Braun v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sandy C Braun, No. CV-22-00305-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 12), the 18 Commissioner’s answering brief (Doc. 16), and Plaintiff’s reply (Doc. 17), as well as the 19 Administrative Record (Doc. 11, “AR”), and now affirms the decision of the 20 Administrative Law Judge (“ALJ”). 21 I. Procedural History 22 On August 7, 2019, Plaintiff filed her application for disability and disability 23 insurance benefits, alleging disability beginning on November 1, 2018. (AR at 22.) The 24 Social Security Administration (“SSA”) denied Plaintiff’s application at the initial and 25 reconsideration levels of administrative review and Plaintiff requested a hearing before an 26 ALJ. (Id.) On February 23, 2021, following a telephonic hearing, the ALJ issued an 27 unfavorable decision. (Id. at 22-30.) The Appeals Council later denied review. (Id. at 1- 28 4.) 1 II. The Sequential Evaluation Process And Judicial Review 2 To determine whether a claimant is disabled for purposes of the Act, the ALJ 3 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 4 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 5 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 6 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 7 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 8 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 9 step three, the ALJ considers whether the claimant’s impairment or combination of 10 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 11 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 12 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 13 capacity (“RFC”) and determines whether the claimant is still capable of performing past 14 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and 15 final step, where she determines whether the claimant can perform any other work in the 16 national economy based on the claimant’s RFC, age, education, and work experience. 20 17 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 18 An ALJ’s factual findings “shall be conclusive if supported by substantial 19 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 20 the Commissioner’s disability determination only if it is not supported by substantial 21 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 22 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 23 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 24 evidence is susceptible to more than one rational interpretation, one of which supports the 25 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 26 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 27 decision, the district court reviews only those issues raised by the party challenging the 28 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 1 III. The ALJ’s Decision 2 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 3 since the alleged onset date and that Plaintiff had the following severe impairments: 4 “cervical spondylosis; lumbar degenerative disc disease status post fusion; and obesity.” 5 (AR at 24-25.)1 Next, the ALJ concluded that Plaintiff’s impairments did not meet or 6 medically equal a listing. (Id. at 25.) Next, the ALJ calculated Plaintiff’s RFC as follows: 7 [T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). The claimant can lift and carry 20 pounds 8 occasionally and 10 pounds frequently, stand and walk for 6 hours in an 8- hour day, and sit for 6 hours in an 8-hour day. The claimant can occasionally 9 climb ramps and stairs; never climb ladders or scaffolds; frequently balance; and occasionally stoop, kneel, crouch, and crawl. The claimant must avoid 10 even moderate exposure to hazards. 11 (Id. at 26-29.) 12 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 13 testimony, concluding that Plaintiff’s “medically determinable impairments could 14 reasonably be expected to cause some of the alleged symptoms; however, the claimant’s 15 statements concerning the intensity, persistence and limiting effects of these symptoms are 16 not entirely consistent with the medical evidence and other evidence in the record for the 17 reasons explained in this decision.” (Id. at 26-29.) The ALJ also evaluated opinion 18 evidence from various medical sources, concluding as follows: (1) Dr. David Tom, M.D., 19 treating physician (not persuasive); (2) Dr. Clifford Baker, M.D., treating physician (not 20 persuasive); (3) Dr. G. Dale, M.D., state agency medical consultant (persuasive); (4) Dr. 21 M. Roberts, M.D., state agency medical consultant (persuasive); and (5) Dr. Lyle Young, 22 M.D., treating physician (not persuasive). (Id. at 27-28.) Additionally, the ALJ discussed 23 a third-party statement from David Braun, Plaintiff’s husband. (Id. at 28.) 24 Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff was 25 capable of performing her past relevant work as an HR specialist and administrative 26 assistant. (Id. at 29.) Thus, the ALJ concluded that Plaintiff is not disabled. (Id.) 27 1 The ALJ also noted that Plaintiff presented evidence of “fibromyalgia” but found 28 that “the record has not established at least 11 positive tender points on physical examination,” which fails to “meet[] the criteria of SSR. 12-2p.” (AR at 25.) 