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

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LORI LYNN KENDALL, Case No. 1:19-cv-01485-SKO 10 Plaintiff, 11 v. O SER CD UE RR I TO YN CP OLA MI PN LT AIF INF’ TS SOCIAL 12 ANDREW SAUL, 13 Commissioner of Social Security, (Doc. 1) 14 Defendant. _____________________________________/ 15 16 17 I. INTRODUCTION 18 On May 6, 2017, Plaintiff Lori Lynn Kendall (“Plaintiff”) filed a complaint under 42 U.S.C. 19 § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the 20 “Commissioner” or “Defendant”) denying her application for Disability Insurance Benefits (“DIB”) 21 under Title II of the Social Security Act (the “Act”). (Administrative Record (“AR”) 568–69; see 22 No. 1:17–cv–00642–SKO, Doc. 1.) On May 8, 2018, the Court vacated the Commissioner’s 23 decision and remanded the case for further administrative proceedings. (See AR 580–603; No. 24 1:17–cv–00642–SKO, Doc. 21.) 25 After the Commissioner again denied her application for DIB payments, Plaintiff filed the 26 instant complaint on October 21, 2019, seeking judicial review of the Commissioner’s decision. 27 (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which were submitted, 28 1 without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 2 II. BACKGROUND 3 On May 22, 2013, Plaintiff filed an application for DIB payments, alleging that she became 4 disabled on March 18, 2013, due to chronic fatigue syndrome (“CFS”) and fibromyalgia. (AR 20, 5 74, 197, 209, 470.) Plaintiff was born on May 30, 1963, and was 49 years old on the alleged onset 6 date. (AR 74, 89, 197.) She has a high school education and past work experience as a medical 7 receptionist and an x-ray operator. (AR 26, 30–31, 184, 200, 210, 364.) 8 A. Relevant Medical Evidence2 9 1. Treating Physician Rex A. Adams, M.D. 10 On March 15, 2013, Plaintiff presented to rheumatologist Dr. Adams for a self-referred 11 rheumatology examination. (AR 310–12.) Plaintiff reported her symptoms of fatigue and poor 12 mental focus had been worsening over the last 18 months. (AR 310.) She complained of cold 13 symptoms, headache, sore throat, cervical lymphadenopathy, and increasing joint and muscle pain 14 in her neck, shoulders, low back, and legs. (AR 310.) Dr. Adams “[s]uggest[ed]” two months of 15 medical disability for Plaintiff beginning on March 18, 2013. (AR 312.) On May 7, 2013, Dr. 16 Adams extended disability to July 21, 2013. (AR 302.) On July 9, 2013, Dr. Adams again extended 17 disability for an additional six months. (AR 370.) 18 2. Treating Physician Michael Powell, D.O. 19 Upon relocation of Dr. Adams (AR 54–55), Plaintiff established care with Dr. Powell, a 20 rheumatologist, on October 31, 2013. (AR 241, 461.) On August 6, 2015, Dr. Powell completed a 21 “Questionnaire” on Plaintiff’s behalf. (AR 464–65.) He opined that Plaintiff’s medical problems 22 precluded her from performing “any full-time work at any exertional level, including the sedentary 23 level.” (AR 464.) He noted Plaintiff had muscular pain for greater than 12 months. (AR 464.) Dr. 24 Powell stated that Plaintiff’s primary impairment was “[s]evere fatigue with pain” and “decreased 25 cognitive function.” (AR 464.) He based his opinion on “[s]ymptoms consistent with 26 [f]ibromyalgia,” specifically that Plaintiff had 13 of 19 “pain points” and was therefore positive for 27 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8.) 28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 a fibromyalgia diagnosis. (AR 464.) Dr. Powell opined that Plaintiff could sit and stand for one 2 hour and walk for thirty minutes during an eight-hour day and was required to lie down for two 3 hours during an eight-hour day. (AR 464.) Dr. Powell further opined that Plaintiff was “[u]nable 4 to multi-task due to cognitive dysfunction.” (AR 464.) 5 3. Stanford Hospital and Clinics 6 Plaintiff was referred to Stanford to be evaluated for CFS/myalgic encephalomyelitis and 7 presented for an assessment on October 21, 2014. (AR 390–93.) Plaintiff attended a follow-up 8 appointment on February 10, 2015. (AR 407–11.) Aimee Jadav, a physician’s assistant (“PA”), 9 noted that Plaintiff “should not be pushed into activities that worsen [her] symptoms,” such as 10 “[m]isdirected exercise” and major stressors. (AR 410–11.) 11 On September 25, 2015, Jane Norris, PA-C, submitted a letter stating that Plaintiff “meets 12 the clinical criteria for Chronic Fatigue and Immune Dysfunction Syndrome.” (AR 466.) PA Norris 13 opined that “[u]ntil [Plaintiff’s] symptoms have measurably improved, I recommend that she limit 14 her workload, daily activities and stress, as overexertion could lead to a worsening of her condition.” 15 (AR 466.) 16 On February 22, 2016, Kathleen Vigano, PA-C, submitted a letter stating that Plaintiff 17 “meets the clinical criteria for Chronic Fatigue Syndrome (CFS) / Myalgic Encephalomyelitis 18 (ME).” (AR 745.) PA Vigano “recommended[ed] against [Plaintiff] entering the work force, as 19 she is physically and cognitively unable to do so; and the attempt would worsen her current 20 condition.” (AR 745.) 21 4. Family First Medical Care 22 On February 7, 2017, Plaintiff presented to Family First Medical Care with a cough. (AR 23 791.) Plaintiff denied any fatigue or muscle pain, and on physical examination, Elisa Martinez, PA, 24 observed that Plaintiff was cooperative, alert and oriented, and had normal judgment and insight. 25 (AR 791–92.) On March 8, 2017, Plaintiff complained of a sore throat, and on examination, PA 26 Martinez made similar findings. (AR 789–90.) 27 On March 13, 2017, Plaintiff appeared for a follow-up appointment for her sinus infection. 28 (AR 786.) She reported fatigue and denied pain, anxiety, depression, joint and muscle pain, 1 tenderness, and back pain. (AR 786–87.) PA Martinez found Plaintiff to be cooperative and alert 2 and oriented, with normal insight, judgment, attention span, and concentration. (AR 787.) 3 On April 14, 2017, Plaintiff received care for a respiratory infection. (AR 783.) She denied 4 fatigue, muscle pain, or tenderness, and she was found to have normal mental status. (AR 784.) 5 Treatment notes from subsequent appointments for illness in May 2017 were largely unchanged. 6 (AR 777–78, 780–81.) 7 On June 12, 2018, Plaintiff presented for transitional care related to her fibromyalgia. (AR 8 770.) Plaintiff reported fatigue and joint and muscle pain. (AR 771.) PA Martinez found Plaintiff 9 to be cooperative and alert and oriented. (AR 771–72.) 10 On January 30, 2019, Plaintiff had a follow-up appointment for her depression medication. 11 (AR 767.) Plaintiff reported pain. (AR 768.) 12 5. Stephanie M. Pizzirulli, D.C. 13 On March 21, 2019, Dr. Pizzirulli, a chiropractor, submitted a letter on Plaintiff’s behalf. 14 (AR 805–06.) Dr. Pizzirulli indicated that Plaintiff “does work off and on trying to get by . . . [b]ut 15 is unable to work a 40 hour per week job,” and that Plaintiff could not “sit or stand too long, without 16 pain in the spine becoming unbearable.” (AR 805.) Dr. Pizzirulli opined that Plaintiff was “very 17 limited in what she can do and can’t do” and “need[ed] help.” (AR 806.) 18 6. Consultative Examiner Paul Martin, Ph.D. 19 On October 2, 2013, Dr. Martin, a licensed psychologist, reviewed Dr. Adams’ treatment 20 notes and medical source statement and conducted a mental status evaluation of Plaintiff at the 21 request of the Department of Social Services. (AR 363–65.) Dr. Martin observed that Plaintiff was 22 alert and oriented and had: adequate attention/concentration, memory, and abstraction; a fair fund 23 of knowledge; normal insight/judgment and thought content; and an organized, coherent, linear, and 24 goal-directed thought process. (AR 364.) Plaintiff was diagnosed with major depressive disorder, 25 recurrent (moderate), and a pain disorder associated with both psychological factors and a general 26 medical condition. (AR 365.) Dr. Martin also assessed Plaintiff’s mental residual functional 27 28 1 capacity (“RFC”)3 and opined that Plaintiff had no impairment to her ability to understand, 2 remember, and carry out simple instructions; mild impairment to her ability to understand, 3 remember, and carry out detailed and complex instructions, maintain attention, concentration, and 4 pace throughout the current evaluation, endure the stress of the current interview, and interact with 5 the public, supervisors, and coworkers in a work setting; and moderate impairment to her ability to 6 maintain pace and persistence throughout the evaluation and adapt to changes in routine work- 7 related settings. (AR 365.) 8 7. Consultative Examiner Satish K. Sharma, M.D. 9 On September 20, 2018, Dr. Sharma performed an internal medicine evaluation of Plaintiff. 10 (AR 748–51.) Plaintiff told Dr. Sharma that she does not use any drugs. (AR 749.) Dr. Sharma 11 assessed Plaintiff’s physical RFC and opined that Plaintiff could push, pull, lift, and carry 20 pounds 12 occasionally and 10 pounds frequently and walk and/or stand for six hours out of an eight-hour 13 workday with appropriate breaks. (AR 750.) Dr. Sharma further opined that Plaintiff had no 14 manipulative or postural limitations. (AR 750–51.) 15 8. Consultative Examiner Patricia Spivey, Psy.D. 16 On September 22, 2018, Dr. Spivey performed a psychological disability assessment of 17 Plaintiff. (AR 759–65.) Plaintiff told Dr. Spivey that she uses marijuana daily for pain and 18 insomnia. (AR 759.) Dr. Spivey assessed Plaintiff with pain disorder with psychological factors. 19 (AR 761.) Dr. Spivey noted that, “by presentation,” Plaintiff did not have severe symptoms of any 20 psychological condition, nor was there any sign of a thought or mood disorder. (AR 761.) Dr. 21 Spivey also assessed Plaintiff’s mental RFC and opined that Plaintiff had no impairment to her 22 ability follow simple or complex instructions, maintain adequate pace or persistence to complete 23 simple or complex tasks, maintain adequate attention/concentration, verbally communicate 24 25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours a day, for five days a week, or an equivalent work schedule. 26 TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions 27 that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 effectively with others, and communicate effectively in writing; mild impairment to her ability to 2 withstand the stress of a routine work day and interact appropriately with co-workers, supervisors, 3 and the public on a daily basis; and mild-to-moderate impairment to her ability to maintain emotion 4 stability/predictability and respond appropriately to usual work situations and changes in a routine 5 work setting. (AR 761, 764.) 