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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO R. AZEVEDO, No. 2:19-cv-01073-KJN 12 Plaintiff, ORDER ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 13 v. 14 (ECF Nos. 11, 12, 15) COMMISSIONER OF SOCIAL 15 SECURITY, 16 Defendant. 17 18 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 19 denying his application for Disability Insurance Benefits under Title II of the Social Security 20 Act.1 In his Motion for Summary Judgment (ECF No. 12), plaintiff primarily argues that the 21 Administrative Law Judge (“ALJ”) erred in evaluating the medical opinion evidence and 22 discounting plaintiff’s subjective symptom testimony. The Commissioner opposes and filed a 23 Cross-Motion for Summary Judgment. (ECF No. 15.) 24 //// 25 //// 26 //// 27 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and the parties 28 consented to the jurisdiction of the undersigned for all purposes. (See ECF Nos. 6, 7, 17.) 1 After considering the parties’ written briefing, the record, and the applicable law, for the 2 reasons set forth below the court GRANTS the Commissioner’s Motion, DENIES plaintiff’s 3 Motion, and AFFIRMS the Commissioner’s decision. 4 I. BACKGROUND AND ALJ’S FIVE-STEP ANALYSIS2 5 Plaintiff applied for disability insurance benefits on October 27, 2014, initially alleging an 6 onset date of June 1, 2013. (Administrative Transcript (“AT”) 108, 119.) Plaintiff claimed the 7 following medical conditions: chronic back pain, emphysema/shortness of breath, elbow pain, 8 and memory loss due to brain injury. (AT 107.) Plaintiff’s application was denied initially and 9 again upon reconsideration. (AT 146-49, 156-60.) Aided by an attorney, plaintiff sought review 10 of these denials with an ALJ. (AT 165-66, 223-26.) At a hearing on November 6, 2017, plaintiff 11 testified about his conditions and the ALJ heard testimony from a vocational expert regarding 12 plaintiff’s ability to work. (AT 87-106.) 13 On April 25, 2018 the ALJ issued a decision determining that plaintiff was not disabled. 14 (AT 64-78.) At step one, the ALJ found that plaintiff had not engaged in substantial gainful work 15 16 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to 17 engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs 18 eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571-76; Bowen v. Yuckert, 482 U.S. 19 137, 140-42 (1987). The following summarizes the sequential evaluation: 20 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 21 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. 22 Step three: Does the claimant’s impairment or combination of impairments meet 23 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 24 Step four: Is the claimant capable of performing her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 25 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The 28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 1 activity since the amended alleged onset date of September 21, 2015. (AT 67.) At step two, the 2 ALJ found plaintiff had the following severe impairments: “degenerative disc disease status-post 3 thoracic spine fusion surgery and emphysema.” (AT 67.) At step three, the ALJ determined that 4 the severe impairments did not meet or medically equal a listed impairment. (AT 70.) 5 Accordingly, the ALJ found plaintiff had the residual functional capacity (“RFC”) to 6 perform “medium work,” with the following limitations: 7 The claimant cannot crawl or climb ladders ropes or scaffolds. He can balance, stoop, kneel, crouch, and climb ramps or stairs no more 8 than occasionally. The claimant cannot work around hazards such as 9 moving dangerous machinery and unprotected heights. He cannot work around concentrated excessive smoke, fumes, odors, gases, 10 dust, or other environmental irritants. The claimant can push or pull with his right dominant upper extremity no more than occasionally. 11 12 (AT 70 (cleaned up).) In reaching this conclusion, the ALJ considered plaintiff’s symptoms, 13 medical records, and the opinions provided by examining and consulting medical professionals. 14 (AT 70-75.) Relevant here, the ALJ found that the alleged severity and limiting effects of 15 plaintiff’s reported symptoms were “out of proportion to his typically unremarkable presentation 16 during his treatment visits,” and that “the evidence of record generally does not support the 17 alleged loss of functioning.” (AT 71, 73.) The ALJ decided to “[give] great weight” to the 18 opinion of Dr. Sharma, an examining physician who opined that plaintiff could perform “a 19 reduced range of medium work,” whereas the other examining physician and two consulting 20 physicians opined that plaintiff could only perform light work. (See AT 74-75.) Ultimately, the 21 ALJ concluded at steps four and five that plaintiff could not perform his past work as a dairy farm 22 worker and truck driver but that “there were jobs that existed in significant numbers in the 23 national economy that [plaintiff] could have performed,” such as a kitchen helper and hand 24 packer. (AT 76-77.) 