(SS) Carlos v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BERTHA CHAVEZ CARLOS, Case No. 1:21-cv-00517-SAB 12 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL 13 v. (ECF Nos. 18, 24) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 Plaintiff Bertha Chavez Carlos (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her concurrently 23 submitted applications for Social Security benefits pursuant to Title II and Title XVI of the Social 24 Security Act. The matter is currently before the Court on the parties’ briefs, which were 25 submitted without oral argument, to Magistrate Judge Stanley A. Boone.1 For the reasons set 26 forth below, Plaintiff’s appeal shall be denied. 27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been 28 assigned to Magistrate Judge Stanley A. Boone for all purposes. (ECF Nos. 9, 12, 13.) 1 II. 2 BACKGROUND2 3 Plaintiff concurrently filed the instant applications for Social Security benefits under Title 4 II and for Supplemental Security Income (“SSI”) under Title XVI on February 4, 2016, alleging 5 disability beginning August 16, 2013. (See Admin. Rec. (“AR”) 269–77, ECF Nos. 14-1, 14-2.) 6 Plaintiff’s claims were initially denied on July 15, 2016, and denied upon reconsideration on 7 December 12, 2016. (AR 142–43; see also AR 31.) On September 26, 2018, Plaintiff, 8 represented by counsel3 and with the assistance of a Spanish interpreter, appeared for an 9 administrative hearing before Administrative Law Judge Timothy S. Snelling (the “ALJ”) in 10 Fresno, California. (AR 53–73.) Vocational expert (“VE”) Cheryl R. Chandler, also testified at 11 the hearing. On January 29, 2019, the ALJ issued a decision denying benefits. (AR 25–52.) On 12 February 5, 2020, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s 13 decision the final decision of the Commissioner. (AR 13–20.) 14 Plaintiff initiated this action in federal court on March 29, 2021, and seeks judicial review 15 of the denial of her applications for benefits. (ECF No. 1.) The Commissioner lodged the 16 administrative record on January 26, 2022. (ECF No. 14.) On May 16, 2022, Plaintiff filed her 17 opening brief. (ECF No. 18.) On July 13, 2022, Defendant filed a brief in opposition. (ECF No. 18 24.) No reply brief was filed, and the matter is now deemed submitted on the pleadings. 19 III. 20 LEGAL STANDARD 21 A. The Disability Standard 22 To qualify for disability insurance benefits under the Social Security Act, a claimant must 23 show he is unable “to engage in any substantial gainful activity by reason of any medically 24 25 2 For ease of reference, the Court will refer to the administrative record by the pagination provided by the Commissioner and as referred to by the parties, and not the ECF pagination. However, the Court will refer to the 26 parties’ briefings by their ECF pagination. 27 3 At the administrative level, Plaintiff was represented by attorney Linda Bosquez, of the law offices of Bosquez and Siemens. (See AR 31, 157–60.) Plaintiff is currently represented by attorney Jonathan O. Pena, of the law firm Pena 28 & Bromberg, PLC. (See ECF No. 18 at 1.) 1 determinable physical or mental impairment4 which can be expected to result in death or which 2 has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 3 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation 4 process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520;5 Batson v. 5 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the 6 sequential evaluation in assessing whether the claimant is disabled are: 7 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step 8 two. 9 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, 10 the claimant is not disabled. 11 Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 12 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 13 Step four: Does the claimant possess the residual functional 14 capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 15 Step five: Does the claimant’s RFC, when considered with the 16 claimant’s age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the 17 national economy? If so, the claimant is not disabled. If not, the claimant is disabled. 18 19 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 20 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 21 claimant establishes a prima facie case of qualifying disability once he has carried the burden of 22 proof from step one through step four. 23 Before making the step four determination, the ALJ first must determine the claimant’s 24 RFC. 20 C.F.R. § 416.920(e); Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 25 4 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 26 5 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations 27 which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. Accordingly, while Plaintiff seeks both disability and SSI benefits in this case, to the extent the cases cited herein 28 may reference one or both sets of regulations, the Court notes the cases and regulations are applicable to both claims. 1 1155971, at *2 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his] 2 limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 3 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant’s impairments, 4 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security 5 Ruling (“SSR”) 96-8p, available at 1996 WL 374184 (Jul. 2, 1996).6 A determination of RFC is 6 not a medical opinion, but a legal decision that is expressly reserved for the Commissioner. See 7 20 C.F.R. § 404.1527(d)(2) (RFC is not a medical opinion); 20 C.F.R. § 404.1546(c) (identifying 8 the ALJ as responsible for determining RFC). “[I]t is the responsibility of the ALJ, not the 9 claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 10 1044, 1049 (9th Cir. 2001). 11 At step five, the burden shifts to the Commissioner, who must then show that there are a 12 significant number of jobs in the national economy that the claimant can perform given his RFC, 13 age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 F.3d 14 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational Guidelines 15 (“grids”), or call a VE. See 20 C.F.R. § 404 Subpt. P, App. 2; Lounsburry, 468 F.3d at 1114; 16 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “Throughout the five-step evaluation, 17 the ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and 18 for resolving ambiguities.’ ” Ford, 950 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 19 1039 (9th Cir. 1995)). 20 B. Standard of Review 21 Congress has provided that an individual may obtain judicial review of any final decision 22 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 23 determining whether to reverse an ALJ’s decision, the Court reviews only those issues raised by 24 the party challenging the decision. See Lewis v. Apfel (Lewis I), 236 F.3d 503, 517 n.13 (9th Cir. 25 2001). Further, the Court’s review of the Commissioner’s decision is a limited one; the Court 26 6 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 27 C.F.R. § 402.35(b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 28 1989); see also Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006). 