6 9. State Agency Physicians 7 On September 16, 2013, Martha A. Goodrich, M.D., a state agency physician, reviewed the 8 record and assessed Plaintiff’s physical RFC. (AR 79–80, 82–83.) Dr. Goodrich found that Plaintiff 9 could: occasionally lift and/or carry 20 pounds and frequently 10 pounds; stand and/or walk for 10 about six hours in an eight-hour workday; sit for more than six hours in an eight-hour workday; 11 perform unlimited pushing/pulling with the upper and lower extremities, subject to the lift and carry 12 restrictions; occasionally climb, kneel, crouch, and crawl; and frequently balance and stoop. (AR 13 82–83.) Dr. Goodrich found that Plaintiff had no other limitations. (AR 83.) Upon reconsideration 14 on March 7, 2014, another state agency physician, A. Nasrabadi, M.D., reviewed the record and 15 affirmed Dr. Goodrich’s findings. (AR 96–98.) 16 State agency physician H. Amado, M.D., reviewed the record and assessed Plaintiff’s mental 17 RFC on October 18, 2013. (AR 79–80, 83–85.) Dr. Amado opined that Plaintiff had the severe 18 impairments of affective disorder and somatoform disorder, and had moderate difficulties in 19 maintaining concentration, persistence, and pace, and responding appropriately to changes in the 20 work setting. (AR 80.) Dr. Amado opined further that Plaintiff could maintain concentration, 21 persistence, and pace for only simple tasks. (AR 84.) Upon reconsideration on March 3, 2014, 22 another state agency physician, G. Ikawa, M.D., reviewed the record and affirmed Dr. Amado’s 23 findings. (AR 94–95, 98–99.) 24 B. Administrative Proceedings 25 1. Plaintiff’s Testimony 26 At the first administrative hearing on August 17, 2015, Plaintiff appeared with counsel and 27 testified before the Administrative Law Judge (“ALJ”) as to her alleged disabling conditions. (AR 28 44–64.) Plaintiff testified that her primary physical problem is fibromyalgia and she also has major 1 anxiety and depression. (AR 46–48.) She was seeing a mental health professional until her 2 insurance “ran out.” (AR 48.) 3 Plaintiff testified that the long drives to Stanford Medical Center for her treatment would 4 make her “really sick.” (AR 55–56.) Sitting in the car for long periods causes her problems 5 “anxiety-wise” but not physical “pain-wise.” (AR 56, 57.) When Plaintiff gets anxious, she cannot 6 concentrate, focus, or remember anything. (AR 57.) Plaintiff testified that her fibromyalgia causes 7 her pain in her shoulders, neck, and back, and she also gets “bad” headaches. (AR 57.) Other 8 symptoms include brain fog and exhaustion. (AR 58, 59.) According to Plaintiff, she must lie down 9 for two to four hours each day. (AR 60.) She can use her hands for only about thirty minutes before 10 she needs to rest them for about fifteen minutes before using them again. (AR 61.) Plaintiff stated 11 that she can perform light house activities and she drives every day. (AR 50–51.) 12 On remand, the ALJ held another hearing on April 10, 2019. (AR 498–537.) Plaintiff 13 testified that she started working as a paraprofessional—an aide to teachers—for Modesto City 14 Schools in 2016. (AR 503, 505.) Her duties include helping feed “handicapped” children, assisting 15 them with their assignments, supervising them during physical education, and checking out books 16 to them in the library. (AR 508–09.) On average, Plaintiff works about three days a week, for about 17 five hours a day if she is in a classroom. (AR 507.) Her pay averages to $12.77 per hour, and she 18 made $11,681 in 2017 and $13,278 in 2018. (AR 506–07.) 19 Plaintiff believes she is disabled because she is “sick” and “exhausted” when she is at work. 20 (AR 510.) Plaintiff testified that she experiences nausea, headaches, pain in her shoulder, neck, and 21 back, brain fog, and heart palpitations. (AR 510–11.) She is sensitive to noise. (AR 510–11.) 22 Plaintiff’s anxiety makes it difficult for her to concentrate. (AR 513–14.) According to Plaintiff, 23 she can sit or stand for about thirty minutes at a time, walk for a few blocks, and lift no more than 24 eight pounds. (AR 514.) Plaintiff can handle her own personal self-care, and she cooks, cleans, and 25 goes grocery shopping. (AR 514–15.) She enjoys arts and crafts and watching movies. (AR 515, 26 516–17.) 27 With regard to her medical treatment, Plaintiff testified that she was “getting excellent care” 28 from the specialty clinic at Stanford until she “lost [her] work insurance.” (AR 512.) She is no 1 longer seeing a specialist. (AR 512.) To alleviate her headaches, Plaintiff sees a chiropractor. (AR 2 512.) Plaintiff is not receiving any regular mental health treatment because her insurance does not 3 cover it. (AR 513.) As for medications, Plaintiff takes Trazadone for sleep, Zoloft for anxiety and 4 depression, and over-the-counter medications for pain. (AR 513.) 5 2. Vocational Expert’s Testimony 6 At the April 2019 hearing, a Vocational Expert (“VE”) indicated that Plaintiff had the 7 following past work: as a receptionist, Dictionary of Operational Titles (“DOT”) code 237-367.038, 8 which was sedentary exertional work, with a specific vocational preparation (“SVP”)4 of 4; and as 9 an x-ray operator, DOT code 199.361-010, light, SVP of 5. (AR 528–29.) The ALJ asked the VE 10 to consider a person of Plaintiff’s age, education, and work background and assume the person could 11 perform light work with the following limitations: occasionally climb, balance, stoop, kneel, crouch, 12 and crawl; and limited to working in moderately noisy environments. (AR 529–30.) The VE 13 testified such a person could perform Plaintiff’s past relevant work. (AR 530.) 14 The ALJ asked a follow-up question regarding a second hypothetical where the worker from 15 the first hypothetical had the following additional limitations: understanding, remembering, and 16 carrying out simple, routine, and repetitive tasks; using judgment limited to simple work-related 17 decisions; unable to perform any “production rate pace, meaning assembly line work”; and able to 18 perform goal or task-oriented work. (AR 530.) The VE testified that such a person could not 19 perform Plaintiff’s past relevant work but could perform other light jobs in the national economy, 20 such as fundraiser II, DOT code 293.357-014, SVP 2, information clerk, DOT code 237.367-018, 21 SVP 2, and survey worker, DOT code 205.367-054, SVP 2. (AR 530–31.) 22 C. The ALJ’s Decision 23 In a decision dated June 28, 2019, the ALJ found that Plaintiff was not disabled, as defined 24 by the Act. (AR 470–91.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 25 § 416.920. (AR 472–91.) At step one, the ALJ determined that Plaintiff had engaged in substantial 26 4 Specific vocational preparation, as defined in the DOT, App. C, is the amount of lapsed time required by a typical 27 worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest 1 gainful activity from October 2017 to December 2017 and October 2018 to December 2018. (AR 2 472–73.) There had been, however, “a continuous 12-month period(s)” since the alleged onset date 3 of March 18, 2013 during which Plaintiff did not engage in substantial gainful activity, and the 4 ALJ’s remaining findings addressed those periods. (AR 473.) At step two, the ALJ found Plaintiff’s 5 following impairments to be severe: fibromyalgia; CFS and headaches. (AR 473.) The ALJ further 6 found, however, that Plaintiff had only mild limitations in the four areas mental functioning (also 7 known as the “Paragraph B” criteria): understanding, remembering, or applying information; 8 interacting with others; adapting or managing oneself; and concentrating, persisting, or maintaining 9 pace.5 (AR 473, 479.) See 20 C.F.R. Part 404, Subpart P, Appendix 1. Accordingly, the ALJ found 10 that “[b]ecause [Plaintiff’s] medically determinable mental impairments [of anxiety and depression] 11 cause no more than ‘mild’ limitation in any of the functional areas, they are nonsevere.” (AR 479 12 (citing 20 C.F.R. § 404.1520a(d)(1).) Moreover, Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled one of the listed impairments in 20 14 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 479.) 15 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 16 five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your 17 residual functional capacity . . . . We use this residual functional capacity assessment at both step 18 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 19 had the RFC: 20 to perform light work as defined in 20 CFR [§] 404.1567(b) except she can occasionally climb ramps, stairs, ladders, or scaffolds. She can occasionally balance, 21 stoop, kneel, crouch or crawl. She is limited to work in moderately noisy environments. 22 23 24 5 The Court notes that the ALJ, in listing his findings as to each of the four areas of mental functioning, stated that he 25 found mild limitations in understanding, remembering, or applying information, interacting with others, and adapting or managing oneself, and “moderate limitation in concentrating, persisting, or maintaining pace.” (AR 479, emphasis 26 added.) Given the ALJ’s other statements in his opinion—that he found “no more than mild limitations” in the four areas of mental functioning (AR 473) and that Plaintiff’s mental impairments “cause no more than ‘mild’ limitation in 27 any of the functional areas” (AR 479)—and the ALJ’s explicit rejection of Dr. Martin’s opinion that Plaintiff’s ability to maintain pace and persistence was moderately impaired (AR 477), the Court assumes that the ALJ intended to find 28 mild limitations to the four areas of mental functioning and made a typographical error in writing “moderate” when he 1 (AR 479.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 2 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not fully 3 supported.” (AR 487.) The ALJ found that, based on the RFC assessment, Plaintiff retained the 4 capacity to perform her past work as a receptionist and an x-ray operator and thus was not disabled 5 (step four). (AR 491.) 6 As Plaintiff did not file exceptions with the Appeals Council disagreeing with the ALJ’s 7 decision, and the Appeals Council did not otherwise assume jurisdiction of the case within 60 days 8 of the decision, the ALJ’s decision became the final decision of the Commissioner. 20 C.F.R. § 9 404.984(b)(1), (d); Lopez-Frausto v. Saul, No. 1:20–CV–1611–JLT, 2020 WL 6728196, at *3 (E.D. 10 Cal. Nov. 16, 2020) (“If no exceptions are filed and the Appeals Council does not assume 11 jurisdiction within 60 days of the decision, the ALJ’s new decision becomes the final decision of 12 the Commissioner after remand.”). 