(SS) Espinosa v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBORAH ANN ESPINOSA, No. 2:19-cv-1789-KJN 12 Plaintiff, ORDER OF SUMMARY JUDGMENT 13 v. (ECF No. 24) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security 19 Income (“SSI”) under Titles II and XVI of the Social Security Act.1 In her summary judgment 20 motion, plaintiff contends the Administrative Law Judge erred in assessing the severity of one of 21 her impairments, formulating her residual functional capacity, and rejecting her subjective- 22 symptom testimony. The Commissioner opposes plaintiff’s motion. Upon consideration of the 23 record and briefing, the court DENIES plaintiff’s motion for summary judgment, and AFFIRMS 24 the final decision of the Commissioner. 25 /// 26 27 1 This action was referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 302(c)(15). Both parties consented to proceed before a United States Magistrate Judge, and 28 the case was reassigned to the undersigned for all purposes. (ECF Nos. 6, 9, 21.) 1 I. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS2 2 On May 31, 2016, plaintiff protectively applied for SSI and DIB. (Administrative 3 Transcript (“AT”) 34, 25 8 -71.) In both applications, plaintiff alleged a disability onset date of 4 December 31, 2006—which she later amended to December 31, 2012. (AT 48-49, 259, 268.) 5 Plaintiff’s applications were denied initially and again upon reconsideration. (AT 144-45, 164- 6 65.) Plaintiff, aided by an attorney, sought review of these denials with an Administrative Law 7 Judge (“ALJ”). (AT 200-01.) The ALJ held a hearing on November 15, 2017, where plaintiff 8 testified about her conditions, and where a Vocational Expert (“VE”) testified about plaintiff’s 9 ability to work. (AT 44-75.) 10 On July 25, 2018, the ALJ issued a decision determining that plaintiff was not disabled 11 from that onset date forward. (AT 26-36.) As an initial matter, the ALJ determined that plaintiff 12 met the insured status requirements through December 31, 2012. (AT 28.) At step one, the ALJ 13 concluded plaintiff had not engaged in substantial gainful activity since her amended onset date 14 of December 31, 2012. (Id.) At step two, the ALJ determined plaintiff had the following severe 15 2 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, 16 and who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1). SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a). Where the standards for each benefits 17 system align, the court cites only the DIB statutes and regulations. Disability is defined, in part, as an “inability to engage in any substantial gainful activity” 18 due to “a medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(a). A 19 five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the 20 sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the 21 claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step 22 three. If not, then a finding of not disabled is appropriate. 23 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the 24 claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing past relevant work? If so, the 25 claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any 26 other work? If so, the claimant is not disabled. If not, the claimant is disabled. 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 impairments: diabetes mellitus and neuropathy. (Id.) In doing so, the ALJ found “nonsevere” 2 plaintiff’s medically determinable impairment of diabetic retinopathy, among others. (AT 29.) 3 At step three, the ALJ de t ermined plaintiff’s impairments did not meet or medically equal the 4 severity of an impairment listed in Appendix 1. (AT 31) (citing 20 C.F.R. Part 404, Subpart P, 5 Appendix 1). 6 The ALJ then found plaintiff had the residual functional capacity (“RFC”) to perform 7 “medium” work, with the following limitations: 8 lifting, carrying, pushing and/or pulling 50 pounds occasionally and 25 pounds frequently; sitting six hours out of an eight hour workday; 9 standing and/or walking six hours out of an eight hour workday; frequently climbing ramps and stairs, but occasionally climbing 10 ladders, ropes, and scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; and frequently exposure to unprotected 11 heights, exposed mechanical parts, and other similar hazards. 12 (AT 31.) 