Delia Perez v. Nancy A. Berryhill, No. 5:2019cv00246 - Document 22 (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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Delia Perez v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DELIA P., an Individual, 12 Plaintiff, 13 v. Case No.: 5:19-0 0 246 ADS MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Com m issioner of Social Security, 15 Defendant. 16 17 18 I. IN TROD U CTION Plaintiff Delia P.1 (“Plaintiff”) challenges Defendant Andrew M. Saul2 , 19 Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 20 of her application for supplem ental security incom e (“SSI”). Plaintiff contends that the 21 22 23 24 1 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 Social Security. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 Adm inistrative Law J udge (“ALJ ”) im properly considered the m edical evidence and her 2 testim ony in assessing her residual functional capacity. For the reasons stated below, 3 the decision of the Com m issioner is affirm ed, and this m atter is dism issed with 4 prejudice. 5 II. 6 FACTS RELEVAN T TO TH E APPEAL A review of the entire record reflects certain uncontested facts relevant to this 7 appeal. Plaintiff’s SSI application alleges disability based on “scoliosis, arthritis of the 8 spine and bipolar.” (Adm inistrative Record “AR” 56). When asked at the 9 Adm inistrative hearing what prevents her from working, Plaintiff testified that her neck 10 pain is very bad and causes her arm s to go num b and that the pain travels to her lower 11 back as well. (AR 38). Plaintiff also testified that she is bipolar and suffers from 12 depression. (Id.). Plaintiff testified that she had issues with anem ia, but the issue has 13 been resolved with the cessation of her m enstruation. (AR 43). 14 Plaintiff has alm ost no reported work history. She has de m inim is reported 15 incom e from 1981 and 1982 and then no further reported incom e until 1999, which was 16 $ 2,443.0 9. (AR 166-68, 174). She testified that the work involved m aking syringes for a 17 pharm aceutical com pany and that the job was only seasonal, which is why it only lasted 18 three m onths. (AR 37-38; 20 7-0 8). She has no further reported incom e after 1999. 19 (AR 167-68, 174). Plaintiff testified that she had tried to find work in the past, but she 20 has little work experience as she was basically a stay at hom e m om to her seven (now 21 adult) children. (AR 38). 22 Plaintiff com pleted a Function Report in February 20 15 wherein she stated that 23 she cooks and cleans up after herself, does laundry, sweeps, shops with her sister, does 24 puzzles and reads. (AR 223-31) . Plaintiff reported that she lives with fam ily and has no -2- 1 problem s in socializing and interacting with others, although it is less than she used to 2 do before her m edical problem s. (Id.). Plaintiff’s sister-in-law also com pleted a Third- 3 Party Function Report in February 20 15, which was consistent with Plaintiff’s stated 4 sym ptom s and lim itations. (AR 175-20 3). 5 III. PROCEED IN GS BELOW 6 A. Pro ce d u ral H is to ry 7 Plaintiff protectively filed her application for SSI on Decem ber 17, 20 14, alleging 8 disability beginning Novem ber 15, 20 11. (AR 160 , 182). Plaintiff’s claim s were denied 9 initially on April 10 , 20 15 (AR 69), and upon reconsideration on August 13, 20 15 (AR 10 83). A video hearing was held before ALJ Dante M. Alegre on October 3, 20 17. (AR 31- 11 55). Plaintiff, represented by counsel, appeared and testified at the hearing, as did 12 vocational expert Lynda Berkley. (Id.) 13 On J anuary 31, 20 18, the ALJ found that Plaintiff was “not disabled” within the 14 m eaning of the Social Security Act.3 (AR 15-26). The ALJ ’s decision becam e the 15 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 16 review on J anuary 18, 20 19. (AR 1-6). Plaintiff then filed this action in District Court on 17 February 7, 20 19, challenging the ALJ ’s decision. [Dkt. No. 1]. The case is ready for 18 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. 