1 IV. Discussion 2 Plaintiff presents three issues on appeal: (1) whether the ALJ erred in discrediting 3 the opinions of Dr. Young; (2) whether the ALJ erred in discrediting Plaintiff’s symptom 4 testimony; and (3) whether the ALJ erred in discrediting David Braun’s third-party 5 statement. (Doc. 12 at 1.) As a remedy, Plaintiff seeks reversal and “remand [for] the case 6 for payment of benefits” or “alternatively, for a remand with a de novo hearing. (Id. at 1- 7 2, 17-19.) 8 A. Dr. Young’s Opinions 9 1. Standard Of Review 10 In January 2017, the SSA amended the regulations concerning the evaluation of 11 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 12 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 13 applications filed on or after March 27, 2017, they are applicable here. 14 The new regulations, which eliminate the previous hierarchy of medical opinions, 15 provide in relevant part as follows: 16 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical 17 finding(s), including those from your medical sources . . . . The most 18 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability 19 . . . and consistency . . . . 20 20 C.F.R. § 416.920c(a).2 Regarding the “supportability” factor, the new regulations 21 explain that the “more relevant the objective medical evidence and supporting explanations 22 presented by a medical source are to support his or her medical opinion(s), . . . the more 23 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 24 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 25 from other medical sources and nonmedical sources in the claim, the more persuasive the 26 27 2 Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, the frequency of examinations, the purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c(c). 1 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2) 2 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 3 Administration’s regulations displace our longstanding case law requiring an ALJ to 4 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 5 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 6 medical opinions—in which we assign presumptive weight based on the extent of the 7 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 8 including the decision to discredit any medical opinion, must simply be supported by 9 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 10 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 11 providing an explanation supported by substantial evidence. The agency must articulate 12 how persuasive it finds all of the medical opinions from each doctor or other source and 13 explain how it considered the supportability and consistency factors in reaching these 14 findings.” Id. at 792 (cleaned up). Although an “ALJ can still consider the length and 15 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 16 of examinations that the medical source has performed or ordered from specialists, and 17 whether the medical source has examined the claimant or merely reviewed the claimant’s 18 records . . . the ALJ no longer needs to make specific findings regarding these relationship 19 factors . . . .” Id. 20 2. Dr. Young’s Opinions 21 Dr. Young, Plaintiff’s treating physician, examined Plaintiff on July 14, 2020. (AR 22 at 528-29.) During the visit, Dr. Young completed a form entitled “Physical Capacities 23 Evaluation.” (Id.)3 Dr. Young opined that, at any given time, Plaintiff can sit for up to 2 24 hours, stand for 10 minutes, and walk for 5 minutes. (Id. at 528). Dr. Young further opined 25 that Plaintiff’s maximum abilities in any given workday would include sitting for 2 hours, 26 standing for 60 minutes, and walking for 40 minutes. (Id.) Dr. Young also opined that 27 3 The form defined “occasionally” as 1% to 33% of an 8-hour workday, “frequently” 28 as 34% to 66% of the workday, and “continuously” as 67% to 100% of the workday. (AR at 528.) 1 Plaintiff can “frequently” lift up to 5 pounds, “occasionally” lift up to 10 pounds, “never” 2 carry any weight over 10 pounds, and “never” bend, squat, crawl, climb or reach. (Id.) 3 However, Dr. Young opined that Plaintiff can do repetitive movements with her hands such 4 as grasping, pushing and pulling, and fine manipulation. (Id.) Dr. Young also opined that 5 Plaintiff’s “pain” and “loss of motion” would impose “severe”4 limitations on Plaintiff’s 6 ability to “respond to customary work pressures or stress” and “provide consistent work 7 effort.” (Id. at 529.) Finally, Dr. Young opined that Plaintiff would be absent from work 8 for “[m]ore than four days per month.” (Id.) 9 3. The ALJ’s Evaluation Of Dr. Young’s Opinions 10 The ALJ found Dr. Young’s opinions to be “not persuasive.” (AR at 28.) The 11 ALJ’s full rationale was as follows: 12 In July 2020, the claimant’s treating physician, Dr. Lyle Young, completed a medical source statement. Dr. Young opined that the claimant is able to sit 13 up to two hours per day, stand up to 60 minutes per day, and walk up to 40 minutes per day; occasionally lift and carry up to 10 pounds; and never 14 perform postural activities. Dr. Young’s opinion is not persuasive because his opinion is inconsistent with his own examinations in exhibit 10F. For 15 example, in February 2020 the claimant was found to have normal gait, used no assistive device, had some limited range of motion in the lumbar spine but 16 it was expected, and had full strength in the extremities. In addition, treatment notes from August 2020 demonstrates some reduced range of 17 motion in the neck but full strength in the lower extremities and normal gait with no use of assistive devices. This would indicate that shortly before and 18 shortly after Dr. Young rendered his opinion, the claimant had substantially normal musculoskeletal examinations and there is no indication that the 19 claimant suffered any additional injuries between those examinations and Dr. Young’s opinion. 