(SS) Jones v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ANTHONY RAY JONES, ) Case No.: 1:18-cv-01739-BAM 12 ) Plaintiff, ) ORDER REGARDING PLAINTIFF’S 13 v. ) S OCIAL SECURITY COMPLAINT ) 14 ANDREW M. SAUL,1 Commissioner of ) Social Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Anthony Ray Jones (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying his application for disability insurance 21 benefits (“DBI”) under Title II of the Social Security Act and for supplemental security income 22 (“SSI”) under Title XVI of the Social Security Act. The matter is currently before the Court on the 23 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 24 McAuliffe.2 25 26 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this suit. 27 2 The parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). 28 (Doc. Nos. 7, 8.) 1 Having considered the briefing and record in this matter, the Court finds the decision of the 2 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to 4 deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed applications for a period of disability and DBI and for SSI on January 6, 2015. 7 AR 206-219.3 In both applications, Plaintiff alleged disability beginning October 1, 2014. AR 206, 8 210. Plaintiff’s applications were denied initially and on reconsideration and Plaintiff subsequently 9 requested a hearing before an ALJ. AR 64-119. ALJ Sharon L. Madsen held a hearing on November 10 16, 2017, and issued an order denying benefits on February 14, 2018. AR 14-61. Plaintiff sought 11 review of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the 12 Commissioner’s final decision. AR 1-8, 137-138. This appeal followed. 13 Relevant Hearing Testimony 14 The ALJ held a hearing on November 16, 2017, in Fresno, California. Plaintiff appeared in 15 person with his attorney, Melissa Proudian. Impartial Vocational Expert (“VE”) Cheryl Chandler also 16 appeared. AR 34. 17 In response to questioning by the ALJ, Plaintiff testified that he is divorced, does not have any 18 kids, and lives in a house with his sister. His highest grade of education was the eleventh grade. 19 When asked about his daily activities, Plaintiff testified that he needs assistance with putting on his 20 pants. He tries to do household chores, including sweeping, mopping, and shopping. He does not 21 engage in any social activity. Plaintiff’s typical day includes getting up at 7 a.m., trying to do some 22 cleaning, resting, watching television, and then attempting to continue chores. Plaintiff testified that 23 he requires quite a few breaks to complete his household chores. He takes two-to-three naps per day. 24 AR 39-41. 25 When asked about his work history, Plaintiff testified that he provided in-home support and his 26 duties included cooking and cleaning. Plaintiff also previously worked as a machine operator 27 28 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 polishing cement and doing janitorial work. AR 41-42. 2 Plaintiff testified that he experiences constant back pain above both hips which radiates to his 3 shoulders. He has difficult standing and walking. When his back is in pain, he lies down and tries to 4 change positions frequently. Plaintiff was taking ibuprofen at the time of the hearing and, although he 5 had previously been prescribed Norco, he had been taken off of it. Plaintiff also received injections in 6 his back but said they did not really help his pain. He also uses over-the-counter medications such as 7 Icy-Hot to relieve his pain. Plaintiffs’ doctors discussed sending him to a neurosurgeon or a specialist, 8 but Plaintiff testified that nothing further happened after the discussion. Plaintiff further testified that 9 he also experiences pain in his neck and has difficulty looking sideways and up or down. AR 42-45. 10 Plaintiff further testified that he has difficulty carrying grocery bags into the house and is able 11 to carry five bags. He can carry a gallon of milk or a sack of potatoes. Plaintiff estimates that he can 12 sit for thirty minutes before he must stand and can stand for fifteen or twenty minutes before he must 13 sit. He can walk for half a block, has difficulty climbing stairs, and experiences pain when reaching 14 above his head. AR 47-48. 15 With respect to his mental impairments, Plaintiff testified that he experiences depression and 16 gets very nervous when he’s in a room with other people he’s never met. As a result, he tries to limit 17 himself from going out. He has difficulty staying focused while watching television and is able to pay 18 his bills with his sister’s help. Plaintiff attends counseling once a month and takes medication for his 19 mental impairments, which Plaintiff testified helps “[t]o a certain extent.” Plaintiff has a history of 20 substance abuse but testified that he no longer has substance abuse issues. AR 48-51. 