11, 12]. -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 15-26), 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. § 416.920 (a). At s te p o n e , the ALJ found that Plaintiff had not been 5 engaged in substantial gainful activity since Decem ber 17, 20 14, the application date. 6 (AR 17). At s te p tw o , the ALJ found that Plaintiff had the following severe 7 im pairm ents: (a) cervical and lum bar degenerative disc disease; and (b) bilateral carpal 8 tunnel syndrom e. (AR 17). At s te p th re e , the ALJ found that Plaintiff “does not have 9 an im pairm ent or com bination of im pairm ents that m eets or m edically equals the 10 severity of one of the listed im pairm ents in 20 CFR Part 40 4, Subpart P, Appendix 1 (20 11 CFR 416.920 (d), 416.925 and 416.926).” (AR 20 ). The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) 6 12 13 to perform light work as defined in 20 C.F.R. § 40 4.1567(b) 7, further restricted by the 14 following lim itations: 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). 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 or standing, or when it involves sitting m ost of the tim e with som e pushing -4- lift and/ or carry 20 pounds occasionally and 10 pounds frequently; stand and/ or walk 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; occasionally clim b, balance, stoop, kneel, crouch, and crawl; and occasionally reach overhead with both upper extrem ities. 1 2 3 4 (AR 20 ). At s te p fo u r, the ALJ found that Plaintiff has no past relevant work. (AR 25). 5 6 At s te p five , considering Plaintiff’s age, education, work experience and RFC, the ALJ 7 found that “there are jobs that exist in significant num bers in the national econom y that 8 the [Plaintiff] can perform .” (AR 25). The ALJ accepted the vocational expert’s 9 testim ony that Plaintiff would be able to perform the representative occupations of: 10 laundry worker (DOT 361.685-0 18); grocery bagger (DOT 90 2.687-0 14); and hand 11 packer (DOT 920 .587-0 18). Accordingly, the ALJ determ ined that Plaintiff had not 12 been under a disability, as defined in the Social Security Act, since Decem ber 17, 20 14, 13 the date Plaintiff filed her application. (AR 26). 14 IV. AN ALYSIS 15 A. Is s u e o n Ap p e al 16 Plaintiff raises two issue for review: (1) whether the ALJ has properly considered 17 the relevant m edical evidence of record in assessing Plaintiff’s RFC; and (2) whether the 18 ALJ has properly considered Plaintiff’s subjective statem ents of record and testim ony 19 under oath in assessing Plaintiff’s RFC. [Dkt. No. 21 (J oint Subm ission), 4]. 20 21 22 23 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 Lastly, even if an ALJ errs, the decision will be affirm ed where such error is 4 harm less, that is, if it is “inconsequential to the ultim ate nondisability determ ination,” 5 or if “the agency’s path m ay reasonably be discerned, even if the agency explains its 6 decision with less than ideal clarity.” Brown-Hunter v. Colvin, 80 6 F.3d 487, 492 (9th 7 Cir. 20 15) (citation omitted); Molina v. Astrue, 674 F.3d 110 4, 1115 (9th Cir. 20 12). 8 C. W h e th e r th e ALJ Pro p e rly Co n s id e re d Th e Me d ical Evid e n ce 9 Plaintiff contends that the ALJ ’s opinion is not supported by substantial evidence 10 in that the ALJ failed to properly consider significant medical evidence of record in 11 assessing her RFC. Defendant argues that the ALJ properly considered and weighed all 12 relevant m edical evidence of record in assessing Plaintiff’s RFC. 13 1. 14 The ALJ m ust consider all m edical opinion evidence. 