20 21 (Id., internal citations omitted.) 22 4. The Parties’ Arguments 23 Plaintiff identifies two grounds for challenging the ALJ’s assessment of Dr. 24 Young’s opinions. (Doc. 12 at 6-12.) First, Plaintiff argues that the “ALJ failed completely 25 to address the moderate to severe limitations Dr. Young assessed in Braun’s ability to 26 provide a consistent work effort, respond to customary work pressures or stress, or maintain 27 interpersonal interactions with others in the workplace,” which Plaintiff contends are 28 4 In this context, the form defines severe as “Not able to perform designated task or function on regular, reliable, and sustained schedule.” (AR at 529.) 1 “particularly important” “given that the ALJ found at step four that Braun could return to 2 her highly skilled past relevant work was a human resources specialist and administrative 3 assistant, both of which . . . require significant interaction with coworkers, supervisors and 4 the public.” (Id. at 9.) Second, regarding her physical limitations, Plaintiff argues that 5 several medical records undermine the ALJ’s conclusion that Dr. Young’s assessment was 6 “not consistent with the record.” (Id. at 9-12, citing AR at 388, 319, 523-27, 528-29, 530- 7 35, 378-410, 543, 526-27, 579, 404, 54, 543, 551.) 8 The Commissioner disagrees and defends the sufficiency of the ALJ’s analysis. 9 (Doc. 16 at 10-15.) Specifically, the Commissioner argues that “the ALJ appropriately 10 rejected Dr. Young’s check-box claims about Plaintiff’s disabling limitations because they 11 were unsupported by the treatment records (including those from Dr. Young’s clinic) and 12 inconsistent with Plaintiff’s generally unremarkable physical examinations.” (Id. at 10.) 13 As for supportability, the Commissioner contends the ALJ addressed this factor by 14 concluding Dr. Young’s opinions “lacked support from the clinical findings and 15 observations obtained by Dr. Young and his colleague at Sonoran.” (Id. at 11-12, citing 16 AR at 26-28, 380, 382, 384, 388, 530-31, 581-83.) As for consistency, the Commissioner 17 contends that Plaintiff’s examinations revealed that “she had normal gait, intact 18 neurological functioning, and no evidence of joint swelling or atrophy,” as well as 19 “improved function and quality of life” with “no significant adverse side effects from her 20 medication.” (Id. at 13, citing AR at 26-28, 415-16, 421, 428-29, 435-36, 457, 459, 460, 21 462, 465, 466, 469, 539-40, 543-44, 565-66, 570-71, 575-76.) As for the non-exertional 22 limitations to which Dr. Young opined, the Commissioner argues the ALJ did not err 23 because “[n]either Dr. Young nor any of other Plaintiff’s treatment providers reported any 24 abnormalities in her mental status or ability to interact with others; on the contrary, Plaintiff 25 exhibited cooperative behavior, good judgment and insight, and intact cognitive 26 functioning.” (Id. at 13-14, citing AR at 190, 219, 223, 382, 384, 531.) 27 In reply, Plaintiff accuses the Commissioner of offering post hoc rationalizations 28 not identified by the ALJ. (Doc. 17 at 2.) Plaintiff also reiterates her contention that the 1 ALJ inaccurately characterized the medical evidence. (Id. at 3-5.) 2 5. Analysis 3 The Court finds no harmful error in the ALJ’s evaluation of Dr. Young’s opinions. 4 “The agency must articulate how persuasive it finds all of the medical opinions from each 5 doctor or other source and explain how it considered the supportability and consistency 6 factors in reaching these findings.” Woods, 32 F.4th at 792 (cleaned up). Here, the ALJ 7 stated that “Dr. Young’s opinion is not persuasive because his opinion is inconsistent with 8 his own examinations.” (AR at 28.) While somewhat imprecise in its phrasing, this 9 rationale sufficiently addressed the supportability and consistency factors as required by 10 the regulations. Cf. Woods, 32 F.4th at 793 n.4 (“The ALJ described Dr. Causeya’s opinion 11 as ‘not supported by’ the record, but the ALJ plainly did not intend to make a supportability 12 finding. . . . Rather, the ALJ meant only that Dr. Causeya’s opinion was inconsistent with 13 other record evidence. Although the ALJ’s meaning here is clear from context, to avoid 14 confusion in future cases, ALJs should endeavor to use these two terms of art—‘consistent’ 15 and ‘supported’—with precision.”); Townsend v. Comm’r of Soc. Sec. Admin., 2022 WL 16 3443678, *5 (D. Ariz. 2022) (“One of the ALJ’s reasons for discrediting Dr. Saperstein’s 17 opinions was that ‘the provider’s own limited treatment notes fail to identify any abnormal 18 findings to support such extreme limitations.’ The Court construes this as an invocation of 19 the supportability factor, which is a permissible basis for discrediting a medical source’s 20 opinions.”). 