21 In response to questioning by his attorney, Plaintiff testified that he naps every day with his 22 feet elevated for thirty-to-forty minutes. Plaintiff uses a cane on his right side to stabilize and walk 23 both inside and outside of the house, which he obtained at his doctor’s instruction approximately a 24 year and a half before the hearing. Plaintiff further testified that he does not believe he could hold his 25 head in one position to look at a monitor due to pain. If he drops something on the ground, he cannot 26 bend at the waist to pick it up and must squat. He can kneel “to a certain height” and must rest while 27 climbing stairs due to his knee joints, back, and shoulder joints. He has difficulty walking on gravel 28 and can walk up or down on a curb with a little effort. Plaintiff’s pain increases during rainy weather. 1 He has difficulty concentrating and can focus for fifteen or twenty minutes before he must take a break 2 for twenty or thirty minutes. Plaintiff does not have any friends that he sees on a regular basis. He 3 tries to shower every day if he can. He has difficulty getting out of bed due to pain and depression 4 approximately five-to-seven times a month. AR 51-56 5 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE, Cheryl Chandler. 6 The VE testified that Plaintiff’s work history included home attendant, cleaner, and floor specialist. 7 The ALJ also asked the VE hypothetical questions. The ALJ asked the VE to assume an individual 8 with the same age, education, and work experience as Plaintiff. For the first hypothetical, the ALJ 9 asked the VE to assume this hypothetical individual can lift and carry fifty pounds occasionally and 10 twenty-five pounds frequently and can sit, stand, or walk six to eight hours. The VE testified that 11 Plaintiff’s past work would be available. AR 57-58. 12 For the second hypothetical, the ALJ asked the VE to also assume that this hypothetical 13 individual would be limited to occasional public contact. The VE testified that Plaintiff’s past work as 14 a home attendant would not be available. The VE was unsure of the setting in which the industrial 15 cleaning occurred and therefore did not know if that work would be available. The VE further 16 testified that usually in the national economy there would be jobs with limited or no general public 17 contact available but the VE would reduce the numbers cited by half. The VE testified that Plaintiff’s 18 work as a floor layer did not necessarily have to involve general public contact more than 19 occasionally. The ALJ then asked Plaintiff if his janitorial work was performed when there weren’t 20 people around and Plaintiff testified that approximately half of the people were not around. AR 58-59. 21 For the third hypothetical, the ALJ asked the VE to assume that the hypothetical individual 22 could lift twenty pounds occasionally and ten pounds frequently, sit, stand, or walk six to eight hours, 23 and occasionally stoop, crouch, crawl, climb, and kneel. The VE testified that Plaintiff’s past work 24 would not be available. AR 59. 25 Finally, Plaintiff’s attorney asked the VE hypothetical questions. Plaintiff’s attorney asked the 26 VE to assume the same individual described in the ALJ’s first hypothetical, except this individual 27 would need one additional break of an hour in addition to those normally scheduled. The VE testified 28 that there would be no work available. Plaintiff’s attorney then asked the VE to assume the same 1 individual described in the ALJ’s second hypothetical, except this individual would be off task fifteen 2 percent of the time. The VE testified that no work would be available. Finally, Plaintiff’s attorney 3 asked the VE to assume that the hypothetical individual would miss two days of work per month. The 4 VE testified there would be no work available. AR 59-60. 5 Medical Record 6 The relevant medical record was reviewed by the Court and will be referenced below as 7 necessary to the Court’s decision. 8 The ALJ’s Decision 9 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 10 determined that Plaintiff was not disabled under the Social Security Act. AR 14-33. Specifically, the 11 ALJ found that Plaintiff met the insured status requirements of the Social Security Act through March 12 31, 2017, and Plaintiff had not engaged in substantial gainful activity since October 1, 2014, the 13 alleged onset date. AR 19-20. Further, the ALJ identified lumbar degenerative joint disease, cervical 14 degenerative joint disease, major depressive disorder, and social anxiety disorder as severe 15 impairments. AR 20. The ALJ then determined that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of one of the listed 17 impairments. AR 20-21. Based on a review of the entire record, the ALJ determined that Plaintiff had 18 the residual functional capacity (“RFC”) to perform medium work and could lift and carry fifty 19 pounds occasionally and twenty-five pounds frequently, stand and/or walk for six-to-eight hours in an 20 eight-hour workday, sit for six-to-eight hours in an eight hour workday, and have occasional public 21 contact. AR 21-26. With this RFC, the ALJ determined that Plaintiff was capable of performing past 22 relevant work as a cleaner and industrial floor layer. AR 26. The ALJ therefore concluded that 23 Plaintiff was not under a disability, as defined in the Social Security Act, from October 1, 2014, 24 through the date of the ALJ’s decision. AR 26. 