25 On January 23, 2019 the Appeals Council denied plaintiff’s appeal of the ALJ’s decision. 26 (AT 15.) Plaintiff then timely filed this action requesting judicial review of the Commissioner’s 27 final decision, and the parties filed cross-motions for summary judgement. (ECF Nos. 1, 11, 15.) 28 1 II. STANDARD OF REVIEW 2 The court reviews the Commissioner’s decision de novo, and should reverse “only if the 3 ALJ’s decision was not supported by substantial evidence in the record as a whole or if the ALJ 4 applied the wrong legal standard.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). 5 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such 6 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for 8 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. 9 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one 10 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, the 11 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F.3d at 1048. 12 III. ISSUES PRESENTED 13 Plaintiff alleges three errors: (A) the ALJ improperly evaluated the medical opinions 14 provided by examining and non-examining physicians; (B) the ALJ erroneously discounted 15 plaintiff’s testimony regarding the severity and limiting effects of his symptoms; and (C) the ALJ 16 improperly rejected lay witness evidence. (ECF No. 12 at 8-19.) Based on these alleged errors, 17 plaintiff requests that the court award benefits, or, in the alternative, remand for further 18 proceedings. (ECF No. 12.) 19 The Commissioner counters each of plaintiff’s arguments, contending that substantial 20 evidence supports the ALJ’s evaluation of the medical opinion evidence and plaintiff’s subjective 21 symptom testimony. (See ECF No. 15 at 5-13.) Thus, the Commissioner maintains that the 22 ALJ’s opinion should be affirmed. (ECF No. 15.) 23 IV. DISCUSSION 24 A. The ALJ did not err in evaluating medical opinions. 25 Plaintiff argues that the ALJ erred in finding that plaintiff could perform “medium work” 26 because the ALJ improperly rejected the opinions of three physicians who found that plaintiff 27 could perform “light work.” (ECF No. 12 at 12-18.) In doing so, plaintiff contends that the 28 ALJ’s evaluation of the medical opinions was not supported by substantial evidence. (Id.) 1 Further, plaintiff argues that the “ALJ failed to consider that this doctor’s conclusion is 2 inconsistent with other aspects of his [own] report.” (ECF No. 12 at 12.) Instead, plaintiff argues 3 the ALJ should have determined that plaintiff is restricted to only light work. Therefore, plaintiff 4 argues that any error is not harmless because, pursuant to Medical-Vocational Rule 202.06, a light 5 RFC would render plaintiff disabled based on his age, education, and work background. (ECF 6 No. 12 at 9, 13 (citing 20 C.F.R. Pt. 404. Subpt. P. App. 2, Rule 202.06).) 7 Legal Standard 8 The ALJ is responsible for resolving conflicts among physicians’ opinions. Carmikle v. 9 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes 10 between the opinions of three types of physicians: treating physicians, examining physicians, and 11 non-examining physicians. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, a 12 treating physician’s opinion carries more weight than an examining physician’s opinion, and an 13 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 14 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). 15 In order to evaluate whether an ALJ properly rejected a medical opinion, in addition to 16 considering its source, a court considers whether: (1) contradictory opinions are in the record; and 17 (2) clinical findings support the opinions. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995). A 18 physician’s opinion is not conclusive as to physical condition or disability, and “the ALJ may 19 disregard the treating physician’s opinion whether or not that opinion is contradicted.” 20 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 2011). To reject the uncontradicted opinion of 21 a treating or examining physician, the ALJ must provide “clear and convincing reasons that are 22 supported by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 23 2008). 24 Conversely, the contradicted opinion of a treating or examining physician may be rejected 25 for “specific and legitimate reasons that are supported by substantial evidence.” Lester, 81 F.3d 26 at 830. An ALJ can meet this burden by “setting out a detailed and thorough summary of the 27 facts and conflicting clinical evidence, stating [an] interpretation thereof, and making findings.” 