13 III. LEGAL STANDARDS 14 A. Applicable Law 15 An individual is considered “disabled” for purposes of disability benefits if she is unable “to 16 engage in any substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or can be expected 18 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 19 “[a]n individual shall be determined to be under a disability only if [her] physical or mental 20 impairment or impairments are of such severity that [s]he is not only unable to do [her] previous 21 work but cannot, considering [her] age, education, and work experience, engage in any other kind 22 of substantial gainful work which exists in the national economy.” Id. at § 423(d)(2)(A). 23 “In determining whether an individual’s physical or mental impairment or impairments are 24 of a sufficient medical severity that such impairment or impairments could be the basis of eligibility 25 [for disability benefits], the Commissioner “is required to “consider the combined effect of all of 26 the individual’s impairments without regard to whether any such impairment, if considered 27 separately, would be of such severity.” Id. § 423(d)(2)(B). For purposes of this determination, “a 28 ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or 1 psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory 2 diagnostic techniques.” Id. § 423(d)(3). 3 “The Social Security Regulations set out a five-step sequential process for determining 4 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 5 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 6 Ninth Circuit has provided the following description of the sequential evaluation analysis: 7 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 8 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 9 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 10 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of 11 performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 12 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 13 14 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also 20 C.F.R. § 416.920(a)(4) (providing 15 the “five-step sequential evaluation process”). “If a claimant is found to be ‘disabled’ or ‘not 16 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 17 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 18 “The claimant carries the initial burden of proving a disability in steps one through four of 19 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 20 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden 21 shifts to the Commissioner in step five to show that the claimant can perform other substantial 22 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 23 B. Scope of Review 24 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 25 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 26 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such 27 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 28 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 1 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 2 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 3 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 4 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 5 only if that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell 6 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s 7 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., 8 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more 9 than one rational interpretation, the court may not substitute its judgment for that of the 10 Commissioner.” (citations omitted)). 11 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 12 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 13 determine whether the Commissioner applied the proper legal standards and whether substantial 14 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 15 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply 16 by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa 17 v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a 18 whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 19 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 20 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 21 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 22 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 23 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti 24 v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 25 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon the 26 party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) 27 (citations omitted). 28 /// 1 IV. DISCUSSION 2 Plaintiff contends that the ALJ erred in three respects: (1) the ALJ erred in finding at step 3 two that Plaintiff’s mental impairments associated with her fibromyalgia and CFS were not severe 4 and in failing to include any mental limitations in the RFC; (2) the ALJ’s RFC assessment that 5 Plaintiff can perform light work with no mental limitations is not supported by substantial evidence; 6 and (3) the ALJ failed to articulate valid reasons for discounting Plaintiff’s testimony regarding her 7 subjective complaints and other lay evidence. (See Doc. 17 at 17–36; Doc. 22 at 2–5.) The Court 8 addresses each argument in turn, and, for the reasons explained below, concludes that the ALJ did 9 not err. 10 A. The ALJ Reasonably Determined That Plaintiff’s Mental Impairments Were Non- Severe at Step Two and Did Not Err in Excluding Mental Limitations From the RFC 11 1. Legal Standard 12 13 “At step two of the five-step sequential inquiry, the Commissioner determines whether the 14 claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 80 15 F.3d 1273, 1289–90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987)). “[A]t 16 the step two inquiry, . . . the ALJ must consider the combined effect of all of the claimant’s 17 impairments on her ability to function, without regard to whether each alone was sufficiently 18 severe.” Id. at 1290 (citing 42 U.S.C. § 423(d)(2)(B) and TITLES II & XVI: THE SEQUENTIAL 19 EVALUATION PROCESS, Social Security Ruling (“SSR”) 86-8 (S.S.A. 1986)). 20 “[A]n impairment is not severe if it does not significantly limit [the claimant’s] . . . ability 21 to do basic work activities.” Smolen, 80 F.3d at 1290 (citing 20 C.F.R. §§ 404.1520(c) & 22 404.1521(a)). “[B]asic work activities are the abilities and aptitudes necessary to do most jobs.” 23 TITLES II & XVI: MED. IMPAIRMENTS THAT ARE NOT SEVERE, SSR 85-28 (S.S.A. 1985). Examples 24 of “basic work activities” include (1) “[p]hysical functions such as walking, standing, sitting, lifting, 25 pushing, pulling, reaching, carrying, or handling,” (2) “[c]apacities for seeing, hearing, and 26 speaking,” (3) “[u]nderstanding, carrying out, and remembering simple instructions,” (4) “[u]se of 27 judgment,” (5) “[r]esponding appropriately to supervision, co-workers and usual work situations,” 28 and (6) “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922(b). 1 “An impairment or combination of impairments can be found ‘not severe’ only if the 2 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an [individual’s] 3 ability to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85–28). Additionally, “an ALJ may find 4 that a claimant lacks a medically severe impairment or combination of impairments only when his 5 conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th 6 Cir. 2005) (citing SSR 85–28); cf. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (finding 7 that the claimant “failed to meet his burden of establishing disability” where “none of the medical 8 opinions included a finding of impairment, a diagnosis, or objective test results”). 9 “Great care should be exercised in applying the not severe impairment concept.” SSR 85– 10 28. “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the effect 11 of an impairment or combination of impairments on the individual’s ability to do basic work 12 activities, the sequential evaluation should not end with the not severe evaluation step.’” Webb, 433 13 F.3d at 687 (alteration in original) (quoting SSR 85–28). 14 Ultimately, “[t]he severity regulation increases the efficiency and reliability of the evaluation 15 process by identifying at an early stage those claimants whose medical impairments are so slight 16 that it is unlikely they would be found to be disabled even if their age, education, and experience 17 were taken into account.” Yuckert, 482 U.S. at 153. In other words, “the step-two inquiry is a de 18 minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290 (citing Yuckert, 19 482 U.S. at 153–54). Nonetheless, “[t]he plaintiff has the burden of establishing the severity of the 20 impairment.” Cookson v. Comm’r of Soc. Sec., No. 2:12–cv–2542–CMK, 2014 WL 4795176, at *2 21 (E.D. Cal. Sept. 25, 2014) 22 2. Analysis 23 Plaintiff contends the ALJ erred in determining that her mental impairments associated with 24 her CFS and fibromyalgia were non-severe because the ALJ improperly rejected the opinions of 25 examining psychologists Drs. Spivey and Martin.6 (See Doc. 17 at 19–20.) According to Plaintiff, 26 6 Plaintiff also notes that the ALJ discounted the state agency psychiatrists’ opinions, but she does not specifically 27 contest any of the reasons provided by the ALJ for doing so. (See Doc. 17 at 18–19, 20.) To the extent that Plaintiff is claiming that the ALJ erroneously rejected the state agency psychiatrists’ opinions, the Court finds that the claim has 28 been waived. See Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood 1 “there is no psychiatric support for the ALJ’s exclusion of any mental limitations from his [RFC] 2 finding,” and “[t]he ALJ simply disagreed with the psychiatrists’ and psychologists’ opinions and 3 relied on his lay interpretation of the psychiatric evidence.” (See Doc. 17 at 20–21.) 4 In making this claim, however, Plaintiff fails to acknowledge that the ALJ actually assigned 5 “significant weight” to the majority of Drs. Spivey’s and Martin’s opinions, and the ALJ’s findings 6 of mild limitations to Plaintiff’s mental functioning are largely consistent with those opinions. (AR 7 477, 478–79.) Indeed, Dr. Martin opined that Plaintiff had mild impairment to her ability to 8 understand, remember, and carry out detailed and complex instruction, maintain attention and 9 concentration, maintain pace, and interact with the public, supervisors, and coworkers in a work 10 setting; and Dr. Spivey opined that Plaintiff had no impairment to her ability to understand, 11 remember, and carry out complex instructions and maintain attention, concentration, pace, or 12 persistence, and mild impairment to her ability to withstand the stress of a routine work day and 13 interact with the public, co-workers, and supervisors. (AR 365, 761, 764.) 