instructions and the 16 ability to maintain concentration, “attendance,” and persistence 17 and Dr. Lewy’s opinion that she had moderate limitations in the 18 ability to carry out detailed instructions. 19 “unpersuasive” Dr. Ijeaku’s opinion that Plaintiff had moderate (Id.) He found 20 16 21 22 23 24 25 26 27 28 Defendant argues that the Court should no longer apply the “clear and convincing” and “specific and legitimate” standards in light of the new regulations. (J. Stip. at 20-21.) The Ninth Circuit has not yet indicated whether it will continue to draw such distinctions in analyzing medical opinions. See Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 2020). As Defendant acknowledges, however, it continued to apply these standards even after the Commissioner implemented other new regulations concerning how medical opinions were to be evaluated. (See J. Stip. at 20 (citing §§ 404.1527(c)(2), 416.927(c)(2))); Lester, 81 F.3d at 830. The Court need not resolve this question here because as explained below, the ALJ properly applied the new regulations and his reasons were clear and convincing. 15 1 limitations in the ability to perform activities within a 2 schedule and maintain regular attendance, complete a normal 3 workday without interruption, and appropriately respond to 4 changes in a work setting and Dr. Lewy’s opinion that she had 5 moderate limitations in the ability to perform activities within 6 a schedule, interact appropriately with the general public, and 7 respond appropriately to changes in the work setting. 8 ALJ noted that Plaintiff testified that she was able to attend 9 church weekly, handled changes in routine “fine,” and finished 10 11 what she started. (Id.) The (AR 28-29 (citing AR 46, 221-22, 235-36).) He found Dr. Lim’s and Dr. Christian’s opinions “persuasive” 12 and noted their support in the record, which did not show 13 symptoms, objective medical abnormalities, diagnoses, or 14 treatment consistent with the severity of symptoms Plaintiff 15 alleged. 16 consisted only of pain management with medication, and her 17 activities of daily living indicated that she was more functional 18 than alleged. 19 (AR 27.) He also noted that her treatment plans (AR 27-28.) The ALJ found Dr. Song’s opinions “unpersuasive” because 20 they were “overly restrictive” and “inconsistent with the 21 objective findings” of Drs. Lim and Christian and with 22 Plaintiff’s “own statements that she [could] mop, sweep, and do 23 dishes.” 24 (AR 28.) 4. Analysis 25 Plaintiff asserts that the ALJ erred in assessing the 26 medical opinions of Drs. Ijeaku, Lewy, Lim, Christian, and Song. 27 (See J. Stip. at 5-9, 23-32, 36-38.) 28 the “persuasive” terminology of the new regulations throughout 16 But the ALJ correctly used 1 his decision, properly discussed the supportability and 2 consistency of the opinions in the context of the other evidence, 3 and noted that he was not providing “articulation about the 4 evidence that [was] inherently neither valuable nor persuasive in 5 accordance with 20 CFR 404.1520b(c) and 416.920b(c),” the new 6 regulations explaining how the Commissioner considers medical- 7 opinion evidence. 8 There was no error. 9 10 a. (AR 28-29); see §§ 404.1520b(c), 416.920b(c). Dr. Ijeaku Plaintiff argues that although the ALJ found persuasive Dr. 11 Ijeaku’s opinion that she has moderate limitations in the ability 12 to maintain “concentration, attendance, and persistence,” the RFC 13 failed to capture those limitations. 14 start, the ALJ specifically found unpersuasive Dr. Ijeaku’s 15 opinion that Plaintiff’s ability to maintain regular attendance 16 was moderately limited. 17 “attendance” with “concentration” and “persistence” likely was a 18 scrivener’s error and should have read “attention.” 19 event, the ALJ reasonably found the attendance limitation 20 unpersuasive because it wasn’t supported by or consistent with 21 other record evidence, as explained below. 22 (AR 28.) (J. Stip. at 7-8.) To The earlier reference to In any And the ALJ adequately accounted for Plaintiff’s moderate 23 limitations in concentration and persistence by limiting her to 24 noncomplex, routine tasks. 25 repeatedly held that a “moderate” limitation in areas like 26 concentration and persistence translates into the type of RFC the 27 ALJ assessed here. 28 App’x 750, 751 (9th Cir. 2018) (ALJ’s translation of moderate (AR 22, 29.) The Ninth Circuit has See, e.g., Shoemaker v. Berryhill, 710 F. 17 1 difficulties with concentration, persistence, and pace into RFC 2 to perform “simple, routine tasks” was rational interpretation of 3 plaintiff’s self-reported limited capacity); Turner v. Berryhill, 4 705 F. App’x 495, 498 (9th Cir. 2017) (RFC limiting plaintiff to 5 simple, repetitive tasks was consistent with opinion that 6 plaintiff had moderate difficulties in concentration, 7 persistence, and pace); Stubbs-Danielson v. Astrue, 539 F.3d 8 1169, 1173-74 (9th Cir. 2008) (ALJ reasonably translated finding 9 that plaintiff was “moderately limited” in several mental- 10 functioning areas into RFC to perform “simple, routine, 11 repetitive” work). 