1 must find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 2 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “Substantial evidence is 3 relevant evidence which, considering the record as a whole, a reasonable person might accept as 4 adequate to support a conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir. 5 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)); 6 see also Dickinson v. Zurko, 527 U.S. 150, 153 (1999) (comparing the substantial-evidence 7 standard to the deferential clearly-erroneous standard). “[T]he threshold for such evidentiary 8 sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Rather, “[s]ubstantial evidence means more 9 than a scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 10 CalPortland Co. (CalPortland), 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and 11 citations omitted); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Even if the 12 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 13 454 F.3d at 1055–56. Moreover, the burden of showing that an error is not harmless “normally 14 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 15 409 (2009). 16 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 18 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 19 Nor may the Court affirm the ALJ on a ground upon which he did not rely; rather, the Court may 20 review only the reasons stated by the ALJ in her decision. Orn v. Astrue, 495 F.3d 625, 630 (9th 21 Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Nonetheless, it is not 22 this Court’s function to second guess the ALJ’s conclusions and substitute the Court’s judgment 23 for the ALJ’s; rather, if the evidence “is susceptible to more than one rational interpretation, it is 24 the ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting Burch v. Barnhart, 25 400 F.3d 676, 679 (9th Cir. 2005)). 26 IV. 27 THE ALJ’S FINDINGS OF FACT AND CONCLUSIONS OF LAW 28 The ALJ conducted the five-step disability analysis and made the following findings of 1 fact and conclusions of law as of the date of the decision, January 29, 2019 (AR 33–46): 2 At step one, the ALJ determined Plaintiff meets the insured status requirements of the 3 Social Security Act through September 30, 2016, and Plaintiff has not engaged in substantial 4 gainful activity since August 16, 2013, the alleged onset date. (AR 33 (citing 20 C.F.R. §§ 5 404.1571 et seq.; 416.971 et seq.).) 6 At step two, the ALJ determined Plaintiff has the following severe impairments: major 7 depressive disorder, right foot impairment status post-surgery, diabetes mellitus with neuropathy, 8 heart impairment, exogenous obesity, hepatitis C virus, osteoporosis, migraine headaches, a 9 history of cataract surgery, a history of chronic non healing ulcer on the right foot and ulceration 10 of the left foot great toe, a history of diverticulosis, and reflux esophagitis. (Id. (citing 20 C.F.R. 11 §§ 404.1520(c); 416.920(c)).) The ALJ also noted not all of these impairments are severe if 12 considered separately, but are “severe in combination.” (AR 34.) 13 The ALJ also considered Plaintiff’s mental impairment of major depressive disorder, and 14 determined it did not meet or medically equal the criteria of any listing. More specifically, the 15 ALJ determined Plaintiff does not satisfy the paragraph B criteria because she has no limitations 16 in three of the four broad functional areas, and her limitations in the fourth area are of mild 17 severity.7 (AR 34–35.) 18 At step three, the ALJ determined Plaintiff does not have an impairment or combination of 19 impairments that meets or medically equals the severity of one of the listed impairments in 20 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 35 (citing 20 C.F.R. §§ 404.1520(d); 404.1525; 21 404.1526; 416.920(d); 416.925; 416.926).) 22 23 7 The “paragraph B criteria” evaluates mental impairments in the context of four broad areas of functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or 24 maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The severity of the limitation a claimant has in each of the four areas of functioning is identified as either “no limitation,” “mild,” 25 “moderate,” “marked,” or “extreme.” Id. To satisfy the paragraph B criteria, a claimant must have an “extreme” limitation in at least one of the areas of mental functioning, or a “marked” limitation in at least two of the areas of mental functioning. Id. An “extreme” limitation is the inability to function independently, appropriately, or 26 effectively, and on a sustained basis. Id. A “marked” limitation is a seriously limited ability to function independently, appropriately, or effectively, and on a sustained basis. Id. A “moderate” degree of mental limitation 27 means that functioning in this area independently, appropriately, effectively, and on a sustained basis is “fair.” Id. And a “mild” degree of mental limitation means that functioning in this area independently, appropriately, 28 effectively, and on a sustained basis is “slightly limited.” Id. 1 Before proceeding to step four, the ALJ determined Plaintiff has the RFC to perform: 2 A wide range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c).[8] Specifically, the claimant can lift and carry 3 50 pounds occasionally and 25 pounds frequently. She can stand and/or walk for six hours in an eight-hour workday, and 4 sit for six hours in an eight-hour workday with normal breaks. She can frequently climb ramps and stairs, but she cannot 5 climb ladders, ropes, or scaffolds. She can frequently balance, stoop, kneel, crouch, and crawl, but she must avoid 6 concentrated exposure to extremes of heat and cold, wetness and humidity, very loud noise, very bright lights, pulmonary 7 irritants, and hazards. 8 (AR 35–46 (citing 20 C.F.R. §§ 404.1529; 416.929; 404.1527; 416.927; SSR 16-3p, available at 9 2017 WL 5180304 (Oct. 25, 2017)) (emphasis in original).) 10 At step four, the ALJ found Plaintiff is capable of performing her past relevant work as a 11 Cleaner, Industrial (Dictionary of Occupational Titles (“DOT”) 381.687-018), a medium work 12 position with a specific vocational preparation (“SVP”) level of 2. (AR 46 (citing 20 C.F.R. §§ 13 404.1565; 416.965).) The ALJ also noted the VE’s testimony was consistent with the DOT and, 14 with respect to the specified RFC limitations, the VE’s testimony was based on her professional 15 experience. (Id.) 16 Having concluded Plaintiff is capable of performing her past relevant work, the ALJ 17 concluded Plaintiff has not been under a disability, as defined in the Social Security Act, from 18 August 16, 2013 (the alleged onset date), through January 29, 2019 (the date of decision). (Id. 19 (citing 20 C.F.R. §§ 404.1520(f); 416.920(f)).) 20 V. 21 DISCUSSION 22 Plaintiff asserts two challenges on appeal: (1) the ALJ erred at step two in failing to 23 consider the established impairments of chronic diarrhea and diabetes mellitus to be severe 24 impairments, resulting in an incomplete RFC assessment; and (2) the ALJ failed to include work- 25 related limitations in the RFC consistent with the nature and intensity of Plaintiff’s limitations, 26 and failed to offer legitimate reasons for rejecting Plaintiff’s subjective complaints. (ECF No. 18 27 8 The SSA regulations define “medium work” as involving lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds, plus a good deal of walking or standing, or—when it involves 28 sitting most of the time—some pushing and pulling of arm or leg controls. See 20 C.F.R. § 404.1567. 