13 At step four, based on Vocational Expert (“VE”) testimony, the ALJ found that plaintiff 14 was capable of performing her past relevant work as a hospital housekeeper. (AT 36.) Thus, the 15 ALJ determined plaintiff was not disabled. (Id.) The Appeals Council denied plaintiff’s request 16 for review on May 23, 2019 (AT 12), making the ALJ’s decision the final decision of the 17 Commissioner. Plaintiff then filed this action requesting judicial review of the Commissioner’s 18 final decision; plaintiff’s motion for summary judgment has been fully briefed. (ECF Nos. 1, 24, 19 27, 30.) 20 II. LEGAL STANDARD 21 In reviewing the agency’s decision, a district court should reverse “only if the ALJ’s 22 decision was not supported by substantial evidence in the record as a whole or if the ALJ applied 23 the wrong legal standard.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). Substantial 24 evidence is more than a mere scintilla, but less than a preponderance, i.e., “such relevant evidence 25 as a reasonable mind might accept as adequate to support a conclusion.” Edlund v. Massanari, 26 253 F.3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for determining credibility, 27 resolving conflicts in medical testimony, and resolving ambiguities.” Id. The court will uphold 28 the ALJ’s conclusion where “the evidence is susceptible to more than one rational interpretation.” 1 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, the court may not reverse 2 the ALJ’s decision on account of harmless error. Buck, 869 F.3d at 1048. 3 III. ISSUES PRESE N TED 4 Plaintiff argues the ALJ erred by (1) finding plaintiff’s diabetic retinopathy a non-severe 5 impairment at step two, (2) assigning an RFC of “medium” work that did not account for 6 plaintiff’s fatigue and weakness, and (3) rejecting plaintiff’s subjective symptoms testimony 7 without sufficient reasons.3 (ECF N o. 24 at 16-32.) Plaintiff does not specify what relief she 8 seeks, were the court to grant summary judgment in her favor. 9 IV. DISCUSSION 10 A. Step Two Severity Assessment 11 Legal Standard 12 Under the Commissioner’s regulations, an impairment or combination of impairments is 13 deemed to be severe at step two if it “significantly limits your physical or mental ability to do 14 basic work activities.” 20 C.F.R. §§ 404.1520(c), 404.1522(a). In addition to capacity for 15 physical functions, the ability to do basic work activities includes “[c]apacities for seeing, 16 hearing, and speaking.” Id. § 404.1522(b)(2). An impairment or combination of impairments 17 may be found “not severe only if the evidence establishes a slight abnormality that has no more 18 than a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 19 (9th Cir. 2005) (internal quotation marks omitted). 20 “Step two is merely a threshold determination meant to screen out weak claims.” Buck v. 21 Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017); see Smolen v. Chater, 80 F.3d 1273, 1290 (9th 22 Cir. 1996) (“the step-two inquiry is a de minimis screening device to dispose of groundless 23 claims” (internal citations and quotation marks omitted)). “It is not meant to identify the 24 impairments that should be taken into account when determining the RFC.” Buck, 869 F.3d at 25 1048-49. “[T]he severity regulation is to do no ‘more than allow the Secretary to deny benefits 26 summarily to those applicants with impairments of a minimal nature which could never prevent a 27 3 The court grants plaintiff’s request to submit a brief that exceeds the standard page limit. (ECF 28 No. 24 at 1.) 1 person from working.’” SSR 85-28 (quoting Baeder v. Heckler, No. 84-5663 (3d Cir. July 24, 2 1985)). 3 Analysis 4 Plaintiff devotes most of her brief to the argument that the ALJ erred at step two by 5 determining that her diabetic retinopathy was not a severe impairment. (ECF No. 24 at 16-26.) 6 Plaintiff argues that this error stems from the ALJ’s view of plaintiff’s diabetic retinopathy purely 7 as a matter of visual acuity, withou t acknowledging how other accompanying factors limited 8 plaintiff’s work-related abilities. (See id. at 18.) The Commissioner argues that substantial 9 evidence supports the ALJ’s step two assessment of plaintiff’s eye condition, given the lack of 10 evidence that plaintiff’s diabetic retinopathy caused any work-related limitations; and he also 11 argues that any error at this step was harmless. (ECF No. 27 at 7-12.) The court agrees with the 12 Commissioner on both fronts. 