28 Magallanes, 881 F.2d at 751. “Specific, legitimate reasons for rejecting a physician’s opinion 1 may include [] reliance on a claimant’s discredited subjective complaints, inconsistency with 2 medical records, inconsistency with a claimant’s testimony, inconsistency with a claimant’s daily 3 activities, or that the opinion is brief, conclusory, and inadequately supported by clinical 4 findings.” Sherry W. v. Saul, 2020 U.S. Dist. LEXIS 131673, *9 (D. Or. July 23, 2020) (citations 5 omitted). When medical evidence is subject to more than one rational interpretation, the ALJ’s 6 conclusion must be upheld. Tommasetti, 533 F.3d at 1038. 7 Analysis3 8 The court finds that the ALJ properly evaluated the medical opinion evidence by resolving 9 a conflict between the opinions of two examining physicians. On January 8, 2015 plaintiff 10 underwent his first consultative medical examination with Dr. Schwartz who opined that plaintiff 11 could sit, stand, and walk up to six hours without use of an assistive device and lift and carry 20 12 pounds occasionally and 10 pounds frequently. (AT 441-45.) On September 17, 2015 plaintiff 13 underwent a second consultative examination with Dr. Sharma who opined that plaintiff could sit, 14 stand, and walk up to six hours with normal breaks, lift and carry 25 pounds frequently and 50 15 pounds occasionally, and bend and stoop only occasionally. (AT 471-76.) Both physicians 16 reported the same diagnoses and general findings regarding plaintiff’s physical condition and his 17 symptom complaints. (Compare AT 441-45, with 471-76.) Two non-examining physicians, Drs. 18 3 In addition to the reasons discussed herein, plaintiff argues that the ALJ failed to consider 19 plaintiff’s ability to perform work on a sustained basis—“the existence of normal findings on some occasions is insufficient as a matter of law ‘to demonstrate[] that [a claimant] can perform’ 20 medium work activities on a sustained basis as assumed by the ALJ.” (ECF No. 12 at 12 (citing cases).) However, without citing to any evidence or medical records in support of this 21 proposition, the court finds this argument to be without merit. The only portion of the ALJ’s decision that may be legally relevant is the ALJ’s repeated notation that “full range of motion in 22 [plaintiff’s] spine on some occasions demonstrates that [plaintiff] can perform a reduced range of 23 medium work.” (AT 74 (emphasis added).) The court finds that the ALJ’s use of the phrase “on some occasions” refers to plaintiff’s consistent presentation of reduced range of motion in his 24 spine at a relatively limited number of medical examinations, rather than the sporadic nature of his symptoms. Whether a plaintiff’s symptoms vary in severity is relevant to determine whether a 25 “[plaintiff] can hold a job for only a short period of time,” and is therefore incapable of substantial gainful work activity. Gatliff v. Comm’r of the SSA, 172 F.3d 690, 694 (9th Cir. 26 1999). Here, plaintiff does not demonstrate any attempts to secure work which were later 27 unsuccessful due to debilitating pain, that his pain is worse some days or weeks, or that his symptoms vary in severity. Thus, this argument fails. 28 1 Greene and Chiang, opined that plaintiff could sit, stand, and walk for up to six hours and lift and 2 carry 20 pounds occasionally and 10 pounds frequently. (AT 114-16, 128-29.) In essence, 3 plaintiff argues that the ALJ should have adopted a “light” rather than “medium” RFC because 4 three doctors’ findings are consistent with a light RFC. However, it is well established that the 5 RFC is not a medical opinion, but a legal decision reserved solely for the Commissioner. 20 6 C.F.R. § 404.1527(d)(2); see, e.g., Brocchini v. Berryhill, 2018 U.S. Dist. LEXIS 100128, *20 7 (E.D. Cal. June 14, 2018). Thus, the ALJ must resolve the conflicts between the physicians’ 8 opinions. See Carmickle, 533 F.3d at 1164. 9 In evaluating the medical opinions, the ALJ assigned partial weight to Dr. Schwartz’s 10 opinion and great weight to Dr. Sharma’s opinion. Because these examining physicians’ opinions 11 were conflicting, the ALJ needed to provide “specific and legitimate reasons” for rejecting Dr. 12 Schwartz’s opinion. See Magallanes, 881 F.2d at 751. The ALJ outlined Dr. Schwartz’s findings 13 in significant detail. (See AT 71.) Then, in discounting Dr. Schwartz’s opinion that plaintiff is 14 limited to light work, the ALJ stated that his opinion “is inconsistent with his own mostly 15 unremarkable objective physical status findings.” (AT 74.) Inconsistencies between a 16 physician’s opinion and the physician’s treatment notes and observations is sufficient to discount 17 or reject the opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (a physician’s 18 opinion being inconsistent with treatment notes is a “specific and legitimate” reason to reject the 19 opinion); Timothy J. v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 219283, at *13 (E.D. Wash. 20 July 9, 2018) (finding that a doctor’s restrictive work limitation was inconsistent with the doctor’s 21 substantially normal physical findings); Teleten v. Colvin, 2016 U.S. Dist. LEXIS 43985, at *5-6 22 (E.D. Cal. Mar. 31, 2016) (“An ALJ may reject a treating physician’s opinion that is inconsistent 23 with other medical evidence, including the physician’s own treatment notes.”). Accordingly, the 24 ALJ provided a sufficiently specific and legitimate reason to discount Dr. Schwartz’s opinion. 