21 The ALJ’s conclusions as to these factors was also supported by substantial 22 evidence. In a February 19, 2020 treatment note, Dr. Young observed that Plaintiff 23 “reported improved low back pain,” albeit with “persistent left buttock pain,” and noted 24 that Plaintiff had a “normal” gait, was not using an assistive device, had intact sensation 25 and reflexes, and had negative straight leg raise testing during physical examination. (AR 26 at 526.) In another treatment note dated August 17, 2020, physician’s assistant Vanessa 27 Lo acknowledged that Plaintiff exhibited some “decreased cervical range of motion” in her 28 neck but also noted that Plaintiff had a “non-antalgic casual gait, normal tandem gait, [and] 1 no assistive devices,” was “doing very well except for some LEFT anterior thigh numbness 2 and LEFT foot numbness,” and displayed “5/5 Deltoid, bicep, triceps, wrist extension, 3 wrist flexion, grip, and pincer grasp bilaterally.” (AR at 530.) The ALJ specifically 4 identified these treatment notes as sources of inconsistency and a lack of supportability (id. 5 at 28) while also citing additional treatment notes that contained similar findings and 6 observations. (See, e.g., id. at 533 [May 29, 2020 note: “She is no longer taking pain pills. 7 . . . She is not scheduled to follow-up to do the trigger point injection. . . . It sounds like 8 she continues to improve. I believe the LEFT anterior numbness is from the abdominal 9 incision/superficial sensory nerve damage from the ALIF. I assured her that this is not 10 concerning and will likely dissipate with time.”].) It was rational for the ALJ to conclude 11 that these records were inconsistent with, and did not provide support for, Dr. Young’s 12 extreme opined-to physical limitations, including that Plaintiff could only walk for five 13 minutes at a time and for only 40 minutes over the course of an eight-hour workday and 14 was wholly unable to bend or reach. Cf. Dunn v. Kijakazi, 2023 WL 3375559, *1 (9th Cir. 15 2023) (“The ALJ’s decision to assign low weight to the opinion of Dr. Lear (an examining 16 physician) was based on specific and legitimate reasons supported by substantial evidence, 17 including that the opinion was inconsistent with . . . the overall medical evidence in the 18 record, such as the treatment notes—which state that Dunn had ‘normal gait,’ ‘strong 19 neurological functioning of the extremities.’”). As the ALJ put it: “[The treatment notes] 20 indicate that shortly before and shortly after Dr. Young rendered his opinion, the claimant 21 had substantially normal musculoskeletal examinations and there is no indication that the 22 claimant suffered any additional injuries between those examinations and Dr. Young’s 23 opinions.” (Id. at 28.) 24 Finally, although the ALJ’s analysis focused on the mismatch between Dr. Young’s 25 examination notes and Dr. Young’s opinions regarding Plaintiff’s physical limitations, the 26 Court finds no harmful error in the ALJ’s failure to separately explain how the 27 supportability and consistency factors applied to Dr. Young’s opinions regarding 28 Plaintiff’s non-exertional limitations. For one thing, the same examination records cited 1 by the ALJ to establish a lack of supportability and consistency as to Dr. Young’s opined- 2 to physical limitations also contain notations that are inconsistent with, and fail to support, 3 Dr. Young’s opinions regarding Plaintiff’s non-exertional limitations. (Compare AR at 4 531 [August 17, 2020 note: “PSYCH: alert, oriented, cognitive function intact, cooperative 5 with exam, judgment and insight good, speech clear”] with AR at 530 [Dr. Young’s 6 evaluation form, assigning limitations in ability to pay attention and concentrate on tasks].) 7 More important, once the ALJ concluded that a subset of Dr. Young’s opinions were 8 unpersuasive due to a lack of supportability and consistency, the ALJ was not required to 9 independently evaluate the remainder of Dr. Young’s opinions. Presley-Carrillo v. 10 Berryhill, 692 F. App’x 941, 944-45 (9th Cir. 2017) (“The ALJ also criticized Dr. Van 11 Eerd’s opinion in part because Dr. Van Eerd did not define the terms ‘mild,’ ‘moderate,’ 12 or ‘severe’ in his assessment. This criticism was improper . . . [but] this error was harmless 13 because the ALJ gave a reason supported by the record for not giving much weight to Dr. 14 Van Eerd’s opinion—specifically, that it conflicted with more recent treatment notes from 15 Dr. Mateus.”). 16 B. Plaintiff’s Symptom Testimony 17 1. Standard Of Review 18 An ALJ must evaluate whether the claimant has presented objective medical 19 evidence of an impairment that “could reasonably be expected to produce the pain or 20 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) 21 (citations omitted). If so, “an ALJ may not reject a claimant’s subjective complaints based 22 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” 23 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Instead, the ALJ may “reject the 24 claimant’s testimony about the severity of [the] symptoms” only by “providing specific, 25 clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488- 26 89 (9th Cir. 2015). 