Nancy J. Martinez v. Andrew Saul, No. 5:2019cv01144 - Document 23 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. See Order for details. (dml)
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Nancy J. Martinez v. Andrew Saul Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NANCY J. M.,1 12 Case No. ED CV 19-01144-RAO Plaintiff, 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 I. 19 20 21 22 23 Plaintiff Nancy J. M. (“Plaintiff”) challenges the Commissioner’s denial of her application for a period of disability, disability insurance benefits (“DIB”), and supplemental security income. For the reasons stated below, the decision of the Commissioner is AFFIRMED. II. 24 25 INTRODUCTION PROCEEDINGS BELOW On October 20, 2015, Plaintiff filed a Title II application for a period of disability and DIB alleging disability beginning on October 1, 2014. (Administrative 26 27 28 1 Partially redacted in compliance 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. Dockets.Justia.com 1 Record (“AR”) 200, 205.) Plaintiff also filed a Title XVI application for 2 supplemental security income. (AR 207.) Her applications were initially denied on 3 February 9, 2016, and upon reconsideration on April 14, 2016. (AR 96, 97, 122, 4 123.) Plaintiff filed a written request for hearing, and a hearing was held on May 3, 5 2018. (AR 41-71, 140.) Represented by counsel, Plaintiff appeared and testified, 6 along with an impartial vocational expert (“VE”). (AR 41-71.) On July 12, 2018, 7 the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a 8 disability, pursuant to the Social Security Act, from October 1, 2014, through the date 9 of the decision. (AR 34-35.) The ALJ’s decision became the Commissioner’s final 10 decision when the Appeals Council denied Plaintiff’s request for review. (AR 1-3.) 11 Plaintiff filed this action on June 21, 2019. (Dkt. No. 1.) 12 The ALJ followed a five-step sequential evaluation process to assess whether 13 Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d 14 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not 15 engaged in substantial gainful activity since October 1, 2014, the alleged onset date 16 (“AOD”). (AR 25.) At step two, the ALJ found that Plaintiff has the following 17 severe impairments: degenerative disc disease; bilateral tendinitis of the shoulders; 18 bilateral plantar fasciitis with heel spurs; hypertension, obesity; and a depressive 19 disorder. (Id.) At step three, the ALJ found that Plaintiff “does not have an 20 impairment or combination of impairments that meets or medically equals the 21 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 22 1.” (AR 26.) 23 24 25 26 27 28 Before proceeding to step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to: [P]erform light work . . . . However, she can operate bilateral foot and hand controls only on a frequent basis. She can only frequently reach overhead bilaterally. She can only frequently balance, stoop, kneel, crouch, and crawl. In addition, the claimant is limited to tasks that can be learned within a short demonstration period of up to 30 days, and 2 with no more than frequent changes to the workplace tasks and duties. She can work primarily with things, rather than with people, such that the work contact with others is only occasional. Finally, the claimant can maintain concentration, pace, and persistence on this limited range of tasks for 2 hours at a time before taking a regularly scheduled break and then returning to work. 1 2 3 4 5 (AR 29.) 6 At step four, the ALJ found that Plaintiff is capable of performing past 7 relevant work as a storage-facility rental clerk, and thus the ALJ did not continue to 8 step five. (AR 33-34.) Accordingly, the ALJ determined that Plaintiff had not been 9 under a disability from the AOD through the date of the decision. (AR 34-35.) 10 III. STANDARD OF REVIEW 11 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 12 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 13 supported by substantial evidence and if the proper legal standards were applied. 14 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 15 means more than a mere scintilla, but less than a preponderance; it is such relevant 16 evidence as a reasonable person might accept as adequate to support a conclusion.” 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 18 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 19 evidence requirement “by setting out a detailed and thorough summary of the facts 20 and conflicting clinical evidence, stating his interpretation thereof, and making 21 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 22 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 23 specific quantum of supporting evidence. Rather, a court must consider the record 24 as a whole, weighing both evidence that supports and evidence that detracts from the 25 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 26 (citations and internal quotation marks omitted). “‘Where evidence is susceptible to 27 more than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan 28 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 3 1 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 882 (“If the 2 evidence can support either affirming or reversing the ALJ’s conclusion, we may not 3 substitute our judgment for that of the ALJ.”). The Court may review only “the 4 reasons provided by the ALJ in the disability determination and may not affirm the 5 ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th 6 Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 7 IV. DISCUSSION 8 Plaintiff raises three issues for review: (1) whether the ALJ has properly 9 considered the relevant medical evidence of record in assessing Plaintiff’s RFC; (2) 10 whether the ALJ has properly considered Plaintiff’s subjective statements of record 11 and testimony under oath in assessing Plaintiff’s RFC; and (3) whether the ALJ’s 12 conclusions at step four as to Plaintiff’s past relevant work are supported by 13 substantial evidence of record. (See Joint Submission (“JS”) 4.) For the reasons 14 below, the Court affirms. A. 15 The ALJ Properly Considered Plaintiff’s Subjective Statements of Record and Testimony in Assessing Plaintiff’s RFC2 16 17 Plaintiff contends that the “ALJ has failed to properly consider Plaintiff’s 18 subjective statements of record and testimony under oath regarding her physical and 19 mental symptoms and limitations in the assessment of Plaintiff’s [RFC].” (JS 18; see 20 JS 19-21.) The Commissioner contends that the ALJ properly evaluated Plaintiff’s 21 subjective testimony. (JS 21; see JS 22-26.) 1. 22 Plaintiff’s May 3, 2018 Testimony 23 Plaintiff testified that she lives with her friend and her friend’s husband in their 24 house. (AR 51.) Plaintiff stated that her friend and sister help her get out of bed, get 25 to the bathroom, shower, and get dressed. (AR 52.) Plaintiff’s stated that her friend 26 27 28 2 Because subjective symptom testimony is one factor that the ALJ must consider when assessing a claimant’s RFC, the Court addresses the issue of Plaintiff’s subjective testimony before discussing the overall RFC determination. 4 1 gets things ready for Plaintiff to bathe, will “wash” her and her hair, and stays in the 2 bathroom with her. (AR 61.) 3 Plaintiff stated that once she gets dressed and cleaned up, she stays home with 4 her friend or her sister. (AR 53.) Plaintiff testified that she does not help with any 5 of the household chores. (Id.) She explained that she gets through her anxiety and 6 the stress of day-to-day activities with the help of her yorkie. (AR 53-54.) She feeds 7 her dog two or three times per day and gives her a lot of treats. (AR 54.) 8 Plaintiff stated that during the day she speaks on the phone with her friends. 9 (AR 56.) She testified that she receives text messages and responds using a voice- 10 to-text function. (Id.) She explained that she answers via text when she can, but 11 states that she does not answer because it is too difficult. (Id.) 12 Plaintiff has a driver’s license, but did not drive herself to the hearing. (AR 13 47.) A friend drove her to the hearing. (Id.) The trip took 40 minutes because she 14 had to stop three times to go to the restroom. (AR 48.) She also stated that she went 15 to the restroom after she arrived at the building. (Id.) Plaintiff could not drive herself 16 to the hearing because she wears a back brace and cannot drive with it on. (Id.) She 17 last drove approximately four months prior to the hearing. (Id.) She stated that she 18 has tried to drive herself to doctors’ appointments but on the way, she has accidents. 