1 at 3, 9–17.) 2 A. Step Two Evaluation of Severe Impairments 3 1. Legal Standard 4 At step two of the disability inquiry, the Commissioner determines whether the claimant 5 has a medically severe impairment or combination of impairments.9 Smolen, 80 F.3d at 1289–90 6 (citing Bowen v. Yuckert (Yuckert), 482 U.S. 137, 140–41 (1987)). In reaching this 7 determination, the ALJ must consider the combined effect of all of the claimant’s impairments 8 on her ability to function, without regard to whether each alone was sufficiently severe.” Smolen, 9 80 F.3d at 1290 (citing 42 U.S.C. § 423(d)(2)(B)). Further, the Regulations require “a careful 10 evaluation of the medical findings which describe the impairment(s) and an informed judgment 11 about its (their) limiting effects on the individual’s physical and mental ability(ies) to perform 12 basic work activities…” SSR 85-28, at *4; see also Yuckert, 841 F.2d at 306 (adopting SSR 85- 13 28). At step two, “medical evidence alone is evaluated in order to assess the effects of the 14 impairment(s) on ability to do basic work activities.” SSR 85-28, at *4. 15 Notably, Ninth Circuit precedent treats step two of the disability inquiry as “a de minimis 16 screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290. Thus, “[i]f an 17 adjudicator is unable to determine clearly the effect of an impairment or combination of 18 impairments on the individual’s ability to do basic work activities, the sequential evaluation 19 should not end with the not severe evaluation step.” See Webb v. Barnhart, 433 F.3d 683, 687 20 (9th Cir. 2005) (citing SSR 85-28). Nonetheless, “[t]he plaintiff has the burden of establishing 21 the severity of the impairment.” See, e.g., Burch, 400 F.3d at 679 (“The claimant carries the 22 initial burden of proving a disability in steps one through four of the analysis.”) (citation omitted). 23 2. Analysis 24 Plaintiff challenges the ALJ’s step two determination on the basis that the ALJ failed to 25 consider the established impairments of chronic diarrhea and diabetes mellitus to be severe 26 9 The SSA and caselaw discuss the step two severity determination in terms of what is “not severe.” An impairment is “not severe” if it does not significantly limit the claimant’s physical ability to do basic work activities. 20 C.F.R. 27 §§ 404.1520(c); 404.1521(a)(1991). Basic work activities are defined as “abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.” 20 28 C.F.R. § 140.1521(b); SSR 85-28, available at 1985 WL 56856 (Jan. 1, 1985). 1 impairments. (ECF No. 18 at 3.) 2 a. Diabetes Mellitus 3 Plaintiff’s challenge with respect to the diabetes mellitus is entirely unfounded. A plain 4 reading of the ALJ’s decision shows he included diabetes mellitus in his step two analysis and 5 deemed it to be severe in combination with Plaintiff’s other identified impairments: 6 The claimant has the following medically severe combination of impairments: major depressive disorder; right foot impairment 7 status post-surgery; diabetes mellitus with neuropathy … 8 The medically severe combination of the above impairments caused more than minimal functional limitations. These impairments are 9 established by the medical evidence and are “severe in combination” within the meaning of the Regulations because, as 10 discussed in detail below, these impairments “in combination” are more than slight abnormalities and “in combination” cause more 11 than minimal limitations in the claimant’s ability to perform basis work activities. (SSR 86-8). While not all of these impairments are 12 severe if considered separately, the claimant’s medically determinable impairments, in combination, are severe (20 CFR 13 404.1523 and 416.923). Once the claimant has established a severe impairment or combination of impairments, all medically 14 determinable impairments must be considered in deciding the appropriate residual functional capacity (20 CFR 404.1545(e) and 15 416.945(e)). 16 (AR 33–34 (emphasis added).) The Court acknowledges it appears unclear which of the listed 17 impairments, if any, the ALJ considered to be nonsevere if considered separately, even though 18 they are all severe in combination; however, the Court is unpersuaded that such a distinction 19 comports with the step two requirements set forth by the Regulations and legal precedent. As 20 noted, step two requires the ALJ to determine whether the claimant has a medically severe 21 impairment or combination of impairments. Smolen, 80 F.3d at 1289–90; Yuckert, 482 U.S. at 22 140–41; SSR 85-28. Here, the ALJ determined Plaintiff had a severe combination of 23 impairments. This appears to satisfy the “de minimis screening” purpose of the step two analysis. 24 Furthermore, the ALJ plainly considered and addressed Plaintiff’s diabetes mellitus during the 25 subsequent steps of the disability inquiry (see AR 37, 38, 39, 40, 44), and the RFC limits Plaintiff 26 to medium work with multiple restrictions. On this record, it appears the ALJ considered 27 Plaintiff’s diabetes mellitus to be a severe impairment. See also Molina v. Astrue, 674 F.3d 1104, 28 1121 (9th Cir. 2012), superseded by regulation on other grounds (“Even when an agency explains 1 its decision with less than ideal clarity, we must uphold it if the agency’s path may reasonably be 2 discerned.”). Thus, as to the diabetes mellitus, there is no error at step two. 3 b. Chronic Diarrhea 4 The issue of whether the ALJ erred in failing to consider Plaintiff’s “established 5 impairment” of “chronic diarrhea” at step two is a different issue. It is undisputed that the ALJ 6 does not include “chronic diarrhea” as an impairment in the group of impairments he considered 7 to be “severe in combination” at step two. (See ECF No. 24 at 8.) There is, however, some 8 question as to whether he was required to do so. That is, the Court is not entirely persuaded that 9 Plaintiff sufficiently established her diarrhea constitutes a “medically determinable impairment,” 10 a burden which is hers. See Ford, 950 F.3d at 1148 (claimant has burden of proof at steps one 11 through four); Burch, 400 F.3d at 679 (same). 12 A “medically determinable impairment” under the Regulations must be established 13 through medically acceptable clinical diagnostic techniques. Savannah v. Astrue, 252 Fed. 14 App’x. 783, 785 (9th Cir. 2007) (citing 20 C.F.R. § 416.908; 20 C.F.R. § 416.905(a); 42 U.S.C. § 15 423(d)(3)). This requires the claimant to produce “medical evidence consisting of signs, 16 symptoms, and laboratory findings, not only a statement of symptoms.” Id. (citing 20 C.F.R. § 17 416.908) (internal quotations and edits omitted); compare id. (holding diagnosis by a medical 18 expert constitutes objective medical evidence of an impairment) with Ukolov v. Barnhart, 420 19 F.3d 1002, 1006 (9th Cir. 2005) (claimant failed to meet his burden of establishing disability 20 where none of the medical opinions he presented included a finding, diagnosis, or objective test 21 results of impairment). 