27 … 28 … 1 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 2 The ALJ discounted the credibility of Plaintiff’s symptom testimony, concluding 3 that her “statements concerning the intensity, persistence and limiting effects of [her] 4 symptoms are not entirely consistent with the medical evidence and other evidence on the 5 record.” (AR at 26.) The ALJ then elaborated on this determination as follows: 6 Despite the claimant’s complaints of difficulty walking, difficulty using [her] hand and [her] feet were hurting, the early exam in December 2018 showed 7 that [she] was obese, but ambulating normally. [She] was alert and fully oriented, [her] neck was supple, [her] strength was full and [she] had normal 8 movement of all extremities. [She] did have tenderness at [her] PIP joints of the hands, bot normal gait and station and no back tenderness. [She] was 9 diagnosed with joint pain and included fibromyalgia. X-rays of various joints showed only mild changes, but moderate degenerative cervical 10 spondylosis. After her operation in November 2019 for lumbar fusion, the claimant had improved low back pain. Follow up exams showed full 11 strength, negative straight leg raise and a normal casual gait. The claimant continued to complain of back pain, but noted that overall her pain had 12 improved. In February 2020 she had neck tenderness and decreased range of motion, but full strength, a negative straight leg raise test and normal gait. 13 The record shows she was not using an assistive device. Later records in 2020 also show that the claimant had tenderness and decreased range of 14 motion about the neck, but she had discontinued narcotics some time ago, had full strength and a nonantalgic gait. She complained of foot and hand 15 numbness, but she had a negative Spurling’s and negative Tinel’s signs. Again, she was noted as not using an assistive device. 16 . . . . 17 The claimant has described daily activities, which are not limited to the 18 extent one would expect, given the complaints of disabling symptoms and limitations. In her function report, she stated that she is able to perform 19 personal hygiene, small household chores, and carry grocery bags. In May 2020, David Braun, completed a 3rd party function report and stated that the 20 claimant has good hygiene, loves to go camping and travel, and gets along with others. 21 The claimant has not generally received the type of medical treatment one 22 would expect for an individual with the claimant’s alleged limitations. Although the claimant has received treatment for the allegedly disabling 23 impairments, that treatment has been essentially routine and conservative in nature. The claimant’s treatment shows some restrictions, but generally she 24 has been having improvement since her surgery. Specifically, in exhibit 5F, she was noted to have improvement from her surgery and her pain has 25 improved. Objective medical testing has also was doing well in 2020 after her surgery. The claimant asserted using a wheelchair, but only for the 26 airport. She did get a walker after her surgery, but the follow up records show no assistive devices. 27 The record reveals that the claimant’s allegedly disabling impairments were 28 present at approximately the same level of severity before the alleged onset date and the claimant was able to work during this time. The fact that the 1 impairments did not prevent the claimant from working part-time during that time strongly suggests that it would not currently prevent full-time work. 2 3 (AR at 27-29.) The Court construes this discussion as identifying four reasons for the 4 adverse credibility determination: (1) Plaintiff’s asserted limitations were unsupported by 5 objective medical evidence; (2) Plaintiff’s asserted limitations were inconsistent with her 6 activities of daily living (“ADLs”); (3) Plaintiff’s asserted limitations were inconsistent 7 with her conservative course of treatment (i.e., “The claimant has not generally received 8 the type of medical treatment one would expect for an individual with the claimant’s 9 alleged limitations”); and (4) Plaintiff was able to work during the pre-onset period despite 10 suffering from the same impairments. 11 3. The Parties’ Arguments 12 Plaintiff focuses most of her argument on the ALJ’s assessment of her ADLs. (Doc. 13 12 at 13-14.) She argues that the ADLs “cited by the ALJ are not inconsistent with [her] 14 statements that she is unable to sit, stand, walk, lift, use her hands, or stay awake well 15 enough to perform work activity.” (Id.) Plaintiff emphasizes that, in her function report, 16 she explained “that her husband has had to take over doing most of the household chores 17 and that although she is able to do a small task in the morning, such as unloading the 18 dishwasher, once her pain medication kicks in she is exhausted and has to lie down. [She] 19 further described that her pain medications cause visual hallucinations in addition to fatigue 20 and drowsiness” and that she does “not shower as often as she used to, that she has a hard 21 time lifting her arms to wash her hair, and that she can do only a bare minimum of 22 household tasks before having to lie down.” (Id. at 13-14.) Essentially, Plaintiff’s 23 argument is that the ADLs cited by the ALJ do not establish that she “can sustain activity 24 for a full work day and work week.” (Id. at 14.) Plaintiff further contends that the ALJ 25 “entirely failed to discuss the effects of [Plaintiff’s] chronic