19 (Id.) She is at the point where she has her sister or friend drive her. (Id.) 20 Plaintiff has a GED. (AR 48.) She last worked about four and a half years 21 ago. (AR 49.) She worked for in-home supportive services as a care provider. (Id.) 22 She had to stop working because of her chronic explosive diarrhea condition. (Id.) 23 Plaintiff worked as a care provider four hours per day, five days per week. (Id.) 24 Plaintiff stated that after working as a care provider, she applied for other jobs, but 25 was never hired. (AR 49.) Plaintiff stopped looking for work when she applied for 26 disability. (Id.) She stopped her job search because she was “having more problems 27 with the arthritis in [her] hands and can’t . . . type.” (Id.) She stated that she does 28 not use computers. (Id.) 5 1 Plaintiff testified that she is 5 feet 7 inches tall and weighs 240 pounds. (AR 2 46.) Plaintiff stated that her doctors have given her a diet with alkaline water and 3 have told her that it is important that she exercise. (Id.) Plaintiff testified that she 4 has implemented dietary changes. 5 strengthening exercises because she fractured her back and had two bulging discs. 6 (Id.) Plaintiff stated that she was told it would be a good idea for her to walk. (Id.) 7 When asked if she had implemented the recommendation, Plaintiff responded that 8 she does not “stray far from the house.” (Id.) Plaintiff explained that she has to stay 9 close to the restroom because she has chronic explosive diarrhea. (AR 47.) She 10 described the experience as humiliating, embarrassing, and degrading. (Id.) Given 11 her condition, Plaintiff states that she does not see how she can work. (Id.) Plaintiff 12 testified that she has to have someone else clean her because she cannot clean herself. 13 (Id.) (Id.) The doctors recommended back 14 Plaintiff explained that since 2014 her conditions have worsened. (AR 52-53.) 15 Her arthritis is worse. (AR 53.) Plaintiff testified that her conditions include chronic 16 explosive diarrhea, difficulty using her hands, and problems with her back. (AR 56.) 17 She cannot stand up right and has difficulty walking since her back fracture. (AR 18 57.) Plaintiff reported that she is able to stand and walk for approximately five 19 minutes before needing to sit down again. (Id.) She can sit for anywhere between 20 two to 10 minutes before needing to stand up, depending on the day. (Id.) Plaintiff’s 21 day consists of changing between sitting and standing, and she spends a lot of time 22 in the bathroom. (Id.) Plaintiff’s doctors want to get her back in better shape before 23 doing anything that could aggravate her kidneys or bowels, but the doctors are 24 looking for other solutions. (AR 58.) She stated that her doctors tell her to take it 25 slow and take her medicine. (Id.) Plaintiff gets hydrocortisone injections in her back 26 to help manage the constant pain. (Id.) 27 Plaintiff explained that she cries for no reason. (AR 59-60.) She gets upset 28 and anxious about the chronic explosive diarrhea. (AR 60.) Plaintiff reported that 6 1 she takes many medications, including atenolol and hydrochlorothiazide for her 2 blood pressure. (Id.) She also takes Abilify, Wellbutrin, nitroglycerin, Flonase, 3 Zyrtec, and Motrin. (Id.) Plaintiff takes Norco for back pain. (Id.) 4 Plaintiff also testified that she has problems with her shoulders. (AR 60-61.) 5 She cannot lift her arms over her head. (AR 61.) As to her depression and anxiety, 6 Plaintiff stated that she sees her psychiatrist once a month. (Id.) She takes trazodone, 7 gabapentin, and Motrin. (Id.) She takes Wellbutrin and Abilify for depression. (Id.) 8 Plaintiff explained that she falls four to five times every few days. (AR 61-62.) She 9 gets sharp pains shooting up her back or sciatic nerve and that can make her fall. (AR 10 62.) Her falls are unexpected, she feels pain and then is on the ground. (Id.) She 11 also stated she drops things on a daily basis. (Id.) Plaintiff does not sleep well at 12 night and takes trazodone and Ambien to help her. (Id.) However, even with 13 medication, she wakes up several times throughout the night. (Id.) She is woken up 14 by pain in her back or side. (Id.) Plaintiff stated she was prescribed a back brace and 15 was told that using a cane would be beneficial to her. (AR 63.) 16 2. Plaintiff’s April 1, 2016 Function Report 17 On April 1, 2016, Plaintiff prepared a function report. (See AR 311-19.) 18 Plaintiff reported having recurrent major depression and anxiety with major mood 19 swings. (AR 311.) Plaintiff also stated that she has urge incontinence and irritable 20 bowel syndrome with explosive diarrhea “which increases [her] anxiety level on a 21 daily basis.” (Id.) She is in “constant fear of urinating and [defecating]” on herself 22 in public and that stops her from going out in public. (Id.) She reported that she has 23 to stay close to the bathroom at all times. (Id.) 24 Plaintiff explained that during the day, due to her urge incontinence and 25 irritable bowel syndrome with explosive diarrhea, she can no longer prepare her own 26 meals, so she sits on the couch and watches television, uses the computer when she 27 is not in the bathroom, and goes to doctors’ appointments. (AR 312.) Plaintiff 28 explains that she goes to the bathroom “a minimum of 12 hours out of 24 hours every 7 1 day.” (Id.) She brushes her teeth and combs her hair. (Id.) She stated that she is 2 responsible for her dog. (Id.) She reported that, before her conditions, she was able 3 to prepare her meals, do household chores, work, shop, and take care of herself 4 without help. (Id.) Plaintiff explained that her insomnia and severe depressive 5 disorder cause her to “lose sleep and [her] energy is extremely low and lack of 6 concentration.” (Id.) 7 As to her personal care, Plaintiff sometimes needs help getting dressed and 8 bathing. (AR 312.) Plaintiff explained that because she has low energy, she needs 9 reminders to take care of personal need, and help getting dressed and bathed. (AR 10 313.) She needs daily reminders to take medications because she forgets. (Id.) 11 Plaintiff stated that she prepares her own meals every day. (AR 313.) Her 12 meals include canned soup, sandwiches, and frozen dinners. (Id.) It takes between 13 10 and 30 minutes to prepare her meals. (Id.) As to household chores, Plaintiff can 14 care for her dog, check the mail, and make her bed. (Id.) Plaintiff spends between 5 15 and 30 minutes on these chores. 16 encouragement to do things daily. (Id.) She does not do house or yardwork because 17 she has low energy, depression, and has to stay close to the bathroom. (AR 314.) (Id.) She reported needing reminders and 18 Plaintiff stated that she goes outside to check her mail or to attend doctors’ 19 appointments. (AR 314.) When she goes out, she drives a car or rides in a car. (Id.) 20 She can drive a car and can go out alone. (Id.) She shops in stores, by phone, and 21 by computer. (Id.) She typically shops between two and four times a week. (Id.) 22 However, she can no longer shop for herself in stores because of her conditions. (Id.) 23 She is able to pay bills, count change, handle a savings account, and use her 24 checkbook or money orders. (Id.) 25 Plaintiff’s hobbies and interests include, watching television and using the 26 computer. (AR 315.) Plaintiff spends time with others by speaking on the phone 27 daily and talking to her doctors at appointments every week. (Id.) Plaintiff regularly 28 attends doctors’ appointments and goes to church when she feels like it. (Id.) 8 1 Plaintiff stated that since her conditions began, she is not social and does not 2 participate in social activities. (AR 316.) Plaintiff reported that her conditions affect 3 her ability to lift, squat, bend, stand, walk, kneel, and stair-climb. (Id.) Her ability 4 to concentrate is affected. (Id.) She reported that she can only lift 10 pounds and 5 cannot squat or bend without feeling great pain. (Id.) She runs out of breath while 6 climbing stairs. (Id.) Plaintiff can walk less than one block, before having to rest for 7 10, 15 minutes or more. (Id.) She can pay attention for an hour or less. (Id.) She 8 can follow some written instructions like a recipe, but cannot fill out forms because 9 they are confusing. (Id.) Whether she can follow spoken instructions depends on 10 who is giving the instructions because she is easily confused. (Id.) 11 Plaintiff reported that she has problems working with others. (AR 317.) She 12 was previously fired because she had problems getting along with others, including 13 her bosses. (Id.) She does not handle stress well. (Id.) Plaintiff does not handle 14 changes well at all, and hates change. (Id.) Plaintiff has extreme anxiety, fears 15 urinating or defecating herself in public, and fears abandonment. (Id.) She uses 16 glasses and night splints every day. (Id.) Plaintiff uses Trazodone which causes her 17 to lose sleep, have disturbing dreams, anxiety, and depression. (AR 318.) 