Joanie Graves v. Nancy A. Berryhill, No. 5:2018cv01056 - Document 35 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. The decision of the Social Security Commissioner is AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered accordingly. (see document for further details) (hr)
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Joanie Graves v. Nancy A. Berryhill Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 J OANIE G.1, an Individual, Case No.: 5:18-0 10 56 ADS 12 Plaintiff, 13 v. 14 15 MEMORANDUM OPINION AND ORDER ANDREW M. SAUL2 , Com m issioner of Social Security, 16 Defendant. 17 18 I. Plaintiff J oanie G. (“Plaintiff”) challenges Defendant Andrew M. Saul, 19 20 IN TROD U CTION Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 21 1 22 23 24 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. 2 On J une 17, 20 19, Saul becam e the Com m issioner of the Social Security Adm inistration. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 of her application for a period of disability and disability insurance benefits (“DIB”). 2 Plaintiff contends that the Adm inistrative Law J udge (“ALJ ”) failed to properly consider 3 relevant m edical evidence and im properly rejected her substantive statem ents and 4 testim ony of her sym ptom s and lim itations in assessing her residual functional capacity. 5 For the reasons stated below, the decision of the Com m issioner is affirm ed, and this 6 m atter is dism issed with prejudice. 7 II. FACTS RELEVAN T TO TH E APPEAL 8 Plaintiff last worked in February 20 14 in the capacity of what she described as a 9 counselor at a youth hom eless shelter, and prior to that as an adm inistrative assistant. 10 (Adm inistrative Record “AR” 38, 42-43). When Plaintiff filed her claim for social 11 security benefits, she alleged disability due to degenerative joint disease in her hip and 12 lum bar spine. (AR 64). 13 In response to the ALJ asking her what the prim ary reason is she can no longer 14 work, Plaintiff responded: “[t]he m edication I’m on keeps m e drowsy. I’m in pain 24 15 hours a day and m y hand and hip and legs hurt 24 hours a day, so it’s hard for m e to sit, 16 m ove, or any of that. Write, because I was used to typing all day and writing all day. 17 But m y hand swells up and m y legs and stuff.” (AR 46). 18 In finding Plaintiff not disabled under the Social Security Act, the ALJ found that 19 Plaintiff was capable of perform ing light work with significant lim itations. (AR 23). The 20 only m edical opinions in evidence assessed Plaintiff capable of perform ing m edium 21 work and the ALJ gave those opinions little weight. (AR 22-23). None of Plaintiff’s 22 treating physicians provided a medical opinion regarding the Plaintiff’s functional 23 lim itations and there is no m edical source opinion in evidence supporting greater 24 lim itations than those assessed by the ALJ . (AR 23). -2- 1 III. PROCEED IN GS BELOW 2 A. Pro ce d u ral H is to ry 3 Plaintiff protectively filed her application for DIB on March 4, 20 14, alleging 4 disability beginning February 5, 20 14. (AR 156-61). Plaintiff’s claim s were denied 5 initially on J uly 25, 20 14 (AR 86-89), and upon reconsideration on April 21, 20 15 (AR 6 94-98). A hearing was held before ALJ Robert Lenzini on April 10 , 20 17. (AR 30 -63). 7 Plaintiff, represented by counsel, appeared and testified at the hearing, as well as 8 vocational consultant Aida Y. Worthington. Id. 9 On May 23, 20 17, the ALJ found that Plaintiff was “not disabled” within the 10 m eaning of the Social Security Act.3 (AR 12-29). The ALJ ’s decision becam e the 11 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 12 review on March 20 , 20 18. (AR 1-6). Plaintiff then filed this action in District Court on 13 May 16, 20 18, challenging the ALJ ’s decision. [Docket (“Dkt.”) No. 1]. 14 On Novem ber 6, 20 18, Defendant filed an Answer, as well as a copy of the 15 Certified Adm inistrative Record. [Dkt. Nos. 20 , 21]. Plaintiff filed a Mem orandum in 16 Support of Com plaint on April 16, 20 19. [Dkt. No. 32]. Defendant filed a Mem orandum 17 in Support of Answer on May 21, 20 19. [Dkt. No. 33]. On J une 6, 20 19, Plaintiff filed a 18 Statem ent of No Reply. [Dkt. No. 34]. The case is ready for decision.4 19 20 21 22 23 24 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). 