pain and the side effects of her 26 necessary medications.” (Id.) Plaintiff also challenges the ALJ’s interpretation of the 27 “conservative and routine treatment” she received, primarily focusing on her pain post- 28 spinal fusion, updated cervical spine injuries, future plans for neck surgery, and numbness 1 and tingling in her hands. (Id. at 15.) Plaintiff concludes that the “ALJ improperly rejected 2 [Plaintiff’s] testimony” and in turn, the “Court should credit [Plaintiff’s] testimony as a 3 matter of law, find [her] disabled, and remand this matter for payment of benefits.” (Id.) 4 The Commissioner disagrees and contends that the ALJ’s decision to discredit 5 Plaintiff’s symptom testimony was proper because (1) “the ALJ properly compared the 6 objective medical evidence to Plaintiff’s claims of disabling physical symptoms and 7 reasonably highlighted the lack of record support for her allegations”; (2) “the ALJ 8 appropriately found that Plaintiff’s treatment history undercut her claims of disabling 9 symptoms and limitations”; (3) “the ALJ properly found that inconsistencies within 10 Plaintiff’s statements about her medications belied her claims of disability”; and (4) “the 11 ALJ appropriately cited Plaintiff’s day-to-day activities to discount her claims of disabling 12 symptoms and functional limitations.” (Doc. 16 at 16-20.) 13 In reply, Plaintiff reiterates the arguments made in her opening brief—namely, her 14 ADLs are not inconsistent with her alleged limitations, the ALJ failed to discuss the side 15 effects from her medications, and the objective medical evidence does not support the 16 ALJ’s conclusion that her treatment was conservative or effective. (Doc. 17 at 5-7.) 17 4. Analysis 18 The Court finds no harmful error in the ALJ’s evaluation of Plaintiff’s symptom 19 testimony. One of the ALJ’s proffered reasons for discounting Plaintiff’s testimony was 20 its inconsistency with her course of treatment. Courts “have long held that, in assessing a 21 claimant’s credibility, the ALJ may properly rely on unexplained or inadequately explained 22 failure to seek treatment or to follow a prescribed course of treatment.” Molina, 674 F.3d 23 at 1113-14 (cleaned up). Moreover, “evidence of medical treatment successfully relieving 24 symptoms can undermine a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 25 876 (9th Cir. 2017). Here, the ALJ explained that although Plaintiff “has received 26 treatment for the allegedly disabling impairments, that treatment has been essentially 27 routine and conservative in nature” and although Plaintiff’s “treatment shows some 28 restrictions,” “generally she has been having improvement since her surgery.” (AR at 28.) 1 In the preceding pages, the ALJ described Plaintiff’s treatment history as including one 2 spinal fusion surgery and noted that, afterward, Plaintiff generally experienced 3 improvement despite some pain. (Id. at 27-28, citing AR at 378-410, 523-28, 530-36.)5 4 These conclusions are supported by substantial evidence—among the proposed treatments 5 for any continuing pain were physical therapy and some injections, and Plaintiff routinely 6 reported improvement from those treatments. Tommasetti v. Astrue, 533 F.3d 1035, 1040 7 (9th Cir. 2008) (“The record reflects that Tommasetti responded favorably to conservative 8 treatment including physical therapy and the use of anti-inflammatory medication, a 9 transcutaneous electrical nerve stimulation unit, and a lumbosacral corset. Such a response 10 to conservative treatment undermines Tommasetti’s reports regarding the disabling nature 11 of his pain.”); Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (“[E]vidence of 12 ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity 13 of an impairment”); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting 14 subjective pain complaints where petitioner’s “claim that she experienced pain 15 approaching the highest level imaginable was inconsistent with the ‘minimal, conservative 16 treatment’ that she received”). 17 It was also permissible under Ninth Circuit law for the ALJ to discount Plaintiff’s 18 symptom testimony on the ground that it was inconsistent with the objective medical 19 evidence in the record. (AR at 27-28.) Although this may not serve as an ALJ’s sole 20 5 The records cited by the ALJ include the following: AR at 382 [December 18, 2019: 21 “This patient follows approximate 5 weeks status [post surgery]. Her low back pain continues to improve. . . . This patient is doing quite well 4-5 weeks [post-operation]. She 22 is continuing to taper off pain medication. . . . At this time she is having minimal symptoms and no arm pain.]; AR at 526-27 [February 29, 2020: “She is improving in some areas but 23 continued to have left sided groin and buttom pain. I recommend proceeding with PT [physical therapy]. . . . She is really having minimal neck pain.”]; AR at 533 [May 29, 24 2020: “Her walking is betting somewhat better. . . . She is no longer taking pain pills. . . . She is not scheduled to follow-up to do the trigger point injection. . . . It sounds like she 25 continues to improve. I believe the LEFT anterior numbness is from the abdominal incision/superficial sensory nerve damage from the ALIF. I assured her that this is not 26 concerning and will likely dissipate with time.”]; AR at 539 [July 15, 2020: “Symptoms are IMPROVED by[] medications.”]; AR at 530 [August 17, 2020: despite complaints of 27 right arm pain, numbness, and tingling, the objective findings demonstrate “5/5 Deltoid, bicep, triceps, wrist extension, wrist flexion, grip, and pincer grasp bilaterally” as well as 28 “non-antalgic casual gait, normal tandem gait, no assistive devices”]. 