12 The ALJ reasonably assessed as unpersuasive Dr. Ijeaku’s 13 opinions that Plaintiff had moderate limitations in the ability 14 to perform activities within a schedule, maintain regular 15 attendance, complete a normal workday without interruption, and 16 respond appropriately to changes in a work setting. 17 The supportability and consistency factors weigh against these 18 opinions because they were inconsistent with Plaintiff’s 19 testimony that she was able to attend church weekly and her 20 statements that she handled changes in routine “fine” and 21 finished what she started, as the ALJ noted. 22 AR 221-22, 235-36).) 23 she handles change “fine” assumed that she had experienced 24 changes in her routine since ceasing work, a “fact not in 25 evidence.” 26 qualification on February 12, 2018 (AR 222, 236), after she had 27 stopped working. 28 paying attention and following instructions when she was not (See AR 28.) (AR 28-29 (citing Plaintiff argues that her statement that (J. Stip. at 8.) But she made the statement without And although she stated that she was good at 18 1 taking her medication, her statement that she finished what she 2 started was not so qualified.17 3 considered the most important factors, supportability and 4 consistency, in evaluating Dr. Ijeaku’s opinion. 5 §§ 404.1520c(b)(2), 416.920c(b)(2). b. 6 7 (AR 221, 235.) The ALJ properly There was no error. Dr. Lewy Plaintiff did not include Dr. Lewy in her statement of 8 disputed issues but discussed his opinions with Dr. Ijeaku’s. 9 The ALJ found unpersuasive Dr. Lewy’s opinions that Plaintiff had 10 moderate limitations in the ability to perform activities within 11 a schedule, interact appropriately with the general public, and 12 respond appropriately to changes in the work setting. 13 (citing AR 68).) 14 finding, there was no error. 15 correctly noted Plaintiff’s testimony that she was able to attend 16 church weekly and statements that she handled changes in routine 17 “fine” and finished what she started (AR 28-29 (citing AR 221-22, 18 235-36)), all of which were inconsistent with the opinions. 19 Therefore, the ALJ found Dr. Lewy’s assessments “unpersuasive.” 20 (AR 28.) 21 consideration of these opinions. 22 c. 23 (AR 28 To the extent Plaintiff is challenging this As with Dr. Ijeaku, the ALJ Plaintiff has unearthed no error in the ALJ’s Drs. Lim and Christian Plaintiff’s only argument concerning the ALJ’s assessment of 24 17 25 26 27 28 Plaintiff claims that “Dr. Ijeaku did not assume a pattern of activity different that [sic] that found by the ALJ to be true” and thus the ALJ erred in rejecting some of the doctor’s assessed limitations. (J. Stip. at 9.) But in fact, Dr. Ijeaku “recorded daily activities as very minimal” (id. at 8 (citing AR 685)), whereas the ALJ found that Plaintiff engaged in a wide range of daily activities, as discussed infra in section V.B.4.b. 19 1 the opinions of Drs. Lim and Christian is that he failed to 2 expressly state in the RFC that Plaintiff could “stand/walk not 3 more than six hours in an eight-hour day.” 4 She acknowledges that SSR 83-10, 1983 WL 31251 (Jan. 1, 1983), 5 governing the capability to do other work, contains a standing or 6 walking limitation. range of light work That ruling provides that 7 the 8 walking, off and on, for a total of approximately 6 hours 9 of an 8-hour workday. 10 full (J. Stip. at 30.) (J. Stip. at 30-31.) requires standing or Sitting may occur intermittently during the remaining time. 11 SSR 83-10, 1983 WL 31251, at *6. 12 should have specifically included a standing and walking 13 limitation in his questioning of the VE and in the RFC because 14 the regulatory and DOT definitions of light work do “not impose a 15 limitation in standing/walking or necessarily permit the ability 16 to sit for at least two hours in an eight-hour day.” 17 at 30.) 18 But she argues that the ALJ (J. Stip. Appendix C of the DOT provides that a job is “light” “when 19 it requires walking or standing to a significant degree.” 20 WL 688702 (Jan. 1, 2016). 21 requiring “a good deal of walking or standing.” 22 416.967(b). 23 1991 The regulations define light work as §§ 404.1567(b), At the hearing, the ALJ asked the VE to assume a 24 hypothetical worker who “would be limited to light w[o]rk as 25 decided in the regulations,” with some additional limitations.18 26 27 28 18 Notably, although Plaintiff’s attorney posed a hypothetical question to the VE assuming a person who could sit (continued...) 20 1 (AR 48.) The VE answered that this hypothetical person could 2 work as a merchandise marker, office helper, or information 3 clerk. 4 standing and walking limit because it was implicit in “light 5 work.” 6 (ALJ’s hypothetical to VE was not incomplete because VE would 7 have understood ALJ’s use of “medium work” to imply SSR 83-10’s 8 six-hour standing and walking limitation); Mitzi D. v. Saul, No. 9 SA CV 18-01065-DFM, 2019 WL 8112507, at *2 (C.D. Cal. Dec. 13, (AR 48-49.) The ALJ was not required to spell out the See Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021) 10 2019) (“Given that SSR 83-10 has been in play for over thirty 11 years, there is no reason to think the VE understood light work 12 to encompass anything other than approximately six hours of 13 standing or walking.”).19 14 15 Plaintiff also appears to argue that the intermittentsitting language of SSR 83-10 implies that some standing must 16 17 18 19 20 18 (...continued) four hours and stand one hour in an eight-hour day (AR 50), the attorney did not raise any objection to the ALJ’s hypothetical or seek to clarify the meaning of light work when the ALJ framed the hypothetical (see AR 48-49). 