25 Further, the ALJ properly relied on the objective medical evidence to discount Dr. 26 Schwartz’s opinion of light work. The ALJ found Dr. Schwartz’s opinion to be inconsistent with 27 “evidence of [plaintiff] ambulating without assistance or difficulty, transferring from a chair to 28 the exam table, negative straight leg raising tests, normal motor strength throughout, intact 1 sensation, normal reflexes, and full range of motion in his spine on some occasions.” (AT 74-75 2 (citing numerous medical records).) In so finding, the ALJ properly set out a detailed summary 3 of the medical evidence, stated his interpretation thereof, and made findings. See Magallanes, 4 881 F.2d at 751. 5 Plaintiff criticizes Dr. Sharma’s opinion heavily, claiming that it “[states] only bare bones 6 conclusions,” and is “based only upon [Dr. Sharma’s] physical examination and observations.” 7 (ECF No. 12 at 16.) However, the court finds both reports to be nearly identical, with Dr. 8 Sharma’s actually being more detailed, especially with respect to plaintiff’s back. (Compare 441- 9 45 (Dr. Schwartz’s report does not mention any other evidence), with 471-85 (Dr. Sharma 10 performed x-rays and prepared more detailed clinical findings than Dr. Schwartz).) Both 11 physicians reported substantially normal or mild findings with Dr. Schwartz merely noting 12 “decreased range of motion cervical spine” and “upper back pain secondary to past trauma” (AT 13 444), while Dr. Sharma noted “tenderness to palpitation” and “pain on forward flexion.” (AT 14 474.) Thus, the ALJ properly discounted Dr. Schwartz’s opinion and found the objective medical 15 evidence to be more consistent with Dr. Sharma’s opinion that plaintiff can perform medium 16 work. 17 Plaintiff also argues that the ALJ erred in evaluating the non-examining consultative 18 physicians who opined that plaintiff could perform a range of light work. (ECF No. 12 at 17.) 19 Examining physician’s opinions are given more weight than the opinion of non-examining 20 physicians, especially when an examining physician’s opinion is supported by clinical findings. 21 See Holohan, 246 F.3d at 1202; Lester, 81 F.3d at 831. Here, the ALJ implicitly rejected the non- 22 examining physicians’ opinions regarding plaintiff’s ability to perform only light work, but the 23 ALJ adopted their findings regarding plaintiff’s limited ability to use his right arm and restriction 24 from being exposed to environmental irritants. (See AT 75.) An ALJ “may reject the opinion of 25 a non-examining physician by reference to specific evidence in the medical record.” Sousa v. 26 Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). In discounting the opinions of these non- 27 examining physicians, the ALJ referenced the same body of specific medical evidence regarding 28 plaintiff’s generally unremarkable presentation used to discount Dr. Schwartz’s opinion. (AT 74- 1 75.) Accordingly, the ALJ’s use of specific, objective clinical findings and examination reports 2 to discount the opinions of these non-examining physicians is not error, and the ALJ properly 3 discounted these physicians’ opinions. See Sousa, 143 F.3d at 1244. 4 Similarly, plaintiff contends that Dr. Sharma’s opinion of medium work is an “outlier 5 opinion” because the three other physicians opined that plaintiff can only perform a range of light 6 work. (ECF No. 16 at 2-3.) Plaintiff’s reasoning contravenes the well settled rule that the ALJ is 7 responsible for weighing medical opinion evidence, especially when there are conflicts, and a 8 plaintiff’s RFC determination is reserved solely for the Commissioner. See 20 C.F.R. 9 § 404.1527(d)(2); Tommasetti, 533 F.3d at 1041-42 (“[T]he ALJ is the final arbiter with respect 10 to resolving ambiguities in the medical evidence.”); Magallanes, 881 F.2d at 753 (an ALJ need 11 not agree with every aspect of a physician’s report or opinion). In this case, the ALJ reasonably 12 reconciled the opinions of two examining physicians regarding plaintiff’s physical limitations. 13 Further, the ALJ properly considered the opinions of non-examining sources, implementing their 14 findings into his RFC calculation. Moreover, the ALJ’s decision to adopt part of Dr. Sharma’s 15 opinion regarding plaintiff’s physical limitations over the opinions of other physicians of record 16 was supported by substantial evidence. Although the court is sympathetic to plaintiff’s concerns, 17 the ALJ’s decision must be upheld where it is subject to more than one rational interpretation and 18 supported by substantial evidence. See Tommasetti, 533 F.3d at 1038; Edlund, 253 F.3d at 1156. 