22 Here, it is unclear from the medical evidence that Plaintiff had an established impairment 23 of chronic diarrhea.10 Rather, at most, it appears Plaintiff’s diarrhea may have reasonably been 24 attributed as a symptom of conditions addressed and discussed by the ALJ. For example, an 25 August 2013 medical note indicates Plaintiff went to the emergency room for vomiting and 26 10 It also appears notable that Plaintiff’s initial disability application only alleges disability based on right foot problems, diabetes, hypertension, and heart problems, and does not mention chronic diarrhea. (AR 36 (citing AR 27 304).) Similarly, neither Plaintiff’s initial disability application, nor the third-party statement mentions Plaintiff had issues with diarrhea, despite reporting to a medical provider in 2013 that she had a history of chronic diarrhea. (See 28 AR 303–23.) 1 diarrhea, and was assessed with acute gastroenteritis. (AR 38 (citing AR 525–27).) In December 2 2013, Plaintiff underwent a consultation and colonoscopy for a reported “history of chronic 3 diarrhea and stool incontinence”; and it was noted these symptoms may be related to her 4 longstanding diabetes mellitus causing neuropathy. (Id. (citing AR 420).) And in December 5 2017, Plaintiff was treated by Dr. Jalodia for her symptoms of abdominal pain and diarrhea, and 6 was assessed with internal hemorrhoids and diverticulosis of the colon; she was advised to eat a 7 high fiber diet. (AR 44 (citing AR 870–71).) Thus, while the ALJ did not list “chronic diarrhea” 8 as an impairment, he does identify Plaintiff’s diabetes mellitus and diverticulosis—conditions of 9 which the medical records indicate Plaintiff’s diarrhea was a symptom—as severe impairments. 10 Indeed, the questions the Plaintiff’s own attorney posed to her at the September 26, 2018 hearing 11 support the viewpoint that Plaintiff’s diarrhea was a symptom of her other impairments, rather 12 than an independent impairment itself. (See AR 61 (Q: “as a result of the diverticulitis, the 13 diabetes, do you have stomach problems?”; A: “Yes, many.”; Q “And how does that affect you on 14 a daily basis … Do you have diarrhea?”; A: “A lot.”).) 15 Furthermore, the medical evidence supports the ALJ’s omission of diarrhea-based 16 limitations in the RFC determination. Notably, Plaintiff failed to report chronic diarrhea during a 17 number of medical examinations. For example, she did not report diarrhea during her October 18 2014 evaluations with Drs. Rios and Portnoff. (See AR 39–40 (citing AR 591–94, 598–601).) 19 Consequently, these doctors did not assess such condition. And Plaintiff denied diarrhea in other 20 medical notes. (See AR 41 (citing AR 759–60); see also AR 446, 470, 576, 605, 609, 632, 635, 21 681, 694, 704, 707, 718, 720, 723, 726, 741, 743, 755, 779, 783, 795, 799.) The ALJ also noted 22 Plaintiff did not seek any treatment for abdominal pain or diarrhea after December 2017. (AR 23 44.) Finally, when Plaintiff reported to Dr. Damania in April 2018 for an internal medicine 24 evaluation and alleged she had experienced constant abdominal pain and diarrhea for the past two 25 years, she also acknowledged she had received “no definite diagnosis” relating to her diarrhea. 26 (See AR 43–44 (citing AR 856–66).) Further, Dr. Damania ultimately did not opine any 27 limitations were required to accommodate Plaintiff for diarrhea. (AR 41; see also AR 44–45 28 (according “great weight” to Dr. Damania’s opinion)); Ukolov, 420 F.3d at 1006. Meanwhile, 1 Plaintiff has not identified any medical opinion evidence in which concrete limitations for her 2 diarrhea were identified. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 3 2008) (holding the RFC assessment adequately captures restrictions if it is consistent with the 4 concrete limitations in the medical opinions). On this record, the Court is not persuaded that 5 Plaintiff has met her burden of establishing chronic diarrhea was a “medically determinable 6 impairment” under the Regulations, or that the ALJ was required to include a diarrhea-based 7 limitation in the RFC determination. 8 Furthermore, even if the ALJ erred at step two by not including Plaintiff’s “chronic 9 diarrhea” in the list of severe combination of impairments, Plaintiff has not met her burden of 10 establishing that such error was not harmless. As previously noted, even if the ALJ has erred, the 11 Court may not reverse the ALJ’s decision where the error is harmless. Stout, 454 F.3d at 1055– 12 56. An error is harmless if it is “inconsequential to the ultimate nondisability determination.” 13 Molina, 674 F.3d at 1117 (quoting Lewis I, 236 F.3d at 503) (holding “an error is harmless so 14 long as there remains substantial evidence supporting the ALJ’s decision and the error ‘does not 15 negate the validity of the ALJ’s ultimate conclusion.’ ”). Moreover, it is the Plaintiff’s burden to 16 establish an error is not harmless. See Shinseki, 556 U.S. at 409. Within the context of a step 17 two challenge, again, the aforementioned authorities indicate the purpose of the step two 18 determination is to serve as a de minimis screening device. Hence, the Regulations provide that, 19 where the ALJ is unable to clearly determine whether an impairment is sufficiently severe, he is 20 directed to err on the side of inclusivity and proceed to subsequent steps of the sequential 21 disability inquiry, which require a more in-depth analysis of the record. 22 Here, the ALJ did proceed with the disability inquiry; moreover, he plainly considered the 23 Plaintiff’s diarrhea in his evaluation of the medical and nonmedical evidence to reach the RFC 24 determination. (See AR 37, 38, 41, 43, 44); see also Lewis v. Astrue (Lewis II), 498 F.3d 909, 25 911 (9th Cir. 2007) (“Even assuming that the ALJ erred in neglecting to list the bursitis at Step 2, 26 any error was harmless” because the ALJ discussed bursitis later in the disability analysis); 27 Schneider v. Comm’r, 433 Fed. Appx. 507, 509 (9th Cir. 2011) (ALJ’s failure to address 28 claimant’s migraines was harmless because medical record did not support finding that migraines 1 would affect claimant’s functioning at work). Plaintiff has not challenged the ALJ’s evaluation of 2 the medical record and opinions or otherwise demonstrated the medical evidence compels a 3 different RFC determination. 4 For the foregoing reasons, the Court concludes Plaintiff’s step two argument is unavailing. 5 B. Evaluation of Plaintiff’s Subjective Testimony 6 1. Legal Standard11 7 The ALJ is responsible for determining credibility,12 resolving conflicts in medical 8 testimony, and resolving ambiguities. Andrews, 53 F.3d at 1039. A claimant’s statements of 9 pain or other symptoms are not conclusive evidence of a physical or mental impairment or 10 disability. 42 U.S.C. § 423(d)(5)(A); SSR 16-3p; see also Orn, 495 F.3d at 635 (“An ALJ is not 11 required to believe every allegation of disabling pain or other non-exertional impairment.”). 12 Rather, an ALJ performs a two-step analysis to determine whether a claimant’s testimony 13 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 14 (9th Cir. 2014); Smolen, 80 F.3d at 1281; SSR 16-3p, at *3. First, the claimant must produce 15 objective medical evidence of an impairment that could reasonably be expected to produce some 16 degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. 17 If the claimant satisfies the first step and there is no evidence of malingering, “the ALJ may reject 18 the claimant’s testimony about the severity of those symptoms only by providing specific, clear, 19 and convincing reasons for doing so.