3. 18 Plaintiff’s November 13, 2015 Function Report3 19 Plaintiff completed a function report on November 13, 2015. (AR 251-259.) 20 Plaintiff reported feeling a lot of pain in her feet and being unable to walk or stand 21 for more than 30 minutes. (AR 251.) Plaintiff explained that before her condition 22 she was able to walk and stand for longer periods of time, and she could go for long 23 walks. (AR 252.) She was also able to do household chores, including vacuuming 24 and dusting. (Id.) She stated that she cannot lift things that are over 10 pounds. (Id.) 25 Plaintiff reported that her foot pain also affects her sleep. (Id.) /// 26 27 28 3 Because the second November 13, 2015 function report is similar to the first report, the Court provides only a brief summary. (See AR 311-319.) 9 1 Plaintiff stated that she has no problem with personal care and did not need 2 reminders to take care of her personal needs and grooming. (AR 252-53.) Plaintiff 3 can prepare her own meals, wash her dishes, and do her own laundry. (AR 253.) 4 Plaintiff reported that she goes grocery shopping, but never for more than 30 minutes. 5 (AR 254.) Plaintiff also reported going to doctors’ appointments and church on 6 Sundays when she feels like it. (AR 255.) She did not need anyone to accompany 7 her. (Id.) 8 Plaintiff reported that her illnesses and conditions affect her abilities to lift, 9 squat, bend, stand, walk, climb stairs, and concentrate. (AR 256.) She could bend 10 and squat for less than five minutes. (Id.) She could climb stairs for five minutes. 11 (Id.) She was able to concentrate for 10 to 60 minutes. (Id.) She could walk for one 12 block before needing to rest for 15 to 20 minutes. (Id.) Plaintiff also explained that 13 she has tarsal tunnel in both of her feet which causes extreme pain. (AR 282.) 14 Plaintiff reported that this condition makes it “very difficult to walk and stand due to 15 the extreme pain.” (Id.) 16 4. Applicable Legal Standards 17 “In assessing the credibility of a claimant’s testimony regarding subjective 18 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 19 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 20 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 21 presented objective medical evidence of an underlying impairment which could 22 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. 23 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 24 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 25 ALJ does not find evidence of malingering, the ALJ must provide specific, clear and 26 convincing reasons for rejecting a claimant’s testimony regarding the severity of his 27 symptoms. Id. The ALJ must identify what testimony was found not credible and 28 explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d 10 1 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at 2 834. 3 5. Discussion 4 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 5 “medically determinable impairments could reasonably be expected to cause the 6 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity, 7 persistence, and limiting effects of these symptoms are not entirely consistent with 8 the medical evidence and other evidence in the record.” (AR 30.) Specifically, the 9 ALJ found that Plaintiff’s statements were inconsistent with the objective medical 10 evidence, Plaintiff’s treatment, and Plaintiff’s reported activities. (AR 33; see AR 11 29-33.) No malingering allegation was made, and therefore, the ALJ’s reasons must 12 be “clear and convincing.” 13 14 a. Reason No. 1: Inconsistent with the Objective Medical Evidence 15 The lack of supporting objective medical evidence cannot form the sole basis 16 for discounting testimony, but it is a factor that the ALJ may consider in making a 17 credibility determination. Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 18 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). 19 Plaintiff “strongly disagrees” with the ALJ’s finding that the objective medical 20 evidence does not support Plaintiff’s statements. (JS 19.) Instead, Plaintiff contends 21 that she has “well documented impairments affecting her bilateral feet, lumbar spine, 22 and gastrointestinal system.” (Id.) Plaintiff also argues that the record documents 23 consistent “severe mental impairments including major depressive disorder and 24 anxiety,” which support her statements regarding her mental symptoms and 25 limitations. (Id.) She also contends that the ALJ failed to specify which statements 26 were not fully credible. (JS 20.) 27 As to Plaintiff’s alleged difficulties sitting, standing, and walking, the ALJ 28 found that the medical evidence did not support the full extent of Plaintiff’s claims. 11 1 (See AR 30.) The ALJ relied on records showing Plaintiff had a normal gait and 2 balance. (Id, citing 451, 559, 563, 632.) Plaintiff did not require the use of an 3 assistive device and testified that she was not prescribed a cane. (AR 30, citing AR 4 451; see AR 63.) She was “able to heel walk and toe walk ‘with ease.’” (AR 30.) 5 The ALJ also identified records documenting that Plaintiff had “5 out of 5” motor 6 strength in her major muscle groups. (Id., citing AR 559, 564.) Additionally, the 7 ALJ noted that Plaintiff did not appear to be in acute distress during appointments, 8 and her physicians did not note that Plaintiff “need[ed] to alternate between seated 9 and standing positions every 5 to 15 minutes.” (AR 30; see AR 360-635.) While 10 Plaintiff used a back brace for a compression fracture, the ALJ noted that the injury 11 healed, and Plaintiff was advised that she could discontinue the use of the brace in 12 August 2017. (AR 30, citing AR 633.) 13 However, the ALJ did find that “some of the medical evidence supports partial 14 limitation of function.” (AR 30.) The ALJ found that Plaintiff’s obesity could cause 15 exertional and postural limitations, but reasoned that the assessed RFC was consistent 16 with those limitations. (AR 30-31.) The ALJ relied on an August 15, 2017 evaluation 17 in which “straight-leg raising was mildly positive on the left side, consistent with left 18 lower extremity radiculopathy.” (AR 30-31, citing AR 633.) The ALJ also pointed 19 to Plaintiff’s history of plantar fasciitis and heel spurs, but noted that her pain was 20 “almost entirely resolved with treatment.” (AR 31; see AR 361-382.) 21 As to Plaintiff’s difficulties holding items or typing on the computer, the ALJ 22 found that Plaintiff’s statements were not supported by the evidence. (AR 31.) The 23 ALJ found that contrary to Plaintiff’s testimony, there was no diagnostic imaging 24 showing osteoarthritis of her hands. (Id.) The ALJ relied on examination results 25 documenting Plaintiff’s “grossly normal range of motion of the wrists and finger 26 joints bilaterally,” and good hand coordination. (Id., citing AR 452, 453.) The ALJ 27 also found that Plaintiff’s statements regarding her difficulties with diarrhea were 28 only partially supported because imaging 12 studies, stool studies, and 1 esophagogastroduodenoscopy rendered negative results. (AR 31, citing AR 447.) 2 As to Plaintiff’s statements regarding her difficulties concentrating and being 3 easily confused, the ALJ found that the evidence did not support the degree of 4 limitation alleged. (AR 32.) The ALJ relied on Plaintiff’s ability to “sustain 5 concentration and work without distraction” during her January 18, 2016 6 psychological evaluation. (Id., citing AR 459.) Additionally, the ALJ pointed to 7 Plaintiff’s appearance at the hearing and cited to her ability to recall her medications, 8 the dosage, and the purpose of each medication. (AR 32; see AR 60-61.) 9 The Court finds that the ALJ thoroughly considered Plaintiff’s medical records 10 (see AR 29-33) and found that the objective medical evidence did not support 11 Plaintiff’s allegations of disabling symptoms and limitations (see AR 33). See 12 Reddick, 157 F.3d at 725. Throughout his decision the ALJ relies on medical records 13 documenting normal and negative examination results, all of which the ALJ was 14 permitted to rely on in assessing Plaintiff’s testimony. See Garza v. Astrue, 380 F. 15 App’x 672, 674 (9th Cir. 2010) (finding that an ALJ properly considered a claimant’s 16 normal exam findings when noting a lack of objective medical evidence to support 17 the claimant’s allegations); see also Margolis v. Berryhill, No. CV 17-5047 SS, 2018 18 WL 3129775, at *10 (C.D. Cal. June 22, 2018) (holding that ALJ may rely on normal 19 and unremarkable examinations in discounting a claimant’s subjective testimony); 20 Cosio v. Astrue, No. EDCV 10-828 SS, 2011 WL 2784815, at *11 (C.D. Cal. July 21 15, 2011) (finding ALJ properly relied on negative examination results in finding 22 claimant’s testimony unsupported by the record). Additionally, the ALJ was allowed 23 to rely on the lack of diagnostic imaging as to Plaintiff’s alleged osteoarthritis of the 24 hands (see AR 31, 55-56). See Lazzotti v. Colvin, No. 1:13-CV-1329-BAM, 2015 25 WL 1137086, at *11 (E.D. Cal. Mar. 12, 2015) (“[I]t was reasonable for the ALJ to 26 discount Plaintiff’s subjective complaints based on the lack of corroborating 27 evidence from the EMG or nerve conduction studies.”). 