19 21 22 23 24 25 26 27 28 Citing Kisor v. Wilkie, 139 S. Ct. 2400 (2019), Plaintiff argues that the DOT is “not a product of the Commissioner” and that the agency cannot demand deference to its interpretation of it. (J. Stip. at 30.) But Kisor did not reject the traditional deference given to agency interpretations. Instead, it held that such “deference retains an important role in construing agency regulations.” Kisor, 139 S. Ct. at 2408. And as noted, even if SSR 83-10 were not entitled to deference, the VE would have understood the ALJ’s use of the term “light w[o]rk as decided in the regulations” to imply SSR-83-10’s standing and walking limitation. The VE testified based on that understanding that Plaintiff could perform work existing in significant numbers in the national economy. (AR 48-49.) Therefore, the ALJ’s finding was supported by substantial evidence. 21 1 occur in the remaining two hours of the workday. (J. Stip. at 2 30.) 3 would hope, this interpretation is incorrect. 4 interpreted SSR 83-10 to entail the ability to stand and walk for a 5 total of six hours, not more. 6 00045-W-JLB, 2020 WL 6055148, at *3-4 (S.D. Cal. Oct. 13, 2020) 7 (rejecting argument that language in SSR 83-10 that “sitting may 8 occur intermittently during the remaining time” implies person may 9 be required to stand for two remaining hours); James T. v. Saul, Although the language of SSR 83-10 is not as clear as one Numerous courts have See, e.g., Lawson v. Saul, 3:19-cv- 10 No. 2:18-cv-08794-KES, 2019 WL 3017755, at *2 (C.D. Cal. July 10, 11 2019) (“Since [SSR 83-10 was published], ALJs and VEs . . . have 12 understood medium work as requiring the ability to stand or walk 13 for up to 6 hours.”). 14 single case to support her view. Tellingly, Plaintiff does not cite a Contrary to Plaintiff’s argument, limiting standing or 15 16 walking to six hours a workday is not inconsistent with light 17 work. 18 Lim’s and Christian’s opinions. The ALJ therefore did not err in finding persuasive Drs. d. 19 Dr. Song The ALJ correctly found Dr. Song’s opinion unpersuasive. 20 21 start, the opined limitations were “overly restrictive” and 22 inconsistent with the objective medical evidence, as the ALJ 23 noted. 24 of motion and slow gait, Dr. Lim observed normal muscle tone, 25 sensation, and reflexes and no signs of radiculopathy. 26 94.) 27 than in the nondominant hand. 28 Plaintiff did “not require the use of assistive devices for (AR 28.) To Although Plaintiff exhibited some limited range (AR 693- And strength was 5/5 without focal motor deficits other (Id.) 22 Dr. Lim noted that 1 ambulation.” (AR 694.) 2 that she could perform a range of light work, consistent with the 3 RFC. 4 Plaintiff was “grossly normal aside from numbness to toes,” as 5 the ALJ noted. 6 Commissioner Soc. Sec. Admin., 420 F. App’x 763, 764 (9th Cir. 7 2011) (ALJ’s finding that some of treating doctors’ opinions 8 contradicted doctors’ own treatment notes was specific and 9 legitimate reason for giving opinions little weight). (AR 64-66, 695.) Both Dr. Lim and Dr. Christian opined And Dr. Song’s own examination of (AR 24 (citing AR 628-29)); see Davis v. Therefore, 10 the ALJ properly weighed the supportability and consistency 11 factors in finding Dr. Song’s opinion unpersuasive. (AR 28.) Plaintiff correctly notes that the record documents gait 12 13 issues in the latter part of 2018 and that in August 2019, one 14 month before the ALJ’s decision, she received a walker for 15 assistance while hospitalized for an exacerbation of asthma. 16 Stip. at 31; see AR 709-11, 868, 871-72, 874, 879.) 17 Plaintiff’s hearing just a few weeks later, on August 23, there 18 was no mention of an assistive device for ambulation (see AR 37- 19 51) even though she was questioned about the brace she was 20 wearing on her right hand (AR 43). 21 mopped, swept, and washed dishes and clothes, which would be 22 difficult if not impossible to do while using a walker. 23 45.) 24 that she experienced some pain when doing those activities, she 25 “still [did] it” and just “ha[d] to do it . . . slowly” (AR 44). 26 Those activities were thus inconsistent with Dr. Song’s opinion 27 that she required a cane or walker, as the ALJ found. 28 At most, it appears that her gait issues improved and did not (J. But at And she testified that she (AR 43- Although as Plaintiff notes (J. Stip. at 32), she testified 23 (AR 28.) 1 meet the duration requirement. “Unless [the] impairment is 2 expected to result in death, it must have lasted or must be 3 expected to last for a continuous period of at least 12 months.” 4 §§ 404.1509, 416.909. 5 finding Dr. Song’s opinion unpersuasive. Accordingly, the ALJ did not err in 6 The ALJ properly evaluated the medical opinions. 7 B. The ALJ Properly Assessed Plaintiff’s Symptom 8 Statements 9 1. 10 Applicable law An ALJ’s assessment of a claimant’s allegations concerning 11 the severity of her symptoms is entitled to “great weight.” 