19 B. The ALJ did not err in discounting plaintiff’s subjective symptom testimony. 20 Plaintiff argues that the ALJ’s reasons for discounting his subjective complaints are 21 legally insufficient. (ECF No. 12 at 14-19.) Due to chronic back pain and shortness of breath, 22 plaintiff claims that he cannot work because he has difficulty standing and sitting for prolonged 23 periods of time, as well as difficulty walking, bending, climbing stairs, completing tasks, and 24 performing household chores and other activities of daily living. (AT 315-33.) In evaluating 25 plaintiff’s subjective symptom testimony, the ALJ found that plaintiff satisfied the first part of the 26 required two-step analysis—plaintiff has an impairment that could reasonably cause his alleged 27 symptoms—but the ALJ discounted plaintiff’s claims about the severity and limiting effects of 28 those symptoms. (AT 70-75.) Prior to analyzing plaintiff’s subjective complaints, the ALJ 1 outlined plaintiff’s treatment history in significant detail. In doing so, the ALJ discussed 2 plaintiff’s relatively conservative and non-aggressive treatment history. (See AT 71-73.) The 3 ALJ also discounted plaintiff’s subjective complaints “because the evidence of record generally 4 does not support the alleged loss of functioning.” (AT 73.) Additionally, the ALJ discounted 5 plaintiff’s subjective complaints based on his ability to perform self-care and other activities of 6 daily living. (AT 74.) Finally, the ALJ noted that “the record indicates that [plaintiff] has been a 7 smoker for 35 years.” (AT 74.) As discussed below, the court finds no material error in the 8 ALJ’s evaluation of plaintiff’s subjective symptom testimony. 9 Legal Standard 10 A claimant’s statements of subjective symptoms alone is insufficient grounds to establish 11 disability. 20 C.F.R § 404.1529(a). If an ALJ was required to believe every allegation of pain or 12 impairment, disability benefits would run afoul of the Social Security Act and its purpose. See 13 Treichler v. Comm’r of SSA, 775 F.3d 1090, 1106 (9th Cir. 2014). In evaluating the extent to 14 which an ALJ must credit the claimant’s report of their symptoms, the Ninth Circuit has set forth 15 the following two-step analysis: 16 First, the ALJ must determine whether the claimant has presented 17 objective medical evidence of an underlying impairment which could 18 reasonably be expected to produce the pain or other symptoms alleged. In this analysis, the claimant is not required to show that her 19 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 20 reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue 21 itself, or the severity thereof. 22 If the claimant satisfies the first step of this analysis, and there is no 23 evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear 24 and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the most demanding 25 required in Social Security cases. 26 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 27 1014-15 (9th Cir. 2014)). 28 1 The ALJ’s reasons for discounting or rejecting a claimant’s subjective symptom testimony 2 must be “sufficiently specific to allow a reviewing court to conclude the adjudicator . . . did not 3 arbitrarily discredit a claimant’s testimony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th 4 Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). Examples of 5 “specific, clear and convincing reasons” for discounting or rejecting a claimant’s subjective 6 symptom testimony include: a finding of “conservative treatment,” the effectiveness of or 7 noncompliance with a prescribed regime of medical treatment, inconsistencies between a 8 claimant’s testimony and their conduct (including daily activities), and whether the alleged 9 symptoms are consistent with the medical evidence of record. See Tommasetti, 533 F.3d at 1040; 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). A lack of corroborating, objective 11 medical evidence alone is insufficient grounds for an ALJ to discount a claimant’s subjective 12 symptoms; however, it is a factor the ALJ may consider. See Rollins v. Massanari, 261 F.3d 853, 13 857 (9th Cir. 2001) (citing 20 C.F.R § 404.1529(c)(2)). 