20 C.F. R. § 40 4.1527(b). Standard for Weighing Medical Opinions 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 lim itations. (AR 20 ). None of the Plaintiff’s treating physicians provided a m edical 20 opinion regarding the Plaintiff’s functional lim itations and Plaintiff does not point to 21 any such opinion here. Furtherm ore, the m ajority of the m edical opinions assessed 22 Plaintiff capable of perform ing m ore work than that assessed by the ALJ , including for 23 m edium work. (AR 23-24). The ALJ gave these opinions “little weight” as the 24 -8- 1 physicians did not have the opportunity to review the m edical evidence provided at the 2 reconsideration level and hearing level. (AR 24). 3 Plaintiff contends that the ALJ failed to properly consider docum ented evidence 4 of her com plaints of pain, weakness and fatigue from anem ia, her im pairm ent of carpal 5 tunnel syndrom e and her im pairm ent of degenerative disc disease of both the cervical 6 and lum bar spine. Plaintiff is m istaken. The ALJ did a thorough review of the entirety 7 of Plaintiff’s m edical records, including all of those referenced by Plaintiff. (AR 17-24). 8 The ALJ also thoroughly analyzed the only m edical opinions and functional assessm ents 9 in evidence, those of the three State agency m edical consultants and of Vincente 10 Bernabe, D.O., the orthopedic consultative exam iner. (AR 23-24). The ALJ gave little 11 weight to the m edical opinion of G. Lockie, M.D. finding Plaintiff capable of perform ing 12 m edium work (AR 56-68) and of Dr. Bernabe who assessed Plaintiff capable of being 13 able to lift and carry 50 pounds occasionally and 25 pounds frequently (AR 338-42). 14 Instead, the ALJ gave great weight to State agency m edical consultant L. Kiger, M.D. 15 who opined that Plaintiff is able to perform work at the light exertional level with 16 postural and m anipulative lim itations. (AR 70 -82). The ALJ ’s review of Plaintiff’s 17 m edical record agreed with Dr. Kiger’s opinion and thus he assessed Plaintiff capable of 18 perform ing light work with additional restrictions to accom m odate her m edical 19 conditions. As noted, none of Plaintiff’s treating physicians provided any functional 20 assessm ents of her lim itations and Plaintiff points to no m edical opinions or 21 assessm ents that the ALJ disregarded. 22 With regard to Plaintiff’s com plaint of anem ia, Plaintiff takes issue with the 23 ALJ ’s finding of this condition to be non-severe. The ALJ stated that there “is no 24 m edical evidence to establish that the [Plaintiff’s] anem ia . . . continues to affect the -9- 1 [Plaintiff] and that it has any effect on her ability to work.” (AR 17). The ALJ reviewed 2 Plaintiff’s m edical records of her anem ia treatm ent as well as her testim ony and found 3 this condition to be resolved. (AR 17-18). When questioned about this condition at the 4 Adm inistrative hearing held on October 3, 20 17, Plaintiff stated that her anem ia had 5 been resolved since the cessation of her m enstruation. (AR 43). The ALJ cited to this 6 testim ony as well as reviewing her m edical records of her treatm ent for anem ia, 7 including two blood transfusions, one in Septem ber 20 13 and the other in J anuary 20 16. 8 (AR 17-18). The ALJ noted that there is no ongoing com plaints or aggressive treatm ent 9 with regard to Plaintiff’s anem ia and thus found it to be non-severe. (AR 18). Plaintiff 10 here argues that it is reversible error for the ALJ to have failed to properly consider 11 Plaintiff’s anem ia between 20 13 and 20 16, including the two blood transfusions. The 12 ALJ , however, did specifically review and even discussed all of the m edical records 13 referenced by Plaintiff. There was no error on the part of the ALJ in finding Plaintiff’s 14 anem ia condition to be non-severe. With regard to her im pairm ent of carpal tunnel syndrom e, which the ALJ found 15 16 to be severe, Plaintiff argues the ALJ com m itted reversible error in failing to im pose any 17 m anipulative lim itations in her RFC. As noted above, there is no m edical opinions of 18 record recom m ending such lim itations for carpal tunnel restrictions and Plaintiff here 19 cites to no such opinions or points to no m edical records with this recom m endation. 