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 20 (citations omitted). 21 If an ALJ finds that a claimant’s testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a 22 credibility determination citing the reasons why the testimony is unpersuasive. The ALJ must specifically identify what testimony is 23 credible and what testimony undermines the claimant’s complaints. In this regard, questions of credibility and resolutions of conflicts in 24 25 11 Although Defendant emphasizes disagreement with the “clear and convincing reasons” standard in order to preserve the issue for future appeals, Defendant acknowledges it is the applicable standard for weighing credibility in the Ninth Circuit. (ECF No. 24 at 12 n.5.) 26 12 SSR 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p 27 eliminated the use of the term “credibility” to emphasize that subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor to “determine how symptoms limit ability to perform work-related 28 activities.” SSR 16-3p, at *1-2. 1 the testimony are functions solely of the Secretary. 2 Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (quotation omitted); see also Lambert, 980 3 F.3d at 1277. 4 Subjective pain testimony “cannot be rejected on the sole ground that it is not fully 5 corroborated by objective medical evidence.” See Vertigan, 260 F.3d at 1049 (“The fact that a 6 claimant’s testimony is not fully corroborated by the objective medical findings, in and of itself, 7 is not a clear and convincing reason for rejecting it.”); see also 20 C.F.R. § 404.1529(c)(2) (“[W]e 8 will not reject your statements about the intensity and persistence of your pain or other symptoms 9 or about the effect your symptoms have on your ability to work solely because the available 10 objective medical evidence does not substantiate your statements.”). Rather, where a claimant’s 11 symptom testimony is not fully substantiated by the objective medical record, the ALJ must 12 provide an additional reason for discounting the testimony. See Burch, 400 F.3d at 680–81; see 13 also Stobie v. Berryhill, 690 Fed. App’x 910, 911 (9th Cir. 2017) (finding ALJ gave two specific 14 and legitimate clear and convincing reasons for rejecting symptom testimony: (1) insufficient 15 objective medical evidence to establish disability during the insured period and (2) symptom 16 testimony conflicted with the objective medical evidence). 17 Nevertheless, the medical evidence “is still a relevant factor in determining the severity of 18 [the] claimant’s pain and its disabling effects.” Burch, 400 F.3d at 680–81; Rollins v. Massanari, 19 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). Indeed, Ninth 20 Circuit caselaw has distinguished testimony that is “uncorroborated” by the medical evidence 21 from testimony that is “contradicted” by the medical records, deeming the latter sufficient on its 22 own to meet the clear and convincing standard. See Hairston v. Saul, 827 Fed. App’x 772, 773 23 (9th Cir. 2020) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 24 2008)) (“[c]ontradiction with the medical record is a sufficient basis for rejecting the claimant’s 25 subjective testimony.”); see also Woods v. Comm’r of Soc. Sec. (Woods I), No. 1:20-cv-01110- 26 SAB, 2022 WL 1524772, at *10 n.4 (E.D. Cal. May 13, 2022) (“While a lack of objective 27 medical evidence may not be the sole basis for rejection of symptom testimony, inconsistency 28 with the medical evidence or medical opinions can be sufficient.” (emphasis in original)). 1 Additional factors an ALJ may consider include the location, duration, and frequency of 2 the pain or symptoms; factors that cause or aggravate the symptoms; the type, dosage, 3 effectiveness or side effects of any medication; other measures or treatment used for relief; 4 conflicts between the claimant’s testimony and the claimant’s conduct—such as daily activities, 5 work record, or an unexplained failure to pursue or follow treatment—as well as ordinary 6 techniques of credibility evaluation, such as the claimant’s reputation for lying, internal 7 contradictions in the claimant’s statements and testimony, and other testimony by the claimant 8 that appears less than candid. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); 9 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 10 1028, 1040 (9th Cir. 2007); Smolen, 80 F.3d at 1284. Thus, the ALJ must examine the record as 11 a whole, including objective medical evidence; the claimant’s representations of the intensity, 12 persistence and limiting effects of his symptoms; statements and other information from medical 13 providers and other third parties; and any other relevant evidence included in the claimant’s 14 administrative record. SSR 16-3p, at *5. 15 Finally, so long as substantial evidence supports the ALJ’s assessment of a claimant’s 16 subjective complaint, the Court “will not engage in second-guessing.” Thomas, 278 F.3d at 959. 17 2. Plaintiff’s Testimony 18 In her disability applications, Plaintiff alleges disability based on right foot problems, 19 diabetes, hypertension, and heart problems. (AR 304.) She alleges she stopped working because 20 her job ended but she also believes her conditions became severe enough to keep her from 21 working. (Id.) She reported dizziness, headaches, weakness, shortness of breath, and loss of 22 short-term memory. (AR 297.) 23 At the September 26, 2018 hearing, Plaintiff testified she is unable to work due to stomach 24 problems—mainly diarrhea—which result from her diverticulitis and diabetes. (AR 61.) Plaintiff 25 testified that after eating, she spends a 60–90 minutes in the restroom, and that she has a lot of 26 diarrhea. Plaintiff testified she has accidents four times a week and she currently wears a diaper, 27 but the diaper doesn’t always catch the waste and sometimes spills out. (AR 61–62.) She went to 28 the emergency room in February 2018 for a bout of diarrhea that would not stop; she was 1 discharged the same day. (AR 62–63, 66.) Plaintiff testified her diarrhea causes her to be tired 2 and exhausted and feel sad. (AR 63.) She tried multiple medications but none resolved the issue 3 and she has stopped taking medication. (AR 66.) 4 Plaintiff testified her foot ulcers related to her diabetes have resolved, post-surgery, but 5 she still experiences difficulty walking, and needs to use a cane because the strength in her legs 6 gives out. (AR 62, 68.) Plaintiff confirmed, however, that her doctor did not prescribe the cane 7 in connection with her foot issues, but that she received it in 1998 when she fractured her foot. 8 (AR 69–70.) Plaintiff testified that her diabetes is under control, but acknowledged that it was 9 not very well-controlled for a period of time in which she was having diabetic ulcers on her foot. 10 (AR 68.) Plaintiff testified her doctors changed and titrated her medications multiple times to get 11 her diabetes under control. (Id.) She received education from her medical providers on better 12 diet and lowering her sugar intake. (AR 69.) 