14 Analysis 15 1. The ALJ properly discounted plaintiff’s subjective symptom testimony based on his conservative treatment history.4 16 17 When Dr. Schwartz examined plaintiff in January 2015, plaintiff indicated that he was not 18 taking any medications. (AT 441-42.) Plaintiff later indicated that he took “aspirin as needed for 19 pain” during his September 2015 exam with Dr. Sharma. (AT 473.) Between March and August 20 2015, plaintiff sought medical treatment five times and was prescribed respiratory inhalers and 21 over-the-counter anti-inflammatory medication for his conditions. (AT 451-68.) Plaintiff has 22 little to no medical history for 2016. Beginning in May 2017, plaintiff sought more intensive 23 treatment for his conditions and was prescribed numerous medications for his pain and breathing 24 25 4 Although plaintiff does not address this basis for discounting his subjective symptom testimony, it is reasonable to infer that the ALJ relied on it based on the ALJ’s discussion of the medical 26 evidence. (AT 71-73.) “Even when an agency explains its decision with less than ideal clarity, 27 we must uphold it if the agency’s path may reasonably be discerned.” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2011) (citations and internal quotation marks omitted). 28 1 problems as well as physical therapy and chiropractic manipulation. (See AT 515.) Between 2 May and September 2017, plaintiff had medical appointments every one to two weeks for follow- 3 ups and treatment. (See AT 487-515.) Overall, treatment notes from this period indicate that 4 plaintiff responded well to treatment, namely physical therapy. (See id.) By September 2017, 5 plaintiff’s medications were significantly reduced and he was counseled to ice and heat his back 6 and increase his exercise by walking 10,000 steps per day. (See AT 487-90.) Additionally, 7 between August and October 2017, plaintiff met with a pain management specialist on two 8 occasions who prescribed therapeutic back injections and counseled plaintiff to continue physical 9 therapy, exercise at home, and the use of a TENS unit. (AT 737-43.) 10 The ALJ’s assessment of plaintiff’s complaints properly relied on evidence of 11 conservative medical treatment, mainly consisting of medication and physical therapy. An ALJ 12 may rely on such conservative treatment to discount a plaintiff’s subjective complaints. See 13 Tommasetti, 533 F.3d at 1040 (holding that the ALJ properly considered the plaintiff’s use of 14 “conservative treatment including physical therapy and the use of anti-inflammatory medication, 15 a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”); Parra v. Astrue, 16 481 F.3d 742, 751 (9th Cir. 2007). Plaintiff’s prescribed course of treatment—medications, 17 physical therapy, and a TENS unit—and his lack of other more intensive treatment falls squarely 18 within this Circuit’s definition of “conservative treatment.” See, e.g., Jones v. Comm’r of Soc. 19 Sec., 2014 U.S. Dist. LEXIS 7341, at *19-29 (E.D. Cal. Jan. 21, 2014) (noting conservative 20 treatment consisting of physical therapy, anti-inflammatory and narcotic medications, use of a 21 TENS unit, occasional epidural steroid injections, and massage therapy); Walter v. Astrue, 2011 22 U.S. Dist. LEXIS 38179, at *9 (C.D. Cal. Apr. 6, 2011) (ALJ permissibly discounted plaintiff’s 23 allegations of pain based on conservative treatment of medication, physical therapy, and 24 injection). 25 In sum, the court finds that plaintiff’s relatively conservative treatment and failure to seek 26 a more aggressive treatment plan constitutes a clear and convincing reason to discount plaintiff’s 27 subjective symptom testimony. See Tommasetti, 533 F.3d at 1039-40 (that claimant “did not 28 1 seek an aggressive treatment plan” and underwent conservative treatment undermines allegation 2 of disabling impairment). 3 2. The ALJ properly considered the objective medical evidence of record to discount plaintiff’s subjective symptom testimony. 4 5 The ALJ primarily discounted plaintiff’s subjective symptom testimony based on 6 inconsistencies between plaintiff’s claims and the objective medical evidence of record. After 7 outlining in detail plaintiff’s medical visits and treatment history from 2015 to 2017, the ALJ 8 concluded that plaintiff’s “statements about the intensity, persistence, and limiting effects of his 9 symptoms [] are inconsistent because the evidence of record generally does not support the 10 alleged loss of functioning.” (AT 73.) In other words, the ALJ found plaintiff’s complaints to be 11 “out of proportion to his typically unremarkable presentation during his treatment visits.” (AT 12 71.) Although a lack of medical evidence “cannot form the sole basis for discounting pain 13 testimony, it is a factor that the ALJ can consider . . . .” Carmickle, 533 F.3d at 1161 (finding that 14 inconsistency with objective medical evidence is a “sufficient basis” for rejecting subjective 15 symptom testimony); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins, 261 F.3d at 16 857 (citing 20 C.F.R. § 404.1529(c)(2)). The court finds that substantial evidence of record 17 supports the ALJ’s reasoning to discount plaintiff’s subjective complaints based on 18 inconsistencies between his allegations and the medical evidence. 