Ana Elvira Diaz v. Andrew M.Saul, No. 2:2020cv04739 - Document 25 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (see document for further details) (hr)
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Ana Elvira Diaz v. Andrew M.Saul Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 ANA E.D.1, 12 Plaintiff, MEMORANDUM OPINION 13 14 15 Case No. CV 20-4739-AS v. ANDREW M. SAUL, Commissioner of Social Security, Defendant. 16 17 18 19 20 For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s decision is affirmed. 21 22 23 24 25 26 27 1 Plaintiff’s name is partially redacted in accordance 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. 28 Dockets.Justia.com PROCEEDINGS 1 2 3 On May 28, 2020, Plaintiff filed a Complaint seeking review 4 of the Commissioner’s denial of Plaintiff’s application for a 5 period of disability and disability insurance benefits (“DIB”) 6 under Title II of the Social Security Act. 7 October 26, 2020, Defendant filed an Answer and the Administrative 8 Record (“AR”). 9 proceed before a United States Magistrate Judge. (Dkt. Nos. 16-17). (Dkt. No. 1). On The parties have consented to (Dkt. Nos. 10- 10 12). On March 25, 2021, the parties filed a Joint Stipulation 11 (“Joint Stip.”) setting forth their respective positions regarding 12 Plaintiff’s claims. (Dkt. No. 24). 13 14 15 The Court has taken this matter under submission without oral argument. See C.D. Cal. C. R. 7-15. 16 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 17 18 19 On August 12, 2015, Plaintiff, previously employed as a 20 waitress and home attendant (see AR 40, 62, 308), protectively 21 filed her DIB application alleging disability since October 24, 22 2012. (AR 285-87). 23 on January 12, 2016 (AR 171-75), and upon reconsideration on May 24 25, 2016 (AR 177-82). Plaintiff’s application was denied initially 25 26 On January 25, 2018, Administrative Law Judge (“ALJ”) James 27 D. Goodman heard testimony from Plaintiff, who was represented by 28 counsel. (AR 54-93). Afterward, the ALJ requested that Plaintiff 2 1 attend consultative psychological and orthopedic examinations, 2 which took place on March 14 and March 21, 2018, respectively. 3 2900-08, 2903-13). 4 24, 2018, and indicated his intention to propound interrogatories 5 on a vocational expert. 6 counsel appeared at the July 24 hearing. (AR The ALJ then convened a second hearing on July (AR 50-53). Neither Plaintiff nor her (AR 52). 7 On September 25, 2018, the ALJ held a third hearing, with 8 9 Plaintiff and her counsel in attendance. (AR 94-102). The ALJ 10 determined that a medical expert’s opinion was needed for the ALJ 11 to make a disability determination regarding the relevant period 12 between Plaintiff’s alleged onset date of October 24, 2012, and 13 her last insured date of December 31, 2013. 14 after 15 interrogatories were propounded on orthopedic medical expert Dr. 16 Peter Schosheim, M.D. 17 4412-14). 18 interrogatories were propounded on vocational expert Gregory Jones 19 (AR 454-67, 468-75, 478-83, 484-86, 487-89). the hearing, After medical (AR 101-02). interrogatories and Thus, cross- (AR 4403-07, 4373-88, 4389-4402, 4408-10, that, vocational interrogatories and cross- 20 On May 13, 2019, the ALJ issued a decision denying Plaintiff’s 21 22 application. 23 process to evaluate Plaintiff’s case. 24 that Plaintiff had not engaged in substantial gainful activity 25 between her alleged onset date of October 24, 2012, and her last 26 insured date of December 31, 2013. 27 found 28 degenerative that (AR 12-49). Plaintiff disc The ALJ applied the requisite five-step had disease the of At step one, the ALJ found (AR 24). following the 3 cervical At step two, the ALJ severe spine, impairments: status post 1 anterior cervical fusion with internal fixation on January 11, 2 2013; degenerative disc disease of the lumbar spine; fibromyalgia; 3 and obesity. (AR 25). 4 Plaintiff’s impairments did not meet or equal a listing found in 5 20 C.F.R. Part 404, Subpart P, Appendix 1. 6 ALJ found that Plaintiff had the following Residual Functional 7 Capacity (“RFC”):2 At step three, the ALJ determined that (AR 28). Next, the 8 9 [Plaintiff could] perform light work as defined in 20 10 CFR 404.1567(b)[3] except that she could lift and carry 11 up to twenty (20) pounds occasionally and ten (10) pounds 12 frequently; could stand up to two (2) hours and walk up 13 to two (2) hours and sit for six (6) hours cumulatively 14 in an eight-hour day; could occasionally stoop, crawl, 15 kneel, crouch, and bend, but could never climb ramps, 16 ladders, ropes, or scaffolds; could frequently handle, 17 finger, and reach above shoulder level with the left and 18 right upper extremities; could have occasional exposure 19 to excessive heat and cold but could never have exposure 20 to vibrating surfaces; could have occasional exposure to 21 moving 22 dangerous heights or around possible electric shock. mechanical parts; and could never work at 23 24 25 26 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 4 1 (AR 30-31). 2 3 At step four, the ALJ found that Plaintiff was unable to 4 perform her past relevant work as a waitress or home attendant. 