12 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 13 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 14 1985) (as amended Feb. 24, 1986). 15 believe every allegation of disabling pain, or else disability 16 benefits would be available for the asking, a result plainly 17 contrary to 42 U.S.C. § 423(d)(5)(A).’” 18 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 19 597, 603 (9th Cir. 1989)). 20 “[T]he ALJ is not ‘required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 21 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 22 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 23 2016). 24 presented objective medical evidence of an underlying impairment 25 ‘[that] could reasonably be expected to produce the pain or other 26 symptoms alleged.’” 27 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en 28 banc)). “First, the ALJ must determine whether the claimant has Lingenfelter, 504 F.3d at 1036 (quoting If such objective medical evidence exists, the ALJ may 24 1 not reject a claimant’s testimony “simply because there is no 2 showing that the impairment can reasonably produce the degree of 3 symptom alleged.” 4 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 5 Id. (emphasis in original) (quoting Smolen v. If the claimant meets the first test, the ALJ may discount 6 the claimant’s subjective symptom testimony only if he makes 7 specific findings that support the conclusion. 8 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 9 affirmative evidence of malingering, the ALJ must provide a See Berry v. Absent a finding or 10 “clear and convincing” reason for rejecting the claimant’s 11 testimony. 12 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 13 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 14 Cir. 2014). 15 claimant’s (1) reputation for truthfulness, prior inconsistent 16 statements, and other testimony that appears less than candid; 17 (2) unexplained or inadequately explained failure to seek 18 treatment or to follow a prescribed course of treatment; (3) 19 daily activities; (4) work record; and (5) physicians’ and third 20 parties’ statements. 21 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 22 F.3d 947, 958-59 (9th Cir. 2002). 23 plaintiff’s alleged symptoms is supported by substantial evidence 24 in the record, the reviewing court “may not engage in second- 25 guessing.” 26 27 28 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. The ALJ may consider, among other factors, the Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d If the ALJ’s evaluation of a Thomas, 278 F.3d at 959. 2. Plaintiff’s symptom statements and testimony In her January 26, 2018 Disability Report, Plaintiff alleged that her ability to work was limited by a heart condition, lung 25 1 problems, a hysterectomy, fibromyalgia, stress, and depression. 2 (AR 177; Exs. Index, ECF No. 18-7.) 3 Function Report, she alleged that she was “[c]onstantly in pain,” 4 was “always tied [sic] and sleepy,” and had chest pain and 5 “severe” body pain. 6 breakfast for her son, went to doctor’s appointments, cleaned her 7 house four days a week, and did laundry and ironing two days a 8 week. 9 for clothing once a month. (AR 217-18.) (AR 216.) In her February 12, 2018 She reported that she made She shopped for groceries once a week and (AR 219.) She listed her hobbies as 10 walking and running and said she did them “every day” but also 11 stated that she could walk “no more than a block” and could not 12 run. 13 stated that she could walk two blocks before needing to rest for 14 30 minutes. 15 legs got numb if she stood for a “long period of time,” and she 16 experienced shortness of breath and dizziness while walking and 17 climbing stairs. 18 and follow written and spoken instructions as “good” without her 19 medication, which made her sleepy. 20 (AR 220.) In response to another question, moreover, she (AR 221.) She stated that her back hurt and her (Id.) She rated her ability to pay attention (Id.) At the August 23, 2019 hearing, Plaintiff testified that she 21 stopped working in 2016 because she developed shortness of 22 breath, chest pain, weakness in her left side, and “chronic pain” 23 “[a]ll over [her] body.” 24 fibromyalgia and depression. 25 for “breathing treatments every two hours.” 26 depression made her “want to die.” (Id.) 27 her “tired and very shaky.” She testified that she had 28 difficulty standing for a long time, could sit for one hour (AR 41-42.) (AR 42.) (Id.) 26 She testified that she had She had a machine at home (Id.) The Her medications made 1 before starting to feel dizzy, could lift 10 pounds, and had 2 trouble focusing on a “video or anything like that.” 3 She could mop, sweep, and wash dishes with breaks after 20 or 30 4 minutes. 5 being “shaky.” 6 medication. 7 church every Sunday. (AR 44.) 3. 8 (AR 43-44.) She could not cook because of her “hand” and (Id.) She slept for two hours after taking her (AR 45.) She drove her son to school and attended (AR 46.) The ALJ’s decision The ALJ reviewed Plaintiff’s claimed limitations and found 9 10 that her “medically determinable impairments could reasonably be 11 expected to cause some symptoms; however, [her] statements 12 concerning the intensity, persistence and limiting effects of 13 these symptoms [were] not entirely consistent with the medical 14 evidence and other evidence in the record.” 