13 Here, the ALJ decided step two in plaintiff’s favor, determining that plaintiff had the 14 severe impairments of diabetes mellitus and neuropathy, while finding non-severe plaintiff’s 15 other impairments—including her diabetic retinopathy. (AT 28-31.) Accordingly, plaintiff’s 16 disability claim survived the step two screening stage, and the ALJ proceeded to consider all of 17 her alleged impairments—severe and not—at subsequent steps of the evaluation. In finding 18 plaintiff’s eye condition not severe at step two, the ALJ indeed focused primarily on evidence of 19 plaintiff’s ability to see and to read. (AT 29.) Plaintiff argues that this focus impermissibly 20 ignored the other record evidence of her right eye being infected with conjunctivitis, for which 21 she sought emergency care; her eye pain and watering; and light sensitivity and headaches. (ECF 22 No. 24 at 18.) 23 While the ALJ did not discuss all of the symptoms accompanying plaintiff’s retinopathy 24 within the step two analysis section of the decision, the ALJ clearly did not “ignore” these 25 symptoms. Later in the decision, the ALJ explicitly noted plaintiff’s conjunctivitis, pain, eye 26 hemorrhaging, headaches, and light sensitivity. (AT 32, 33, 34-35.) The ALJ simply concluded 27 that this eye condition and its symptoms “ha[d] no more than a minimal effect on [plaintiff’s] 28 ability to work.” Webb, 433 F.3d at 686. Substantial evidence supports this conclusion. 1 The record firmly establishes plaintiff’s diagnosis of diabetic retinopathy, which as 2 plaintiff emphasizes in her brief can certainly impede a person’s ability to work if it progresses. 3 But plaintiff provided no e vidence that her retinopathy did in fact affect her ability to work, even 4 minimally. In all of the many records plaintiff identifies documenting the retinopathy diagnosis, 5 none includes an assessment of plaintiff’s resulting contemporaneous limitations. See Ducey v. 6 Saul, 2020 WL 5231494, at *4 (E.D. Cal. Sept. 2, 2020) (collecting cases stating that “mere 7 existence of an impairment . . . doe s not establish severity”); Holaday v. Colvin, 2016 WL 8 880971, at *12 (E.D. Cal. Mar. 8, 2016) (“The mere fact that plaintiff was diagnosed with such 9 conditions is, by itself, insufficient to demonstrate that they were ‘severe’ for step two 10 purposes.”). Plaintiff’s explanations to this court of what limitations her documented eye 11 condition can cause through numerous citations to online medical sources, however reputable, 12 cannot make up for this deficit. 13 First, some of the symptoms plaintiff complains the ALJ overlooked were relatively short- 14 lived. For instance, although plaintiff suffered a bout of bacterial conjunctivitis and inflammation 15 (acute anterior uveitis) in her right eye in March 2016 (AT 754-56, 757-60)—and took herself to 16 the emergency room once early on when it was not improving (AT 1139-42), the medical records 17 indicate that the infection and pain had resolved by the following month (AT 744 (assessing both 18 conjunctiva as “white and quiet”), 747 (plaintiff reporting “[n]o pain at all”)).4 19 The closest the medical records come to establishing a work-related limitation is a 20 warning by plaintiff’s long-term ophthalmologist Dr. Jeffrey Ing at their most recent vision 21 appointment in the record, on October 16, 2017, that if her “moderate disease . . . continues she 22 could lose driving and reading vision.” (AT 1222 (emphasis added).) At that same appointment, 23 Dr. Ing also noted that her right eye edema had “improved” and her left eye edema had “[s]lightly 24 improved.” (Id.) At each of plaintiff’s appointments spanning from March 2016 to October 25 2017, Dr. Ing expressed the need to monitor plaintiff’s retinas closely and stressed the importance 26 4 On examination during an initial April 22, 2016 appointment, plaintiff’s new primary care 27 physician noted “conjunctival injection bilaterally.” (AT 899.) But all of the subsequent medical examinations plaintiff identifies—from July 2016 through October 2017—show normal 28 conjunctiva. 