5 (AR 39-40). At step five, based on Plaintiff’s RFC, age, education, 6 work 7 responses, the ALJ determined that there were jobs that existed in 8 significant numbers in the national economy that Plaintiff could 9 perform, including electronics worker, production assembler, and experience, and the 10 bench assembler. (AR 41-42). 11 Plaintiff was not disabled. vocational expert’s interrogatory Accordingly, the ALJ concluded that (AR 43). 12 On July 25, 2019, the Appeals Council denied Plaintiff's 13 14 request to review the ALJ’s decision. (AR 1-3). Plaintiff now 15 seeks judicial review of the ALJ’s decision, which stands as the 16 final decision of the Commissioner. See 42 U.S.C. § 405(g). 17 STANDARD OF REVIEW 18 19 20 This Court reviews the Administration’s decision to determine 21 if it is free of legal error and supported by substantial evidence. 22 See 23 “Substantial evidence” is more than a mere scintilla, but less than 24 a preponderance. 25 2014). 26 finding, “a court must consider the record as a whole, weighing 27 both evidence that supports and evidence that detracts from the 28 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 5 Brewes To v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. determine whether substantial evidence supports a 1 1035 (9th Cir. 2001) (internal quotation omitted). As a result, 2 “[i]f the evidence can support either affirming or reversing the 3 ALJ’s conclusion, [a court] may not substitute [its] judgment for 4 that of the ALJ.” 5 (9th Cir. 2006). Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 6 DISCUSSION 7 8 9 Plaintiff claims that the ALJ erred in (1) rejecting part of 10 the medical expert’s opinion; (2) rejecting Plaintiff’s testimony; 11 and (3) relying on the vocational expert’s response to conclude at 12 step five that Plaintiff had the ability to perform jobs existing 13 in significant numbers in the national economy. 14 at 3-37). 15 finds that the Commissioner’s findings are supported by substantial 16 evidence and are free from material legal error.4 (See Joint Stip. After consideration of the record as a whole, the Court 17 18 A. The ALJ Properly Rejected Part of the Medical Expert’s Opinion 19 20 1. Pertinent Facts 21 22 After the hearing on September 25, 2018, as noted above, the 23 ALJ sought the opinion of a medical expert to review the evidence 24 of record and assess Plaintiff’s functional limitations for the 25 26 27 28 4 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 6 1 relevant period between Plaintiff’s alleged onset date of October 2 24, 2012, and her last insured date of December 31, 2013. 3 101-02). 4 interrogatories on orthopedic specialist Dr. Peter Schosheim, M.D. 5 (AR 4373-87). (See AR To that end, on December 4, 2018, the ALJ propounded 6 7 In response 8 opined, 9 Plaintiff was limited to standing or walking for two hours and 10 sitting for six hours in an eight-hour workday; lifting or carrying 11 ten pounds occasionally and twenty pounds frequently;5 occasionally 12 climbing, balancing, stooping, kneeling, crouching, or crawling; 13 and frequently reaching, handling, or fingering. 14 When asked if there were “any other limitations or restrictions[] 15 on [Plaintiff’s] ability to do basic work activities established 16 by the records as a whole,” Dr. Schosheim responded “[n]o.” 17 4400). 18 treatment alone, specifically including the use of any medications, 19 on [Plaintiff’s] ability to engage in work-related activities,” 20 Dr. Schosheim responded that there were no such effects, while 21 noting that “[s]ome [medications] cause Drowsiness,” but this was 22 “not mentioned as symptom by treaters.” among to other the ALJ’s things, interrogatories, that during the Dr. Schosheim relevant period (AR 4398-99). (AR When asked to indicate “the effect of [Plaintiff’s] medical (AR 4400). 23 Plaintiff’s 24 25 (AR 4408-09). counsel These then submitted asked, among cross-interrogatories. other things: “Could 26 27 28 5 Dr. Schosheim presumably meant the reverse – i.e., ten pounds frequently and twenty pounds occasionally. 7 1 [Plaintiff’s] medical impairments reasonably cause her to be off 2 task during a regular 8-hour workday?” 3 this question, Dr. Schosheim wrote: “May be off task up to 2 4 [hours]/day out of 8 [hours] due to loss of concentration [and] 5 pace [and] Drowsiness from multiple prescribed meds.” 6 Plaintiff’s cross-interrogatories also asked: “Could [Plaintiff’s] 7 medical impairments reasonably result in exacerbations of symptoms 8 that would cause her to miss days off work?” 9 Schosheim responded: “~3-5 Days/Month [due to] Fibromyalgia [and] 10 post Cervical laminectomy syndrome.” (AR 4409). In response to (AR 4413). (AR 4409). Dr. (AR 4413). 11 12 The ALJ, reviewing the medical evidence in the decision, gave 13 great weight to the opinion Dr. Schosheim provided in response to 14 the ALJ’s interrogatories. 15 largely 16 limitations. 17 Schosheim was a well-qualified medical expert who had access to 18 the fully-developed medical record. 19 that 20 “generally 21 comparatively modest objective evidence” and Plaintiff’s “largely 22 conservative treatment records.” adopted Dr. Dr. (AR 35-36). Schosheim’s assessment (See AR 30-31, 4398-99). Schosheim’s consistent opinion with of the The ALJ’s RFC finding Plaintiff’s The ALJ found that Dr. (AR 35). The ALJ also found Plaintiff’s overall of limitations record, including was the (AR 35-36). 