4 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. § 636(c), including for entry of final J udgm ent. [Dkt. Nos. 13, 16]. -3- 1 B. Su m m ary o f ALJ D e cis io n Afte r H e arin g 2 In the decision (AR 15-25), the ALJ followed the required five-step sequential 3 evaluation process to assess whether Plaintiff was disabled under the Social Security 4 Act.5 20 C.F.R. § 40 4.1520 (a)(4). At s te p o n e , the ALJ found that Plaintiff had not 5 been engaged in substantial gainful activity since February 5, 20 14, the alleged onset 6 date, through her date last insured of Septem ber 30 , 20 16. (AR 17). At s te p tw o , the 7 ALJ found that Plaintiff had the following severe im pairm ents: (a) degenerative disc 8 disease and facet arthropathy of the lum bar spine; and (b) osteoarthritis of the right hip. 9 (AR 17). At s te p th re e , the ALJ found that Plaintiff “did not have an im pairm ent or 10 com bination of im pairm ents that m et or m edically equaled the severity of one of the 11 listed im pairm ents in 20 CFR Part 40 4, Subpart P, Appendix 1 (20 CFR 40 4.1520 (d), 12 40 4.1525 and 40 4.1526).” (AR 19). The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) 6 13 14 to perform light work as defined in 20 C.F.R. § 40 4.1567(b), 7 except: 15 5 16 17 18 19 20 21 22 23 24 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). 6 An RFC is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. § 40 4.1545(a)(1). 7 “Light work” is defined as lifting no m ore than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted m ay be very little, a job is in this category when it requires a good deal of walking -4- she can lift and/ or carry, push and pull 20 pounds occasionally and 10 pounds frequently; sit for four hours in an eight-hour workday, for up to one hour at a tim e; and stand and/ or walk for four hours in an eight-hour workday, for up to one hour at a tim e. She can occasionally clim b ram ps and stairs, but not clim b ladders, ropes, or scaffolds; frequently balance; occasionally stoop, crouch and crawl; and frequently handle and finger with her dom inant right hand. She cannot work at unprotected heights or around m oving m echanical parts. 1 2 3 4 5 (AR 20 ). At s te p fo u r, based on Plaintiff’s residual functional capacity and the vocational 6 7 expert’s testim ony, the ALJ found that Plaintiff was able to perform her past relevant 8 work as an adm inistrative assistant and a case aide. (AR 24). Accordingly, the ALJ did 9 not proceed to step five and found that Plaintiff was “not disabled”, as defined in the 10 Social Security Act, at any tim e from February 5, 20 14 through Septem ber 30 , 20 16, the 11 date last insured. (AR 24). 12 IV. AN ALYSIS 13 A. Is s u e s o n Ap p e al 14 Plaintiff’s raises two issue for review: (1) that the ALJ failed to properly evaluate 15 the m edical evidence in assessing her RFC; and (2) that the ALJ failed to evaluate 16 Plaintiff’s subjective statem ents regarding her sym ptom s in assessing her RFC. [Dkt. 17 No. 32, Plaintiff’s Mem orandum in Support of Com plaint, 3 and 5]. 18 19 20 21 22 23 or standing, or when it involves sitting m ost of the tim e with som e pushing and pulling of arm or leg controls. To be considered capable of perform ing a full or wide range of light work, you m ust have the ability to do substantially all of these activities. 20 C.F.R. § 40 4.1567(b); see also Rendon G. v. Berryhill, 20 19 WL 20 0 6688, at *3 n.6 (C.D. Cal. May 7, 20 19). 24 -5- 1 B. Stan d ard o f Re vie w 2 A United States District Court m ay review the Com m issioner’s decision to deny 3 benefits pursuant to 42 U.S.C. § 40 5(g). The District Court is not a trier of the facts but 4 is confined to ascertaining by the record before it if the Com m issioner’s decision is 5 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 10 10 (9th Cir. 20 14) 6 (District Court’s review is lim ited to only grounds relied upon by ALJ ) (citing Connett v. 7 Barnhart, 340 F.3d 871, 874 (9th Cir. 20 0 3)). A court m ust affirm an ALJ ’s findings of 8 fact if they are supported by substantial evidence and if the proper legal standards were 9 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). An ALJ can satisfy 10 the substantial evidence requirement “by setting out a detailed and thorough sum m ary 11 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 12 m aking findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 13 om itted). 