20 Plaintiff m erely points to the m edical records where she was diagnosed with carpal 21 tunnel syndrom e.8 The ALJ specifically reviewed and cited to all of the m edical records 22 23 24 8 Plaintiff seem s to argue that her severe im pairm ent of carpal tunnel syndrom e alone should require the ALJ to have included m anipulative lim itations in her RFC. The diagnosis of a condition alone, however, does not establish disability. See Young v. Sullivan, 911 F.2d 180 , 183 (9th Cir. 1990 ). Rather, Plaintiff m ust show that her -10 - 1 Plaintiff states the ALJ failed to consider. Moreover, the ALJ also noted that “the record 2 dem onstrates that she has not had ongoing com plaints or aggressive treatm ent with 3 regard to [carpal tunnel syndrom e].” (AR 22). The ALJ further noted that during 4 Plaintiff’s February 20 15 consultative orthopedic examination by Dr. Bernabe: claim ant’s wrists showed norm al alignm ent and contour. There was no tenderness to palpation and range of m otion was full and painless in all planes. Inspection of the claim ant’s hands were sim ilarly unrem arkable. The claim ant was noted with intact m otor strength in the upper extrem ities. Notably, the claim ant did not com plain about upper extrem ity pain or report any lim itations. 5 6 7 8 9 (AR 22, citing AR 338-42). Thus, the ALJ com m itted no error in considering Plaintiff’s 10 m edical records pertaining to her im pairm ent of carpal tunnel syndrom e in assessing 11 her RFC. 12 Finally, Plaintiff argues that her cervical and lum bar degenerative disc disease 13 prevents her from perform ing the m anipulation and/ or reaching requirem ents of the 14 identified jobs and it was error for the ALJ to have assessed her RFC to allow for these 15 jobs. Plaintiff points to certain medical records such as x-rays, MRI findings, 16 recom m ended injections and claim s these records evidence greater lim itation than that 17 assessed by the ALJ . The ALJ , however, specifically reviewed and discussed all of the 18 m edical records noted by Plaintiff. (AR 21-24). Indeed, the ALJ accounted for these 19 records in lim iting Plaintiff to work at the less than light exertional level with postural 20 and m anipulative lim itations. Plaintiff would sim ply prefer for those lim itations to have 21 been greater. Thus, there was no error by the ALJ in assessing Plaintiff’s degenerative 22 23 24 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). -11- 1 disc disease. See Bayliss, 427 F.3d at 1217 (finding that a district court m ust uphold an 2 RFC assessm ent when the ALJ has applied the proper legal standard and substantial 3 evidence in the record as a whole supports the decision) 4 The Court therefore finds the ALJ properly assessed the m edical evidence of 5 record. Plaintiff would sim ply prefer the ALJ to have a different interpretation of the 6 m edical evidence than that assessed. However, it is the role of the ALJ to resolve any 7 conflicts or am biguities in the m edical record. See Tom m asetti, 533 F.3d at 10 41-42 8 (“The ALJ is the final arbiter with respect to resolving am biguities in the m edical 9 evidence.”): Andrews v. Shalala, 53 F.3d 10 35, 10 41 (9th Cir. 1995) (holding that it is the 10 ALJ ’s job to resolve any conflicts). See Ryan 528 F.3d at 1198 (“’Where evidence is 11 susceptible to m ore than one rational interpretation,’ the ALJ ’s decision should be 12 upheld.”) (citation omitted); Robbins, 466 F.3d at 882 (“If the evidence can support 13 either affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent 14 for that of the ALJ .”). Indeed, an ALJ is not obligated to discuss “every piece of 15 evidence” when interpreting the evidence and developing the record. See Howard ex rel. 16 Wolff v. Barnhart, 341 F.3d 10 0 6, 10 12 (9th Cir. 20 0 3) (citation om itted). Sim ilarly, an 17 ALJ is also not obligated to discuss every word of a doctor’s opinion or include 18 lim itations not actually assessed by the doctor. See Fox v. Berryhill, 20 17 WL 3197215, 19 *5 (C.D. Cal. J uly 27, 20 17); Howard, 341 F.3d at 10 12. The Court finds no error by the 20 ALJ in considering the m edical record in assessing Plaintiff’s RFC. 21 D . W h e th e r th e ALJ Pro p e rly Evalu ate d Plain tiff’s Te s tim o n y 22 Plaintiff asserts that the ALJ did not properly evaluate her subjective statem ents 23 and testim ony regarding her sym ptom s and lim itations in assessing her RFC. 24 -12- 1 Defendant, on the other hand, contends the ALJ properly evaluated Plaintiff’s subjective 2 statem ents, finding them inconsistent with the record. 