23 24 However, the ALJ determined that no further limitations were 25 warranted based on Dr. Schosheim’s responses to Plaintiff’s cross- 26 interrogatories, 27 Plaintiff “[m]ay be off task” for up to two hours a day due to a 28 loss of concentration or to drowsiness from medications,” and that 8 including Dr. Schosheim’s statements that 1 Plaintiff could miss about “3-5 Days/Month [due to] Fibromyalgia 2 [and] post Cervical laminectomy syndrome.” 3 ALJ gave the following explanation for rejecting these additional 4 assessments: (AR 36, 4413). 5 6 [Dr. Schosheim] never alluded to such “off task” or work 7 absence 8 interrogatories, in which [Dr. Schosheim] explicitly 9 stated limitations that he in was his “only initial responses discuss[ing] to my impairments 10 starting [on] 10-24-12 [and continuing through] 12-31- 11 13,” and explicitly stated that there were not “any other 12 limitations or restrictions[] on [Plaintiff’s] ability 13 to do basic work activities established by the records 14 as a whole,” aside from those noted in the functional 15 assessment he provided therein. 16 Schosheim did not assess “off task” or work absence 17 limitations in the functional assessment he provided in 18 response to my interrogatories, which assessment I find 19 to be generally consistent with the overall evidence, 20 for 21 significant that Dr. Schosheim went out of his way to 22 note, in response to my interrogatories, that although 23 “some med[icatons]s cause drowsiness[,] [that issue was] 24 not mentioned as [a] symptom by treaters.” 25 while [Plaintiff’s counsel] may wish to argue that Dr. 26 Schosheim, in response to [Plaintiff’s counsel’s] own 27 interrogatories, 28 favors [Plaintiff], given that he suggested, among other 9 reasons explained herein. amended his In other words, Dr. Indeed, opinion in I find it Accordingly, a way that The 1 points, that [Plaintiff] “may be off task up to 2 2 hours/day out of 8 hours due to [a] loss of concentration 3 [and] pace [and] drowsiness from multiple prescribed 4 medications,” this later opinion is at odds with Dr. 5 Schosheim’s own review of the record. In fact, the 6 specific 7 referred as support for his later-expressed opinion that 8 [Plaintiff’s] 9 ability to work 5 days/week [and] 8 h[ou]rs/day” . . . pages of evidence medications to which “would Dr. effect Schosheim [sic] [her] 10 say no such thing. 11 specific citations to evidence supporting his response 12 to [Plaintiff’s counsel’s] interrogatory regarding “days 13 off work,” which, in addition to other reasons discussed 14 above, leaves me disinclined to accept Dr. Schosheim’s 15 later-expressed assessment. In short, Dr. Schosheim’s 16 later-expressed opinions were solicited by [Plaintiff’s] 17 attorney in a carefully calculated way that, while I may 18 commend [Plaintiff’s counsel] for her zealous efforts on 19 behalf of [Plaintiff], frankly renders them much less 20 reliable than his initial assessment and more open to 21 attack. 22 assessment, as 23 attack; not 24 opinion, it is also better supported and more consistent 25 with the overall evidence and therefore entitled to 26 greater weight. In it Moreover, Dr. Schosheim provided no contrast, [Dr. explained only herein, represents 27 28 Schosheim’s] (AR 36) (record citations omitted). 10 survives the more initial any such unbiased 2. 1 Applicable Law 2 Social Security regulations require the Agency to “evaluate 3 4 every medical opinion” that it receives. 20 C.F.R. § 404.1527(c). 5 An ALJ may reject the medical opinions of examining physicians or 6 non-examining physicians (including non-examining medical experts) 7 only by providing specific and legitimate reasons supported by 8 substantial evidence. 9 423 F. App’x 703, 705 (9th Cir. 2011) (citing Lester v. Chater, 81 10 F.3d 821, 830-31 (9th Cir. 1995)); Mark D. v. Comm’r of Soc. Sec., 11 2018 WL 6804319, at *6 (W.D. Wash. Dec. 27, 2018) (“An ALJ must 12 still 13 examining doctor’s opinion, or significant parts of it.”) (citing 14 Shafer v. Astrue, 518 F.3d 1067, 1069-70 (9th Cir. 2008)). An ALJ 15 may provide “substantial evidence” for rejecting a medical opinion 16 by “setting out a detailed and thorough summary of the facts and 17 conflicting clinical evidence, stating his interpretation thereof, 18 and making findings.” 19 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)) (quotation marks 20 omitted). See Murphy v. Comm’r of Soc. Sec. Admin., give specific and legitimate reasons to reject a non- Garrison, 759 F.3d at 1012 (citing Reddick 21 22 3. Analysis 23 24 Plaintiff contends that the ALJ failed to provide adequate 25 reasons to reject Dr. Schosheim’s opinion in response to 26 Plaintiff’s cross-interrogatories – specifically, the limitations 27 of being off-task up to two hours a day and missing work 3-5 days 28 a month. (Joint Stip. at 9-11). However, the ALJ properly rejected 11 1 Dr. Schosheim’s later responses by providing several specific and 2 legitimate reasons. 