14 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 15 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 16 weighing both evidence that supports and evidence that detracts from the Secretary’s 17 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 18 internal quotation m arks om itted). “‘Where evidence is susceptible to m ore than one 19 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 20 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 21 (9th Cir. 20 0 5)); see Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If 22 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 23 substitute our judgm ent for that of the ALJ .”). However, the Court m ay review only “the 24 reasons provided by the ALJ in the disability determ ination and m ay not affirm the ALJ -6- 1 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2 20 0 7) (citation om itted). 3 Error in a social security determ ination is subject to harm less error analysis. 4 Ludwig v. Astrue, 681 F.3d 10 47, 10 54 (9th Cir. 20 12). Error is harm less if “it is 5 inconsequential to the ultim ate nondisability determ ination” or, despite the legal error, 6 “the agency's path m ay reasonably be discerned.” Treichler v. Com m 'r of Soc. Sec. 7 Adm in., 775 F.3d 10 90 , 10 99 (9th Cir. 20 14). 8 C. Th e ALJ Pro p e rly Evalu ate d th e Me d ical Evid e n ce 9 Plaintiff contends that the ALJ failed to properly consider relevant m edical 10 evidence of record in assessing her RFC. Defendant argues that the ALJ properly 11 considered and weighed all relevant m edical evidence of record in assessing Plaintiff’s 12 RFC. 13 14 1. Standard for Weighing Medical Opinions The ALJ m ust consider all m edical opinion evidence. 20 C.F. R. § 40 4.1527(b). 15 “As a general rule, m ore weight should be given to the opinion of a treating source than 16 to the opinion of doctors who do not treat the claim ant.” Lester v. Chater, 81 F.3d 821, 17 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where 18 the treating doctor’s opinion is not contradicted by another doctor, it m ay only be 19 rejected for “clear and convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 20 1211, 1216 (9th Cir. 20 0 5)). “If a treating or exam ining doctor’s opinion is contradicted 21 by another doctor’s opinion, an ALJ m ay only reject it by providing specific and 22 legitim ate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 23 F.3d 664, 675 (9th Cir. 20 17) (quoting Bayliss, 427 F.3d at 1216). 24 -7- 1 “Substantial evidence” m eans m ore than a m ere scintilla, but less than a 2 preponderance; it is such relevant evidence as a reasonable person m ight accept as 3 adequate to support a conclusion.” Lingenfelter v. Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 4 20 0 7) (citing Robbins, 466 F.3d at 882). “The ALJ can m eet this burden by setting out a 5 detailed and thorough sum m ary of the facts and conflicting clinical evidence, stating his 6 interpretation thereof, and m aking findings.” Magallanes v. Bowen, 881 F.2d 747, 751 7 (9th Cir. 1989) (citation om itted); see also Tom m asetti v. Astrue, 533 F.3d 10 35, 10 41 8 (9th Cir. 20 0 8) (finding ALJ had properly disregarded a treating physician’s opinion by 9 setting forth specific and legitim ate reasons for rejecting the physician’s opinion that 10 11 were supported by the entire record). As noted above, an RFC is what a claim ant can still do despite existing exertional 12 and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1). Only the ALJ is 13 responsible for assessing a claim ant’s RFC. See 20 C.F.R. § 40 4.1546(c). “It is clear that 14 it is the responsibility of the ALJ , not the claim ant’s physician, to determ ine residual 15 functional capacity.” Vertigan v. Halter, 260 F.3d 10 44, 10 49 (9th Cir. 20 0 1) (citing 20 16 C.F.R. § 40 4.1545). 17 18 2. All Medical Evidence of Record Was Properly Considered As set forth above, the ALJ assessed Plaintiff capable of perform ing light work 19 with significant lim itations. (AR 23). None of the Plaintiff’s treating physicians 20 provided a m edical opinion regarding the Plaintiff’s functional lim itations (AR 23) and 21 Plaintiff does not point to any such opinion here. Furtherm ore, the only m edical 22 opinions in evidence assessed Plaintiff capable of perform ing m edium work. (AR 22- 23 23). The ALJ gave these opinions “little weight” as the physicians had not considered 24 evidence added to the record after the opinions were rendered, including m ore recent -8- 1 diagnostic studies and treatm ent notes showing steroid injections and positive 2 exam ination findings and that one of the opinions did not sufficiently consider 3 Plaintiff’s hip issues. (AR 23). Plaintiff contends there is no m edical evidence supportive of or consistent with 4 5 the ALJ ’s RFC assessm ent. Plaintiff points to certain m edical records such as x-rays, 6 MRI findings and steroid injections and claim s these records evidence greater lim itation 7 than that assessed by the ALJ . 