1 of plaintiff controlling her diabetes. (AT 745, 749, 1085, 1101, 1106, 1222.) (See also AT 1088 2 (stating that plaintiff’s retinopathy—while “severe” and “chronic”—“can improve if her diabetes 3 improves, otherwise the r e tinopathy will reflect her diabetic status”).) This supports the ALJ’s 4 finding that the retinopathy was “being managed medically, and should be amenable to proper 5 control.” (AT 29.) The fact that her condition carries a potential for vision loss—an 6 understandably frightening prospect (AT 66)—does not undermine the ALJ’s conclusion that it 7 has not yet more than minimally aff ected plaintiff’s ability to work. And the ALJ explained in 8 detail her reasons for rejecting as aberrational the one vision exam that reported a right eye 9 corrected visual acuity of 20/200 (AT 1088), compared to the numerous vision tests before and 10 after that showed right eye corrected visual acuities of no less than 20/80 and mostly at 20/40. 11 (AT 743-44, 755, 1083, 1099, 1104-05, 1220-21.) 12 At the hearing, plaintiff testified that she was currently experiencing bilateral eye 13 “hemorrhaging,” eye swelling and leaking, frequent headaches, and “blurry” vision for anything 14 not close to her. (AT 59-63.) The ALJ need not have credited this subjective symptoms 15 testimony as satisfying step two. See Ducey, 2020 WL 5231494, at *4 (plaintiff’s own statement 16 of symptoms alone is insufficient to establish severity). But even assuming some error, the court 17 sees no prejudice to plaintiff, given that the ALJ decided step two in plaintiff’s favor and went on 18 to consider these symptoms and plaintiff’s retinopathy when formulating the RFC. (AT 32, 33, 19 34-35.) See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (failure to identify impairment as 20 severe at step two is harmless where the ALJ considers any limitations posed by the impairment 21 at step four). That the RFC the ALJ ultimately assigned did not include accommodations or 22 exceptions related to plaintiff’s eye condition and surrounding symptoms does not mean—as 23 plaintiff argues—that there was harmful error. It simply reflects the ALJ’s reasonable view that 24 the record evidence did not establish any work-related limitations arising from plaintiff’s present 25 condition. See Buck, 869 F.3d at 1049 (“The RFC . . . should be exactly the same regardless of 26 whether certain impairments are considered ‘severe’ or not.”). The court finds no reversible error 27 in the ALJ’s step two findings. 28 /// 1 B. Hypothetical Question to VE 2 Legal Standard 3 An ALJ may pos e a range of hypothetical questions to a vocational expert (“VE”), based 4 on alternate interpretations of the evidence. However, the hypothetical that ultimately serves as 5 the basis for the ALJ’s determination, i.e., the hypothetical that is predicated on the ALJ’s final 6 RFC determination, must account for all of the limitations and restrictions of the particular 7 claimant that are supported by subs tantial evidence in the record as a whole. Bray v. Comm’r of 8 Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“If an ALJ’s hypothetical does not reflect 9 all of the claimant’s limitations, then the expert’s testimony has no evidentiary value to support a 10 finding that the claimant can perform jobs in the national economy.” (citation and quotation 11 marks omitted)). However, the ALJ “is free to accept or reject restrictions in a hypothetical 12 question that are not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 13 (9th Cir. 2006). 14 Analysis 15 As a continuation of her step-two argument, plaintiff contends in a single paragraph that 16 the ALJ harmfully erred by failing to account for her diabetic retinopathy in the RFC presented to 17 the VE at the hearing. (ECF No. 24 at 26) Specifically, plaintiff objects that the RFC presented 18 in the hypothetical to the VE (and indeed the ultimate RFC) contained “no vision limitations 19 regarding pain, sensitivity to light, [or] chronic oozing infection, specific to diabetic retinopathy.” 20 (Id.) As discussed above, the ALJ did not err by omitting from the RFC—or the VE 21 hypothetical—limitations related to these symptoms, given that substantial evidence supported 22 her view that these symptoms did not limit plaintiff’s work-related abilities. See Rollins v. 23 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“Because the ALJ included all of the limitations 24 that he found to exist, and because his findings were supported by substantial evidence, the ALJ 25 did not err in omitting the other limitations that [claimant] had claimed, but failed to prove.”). 