13 Plaintiff reported she cannot stand for too long; she sometimes cannot finish cooking 14 because she has to sit down to “get past the dizziness”; she can clean the house, but she has to 15 take several breaks, and her foot swells up sometimes; she cannot walk more than one block, at a 16 very slow pace; she cannot lift anything heavier than a gallon of milk; her daughters help her with 17 the grocery shopping and most things; and she can wash dishes. (AR 297–99.) At the hearing, 18 Plaintiff testified she does housework; she sometimes goes to church; and she does the cooking 19 most of the time. (AR 63, 70.) Plaintiff’s husband attends the parent-teacher conferences and 20 school functions for their 12-year-old son. (AR 70.) Plaintiff testified her ability to perform 21 these activities is limited by how much time she is in the restroom. (See AR 63, 70.) 22 3. ALJ’s Summary of the Relevant Medical Evidence 23 As relating to her diabetes, for example, the ALJ noted Plaintiff was briefly hospitalized 24 in March 2014 for pneumonia and treatment of her “underlying pressure injury and ulceration,” of 25 her right foot. Plaintiff was prescribed a wheelchair at that time; however, it was noted that 26 Plaintiff was not managing her glucose levels. (See also AR 68 (in response to Plaintiff’s 27 statement that her diabetes were under control, the ALJ commented, “But it must not have been 28 very well controlled for a period of time if you were having these diabetic ulcers. Would you 1 agree with that statement?”, to which Plaintiff responded in the affirmative).) As of April 2014, 2 Plaintiff was observed with an antalgic gait, and furthermore, was ambulating well and without 3 signs of dizziness. Foot x-rays showed “no acute process.” On May 14, 2014, Plaintiff 4 underwent an arthroplasty of the fourth and fifth metaphalangeal joint of the right foot for an 5 ulcer on the plantar aspect of the right foot. Pathology showed no evidence of osteomyelitis, 6 marked acute inflammation, dysplasia, or malignancy. Post-operatively, Plaintiff experienced 7 some swelling and was instructed to wear normal shoes as tolerated. In June 2014, it was 8 reported Plaintiff had healed from surgery and there was no evidence of further infection. 9 In August 2014, however, Plaintiff reported to Dr. Sciaroni for a blister on her left great 10 toe (an ulcer), which required treatment. But the ALJ notes this appears to have resulted from 11 Plaintiff going to Santa Cruz and walking around in slipper-like shoes. The ulcer was debrided 12 and Plaintiff was prescribed medication. She was instructed to keep the wound covered and not 13 let her foot get wet, and to return to the office in one week for a follow up. She was also 14 “admonished for non-compliance” with the treatment plan. (AR 39.) 15 Plaintiff did not return for her follow up appointment, but instead sought treatment in 16 November 2014, three months later. Plaintiff had another blister (ulceration), which may have 17 been caused or exacerbated from wearing shoes that were too small. Plaintiff exhibited minimal 18 tenderness and an x-ray showed soft tissue swelling with no evidence of osteomyelitis. As of 19 December 2014, Plaintiff was again wearing shoes that were too tight, but the ulcer was 20 diminishing in size. Plaintiff was fitted for new orthotic shoes in January 2015. 21 Plaintiff did not show up for her scheduled appointment in March 2015; Plaintiff 22 explained this was because she was in Mexico at the time. Instead, Plaintiff returned in 23 November 2015 with a “massive intractable plantar keratosis” on her right foot; this required 24 Plaintiff to again use a wheelchair and be non-weight bearing, temporarily. At a January 2016 25 cardiac consultation, however, Plaintiff’s physical examination was unremarkable; she had a 26 normal gait and reported she was able to exercise. 27 Finally, in March 2016, Plaintiff was fitted with new shoes and insoles after undergoing 28 surgery on her right foot and she did not return for any additional treatment thereafter. 1 With respect to Plaintiff’s allegations of debilitating chronic diarrhea, the ALJ notes 2 Plaintiff sought treatment at the emergency room for vomiting and diarrhea in August 2013, 3 reporting that since a laparoscopic procedure in 2007, she got frequent diarrhea; she was assessed 4 with acute gastroenteritis, was in no distress and was ambulatory on examination, and felt better 5 upon leaving the emergency department that same day. (See AR 38.) Thereafter, it appears that 6 Plaintiff only sporadically sought treatment related to her diarrhea. In December 2013, Plaintiff 7 underwent a colonoscopy; she was assessed with small internal hemorrhoids and no sphincter 8 tone, indicating sphincter dysfunction that may be related to her diabetes mellitus. In April 2014, 9 Plaintiff complained of dizziness and left upper abdominal pain; it was noted her dizziness 10 improved with intravenous fluids, and her workup revealed hyperglycemia likely secondary to 11 volume depletion. In February 2015, Plaintiff was referred for dietary counseling. In August 12 2015, Plaintiff denied diarrhea. In September 2015, Plaintiff underwent an upper GI endoscopy 13 that showed grade A reflux esophagitis and gastritis; the ALJ notes that follow up appointments 14 were unremarkable. (AR 41.) In May 2016, Plaintiff underwent an ultrasound of her abdomen 15 that showed the gallbladder was absent or severely contracted, “in an otherwise unremarkable 16 examination of the abdomen.” (AR 43.) In February 2017, Plaintiff underwent an abdominal 17 ultrasound for pain that showed mild splenomegaly and cholecystectomy. Plaintiff’s last 18 treatment appointment was with Dr. Jalodia in December 2017. At that time, she underwent a 19 colonoscopy that showed internal hemorrhoids and diverticulosis of the colon, “was advised to 20 eat a high fiber diet, and has not sought treatment for abdominal pain or diarrhea since that time.” 21 (AR 44.) 22 4. Analysis 23 As noted, the ALJ determined Plaintiff has a severe combination of impairments. As a 24 result, the ALJ was required to make a credibility finding as to Plaintiff’s testimony. Valentine, 25 574 F.3d at 693; Lambert, 980 F.3d at 1277. Because the ALJ made no finding that Plaintiff was 26 malingering, he was required to give clear and convincing reasons as to why he did not find 27 Plaintiff’s subjective contentions about her limitations to be persuasive. Id. 28 Here, the ALJ provided several clear and convincing reasons for reaching an adverse 1 credibility determination: (1) Plaintiff’s testimony is inconsistent with the medical record; (2) it is 2 inconsistent with the medical opinion evidence; (3) Plaintiff had unexplained gaps in treatment/a 3 lack of treatment; and (4) Plaintiff was noncompliant with her treatment plan. Any one of these 4 reasons constitutes a sufficient basis to support the ALJ’s adverse credibility determination. See, 5 e.g., Stobie, 690 Fed. App’x at 911 (finding symptom testimony conflicting with the objective 6 medical evidence was a specific and legitimate clear and convincing reason for rejecting 7 symptom testimony); Carmickle, 533 F.3d at 1160 (affirming ALJ’s determination claimant’s 8 testimony was “not entirely credible” based on contradictions with medical opinion); Roberts v. 9 Berryhill, 734 Fed. App’x 489, 491 (9th Cir. 2018) (“unexplained gaps in treatment may support 10 an ALJ’s credibility determination”) (citing Orn, 495 F.3d at 638); Stenberg v. Comm’r Soc. Sec. 11 Admin., 303 Fed. App’x 550, 552 (9th Cir. 2008) (finding noncompliance with recommended 12 treatments constituted substantial evidence in support of finding the claimant was not entirely 13 credible). 