8 [Dkt. No. 32, pp. 4-5]. Plaintiff also points to m edical 8 records containing references to pain, reduced sleep, m edications, as well as 9 depression 9 , and contends the ALJ failed to properly consider the im pact of these 10 ailm ents in the RFC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 8 As Defendant correctly notes, the diagnosis of a condition alone does not establish disability. See Young v. Sullivan, 911 F.2d 180 , 183 (9th Cir. 1990 ). Rather, Plaintiff m ust show that her im pairm ent causes disabling functional lim itations. See 42 U.S.C. § 423(d) (to be disabling, a m edically determ inable im pairm ent m ust preclude substantial gainful activity). 9 Plaintiff contends the ALJ ’s sum m ary disregard of her depression, without any developm ent whatsoever, constitutes reversible error. [Dkt. 32, p. 4]. The ALJ , however, did devote an entire lengthy paragraph in his decision to Plaintiff’s claim of depression. (AR 19). The ALJ found there was a lack of objective evidence to substantiate the existence of a m edically determ inable m ental im pairm ent. To begin, the ALJ noted that “there is no objective m edical evidence that docum ents a m ental health diagnosis resulted from anatom ical, physiological, or psychological abnorm alities that are dem onstrable by m edically acceptable clinical or laboratory diagnostic techniques.” [Id.]. The ALJ also noted that an im pairm ent cannot be established on sym ptom s alone (20 C.F.R. 40 4.150 8; SSR 96-4) and there m ust be evidence from an acceptable m edical source to establish the existence of an im pairm ent (20 CFR 40 4.1527(f)). The ALJ noted that he had reviewed the entire record and found no objective evidence to support a finding of depression to be a m edically determ inable im pairm ent. There is no m ention of depression in the m edical evidence until October 6, 20 15 and it was based only on Plaintiff’s subjective complaints. Further, the two office visits with Plaintiff’s prim ary care physician when Plaintiff’s com plaints of depression were noted both docum ented Plaintiff’s m ental status to be norm al. [Id., citing AR 342, 375]. Moreover, Plaintiff has not explained how any of her purported m ental lim itations are sufficiently restrictive to ultim ately preclude her from perform ing work. See, e.g., Hoopai v. Astrue, 499 F.3d 10 71, 10 77 (9th Cir. 20 0 7) (explaining the -9- 1 The ALJ did a thorough review of the entirety of Plaintiff’s m edical records, 2 including those referenced by Plaintiff. (AR 17-19). The ALJ thoroughly analyzed the 3 only m edical opinions and functional assessm ents in evidence, those of Vincente 4 Bernabe, D.O. and the two State agency m edical consultants (AR 22-23), and found 5 them to be of little weight as they all found Plaintiff capable of perform ing m edium 6 work. The ALJ ’s review of Plaintiff’s m edical record found greater lim itations and thus 7 he assessed Plaintiff capable of perform ing light work with additional restrictions to 8 accom m odate her m edical conditions. As noted, none of Plaintiff’s treating physicians 9 provided any functional assessm ents of her lim itations and Plaintiff points to no 10 11 m edical opinions or assessm ents that the ALJ disregarded. The Court therefore finds the ALJ properly assessed the m edical evidence of 12 record. Plaintiff would sim ply prefer the ALJ to have a different interpretation of the 13 m edical evidence than that assessed. However, it is the role of the ALJ to resolve any 14 conflicts or am biguities in the m edical record. See Tom m asetti, 533 F.3d at 10 41-42 15 (“The ALJ is the final arbiter with respect to resolving am biguities in the m edical 16 evidence.”): Andrews v. Shalala, 53 F.3d 10 35, 10 41 (9th Cir. 1995) (holding that it is the 17 ALJ ’s job to resolve any conflicts). See Ryan v. Com m ’r of Soc. Sec., 528 F.3d 1194, 1198 18 (9th Cir. 20 0 8) (“’Where evidence is susceptible to m ore than one rational 19 20 21 22 23 24 Ninth Circuit has not “held m ild or m oderate depression to be a sufficiently severe nonexertional lim itation that significantly lim its a claim ant’s ability to do work beyond the exertional lim itation”); Ball