19 Plaintiff claims that chronic back pain severely limits his ability to do practically 20 anything. (See AT 91, 93-94, 320-25.) In evaluating plaintiff’s complaints of back pain, the ALJ 21 cited findings from plaintiff’s physical examinations, x-ray and MRI imaging, and other medical 22 testing. (See AT 74.) Despite plaintiff’s claims of debilitating back pain, the ALJ noted that 23 “[d]iagnostic images of [plaintiff’s] lumbar spine were mostly unremarkable with evidence of 24 degenerative changes, but not significant disc space narrowing[,]” and “x-rays of his cervical 25 spine were benign[.]” (AT 74, 459, 484, 520-25.) The ALJ also properly found that “care 26 providers [] noted that he exhibited tenderness in his back, but [] ambulated without assistance or 27 difficulty, transferred from a chair to the exam table, and straight leg raising tests were negative,” 28 1 and “[plaintiff] [] demonstrated normal motor strength and function throughout, intact sensation, 2 normal reflexes, [and] full range of motion in his spine on some occasions[.]” (AT 74, 441-45, 3 471-76, 738, 742.) Other evidence of record, such as the MRI of plaintiff’s spine, supports the 4 ALJ’s finding that plaintiff had no more than mild impairments. (AT 733-34.) 5 The ALJ likewise properly evaluated plaintiff’s complaints of difficulty breathing in light 6 of the objective medical evidence concerning his emphysema and COPD. Plaintiff claims that he 7 “cannot walk or do much of anything without shortness of breath[.]” (AT 320.) However, a 8 pulmonary function test performed by Dr. Sharma found that plaintiff’s results were “consistent 9 with mild airflow obstruction.” (AT 478.) Additionally, after undergoing an exercise treadmill 10 test, “a care provider noted he was in the low exercise risk category and that his performance on 11 an exercise treadmill test was . . . symptomatically negative.” (AT 72, 748.) Further, “[plaintiff] 12 [] showed normal chest/lung and cardiovascular functioning, with care providers not[ing] his 13 lungs were clear . . . and his heart rate and rhythm was normal.” (AT 74, 443, 474.) Similar to 14 the ALJ’s evaluation of plaintiff’s back, the ALJ properly considered relatively mild objective 15 medical findings with respect to his breathing problems. Accordingly, the court finds that 16 substantial evidence supports the ALJ’s discounting of plaintiff’s subjective symptom testimony 17 based on the objective medical evidence of record. 18 3. Even assuming error, the ALJ considering plaintiff’s smoking habit and daily activities was harmless. 19 20 Plaintiff alleges error due to the ALJ using his history of smoking as a possible rationale 21 to discount his subjective complaints and that the ALJ failed to adequately explain how plaintiff’s 22 daily activities were inconsistent with his alleged pain and limitations. (ECF No. 12 at 22-23.) 23 The ALJ, in a somewhat cursory fashion, noted that “the record indicates that [plaintiff] 24 has been a smoker for 35 years” (AT 74) but then fails to mention plaintiff’s smoking again. 25 Regarding plaintiff’s daily activities, in determining that the severity and limiting effects of 26 plaintiff’s reported symptoms were not as significant as alleged, the ALJ merely stated, 27 “[plaintiff] reported that he does not have problems performing personal care and reported his 28 1 daily activities include[] taking care of his dog, preparing meals, going outside, driving a car, and 2 performing light household chores and shopping in stores on occasion.” (AT 74.) 3 Even if the court assumes the ALJ erred regarding these points, arguendo, that error 4 would be harmless because the ALJ properly relied on plaintiff’s conservative treatment and 5 inconsistencies between plaintiff’s testimony and the objective medical evidence of record, as 6 outlined above. Where at least one of the ALJ’s reasons for discounting plaintiff’s subjective 7 symptom testimony is valid, the court applies a harmless error standard. See Molina, 674 F.3d at 8 1115. An error is deemed harmless so long as “there remains substantial evidence supporting the 9 ALJ’s decision and the error ‘does not negate the validity of the ALJ’s ultimate conclusion.’” Id. 10 (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). 11 Here, the ALJ did not outright reject plaintiff’s subjective symptom testimony. Instead, 12 the ALJ properly considered plaintiff’s allegations in formulating his RFC of a “reduced range of 13 medium work,” with several restrictions. (AT 74.) Additionally, the ALJ’s consideration of 14 plaintiff’s conservative treatment is a legally sufficient reason to discount plaintiff’s subjective 15 symptom testimony. Consequently, the ALJ was also entitled to consider inconsistencies 16 between plaintiff’s subjective complaints and the other objective medical evidence of record. 17 Thus, the court finds that any error committed by the ALJ in discounting plaintiff’s subjective 18 symptom testimony was harmless, and the ALJ’s evaluation of plaintiff’s subjective symptom 19 testimony is supported by substantial evidence. 