1 reason for discounting a claimant’s symptom testimony, it is a permissible consideration 2 when (as here) it is coupled with other grounds for an adverse credibility finding. Smartt 3 v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“Claimants like Smartt sometimes 4 mischaracterize [Ninth Circuit law] as completely forbidding an ALJ from using 5 inconsistent objective medical evidence in the record to discount subjective symptom 6 testimony. That is a misreading of [Ninth Circuit law]. When objective medical evidence 7 in the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed 8 weigh it as undercutting such testimony. We have upheld ALJ decisions that do just that 9 in many cases.”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“While 10 subjective pain testimony cannot be rejected on the sole ground that it is not fully 11 corroborated by objective medical evidence, the medical evidence is still a relevant factor 12 in determining the severity of the claimant’s pain and its disabling effects.”). 13 The ALJ’s finding of inconsistency with the objective medical evidence was also 14 supported by substantial evidence. For example, although Plaintiff claimed to experience 15 significant back pain and foot numbness (which, she claimed, caused her to have difficulty 16 walking),6 the ALJ identified various medical records in which Plaintiff was observed 17 displaying a normal, unassisted gait and in which Plaintiff’s imaging was inconsistent with 18 her claims. (See, e.g., AR at 349 [October 16, 2019: “normal muscle tone, muscles 19 nontender” and “motor 5/5 throughout”]; AR at 311 [November 10, 2019: “Appears to 20 have normal range of motion x4 extremities, no joint swelling”]; AR at 526 [February 19, 21 2020: “in no acute distress . . . surgical wound is well healed . . . normal coronal alignment, 22 normal sagittal alignment . . . limited [lumbar range of motion] but expected for post op 23 period” as well as “5/5” motor for the lower extremities, “negative SLR bilaterally,” 24 “normal causal gait,” and “no devices” and “stable” imaging for Plaintiff’s scoliosis]; AR 25 at 565 [September 30, 2020: noting pain level is 4/10 and improved with medications and 26 that “SIJ injections” are according “40-50% relief”].) 27 Because the ALJ identified multiple clear and convincing reasons, supported by 28 6 See, e.g., AR at 26 [“She testified that she has difficulty walking to due to a herniated disc and associated right foot numbness.”].) 1 substantial evidence, for discrediting Plaintiff’s testimony, any other shortcomings in the 2 ALJ’s analysis were harmless. Molina, 674 F.3d at 1115 (“[S]everal of our cases have held 3 that an ALJ’s error was harmless where the ALJ provided one or more invalid reasons for 4 disbelieving a claimant’s testimony, but also provided valid reasons that were supported 5 by the record.”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 6 2008) (“Because we conclude that two of the ALJ’s reasons supporting his adverse 7 credibility finding are invalid, we must determine whether the ALJ’s reliance on such 8 reasons was harmless error. . . . [T]he relevant inquiry in this context is not whether the 9 ALJ would have made a different decision absent any error, it is whether the ALJ’s decision 10 remains legally valid, despite such error.”). 11 C. David Braun’s Testimony 12 1. The Lay Witness Testimony 13 Plaintiff’s husband, David Braun (“David”), wrote in a third-party questionnaire 14 that Plaintiff has “good” hygiene, “takes special care of her teeth,” but “has trouble 15 showering because of the pain.” (AR at 218.) As for as Plaintiff’s ADLs, David wrote that 16 Plaintiff “is home most of the time” and spends her days watching television, reading, and 17 knitting. (Id.) David also wrote that he “usually help[s] with the household chores because 18 any type of physical activity is painful for [Plaintiff] and she tires easily,” as evidenced by 19 the nap she takes “every afternoon.” (Id.) Regarding activities that Plaintiff enjoys, David 20 wrote that “[s]he loves to go camping and loves to travel” but they have had to “curtail that 21 quite a bit.” (Id. at 219.) 22 2. The ALJ’s Discussion of David’s Testimony 23 The ALJ’s discussion of David’s testimony was as follows: “In May 2020, David 24 Braun, completed a 3rd party function report and stated that the claimant has good hygiene, 25 loves to go camping and travel, and gets along with others.” (AR at 28.) This discussion 26 appeared in a paragraph explaining why Plaintiff’s symptom testimony should be 27 discredited in light of its inconsistency with her ADLs. (Id. [“The claimant has described 28 daily activities, which are not limited to the extent one would expect, given the complaints 1 of disabling symptoms and limitations.”].) The ALJ’s opinion makes no other reference to 2 David’s testimony. 