v. Colvin, 20 15 WL 2345652, at *3 (C.D. Cal. May 15, 20 15) (“As the ALJ found that Plaintiff’s m ental im pairm ents were m inim al, the ALJ was not required to include them in Plaintiff’s RFC.”); Sisco v. Colvin, 20 14 WL 2859187, at *7-8 (N.D. Cal. J une 20 , 20 14) (ALJ not required to include in RFC assessm ent m ental im pairm ent that im posed “no significant functional lim itations”). Accordingly, the Court finds no error in the ALJ ’s assessm ent of Plaintiff’s claim of m ental im pairm ent. -10 - 1 interpretation,’ the ALJ ’s decision should be upheld.”) (citation omitted); Robbins v. 2 Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If the evidence can support either 3 affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent for that 4 of the ALJ .”). Indeed, an ALJ is not obligated to discuss “every piece of evidence” when 5 interpreting the evidence and developing the record. See Howard ex rel. Wolff v. 6 Barnhart, 341 F.3d 10 0 6, 10 12 (9th Cir. 20 0 3) (citation om itted). Sim ilarly, an ALJ is 7 also not obligated to discuss every word of a doctor’s opinion or include lim itations not 8 actually assessed by the doctor. See Fox v. Berryhill, 20 17 WL 3197215, *5 (C.D. Cal. J uly 9 27, 20 17); Howard, 341 F.3d at 10 12. The Court finds no error by the ALJ in considering 10 the m edical record in assessing Plaintiff’s RFC. 11 D . Th e ALJ Pro p e rly Evalu ate d Plain tiff’s Su bje ctive Co m p lain ts 12 Plaintiff asserts that the ALJ did not properly evaluate her subjective statem ents 13 and testim ony regarding her sym ptom s and lim itations in assessing her RFC. 14 Defendant, on the other hand, contends the ALJ properly evaluated Plaintiff’s subjective 15 statem ents, finding them inconsistent with the record. 16 17 1. Legal Standard for Evaluating Claim ant’s Testim ony A claim ant carries the burden of producing objective m edical evidence of his or 18 her im pairm ents and showing that the im pairm ents could reasonably be expected to 19 produce som e degree of the alleged sym ptom s. Benton ex rel. Benton v. Barnhart, 331 20 F.3d 10 30 , 10 40 (9th Cir. 20 0 3). Once the claim ant m eets that burden, m edical 21 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 22 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Adm in., 119 F.3d 23 789, 792 (9th Cir. 1997) (“claim ant need not present clinical or diagnostic evidence to 24 support the severity of his pain”) (citation omitted)). Except for depression, Defendant -11- 1 does not contest and thus appears to concede that Plaintiff carried her burden of 2 producing objective m edical evidence of her im pairm ents and showing that the 3 im pairm ents could reasonably be expected to produce som e degree of the alleged 4 sym ptom s. 5 Once a claim ant has m et the burden of producing objective m edical evidence, an 6 ALJ can reject the claim ant’s subjective complaint “only upon (1) finding evidence of 7 m alingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331 8 F.3d at 10 40 . To discredit a claim ant's sym ptom testim ony when the claim ant has 9 provided objective m edical evidence of the im pairm ents which m ight reasonably 10 produce the sym ptom s or pain alleged and there is no evidence of m alingering, the ALJ 11 “m ay reject the claim ant’s testim ony about the severity of those sym ptom s only by 12 providing specific, clear and convincing reasons for doing so.” Brown– Hunter v. 13 Colvin, 80 6 F.3d 487, 489 (9th Cir. 20 15) (“we require the ALJ to specify which 14 testim ony she finds not credible, and then provide clear and convincing reasons, 15 supported by evidence in the record, to support that credibility determ ination”); 16 Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 20 17). 17 The ALJ m ay consider at least the following factors when weighing the claim ant’s 18 credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the 19 claim ant’s testim ony or between the claim ant’s testim ony and his or her conduct; (3) his 20 or her daily activities; (4) his or her work record; and (5) testim ony from physicians and 21 third parties concerning the nature, severity, and effect of the sym ptom s of which she 22 com plains. Thom as v. Barnhart, 278 F.3d 15 947, 958-59 (9th Cir. 20 0 2) (citing Light, 23 119 F.3d at 792). “If the ALJ ’s credibility finding is supported by substantial evidence in 24 -12- 1 the record, [the court] m ay not engage in second-guessing.” Id. at 959 (citing Morgan v. 2 Apfel, 169 F.3d 595, 60 0 (9th Cir. 1999)). 