25 SCOPE OF REVIEW 26 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 27 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 28 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 1 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 2 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 3 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 4 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 5 considered, weighing both the evidence that supports and the evidence that detracts from the 6 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 7 evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., 8 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 9 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 10 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 11 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 12 REVIEW 13 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 14 substantial gainful activity due to a medically determinable physical or mental impairment which has 15 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 16 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 17 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 18 her age, education, and work experience, engage in any other kind of substantial gainful work which 19 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 20 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 21 1990). 22 DISCUSSION4 23 Plaintiff’s sole issue on appeal is whether the ALJ improperly rejected his subjective 24 complaints of limitations due to his physical and mental impairments.5 (Doc. No. 13 at 25-27.) 25 26 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or 27 brief is not to be construed that the Court did not consider the argument or brief. 5 The introduction to Plaintiff’s opening brief also briefly mentions the ALJ’s “failure to apply the correct legal 28 standards in the evaluation of . . . the testimony of a lay witness, Plaintiff’s sister with whom he lives.” (Doc. No. 13 at 2.) 1 Specifically, Plaintiff argues that the ALJ disregarded Plaintiff’s testimony regarding his physical and 2 mental limitations solely on the basis that his statements were inconsistent with his daily activities, but 3 this finding applied incorrect legal standards and was not supported by substantial evidence. 4 In deciding whether to admit a claimant’s subjective complaints of pain, the ALJ must engage 5 in a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm'r of 6 Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective 7 medical evidence of his impairment that could reasonably be expected to produce some degree of the 8 symptom or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there 9 is no evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of 10 his symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 11 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms, but discounted his statements concerning the intensity, 13 persistence and limiting effects of those symptoms. AR 23. The ALJ did not find that Plaintiff was 14 malingering and was therefore required to provide specific, clear and convincing reasons for 15 discounting Plaintiff’s testimony. 16 As an initial matter, contrary to Plaintiff’s contention, the ALJ did not discount Plaintiff’s 17 testimony solely because it was inconsistent with his daily activities. As the Commissioner notes in 18 his opposition, the ALJ also discounted Plaintiff’s testimony regarding the intensity, persistence, and 19 limiting effects of his symptoms because it was not entirely consistent with the objective medical 20 evidence. AR 23. Although lack of supporting medical evidence cannot form the sole basis for 21 discounting testimony, it is a factor that the ALJ can consider. See Burch v. Barnhart, 400 F.3d 676, 22 681 (9th Cir. 2005). Citing to Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015), Plaintiff argues 23 on reply that “the ALJ merely provided a summary of the medical record,” which is an insufficient 24 explanation and lacks the requisite specificity. (Doc. No. 17 at 3.) 25 However, Plaintiff’s brief focuses solely on his own testimony and he does not set forth any analysis, argument, or 26 evidence to support this contention. (See id. at 23-27.) As Plaintiff does not identify any specific deficiencies with the ALJ’s consideration of the third-party testimony, the Court has not considered this argument. Carmickle v. Commissioner, 27 Social Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (“[I]ssues not argued with specificity in briefing will not be addressed.”) 28 1 In Brown-Hunter, the Ninth Circuit held that an ALJ errs “by making only a single general 2 statement that the claimant’ statements concerning the intensity, persistence and limiting effects of 3 these symptoms are not credible to the extent they are inconsistent with the above, without identifying 4 sufficiently specific reasons for rejecting the testimony, supported by evidence in the case record.” 