(SS) Smith v. Commissioner of Social Security ( 2022 )

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 BILLY RAY SMITH, No. 1:20-cv-01350-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF 7 JUDGMENT IN FAVOR OF DEFENDANT KILOLO KIJAKAZI, acting COMMISSIONER OF SOCIAL SECURITY 8 Commissioner of Social Security, AND AGAINST PLAINTIFF 9 (Doc. 24) Defendant. 10 11 I. Introduction 12 Plaintiff Billy Ray Smith (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his applications for 14 disability insurance benefits and supplemental security income pursuant to Titles II and XVI, 15 respectively, of the Social Security Act. The matter is before the Court on the parties’ briefs which 16 were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate 17 Judge.1 See Docs. 24–25. After reviewing the record the Court finds that substantial evidence and 18 applicable law support the ALJ’s decision. Plaintiff’s appeal is therefore denied. 19 II. Factual and Procedural Background2 20 On May 24, 2017 and July 31, 2017, respectively, Plaintiff applied for disability insurance 21 benefits and supplemental security income alleging disability as of August 20, 2013 due to diabetes 22 and neuropathy. AR 162, 335, 342. The Commissioner denied the applications initially on 23 November 6, 2017 and on reconsideration on February 1, 2018. AR 219; 229. Plaintiff requested 24 a hearing which was held before an Administrative Law Judge (the “ALJ”) on November 5, 2019. 25 26 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 9 and 11. 27 2 The Court has reviewed the administrative record including the medical, opinion and testimonial 28 evidence, about which the parties are well informed. Relevant portions thereof will be referenced in the course of the analysis below when relevant to the arguments raised by the parties. AR 36–102. On November 18, 2019, the ALJ issued a decision denying Plaintiff’s application. 2 AR 15–30. The Appeals Council denied review on July 21, 2020. AR 1–6. On September 23, 3 2020 Plaintiff filed a complaint in this Court. Doc. 1. 4 III. The Disability Standard 5 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 6 Commissioner denying a claimant disability benefits. “This court may set aside the 7 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 8 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 9 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 10 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 11 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 12 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 13 When performing this analysis, the court must “consider the entire record as a whole and 14 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 15 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 16 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 17 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 18 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 19 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 20 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 21 To qualify for benefits under the Social Security Act, a plaintiff must establish that 22 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 23 last for a continuous period of not less than twelve months. 42 U.S.C. § 24 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 25 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 26 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 27 he would be hired if he applied for work. 28 42 U.S.C. §1382c(a)(3)(B). To achieve uniformity in the decision-making process, the Commissioner has established a 2 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 3 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 4 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 5 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 6 gainful activity during the period of alleged disability, (2) whether the claimant had medically 7 determinable “severe impairments,” (3) whether these impairments meet or are medically 8 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 9 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 10 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 11 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 12 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 13 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 14 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 15 IV. The ALJ’s Decision 16 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 17 the day following his prior hearing determination on February 22, 2017. AR 18. At step two the 18 ALJ found that Plaintiff had the following severe impairments: diabetes mellitus, diabetic 19 neuropathy of bilateral hands and feet, obesity, and major depressive disorder. AR 18. The ALJ 20 also determined at step two that Plaintiff had the following non-severe impairments: coronary artery 21 disease and hypertension. AR 18. At step three the ALJ found that Plaintiff did not have an 22 impairment or combination thereof that met or medically equaled the severity of one of the 23 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 19. 