3 that 4 contradicted Dr. Schosheim’s initial responses, and seemed to have 5 been 6 Plaintiff’s counsel. 7 that the later responses did not warrant great weight because they 8 were not supported with citations to the record and were less 9 consistent with the objective evidence in the record. 10 the later solicited Among these reasons, the ALJ reasonably found responses by the were less “carefully (AR 36). reliable calculated” because questions they of The ALJ also reasonably concluded (AR 36). Plaintiff’s contentions fail to demonstrate otherwise. 11 12 Plaintiff disputes the ALJ’s remark that Dr. Schosheim’s later 13 responses were unreliable because Plaintiff’s counsel’s cross- 14 interrogatories were “carefully calculated.” 15 As noted above, these cross-interrogatories included the following 16 questions: (Joint Stip. at 9). 17 18 4. Could [Plaintiff’s] medical impairments reasonably 19 cause 20 workday? her to be off task during a regular 8-hour 21 22 5. Could [Plaintiff’s] medical impairments reasonably 23 result in exacerbations of symptoms that would cause her 24 to miss days off work? 25 26 (AR 4409) (emphasis added). Because these questions ask whether 27 Plaintiff’s impairments could have certain consequences (i.e., 28 being absent or off-task), Dr. Schosheim’s affirmative responses 12 1 may reasonably be interpreted to mean that such consequences are 2 merely possible, even if unlikely. 3 Schosheim’s response to question 4 – that Plaintiff “may be off 4 task up to 2 hours/day . . . ,” as the ALJ himself emphasized (see 5 AR 36, 4413) – supports this interpretation. 6 reasonable for the ALJ to construe the responses as unreliable in 7 light of the wording of these questions. Indeed, the wording of Dr. It was therefore 8 The 9 ALJ also reasonably determined that Dr. Schosheim’s 10 responses to the later questions conflicted with his responses to 11 the initial questions. 12 Dr. Schosheim “never alluded to such ‘off task’ or work absence 13 limitations 14 interrogatories.” 15 his initial responses that there were not “any other limitations 16 or 17 activities established by the records as a whole,” and also that 18 no 19 medications. 20 reasonably found it “significant that Dr. Schosheim went out of 21 his way to note, in response to [the ALJ’s] interrogatories, that 22 although ‘some med[icatons]s cause drowsiness[,] [that issue was] 23 not mentioned as [a] symptom by treaters.’” 24 4400). 25 conflict, to some extent, with his later statement that Plaintiff 26 “[m]ay be off task up to 2 [hours]/day out of 8 [hours] due to loss 27 of 28 prescribed meds.” in restrictions[] further (AR 36). his initial (AR 36). on As the ALJ correctly pointed out, responses [the ALJ’s] Dr. Schosheim instead indicated in [Plaintiff’s] limitations to were ability to attributable (See AR 36, 4400). do to basic work Plaintiff’s On the latter point, the ALJ (AR 36) (quoting AR These statements from Dr. Schosheim certainly do seem to concentration [and] pace [and] Drowsiness (AR 4413) (emphasis added). 13 from multiple 1 Plaintiff also disputes the ALJ’s finding that Dr. Schosheim’s 2 initial interrogatory responses were more consistent with the 3 medical evidence than were his later responses to the counter- 4 interrogatories. (Joint Stip. at 10). 5 takes the 6 medical evidence as “comparatively modest,” and of Plaintiff’s 7 treatment as “largely conservative.” 8 35-36). 9 evaluation of the medical evidence to support these findings. issue with However, ALJ’s the ALJ Plaintiff particularly characterization provided of the objective (Joint Stip. at 10; see AR a specific and detailed For 10 example, the ALJ noted that many of the imaging studies in the 11 record “explicitly refer to findings that are only mild or moderate 12 at most.” 13 1507).6 14 physical exam findings,” particularly with respect to fibromyalgia, 15 about which the ALJ was “frankly unable to find clear documentation 16 of specific numbers and locations of relevant tenderpoint findings 17 in the period at issue.” (AR 29, 33) (citing, e.g., AR 511-12, 18 652, 663, 695, 760, 786). The ALJ also discussed and cited record 19 evidence indicating that, aside from some injections and a 2013 20 surgery, Plaintiff’s symptoms were “generally managed with largely 21 conservative treatment measures[,] such as medications, routine 22 follow-up 23 including the injections and surgery, did “yield some (albeit (AR 33) (citing AR 510-11, 1487-88, 1496, 1499, 1502, The ALJ also noted Plaintiff’s “often fairly unremarkable appointments, and the like,” and these measures, 24 6 25 26 27 28 While the ALJ’s citations refer to the pages as numbered within the individual exhibits compiled in the record, this Order refers to the corresponding page numbers of the Administrative Record. For example, where the ALJ here cites pages 3-4 of Exhibit B2F, the Court refers to these same pages by their corresponding Administrative Record page numbers, AR 510-11. 14 1 reportedly not total) relief.” (AR 37-38) (citing AR 508-09, 578, 2 649, 691-92, 756-57, 1811, 1904, 2885-86). 3 may be susceptible to different views, the ALJ’s findings on this 4 issue are reasonable and supported by substantial evidence. Even if the evidence 5 6 In addition, the ALJ reasonably found that the lack of record 7 citations in Dr. Schosheim’s later responses also made them less 8 reliable. 