3 4 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 5 her im pairm ents and showing that the im pairm ents could reasonably be expected to 6 produce som e degree of the alleged sym ptom s. Benton ex rel. Benton v. Barnhart, 331 7 F.3d 10 30 , 10 40 (9th Cir. 20 0 3). Once the claim ant m eets that burden, m edical 8 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 9 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Adm in., 119 F.3d 10 789, 792 (9th Cir. 1997) (“claim ant need not present clinical or diagnostic evidence to 11 support the severity of his pain”) (citation omitted)). Defendant does not contest that 12 Plaintiff carried her burden of producing objective m edical evidence of her im pairm ents 13 and showing that the im pairm ents could reasonably be expected to produce som e 14 degree of the alleged sym ptom s. 15 Once a claim ant has m et the burden of producing objective m edical evidence, an 16 ALJ can reject the claim ant’s subjective complaint “only upon (1) finding evidence of 17 m alingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331 18 F.3d at 10 40 . To discredit a claimant's sym ptom testim ony when the claim ant has 19 provided objective m edical evidence of the im pairm ents which m ight reasonably 20 produce the sym ptom s or pain alleged and there is no evidence of m alingering, the ALJ 21 “m ay reject the claim ant’s testim ony about the severity of those sym ptom s only by 22 providing specific, clear and convincing reasons for doing so.” Brown-Hunter, 80 6 F.3d 23 at 489 (“we require the ALJ to specify which testim ony she finds not credible, and then 24 -13- 1 provide clear and convincing reasons, supported by evidence in the record, to support 2 that credibility determ ination”); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 20 17). 3 The ALJ m ay consider at least the following factors when weighing the claim ant’s 4 credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the 5 claim ant’s testim ony or between the claim ant’s testim ony and his or her conduct; (3) his 6 or her daily activities; (4) his or her work record; and (5) testim ony from physicians and 7 third parties concerning the nature, severity, and effect of the sym ptom s of which she 8 com plains. Thom as v. Barnhart, 278 F.3d 948, 958-59 (9th Cir. 20 0 2) (citing Light, 119 9 F.3d at 792). “If the ALJ ’s credibility finding is supported by substantial evidence in the 10 record, [the court] m ay not engage in second-guessing.” Id. at 959 (citing Morgan v. 11 Apfel, 169 F.3d 595, 60 0 (9th Cir. 1999)). 12 2. The ALJ provided Clear and Convincing Reasons Supported by Substantial Evidence 13 14 Having carefully reviewed the record, the Court finds that the ALJ provided 15 specific, clear and convincing reasons for discounting Plaintiff’s subjective com plaints. 9 16 The ALJ found that Plaintiff’s subjective com plaints were not entirely consistent with 17 the m edical evidence of record, the undisputed m edical opinion evidence and Plaintiff’s 18 lim ited and conservative treatm ent . (AR 22-23). 