24 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 25 concluded that Plaintiff had the RFC to perform light work as defined in 20 CFR 404.1567(b) with 26 a limitation to sitting 6 hours, standing/walking 8 hours, limitations on postural activities, no 27 exposure to unprotected heights or dangerous machinery, a limitation to frequent handling and 28 fingering, and a limitation to simple, routine, repetitive tasks. AR 21–28. At step four the ALJ concluded that, considering his RFC, Plaintiff could not perform his past relevant work as a 2 loader/unloader in combination with a tank truck driver, semi-truck driver, or tow truck driver, all 3 of which were performed at the heavy exertional level. AR 28. At step five, in reliance on the VE’s 4 testimony, the ALJ concluded that Plaintiff could perform other jobs existing in significant numbers 5 in the national economy at the light exertional level, namely: marker, router clerk, and storage rental 6 clerk. AR 29. Accordingly, the ALJ concluded that Plaintiff was not disabled at any time since 7 his prior hearing decision date of February 22, 2017. AR 29. 8 V. Issues Presented 9 Plaintiff asserts two claims of error: 1) that the ALJ erred in rejecting the opinions of LCSW 10 Sampson; and, 2) that the ALJ improperly rejected his testimony. 11 A. LCSW’s Opinion 12 1. Applicable Law 13 Before proceeding to step four, the ALJ must first determine the claimant’s residual 14 15 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 16 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 17 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 18 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 19 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 20 A determination of residual functional capacity is not a medical opinion, but a legal decision 21 22 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 23 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 24 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 25 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 26 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. 27 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 28 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 2 such as medical records, lay evidence and the effects of symptoms, including pain, that are 3 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 4 5 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical 6 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 7 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 8 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 9 F.2d 1403, 1408 (9th Cir. 1986)). 10 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 11 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight, 12 13 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 14 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating 15 any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 16 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 17 Supportability and consistency are the two most important factors and the agency will articulate 18 how the factors of supportability and consistency are considered. Id. 19 2. Analysis 20 21 On October 8, 2019, Plaintiff’s treating provider, Licensed Clinical Social Worker (LCSW) 22 Sampson, completed a mental capacity assessment of Plaintiff. AR 673–75. Under the category 23 of understanding, remembering and applying information, LCSW Sampson opined that Plaintiff 24 was moderately limited in his ability to sequence multi-step activities, but otherwise had no 25 limitations. AR 673. Under the category of concentration, persistence or maintaining pace, LCSW 26 Sampson opined that Plaintiff had moderate, marked or extreme limitations with respect to 5 out of 27 28 6 abilities. AR 674. Under the category of adapting or managing one’s self, LCSW Sampson opined that Plaintiff had one marked limitation and one extreme limitation. AR 674. Finally, under 2 the category of interaction with others, LCSW Sampson opined that Plaintiff was moderately 3 limited as to all 5 abilities. AR 675. LCSW Sampson completed an additional mental capacity 4 5 assessment dated October 9, 2019 (one day later) in which she opined similarly. 6 The ALJ discounted these opinions for several reasons. First, the ALJ noted that the opinion 7 “is a checkbox form, with no accompanying narration to provide supporting clinical findings or to 8 explain in detail the reasoning for the assessed opinions.” AR 27. An opinion cannot be discounted 9 for being in checkbox form provided it is adequately supported. Garrison v. Colvin, 759 F.3d 995, 10 1014 n. 17 (9th Cir. 2014) (check-box opinion cannot be rejected where consistent with the 11 provider’s treatment notes); Esparza v. Colvin, 631 F. App'x 460, 462 (9th Cir. 2015) (“Although 12 13 the treating physician's opinions were in the form of check-box questionnaires, that is not a proper 14 basis for rejecting an opinion supported by treatment notes.”). 