14 The portions of Drs. Martin’s and Spivey’s opinions discounted by the ALJ were their 15 findings of moderate impairments. Specifically, the ALJ rejected Dr. Martin’s opinion that Plaintiff 16 had moderate impairment to her ability to maintain pace and persistence and adapt to changes in 17 routine work-related settings, and the “moderate” portion of Dr. Spivey’s opinion that Plaintiff had 18 a mild-to-moderate impairment in her ability to maintain emotional stability/predictability at work 19 and respond appropriately to work situations and changes.7 (AR 365, 478–79, 761, 764.) The Court 20 finds that the ALJ did not err in discounting these opinions. 21 The weight given to medical opinions depends in part on whether they are proffered by 22 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201– 23 02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, a treating 24 physician’s opinion carries more weight than an examining physician’s opinion, and an examining 25 and distinctly in a party’s opening brief”); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments 26 not raised by a party in its opening brief are deemed waived.”) 7 The Court notes that Dr. Spivey indicated a mild-to-moderate impairment to Plaintiff’s ability to respond appropriately 27 to usual work situations and changes in a routine work setting on the checkbox portion of her medical source statement. (AR 764.) In the report section of her opinion, however, Dr. Spivey indicated that Plaintiff had no impairment to her 28 ability to adapt to changes in job routine and only mild impairment to her ability to withstand the stress of a routine 1 physician’s opinion carries more weight than a non-examining physician’s opinion. Holohan, 246 2 F.3d at 1202. To evaluate whether an ALJ properly rejected a medical opinion, in addition to 3 considering its source, the court considers whether (1) contradictory opinions are in the record; and 4 (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating 5 or examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830– 6 31. By contrast, a contradicted opinion of a treating or examining professional may be rejected for 7 “specific and legitimate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 8 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830– 9 31. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and 10 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes 11 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 12 a. Dr. Spivey 13 Dr. Spivey’s opinion that Plaintiff had a mild-to-moderate impairment in her ability to 14 maintain emotional stability/predictability at work and respond appropriately to work situations and 15 changes (AR 674) was uncontradicted, so the ALJ was required to provide a clear and convincing 16 reason supported by substantial evidence for rejecting the opinion. Lester, 81 F.3d at 830–31. One 17 reason provided by the ALJ for discounting Dr. Spivey’s opinion was that the finding of a moderate 18 limitation was “not consistent” with Dr. Spivey’s observations from her examination of Plaintiff. 19 (AR 479.) In her report, Dr. Spivey stated, “[b]y presentation, [Plaintiff] d[id] not have severe 20 symptoms of any psychological condition” or any signs of a thought or mood disorder, and Plaintiff 21 was “in no acute distress.” (AR 761.) Thus, the ALJ’s determination that Dr. Spivey’s opinion was 22 inconsistent with her own examination findings was a clear and convincing reason for not relying 23 on her opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that 24 contradictions between a doctor’s opinion and that doctor’s own observations is a clear and 25 convincing reason for discounting the doctor’s opinion). 26 Plaintiff disagrees with the ALJ’s determination that Dr. Spivey’s “clinical findings do not 27 support [her] opinion[]” (see Doc. 17 at 19), but she fails to explain why the evidence cited by the 28 ALJ does not support his conclusion. Instead, Plaintiff asserts that Dr. Spivey’s opinion is 1 corroborated by to the opinions of the state agency physicians—which, the Court notes, were also 2 rejected by the ALJ8—opining, in part, that Plaintiff was moderately limited in her ability to respond 3 appropriately to changes in the work setting, and Plaintiff claims that “[t]his approval by the state 4 agency physicians lends additional support to [Dr. Spivey’s] opinion[].” (See Doc. 17 at 19–20; AR 5 84.) It is well-settled, however, that the ALJ, not the Court, is responsible for determining 6 credibility, resolving conflicts in medical testimony, and resolving ambiguities in the evidence. 7 Magallanes, 881 F.2d at 750. Where “the evidence can reasonably support either affirming or 8 reversing a decision, we may not substitute our judgment for that of the [ALJ].” Garrison v. Colvin, 9 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 10 1995)). Therefore, the Court concludes that the ALJ did not err in discounting Dr. Spivey’s opinion 11 that Plaintiff had a mild-to-moderate adaption limitation.9 12 b. Dr. Martin 13 Dr. Martin opined that Plaintiff was moderately impaired in her ability to maintain pace and 14 persistence and adapt to changes in routine work-related settings. (AR 365.) In affording 15 “[m]inimal weight” to this portion of Dr. Martin’s opinion, the ALJ explained: 16 Dr. Martin examined [Plaintiff] in 2013, and he reviewed only a vendor questionnaire and progress notes from Dr. Adams. He did not have the benefit of reviewing the 17 longitudinal treatment record. It is not clear that her ability to maintain pace and persistence translates to any specific work scenario. It is unclear how he reached this 18 conclusion regarding moderate limitation in these areas, as the mental status examination was normal, other than “fair” fund of knowledge based on [Plaintiff’s] 19 ability to name three of the last five presidents and being tearful at times. 20 (AR 477.) Pointing to Dr. Martin’s findings from his mental status examination of Plaintiff, the 21 ALJ stated that it was “not clear how these findings warrant” moderate limitations. (AR 477.) 22 The ALJ further explained: 23 In terms of the moderate limitation to adapt to changes in routine work-related settings, such a limitation is contradicted by [Plaintiff’s] own testimony regarding 24 her duties at work, which vary, and include helping feed handicap children, supervising their play, helping with homework, or even working in the library and 25 checking out books. Her varied duties show she can in fact adapt to routine change 26 8 As noted above, Plaintiff did not specifically contest the ALJ’s reasons for rejecting the state agency physicians’ 27 opinions in her opening brief, and the Court finds that any such challenge has been waived. 9 In her opening brief, Plaintiff did not specifically address any of the other reasons articulated by the ALJ for 28 discounting Dr. Spivey’s opinion, so Plaintiff has waived any challenge to those reasons. See Smith, 194 F.3d at 1052; 1 2013 and the treatment notes since 2015 note, on numerous occasions, normal mental status. 2 3 (AR 478.) 4 Like Dr. Spivey’s opinion, Dr. Martin’s opinion that Plaintiff is moderately impaired in her 5 ability to adapt to changes in routine work-settings was uncontradicted, so the ALJ was required to 6 provide a clear and convincing reason supported by substantial evidence for rejecting that opinion. 7 Lester, 81 F.3d at 830–31. Although not specifically identified by the ALJ as a basis for its rejection, 8 Dr. Martin’s opinion that Plaintiff was moderately limited in maintaining pace and persistence was, 9 however, contradicted by Dr. Spivey’s opinion that Plaintiff had no impairment in maintaining 10 adequate pace and persistence. (AR 761.) Dr. Martin’s latter opinion could, therefore, be rejected 11 for “specific and legitimate reasons” supported by substantial evidence. Trevizo, 871 F.3d at 675 12 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 13 may . . . reject it by providing specific and legitimate reasons that are supported by substantial 14 evidence.”) (internal quotation marks and citation omitted). 15 The ALJ discounted the moderate limitations opined by Dr. Martin in part because it was 16 “not clear” how those limitations were supported by Dr. Martin’s generally normal findings from 17 his mental status examination of Plaintiff. (AR 477.) For example, Dr. Martin found that Plaintiff 18 was alert and oriented and had adequate attention/concentration, memory, and abstraction, fair fund 19 of knowledge, normal insight/judgment and thought content, and an organized, coherent, linear, and 20 goal-directed thought process. (AR 364.) Dr. Martin also observed that Plaintiff presented in a 21 friendly and cooperative manner during the evaluation and “interacted appropriately.” (AR 364.) 22 Therefore, the ALJ’s determination that Dr. Martin’s opinions were unsupported by his own findings 23 was a valid reason for rejecting the opinion. See Bayliss, 427 F.3d at 1216 (contradictions between 24 a doctor’s opinion and the doctor’s own observations is a clear and convincing reason for 25 discounting the opinion). The Court finds Plaintiff’s contention to the contrary, raised in 26 conjunction with her challenge to the ALJ’s determination as to Dr. Spivey’s opinion (see Doc. 17 27 at 19), to be unavailing for the reasons explained above. 28 Another valid reason proffered by the ALJ for rejecting Dr. Martin’s opinion was that it was 1 not supported by the objective medical record as a whole. (AR 478.) See Tommasetti, 533 F.3d at 2 1041 (determining that an ALJ may reject an opinion upon finding it inconsistent with the medical 3 record). Specifically, the ALJ explained that other medical evidence after Dr. Martin’s October 4 2013 examination showed that Plaintiff had normal mental status on numerous occasions. (AR 5 478.) For example, the ALJ noted, (AR 475), Plaintiff was consistently found to be alert and 6 oriented with normal judgment and insight and appropriate mood and affect at various appointments 7 at Family First Medical Care in 2017 and in June 2018. (AR 771–72, 778, 781, 784, 790, 792.) At 8 an appointment in March 2017, Plaintiff was found to be mentally alert, with normal attention span 9 and concentration. (AR 787.) In September 2018, Dr. Spivey observed that Plaintiff was “alert and 10 fully oriented” and did “not have severe symptoms of any psychological condition” or any sign of 11 a thought or mood disorder. (AR 761.) Although Plaintiff may disagree with the ALJ’s 12 interpretation of the medical evidence (see Doc. 17 at 19–20), this Court may not second-guess the 13 ALJ’s reasonable interpretation of that evidence, even if such evidence could give rise to inferences 14 more favorable to Plaintiff. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing Fair 15 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). 