3 2. The ALJ Provided Clear and Convincing Reasons Supported by Substantial Evidence 4 5 Having carefully reviewed the record, the Court finds that the ALJ provided 6 specific, clear and convincing reasons for discounting Plaintiff’s subjective com plaints. 7 The ALJ found that Plaintiff’s subjective com plaints were not entirely consistent with 8 the objective m edical record and with statem ents m ade by Plaintiff in the record, 9 including of her daily activities. The ALJ did, however, carefully review and assess 10 Plaintiff’s subjective com plaints in finding Plaintiff capable of perform ing only light 11 work with significant additional restrictions. 12 The ALJ perform ed a thorough review and analysis of Plaintiff’s entire m edical 13 record and found Plaintiff’s testim ony inconsistent with the m edical records. (AR 21- 14 22). The ALJ found Plaintiff’s m edical history, including references to specific m edical 15 visits and test results, was not consistent with the alleged severity of her sym ptom s. 16 Thus, the ALJ provided specific, clear and convincing reasons why Plaintiff’s subjective 17 com plaints are not supported by the objective m edical records. “Although lack of 18 m edical evidence cannot form the sole basis for discounting pain testim ony, it is a factor 19 that the ALJ can consider in his credibility analysis.” Burch, 40 0 F.3d at 681. Thus, the 20 ALJ did not err in considering the sufficiency, or lack thereof, of the objective evidence 21 while weighing Plaintiff’s testim ony regarding her sym ptom s and lim itations. 22 The ALJ also noted inconsistencies between Plaintiff’s testim ony and the 23 statem ents she m ade in her m edical records. For instance, the ALJ pointed out that 24 Plaintiff testified that she always used her walker to am bulate; “however, on August 6, -13- 1 20 15 she told her prim ary care physician that she can tolerate m ovem ents without her 2 walker, but she prefers to use the walker when going long distances.” (AR 21, citing AR 3 356). The ALJ also pointed out where statem ents m ade in her m edical records as to her 4 daily activities did not align with the severely lim ited am ount of daily activity she 5 testified to at the hearing and in her disability report. “The claim ant also testified that 6 her daily activities consisted prim arily of laying down and reading, and that she needed 7 help around the house and with taking a shower and washing her hair. But in 8 Novem ber 20 15, the claim ant reported to her prim ary care physician that she was the 9 prim ary caregiver for her m other who had a stroke.” (AR 21, citing AR 347). It was 10 proper for the ALJ to consider Plaintiff’s reported daily activities of caring for her 11 m other when assessing the credibility of her testim ony of alleged sym ptom s and 12 lim itations.10 Daily activities m ay be considered to show that Plaintiff exaggerated her 13 sym ptom s. See Valentine v. Com m 'r Soc. Sec. Adm in., 574 F.3d 685, 693 (9th Cir. 14 20 0 9) (ALJ properly recognized that daily activities “did not suggest [claim ant] could 15 return to his old job” but “did suggest that [claim ant’s] later claim s about the severity of 16 his lim itations were exaggerated.”). 17 Based on the clear, convincing and specific reasons for partially rejecting 18 Plaintiff’s subjective com plaints and the substantial evidence to support the ALJ ’s 19 determ ination, the Court concludes that the ALJ did not com m it error by not including 20 21 10 22 23 24 An ALJ is perm itted to consider daily living activities in his credibility analysis. See 20 C.F.R. § 40 4.1529(c)(3) (daily activities are a relevant factor which will be considered in evaluating sym ptom s); see also Bray v. Com m ’r of Soc. Sec. Adm in., 554 F.3d 1219, 1227 (9th Cir. 20 0 9) (“In reaching a credibility determ ination, an ALJ m ay weigh inconsistencies between the claim ant’s testim ony and his or her conduct, daily activities, and work record, am ong other factors”). -14- 1 additional restrictions beyond those already included in the RFC due to Plaintiff’s 2 asserted sym ptom s and lim itations. 3 V. 4 CON CLU SION For the reasons stated above, the decision of the Social Security Com m issioner is 5 AFFIRMED, and the action is DISMISSED with prejudice. J udgment shall be entered 6 accordingly. 7 8 DATE: April 21, 20 20 9 10 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -15-
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