15 Here, LCSW Sampson did provide an explanation for her opinion, but the explanation did 16 not identify clinical findings in support. Under clinical findings in support, LCSW identified 17 depression and anxiety numerous times. Those are diagnoses, not clinical findings in support of 18 the identified limitations. Indeed, before the questionnaire begins the form asks the provider to list 19 the patient’s diagnoses which LCSW Sampson did, namely major depressive disorder and 20 21 generalized anxiety disorder. Repeating the same diagnoses again under the clinical findings 22 section does not transform the diagnoses into clinical findings. Nor is it sufficient to state that the 23 alleged limitations, such as concentration limitations, are attributable to Plaintiff’s depression and 24 anxiety because “poor concentration is a symptom of both depression and anxiety.” AR 673. Such 25 reasoning is circular and still begs the question of what clinical findings support the alleged 26 limitations in concentration. LCSW Sampson also noted that Plaintiff reported symptoms such as 27 28 insomnia due to leg pain, tendencies toward social isolation, uncontrolled worries and feeling “clouded.” Reciting Plaintiff’s self-reported symptoms is also not a clinical finding. In short, 2 LCSW Sampson recited what Plaintiff told her, and recited what she understands to be symptoms 3 of Plaintiff’s diagnoses in general. She made no indication of what she objectively observed during 4 5 her visits. 6 As LCSW Sampson was well aware, clinical findings in the context of a mental status 7 examination include detailed observations such as appearance (e, g. grooming, hygiene), speech 8 pattern (e.g. pressured, tangential, circumstantial), thought content (goal directed, disorganized), 9 fund of knowledge, and concentration (serial 7s, 3s).3 Indeed, LCSW Sampson did make such 10 clinical findings in her treatment notes but did not reference any of them in her opinion. 11 The ALJ explained that LCSW Sampson’s treatment notes noted full orientation, organized 12 13 speech, and coherent process. AR 27 (citing exhibit B12F/4). A review of the exhibit cited by the 14 ALJ reveals a selective interpretation thereof by the ALJ. In addition to noting full orientation, 15 organized speech and coherent thought process, the very same record notes additional mental status 16 examination results suggestive of limitations including: 1) poor concentration, 2) irritable, anxious 17 and depressed mood, 3) problems with immediate and recent memory, and 4) cognitive deficits. 18 AR 684. The ALJ did not acknowledge the same. Thus, to the extent the ALJ found LCSW’s 19 opinion was contradicted by her own treatment notes, that is not entirely the case as the ALJ 20 21 selectively cited from those treatment notes. In that regard, the ALJ erred. 22 The ALJ’s error was harmless however because the ALJ cited numerous other stable mental 23 status findings in the record which did not support the LCSW’s opinion. AR 27 (citing Ex. B4F/5; 24 B6/F2, 5, 8; B7F/3, 5, 12, 16, 29, 32, 35, 28, 41; B9F/8). Plaintiff takes issue with the ALJ’s 25 reliance on these examinations, noting that the appointments were not mental health appointments 26 but rather were appointments for physical conditions such as an earache, diabetes, a flu shot, low 27 28 3 See Mental Status Exam Guidelines, https://www.dshs.wa.gov/sites/default/files/forms/pdf/13-865add.pdf back pain, and testicular pain. Br. at 19. Plaintiff contends the “[f]indings were ‘stable’ as no 2 provider ever made findings; the absence of evidence is not evidence of absence.” Br. at 19. 3 Plaintiff’s contention is not all together accurate. Although these were not mental health 4 5 appointments, his providers still made findings regarding his mental status, which is far from 6 uncommon. While these examination notes did not reflect comprehensive mental status 7 examinations, they all addressed his mental status to some extent and nearly uniformly noted one 8 or more of the following findings: full orientation; appropriate mood and affect; normal insight and 9 judgment; appropriate affect and demeaner; normal speech pattern; grossly normal memory; no 10 self-reported feelings of depression, hopelessness, insomnia, or having little interest or pleasure in 11 doing things. See, e.g., AR 569, 575, 586, 589, 592, 603, 605, 612, 616, 629, 632, 635, 638, 641, 12 13 670. In short, as the ALJ found, LCSW’s opinion as to Plaintiff’s moderate, marked and extreme 14 mental limitations were neither supported by or consistent with these medical records. 15 Plaintiff also takes issue with the ALJ’s observation that LCSW Sampson “only saw the 16 claimant 3 times by video . . .” AR 27. As Plaintiff emphasizes, telehealth treatment has significant 17 benefits particularly for individuals like Plaintiff who has difficulty using his feet and lives in a 18 small town of 3,500 people without substantial access to in-person medical care. However, the 19 above-quoted statement from the ALJ’s opinion does not necessarily indicate that the ALJ was 20 21 expressing a negative view toward telehealth as opposed to underscoring the limited number of 22 visits with LCSW. Even assuming the ALJ’s reference to “video” visits was intended pejoratively, 23 any error was harmless. Although the extent of the treatment relationship and frequency of 24 examinations are relevant factors to be considered when evaluating an opinion (See 20 C.F.R. § 25 404.1520c(c)), the ALJ is not required to articulate how he considered the nature and extent of 26 Plaintiff’s treating relationship with LCSW Sampson. Rather, the regulations require that the ALJ 27 28 articulate how the factors of supportability and consistency were considered, and he did so as detailed above. 