5 Brown -Hunter, 806 F.3d at 493 (citation and quotation marks omitted). There, the ALJ “simply 6 stated her non-credibility conclusion and then summarized the medical evidence supporting her RFC 7 determination,” which “is not the sort of explanation or the kind of ‘specific reasons’ we must have in 8 order to review the ALJ’s decision meaningfully . . . [to] ensure that the claimant’s testimony was not 9 arbitrarily discredited.” Id. at 494. The ALJ’s failure to identify the testimony that was found not to 10 be credible and to link that testimony to the particular parts of the record supporting the non-credibility 11 determination was legal error. Id. 12 In this case, the ALJ linked Plaintiff’s symptom testimony that she found not to be credible to 13 particular parts of the record. AR 22-25. The ALJ first summarized Plaintiff’s testimony regarding 14 the persistence, intensity, frequency, and limiting effects of his symptoms. AR 22. The ALJ then 15 devoted approximately three pages and thirteen paragraphs to detailing the specific medical evidence 16 in the record that did not support that testimony. AR 23-25. Unlike Brown-Hunter, the Court need 17 not speculate about the basis of the ALJ’s determination or substitute its conclusions for the ALJ’s 18 because the ALJ not only succinctly summarized Plaintiff’s symptom testimony, but she also clearly 19 indicated what evidence she found to be inconsistent. See Brown-Hunter, 806 F.3d at 495.6 “Where, 20 as here, the ALJ has made specific findings justifying a decision to disbelieve an allegation ... and 21 those findings are supported by substantial evidence in the record, our role is not to second-guess that 22 decision.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (citation 23 omitted). In light of the ALJ’s extensive discussion and comparison of the relevant testimony to the 24 record, the Court is satisfied that the medical evidence in the record was adequately considered. Thus, 25 the Court finds no error with the ALJ’s determination that Plaintiff’s testimony was inconsistent with 26 6 While the ALJ’s opinion could have been more clearly stated, the Court is able to reasonably discern the ALJ’s 27 path for the purpose of review. See Brown-Hunter, supra, 806 F.3d at 493-494; Jose v. Berryhill, 2018 WL 1244763 at *6 (D. Or. Mar. 12, 2018) (“[E]ven if the ALJ could have stated each reason more clearly, the Court is still able to ‘reasonably 28 discern’ the ALJ's path.”). 1 the objective medical evidence. 2 Plaintiff also argues that the Commissioner’s citation to the ALJ’s consideration of the medical 3 record in discounting Plaintiff’s testimony is an “impermissible after-the-fact explanation” and 4 amounts to an attempt to provide post-hoc reasoning on the ALJ’s behalf. (Doc. No. 17 at 2.) 5 However, Plaintiff misconstrues what it means for a rationalization to be post-hoc. “Even when an 6 agency explains its decision with less than ideal clarity, we must uphold it if the agency's path may 7 reasonably be discerned.” Molina, 674 F.3d at 1121. To the extent that the Commissioner is not 8 providing new justifications for an otherwise unsupported decision, the post-hoc rule is not violated. 9 Here, the Court finds that the Commissioner is not providing improper post-hoc rationalizations and 10 the ALJ’s reasoning that Plaintiff’s testimony was inconsistent with the medical record is reasonably 11 discernible. 12 In addition to finding that Plaintiff’s testimony was inconsistent with the medical record, the 13 ALJ also noted that Plaintiff had been prescribed a conservative course of treatment, including 14 physical therapy, topical heat and ice for pain relief, referral for a neck collar and back brace, and that 15 his physical and mental impairments had improvement with medication. AR 23, 25. See 20 C.F.R. §§ 16 404.1529(c)(3)(iv), (v); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding that 17 improvement with conservative treatment undermined allegations of disabling symptoms); Warre v. 18 Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 19 effectively with medication are not disabling[.]”). Plaintiff’s briefing does not address the adequacy of 20 the ALJ’s determination that Plaintiff had been prescribed conservative treatment and was responding 21 well to his medication. See Carmickle, 533 F.3d at 1161 n.2. Instead, Plaintiff’s argument on reply 22 solely addresses whether Plaintiff’s failures to attend physical therapy and mental health treatment 23 were adequately explained. (Doc. No. 17 at 5.) However, Plaintiff’s unexplained, or inadequately 24 explained, failure to follow a prescribed course of treatment and his conservative treatment and 25 improvement with medication are distinct bases for discounting his subjective symptom testimony. 26 Furthermore, even if the record contained an adequate explanation for Plaintiff’s failure to follow a 27 prescribed course of treatment as he contends, any error would be harmless where, as here, the ALJ 28 provided several other valid reasons for disbelieving Plaintiff’s testimony. See Molina v. Astrue, 674 1 F.3d 1104, 1121 (9th Cir. 2012) (“[S]everal of our cases have held that an ALJ’s error was harmless 2 where the ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony, but also 3 provided valid reasons that were supported by the record.”). 