16 With regard to Dr. Martin’s opinion that Plaintiff was moderately impaired in her ability to 17 adapt to changes in routine work-settings, the ALJ also explained that the opinion was contradicted 18 by Plaintiff’s testimony about her duties at work. (AR 478.) An ALJ may discount a medical 19 opinion that is inconsistent with a claimant’s reported functioning, including her work activity. Ford 20 v. Saul, 950 F.3d 1141, 1154–55 (9th Cir. 2020). Plaintiff testified that she has been working as a 21 paraprofessional, assisting teachers, for a few days a week since 2016. (AR 505–09.) Her duties 22 include helping feed “handicapped” children, supervising their play, assisting with homework, and 23 checking out library books. (AR 508–09.) As the ALJ reasonably determined (AR 478), Plaintiff’s 24 demonstrated ability to carry out these varied duties conflicted with Dr. Martin’s opinion that 25 Plaintiff was moderately limited in adapting to changes in routine work settings. This was a clear 26 and convincing reason for rejecting Dr. Martin’s opinion.10 27 10 The ALJ offered two additional reasons for rejecting Dr. Martin’s opined moderate limitations: (1) Dr. Martin “did 28 not have the benefit of reviewing the longitudinal treatment record”; and (2) “[i]t is not clear that [Plaintiff’s] ability to 1 In sum, the Court concludes that the ALJ provided valid reasons for rejecting Drs. Spivey’s 2 and Martin’s opinions of moderate impairments to certain areas of Plaintiff’s mental functioning. 3 Additionally, the Social Security “regulatory scheme . . . does not mandate that the diagnosis of a 4 ‘moderate’ degree of limitation in one’s ability to respond to changes in the workplace setting must 5 be found to be a ‘sever[e]’ mental impairment.” Koehler v. Astrue, 283 F. App’x. 443, 445 (9th Cir. 6 2008). Even assuming that the ALJ should have accepted Drs. Spivey’s and Martin’s uncontradicted 7 opinions that Plaintiff had a mild-to-moderate and moderate limitation, respectively, to her ability 8 to adapt to changes in work settings, it was not error for the ALJ to nonetheless conclude that 9 Plaintiff’s mental impairments were non-severe. See, e.g., Koehler, 283 F. App’x. at 445 (holding 10 that the ALJ’s finding that the claimant lacked a “severe” mental impairment was proper even 11 though claimant had “moderate” limitation in the “ability to respond to changes in the workplace 12 setting”); Graham v. Colvin, No. 14–cv–05666 JRC, 2015 WL 433022, at *4 (W.D. Wash. Feb. 2, 13 2015) (“Contrary to plaintiff’s argument, a ‘moderate’ impairment in one area is not inconsistent 14 with the ALJ’s finding that plaintiff did not have a severe mental impairment that significantly 15 limited her ability to work”). 16 c. The ALJ’s Formulation of Plaintiff’s Mental RFC Was Not Erroneous 17 An ALJ must consider the limiting effect of all impairments, including those that are non- 18 severe, in assessing a claimant’s RFC. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). However, 19 an ALJ is not required to include limitations in the RFC if the record supports a conclusion that the 20 non-severe impairment does not cause a significant limitation in the claimant’s ability to work. See 21 Koshak v. Berryhill, 2018 WL 4519936, at *8 (C.D. Cal. Sept. 19, 2018); Banks v. Berryhill, 2018 22 WL 1631277, at *4 (C.D. Cal. Apr. 2, 2018). So long as the ALJ “actually reviews the record and 23 specifies reasons supported by substantial evidence for not including the non-severe impairment [in 24 be valid. See Gaither v. Colvin, No. CV 12–10933–DTB, 2014 WL 632371, at *3 (C.D. Cal. Feb. 18, 2014) (finding 25 that the ALJ improperly rejected an examining physician’s opinion because it was based on a “one-time physical examination” and the physician “did not have the opportunity to review the longitudinal treatment record”); 20 C.F.R. 26 § 404, Sub. P, App. 1 § 12.00(c)(3) (“Concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work 27 settings.”). But because the ALJ provided other valid reasons for discounting Dr. Martin’s opinion, as discussed above, the Court finds any error to be harmless. Barber v. Astrue, No. 1:10–cv–01432–AWI–SKO, 2012 WL 458076, at *13 28 (E.D. Cal. Feb. 10, 2012) (finding harmless error where the ALJ “stated other valid reasons” for rejecting a physician’s 1 the RFC determination], the ALJ has not committed legal error.” Medlock v. Colvin, 2016 WL 2 6137399, at *5 (C.D. Cal. Oct. 20, 2016); see also McIntosh v. Berryhill, 2018 WL 3218105, at *4 3 (C.D. Cal. June 29, 2018) (because ALJ concluded that mental impairment caused no more than 4 minimal restrictions, there was no requirement to include it in the claimant’s RFC). 5 Here, at step two, the ALJ found that Plaintiff’s mental impairments caused no more than 6 mild limitations to her mental functioning. (AR 473, 479.) The record reflects that the ALJ 7 considered all of the evidence related to Plaintiff’s mental impairments at step four before deciding 8 that inclusion of limitations based on those impairments in the RFC was not warranted. In particular, 9 the ALJ considered the medical opinion evidence and Plaintiff’s testimony about her mental 10 symptoms of brain fog, headaches, fatigue, anxiety, and depression in formulating the RFC.11 (AR 11 480–90.) Furthermore, the ALJ explicitly stated that “additional limitations have been incorporated 12 into the [RFC] determination herein in light of the severe and non-severe impairments.” (AR 487.) 13 Specifically, the ALJ included “[m]oderate noise limits” in the RFC based on Plaintiff’s testimony 14 about her noise sensitivity and headaches. (AR 487.) The ALJ thus did not err in omitting mental 15 limitations in Plaintiff’s RFC. 16 d. Harmless Error Analysis 17 Even assuming the ALJ erred in excluding limitations in the RFC based on Drs. Martin’s 18 and Spivey’s opinions of (mild-to-)moderate impairment to Plaintiff’s ability to maintain pace and 19 persistence and to adapt to changes in routine work-related settings, such error would be harmless 20 given the VE’s testimony. 21 The Ninth Circuit has held that a limitation to “simple, routine, repetitive” work can 22 sufficiently accommodate medical opinion evidence that a claimant has a “moderate” limitation in 23 pace and “other mental limitations regarding attention, concentration, and adaption.” Stubbs- 24 Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 2008). At the April 2019 hearing, the VE 25 was asked about a hypothetical worker with Plaintiff’s education, work experience, RFC determined 26 by the ALJ, and the following additional limitations: understanding, remembering, and carrying out 27 28 11 As explained below, the ALJ did not err in rejecting some of the medical opinions or in finding Plaintiff’s testimony 1 only simple, routine, and repetitive tasks; using judgment limited to simple work-related decisions; 2 and inability to perform any “production rate pace, meaning assembly line work.” (AR 530.) The 3 VE testified that such a person could not perform Plaintiff’s past relevant work but could perform 4 other jobs available in the national economy, such as fundraiser II, information clerk, and survey 5 worker.12 (AR 530–31.) Given the VE’s testimony that Plaintiff could have performed other jobs 6 in the national economy, even accounting for limitations based on moderate impairments to pace 7 and adaption, the alleged error by the ALJ is not prejudicial and inconsequential to the ultimate 8 nondisability determination. See Stout, 454 F.3d at 1055. 9 Therefore, the Court concludes that the ALJ did not harmfully err in his assessment of 10 Plaintiff’s mental RFC. 11 B. The ALJ’s Properly Assessed the Medical Opinion Evidence in Formulating the RFC 12 Plaintiff claims that the ALJ did not properly assess the medical opinion evidence, and thus, 13 the ALJ’s RFC determination that Plaintiff can perform light work without any mental limitations 14 is not supported by substantial evidence. (Doc. 17 at 21–31.) Where, as here, the medical sources 15 in the record conflict regarding Plaintiff’s limitations, it is for the ALJ to determine credibility and 16 resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002). The Court finds 17 that the ALJ did not err in his assessment of the medical opinion evidence. 18 1. Treating Physician Dr. Adams 19 Plaintiff alleges—and the record reflects—that Dr. Adams, a rheumatologist, was Plaintiff’s 20 treating physician. (See AR 233, 292–348.) In March 2013, Dr. Adams “suggest[ed]” two months 21 of medical disability for Plaintiff. (AR 312.) In May 2013, Dr. Adams extended Plaintiff’s 22 disability to July 2013, and thereafter extended her disability for six more months. (AR 302, 370.) 23 The ALJ assigned Dr. Adams’ opinion that Plaintiff was disabled “reduced weight” in part because 24 12 After the VE’s response to the hypothetical, the ALJ noted that Plaintiff had changed age categories since the 2015 25 decision denying her application for disability benefits. (AR 531.) Plaintiff turned fifty-five years old in May 2018 and was thus considered an “advanced age” individual under the applicable regulations. (AR 531.) The ALJ clarified with 26 the VE that the hypothetical “only pertain[ed] to the period when [Plaintiff] was closely approaching advanced age [50– 54 years old],” and that Plaintiff would be disabled if the hypothetical were applied to an advanced age individual. (AR 27 531.) The Court notes, as mentioned above, that the ALJ found at step one that Plaintiff had engaged in substantial gainful activity from October 2017 to December 2017 and October 2018 to December 2018, and the remainder of the 28 ALJ’s opinion was addressed to the periods since Plaintiff’s alleged onset date of March 18, 2013 that Plaintiff did not 1 Dr. Adams did not provide “an explanation, or any specific functional limitations that prevented 2 [Plaintiff] from working” and the opinion was on an issue reserved to the Commissioner. (AR 490.) 3 Plaintiff contends that the ALJ erred in rejecting Dr. Adams’ opinion that she was disabled. The 4 Court disagrees. 5 A physician’s opinion on the ultimate issue of disability is not entitled to controlling weight 6 because statements “by a medical source that [a claimant] is ‘disabled’ or ‘unable to work’ ” “are 7 not medical opinions” under the Social Security regulations. 20 C.F.R. §§ 404.1527(e), 416.927(e). 