19 Im portant to note, the ALJ did not entirely reject Plaintiff’s testim ony concerning 20 her pain, sym ptom s, and level of lim itation. The ALJ stated that he had considered 21 Plaintiff’s testim ony in lim iting her work at the less than light exertional level, which 22 was less than had been assessed by two of the State agency m edical exam iners. (AR 24- 23 24 9 The ALJ did not m ake a finding of m alingering in his opinion. (AR 15-26). -14- 1 25). Accordingly, the ALJ included lim itations in Plaintiff’s RFC that she only 2 “occasionally clim b, balance, stoop, kneel, crouch, and crawl” and “occasionally reach 3 overhead with both upper extrem ities.” (AR 20 ). The ALJ perform ed a thorough review of Plaintiff’s entire m edical record and 4 5 found that it did not fully support Plaintiff’s allegations of disabling conditions. 10 The 6 ALJ reviewed and cited to Plaintiff’s m edical records of her neck, back and wrist issues, 7 her anem ia treatm ent and her psychological treatm ent and found that the records did 8 not dem onstrate that Plaintiff would be unable to perform a range of light exertion, with 9 the express lim itations. (AR 17-24). See Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir 10 20 12) (the ALJ ’s determ ination should not be second-guessed where reasonable and 11 supported by substantial evidence). 12 The ALJ properly considered how consistent Plaintiff’s subjective sym ptom 13 statem ents were with this objective m edical evidence. 20 C.F.R. § 40 4.1529(c)(2). This 14 could not be the ALJ ’s sole reason for rejecting Plaintiff’s statem ents about her 15 sym ptom s, but it was the prim ary factor that the ALJ was required to consider. Id.; see 16 also Burch, 40 0 F.3d at 681 (“Although lack of m edical evidence cannot form the sole 17 basis for discounting pain testim ony, it is a factor that the ALJ can consider in his 18 credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 20 0 1) (while a 19 20 21 22 23 24 10 Plaintiff contends the ALJ did not provide a legitim ate reason for giving little weight to the Third-Party Function Report subm itted by Plaintiff’s sister-in-law, Lucina Kohr. (AR 175-20 3). The report is consistent and supportive of Plaintiff’s statem ents and testim ony. The ALJ , however, did discuss this evidence and found it to be inconsistent with the record (AR 24); thus, providing a legitim ate ground for disregarding. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 20 0 7) (“The ALJ m ay reject a third party’s testim ony upon giving a reason germ ane to that witness”); Bayliss, 427 F.3d at 1218 (“Inconsistency with m edical evidence” is a germ ane reason for discounting lay witness testim ony). -15- 1 claim ant’s subjective statem ents about sym ptom ology “cannot be rejected on the sole 2 ground that it is not fully corroborated by objective m edical evidence, the m edical 3 evidence is still a relevant factor”). Thus, the lack of consistency between Plaintiff’s 4 m edical records and her testim ony was a proper basis for the ALJ ’s discounting 5 Plaintiff’s testim ony. 6 The ALJ also properly considered that the m edical opinion evidence, finding 7 Plaintiff capable of perform ing light work, also contradicted Plaintiff’s sym ptom 8 testim ony. (AR 23-24). See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 9 20 0 8) (finding that the m edical evidence, including the opinions of two physicians that 10 a claim ant could work, supported the ALJ ’s credibility determ ination); Moncada v. 11 Chater, 60 F.3d 521, 524 (9th Cir. 1995) (an ALJ m ay consider physician opinions that 12 claim ant could work, which contradict claim ant’s assertion to the contrary). Plaintiff 13 m akes no challenge of the ALJ ’s findings of the m edical opinions he relied on in his 14 decision (AR 23-24) and therefore concedes the ALJ ’s reliance on this evidence. See 15 Carm ickle v. Soc. Sec. Adm in., 533 F.3d 1155, 1161 n.2 (9th Cir. 20 0 8) (declining to 16 address credibility factor that plaintiff failed to argue with any specificity in his 17 briefing); Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 20 0 6) (claim ant waived issues 18 not raised before the district court); Owens v. Colvin, 20 14 WL 560 2884, at *4 (C.D. Cal. 19 Nov. 4, 20 14) (claim ant’s failure to discuss, or even acknowledge, ALJ ’s reliance on 20 certain reasons waived any challenge to those aspects of ALJ ’s finding). 