20 C. The ALJ did not err in rejecting the lay evidence of plaintiff’s stepdaughter. 21 Plaintiff argues that the ALJ improperly rejected the lay witness evidence of plaintiff’s 22 stepdaughter “on the basis that it is indeed lay evidence based on observation rather than medical 23 examination/testing[.]” (ECF No. 12 at 24.) “Lay testimony as to a claimant’s symptoms or how 24 an impairment affects the claimant’s ability to work is competent evidence that the ALJ must take 25 into account.” Molina, 674 F.3d at 1114. An ALJ must give reasons germane to each witness for 26 discrediting lay testimony. Bayliss, 427 F.3d at 1218. An ALJ may reject lay witness testimony 27 when the testimony is inconsistent or conflicting with the medical evidence of record. See 28 Bayliss, 427 F.3d at 1218 (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); Vincent v. 1 Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 216327, at *49-50 (E.D. Cal. Dec. 26, 2018) (“The 2 ALJ can properly reject testimony that conflicts with the available medical evidence.”); Guinn v. 3 Berryhill, 2018 U.S. Dist. LEXIS 90295, at *43-44 (C.D. Cal. May 25, 2018) (“An ALJ may 4 reject lay testimony if it is inconsistent with medical evidence, but not if it is simply unsupported 5 by medical evidence.”). 6 Despite the sparse analysis, the ALJ properly discounted the lay witness evidence based 7 on inconsistencies between the statements and the objective medical evidence of record. 8 Plaintiff’s stepdaughter, Heidi Bodine, filled out a form stating that she had known plaintiff for 27 9 years and observed plaintiff “a few hours a night.” (AT 339.) Bodine reported that plaintiff 10 cannot stand, walk, or run “for any length of time” and that “[plaintiff] has very bad breathing 11 conditions which [disable] him from [doing] much of anything.” (Id.) The court finds that 12 Bodine’s statements regarding plaintiff’s activities of daily living are largely consistent with those 13 reported by plaintiff. (Compare AT 340-44 (Bodine reporting that plaintiff can take the dog out, 14 perform self-care, light house-hold chores, some cooking, shopping, and driving on occasion), 15 with 320-35 (plaintiff’s statements attesting to the same).) In rejecting Bodine’s statements, the 16 ALJ stated that her statements “do not outweigh the accumulated medical evidence regarding the 17 extent to which [plaintiff’s] impairments limit his functional abilities.” (AT 75.) Subsequently, 18 the ALJ listed the same objective medical findings used to discount the opinion evidence, citing 19 to numerous medical records: “objective evidence of ambulating without assistance or difficulty, 20 transferring from a chair to the exam table, negative straight leg raising tests, normal motor 21 strength throughout, intact sensation, normal reflexes, and full range of motion in his spine on 22 some occasions demonstrates that the claimant can perform a reduced range of medium work[.]” 23 (See AT 74-75 (citing numerous medical records).) 24 The court finds that Bodine’s statements regarding plaintiff’s physical limitations is 25 inconsistent with various medical examinations and testing cited by the ALJ which show no more 26 than mild physical limitations. First, it may be reasonably deduced that the ALJ found plaintiff’s 27 largely unremarkable physical presentation at his medical visits to be inconsistent with Bodine’s 28 allegations of totally debilitating pain and difficulty breathing. Additionally, an exercise wOAOe GLU VEMEOUINGIN UETIOCTTL BO PUN ree Pt tO 1 | treadmill test, lasting six minutes and one second, was “electrocardiographically negative and 2 || symptomatically negative” and revealed that plaintiff has “a limited exercise tolerance[.]” (AT 3 | 748.) That plaintiff could perform an exercise test for six minutes indicates that plaintiff has 4 | more abilities than reported by Bodine. Further, the results of the pulmonary function test 5 || performed by Dr. Sharma were “consistent with mild airflow obstruction.” (AT 478.) These 6 | clinical findings are inconsistent with Bodine’s assertion that plaintiff has a debilitating breathing 7 | condition and cannot stand, walk, or run “for any length of time.” (AT 339.) Accordingly, the 8 | ALJ provided a sufficient basis to discredit the lay witness evidence of plaintiff's stepdaughter. 9 | See Bayliss, 427 F.3d at 1218; Vincent, 2018 U.S. Dist. LEXIS 216327, at *49-50. 10 | V. ORDER 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The Commissioner’s Motion for Summary Judgment (ECF No. 15) is GRANTED; 13 2. Plaintiff's Motion for Summary Judgment (ECF No. 11) is DENIED; 14 3. The decision of the Commissioner is AFFIRMED; and 15 4. The Clerk is directed to enter judgement in the Commissioner’s favor and close the 16 case. 17 | Dated: September 21, 2020 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 | szev.1073 28 17