9 responses contain little more than lists of Plaintiff’s diagnoses The only two pages that Dr. Schosheim cited in the later 10 and prescriptions. (See AR 599, 634, 4412). As the ALJ pointed 11 out, these cited pages do not reflect any limitations resulting 12 from Plaintiff’s medications, nor do they suggest any further 13 limitations from her conditions. (See AR 36, 599, 634). 14 15 Accordingly, Plaintiff has failed to demonstrate any error in 16 the ALJ’s consideration of Dr. Schosheim’s opinions. The ALJ’s 17 findings and conclusions must be upheld, as they are based on 18 specific and legitimate reasons, and supported by substantial 19 evidence in the record. 20 492 (9th Cir. 2015) (ALJ determines credibility, resolves conflicts 21 in the testimony, and resolves ambiguities in the record); Lewis 22 v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“[I]f evidence is 23 susceptible of more than one rational interpretation, the decision 24 of the ALJ must be upheld”). See Brown-Hunter v. Colvin, 806 F.3d 487, 25 26 27 28 15 1 B. The ALJ Properly Discounted Plaintiff’s Subjective Statements 2 3 1. Pertinent Facts 4 5 Plaintiff testified at the hearing on January 25, 2018, that 6 she had been unable to work due to lower back pain and neck pain 7 that radiated down her right arm. 8 treated with pain medications, physical therapy, and different 9 injections. (AR 69-72, 85). (AR 72-73, 82-84, 86-89). She had been She stated that her 10 injections provided some temporary relief to her pain. 11 She also underwent neck surgery in January 2013 and low back surgery 12 in January 2016. 13 did not help. 14 psychiatric 15 remembering and concentrating. (AR 74). (AR 75). treatment (AR 84). Plaintiff stated that her 2013 surgery She also testified that she had been in since 2012, and had developed problems (AR 89-92). 16 17 Plaintiff testified that she had difficulty grasping and 18 lifting objects (AR 74), and she could not stand for more than 19 thirty minutes before needing to lie down (AR 77). 20 moreover, that she needed to lie down periodically throughout the 21 day to alleviate the pain. 22 drove, bathed, and dressed herself, though with some difficulty. 23 (AR 80, 82). 24 began living with her sister, who helped with daily activities. 25 (AR 92). (AR 77-78). She stated, She testified that she Plaintiff reported that around January 2013, she 26 27 The ALJ, assessing these statements and record as a whole, 28 found that while Plaintiff’s “medically determinable impairments 16 1 could reasonably be expected to cause the alleged symptoms,” her 2 “statements concerning the intensity, persistence and limiting 3 effects of these symptoms [were] not entirely consistent with the 4 medical evidence and other evidence in the record for the reasons 5 explained in th[e] decision.” 6 “there appears to be a disconnect between [Plaintiff’s] subjective 7 complaints regarding the period now at issue on one side, and what 8 the comparatively modest diagnostic and clinical evidence regarding 9 that period will reasonably support on the other.” (AR 31). The ALJ remarked that (AR 37). In 10 addition to the objective medical evidence, the ALJ found that the 11 severity of Plaintiff’s subjective complaints was undermined, as 12 well, by her treatment history and her daily activities. 13 39). (AR 37- 14 15 2. Applicable Law 16 17 “A claimant’s residual functional capacity is what he can 18 still do despite his physical, mental, nonexertional, and other 19 limitations.” 20 Cir. 1989) (citing 20 C.F.R. § 404.1545). 21 requires the ALJ to consider a claimant’s impairments and any 22 related symptoms that may “cause physical and mental limitations 23 that affect what [he] can do in a work setting.” 24 §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC, 25 the ALJ considers all relevant evidence, including a claimant’s 26 statements and residual functional capacity assessments made by 27 consultative Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th examiners, State Agency 28 17 An RFC assessment physicians, 20 C.F.R. and medical 1 experts. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also id. 2 §§ 404.1513(c), 416.913(c). 3 4 When assessing a claimant’s credibility regarding subjective 5 pain or intensity of symptoms, the ALJ must engage in a two-step 6 analysis. 7 First, the ALJ must determine if there is medical evidence of an 8 impairment that could reasonably produce the symptoms alleged. 9 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “In this 10 analysis, the claimant is not required to show that her impairment 11 could reasonably be expected to cause the severity of the symptom 12 she has alleged; she need only show that it could reasonably have 13 caused some degree of the symptom.” 14 (citation omitted). “Nor must a claimant produce objective medical 15 evidence of the pain or fatigue itself, or the severity thereof.” 16 Id. (citation omitted). Id. (emphasis in original) 17 18 If the claimant satisfies this first step, and there is no 19 evidence of malingering, the ALJ must provide specific, clear and 20 convincing reasons for rejecting the claimant’s testimony about 21 the symptom severity. 