15 discounted Plaintiff’s subjective symptom statements because they 16 were inconsistent with the objective medical evidence (AR 24-27) 17 and her daily activities (AR 25-26) and because her “mostly 18 conservative treatment” effectively controlled her symptoms (AR 19 25). 20 21 4. (AR 24.) Analysis Plaintiff asserts that the ALJ improperly assessed her 22 subjective symptom statements. 23 the reasons discussed below, the ALJ did not err. 24 25 The ALJ a. (J. Stip. at 38-41, 46-47.) For Medical and other evidence To start, the ALJ properly concluded that Plaintiff’s 26 subjective symptom statements were inconsistent with the 27 objective medical evidence in the record. 28 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (finding 27 Morgan v. Comm’r of 1 “conflict” with “objective medical evidence in the record” to be 2 “specific and substantial reason[]” undermining plaintiff’s 3 allegations). 4 sought treatment for asthma and chest pain, an August 2017 chest 5 x-ray revealed normal vascularity and clear lung fields 6 bilaterally, her cardiac and mediastinal silhouettes20 were 7 within normal limits, the bony thorax appeared unremarkable, and 8 she was assessed with “no acute cardiopulmonary disease.” 9 (citing AR 483).) For instance, the ALJ noted that although she (AR 25 Moreover, despite presenting with “recurrent 10 chest pain symptoms” in January 2018, a physical examination 11 revealed normal findings, including regular cardiovascular rate 12 and rhythm and clear lungs. 13 (AR 26 (citing AR 575).) Similarly, the ALJ correctly noted that an echocardiogram 14 report and exercise stress report from April 2017 revealed mostly 15 normal findings. 16 mitral regurgitation,21 mild tricuspid regurgitation,22 and (Id. (citing AR 588-89).) There was trace 17 18 19 20 21 22 23 24 25 26 27 28 20 A cardiac silhouette is an outline of the heart as seen on frontal and lateral chest radiographs. Cardiac Silhouette, Radiopaedia, https://radiopaedia.org/articles/cardiac-silhouette (last visited July 12, 2021). Its size and shape provide useful clues for underlying disease. Id. 21 Mitral regurgitation occurs when the heart’s mitral valve won’t close tightly, letting blood flow backward. Mitral Valve Regurgitation, Mayo Clinic, https://www.mayoclinic.org/ diseases-conditions/mitral-valve-regurgitation/symptoms-causes/ syc-20350178 (last visited July 12, 2021). 22 Tricuspid regurgitation is a failure of the valve between the two right heart chambers to close properly, allowing blood to flow back into the heart’s upper right chamber. Tricuspid Valve Regurgitation, Mayo Clinic, https://www.mayoclinic.org/ diseases-conditions/tricuspid-valve-regurgitation/ symptoms-causes/syc-20350168 (last visited July 12, 2021). 28 1 abnormal retrograde flow23 seen parallel to the pulmonary artery. 2 (AR 588.) 3 contractility24 with an ejection fraction25 of 75 percent, this 4 pattern was normal for Plaintiff’s age. 5 and right ventricle and atrium were normal in size; the right 6 ventricle and left and right atrium were normal in function; and 7 there was no evidence of aortic stenosis26 or regurgitation, 8 pulmonic regurgitation,27 pericardial effusion,28 or myocardial Although there was hyperdynamic left ventricular (Id.) Further, the left 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Retrograde flow is the flow of fluid in a direction opposite to that considered normal. Retrograde Flow, Free Dictionary, https://medical-dictionary.thefreedictionary.com/ retrograde+flow (last visited July 12, 2021). 24 Hyperdynamic contractility refers to vigorous tachycardia and cardiac activity, with left ventricular walls close to touching when the heart muscle contracts. Tips & Tricks: The Big Squeeze — Cardiac Contractility and Right Ventricular Strain Assessment, Am. Coll. of Emergency Physicians, https:// www.acep.org/how-we-serve/sections/emergency-ultrasound/news/ august-2016/tips-amp-tricks-the-big-squeeze---cardiaccontractility-and-right-ventricular-strain-assessment/ (last visited July 12, 2021). 25 Ejection fraction measures the percentage of blood leaving the heart each time it contracts. Ejection Fraction: What Does It Measure?, Mayo Clinic, https://www.mayoclinic.org/ ejection-fraction/expert-answers/faq-20058286 (last visited July 12, 2021). A normal ejection fraction is about 50 to 75 percent. Id. 26 Aortic stenosis is a narrow aortic valve opening. Aortic Stenosis Overview, Am. Heart Ass’n, https://www.heart.org/en/ health-topics/heart-valve-problems-and-disease/ heart-valve-problems-and-causes/problem-aortic-valve-stenosis (last visited July 12, 2021). 27 Pulmonic regurgitation is incompetency of the pulmonic valve, causing blood flow from the pulmonary artery into the right ventricle when the heart muscle relaxes. Pulmonic Regurgitation, Merck Manual Pro. Version, https:// (continued...) 29 1 ischemia.29 2 numbness during the exercise stress test, but the results were 3 otherwise normal. 