28 /// 13 1 While other evidence in the record could be found to support Plaintiff’s 2 testimony, the ALJ was allowed to weigh the normal and negative examination 3 results in evaluating Plaintiff’s testimony. Where, as here, the evidence might be 4 susceptible to more than one rational interpretation, the ALJ’s decision should be 5 upheld. See Ryan, 528 F.3d at 1198 (citing Burch, 400 F.3d at 679); see Robbins, 6 466 F.3d at 882 (“If the evidence can support either affirming or reversing the ALJ’s 7 conclusion, we may not substitute our judgment for that of the ALJ.”). Accordingly, 8 the ALJ’s finding that Plaintiff’s statements were not fully consistent with the 9 medical record constitutes a specific, clear and convincing reason for discounting 10 Plaintiff’s subjective symptom testimony. 11 b. Reason No. 2: Inconsistent With Conservative Treatment 12 13 An ALJ may discount a claimant’s testimony based on routine and 14 conservative treatment. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 15 (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 16 testimony regarding severity of an impairment.”); see also Meanel v. Apfel, 172 F.3d 17 1111, 1114 (9th Cir. 1999) (rejecting a plaintiff’s complaint “that she experienced 18 pain approaching the highest level imaginable” as “inconsistent with the ‘minimal, 19 conservative treatment’ that she received”). 20 The ALJ found that treatment recommendations were not consistent with 21 Plaintiff’s alleged difficulties sitting, standing, and walking. (AR 30.) Specifically, 22 the ALJ relied on the fact that Plaintiff was never prescribed the use of cane. (Id.) 23 The ALJ also pointed to the fact that Plaintiff was prescribed a back brace, but was 24 informed that she could discontinue the use of her brace at her convenience. (Id.; see 25 AR 633.) 26 The Court finds that the ALJ properly relied on the inconsistency between 27 Plaintiff’s claims and the recommended treatment in discounting Plaintiff’s 28 subjective symptom testimony regarding her alleged difficulties in sitting, standing, 14 1 and walking. See Turner v. Colvin, No. 15-CV-00213-RS, 2016 WL 6039203, at *5 2 (N.D. Cal. Mar. 29, 2016) (holding ALJ properly discredited claimant’s “testimony 3 about her limitations regarding walking, standing, and sitting for long periods of 4 time” where ALJ relied on the fact that claimant was not prescribed a cane, was 5 prescribed Tramadol for pain, and used over-the-counter pain medication); Esquivias 6 v. Astrue, No. CV 11-6183-SP, 2012 WL 2458116, at *6 (C.D. Cal. June 26, 2012) 7 (“ALJ properly discounted plaintiff’s subjective complaints as inconsistent with her 8 conservative treatment” where ALJ cited to the fact that Plaintiff was not prescribed 9 a cane, walker, or wheelchair). c. 10 Reason No. 3: Activities of Daily Living4 11 Inconsistencies between symptom allegations and daily activities may act as a 12 clear and convincing reason to discount a claimant’s credibility. See Tommasetti, 13 533 F.3d at 1039; Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). But a 14 claimant need not be utterly incapacitated to obtain benefits. Fair v. Bowen, 885 F.2d 15 597, 603 (9th Cir. 1989). 16 Plaintiff contends that throughout this process she has maintained that “while 17 she is capable of engaging in brief and minimal activities of daily living, she is 18 incapable of persisting at any of those activities of daily living over a complete 8 hour 19 period of time.” (JS 20.) Furthermore, she contends that she “certainly would be 20 incapable of persisting at work related activities over an 8 hour[] work day and/or 40 21 22 23 24 25 26 27 28 4 After summarizing Plaintiff’s symptom testimony, the ALJ noted that Plaintiff “provided conflicting accounts concerning the degree to which her impairments limit her activities of daily living.” (AR 30.) The ALJ stated that Plaintiff’s “written statements reflect far greater functional abilities than [her] testimony.” (Id.) Plaintiff contends that any inconsistencies in the record “simply reflect a progression of symptoms and additional impairments such as the fact that Plaintiff’s lumbar spinal impairments appears to have substantially worsened in December of 2016 when she appears to have suffered an acute compression fracture of her L3 vertebra.” (JS 1819.) However, the Court’s review of the ALJ’s decision shows that the ALJ did not rely on inconsistencies between Plaintiff’s written statements and hearing testimony in discounting her subjective statements. (See AR 29-33.) 15 1 hour work week.” (Id.) Plaintiff argues that her statements are supported by her 2 sister’s third-party function report.5 (Id.) 3 The ALJ discounted Plaintiff’s statements because the records show Plaintiff 4 engaged in activities that exceed the degree of limitation alleged. (AR 33; see AR 5 29-33.) The ALJ found that Plaintiff’s statements regarding her alleged difficulty 6 holding items and typing on a computer were not well supported by the medical 7 evidence or her activities. (AR 31.) The ALJ relied on Plaintiff’s ability to use her 8 hands and fingers to play computer games, feed her dog, and complete written forms 9 and standardized tests. (Id., citing AR 53-55, 255, 275-83, 311-19, 457-62.) 10 As to Plaintiff’s claims regarding the alleged difficulties with diarrhea, the ALJ 11 found that Plaintiff’s statements were only partially supported. (AR 31.) The ALJ 12 reasoned that Plaintiff’s symptoms did not “appear to occur so frequently as to restrict 13 her to home, because she has reported attending church and shopping in stores on a 14 regular basis.” (Id., citing AR 255.) The ALJ also relied on the fact that Plaintiff 15 obtained a letter from a psychiatrist prescribing Plaintiff an emotional support 16 animal, which the ALJ notes would be “unnecessary” if Plaintiff “is unable to ‘stray 17 far’ from home.” (AR 31, citing AR 631.) 18 Similarly, the ALJ found that the evidence did not generally support the degree 19 of limitation alleged as to Plaintiff’s difficulties concentrating and being easily 20 confused. (AR 31.) The ALJ relied on Plaintiff’s function report where she indicated 21 “she spends more than 12 hours per day watching television and using a computer.” 22 (Id., citing AR 315; see AR 255, 278.) The ALJ noted that “[s]ustaining 12 hours of 23 activity generally requires concentration, persistence, and pace.” 24 Additionally, in discounting Plaintiff’s alleged difficulty in understanding (AR 31.) /// 25 26 27 28 5 The ALJ gave limited weight to the third-party function reports prepared by Plaintiff’s sister, Cynthia Terbest. (AR 33.) Plaintiff does not challenge the ALJ’s findings as to the third-party function reports. (See JS 1-32.) 16 1 technology, the ALJ pointed to Plaintiff’s ability to play computer games, shop 2 online, and use the voice assistant to send text messages. (Id.) 3 The mere ability to perform some tasks is not necessarily indicative of an 4 ability to perform work activities because “many home activities are not easily 5 transferable to what may be the more grueling environment of the workplace, where 6 it might be impossible to periodically rest or take medication.” Fair, 885 F.2d at 603; 7 see also Molina, 674 F.3d at 1112-13 (the ALJ may discredit a claimant who 8 “participat[es] in everyday activities indicating capacities that are transferable to a 9 work setting”). For example, a claimant’s ability to watch television is not an activity 10 that is easily transferable to the workplace. See Orn, 495 F.3d at 639 (finding that 11 “reading, watching television, and coloring in coloring books are activities that are 12 so undemanding that they cannot be said to bear a meaningful relationship to the 13 activities of the workplace”). 