26 /// 27 /// 28 /// 1 C. The ALJ’s RFC Finding 2 Plaintiff next argues that substantial evidence does not support the ALJ’s “medium” RFC 3 because the ALJ ignored e vidence that “the combination of [plaintiff’s] multiple impairments 4 render her fatigued and weakened, such that she would not have the strength to sustain the 5 rigorous work requirements of medium work . . . .” (ECF No. 24 at 27.) In aid of this argument, 6 plaintiff cites a handful of scattered medical records from soon after her amended alleged onset 7 date of December 31, 2012—and se veral preceding that date. 8 First, the ALJ was not required to discuss the cited medical records predating 9 December 31, 2012, especially given the August 2014 uncontested denial of her prior disability 10 claim covering the same period. (AT 34 (ALJ describing as “not relevant” medical records prior 11 to onset date); see Green v. Berryhill, 731 F. App’x 596, 598 (9th Cir. 2018) (stating that “[t]he 12 ALJ was not required to discuss earlier evidence that was not probative of [plaintiff]’s condition 13 during the relevant time period for this application”). Primarily, plaintiff points to various 14 medical records from late 2013 and mid-2015 purportedly documenting her “fatigue due to 15 diabetes.” (ECF No. 24 at 27.) But these records in fact show only that in August 2013, plaintiff 16 had to be hospitalized after not taking her diabetes medication for two months (AT 653); that in 17 September 2013 she sought care for chest tightness and heaviness that was attributed to panic 18 attacks (AT 638, 670-71); that in December 2013, she was diagnosed with poorly controlled 19 diabetes with diabetic retinopathy (AT 719); and that in May 2015 she was admitted to the 20 emergency room after battling a viral or bacterial infection for a week (AT 940-41). The fact that 21 some of these treatment notes recorded plaintiff’s complaints of tiredness and weakness is 22 unsurprising, given that most of these records arose when treating plaintiff’s acute conditions. 23 And none of these notations suggest that plaintiff was limited for any extended duration by her 24 reported weakness. 25 Plaintiff also argues that the ALJ overlooked evidence of plaintiff’s limited mobility but 26 cites only a single period-relevant record of plaintiff’s emergency room treatment for swollen feet 27 in October 2015. (ECF No. 24 at 28 (citing AT 1010); ECF No. 30 at 5.) Citing this one 28 assessment of plaintiff’s “mild” “situational edema” of the feet—for which she described no pain 1 or distress, and was discharged with a “steady gait”—does nothing to undermine the ALJ’s 2 otherwise supported RFC finding.5 (AT 1008, 1010-12.) 3 In sum, plaintiff f a ils to show that substantial evidence does not support the ALJ’s 4 assignment of a medium RFC. 5 D. Plaintiff’s Subjective-Symptom Testimony 6 Legal Standard 7 In evaluating a claimant’s re port of his or her symptoms, the Ninth Circuit has established 8 the following two-step analysis: 9 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be 10 expected to produce the pain or other symptoms alleged. In this analysis, the claimant is not required to show that her impairment could reasonably be 11 expected to cause the severity of the symptom she has alleged; she need only 12 show that it could reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, 13 or the severity thereof. 14 If the claimant satisfies the first step of this analysis, and there is no evidence of 15 malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. 16 This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases. 17 18 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 19 1014-15 (9th Cir. 2014)). A claimant’s statements of subjective symptoms alone is insufficient 20 grounds to establish disability. 20 C.F.R § 404.1529(a). If an ALJ was required to believe every 21 allegation of pain or impairment, disability benefits would run afoul of the Social Security Act 22 /// 23 5 Plaintiff also argues in a footnote in her reply brief that the RFC should have accounted for 24 plaintiff’s light sensitivity and eye pain. (See ECF No. 30 at 4 n.3 (citing 2011 and 2012 emergency room visits for left eye conjunctivitis and chest pain).) To the extent this argument is 25 adequately raised, it is rejected for the same reasons discussed above: the ALJ considered the evidence of these symptoms and simply found them nonlimiting. 26 27 In addition, the court does not address plaintiff’s argument—raised for the first time in her reply brief—that the RFC improperly omitted the standing and walking limitations to which she 28 testified at the hearing. (See id. at 5.) 