2 Next, Plaintiff takes issue with the ALJ’s observation that, according to LCSW’s own 3 treatment notes, Plaintiff demonstrated full orientation, organized speech and coherent thought 4 5 process. Plaintiff correctly observes that the ALJ’s discussion of those treatment notes was 6 selective. The ALJ ignored other findings therein supportive of limitations, such as poor 7 concentration, anxious and depressed mood, blunted affect, and dysphoric mood. See 684, 689. 8 Nevertheless, LCSW’s treatment notes were not emblematic of Plaintiff’s mental status more 9 generally, as his mental status examinations were consistently normal as noted in more than a dozen 10 other examinations in the record cited by the ALJ and described above. In such instances, courts 11 are to defer to the ALJ’s conclusion. See Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) 12 13 (citation omitted) (noting that if the evidence could reasonably support two conclusions, the court 14 “may not substitute its judgment for that of the Commissioner” and must affirm the decision.). 15 Plaintiff also takes issue with the ALJ’s conclusion that his activities of daily living were 16 inconsistent with LCSW’s opinion, including attending one football game and occasionally doing 17 jujitsu at his sister’s dojo. To Plaintiff’s credit, the cited activities of daily living do not necessarily 18 foreclose LCSW Sampson’s identified limitations, and may even be generally consistent with the 19 notion that Plaintiff suffered marked to extreme limitations in several categories of mental 20 21 functioning. Nevertheless, the error was harmless as the ALJ evaluated the required regulatory 22 factors of supportability and consistency, and cited ample medical evidence in support of her 23 conclusion that LCSW Sampson’s opinion was not supported by or consistent with the mental status 24 examinations in the record. See 20 C.F.R. § 404.1520c(c)(2). 25 Plaintiff further disputes the ALJ’s observation that he was not prescribed medication. 26 Plaintiff underscores that licensed clinical social workers are not permitted to prescribe 27 28 medications. Plaintiff also underscores that he was in the early stages of his treatment, that he had been referred to a psychiatrist, and that he was waiting to be seen at the time of his hearing. Thus, 2 Plaintiff contends it was counterintuitive to discount LCSW’s Sampson opinion based on lack of 3 medication prescriptions considering LCSW Sampson could not have prescribed medication and 4 5 referred him to someone who could. 6 Plaintiff’s argument here misses the point. Importantly, the ALJ identified lack of 7 prescribed medications as a basis for concluding that Plaintiff’s mental limitations were not as 8 severe as LCSW identified. That conclusion was supported, at least based on the evidence available 9 to the ALJ at the time the ALJ rendered the decision. The fact that Plaintiff was scheduled to see 10 a psychiatrist who might have ultimately prescribed medication, is immaterial. These potential 11 records, although conceivably important for consideration in a subsequent application for benefits, 12 13 were not before the ALJ here. At the time of the ALJ’s decision, Plaintiff’s depression had indeed 14 been treated conservatively. He had three visits with an LCSW, no visits with a psychiatrist, and 15 no prescribed medication. Where a claimant receives only conservative treatment for an 16 impairment, that is an appropriate reason to reject an opinion the impairment is disabling. Jackson 17 v. Colvin, No. 2:15-CV-06123 (VEB), 2016 WL 5947225, at *5 (C.D. Cal. Oct. 12, 2016), (citing 18 Johnson v. Shalala, 60 F.3d 1428,1434 (9th Cir. 1995)). 19 Finally, Plaintiff contends in the alternative that the RFC was generally unsupported 20 21 because there is no mental health opinion in the record other than that of LCSW Sampson, and 22 because new and material evidence establishes a worsening of his existing physical condition. The 23 state agency reviewers applied Chavez to the prior ALJ’s determination from February 21, 2017 24 for a light exertional RFC with no accompanying severe psychiatric impairments due to the absence 25 of new and material evidence suggestive of a worsening of his physical or mental condition. See 26 AR 170, 197 (citing Chavez v. Bowen, 844 F.2d 691, 694 (9th Cir. 1988) (presumption of 27 28 continuing non-disability applies absent change in circumstances, namely new and material evidence indicative of greater disability)). The ALJ in the instant case, on the other hand, chose 2 not to give res judicata effect to the prior ALJ decision, finding new and material evidence 3 concerning diabetes mellitus, moderate to severe peripheral neuropathy, and records indicative of 4 5 a severe mental impairment, namely major depressive disorder. AR 26. 6 As to his depression, Plaintiff contends the RFC is unsupported because he was not 7 receiving treatment for the condition at the time of the agency doctors’ review at the initial and 8 reconsideration levels, and that the ALJ therefore impermissibly played doctor in formulating his 9 own mental RFC out of whole cloth rather than deferring to the only mental health opinion of 10 record, namely that of LCSW Sampson. 