14 However, the ALJ may also rely on a claimant’s “daily activities to form the 15 basis of an adverse credibility determination” where the activities contradict the 16 claimant’s other testimony. Orn, 495 F.3d at 639; see Burkett v. Berryhill, 732 F. 17 App’x 547, 552 (9th Cir. 2018) (“While transferability of skills to a work setting is 18 one way in which an ALJ may consider a claimant’s daily activities, an ALJ may also 19 discount claimant testimony where reported daily activities contradict the claimant’s 20 alleged extent of her limitations.”). Here, the ALJ found several of Plaintiff’s claims 21 were inconsistent with Plaintiff’s activities. (See AR 30-32.) For example, the ALJ 22 compared Plaintiff’s testimony that she had difficulty holding items or typing and 23 Plaintiff’s statements that she played computer games, fed her dog, and completed 24 written forms and tests. (AR 31.) Similarly, the ALJ compared Plaintiff’s testimony 25 that she is unable to “stray far” from home due to her difficulties with diarrhea and 26 evidence showing Plaintiff attended church, shopped in stores, and obtained a 27 prescription for an emotional support animal. (Id.) The ALJ properly cited numerous 28 examples identifying inconsistencies between Plaintiff’s testimony and the activities 17 1 she engaged in. See Burkett, 732 F. App’x at 552 (finding ALJ did not err in relying 2 on claimant’s activities where “ALJ cited examples in the record illustrating 3 inconsistencies between [claimant’s] testimony concerning the limiting effects of her 4 symptoms and her activities”). Accordingly, this was a specific, clear and convincing 5 reason for discounting Plaintiff’s subjective symptom testimony. 6. 6 7 8 9 Conclusion The Court finds that the ALJ gave specific, clear and convincing reasons for discounting Plaintiff’s subjective symptom testimony. B. The ALJ Properly Considered the Relevant Medical Evidence of Record in Assessing Plaintiff’s RFC 10 11 Plaintiff contends that the ALJ failed to properly consider significant medical 12 evidence of record as to Plaintiff’s physical and mental impairments in assessing 13 Plaintiff’s RFC. (JS 5; see JS 6-12.) 14 The ALJ is responsible for assessing a claimant’s RFC “based on all of the 15 relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c); see 16 Robbins, 466 F.3d at 883 (citing SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996)). 17 In doing so, the ALJ may consider any statements provided by medical sources, 18 including statements that are not based on formal medical examinations. See 20 19 C.F.R. §§ 404.1513(a), 404.1545(a)(3). An ALJ’s determination of a claimant’s 20 RFC must be affirmed “if the ALJ applied the proper legal standard and his decision 21 is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 22 Cir. 2005); accord Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th 23 Cir. 1999). 24 1. Opinion Evidence 25 Courts give varying degrees of deference to medical opinions based on the 26 provider: (1) treating physicians who examine and treat; (2) examining physicians 27 who examine, but do not treat; and (3) non-examining physicians who do not examine 28 or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). 18 1 Most often, the opinion of a treating physician is given greater weight than the 2 opinion of a non-treating physician, and the opinion of an examining physician is 3 given greater weight than the opinion of a non-examining physician. See Garrison 4 v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 5 The ALJ must provide “clear and convincing” reasons to reject the ultimate 6 conclusions of a treating or examining physician. Embrey v. Bowen, 849 F.2d 418, 7 422 (9th Cir. 1988); Lester, 81 F.3d at 830-31. When a treating or examining 8 physician’s opinion is contradicted by another opinion, the ALJ may reject it only by 9 providing specific and legitimate reasons supported by substantial evidence in the 10 record. Orn, 495 F.3d at 633; Lester, 81 F.3d at 830; Carmickle v. Comm’r, Soc. Sec. 11 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). “An ALJ can satisfy the ‘substantial 12 evidence’ requirement by ‘setting out a detailed and thorough summary of the facts 13 and conflicting evidence, stating his interpretation thereof, and making findings.’” 14 Garrison, 759 F.3d at 1012 (citation omitted). 15 a. Mental Impairments 16 In assessing Plaintiff’s mental RFC, the ALJ considered the opinions of 17 consultative examiner Anthony Benigno, Psy.D., state consultant Eugene Campbell, 18 Ph.D., and Plaintiff’s treating psychiatrist Grace Reid, M.D. (AR 32-33.) 19 Plaintiff contends that the ALJ’s rejection of Dr. Reid’s opinions constitutes 20 reversible error. (JS 8; see JS 6-8.) Plaintiff argues that the “[o]nly by rejecting the 21 opinions of the treating psychiatrist and attributing substantial weight to those of his 22 own consultants,” could the ALJ find the assessed mental RFC. (JS 6.) The 23 Commissioner contends that “the ALJ properly rejected the[] opinions as 24 unsupported by objective clinical findings and inconsistent with other evidence in the 25 record.” (JS 12; see JS 17-19.) 26 i. Dr. Benigno 27 On January 18, 2016, Dr. Benigno conducted a complete psychological 28 evaluation. (AR 457-62.) Plaintiff was alert and presented with a cooperative 19 1 attitude. (AR 459.) She demonstrated a willingness to complete tasks and appeared 2 to be putting forth her best effort. (Id.) Plaintiff “did not manifest any bizarre 3 behaviors, abnormal movements, tics or tremors.” (Id.) Her eye contact was 4 inappropriate. 5 understandable with no gross distortions of speech. (Id.) Plaintiff’s response time 6 and work pace were average. (Id.) She was oriented to person, time, place, and the 7 purpose of the examination, and was able to state her name, age, and date of birth. 8 (Id.) Plaintiff’s intellectual functioning was in the low average range. (Id.) (Id.) Dr. Benigno found Plaintiff’s speech was clear and 9 Dr. Benigno observed that Plaintiff’s thoughts were coherent and logical, and 10 the content was appropriate. (AR 459.) Plaintiff’s “mood was dysthymic with 11 restricted range of affect” and she reported symptoms of depression and anxiety. (Id.) 12 Plaintiff denied experiencing delusions or hallucinations, and Dr. Benigno found no 13 signs of perceptual disturbance or misinterpretation of consensual reality during the 14 exam. (Id.) Her immediate, recent, and remote memories were intact, and Plaintiff 15 was able to provide general details of her daily activities. 16 “demonstrated an adequate attention span for answering interview questions and 17 following test instructions.” (Id.) She was also able to sustain concentration and 18 work without distraction during the performance tasks. (Id.) Her fund of knowledge 19 was adequate. 20 commonsense hypothetical events was adequate. (AR 460.) (Id.) (Id.) Plaintiff Plaintiff’s insight into her illness and judgment for 21 Plaintiff completed the Trail Making Test, Part A and B, the Wechsler Adult 22 Intelligence Scale, and the Wechsler Memory Scale. (AR 460.) As to Trail A of the 23 Trail Making Test, Plaintiff’s results were “in the mildly impaired range of tasks 24 requiring sustained attention and visual tracking ability.” (Id.) Trail B was in the 25 normal range. (Id.) Plaintiff’s general intellectual functioning was in the low average 26 range. (Id.) Her general memory was in the low average range. (AR 461.) 27 After the examination, Dr. Benigno opined that Plaintiff’s “overall cognitive 28 ability falls within the low average range.” (AR 461.) Dr. Benigno found that 20 1 Plaintiff’s “[p]robable DSM-IV diagnoses” included major depressive disorder, mild, 2 and personal psychosocial stressors. (Id.) Plaintiff had a GAF score of 70. (Id.) 3 Dr. Benigno opined that Plaintiff would be able to understand, remember, and 4 carry out short, simplistic instructions with no difficulty. (AR 461.) However, 5 Plaintiff would have mild difficulties understanding, remembering, and carrying out 6 detailed and complex instructions. (Id.) She would not have difficulty making 7 simplistic work-related decisions without special supervision or responding to 8 change in a normal workplace setting. (Id.) Plaintiff would have mild difficulty 9 complying with job rules such as safety and attendance. (Id.) Similarly, Plaintiff 10 would have mild difficulty maintaining persistence and pace in a normal workplace 11 setting. (Id.) Dr. Benigno also noted that Plaintiff had no history of interpersonal 12 difficulties and was socially appropriate with him. (Id.) He opined that Plaintiff 13 “presents no difficulty to interact appropriately with supervisors, coworkers[,] and 14 peers on a consistent basis.” (Id.) Plaintiff appeared able to manage her own 15 finances. (Id.) She also arrived early to the examination. (Id.) 16 The ALJ gave Dr. Benigno’s opinion significant weight because it was 17 “supported by the clinical findings from his examination.” (AR 32.) “The opinion 18 of a consultative examiner, . . . may be relied upon by the ALJ to determine a 19 claimant’s residual functional capacity if the opinion is supported by clinical tests 20 and observations upon examination.” Sheaffer v. Astrue, No. EDCV 08-0998-JTL, 21 2009 WL 1531852, at *3 (C.D. Cal. June 2, 2009) (citing Tonapetyan v. Halter, 242 22 F.3d 1144, 1149 (9th Cir. 2001)). Here, Dr. Benigno’s opinion was rendered after a 23 complete psychological evaluation, including a mental status examination, the Trail 24 Making Test, Part A and B, the Wechsler Adult Intelligence Scale, and the Wechsler 25 Memory Scale. (AR 32; see AR 457-62.) Because Dr. Benigno’s opinion was 26 supported by the results of a complete psychological evaluation, the ALJ did not err 27 in giving significant weight to Dr. Benigno’s opinion. See Belmontez v. Colvin, No. 28 ED CV 14-1590-PLA, 2015 WL 2063945, at *6 (C.D. Cal. May 4, 2015) (finding 21 1 ALJ did not err in assigning significant weight to consultative examiner’s opinion 2 where the opinion was “supported by [examiner’s] independent clinical findings”). 