1 and its purpose. See Treichler v. Comm’r of SSA, 775 F.3d 1090, 1106 (9th Cir. 2014). 2 The ALJ’s reasons for discounting or rejecting a claimant’s subjective symptom testimony 3 must be “sufficiently spe c ific to allow a reviewing court to conclude the adjudicator . . . did not 4 arbitrarily discredit a claimant’s testimony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th 5 Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). This requires the 6 ALJ to “specifically identify the testimony [from a claimant] she or he finds not to be credible 7 and . . . explain what evidence unde rmines that testimony.” Treichler, 775 F.3d at 1102. 8 Examples of “specific, clear and convincing reasons” for discounting or rejecting a claimant’s 9 subjective symptom testimony include: the effectiveness of or noncompliance with a prescribed 10 regime of medical treatment, inconsistencies between a claimant’s testimony and their conduct 11 (including daily activities), and whether the alleged symptoms are consistent with the medical 12 evidence of record. See Tommasetti, 533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 13 1040 (9th Cir. 2007). A lack of corroborating, objective medical evidence alone is insufficient 14 grounds to discount a claimant’s subjective symptoms; however, it is a factor the ALJ may 15 consider. 20 C.F.R § 404.1529(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 16 Analysis 17 Here, the ALJ first summarized plaintiff’s written subjective symptom reports and 18 testimony regarding her symptoms and daily activities provided at the November 2017 hearing. 19 (AT 32-33.) Before reviewing the objective medical evidence (AT 34-35), the ALJ included the 20 oft-repeated statement that while plaintiff’s symptoms could reasonably be expected to cause the 21 alleged symptoms, her statements “concerning the intensity, persistence and limiting effects of 22 these symptoms are not entirely consistent with the medical evidence and other evidence in the 23 record.” (AT 34.) Although the ALJ did not clearly enumerate her reasons for discounting the 24 severity of plaintiff’s self-reported symptoms in a single neatly defined portion of the decision, 25 the undersigned finds that the ALJ nevertheless provided sufficiently identifiable “specific, clear 26 and convincing reasons” for only partially crediting plaintiff’s testimony. 27 First, the ALJ explained how the medical evidence did not support the severity of 28 plaintiff’s allegations. (AT 34.) Second, the ALJ noted that plaintiff had received only “routine 1 | and conservative treatment” for her diabetes and neuropathy, including medications, diagnostic 2 | testing, and physical examinations. (AT 34, 35.) Third, the ALJ relied on plaintiffs “extensive 3 | history of noncompliance with follow-up,” as reported in an August 2017 primary care treatment 4 | note describing her as a “no show” for 12 months since July 2016. (AT 34, 35 (citing AT 1216).) 5 | The ALJ explained that the proximity of this noncompliance to the alleged onset date suggested 6 | that plaintiff's impairments were not as severe as alleged “given the lack of consistent treatment.” 7 | (AT 35.) Finally, the ALJ noted plaintiffs “somewhat normal” level of daily activities as 8 | inconsistent with disabling limitations. (AT 32-33.) For these reasons, the ALJ found □□□□□□□□□□□ 9 | subjective complaints “partially credible.” (AT 35.) The court concludes that the ALJ’s analysis 10 || satisfies the Ninth Circuit’s demanding standard. See Tommasetti, 533 F.3d at 1039-40 (that 11 | claimant underwent conservative treatment undermines allegations of disabling impairment); 12 | Carmickle v. Comm’r, 533 F.3d 1155, 1161 (9th Cir. 2008) (noting that though a lack of medical 13 || evidence “cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can 14 | consider”). 15 | V. CONCLUSION 16 In sum, the court concludes that the ALJ’s decision was free from prejudicial legal error 17 | and supported by substantial evidence in the record as a whole. Accordingly, IT IS HEREBY 18 | ORDERED that: 19 1. Plaintiff's motion for summary judgment (ECF No. 24) is DENIED and the final 20 decision of the Commissioner is AFFIRMED; and 21 2. The Clerk of Court shall enter judgment for defendant, and close this case. 22 | Dated: January 28, 2021 3 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 25 26 espi.1789 27 28 12