21 The ALJ ’s finding that Plaintiff’s treatm ent was fairly lim ited and conservative 22 was also a proper basis for discounting Plaintiff’s testim ony as to her disabling 23 condition. (AR 23). An ALJ m ay properly consider Plaintiff’s treatm ent history in 24 analyzing Plaintiff’s asserted sym ptom s. 20 C.F.R. § 40 4.1529(c)(3)(iv),(v),(vi) (factors -16- 1 relevant to a claim ant’s sym ptom s, such as pain, which the Com m issioner will consider 2 include m edication taken to alleviate sym ptom s; treatm ent received for pain; and 3 m easures used to relieve pain); see also Burch, 40 0 F.3d at 681 (holding that “ALJ is 4 perm itted to consider lack of treatm ent in his credibility determ ination”); Moncada, 60 5 F.3d at 524 (claim ant’s allegations of disabling pain can be discredited by evidence of 6 infrequent m edical treatm ent or by the m inim al use of pain m edication). The ALJ noted 7 that the record does not indicate that Plaintiff has been recom m ended for surgery and 8 that Plaintiff testified she received only a brief course of physical therapy in the past, but 9 no longer receives any therapy. (AR 23). 10 Plaintiff contends that her treatm ent is not conservative as she has undergone 11 injections, blood transfusions and takes pain m edication. 11 Plaintiff’s blood 12 transfusions, however, relate to her anem ic condition, which Plaintiff testified is now 13 resolved with the cessation of her m enstruation. Furtherm ore, the taking of pain 14 m edication and som e physical therapy does not render erroneous the ALJ ’s finding that 15 Plaintiff’s treatm ent was conservative. See J ones v. Com m ’r of Soc. Sec., 20 14 WL 16 228590 , *7-10 (E.D. Cal. J an. 21, 20 14) (ALJ properly found Plaintiff’s treatm ent 17 conservative, which included physical therapy, both anti-inflam m atory and narcotic 18 m edications, use of a TENS unit, occasional epidural steroid injections, and m assage 19 20 21 22 23 24 11 The Court notes, as pointed out by the ALJ , that Plaintiff testified she received injections and that there are treatm ent notes in the record that indicate Plaintiff was recom m ended for an epidural injection. (AR 21). There are no m edical records, however, of Plaintiff’s receipt of these injections. Regardless, Plaintiff’s supposed receipt of epidural injections do not qualify as conservative treatm ent. See Garrison v. Colvin, 759 F.3d 995, 10 15 n.20 (9th Cir. 20 14) (expressing “doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative’ m edical treatm ent”). These injections, however, without m ore, do not change the fact that Plaintiff’s care was overall lim ited and conservative, as expressed by the ALJ . -17- 1 therapy, dim inished her credibility); Higinio v. Colvin, 20 14 WL 47935, *5 (C.D. Cal. 2 J an. 7, 20 14) (holding that, despite the fact that the claim ant had been prescribed 3 narcotic medication at various tim es, the claim ant’s treatm ent as a whole was 4 conservative); Parra, 481 F.3d at 751 )(finding that proof of “conservative treatm ent is 5 sufficient to discount a claim ant's testim ony regarding severity of an im pairm ent”); 6 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (finding that an ALJ can rely on a 7 physician’s failure “ to prescribe… any serious m edical treatm ent for [a claim ant’s] 8 supposedly excruciating pain”). 9 Based on these clear, convincing and specific reasons for partially rejecting 10 Plaintiff’s pain and lim itations testim ony and the substantial evidence to support his 11 determ ination, the Court concludes that the ALJ did not com m it error in discounting 12 Plaintiff’s testim ony. 13 V. 14 CON CLU SION For the reasons stated above, the decision of the Social Security Com m issioner is 15 AFFIRMED, and the action is DISMISSED with prejudice. J udgment shall be entered 16 accordingly. 17 18 DATE: Septem ber 25, 20 20 19 20 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 21 22 23 24 -18-

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