4 The ALJ also discounted Plaintiff’s testimony because his reported activities of daily living 5 were not consistent with his alleged limitations. AR 24, 25. An ALJ can properly discount a 6 claimant’s subjective complaints when the daily activities demonstrate an inconsistency between what 7 the claimant can do and the degree that disability is alleged. Molina, 674 F.3d at 1112-13 (finding that 8 an ALJ may consider “whether the claimant engages in daily activities inconsistent with the alleged 9 symptoms” in determining credibility). Here, the ALJ considered Plaintiff’s reports that he tried his 10 best to sweep, mop, and grocery shop, had difficulty carrying a grocery bag but could carry a gallon of 11 milk or a bag of potatoes, had no problem with his personal care, did his laundry twice a week, 12 prepared simple meals, talked with his family every day, and went to church. AR 22. 13 Plaintiff first argues that the ALJ erred by applying improper legal standards because the ALJ 14 did not identify any statements that contradicted Plaintiff’s activity and did not make specific findings 15 regarding whether Plaintiff’s daily activities are transferable to a work setting and, if so, the amount of 16 time he is engaged in such activity. (Doc. No. 13 at 26.) Plaintiff cites to Orn v. Astrue, 495 F.3d 625, 17 639 (9th Cir. 2007), Burch, 400 F.3d at 681, and Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 18 2001) in support of her arguments. However, the Court does not find these cases to directly discredit 19 the ALJ’s decision. 20 In Orn, the Court found that the claimant’s activities of reading, watching television, and 21 coloring in coloring books were not transferable skills to be a surveillance system monitor. Orn, 495 22 F.3d at 639. Orn is distinguishable on the grounds that the daily activities of reading, watching 23 television and coloring were passive activities that clearly failed to meet the threshold for transferable 24 work skills, whereas the Plaintiff's daily activities in this case were of such a nature and scope as to 25 allow the ALJ to rationally infer transferability. See Lemus v. Astrue, 2010 WL 3768035, at *14 (E.D. 26 Cal. Sept. 22, 2010) (finding ALJ's credibility determination to be rational, despite ALJ's failure to 27 explicitly articulate the transferability of Plaintiff's daily activities given the nature and scope of those 28 activities, as well as the numerous other factors cited by the ALJ); see also Macias v. Astrue, 2010 WL 1 3632807, at *9 (E.D. Cal. Sept. 14, 2010) (distinguishing claimant's daily activities from those in Orn 2 and noting the Orn court's statement that the daily activities in that case were “so undemanding that 3 they cannot be said to bear a meaningful relationship to the activities of the workplace.”); see 4 also Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir.1999) (“[C]laimant's ability to fix meals, do laundry, 5 work in the yard, and occasionally care for his friend's child was evidence of claimant's ability to 6 work.”) 7 In Burch, the Ninth Circuit found that the ALJ properly considered the claimant’s daily 8 activities in his credibility analysis where the ALJ explained that these activities “suggest that she is 9 quite functional. She is able to care for her own personal needs, cook, clean and shop. She interacts 10 with her nephew and boyfriend. She is able to manage her own finances and those of her nephew.” 11 Burch, 400 F.3d at 680. The ALJ did not, as Plaintiff proposes, specifically “identify any 12 contradictory statements . . . [or] make findings as to whether any of [the claimant’s] daily activities 13 are transferable to a work setting and, if so, the amount of time he is engaged in such activity.” (See 14 Doc. No. 13 at 26.) Nonetheless, the ALJ’s findings were sufficiently specific. See Burch, 400 F.3d 15 at 681. Burch is analogous to this case and accordingly supports a finding that the ALJ applied proper 16 legal standards in discounting Plaintiff’s subjective symptom testimony due to inconsistency with his 17 daily activities. 18 Finally, in Vertigan, the plaintiff was able to go grocery shopping with assistance, walk 19 approximately an hour in the malls, get together with friends, play cards, swim, watch television, and 20 read. Vertigan, 260 F.3d at 1049. The ALJ focused on the claimant’s daily activities and gave much 21 weight to one statement of her treating physician, even though that statement was conflicted by all of 22 the same physician's other findings. Id. at 1049–50. The Ninth Circuit found that these activities did 23 not consume a substantial part of the plaintiff's day and that walking in the malls and swimming were 24 not necessarily transferable to the work setting “with regard to the impact of pain.” Id. Such is not the 25 case here. Unlike Vertigan, the ALJ here did not base her decision to reject plaintiff's testimony solely 26 on Plaintiff's daily activities. Moreover, unlike Vertigan, the ALJ did not rely entirely on one 27 statement of a treating physician that was contradicted by the same physician’s other findings. 28 While disability claimants should not be penalized for attempting to lead normal lives in the 1 face of their limitations, where the level of activity is inconsistent with a claimant’s claimed limitation, 2 those activities have bearing on the claimant’s credibility. Reddick v. Chater, 157 F.3d 715, 722 (9th 3 Cir. 1998). As the Ninth Circuit explained in Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989), “if 4 [the plaintiff] remains able to perform ordinary household and personal tasks, then he has not carried 5 his burden of proving that his pain prevents him from returning to [work]. While such reasoning may 6 not hold up in all cases . . . it is sufficient here, as [the plaintiff] has not put forward any evidence that 7 reconciles the inconsistency between his words and his actions.” Such circumstances are evident in 8 this case. Thus, the Court finds that the ALJ applied correct legal standards in considering Plaintiff's 9 daily activities as a factor in assessing his credibility. 