3 ii. Dr. Campbell 4 On February 8, 2016, Dr. Campbell reviewed Plaintiff’s disability and DIB 5 claim at the initial level. (AR 77-78, 89-90; see AR 72-83, 84-95.) Dr. Campbell 6 found that Plaintiff had a medically determinable impairment that did not satisfy the 7 diagnostic criteria and was nonsevere. 8 restricted in her activities of daily living. (AR 78, 90.) Dr. Campbell found Plaintiff 9 did not have difficulties maintaining social functioning. (Id.) She did not have 10 repeated episodes of decompensation, each of extended duration. (Id.) Plaintiff did 11 have mild difficulties maintaining, concentration, persistence, or pace. (Id.) (AR 77-78, 89-90.) Plaintiff was not 12 The ALJ gave significant weight to Dr. Campbell’s opinion that Plaintiff had 13 mild limitations as to concentration, persistence, and pace because the opinion was 14 consistent with the evidence available at the time of that review. (Id.) Additionally, 15 the ALJ noted that Plaintiff “made an effort to receive psychiatric treatment,” and he 16 gave Plaintiff’s “statements some benefit of the doubt and [found] that she is limited 17 to the above” RFC assessment. (AR 32-33.) Because the ALJ found Dr. Campbell’s 18 opinion was consistent with the evidence, the ALJ did not err in giving Dr. 19 Campbell’s opinion significant weight. See Ruiz v. Colvin, 638 F. App’x 604, 606 20 (9th Cir. 2016) (finding ALJ did not err in giving greatest weight to state consultants, 21 where ALJ found “their opinions consistent with the greater medical record, progress 22 and treating notes, and [claimant’s] description of her daily activities.”). 23 iii. Dr. Reid 24 In June 2017, Dr. Reid provided a “written response for the medical 25 management of” Plaintiff. (AR 625.) Dr. Reid explained she has been treating 26 Plaintiff for major depressive disorder, severe, recurrent since June 15, 2015. (Id.) 27 Dr. Reid noted that Plaintiff “was currently taking psychiatric medications for [her] 28 mood disorder” and benefits from her pet for emotional and psychological support. 22 1 (Id.) Dr. Reid opined that Plaintiff “needs to have [her] pet dog with [her] at all times, 2 if possible, as an adjunct non-pharmacological therapy for [her] psychiatric 3 diagnosis.” (Id.) Similarly, in August 2017, Dr. Reid prepared a letter requesting 4 that Plaintiff be allowed to travel with her emotional support animal in the cabin of 5 an aircraft. (AR 631.) Dr. Reid explained that Plaintiff “has certain limitations 6 related to social interactions and coping with stress and anxiety” which are alleviated 7 by her emotional support animal. (Id.) 8 On July 13, 2017, Dr. Reid prepared an assessment documenting Plaintiff’s 9 mental capacity. (AR 626-27.) She opined that Plaintiff has a medically verifiable 10 condition that would limit or prevent her from performing certain tasks. (AR 626.) 11 Plaintiff’s condition is chronic, and she is actively seeking treatment. (Id.) Dr. Reid 12 opined that Plaintiff is unable to work and has limitations that affect her ability to 13 work or participate in education or training. (Id.) Plaintiff’s condition does not 14 require someone to be in the home to care for her. (Id.) 15 As to Plaintiff’s mental capacity, Dr. Reid opined that Plaintiff “is unable to 16 concentrate or sustain attention or tolerate social interactions due to severe anxiety.” 17 (AR 627.) Similarly, due to severe anxiety, she cannot tolerate social interaction with 18 her peers or supervisors. (Id.) She experiences panic attacks with episodes of 19 significant nausea, shortness of breath, and heart palpitations. (Id.) Dr. Reid opined 20 that Plaintiff cannot concentrate. (Id.) Plaintiff is easily distracted as a result of 21 “significant medical illness of diarrhea and back pain, and has a short attention span.” 22 (Id.) Plaintiff “is unable to perform in stressful situations or environments due to 23 limited coping and stress management skills.” (Id.) 24 The ALJ gave Dr. Reid’s June 2017 assessment limited weight. (AR 33.) 25 Because Dr. Reid is a treating psychiatrist whose opinion has been contradicted by 26 Drs. Benigno and Campbell, the ALJ needed to provide specific and legitimate 27 reasons for giving Dr. Reid’s opinion limited weight. See Lester, 81 F.3d at 830 28 (“[I]f the treating doctor’s opinion is contradicted by another doctor, the 23 1 Commissioner may not reject this opinion without providing ‘specific and legitimate 2 reasons’ supported by substantial evidence in the record for so doing.”). 3 First, the ALJ reasoned that Dr. Reid’s assessment was inconsistent with the 4 objective evidence. (AR 33.) An ALJ “need not accept the opinion of any physician, 5 including a treating physician, if that opinion is brief, conclusory, and inadequately 6 supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 7 2002). The ALJ noted that Dr. Reid’s assessment did “not contain citations to 8 supporting clinical findings or other objective evidence.” (AR 33.) Plaintiff points 9 to evidence in the record which allegedly supports Dr. Reid’s assessment. (See JS 6- 10 7.) However, Dr. Reid does not rely on these records, or any records in support of 11 her opinion. Additionally, the ALJ explained that Dr. Reid “repeats [Plaintiff’s] 12 allegations that she is unable to concentrate or sustain attention.” (AR 33.) Plaintiff’s 13 statements were inconsistent with Dr. Benigno’s examination, where the Trail 14 Making Test showed “mild to no impairment” in Plaintiff’s ability to sustain 15 sufficient attention, and the “WMS-IV” showed Plaintiff’s memory was in the low 16 average range. (Id.) The ALJ properly discounted Dr. Reid’s opinion on the basis 17 that her assessment was inconsistent with the objective evidence. See Maloof v. 18 Berryhill, No. 8:16-CV-01880-SK, 2018 WL 1163003, at *1 (C.D. Cal. Jan. 22, 19 2018) (affirming ALJ’s assessment of treating physician’s opinion, even where 20 claimant cited to evidence in support of the opinion, where ALJ found the opinion 21 was conclusory because the physician “provid[ed] very little explanation of the 22 evidence relied on in forming [it]” (alteration in original)); Hernandez v. Colvin, No. 23 ED CV 13-01385 RZ, 2014 WL 897268, at *1 (C.D. Cal. Mar. 5, 2014) (finding ALJ 24 gave specific and legitimate reasons for affording physician’s opinion little weight 25 where the opinion was not supported by “any objective clinical or diagnostic 26 finding,” the physician did not explain what the opinion was based on, and relied 27 “heavily” on the claimant’s statements). 28 /// 24 1 Second, the ALJ explained that Dr. Reid’s assessment was inconsistent with 2 Plaintiff’s “own description of her activities of daily living.” (AR 33.) An ALJ may 3 properly discount a physician’s opinion that is inconsistent with a claimant’s daily 4 activities. See Rollins, 261 F.3d at 856. Specifically, the ALJ relied on Plaintiff’s 5 statements that she “spends more than 12 hours per day pursuing hobbies and 6 interests, such as watching television, using a computer, reading, and listening to 7 music.” (AR 33 (internal citations omitted); see AR 53-55, 315, 459.) In discussing 8 Plaintiff’s statements, the ALJ reasoned that “sustaining 12 hours of activity 9 generally requires concentration, persistence, and pace.” (AR 32.) This was a 10 specific and legitimate reason for giving Dr. Reid’s opinion limited weight. See 11 Green v. Berryhill, 731 F. App’x 596, 598-99 (9th Cir. 2018) (“The ALJ properly 12 rejected [physician’s] opinion based on specific and legitimate reasons, including 13 lack of clinical support for [the] opinion prior to March 2011, inconsistency with the 14 treatment record, and inconsistency with [claimant’s] activities.”); Wheatley v. 15 Berryhill, 706 F. App’x 424, 425 (9th Cir. 2017) (finding ALJ gave specific and 16 legitimate reasons for giving “little to no weight” to physician’s opinion that was 17 inconsistent with medical record and claimant’s daily activities). 18 19 Accordingly, the ALJ provided specific and legitimate reasons for giving Dr. Reid’s June 2017 assessment limited weight. 