4 (Id.) Plaintiff exhibited atypical left arm and leg (AR 589.) And despite Plaintiff’s allegations of disabling pain, the 5 ALJ properly found that many of her physical-examination findings 6 were “grossly normal.” 7 internist Song for “persistent generalized pain.” 8 Examination revealed “numbness to toes” but otherwise normal 9 findings. 10 (AR 24.) In April 2017, she saw (AR 628.) (AR 628-29.) In October 2017, Plaintiff saw Dr. Gerald Y. Ho30 for lower- 11 back pain, dyspnea, and weakness. (AR 529.) On examination, 12 Plaintiff was well developed and in no acute distress. 13 She had tenderness to palpation but no deformities or 14 abnormalities of the fingers, hands, wrists, elbows, shoulders, (AR 530.) 15 16 17 18 19 20 21 22 27 (...continued) www.merckmanuals.com/professional/cardiovascular-disorders/ valvular-disorders/pulmonic-regurgitation (last visited July 12, 2021). 28 Pericardial effusion is the buildup of extra fluid in the space around the heart. Pericardial Effusion, Cedars Sinai, https://www.cedars-sinai.org/health-library/ diseases-and-conditions/p/pericardial-effusion.html (last visited July 12, 2021). 23 29 24 25 26 27 28 Myocardial ischemia occurs when blood flow to the heart wanes, preventing the heart muscle from receiving enough oxygen. Myocardial Ischemia, Mayo Clinic, https://www.mayoclinic.org/ diseases-conditions/myocardial-ischemia/symptoms-causes/ syc-20375417 (last visited July 12, 2021). 30 Dr. Ho practices primarily rheumatology. See Cal. Dep't Consumer Aff. License Search, https://search.dca.ca.gov (search for “Ho” under “Last Name”) (last visited July 12, 2021). 30 lumbar spine, hips, knees, or ankles. 2 bilateral straight-leg-raise test,32 and McMurray test33 were all 3 negative. 4 abduction were normal. 5 big toes and soles bilaterally, but a motor examination 6 “demonstrated no dysfunction.” 7 reflexes were normal. 8 9 (Id.) (AR 531.) Tinel’s sign,31 1 Elbow and shoulder motion and shoulder (Id.) She had decreased sensation in the (AR 532.) Her gait, stance, and (Id.) Plaintiff’s examination with Dr. Lim in March 2018 revealed 5/5 strength without focal motor deficits other than in the 10 nondominant hand. (AR 693-94.) She was well developed, well 11 nourished, and in no acute distress. 12 normal range of neck motion, but she exhibited pain on motion. 13 (Id.) 14 “normal excursion with respirations.” 15 was normal. 16 wrists but normal range of motion. 17 the rest of the joints of the upper and lower extremities was 18 within normal limits bilaterally. (AR 693.) Dr. Lim noted Her lungs were “bilaterally clear to auscultation,” with (AR 694.) (Id.) Her spine curvature She had pain on motion of the knees and (Id.) (Id.) The range of motion of Her sensation was 19 20 21 22 23 24 25 26 27 28 31 Tinel’s sign is positive when tapping the affected nerve produces tingling. See Tinel’s Sign, Healthline, https:// www.healthline.com/health/tinels-sign#test (last visited July 12, 2021). 32 A straight-leg-raise test involves mechanical manipulation of the legs, stressing the neurological tissues in the spine; specific symptoms reported at different degrees of flexion can indicate nerve compression. See The Pain Clinic Manual 44-45 (Stephen E. Abram & J. David Haddox eds., 2d ed. 2000). 33 The McMurray test is a “rotation of the tibia on the femur to determine injury to meniscal structures.” Stedman’s Medical Dictionary 1805 (27th ed. 2000). 31 1 grossly intact to soft touch throughout the upper and lower 2 extremities bilaterally. 3 2/2 and symmetrical throughout. 4 correctly noted that she was observed numerous times throughout 5 the record to have a normal stance and gait. 6 7, 2016), 556 (June 5, 2017), 548 (Aug. 16, 2017), 542 (Sept. 20, 7 2017), 532, (Oct. 30, 2017), 656 (Dec. 10, 2017), 524 (Dec. 19, 8 2017).) Her deep-tendon reflexes were (Id.) (Id.) Likewise, the ALJ (See AR 564 (Mar. Similarly, the ALJ properly rejected Plaintiff’s allegation 9 10 of a disabling mental impairment. Although she was assessed with 11 depression throughout the record (see, e.g., AR 345, 603), her 12 treatment for it was “remarkably sparse,” as the ALJ noted (AR 13 27), and demonstrated that she was more functional than alleged. 14 When she saw Dr. Song for depression in January 2018, she was 15 oriented to time, place, person, and situation. 16 had appropriate mood and affect and normal insight and judgment. 17 (Id.) 18 until her mother passed away, in fall 2016; had never been 19 admitted to a psychiatric hospital; and had never been evaluated 20 by a psychiatrist or therapist. 21 664 F. App’x 638, 641 (9th Cir. 2016) (substantial evidence 22 supported ALJ’s discounting of plaintiff’s mental symptom 23 statements when record showed “minimal and inconsistent 24 treatment” for psychological symptoms). 25 examination, she cooperated and had fair eye contact and normal 26 tone, volume, and rate of speech. 27 her mood was sad, but her affect was appropriate, there was no 28 psychomotor retardation, and she denied any suicidal or homicidal (AR 603.) She She reported to Dr. Ijeaku in May 2018 that she was well (AR 684.) 32 See Malloy v. Colvin, During a mental-status (AR 686.) She reported that 1 plans or thoughts. (Id.) Her thought process was goal directed, 2 and she did not exhibit looseness of association, thought 3 disorganization, flight of ideas, thought blocking, 4 tangentiality, or circumstantiality. 