11 Plaintiff’s argument is unavailing. Notwithstanding the fact that Plaintiff had not yet begun 12 13 mental health treatment at the time of the agency doctors’ review, the record is not devoid of any 14 mental health opinion other than that of LCSW Sampson. Rather, given that Plaintiff claimed 15 disability in part due to his depression, the state agency psychologists Goldberg and Caruso-Radin 16 did indeed render an opinion on his mental functioning and found that Plaintiff had no mental 17 impairment. AR 166, 194. Notably, their notes indicate that there was “no psych evidence in file” 18 and therefore no medically determinable impairment was established. AR 167 19 The fact that Plaintiff subsequently began treatment with LCSW Sampson was the very 20 21 basis for the ALJ’s conclusion that Plaintiff did have a severe mental impairment (namely major 22 depressive disorder), and that a corresponding limitation to simple and routine tasks was warranted. 23 AR 27. The fact that the ALJ’s determination was more favorable to Plaintiff than the agency 24 psychologists’ determinations, but still resulted in a finding of non-disability, does not render the 25 ALJ’s determination unsupported by any medical opinion. 26 Nor is Plaintiff correct that the ALJ was unqualified to interpret the notes from his three 27 28 video visits with LCSW Sampson, compare those to the other mental status findings in the record, and reach a conclusion. The records in question were not particularly dense nor were they 2 unsusceptible to a lay understanding, as would be the case with complex imaging findings or 3 laboratory testing results. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (ALJ 4 5 formulated claimant’s residual functional capacity based on magnetic resonance images without 6 the benefit of any medical opinion about the functional limitations attributable to the impairments 7 depicted in the images); Goodman v. Berryhill, No. 2:17-CV-01228 CKD, 2019 WL 79016, at *5 8 (E.D. Cal. Jan. 2, 2019) (finding that the ALJ erred in adopting state agency consultants’ opinions 9 which were rendered before “plaintiff sustained a fall in November 2014” and before “an April 10 2015 MRI of the lumbar spine [which] showed L1 compression deformity with worsened kyphosis 11 . . .”); Stevenson v. Colvin, No. 2:15-CV-0463-CKD, 2015 WL 6502198, at *4 (E.D. Cal. Oct. 27, 12 13 2015) (holding that the ALJ erred in adopting the functionality opinion of a non-examining state 14 agency physician, an opinion which pre-dated “plaintiff’s treating records regarding the progression 15 of his spinal impairments, which were developed after the date of Dr. Pancho’s opinion.”). 16 Rather, the records in question reflected uncomplicated mental status examinations by a 17 licensed clinical social worker. Although these records demonstrated some mental deficiencies, 18 the ALJ reasonably concluded that the weight of the medical evidence demonstrated stable mental 19 status findings, as explained above. 20 21 As to his physical condition, Plaintiff likewise contends the ALJ erred in formulating the 22 RFC based on his independent review of records not reviewed by the state agency reviewers who 23 only reviewed two medical records from December of 2017. Br. at 21–22. The ALJ independently 24 interpreted later dated records, noting: 1) a November 2018 examination containing a single 25 mention of polyneuropathy; 2) an associated increased Cymbalta dosage to 90 mg daily; 3) that by 26 March 2019 the record noted improved diabetes control but continued lower extremity 27 28 polyneuropathy with moderate to severe parasthetic symptoms; and 4) records from July 2019 suggesting Plaintiff was walking around stores and picking up mail despite decreased effectiveness 2 from Lyrica in controlling his polyneuropathy. AR 24. 3 Similar to the mental health records, these records were not particularly voluminous, dense, 4 5 or unsusceptible to a lay understanding. Rather, they largely involved the severity of his 6 polyneuropathy, its responsiveness to Lyrica and Cymbalta, and its associated impact on his 7 activities. These were documents related to the same diabetic neuropathic condition referenced in 8 the records already reviewed by the state agency doctors. The ALJ specifically noted that those 9 physicians did not have access to the records which were generated during the two-year period 10 between reconsideration and the claimant’s hearing, with the more recent records demonstrating 11 moderate to severe polyneuropathy. In light of those later dated records, the ALJ only accorded 12 13 partial weight to the state agency physicians’ opinions and included additional restrictions they did 14 not include, namely a limitation to standing and walking 4 out of 8 hours and no more than frequent 15 performance of manipulative activities. AR 26–27 (citing AR 168–70). 16 In sum, the ALJ did not impermissibly play doctor, nor did he independently formulate an 17 RFC out of whole cloth based on a lay interpretation of complex medical records. Rather, he 18 reviewed records concerning a pre-existing condition (diabetic neuropathy) of which the state 19 agency physicians were already aware and made modifications to those physicians’ RFCs in light 20 21 of a worsening of the underlying condition. 