20 Finally, the ALJ gave no weight to Dr. Reid’s opinion that Plaintiff requires 21 an emotional support animal because the opinion did not provide “specific 22 information regarding [Plaintiff’s] work-related abilities” (AR 33). 23 properly rejected Dr. Reid’s statements because they were conclusory and were not 24 supported by clinical findings. See Thomas, 278 F.3d at 957. 25 b. The ALJ Physical Impairments 26 In assessing Plaintiff’s physical RFC, the ALJ considered the opinions of 27 consultative examiner Azizollah Karamlou, M.D., and state consultants Michael 28 Douglas, M.D. and C. Scott M.D. (AR 31-32.) 25 1 Plaintiff contends that “the ALJ’s reliance on the consultative examiner’s 2 opinion and the state agency opinions all of which were rendered in 2016 also 3 constitutes reversible error” because “those opinions were rendered without the 4 benefit of the medical evidence of record in this case including the two MRI reports 5 documenting severe findings in Plaintiff’s lumbar spine.” 6 Commissioner contends that “the ALJ’s RFC finding is supported by substantial 7 evidence and free from legal error.” (JS 17.) The Commissioner also notes that 8 “Plaintiff does not present any medical opinion evidence suggesting that Plaintiff had 9 further physical limitations than those found by the ALJ.” (Id.) i. 10 (JS 12.) The Dr. Karamlou 11 On January 6, 2016, Dr. Karamlou conducted an internal medicine 12 consultation, including a physical examination. (AR 450-54.) Plaintiff was noted to 13 be well-developed, appeared her stated age, and had exogenous obesity. (AR 451.) 14 She was not in acute distress. (Id.) Plaintiff had normal gait and balance, and did 15 not require the use of an assistive device. (Id.) Her skin was warm and dry, with no 16 lesions or jaundice. (Id.) 17 As to Plaintiff’s nodes, Dr. Karamlou documented “no cervical, 18 supraclavicular, axillary or inguinal adenopathy.” (AR 451.) Her extraocular 19 muscles were intact, and fundi were benign without papilledema, hemorrhages or 20 exudates. (Id.) Dr. Karamlou did not identify any visual field deficits or scleral 21 icterus. (Id.) 22 Plaintiff’s neck was supple and had a midline trachea. (Id.) Plaintiff’s range 23 of motion of her cervical spine was within normal limits. (Id.) Plaintiff had 24 “[n]ormoactive bowel sounds,” and nondistended, nontender abdomen. (Id.) There 25 was “no hepatosplenomegaly, ascites or masses.” (Id.) 26 As to Plaintiff’s back, there was local tenderness with no evidence of muscle 27 spasm or radiculopathy. (AR 452.) Plaintiff’s range of motion was decreased, 28 flexion was 65/90 degrees and extension 10/20 degrees. (Id.) Plaintiff’s extremities 26 1 had “[p]eripheral pulses 2+ and symmetrical throughout.” (Id.) There was no 2 clubbing, cyanosis, or pedal edema, and no joint deformities, effusions, warmth, 3 swelling, crepitus, or pain on motion. (Id.) There was no laxity of any joint. (Id.) 4 Dr. Karamlou documented tenderness in Plaintiff’s shoulders and difficulty 5 fully raising her arms above her head. (AR 452.) Plaintiff’s wrist and elbow range 6 of motion were grossly within normal limits bilaterally. 7 metacarpophalangeal, proximal interphalangeal, and distal interphalangeal joint 8 flexion was grossly within normal limits bilaterally. (Id.) Plaintiff’s hip, knee, and 9 ankle range of motion are grossly within normal limits bilaterally. (Id.) (Id.) Her 10 A neurologic exam showed Plaintiff’s cranial nerves II-XII were intact. (AR 11 452.) She had normal muscle bulk and tone without atrophy. (Id.) Plaintiff’s 12 sensation was “[i]ntact to light touch throughout” and she had “good hand 13 coordination.” (AR 452-53.) Her “[d]eep tendon reflexes are 1+ and symmetrical 14 throughout.” (AR 453.) 15 Dr. Karamlou found Plaintiff had hypertension, under treatment; atypical chest 16 pain; low back pain syndrome with mild-intensity pain and tendonitis of the 17 shoulders; and plantar fasciitis and calcaneal spur, which is painful on walking. (AR 18 453.) Plaintiff was on an anti-inflammatory agent. (Id.) 19 As to Plaintiff’s functional limitations, Dr. Karamlou opined Plaintiff was able 20 to lift and carry 20 pounds occasionally, and 10 pounds frequently. (AR 453.) She 21 could walk and stand for six hours out of an eight-hour day. (Id.) She could sit for 22 six hours out of an eight-hour day. (Id.) She could push and pull frequently with her 23 upper and lower extremities. (Id.) Plaintiff could bend, stoop, kneel, and crawl 24 frequently. (Id.) Dr. Karamlou also opined that there was “no impairment with 25 handling and fingering, except for fully raising the arms above the head.” (Id.) 26 Plaintiff could walk on uneven terrain, climb ladders, and work at heights. (Id.) 27 Plaintiff had no limitation as to her ability to hear and see. (AR 454.) She did not 28 need an assistive device. (Id.) 27 1 After summarizing Dr. Karamlou’s objective findings and opinion, the ALJ 2 gave the opinion great weight because the assessment was “supported by the 3 objective findings from his examination.” (AR 31.) As discussed above, an ALJ 4 may properly rely on the opinion of a consultative examiner, where the examiner’s 5 opinion is based on independent clinical findings. See Tonapetyan, 242 F.3d at 1149; 6 Sheaffer, 2009 WL 1531852, at *3. Because Dr. Karamlou’s opinion was based on 7 his own independent examinations of Plaintiff (see AR 450-54), the ALJ did not err 8 in giving the opinion great weight. See Tonapetyan, 242 F.3d at 1149. 9 ii. Drs. Douglas and Scott 10 State agency consultant Dr. Douglas reviewed Plaintiff’s applications (see AR 11 72-83, 84-95), and Dr. Scott reviewed the applications upon reconsideration (see AR 12 98-109, 110-21.). Dr. Douglas found Plaintiff had exertional limitations. (AR 79, 13 91.) Plaintiff could occasionally lift and/or carry 20 pounds, and could frequently 14 lift and or carry 10 pounds. (AR 79, 91.) She could stand and/or walk with normal 15 breaks for a total of six hours in an eight-hour workday. (AR 79, 91-92.) She could 16 also sit for a total of six hours in an eight-hour workday. (AR 79-80, 92.) Her ability 17 to push and/or pull was limited in her upper and lower extremities due to back pain 18 with decreased range of motion and “obesity, freq.” (AR 80, 92.) 19 As to postural limitations, Dr. Douglas opined Plaintiff could balance, stoop, 20 kneel, crouch, and crawl frequently. (AR 80, 92.) Plaintiff’s ability to climb ramps, 21 stairs, ladders, ropes, and scaffolds was unlimited. (AR 80, 92.) Her ability to reach 22 overhead was limited due to tenderness in shoulders bilaterally and difficulty fully 23 raising her arms above head, frequently. (AR 80, 92.) However, her ability to handle, 24 finger, and feel was unlimited. 25 communicative, or environmental limitations. (AR 81, 93.) (AR 80-81, 92-93.) Plaintiff had no visual, 26 Dr. Douglas explained that Plaintiff had a history of hypertension, but there 27 was “no evidence of end organ damage stroke.” (AR 81, 93.) Plaintiff alleged “heel 28 spurs and problems walking,” but “upon exam she ha[d] normal gait and balance and 28 1 does not require an [assistive device] for ambulation.” (Id.) As to Plaintiff’s back 2 pain complaints, Dr. Douglas explained that she had a decreased range of motion, but 3 there was “no evidence of spasm or radiculopathy and no evidence of neurological 4 deficits.” (Id.) Plaintiff had tenderness in her shoulders bilaterally and difficulty 5 fully raising her arms above her head. (Id.) Dr. Douglas found that there was no 6 evidence that Plaintiff’s irritable bowel syndrome was functionally limiting. (Id.) In 7 assessing Plaintiff’s RFC, Dr. Douglas considered Plaintiff’s obesity and also found 8 that the “[c]ombined effects of all impairments support limitations reflected in RFC.” 9 (Id.) Upon reconsideration, Dr. Scott agreed with Dr. Douglas’s assessment and 10 “affirmed” it as written. (AR 107, 119.) 