14 a. Inconsistency with the Medical Record 15 In general, the ALJ found Plaintiff’s claim of totally debilitating impairments was 16 inconsistent with the medical record, which indicated periods of recovery, normal examination 17 results, the ability to perform certain activities, and gaps/noncompliance in treatment. See 18 Molina, 674 F.3d at 1112–13 (citing Turner, 613 F.3d at 1225; Valentine, 574 F.3d at 693); 19 Ghanim, 763 F.3d at 1165. For example, the ALJ identified several treatment notes 20 demonstrating that, despite her allegations of requiring use of a cane, Plaintiff was able to 21 ambulate without one; that, even when ambulating with an antalgic gait, she was able to do so 22 without difficulty; and on many occasions, Plaintiff’s gait was normal. The ALJ also identified 23 clinical records that indicated “no acute process,” soft tissue swelling with no evidence of 24 osteomyelitis, and a number of “unremarkable” examinations, in which Plaintiff’s range of 25 motion and other vitals were “within normal limits.” The ALJ also noted the interims between 26 Plaintiff’s office visits, which were often several months in length. And the ALJ noted Plaintiff’s 27 reports of taking trips to Santa Cruz and Mexico, walking around, being able to exercise, and 28 other activities that are inconsistent with allegations of totally debilitating conditions. The ALJ’s 1 reference to the medical records to identify such inconsistencies in Plaintiff’s testimony thus 2 constitutes a specific, clear, and convincing reason supported by substantial evidence in the 3 record that supports the ALJ’s adverse credibility determination. Hairston, 827 Fed. App’x at 4 773; Carmickle, 533 F.3d at 1161; see also Woods I, 2022 WL 1524772, at *10 n.4. 5 In particular, the ALJ found Plaintiff’s statements about the intensity, persistence, and 6 limiting effects of her symptoms were inconsistent with the medical record because symptoms 7 “have not persisted.” (AR 44.) That is, the ALJ noted Plaintiff “was fitted with orthotic shoes in 8 March 2016, and there is no evidence that the claimant returned to see Dr. Sciaroni [DPM] since 9 that time.” (AR 44 (citing AR 657).) Similarly, the ALJ noted Plaintiff was last treated for 10 abdominal pain and diarrhea by Dr. Jalodia in December 2017, and has not sought treatment for 11 abdominal pain or diarrhea since that time. (AR 44 (citing AR 870–71).) 12 It appears Plaintiff only takes issue with this last finding of the ALJ, that her testimony as 13 to the persistence of her symptoms is inconsistent with the medical records because the symptoms 14 “have not persisted.” (ECF No. 18 at 15–16.) Because Plaintiff does not address the ALJ’s other 15 reasons for discounting her testimony, she has waived those arguments on appeal. On this basis 16 alone, the ALJ’s credibility determination must be upheld. Lewis I, 236 F.3d at 517 n.13; Indep. 17 Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (stating court “will not consider 18 any claims that were not actually argued in appellant’s opening brief” and will only “review … 19 issues which are argued specifically and distinctly in a party’s opening brief.”); see also Ruiz v. 20 Comm’r of Soc. Sec. Admin., 490 Fed. App’x. 907, 908–09 (9th Cir. 2012) (affirming ALJ’s 21 decision to deny benefits and concluding that, because the ALJ listed nine rationale for rejecting 22 the claimant’s testimony and the claimant challenged only one of the rationale, the ALJ’s 23 conclusion would still be supported by the unchallenged rationale). Nonetheless, the Court also 24 finds Plaintiff’s instant argument to be unavailing. 25 Plaintiff does not dispute that she stopped seeking treatment in 2016 and 2017, 26 respectively; instead, Plaintiff argues the ALJ failed to consider that her foot ulcers and diarrhea 27 lasted from 2013–2016; accordingly, Plaintiff argues the ALJ should have determined she was 28 disabled during that period. 1 As pertaining to her allegations of foot ulcers, Plaintiff argues that, even though she 2 acknowledged at the hearing that she no longer had any problems with her feet and no foot ulcers 3 were present since 2016, the ALJ failed to consider her assertion that her foot ulcers were slow 4 healing and constituted a continuing condition. This argument is not fully supported by the 5 medical record. The ALJ noted there were multiple gaps in treatment, during which time Plaintiff 6 failed to attend her scheduled appointments, was noncompliant with her diet (which appears to 7 have resulted in uncontrolled diabetes flare ups in her feet and elsewhere), and was noncompliant 8 with her treatment plan to wear certain footwear. For example, while acknowledging Plaintiff 9 was in a wheelchair and her November 2015 ulcer was “slowly healing” as of December 2015, 10 the ALJ also noted the ulcers had developed while Plaintiff was “in Mexico,” and that she failed 11 to visit Dr. Sciaroni’s office for ten months prior to that—suggesting that Plaintiff needlessly 12 exacerbated her own condition, which otherwise would have been manageable. As previously 13 noted, failure to seek treatment, noncompliance with a treatment plan, and unexplained gaps in 14 treatment each constitute specific and legitimate reasons to reach an adverse credibility finding. 15 Molina, 674 F.3d at 1114; Stenberg, 303 Fed. App’x at 552; Fair v. Bowen, 885 F.2d 597, 603 16 (9th Cir. 1989). On this record, the ALJ’s discounting of Plaintiff’s allegations or continuing or 17 recurring ulcers on the basis that she failed to seek or comply with treatment was reasonable and 18 supported by substantial evidence. Further, Plaintiff fails to address the ALJ’s findings of gaps in 19 treatment and noncompliance with treatment plans and waives such argument. Lewis I, 236 F.3d 20 at 517 n.13; Indep. Towers of Wash., 350 F.3d at 929. 21 Plaintiff similarly argues the ALJ failed to consider the entire period of time during which 22 she suffered from diarrhea symptoms. (ECF No. 18 at 16.) This argument is similarly 23 unpersuasive. As with Plaintiff’s diabetes symptoms, the ALJ noted Plaintiff infrequently sought 24 treatment for her diarrhea. Plaintiff’s own summary of the medical evidence demonstrates this: 25 Plaintiff acknowledges she sought treatment for her diarrhea in December 2013; January 2014; 26 August 2015; October 2015; August 2016; and February, May, July, and August 2017. (Id. at 6– 27 7.) Notably, Plaintiff acknowledges she never received a diagnosis relating to her diarrhea. In 28 addition, the cause of Plaintiff’s diarrhea appears to be different across medical visits. For 1 example, sometimes it was assessed that the diarrhea resulted from infection, at other times, it 2 was assessed to be a complication from Plaintiff’s diabetes. (See AR 856.) Finally, as previously 3 noted, there were multiple medical visits in which Plaintiff denied having diarrhea. Based on the 4 large gaps of time between medical appointments seeking treatment, varying causes, and lack of a 5 medical diagnosis, it was reasonable for the ALJ to conclude Plaintiff’s diarrhea was not a 6 continuous issue. 