3 3. The Parties’ Arguments 4 Plaintiff argues that, under Ninth Circuit law, an ALJ must provide “germane” 5 reasons for discrediting the testimony of a lay witness such as David. (Doc. 12 at 15-16.) 6 Plaintiff contends the ALJ failed to do so here because “the ALJ omitted the context in the 7 actual witness statement which indicates that these activities and many others have been 8 severely curtailed by Braun’s pain and other impairments” and that if “the ALJ is going to 9 comb through the lay witness statement in order to find activities that Braun is still able to 10 do, then the ALJ should also take note of all of the things the witness described her as being 11 unable to do as a result of her pain.” (Id. at 16-17.) Plaintiff concludes: “The statements 12 of [David] are consistent with the medical record and the opinion of [Plaintiff’s] treating 13 doctor, Dr. Young. They establish that, during relevant times, [Plaintiff] did not have the 14 ability to perform full-time work on a regular and continuing basis. . . . [T]his Court should 15 credit the witness testimony and find that it corroborates that [Plaintiff] had a disabling 16 level of dysfunction.” (Id. at 17.) 17 In response, the Commissioner contends that “Plaintiff ignores that under the 18 applicable regulations, the ALJ was not required to articulate how he considered evidence 19 from ‘nonmedical sources,’ such as her husband. While Plaintiff cites case law about the 20 ALJ’s obligation to provide ‘germane’ reasons for discounting testimony from a lay 21 witness, she fails to acknowledge that these standards no longer applied under the agency 22 regulations that went into effect for claims filed after March 27, 2017 (such as Plaintiff’s).” 23 (Doc. 16 at 21-22.) Alternatively, the Commissioner argues that “even if one accepts 24 Plaintiff’s argument that the ALJ erred by not providing reasons for rejecting her husband’s 25 testimony . . . Ninth Circuit precedent underscores that ALJ’s non-disability finding should 26 still be affirmed. Specifically, under [Molina], because Plaintiff’s husband echoed her own 27 allegations about disabling symptoms and functional limitations, the ALJ’s specific, well- 28 supported bases for discounting Plaintiff’s allegations would be equally applicable to the 1 allegations from her husband.” (Id. at 22.) 2 In reply, Plaintiff reiterates her contention that an ALJ is required “to give specific 3 and legitimate reasons germane to each witness” before discrediting the statement of a lay 4 witness and that the ALJ failed to do so here. (Doc. 17 at 7-8.) Plaintiff adds: “The ALJ 5 erred in rejecting [Plaintiff’s] own testimony, as detailed above, and the ALJ’s rationale is 6 equally improper when applied to the lay witness statements.” (Id. at 7.) 7 4. Analysis 8 Plaintiff is not entitled to reversal based on her arguments regarding David’s lay 9 witness testimony. 10 As an initial matter, the Court notes that the Ninth Circuit has not definitively 11 resolved whether ALJs must continue, following the issuance of the new SSA regulations 12 in 2017, to provide reasons for rejecting lay-witness statements. Lower courts have 13 reached conflicting decisions on that issue. Guinn v. Comm’r of Soc. Sec. Admin., 2023 14 WL 2495360, *14 (D. Ariz. 2023) (canvassing cases). 15 But even assuming the reasoning requirement remains intact, the Ninth Circuit has 16 recognized that the failure to provide such reasoning is harmless where (1) the ALJ 17 provided legally sufficient reasons for rejecting the claimant’s symptom testimony and (2) 18 the lay witness did not describe any limitations beyond those identified by the claimant. 19 Molina, 674 F.3d at 1122 (“Here, the ALJ failed to explain her reasons for rejecting the lay 20 witnesses’ testimony. That testimony, however, did not describe any limitations beyond 21 those Molina herself described, which the ALJ discussed at length and rejected based on 22 well-supported, clear and convincing reasons. . . . Because the ALJ had validly rejected 23 all the limitations described by the lay witnesses in discussing Molina’s testimony, we are 24 confident that the ALJ's failure to give specific witness-by-witness reasons for rejecting 25 the lay testimony did not alter the ultimate nondisability determination. Accordingly, the 26 ALJ’s error was harmless.”). Both conditions are satisfied here—the ALJ’s rationale for 27 discrediting Plaintiff’s symptom testimony was legally valid, for the reasons stated in Part 28 IV.B above, and David’s third-party statement did not identify any limitations beyond || those Plaintiff identified via her own testimony.’ It follows that, under Molina, any error || with regard to the ALJ’s evaluation of David’s statement was harmless. 3 Accordingly, 4 IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk shall enter 5 || judgment accordingly and terminate this action. 6 Dated this 12th day of September, 2023. 7 8 Lm 9 f CC —— Dominic W. Lanza 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 Plaintiff does not argue that David identified limitations beyond those she identified. To the contrary, Plaintiff seems to acknowledge that David described limitations consistent with those described by her and Dr. Young. At any rate, the Court’s review of the record 28 suggests that, if anything, Plaintiff testified to limitations that are more severe than those described by David. -19-