11 The ALJ gave great weight to the opinions of Drs. Douglas and Scott because 12 the assessments were “consistent with the objective findings in the medical file.” 13 (AR 31-32.) Additionally, the ALJ noted that “[s]tate agency medical agency 14 consultants are highly qualified physicians who are experts in Social Security 15 disability evaluation.” (Id.) 16 Plaintiff’s argument that the ALJ erred in giving great weight to the opinions 17 of Drs. Douglas and Scott because those opinions were rendered without the benefit 18 of all of the medical evidence is unpersuasive. (See JS 12.) The fact that the state 19 agency consultant did not review records beyond the date of their review “is not an 20 error.” See Sportsman v. Colvin, 637 F. App’x 992, 995 (9th Cir. 2016). The ALJ 21 properly reviewed the entire record and found that the opinions of Drs. Douglas and 22 Scott were “consistent with the objective medical findings in the medical file” (AR 23 32). See Sportsman, 637 F. App’x at 995 (stating that it is not error for a state agency 24 consultant to fail to review subsequent medical records, if the ALJ reviews the entire 25 record and concludes that the later-dated medical records are consistent with the 26 overall medical evidence). Thus, the ALJ did not err in assigning great weight to the 27 opinions of Drs. Douglas and Scott. See Ruiz v. Colvin, 638 F. App’x 604, 606 (9th 28 Cir. 2016) (finding that the ALJ did not err in giving the greatest weight to non29 1 examining state agency medical consultants because “the ALJ found their opinions 2 consistent with the greater medical record, progress and treating notes, and [the 3 plaintiff]'s description of her daily activities”); see also Magallanes v. Bowen, 881 4 F.2d 747, 752 (9th Cir. 1989) (“[T]he reports of consultative physicians called in by 5 the Secretary may serve as substantial evidence.”). 2. 6 Objective Medical Evidence 7 Plaintiff points to other evidence in support of her contention that the ALJ 8 failed to properly assess her RFC. (JS 5-12.) She contends that “[n]owhere in the 9 [ALJ’s] unfavorable decision does he even mention the two MRIs of Plaintiff’s 10 lumbar spine which were performed in” March 2017 and May 2017, “which reveal 11 significant findings which are consistent with and supportive of Plaintiff’s subjective 12 complaints.” (JS 11-12). These MRIs document a compression fracture of the L3 13 vertebral body. (AR 578-79, 622-23) 14 While Plaintiff contends that the ALJ did not mention the two MRIs in early 15 2017, the ALJ did note that Plaintiff “was prescribed a back brace for a compression 16 fracture, the injury healed and in August 2017 [Plaintiff’s] doctor advised her that 17 she could discontinue the back brace.” (See AR 30, citing AR 633.) “[T]he ALJ 18 does not need to ‘discuss every piece of evidence’” when “interpreting the evidence 19 and developing the record.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 20 (9th Cir. 2003) (citation omitted). As discussed above in connection with Plaintiff’s 21 subjective complaints, the ALJ thoroughly reviewed the medical records presented 22 by Plaintiff. (See AR 29-33.) Where, as here, the evidence might be susceptible to 23 more than one rational interpretation, the ALJ’s decision should be upheld. See Ryan, 24 528 F.3d at 1198 (citing Burch, 400 F.3d at 679); see Robbins, 466 F.3d at 882. 3. 25 26 27 28 Conclusion In sum, the Court finds that the ALJ properly considered the relevant medical evidence of record in assessing Plaintiff’s RFC. /// 30 1 C. The ALJ’s Conclusions at Step Four as to Plaintiff’s Past Relevant Work is Supported by Substantial Evidence 2 3 Plaintiff contends that the ALJ’s decision is “not supported by substantial 4 evidence in that the ALJ’s conclusions at Step Number Four of the Sequential 5 Evaluation Process are based upon defective vocational expert testimony and 6 inconsistent with the description of Plaintiff’s past relevant work in the Dictionary of 7 Occupational Titles and Selected Characteristics.” 8 Specifically, Plaintiff contends that the Dictionary of Occupational Titles (“DOT”) 9 description of Plaintiff’s past work and the VE’s testimony is in inconsistent with the 10 assessed RFC limiting Plaintiff to occasional work contact with others. (JS 27; see 11 AR 29.) (JS 26; see JS 26-28.) 12 The Commissioner contends “the ALJ properly found that Plaintiff could 13 perform her past relevant work as a storage rental facility clerk.” (JS 29; see JS 29- 14 30.) The Commissioner contends that the ALJ was allowed to rely on the VE’s 15 testimony. (JS 29-30.) 16 “At step four of the sequential analysis, the claimant has the burden to prove 17 that he cannot perform his prior relevant work ‘either as actually performed or as 18 generally performed in the national economy.’” Carmickle, 533 F.3d at 1166 19 (quoting Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). However, the ALJ 20 has the duty to make the requisite factual findings to support the conclusion. Pinto 21 v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). “This requires specific findings as 22 to the claimant’s residual functional capacity, the physical and mental demands of 23 the past relevant work, and the relation of the residual functional capacity to the past 24 work.” Id. at 845 (citing SSR 82-62, 1982 WL 31386 (Jan. 1, 1982)). 25 The VE’s testimony may serve as substantial evidence to support an ALJ’s 26 step four finding. See Bailey v. Astrue, No. EDCV 09-1437-RC, 2010 WL 3369152, 27 at *5 (C.D. Cal. Aug. 24, 2010) (“vocational expert’s testimony constitutes 28 substantial evidence to support the ALJ’s Step Four determination that [claimant] can 31 1 perform his past relevant work.”). An ALJ may rely on the testimony of a vocational 2 expert that contradicts the DOT, if the record contains “persuasive evidence to 3 support the deviation.” Pinto, 249 F.3d at 846 (quoting Johnson v. Shalala, 60 F.3d 4 1428, 1435 (9th Cir. 1995)). “[I]n order for an ALJ to rely on a job description in the 5 [DOT] that fails to comport with a claimant’s noted limitations, the ALJ must 6 definitively explain this deviation.” Id. at 847. “Evidence sufficient to permit such 7 a deviation may be either specific findings of fact regarding the claimant’s residual 8 functionality, or inferences drawn from the context of the expert’s testimony.” Lopez 9 v. Astrue, No. CV 12-3036 JC, 2012 WL 3711084, at *3 (C.D. Cal. Aug. 28, 2012). 10 Here, the ALJ found that Plaintiff could perform her past work as a storage- 11 facility rental clerk and that the “work does not require the performance of work- 12 related activities precluded by” Plaintiff’s RFC. (AR 33.) The ALJ noted that 13 Plaintiff actually performed the work as classified in the DOT. (AR 34.) At the 14 hearing, the ALJ presented the VE with a hypothetical person sharing the same 15 general RFC as Plaintiff. (AR 66-67.) The VE testified that a hypothetical person 16 with the same general RFC as Plaintiff would be able to performs the job of storage- 17 facility rental clerk as described in the DOT. (AR 67.) 18 The VE addressed the alleged deviation from the DOT’s description. (See AR 19 67-68). The VE did note that it was “a little tricky,” but that based on her experience, 20 storage facility rental clerks work more independently and Plaintiff’s limitation to 21 only occasional interaction with others is not an issue because they are not in 22 “constant contact with people.” (Id.) The VE testified that Plaintiff’s limitation to 23 occasional contact with others does not preclude Plaintiff from performing her past 24 work as described by the DOT. (AR 67.) The VE explained that the DOT does not 25 list the level of interaction with others, and that her testimony is based on her 26 experience in placing people in those jobs. 27 “explanation to be reasonable and accepted the testimony in accordance with 28 /// 32 (Id.) The ALJ found the VE’s 1 SSR 00-4p.”6 (AR 34.) Accordingly, the ALJ did not err in relying on the VE’s 2 testimony at step four. See Buckner-Larkin v. Astrue, 450 F. App’x 626, 628-29 (9th 3 Cir. 2011) (affirming in the context of step five the ALJ’s reliance on VE testimony 4 where VE “noted that although the DOT does not discuss a sit/stand option, his 5 determination was based on his own labor market surveys, experience, and research. 6 Therefore, the conflict between the DOT and the [VE] was addressed and explained 7 by the [VE], and the ALJ addressed this in the decision.”); see also Bayliss, 427 F.3d 8 at 1217 (“The hypothetical that the ALJ posed to the VE contained all of the 9 limitations that the ALJ found credible and supported by substantial evidence in the 10 record. The ALJ’s reliance on testimony the VE gave in response to the hypothetical 11 therefore was proper.”). Thus, because the ALJ properly relied on the VE’s testimony, the ALJ’s 12 13 conclusion at step four is supported by substantial evidence. 14 V. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of 15 16 the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 17 18 CONCLUSION Order and the Judgment on counsel for both parties. 19 20 DATED: April 24, 2020 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 21 22 23 NOTICE 24 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 25 26 27 28 6 Social Security Ruling 00-4p clarifies how the Social Security Administration uses the testimony of VEs and vocational specialists, including how conflicts between testimony and the DOT are resolved and what constitutes a reasonable explanation of the conflict. SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). 33
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