22 Plaintiff offers no substantive discussion of the records pre-dating and post-dating the 23 agency physicians’ review. He makes no meaningful attempt to juxtapose the content of the two 24 periods of records, to explain why the later dated records were unsusceptible to a lay understanding, 25 or what additional restrictions those records might have supported. Rather, Plaintiff asserts with 26 no elaboration that the agency physicians only reviewed two records from December 2017, that 27 28 subsequent records supported additional restrictions, and that “[c]onsidering the spirited debate between hearing counsel and the ALJ, it is quite uncertain to what extent Plaintiff is limited by the 2 neuropathy in his hands.” Br. at 21-22 (emphasis added). 3 Plaintiff’s burden on appeal requires more than raising the possibility that a more restrictive 4 5 RFC was potentially warranted. His burden on appeal requires at least some attempt at explaining 6 what he believes was novel about the records post-dating the agency doctors’ review as it relates to 7 his use of his hands and why those records might have supported a more restrictive RFC than the 8 ALJ assessed, namely a limitation to no more than frequent manipulations. See Greenwood v. Fed. 9 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an 10 appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other 11 issues are presented for review”) (citation omitted). See Ukolov v. Barnhart, 420 F.3d 1002, 1005 12 13 (9th Cir. 2005) (“The claimant carries the initial burden of proving a disability.”) (citation omitted); 14 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an impairment is 15 insufficient proof of a disability” because the “claimant bears the burden of proving that an 16 impairment is disabling”). 17 The mental portion of the RFC was supported by substantial evidence, namely the numerous 18 treatments notes the ALJ cited which noted stable mental status, which outweighed the sparser 19 records from LCSW Sampson noting otherwise, and which justified the rejection of her opinion. 20 21 The physical portion of the RFC was supported by substantial evidence as well, namely the state 22 agency reviewers’ opinions opining Plaintiff was capable of performing light work with few 23 limitations to which the ALJ added restrictions in light of records demonstrating worsening diabetic 24 neuropathy. 25 26 27 28 B. Plaintiff’s Subjective Symptomology 1. Applicable Law 2 The ALJ is responsible for determining credibility,4 resolving conflicts in medical 3 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 4 5 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental 6 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 7 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 8 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 9 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 10 medical evidence of an impairment that could reasonably be expected to produce some degree of 11 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 12 13 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 14 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 15 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 16 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 17 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p 18 at *10. Subjective pain testimony “cannot be rejected on the sole ground that it is not fully 19 corroborated by objective medical evidence,” but the medical evidence “is still a relevant factor in 20 21 determining the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 22 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). 23 The ALJ must examine the record as a whole, including objective medical evidence; the 24 claimant’s representations of the intensity, persistence and limiting effects of his symptoms; 25 26 4 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 27 subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor 28 to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 16-3p at 1- 2. statements and other information from medical providers and other third parties; and any other 2 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 3 2. Analysis 4 5 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 6 be expected to cause the alleged symptoms and found no malingering. AR 23. Thus, the ALJ was 7 required to articulate clear and convincing reasons for rejecting Plaintiff’s reported symptoms. 8 Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017). 9 Plaintiff offers minimal discussion of this issue, largely reincorporated by reference his first 10 argument given the ALJ’s overlapping reasoning. Plaintiff contends that the ALJ’s reasons for 11 discounting his testimony “are largely based on findings already discussed at length above, and as 12 13 such, are not supported by substantial evidence.” Br. at 23. For the same reasons discussed above, 14 the Court disagrees. 