8 An ALJ “is precluded from giving any special significance to the source; e.g., giving a treating 9 source’s opinion controlling weight” when it is on an issue reserved to the Commissioner, such as 10 the ultimate issue of disability. SSR 96-5p, 1996 WL 374183 at *3 (July 2, 1996); McLeod v. Astrue, 11 640 F.3d 881, 885 (9th Cir. 2011) (“[t]he law reserves the disability determination to the 12 Commissioner”); Martinez v. Astrue, 261 F. App’x 33, 35 (9th Cir. 2007) (“the opinion that [a 13 claimant] is unable to work is not a medical opinion, but is an opinion about an issue reserved to the 14 Commissioner. It is therefore not accorded the weight of a medical opinion”). “To be very clear, 15 rejecting the ultimate conclusion concerning disability and rejecting findings concerning work- 16 related limitations are two vastly different propositions that should not be conflated.” Neves v. 17 Comm’r of Soc. Sec., No. 1:15–cv–01194–EPG, 2017 WL 1079754 at *6 (E.D. Cal. Mar. 21, 2017) 18 (emphasis in original). Furthermore, an ALJ may discredit treating physicians’ opinions that are 19 conclusory, brief, and unsupported by the record as a whole or by objective medical findings. 20 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 21 Here, as the ALJ correctly noted, Dr. Adams opined only that Plaintiff was disabled, and he 22 did not articulate any specific functional limitations on Plaintiff’s ability to work. (See AR 302, 23 312, 370.) Because Dr. Adams’ opinion was conclusory and addressed only the ultimate issue of 24 disability—an issue reserved to the Commissioner—the ALJ did not err in discounting the opinion. 25 2. Treating Physician Dr. Powell 26 The record reflects that Dr. Powell was Plaintiff’s treating rheumatologist after Dr. Adams. 27 (AR 54, 458–63.) On August 6, 2016, Dr. Powell submitted a questionnaire on Plaintiff’s behalf. 28 (AR 464–65.) Dr. Powell opined that Plaintiff’s medical impairments precluded her from 1 performing any full-time work at any exertional level, and, during an eight-hour day, Plaintiff could 2 sit for only one hour, stand for only one hour, and walk for only thirty minutes. (AR 464.) Dr. 3 Powell further opined that Plaintiff needed to lie down or elevate her legs for two hours in an eight- 4 hour day and she was “unable to multitask due to cognitive dysfunction.” (AR 464.) 5 In affording Dr. Powell’s opinion “reduced weight,” the ALJ noted that the opinion was 6 contradicted by the opinions of examining and non-examining physicians, and explained: 7 [Dr. Powell’s] opinion that [Plaintiff’s] medical problems precluded her from performing “any full-time work at any exertional level, including the sedentary level” 8 is on issues [sic] reserved to the Commissioner . . . . His opinion that [Plaintiff] could only sit and stand for one hour and walk for thirty minutes during an eight-hour 9 workday is contradicted by the fact that [Plaintiff] works part time up to five hours a day, which exceeds the limitations set forth by Dr. Powell . . . . [T]he findings he 10 notes in his opinion, including tender points and decreased cognitive function, are not documented in his treatment notes . . . . There is no indication that he documented 11 tender points or that he performed any type of mental status examination. Thus, it is not clear how he determined that [Plaintiff] had decreased cognitive function, or what 12 tender points he was referring to, and his conclusions lack support in his treatment records. Furthermore, his conclusory diagnoses and limitations are contradicted by 13 [Plaintiff’s] work-related activities subsequent to her alleged onset date. The treatment records from 2017 through the present are also not supportive of Dr. 14 Powell’s opinion. 15 (AR 489 (internal citations omitted).) 16 Dr. Powell’s opinion that Plaintiff can only sit and stand for one hour and walk for thirty 17 minutes is contradicted by the opinions of Dr. Sharma and the state agency physicians, who all 18 opined that Plaintiff is capable of performing light work. (AR 82, 97, 750.) In addition, Dr. Powell’s 19 opinion that Plaintiff cannot multitask due to cognitive dysfunction is contradicted by the opinion 20 of Dr. Spivey, who opined that Plaintiff has no impairment to her ability to understand, remember, 21 and carry out complex instructions and to make judgments on complex work-related decisions. (AR 22 761, 763.) The ALJ was thus required to set forth “specific and legitimate reasons,” supported by 23 substantial evidence, for rejecting Dr. Powell’s contradicted opinion. The Court finds that the ALJ 24 provided several specific and legitimate reasons for discounting Dr. Powell’s opinion. 25 First, the ALJ properly rejected Dr. Powell’s opinion that Plaintiff was unable to perform 26 any full-time work at any exertional level because the opinion was on an issue reserved to the 27 Commissioner. McLeod, 640 F.3d at 885; Martinez, 261 F. App’x at 35. 28 Second, “[a] conflict between a treating physician’s opinion and a claimant’s activity level 1 is a specific and legitimate reason for rejecting the opinion.” Ford, 950 F.3d at 1154–55; Morgan, 2 169 F.3d at 601–02. Here, as the ALJ noted (AR 489), Plaintiff testified that she works part-time 3 as a paraprofessional helping feed “handicapped” children, supervising them during physical 4 education, assisting with homework, and checking out library books (AR 508–09), for 5 approximately three days a week for up to five hours a day (AR 507), which exceeds the limitations 6 set forth by Dr. Powell. Therefore, the ALJ did not err in discounting Dr. Powell’s opinion that 7 Plaintiff could sit and stand for only one hour and walk for only thirty minutes during an eight-hour 8 workday. Plaintiff contends that she “was not yet working as a substitute teacher’s aide in August 9 2015 when Dr. Powell offered his opinion, so his opinion could not be contradicted by work activity 10 that did not exist until sometime in 2016.” (See Doc. 17 at 27.) This claim is unavailing because 11 “the ALJ is tasked with considering the record as a whole” when reviewing medical evidence. Jones 12 v. Berryhill, No. 3:15–CV–00539–JE, 2017 WL 980554, at *4 (D. Or. Mar. 13, 2017); see, e.g., 13 Ford, 950 F.3d at 1150, 1154–55 (inconsistency between a physician’s 2014 opinion and the 14 claimant’s 2016 work activity was specific and legitimate reason to reject the opinion). 15 Third, the ALJ discounted Dr. Powell’s opinion because the findings noted in his opinion 16 were not documented in his treatment notes. (AR 489.) An ALJ may properly discount a treating 17 physician’s opinion that is unsupported by the medical record, including his own treatment notes. 18 See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (a treating physician’s opinion is 19 properly rejected where the physician’s treatment notes “provide no basis for the functional 20 restrictions he opined should be imposed on [the claimant]”). As observed by the ALJ, tender points 21 are not documented in Dr. Powell’s treatment notes, nor is there any indication that Dr. Powell 22 performed any type of mental status examination to determine Plaintiff’s cognitive function. (See 23 AR 458–63.) Thus, Dr. Powell’s own treatment notes fail to provide a basis for his opinion. 24 In sum, the Court finds that the ALJ provided several specific and legitimate reasons for 25 rejecting Dr. Powell’s opinion.13 As the Court may neither reweigh the evidence nor substitute its 26 13 The ALJ also rejected Dr. Powell’s opinion regarding Plaintiff’s “severe fatigue” and muscle pain because “treatment 27 records from 2017 through the present . . . . directly contradict[ed] Dr. Powell’s comments regarding fatigue and pain.” (AR 489.) But in reaching this result, the ALJ appears to have improperly cherry-picked medical appointments where 28 Plaintiff denied fatigue and pain while ignoring other visits where she reported otherwise. For example, the exhibit 1 judgment for that of the Commissioner, it will not disturb the ALJ’s finding, even if, as Plaintiff 2 suggests (see, e.g., Doc. 17 at 28), there is other evidence in the record that would support more 3 favorable findings to her. See Batson, 359 F.3d at 1196 (“When evidence reasonably supports either 4 confirming or reversing the ALJ’s decision, we may not substitute our judgment for that of the 5 ALJ.”); Jones v. Berryhill, No. 217CV03099GMNNJK, 2018 WL 11223431, at *5 (D. Nev. Oct. 6 29, 2018) (“Simply pointing to some potentially contrary evidence in the record does not suffice to 7 show that an ALJ’s decision is not supported by substantial evidence.”). 8 As for Dr. Powell’s limitation that Plaintiff is unable to multi-task due to cognitive 9 dysfunction, even assuming the ALJ erred in failing to adopt this limitation, Plaintiff has not shown 10 that the error was harmful. As discussed in Section IV.A.2.c., the VE was asked to consider a 11 hypothetical person with Plaintiff’s RFC, but who was also limited to simple, routine, and repetitive 12 tasks—a limitation which accounts for Dr. Powell’s opinion that Plaintiff cannot multitask—and 13 the VE testified that such a person would be able to perform jobs available in the national economy. 14 (AR 530.) Thus, the ALJ’s failure to include a limitation that Plaintiff was unable to multi-task in 15 the RFC would not have changed the ultimate non-disability determination and was harmless. 16 Molina, 674 F.3d at 1111. 17 3. Examining Physician Dr. Sharma 18 Dr. Sharma, an internal medicine physician, conducted an evaluation of Plaintiff in 19 September 2018 and opined that Plaintiff could perform light work. (AR 748–51.) The ALJ 20 assigned “[s]ignificant weight” to Dr. Sharma’s opinion, explaining the opinion was consistent with 21 findings from Dr. Sharma’s physical examination of Plaintiff and other medical evidence in the 22 record. (AR 486.) Plaintiff asserts that it was error for the ALJ to assign greater weight to the 23 opinion of Dr. Sharma, an examining physician who does not specialize in rheumatology and 24 fibromyalgia, than the opinions of Drs. Adams and Powell, her treating rheumatologists. (See Doc. 25 17 at 23.) This claim is unavailing. 26 “Although the opinion of a specialist is entitled to more weight than a physician who is not 27 in March 2017, fatigue and joint and muscle pain in June 2018, and pain in January 2019. (AR 768, 771, 786.) 28 Therefore, this was not a specific and legitimate reason to discount Dr. Powell’s opinion. Nonetheless, the error was 1 a specialist (20 C.F.R. § 404.1527(d) (5), (f)), the ALJ is not precluded from relying on a physician 2 in internal medicine altogether.” Suero v. Astrue, No. CV 06–7596–PA (AGR), 2008 WL 3877118, 3 at *7 (C.D. Cal. Aug. 19, 2008); see also Garcia v. Colvin, No. 2:15–CV–0384–CKD, 2016 WL 4 796658, at *6 (E.D. Cal. Mar. 1, 2016) (finding that “the ALJ was permitted to find that [the 5 doctor’s] opinion was entitled to reduced weight regardless of the fact that [the doctor] was a treating 6 specialist.”); Gibbs v. Astrue, No. C09–5114RJB–KLS, 2010 WL 1417803, at *6 (W.D. Wash. Mar. 7 8, 2010) (“An ALJ . . . may not give less deference to an examining physician merely because he or 8 she is not a specialist.”). Because Plaintiff has not demonstrated that the reasons identified by the 9 ALJ for assigning significant weight to Dr. Sharma’s opinion are unsupported by substantial 10 evidence, the Court finds that the ALJ did not err in relying on Dr. Sharma’s opinion in formulating 11 the RFC. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (an “examining physician’s 12 opinion alone constitutes substantial evidence, because it rests on his own independent examination 13 of the claimant.”). 14 4. Dr. Pizzirulli 15 Chiropractors are not included in the list of “acceptable medical sources” who may provide 16 an opinion as to whether a claimant has a medically determinable impairment. 20 C.F.R. §§ 17 404.1513(a); 404.1527(b); Figueroa v. Astrue, No. 2:10–cv–01818 KJN, 2011 WL 4084852, at *3 18 (E.D. Cal. Sept. 13, 2011) (“Under the applicable regulations, chiropractors . . . are not ‘acceptable 19 medical sources.’ . . . Only acceptable medical sources may provide medical opinions.”). Instead, 20 chiropractors are “other sources,” whose opinions are given less weight than those from “acceptable 21 medical sources,” but who may help the ALJ “understand how [the claimant’s] impairment affects 22 [the claimant’s] ability to work.” Lederle v. Astrue, No. 1:09–cv–01736–JLT, 2011 WL 839346, at 23 *11 (E.D. Cal. Feb. 17, 2011) (citing Gomez v. Chater, 74 F.3d 967, 970–71 (9th Cir. 1996)); 20 24 C.F.R. §§ 404.913(d), 404.1513(d). While chiropractors are not “acceptable medical sources” for 25 evidence of impairment, the ALJ still must “provide reasons that are germane to the witness” when 26 discounting their opinions. Hill v. Comm’r, No. 1:14–cv–01813–SAB, 2016 WL 5341274, at *2 27 (E.D. Cal. Sept. 23, 2016) (citing Molina, 674 F.3d at 1111). 28 Dr. Pizzirulli, a chiropractor, submitted a letter on Plaintiff’s behalf in March 2019. (AR 1 805–06.) Dr. Pizzirulli indicated that Plaintiff “[wa]s unable to work a 40 hour per week job” and 2 that Plaintiff could not “sit or stand too long, without pain in the spine becoming unbearable.” (AR 3 805.) Dr. Pizzirulli opined that Plaintiff was “very limited in what she can do and can’t do” and 4 “need[ed] help.” (AR 806.) 5 In affording minimal weight to Dr. Pizzirulli’s opinion, the ALJ stated: 6 [Dr. Pizzirulli’s] conclusion that [Plaintiff] is unable to work a 40 hour week is an opinion reserved to the Commissioner. [Dr. Pizzirulli’s] statement that [Plaintiff] 7 cannot sit “too long” without “pain in the spine becoming unbearable” is contradicted by [Plaintiff’s] prior statements indicating she can sit without pain, and this opinion 8 is not consistent with the corresponding treatment notes which primarily consist of routine care for viral illnesses, with normal objective findings. 9 (AR 490–91.) 10 As an initial matter, the Court notes that Plaintiff does not contest the ALJ’s reasons for 11 rejecting Dr. Pizzirulli’s opinion, other than asserting that it was erroneous for the ALJ to disregard 12 the opinion because Dr. Pizzirulli is not an acceptable medical source under the applicable 13 regulations. (See Doc. 17 at 30–31.) Plaintiff has therefore waived any challenge to those reasons. 14 See Smith, 194 F.3d at 1052 (“[O]n appeal, arguments not raised by a party in its opening brief are 15 deemed waived.”); see also Pendley, 2016 WL 1618156, at *8. In any event, the Court finds that 16 the ALJ provided germane reasons for discounting Dr. Pizzirulli’s opinion. 17 As the ALJ correctly observed, Dr. Pizzirulli’s opinion that Plaintiff is unable to work a 18 forty-hour workweek is not given any “special significance” because the opinion is on an issue 19 reserved to the Commissioner. (AR 490); see Tatum v. Comm’r of Soc. Sec., No. 1:19–CV–01263– 20 SAB, 2020 WL 7640588, at *13 (E.D. Cal. Dec. 23, 2020); Stieber v. Saul, No. 1:19–CV–00778– 21 BAM, 2020 WL 6582275, at *6 (E.D. Cal. Nov. 10, 2020) (finding that the ALJ provided germane 22 reason for discounting a licensed clinical social worker’s opinion that the claimant was unlikely to 23 obtain or keep a job because the opinion was a determination reserved for the Commissioner). 24 Next, conflict with a claimant’s activities is a germane reason for rejecting an opinion from 25 a non-acceptable medical source. Patricia V. v. Berryhill, No. C18-955 JCC, 2019 WL 1239270, at 26 *3 (W.D. Wash. Mar. 18, 2019) (citing Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). 27 As the ALJ noted, Dr. Pizzirulli’s opinion that Plaintiff cannot “sit or stand too long, without pain 28 1 in the spine becoming unbearable” (AR 805) is contradicted by Plaintiff’s testimony that she had no 2 problems “pain-wise” during long car rides and that sitting did not ever cause her physical pain.14 3 (AR 56–57.) The ALJ thus did not err in his evaluation of Dr. Pizzirulli’s opinion. 4 5. Physician’s Assistants 5 Plaintiff contends that the ALJ erred in failing to credit the opinions of three physician’s 6 assistants: Norris, Jadav, and Vigano. (See Doc. 17 at 30–31.) Like chiropractors, physician’s 7 assistants are not considered “acceptable medical sources” under 20 C.F.R. § 416.913, but instead 8 “other sources,” whose opinions are not entitled to special weight. 20 C.F.R. § 416.913(d)(1).15 To 9 disregard the opinion of a nonacceptable medical, or lay source, the ALJ need only provide a reason 10 that is germane to that witness. Popa v. Berryhill, 872 F.3d 901, 906-07 (9th Cir. 2017). “[I]f the 11 ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those 12 reasons when rejecting similar testimony by a different witness.” Molina, 674 F.3d at 1114 13 (citations omitted). 14 PA Norris opined that Plaintiff should “limit her workload, daily activities and stress[.]” 15 (AR 466.) In assigning PA Norris’ opinion “reduced weight,” the ALJ explained that the opinion 16 was “vague” and PA Norris “did not indicate how [Plaintiff] should limit her activities, and fail[ed] 17 to indicate why [Plaintiff] [wa]s limited, other than stating diagnoses.” (AR 490.) This was a 18 germane reason for discounting PA Norris’ opinion, as “[a]n ALJ may reject an opinion that is vague 19 and fails to identify specific functional limitations for the claimant.” Reynoso v. Saul, No. 1:19– 20 CV–0314–JLT, 2020 WL 4435482, at *4 (E.D. Cal. Aug. 3, 2020) (citing Meanel v. Apfel, 172 F.3d 21 1111, 1114 (9th Cir. 1999)) (collecting cases); Morgan, 169 F.3d at 601 (affirming ALJ’s 22 discounting of a physician’s opinions because they did not show how “symptoms translate[d] into 23 specific functional deficits”); see also Lynnes v. Colvin, No. 6:13–cv–01874–AA, 2014 WL 24 6893685, at *5 (D. Or. Dec. 4, 2014) (finding that the ALJ properly rejected as vague the opinion 25 26 14 Plaintiff testified that sitting for long periods caused her to be anxious. (AR 56–57.) 15 The Social Security Administration has adopted new rules applicable to claims filed after March 27, 2017, which 27 expand the category of acceptable medical providers to include, among others, physician assistants. 20 C.F.R. §§ 404.1502(a)(6), (7), (8); 416.902(a)(6), (7), (8) (2017); Revisions to Rules Regarding the Evaluation of Medical 28 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). The revisions do not apply to Plaintiff’s claim, which was filed on May 1 of an examining psychologist who stated that the claimant had “significant problems functioning”). 2 As for the two other physician’s assistants, PA Jadav opined that Plaintiff “should not be 3 pushed into activities that worsen [her] symptoms,” including “[m]isdirected exercise” and “major 4 stressors” (AR 410–11), and PA Vigano opined that she “recommended[ed] against [Plaintiff] 5 entering the work force, as she [wa]s physically and cognitively unable to do so” (AR 745). Plaintiff 6 correctly observes that the ALJ failed to address the opinions of PA Jadav and PA Vigano in his 7 opinion (see Doc. 17 at 31), but the Court disagrees that the error is harmful and thus reversible. 8 See Molina, 674 F.3d at 1118–19 (holding that the ALJ’s failure to address lay witness testimony 9 was harmless where “the testimony is similar to other testimony that the ALJ validly discounted, or 10 where the testimony is contradicted by more reliable medical evidence that the ALJ credited”); 11 Corso v. Colvin, No. 3:13–CV–250–AC, 2014 WL 950029, at *12 (D. Or. Mar. 11, 2014). 12 Here, the same reasons proffered by the ALJ for rejecting Dr. Pizzirulli’s and PA Norris’ 13 opinions are germane to rejecting PAs Jadav’s and Vigano’s opinions. Like PA Norris, PAs Jadav 14 and Vigano did not assess any functional limitations. (AR 410–11, 745.) As with Dr. Pizzirulli’s 15 opinion, PA Vigano’s opinion that Plaintiff is “physically and cognitively unable” to work was on 16 an issue reserved to the Commissioner and thus not entitled to any special significance. The ALJ 17 therefore did not commit harmful error in failing to address PAs Jadav’s and Vigano’s opinions. 18 C. The ALJ Properly Evaluated Plaintiff’s Testimony 19 1. Legal Standard 20 In evaluating the credibility of a claimant’s testimony regarding their impairments, an ALJ 21 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 22 the ALJ must determine whether the claimant has presented objective medical evidence of an 23 underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. The 24 claimant is not required to show that their impairment “could reasonably be expected to cause the 25 severity of the symptom she has alleged; she need only show that it could reasonably have caused 26 some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 27 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only 28 reject the claimant’s testimony about the severity of the symptoms if the ALJ gives “specific, clear 1 and convincing reasons” for the rejection. Id. As the Ninth Circuit has explained: 2 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 3 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 4 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 5 by substantial evidence, the court may not engage in second-guessing. 6 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 7 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 8 consider include a claimant’s work record and testimony from physicians and third parties 9 concerning the nature, severity, and effect of the symptoms of which she complains. Light v. Soc. 10 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 11 The clear and convincing standard is “not an easy requirement to meet,” as it is “ ‘the most 12 demanding required in Social Security cases.’ ” Garrison, 759 F.3d at 1015 (quoting Moore v. 13 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General findings are not sufficient 14 to satisfy this standard; the ALJ “ ‘must identify what testimony is not credible and what evidence 15 undermines the claimant’s complaints.’ ” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) 16 (quoting Lester, 81 F.3d at 834)). 