5 delusions and denied “thought broadcasting” or “insertion”; 6 phobias; obsessions; “derealizations”; “depersonalization”; and 7 auditory, visual, tactile, or olfactory hallucinations. 8 Her concentration was fair and her memory was good. 9 was alert and oriented to date, place, and person. (Id.) She exhibited no (Id.) She (Id.) (Id.) Her 10 interpretation of proverbs, her insight, and her judgment were 11 fair. 12 (Id.) And as the ALJ noted, Plaintiff denied any anxiety or (See AR 636 13 depression at numerous times throughout the record. 14 (Feb. 10, 2017), 628 (Apr. 18, 2017), 615 (Aug. 30, 2017), 611 15 (Oct. 11, 2017), 602 (Jan. 22, 2018), 715 (July 31, 2018), 748 16 (Jan. 11, 2019), 741 (May 23, 2019), 885 (July 30, 2019).) 17 January 23, 2019, she saw a nurse practitioner for breathing 18 difficulty with exertion and denied having any nervousness, 19 depression, restlessness, or trouble sleeping. 20 On (AR 808.) Thus, the ALJ did not err in discounting Plaintiff’s 21 subjective symptom statements because they were inconsistent with 22 the objective medical evidence in the record. 23 24 b. Daily activities The ALJ also discounted Plaintiff’s subjective symptom 25 statements because her daily activities “indicate[d] that [she 26 was] more functional than alleged.” 27 despite her reported pain, Plaintiff “attend[ed] church every 28 Sunday,” “dr[ove] her son to school,” “clean[ed], [did] laundry, 33 (AR 27.) The ALJ noted that 1 iron[ed],” did “her own grocery shopping,” and had “no problems 2 with personal care.” 3 claimant’s subjective symptom testimony when it is inconsistent 4 with her daily activities. 5 where those [daily] activities suggest some difficulty 6 functioning, they may be grounds for discrediting the claimant’s 7 testimony to the extent that they contradict claims of a totally 8 debilitating impairment.” 9 (AR 27-28.) An ALJ may discount a See Molina, 674 F.3d at 1113. “Even Id. Household activities do not necessarily translate to an 10 ability to obtain and maintain employment. See Fair, 885 F.2d at 11 603 (observing that “many home activities are not easily 12 transferable to what may be the more grueling environment of the 13 workplace, where it might be impossible to periodically rest or 14 take medication”). 15 substantial part of [the] day engaged in . . . physical functions 16 that are transferable to a work setting,” this “may be sufficient 17 to discredit an allegation of disabling excess pain.” 18 (emphasis omitted). 19 mopping, sweeping, doing laundry, cleaning her house four days a 20 week, ironing twice a week, shopping for groceries weekly and 21 clothes monthly, and driving her son to and from school on a 22 regular schedule, were more akin to those required in a workplace 23 (see id. at 604 (ALJ’s discounting of plaintiff’s subjective 24 symptom testimony based on daily activities was supported by 25 substantial evidence when plaintiff cared for all of his personal 26 needs, performed routine household maintenance and shopping 27 chores, rode public transportation, and drove his own 28 automobile)); therefore, the ALJ did not err in finding these But if a plaintiff “is able to spend a Id. Plaintiff’s daily activities, including 34 1 activities extensive enough to contradict Plaintiff’s claims of a 2 totally debilitating impairment. 3 c. Molina, 674 F.3d at 1113. Conservative treatment 4 The ALJ also discounted Plaintiff’s subjective symptom 5 statements because they were inconsistent with evidence that they 6 were relatively controlled with “mostly conservative treatment 7 that consisted of continuing pain management with medication.” 8 (AR 25 (citing AR 629 (Dr. Song noting in April 2017 that 9 Plaintiff should continue her pain management), 545 (Dr. Ho 10 noting in August 2017 that Lyrica was “helping pain some”), 551 11 (same), 534 (Dr. Ho noting in October 2017 that Lyrica was 12 “helping” Plaintiff’s fibromyalgia pain and that she was “off 13 Gabapentin”), 526 (Dr. Ho noting in January 2018 that Lyrica was 14 “helping” with fibromyalgia pain “better than Gabapentin”); see 15 also AR 27 (citing AR 684 (Plaintiff reporting that she had never 16 been admitted into psychiatric hospital or evaluated by 17 psychiatrist or therapist and had been prescribed psychotropic 18 medications only by her primary-care physician and pain- 19 management doctors).) 20 fibromyalgia medication was evident in her functioning on 21 physical examination. 22 (same), 542 (same), 548 (same), 556 (same), 564 (same), 656 23 (same).) 24 demonstrated by her repeated denial of psychiatric symptoms. 25 (See AR 602 (Plaintiff denying current anxiety or depression), 26 611 (same), 615 (same), 628 (same), 636 (same), 715 (same), 741 27 (same), 748 (same), 885 (same).) 28 quickly controlled when she sought treatment. The effectiveness of Plaintiff’s (See AR 524 (gait and stance normal), 532 And her psychotropic medication’s efficacy was 35 Her breathing issues were also (See AR 474 1 (Plaintiff “feeling better,” with “improved lung sounds,” after 2 presenting to emergency department with cough and wheezing and 3 receiving breathing treatment).) 