22 at 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of 23 malingering based on affirmative evidence thereof, he or she may 24 only find an applicant not credible by making specific findings as 25 to 26 each.”). 27 convincing 28 Security cases.” credibility and Id. at 1014-15; see also Robbins, 466 F.3d stating clear and convincing reasons for “This is not an easy requirement to meet: The clear and standard is the most demanding required in Social Garrison, 759 F.3d at 1015 (citation omitted). 18 1 Where, as here, the ALJ finds that a claimant suffers from a 2 medically determinable physical or mental impairment that could 3 reasonably be expected to produce her alleged symptoms, the ALJ 4 must evaluate “the intensity and persistence of those symptoms to 5 determine the extent to which the symptoms limit an individual’s 6 ability to perform work-related activities for an adult.” 7 Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3. 8 superseded SSR 96–7p and eliminated the term “credibility” from 9 the Agency’s sub-regulatory policy. Soc. SSR 16–3p However, the Ninth Circuit 10 has noted that SSR 16–3p “makes clear what [the Ninth Circuit’s] 11 precedent already required”: 12 13 that assessments of an individual’s testimony by an ALJ 14 are designed to “evaluate the intensity and persistence 15 of symptoms after the ALJ finds that the individual has 16 a 17 reasonably be expected to produce those symptoms, and 18 not 19 claimant’s character and apparent truthfulness. medically to determinable delve into impairment(s) wide-ranging that scrutiny could of the 20 21 Trevizo, 871 F.3d at 679 n.5 (quoting SSR 16–3p) (alterations 22 omitted). 23 In discrediting the claimant’s subjective symptom testimony, 24 25 the ALJ may consider: “ordinary techniques of credibility 26 evaluation, such as . . . prior inconsistent statements concerning 27 the symptoms, and other testimony by the claimant that appears less 28 than candid; unexplained or inadequately explained failure to seek 19 1 treatment or to follow a prescribed course of treatment; and the 2 claimant’s daily activities.” 3 1163 (9th Cir. 2014) (citation omitted). 4 a claimant’s testimony and conduct, or internal contradictions in 5 the claimant’s testimony, also may be relevant. 6 775 F.3d 1133, 1137 (9th Cir. 2014). 7 consider the observations of treating and examining physicians 8 regarding, among other matters, the functional restrictions caused 9 by the claimant’s symptoms. Ghanim v. Colvin, 763 F.3d 1154, Inconsistencies between Burrell v. Colvin, In addition, the ALJ may Smolen v. Chater, 80 F.3d 1273, 1284 10 (9th Cir. 1996); accord Burrell, 775 F.3d at 1137. However, it is 11 improper for an ALJ to reject subjective testimony based “solely 12 on a lack of objective medical evidence to fully corroborate the 13 claimant’s allegations.” 14 F.3d 1219, 1227 (9th Cir. 2009) (citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 15 16 The ALJ must make a credibility determination with findings 17 that are “sufficiently specific to permit the court to conclude 18 that the ALJ did not arbitrarily discredit claimant’s testimony.” 19 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation 20 omitted); see Brown-Hunter, 806 F.3d at 493 (“A finding that a 21 claimant’s testimony is not credible must be sufficiently specific 22 to allow a reviewing court to conclude the adjudicator rejected 23 the 24 arbitrarily discredit a claimant’s testimony regarding pain.”) 25 (citation 26 claimant’s testimony may not be the only reasonable one, if it is 27 supported by substantial evidence, “it is not [the court’s] role claimant’s testimony omitted). on permissible Although an 28 20 ALJ’s grounds and did interpretation not of a 1 to second-guess it.” 2 Cir. 2001). Rollins v. Massanari, 261 F.3d 853, 857 (9th 3 3. 4 Analysis 5 6 Plaintiff contends that the ALJ failed to provide specific, 7 clear and convincing reasons to reject her testimony regarding her 8 symptoms and functional limitations. 9 However, Plaintiff fails to identify any material error in the 10 ALJ’s assessment, which is supported by substantial evidence in 11 the record. (See Joint Stip. at 20-25). 12 First, 13 the ALJ reasonably found that the severity of 14 Plaintiff’s alleged limitations contrasted with “the comparatively 15 modest diagnostic and clinical evidence.” 16 supported this with a detailed review of the medical evidence in 17 the record (as discussed above with respect to the first issue). 18 This 19 grounds, is an appropriate basis for discounting a claimant’s 20 subjective statements. 21 subjective pain testimony cannot be rejected on the sole ground 22 that it is not fully corroborated by objective medical evidence, 23 the medical evidence is still a relevant factor in determining the 24 severity of the claimant’s pain and its disabling effects.”); SSR 25 16-3p, *5 (“objective medical evidence is a useful indicator to 26 help 27 persistence of symptoms, including the effects those symptoms may 28 have on the ability to perform work-related activities”). 