17 2. Analysis 18 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 19 expected to cause the alleged symptoms.” (AR 487.) The ALJ also found that “[Plaintiff’s] 20 statements concerning the intensity, persistence and limiting effects of these symptoms are not fully 21 supported for the reasons explained in this decision.” (AR 487.) Since the ALJ found that Plaintiff’s 22 “medically determinable impairments could reasonably be expected to cause the alleged 23 symptoms,” the only remaining issue is whether the ALJ provided “specific, clear and convincing 24 reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 572 F.3d at 591. 25 In evaluating Plaintiff’s credibility, the ALJ stated, in part: 26 As for [Plaintiff’s] statements about the intensity, persistence, and limiting effects of . . . her symptoms, they are not entirely consistent with the overall medical evidence, 27 which confirms that while she has been diagnosed with several severe impairments, she nonetheless has been able to resume rather substantial activities, has not 28 developed muscle loss or loss of strength, and has received only routine care since 1 2 (AR 481.) The ALJ also reasoned that Plaintiff was taking only over-the-counter pain medication 3 despite her report of “pain all over her body,” and that Plaintiff “was not entirely forthright with Dr. 4 Sharma.” (AR 487.) The Court finds that the ALJ offered sufficient “clear and convincing” reasons, 5 supported by substantial evidence, to discount Plaintiff’s testimony. 6 a. Plaintiff’s Activity Level 7 It is appropriate for an ALJ to consider a claimant’s activities that undermine claims of 8 severe limitations in making the credibility determination. See Fair, 885 F.2d at 603; Morgan, 169 9 F.3d at 600; Rollins, 261 F.3d at 857; see also Thomas, 278 F.3d at 958–59 (an ALJ may support a 10 determination that the claimant was not entirely credible by identifying inconsistencies between the 11 claimant’s complaints and the claimant’s activities.). It is well-established that a claimant need not 12 “vegetate in a dark room” to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 13 (9th Cir. 1987). However, if a claimant can spend a substantial part of their day engaged in pursuits 14 involving the performance of physical functions that are transferable to a work setting, a specific 15 finding as to this fact may be sufficient to discredit an allegation of disability. Fair, 885 F.2d at 16 603. “Even where [Plaintiff’s] activities suggest some difficulty functioning, they may be grounds 17 for discrediting the claimant’s testimony to the extent that they contradict claims of a totally 18 debilitating impairment.” Molina, 674 F.3d at 1113. 19 Plaintiff alleges an inability to work due to fibromyalgia and CFS, which she alleges cause 20 her to experience exhaustion, anxiety, fatigue, and pain. (AR 59, 511–12.) According to Plaintiff, 21 she is unable to sit and stand for more than half an hour at a time and she has trouble with 22 concentration. (AR 513–14.) In evaluating Plaintiff’s credibility, however, the ALJ cited activities 23 that were inconsistent with Plaintiff’s testimony about the severity of her symptoms and 24 impairments. The ALJ observed that “[w]hile [Plaintiff] alleged severe limitations due to her fatigue 25 and other symptoms,” Plaintiff has been able to work part-time since 2016, approximately three 26 days a week for five hours a day, helping “handicap” children by feeding them, watching them play, 27 and assisting with homework in reading and writing. (AR 488, 507–08.) Plaintiff also works in the 28 library sometimes, where she checks out books to the children. (AR 508–09.) In addition, as the 1 ALJ noted and the record reflects, Plaintiff drives every day, handles her own personal self-care, 2 cleans and cooks, and goes grocery shopping. (AR 502, 514–15.) Plaintiff testified that she enjoys 3 going to the movies and doing arts and crafts. (AR 516–17.) 4 The Court finds that Plaintiff’s activities were reasonably considered by the ALJ to be 5 inconsistent with her alleged inability to work due to her fatigue and other symptoms. (AR 488.) 6 Even if some of these activities do not rise to the level of transferable work skills, they are, as a 7 whole, inconsistent with allegations of completely debilitating impairment. Molina, 674 F.3d at 8 1113. Accordingly, the inconsistencies between Plaintiff’s activity level and her complaints was a 9 clear and convincing reason to find Plaintiff’s testimony not credible. See 20 C.F.R. § 10 416.929(c)(3); Stubbs-Danielson, 539 F.3d at 1175. 11 b. Plaintiff’s Inconsistent Statements 12 In determining a claimant’s credibility, the ALJ may also consider “ordinary techniques of 13 credibility evaluation,” including inconsistent statements. Smolen, 80 F.3d at 1284; Scott v. Colvin, 14 No. 15–CV–0065–FVS, 2016 WL 1274553, at *6 (E.D. Wash. Mar. 31, 2016) (explaining that 15 “conflicting or inconsistent statements concerning drug use can contribute to an adverse credibility 16 finding”). Here, the ALJ noted that Plaintiff “was not entirely forthright with Dr. Sharma.” (AR 17 487.) At the examination with Dr. Sharma, Plaintiff denied smoking or using any drugs (AR 749), 18 but two days later, Plaintiff told Dr. Spivey that she uses marijuana daily for pain and insomnia (AR 19 759). “Plaintiff’s inconsistent statements regarding the frequency of h[er] marijuana use provide a 20 clear and convincing reason for discounting his testimony.” Vellanoweth v. Astrue, No. CV 10– 21 3105–MLG, 2010 WL 5094254, at *3 (C.D. Cal. Dec. 6, 2010) (citing Fair, 885 F.2d at 604 n. 5; 22 Tonapetyan, 242 F.3d at 1148). Thus, the ALJ did not err in considering Plaintiff’s inconsistent 23 statements regarding her marijuana use in discounting Plaintiff’s testimony. 24 c. The ALJ’s Remaining Reasons 25 The ALJ’s other reasons for discounting Plaintiff’s testimony are that Plaintiff “has not 26 developed muscle loss or loss of strength, and has received only routine care since 2015.” (AR 27 481.) The Court finds that these are not clear and convincing reasons. 28 First, “normal muscle strength, tone, and stability . . . . are perfectly consistent with 1 debilitating fibromyalgia.” Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017); see Calleres v. 2 Comm’r of Soc. Sec., No. 1:19–CV–00513–EPG, 2020 WL 4042904 (E.D. Cal. July 17, 2020) 3 (finding that “the ALJ’s reliance on instances of normal range of motion, no acute distress, and 4 normal x-ray and MRI findings to discount Plaintiff’s symptom testimony does not constitute a clear 5 and convincing reason”). Accordingly, the ALJ’s reliance on indications that Plaintiff “has not 6 developed muscle loss or loss of strength” (AR 481) to discount Plaintiff’s testimony is improper. 7 Next, routine, conservative treatment can be sufficient to discount a claimant’s subjective 8 testimony regarding the limitations caused by an impairment. Parra v. Astrue, 481 F.3d 742, 750- 9 51 (9th Cir. 2007). If, however, the claimant has a good reason for not seeking more aggressive 10 treatment, conservative treatment is not a proper basis for rejecting the claimant’s subjective 11 symptoms. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Here, 12 Plaintiff pursued mental health treatment and specialized care from rheumatologists and the 13 Stanford Clinic until she lost her insurance and could no longer afford it. (AR 48, 512, 513, 520.) 14 Failure to obtain treatment because a plaintiff cannot afford the treatment is not a valid reason to 15 discount subjective testimony. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). The ALJ’s 16 decision provided no basis to reject Plaintiff’s explanation that she stopped seeking specialized 17 treatment due to her change in insurance and was therefore not a clear and convincing reason to 18 reject Plaintiff’s testimony. 19 Although some of the ALJ’s reasons for discounting Plaintiff’s testimony were improper, 20 the Court finds the inclusion of erroneous reasons to be harmless because the ALJ also articulated 21 reasons that were clear and convincing and supported by substantial evidence. See Molina, 674 22 F.3d at 1117. The ALJ thus did not harmfully err in his evaluation of the opinion evidence. 23 D. The ALJ Properly Evaluated the Third-Party Statements 24 An ALJ must consider the statements of lay witnesses in determining whether a claimant is 25 disabled. Stout, 454 F.3d at 1053. Lay witness evidence cannot establish the existence of medically 26 determinable impairments, but lay witness evidence is “competent evidence” as to “how an 27 impairment affects [a claimant’s] ability to work.” Id.; 20 C.F.R. § 416.913. If lay witness 28 statements are rejected, the ALJ “must give reasons that are germane to each witness.” Nguyen v. 1 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (internal quotation marks and citation omitted). 2 Without summarizing their statements or identifying what portions of the statements the ALJ 3 should have accepted, Plaintiff cursorily asserts that the ALJ erroneously rejected four third-party 4 statements—from Diane Ferrell, Bill Hinnichsen, Lisa Pizza, and “one other individual whose name 5 is unintelligible” (AR 491). (See Doc. 17 at 36.) As mentioned above, if the ALJ gives germane 6 reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when 7 rejecting similar testimony by a different witness. Molina, 674 F.3d at 1114. 8 Here, the ALJ assigned “minimal weight” to the lay statements, explaining: “These 9 representations as to [Plaintiff’s] activities and functional limitations are similar to those described 10 by [Plaintiff] and are found consistent with the evidence only insofar as [Plaintiff’s] allegations have 11 been found consistent as explained [in the opinion].” (AR 491.) Plaintiff does not contest the ALJ’s 12 determination that the lay statements were similar to Plaintiff’s testimony, only that “the ALJ’s 13 reasons for rejecting Plaintiff’s testimony were inadequate.” (Doc. 17 at 36.) As explained above, 14 the ALJ properly rejected Plaintiff’s testimony about the severity of her limitations, in part, on the 15 grounds that the limitations were inconsistent with Plaintiff’s activity level. The Court thus 16 concludes that the reason given for discounting Plaintiff’s testimony apply to the lay evidence as 17 well, and any error by the ALJ in failing to more specifically address the third-party statements was 18 harmless. 19 V. CONCLUSION AND ORDER 20 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 21 evidence and is therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in 22 favor of Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Lori Lynn 23 Kendall. 24 IT IS SO ORDERED. 25 Sheila K. Oberto 26 Dated: February 24, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 27 28