15 As for the specific testimony Plaintiff underscores and the ALJ’s associated reasoning for 16 rejecting the same, Plaintiff takes issue with the daily activities the ALJ cited as a basis for 17 discounting his testimony. Plaintiff contends that watching TV, using his computer for facebook, 18 and playing 10 minutes of smartphone games are largely vegetative activities which are consistent 19 with his testimony that he has severe pain in his hands 90 percent of the time. Plaintiff cites 20 21 Langdon in which the court noted that it “is unclear . . . how Facebook or computer games would 22 relate to any paid work activity other than involving computers. These instead appear to be nothing 23 more than leisurely pastimes.” Langdon v. Berryhill, No. 3:16-CV-05871-TLF, 2017 WL 3188616, 24 at *7 (W.D. Wash. July 26, 2017). 25 Plaintiff’s argument again misses the mark. The claimant in Langdon suffered from 26 alcoholic pancreatitis, degenerative disc disease, and cognitive disorders. The ALJ in that case 27 28 referenced the claimant’s “ability to play memory games on the computer and using facebook” as evidence of his ability to concentrate. The court disagreed. Id. Here, by contrast, Plaintiff suffers 2 diabetic neuropathy. The ALJ here noted that “his testimony indicate(s) he is able to engage in a 3 number of activities that require grasping, handling, fingering, and feeling such as fishing, 4 5 cooking, driving a car, using a computer, and playing games on the smart phone.” AR 24 6 (emphasis added). Unlike in Langdon, the identified testimony is quite relevant to the capacity at 7 issue, namely Plaintiff’s capacity to use his hands despite his diabetic neuropathy. 8 Plaintiff contends that playing 10 minutes of smart phone games is still consistent with his 9 testimony that he suffers “severe pain in my hands like 90 percent of the time.” Br. at 24, citing 10 AR 55. That may be true. However, as quoted above, the ALJ identified numerous other activities 11 that Plaintiff reported being able to do with his hands. Granted, none of these activities establish 12 13 that Plaintiff could use his hands for manipulative activities for 2/3 of an 8-hour day in a competitive 14 work setting, as the ALJ found he could. But the cited activities are still inconsistent with the notion 15 that he suffers severe pain in his hands 90 percent of the time. Accordingly, the ALJ reasonably 16 rejected that testimony. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th 17 Cir. 2009) (finding the ALJ satisfied the “clear and convincing” standard for an adverse credibility 18 determination where claimant engaged in “gardening and community activities . . . evidence 19 [which] did not suggest Valentine could return to his old job,” but “did suggest that Valentine’s 20 21 later claims about the severity of his limitations were exaggerated.”) (emphasis added). 22 As to his ability to stand and walk, Plaintiff also takes issue with the ALJ’s rejection of his 23 testimony as inconsistent with his daily activities of walking around stores and picking up mail. 24 Plaintiff underscores that he also testified that these activities were very difficult to do because of 25 his pain; he did not testify that he is physically unable to walk. Br. at 25 (citing AR 69). Plaintiff 26 fails to articulate what restrictions would have logically followed had the ALJ accepted his 27 28 testimony as true. The RFC is not the most one can do while remaining pain free. Rather, it is the most one can do despite one’s limitations. See 20 C.F.R. § 404.1545(a)(1). 2 Moreover, the ALJ did not completely reject the notion that Plaintiff’s diabetic neuropathy 3 caused lower extremity pain ,nor did the ALJ find that he could stand and walk without limitation. 4 5 Indeed, the ALJ found that the medical records postdating the agency physicians’ review 6 established worsening diabetic neuropathy in his lower extremities and that additional limitations 7 were warranted including a limitation to standing and walking no more than 4 hours a day. AR 24. 8 Plaintiff fails to explain how the required inference to be drawn from his testimony about his leg 9 pain was that he was incapable of standing and walking 4 hours a day. Accordingly, his argument 10 falls short. See Juniel v. Saul, No. 1:20-CV-0421 JLT, 2021 WL 2349878, at *7 (E.D. Cal. June 9, 11 2021) (“Plaintiff fails to show this limitation to which he testified—and the ALJ acknowledged 12 13 remained in the treatment records—was not properly accounted for in his residual functional 14 capacity, which indicated Plaintiff “could not have public contact” and limited interaction with co- 15 workers.”). 16 To the extent Plaintiff testified to the existence of limitations greater than those included in 17 the RFC, the ALJ identified clear and convincing reasoning for rejecting the same, namely 18 Plaintiff’s reported activities of daily living. 19 VII. Conclusion and Order 20 21 For the reasons stated above, the Court finds that substantial evidence and applicable law 22 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from 23 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court 24 is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social 25 Security, and against Plaintiff Billy Ray Smith. 26 27 28 IT IS SO ORDERED. Dated: January 28, 2022 /s/ Gary S. Austin 2 UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28