10 Plaintiff also argues that the ALJ’s finding that Plaintiff’s testimony was contradicted by his 11 activities of daily evidence lacks the support of substantial evidence. (Doc. No. 13 at 26.) 12 Specifically, Plaintiff contends that the ALJ “cherry-picked” evidence by failing to address Plaintiff’s 13 statement at the hearing that he required assistance getting his pants on and a mental health treatment 14 note dated September 7, 2016, stating that Mr. Jones was no longer attending church because he 15 “panics” at the thought of sitting among a lot of people.7 (Id.) According to Plaintiff, the ALJ erred 16 by failing to address this contradictory evidence. (Id.) 17 The ALJ was not required to specifically address the evidence Plaintiff cites. “[I]n interpreting 18 the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.” 19 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (internal quotation omitted). 20 The Court likewise disagrees with Plaintiff’s argument that the ALJ “cherry-picked” evidence and did 21 not consider the full record before arriving at a conclusion based on substantial evidence. Here, the 22 ALJ expressly acknowledged Plaintiff’s testimony that he needed help getting his pants on and further 23 relied on evidence that Plaintiff had social phobia, found it difficult to be around people, and did not 24 leave his house often or participate in social activities. AR 22, 25. The ALJ’s decision recognizes that 25 Plaintiff has some work limitations, however, she discredits Plaintiff’s testimony that his physical and 26 7 Plaintiff also cites to evidence of explanations for his failure to attend mental health treatment appointments in 27 order to attend his girlfriend’s mother’s funeral and because he had difficulty being around people while waiting for his appointment. (Doc. No. 13 at 26.) However, this evidence does not pertain to his activities of daily living and is instead 28 relevant to his failure to follow a prescribed course of treatment as discussed above. 1 mental limitations render him completely unable to work. In reaching her decision, the ALJ weighed 2 the relevant evidence in the record and did not impermissibly give more weight to evidence which 3 supported her conclusion over equally relevant evidence. 4 Even where Plaintiff’s activities suggest some difficulty functioning, they may be grounds for 5 discrediting the claimant’s testimony to the extent that they contradict claims of a totally debilitating 6 impairment. Molina, 674 F.3d at 1113. Moreover, the presence of contradictory reports does not 7 preclude a finding that a claimant is not disabled. See Thomas v. Barnhart, 278 F.3d 947 (9th 8 Cir.2002). The ALJ is the trier of fact and she is permitted to reject testimony regarding subjective 9 symptoms as long as she makes specific findings justifying that decision. Fair, 885 F.2d at 604; see 10 also Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (“So long as the adjudicator makes specific 11 findings that are supported by the record, the adjudicator may discredit the claimant's allegations based 12 on inconsistencies in the testimony or on relevant character evidence.” ); Hayatgheyb v. Callahan, 120 13 F.3d 268 (9th Cir. 1997) (upholding an ALJ’s finding that the plaintiff was not credible where he 14 “made sufficient inquiries into [plaintiff’s] daily routine and medical and work history, and made 15 specific findings to justify her rejection of his pain testimony[.]” (citations omitted)). Where the ALJ 16 makes a reasonable interpretation of the claimant’s testimony, it is not the Court’s role to second-guess 17 it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). As the Ninth Circuit explained in Burch, 18 “[a]lthough the evidence of [the claimant’s] daily activities may also admit of an interpretation more 19 favorable to [him], the ALJ's interpretation was rational, and ‘[w]e must uphold the ALJ's 20 decision where the evidence is susceptible to more than one rational interpretation.’” Burch, 400 F.3d 21 at 680-81 (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)); see also Bayliss v. 22 Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (“Substantial evidence is more than a mere scintilla 23 but less than a preponderance.”). Such is the case here. Having reviewed the record, the Court 24 concludes that the ALJ’s interpretation of Plaintiff’s testimony was reasonable and supported by 25 substantial evidence. 26 CONCLUSION 27 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 28 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 1 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 2 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 3 Commissioner of Social Security, and against Plaintiff Anthony Ray Jones. 4 5 IT IS SO ORDERED. 6 Dated: March 19, 2020 /s/ Barbara A. McAuliffe _ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28