21 factor, make when accompanied reasonable by other (AR 37). clear and The ALJ convincing See Rollins, 261 F.3d at 857 (“While conclusions about the intensity and 1 The ALJ also reasonably discounted Plaintiff’s testimony based 2 on evidence that her treatments were largely conservative and 3 generally effective in controlling Plaintiff’s pain and symptoms. 4 See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 5 Cir. 2006) (“Impairments that can be controlled effectively with 6 medication 7 eligibility for SSI benefits.”); Tommasetti, 533 F.3d at 1040 (“The 8 record reflects that Tommasetti responded favorably to conservative 9 treatment . . . . are not disabling Such a for the response to purpose of determining conservative treatment 10 undermines Tommasetti’s reports regarding the disabling nature of 11 his pain.”); Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) 12 (“evidence 13 treatment” supports an adverse credibility finding). 14 ALJ noted, among other things, that while Plaintiff “did undergo 15 anterior cervical fusion with internal fixation on January 11, 16 2013, it apparently was completed successfully,” considering that 17 Plaintiff’s “surgeon noted that ‘no complications occurred’ and 18 [Plaintiff] herself reported months later that ‘[the surgery] was 19 helpful.’” (AR 33) (citing AR 578, 2885-86). 20 that other than this 2013 surgery and some injections, Plaintiff’s 21 conditions during the relevant period were “generally managed with 22 largely conservative treatment measures - such as medications, 23 routine follow-up appointments, and the like - and that these 24 measures did, by [Plaintiff’s] own admission, yield some (albeit 25 reportedly not total) relief.” 26 691-92, 756-57, 1811, 1904). 27 in the way of other aggressive treatment measures in the period 28 now at issue - such as further surgeries to address one or more of 22 suggesting that [the claimant] responded well to Here, the The ALJ further found (AR 37-38) (citing AR 508-09, 649, The ALJ remarked that he saw “little 1 [Plaintiff’s] spinal impairments, gastric bypass to alleviate her 2 obesity, ongoing hospitalizations (to treat one or more of her 3 physical 4 emergency room visits, or the like - for any of her conditions in 5 that period.” impairments, mental impairments, or both), frequent (AR 38) (citing AR 1540). 6 7 The ALJ also found that, to the extent Plaintiff’s symptoms 8 persisted despite prescribed treatments, it may be at least partly 9 due to Plaintiff’s failure to fully comply with such treatments. 10 (AR 38). 11 claimant testimony. 12 800 13 prescribed treatment (e.g., “[failure to] follow regular exercise 14 and dietary plans”) may be considered “inconsistent with a treating 15 physician’s medical opinion”); Ohman v. Berryhill, 2018 WL 1316903, 16 *9 (E.D. Cal. Mar. 14, 2018) (“A plaintiff’s failure to follow a 17 physician’s 18 legitimate reason for rejection [of] the physician’s opinion.”) 19 (citations omitted); see generally 20 C.F.R. § 404.1530(b) (if a 20 claimant “do[es] not follow [a doctor’s] prescribed treatment 21 without a good reason” may not be found disabled). 22 example, 23 Plaintiff, at times, had failed to keep up with her medications or 24 attend therapy appointments. 25 Moreover, 26 contributed to Plaintiff’s treatment noncompliance, the ALJ also 27 found that Plaintiff was “well aware of various programs that 28 provide care to those with specific [financial] needs.” 23 & This, too, is an appropriate basis for discounting a n.3 (8th See, e.g., Owen v. Astrue, 551 F.3d 792, 799- Cir. prescribed the to ALJ the 2008) (“claimant’s course of specifically extent treatment noted noncompliance” is evidence a specific with and Here, for indicating that (AR 38) (citing AR 578, 751, 805). that financial concerns may have (AR 38- 1 39) (citing AR 1938, 2901). The ALJ thus reasonably determined 2 that if Plaintiff’s conditions had been as debilitating as she 3 claimed, then “one might reasonably expect that [Plaintiff] would 4 have sought - and, if warranted, received - more consistent and/or 5 more aggressive forms of care in that period.” (AR 39). 6 7 In addition, the ALJ supported his assessment of Plaintiff’s 8 testimony by finding that Plaintiff’s daily activities were “not 9 fully consistent with claims of disabling impairment.” (AR 39). 10 The ALJ noted, for example, that Plaintiff admitted she was able 11 to do laundry, dress herself, drive, and engage in other activities, 12 such as going to the “[g]ym for water and sauna,” that “one might 13 not expect a person with [Plaintiff’s] allegedly disabling symptoms 14 (such as debilitating pain and memory problems) to be able to 15 perform.” 16 considering these activities, the ALJ clarified that he was “not 17 saying that [Plaintiff’s] activities, by themselves, equate[d] with 18 work activity or show[ed] the ability to engage in work.” 19 The ALJ found, rather, that Plaintiff’s activities “suggest[ed] 20 that she had greater capabilities in the period at issue” than she 21 alleged. 22 reasonably 23 “allegations of disabling impairment [were] not entirely consistent 24 with the overall record.” 