4 This evidence that Plaintiff’s treatment was effective was 5 inconsistent with completely disabling symptoms. 6 therefore properly considered it in discounting her symptom 7 statements. 8 945 (9th Cir. 2017) (discounting claimant’s testimony concerning 9 disabling nature of symptoms when it conflicted with evidence of 10 The ALJ See Presley-Carrillo v. Berryhill, 692 F. App’x 941, daily activities and effective treatment). 11 Remand is not warranted on this issue. 12 C. The ALJ’s Finding that Plaintiff Was Limited to “Non- 13 Complex Routine Tasks” Did Not Conflict with the DOT 14 Descriptions of Office Helper and Merchandise Marker 15 Plaintiff argues that the ALJ’s step-five analysis was not 16 supported by substantial evidence because his finding that she 17 was limited to “non-complex routine tasks” (AR 22) conflicted 18 with the DOT descriptions of the office-helper, merchandise- 19 marker, and information-clerk jobs he found she could perform. 20 (J. Stip. at 47-51.) 21 office-helper and merchandise-marker jobs, remand is not 22 required.34 Because there was no conflict with the 23 24 25 26 27 28 34 Plaintiff may be correct, however, that the ALJ erred in finding that she could perform the job of information clerk because the DOT describes that job as requiring reasoning level four, which is inconsistent with a limitation to simple, routine tasks. (J. Stip. at 48-49 (citing DOT § 237.367-018, 1991 WL 672187 (Jan. 1, 2016))); see Zavalin v. Colvin, 778 F.3d 842, 845-47 (9th Cir. 2015). (But see J. Stip. at 54-56 (Defendant (continued...) 36 1 When a VE provides evidence about the requirements of a job, 2 the ALJ has a responsibility to ask about any possible conflict 3 between that evidence and the DOT. 4 F.3d 804, 807 (9th Cir. 2016) (“If the expert’s opinion that the 5 applicant is able to work conflicts with, or seems to conflict 6 with, the requirements listed in the Dictionary, then the ALJ 7 must ask the expert to reconcile the conflict before relying on 8 the expert to decide if the claimant is disabled.”); see also SSR 9 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). See Gutierrez v. Colvin, 844 The conflict must 10 be “obvious or apparent” to trigger the ALJ’s obligation to 11 inquire further, and the inquiry is “fact-dependent.” 12 Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (citing Gutierrez, 13 844 F.3d at 808). 1. 14 15 Lamear v. Office helper Plaintiff acknowledges that office helper is a reasoning- 16 level two occupation that does not raise an apparent conflict 17 with her limitation to noncomplex work. 18 Nevertheless, she argues that office helper is not “non-complex, 19 routine work because of the variety of duties and multiple work 20 fields required.” 21 holding either that the office-helper job is complex or that any 22 occupation requiring a “variety of duties and multiple work 23 fields” is. (J. Stip. at 50.) (J. Stip. at 49.) But she cites no authority The VE testified that based on the DOT and her 30 24 25 26 27 28 34 (...continued) arguing that Zavalin does not control).) The Court need not resolve the issue because any error was harmless: as discussed below, the ALJ properly found that Plaintiff could perform the jobs of office helper and merchandise marker. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). 37 1 years of experience, a hypothetical person with Plaintiff’s age, 2 education, experience, and RFC could perform the office-helper 3 job. 4 limited to noncomplex, routine tasks is precluded from performing 5 that job, the ALJ was entitled to rely on the VE’s testimony. 6 See Gutierrez, 844 F.3d at 808-09. (AR 48-49.) Absent some authority holding that someone Accordingly, there was no apparent conflict between the 7 8 RFC’s limitation to noncomplex, routine tasks and the DOT’s 9 office-helper-job description, and the ALJ was not required to 10 inquire. See Gutierrez, 844 F.3d at 808; Bradley v. Astrue, No. 11 ED CV 07-1660 PJW., 2009 WL 1844357, at *2 (C.D. Cal. June 25, 12 2009) (holding that ability to perform simple, noncomplex work 13 was consistent with reasoning level two). 2. 14 Merchandise marker As with the office-helper job, Plaintiff acknowledges that 15 16 there is no apparent conflict between the merchandise marker’s 17 reasoning-level-two requirement and the limitation to noncomplex 18 tasks. 19 exists because the merchandise-marker job “has significant worker 20 functions involving data” (id. at 51) and “[d]ata is more 21 complicated than things” (id. at 58). 22 authority so holding, and the Court has found none. 23 the ALJ was entitled to rely on the VE’s testimony, there was no 24 apparent conflict, and the ALJ was not required to inquire. 25 Gutierrez, 844 F.3d at 806-08. 26 VI. 27 28 (J. Stip. at 50-51.) But she argues that one nonetheless She again has provided no Accordingly, See CONCLUSION Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING 38 1 the Commissioner’s decision, DENYING Plaintiff’s request for 2 remand, and DISMISSING this action with prejudice. 3 4 5 DATED: -XO\ JEAN ROSENBLUTH U S Magistrate M i t t Judge J d U.S. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39
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