25 (“Inconsistencies between a claimant's testimony and the claimant's 26 reported 27 credibility determination.”); Ghanim, 763 F.3d at 1165 (“Engaging 28 in daily activities that are incompatible with the severity of 24 (AR 39) (citing AR 527; see also AR 80, 82). (AR 39). In (AR 39). This factor, while not overwhelming on its own, supported activities the ALJ’s conclusion that Plaintiff’s (AR 39); see Burrell, 775 F.3d at 1137 provide a valid reason for an adverse 1 symptoms 2 determination.”); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 3 2012) 4 difficulty functioning, they may be grounds for discrediting the 5 claimant’s testimony to the extent that they contradict claims of 6 a totally debilitating impairment.”); Burch v. Barnhart, 400 F.3d 7 676, 680-81 (9th Cir. 2005) (claimant’s allegations of disability 8 properly discredited where claimant was able to care for her own 9 personal needs, cook, clean, shop, interact with her nephew and 10 alleged (“Even can where [a support claimant’s] an adverse activities credibility suggest some boyfriend, and manage finances). 11 Accordingly, 12 the ALJ appropriately discounted Plaintiff’s 13 subjective testimony by providing specific, clear and convincing 14 reasons supported by substantial evidence in the record. 15 16 C. The ALJ Properly Found Plaintiff Not Disabled at Step Five 17 18 1. Applicable Law 19 20 At step five of the sequential evaluation process, “the 21 Commissioner has the burden to identify specific jobs existing in 22 substantial numbers in the national economy that a claimant can 23 perform despite his identified limitations.” 24 778 F.3d 842, 845 (9th Cir. 2015) (citation omitted). 25 this finding, the ALJ determines “whether, given the claimant’s 26 RFC, age, education, and work experience, he actually can find some 27 work in the national economy.” 28 also 20 C.F.R. § 404.1520(g) (“we will consider [your RFC] together 25 Zavalin v. Colvin, In making Id. at 846 (citation omitted); see 1 with your vocational factors (your age, education, and work 2 experience) to determine if you can make an adjustment to other 3 work”). 4 The ALJ generally relies on the testimony of the vocational 5 6 expert to make the appropriate determination at step five. 7 C.F.R. § 404.1566(e); 20 C.F.R. § 416.966(e). 8 the vocational expert to testify as to “(1) what jobs the claimant, 9 given his or her [RFC], would be able 20 An ALJ may call upon to do; and (2) the 10 availability of such jobs in the national economy.” 11 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). 12 “poses hypothetical questions to the vocational expert that set 13 out all of the claimant’s impairments for the vocational expert’s 14 consideration.” 15 includes “all of the limitations that the ALJ found credible and 16 supported by substantial evidence in the record,” then the ALJ may 17 properly rely on the vocational expert’s response. 18 Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); Osenbrock v. 19 Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (testimony of qualified 20 vocational expert constitutes substantial evidence); Johnson v. 21 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (“[T]he ALJ was within 22 his rights to rely solely on the vocational expert’s testimony.”) 23 (quoting Conn v. Sec’y of Health and Human Servs., 51 F.3d 607, 24 610 (6th Cir. 1995)). Id. (citation omitted). 25 26 27 28 26 Tackett v. In doing so, an ALJ When a hypothetical Bayliss v. 2. 1 Analysis 2 3 Plaintiff contends that the ALJ erred in finding Plaintiff 4 not disabled at step five because the ALJ relied on the vocational 5 expert’s response to a hypothetical that omitted the work-related 6 limitations assessed by medical expert Dr. Schosheim in response 7 to 8 Schosheim’s responses indicating Plaintiff would be off-task up to 9 two hours in an eight-hour workday and would miss work 3-5 days a Plaintiff’s counter-interrogatories (Joint Stip. at 36; see AR 4413). – specifically, Dr. 10 month. As Plaintiff points out, 11 the vocational expert stated that these additional limitations 12 would preclude any full-time sustained employment in jobs existing 13 in significant numbers in the national economy. (AR 487-89). 14 However, as discussed above (with respect to the first issue), 15 16 the ALJ appropriately rejected these additional limitations 17 assessed by Dr. Schosheim, and thus did not incorporate such 18 limitations in the RFC assessment. 19 five, the ALJ relied on the vocational expert’s response to a 20 hypothetical that contained all the same functional limitations 21 that the ALJ assessed in the RFC. 22 For the reasons discussed above, Plaintiff has failed to identify 23 any material error in the ALJ’s RFC assessment. 24 ALJ properly relied on the vocational expert’s response at step 25 five, which constitutes substantial evidence in support of the 26 ALJ’s decision. 27 F.3d at 1163. (See AR 30-31, 36). At step (See AR 30-31, 40-43, 481-82). Accordingly, the See Bayliss, 427 F.3d at 1217-18; Osenbrock, 240 28 27 CONCLUSION 1 2 3 4 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 Dated: June 22, 2021 9 ______________/s/_____________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28
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