7 Plaintiff also argues the ALJ failed to consider the stated reason she has not sought further 8 treatment (i.e., that she had tried multiple medications without success). (ECF No. 18 at 16.) The 9 ALJ plainly rejected this reason as not credible at the hearing. (AR 66–67 (In response to 10 Plaintiff’s testimony that she stopped taking medication after her doctor prescribed one 11 medication that was not covered by Medi-Cal, the ALJ stated, “… you have to be proactive, when 12 it comes to your own healthcare, and because this is a significant problem in your life, you have 13 to keep pursuing it. If you get a medication that is not covered by Medi-Cal, then you have to 14 continue to try to find some medical solution to your problem…”).) See Molina, 674 F.3d at 15 1114 (claimant’s “failure to assert a good reason for not seeking treatment,” as well as asserting a 16 reason that the ALJ determines is not believable, can cast doubt on the sincerity of the claimant’s 17 pain testimony). The Court will not second-guess the ALJ’s credibility determination. Andrews, 18 53 F.3d at 1039; Thomas, 278 F.3d at 959. 19 b. Inconsistency with the Medical Opinions 20 The ALJ also found Plaintiff’s symptom testimony was inconsistent with the medical 21 opinions, which resulted in nondisability findings. For example, the ALJ accorded “great weight” 22 to the medical opinion of Dr. Rios. (AR 44.) Dr. Rios examined Plaintiff on October 22, 2014, 23 and noted she did not appear to be in acute distress, and walked without any significant gait 24 alteration; she was able to move around the room and get on and off the examination table with 25 minimal difficulty; her abdomen was soft and non-tender; her station was normal, and heel toe, 26 and tandem gait were normal; range of motion was within normal limits; motor strength was 5/5 27 through the upper and lower extremities; muscle bulk and tone was normal without atrophy; and 28 examination of both feet showed no evidence of active ulcerations, but some symptoms of 1 neuropathy. As a result, Dr. Rios opined Plaintiff was capable of performing medium work. (He 2 did not opine any limitations relating to Plaintiff’s diarrhea.) These findings are inconsistent with 3 Plaintiff’s allegations of being unable to stand, having difficulty walking, or requiring the use of a 4 cane. 5 The ALJ also accorded “great weight,” to Dr. Damania’s opinion. (Id.) Dr. Damania’s 6 opinion was based on his review of Plaintiff’s medical records through April 3, 2018, and his 7 examination of Plaintiff, which showed Plaintiff had no residual infection or pain in her right 8 foot; the range of motion in Plaintiff’s neck, shoulders, elbows, wrists, hips, knees and ankles was 9 within normal limits; Plaintiff’s motor strength was 5/5 in all extremities with good tone and 10 active range of motion bilaterally; she had grossly intact sensation throughout; normal reflexes 11 and bilaterally symmetric; negative Romberg; no tenderness or muscle spasms to palpation in her 12 back; her straight leg raising test was negative; and there was no wasting, flaccidity, or spasticity 13 of the right lower leg. Dr. Damania further noted that, although Plaintiff reported she was unable 14 to walk and required the use of a cane, she was observed walking across the room without one. 15 As a result, Dr. Damania opined Plaintiff was capable of performing medium work. Dr. Damania 16 did note on examination that Plaintiff’s abdomen was soft and very tender; nevertheless, he did 17 not opine any limitations relating to Plaintiff’s diarrhea. 18 Similarly, the ALJ accorded “substantial weight” to the opinions of Drs. Reddy and 19 Coleman, who “performed a thorough review of the medical evidence” and opined Plaintiff could 20 perform a medium RFC with postural limitations. (AR 45.) 21 All of these doctors opined Plaintiff was capable of performing essentially medium work. 22 None opined Plaintiff required additional limitations based on her diarrhea. Notably, Plaintiff has 23 not challenged the ALJ’s evaluation of the medical opinion evidence. Lewis I, 236 F.3d at 517 24 n.13; Indep. Towers of Wash., 350 F.3d at 929. Nor does she address the ALJ’s adverse 25 credibility findings on this basis. Thus, the ALJ presented a clear and convincing reason in 26 support of his credibility determination. Carmickle, 533 F.3d at 1160. 27 c. Unexplained Gaps/Lack of Treatment 28 As the Court has noted, “[t]he ALJ is permitted to consider lack of treatment in his 1 credibility determination.” Burch, 400 F.3d at 681. “[U]nexplained gaps in treatment may 2 support an ALJ’s credibility determination,” Roberts, 734 Fed. App’x at 491, as can an 3 “unexplained, or inadequately explained, failure to seek treatment…” Fair, 885 F.2d at 603. As 4 the Court has discussed, the ALJ pointed out Plaintiff’s gaps in treatment as well as her failure to 5 attend scheduled appointments. This constitutes a clear and convincing reason in support of the 6 ALJ’s adverse credibility determination. Further, Plaintiff does not dispute the ALJ’s findings 7 with respect to her gaps in treatment or missed appointments. Plaintiff is therefore deemed to 8 have waived argument on this issue. Lewis I, 236 F.3d at 517 n.13; Indep. Towers of Wash., 350 9 F.3d at 929. 10 d. Noncompliance with Treatment Plan 11 Relatedly, noncompliance with recommended treatments constitutes substantial evidence 12 in support of an adverse credibility determination. Stenberg, 303 Fed. App’x at 552; Burch, 400 13 F.3d at 681 (affirming ALJ discrediting testimony due to lack of consistent treatment; 14 commenting on claimant’s failure to attend physical therapy, chiropractor, or do home exercises, 15 “[t]hat [the claimant]’s pain was ‘not severe enough to motivate [her] to seek [these forms of] 16 treatment, even if she sought some treatment, is powerful evidence regarding the extent to which 17 she was in pain.”) (internal citations omitted). Here, as noted, Plaintiff missed appointments due 18 to travel, and failed to return for duly scheduled follow up visits. In addition, the ALJ discussed 19 medical notes in which Plaintiff was admonished for her noncompliance with treatment plans, 20 such as wearing her prescribed shoes and managing her glucose levels. As previously noted, 21 Plaintiff also does not address the ALJ’s findings with respect to her noncompliance. Lewis I, 22 236 F.3d at 517 n.13; Indep. Towers of Wash., 350 F.3d at 929. 23 In sum, the ALJ has sufficiently identified multiple clear and convincing reasons in 24 support of his determination that Plaintiff’s treatment is inconsistent with the severity of her 25 alleged symptoms. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); SSR 16-3p at *10. 26 While Plaintiff may seek to suggest an alternative interpretation of the evidence, this is not 27 sufficient to establish reversible error. See Ford, 950 F.3d at 1154; Burch, 400 F.3d at 679 28 (citations omitted). Accordingly, the Court finds the ALJ provided clear and convincing reasons 1 | supported by substantial evidence for discounting Plaintiff's symptom testimony. 2 C. RFC Determination 3 Having determined the ALJ properly identified Plaintiff's severe impairments at step two 4 | and reached an adverse credibility determination supported by substantial evidence in the record, 5 | the Court finds Plaintiff's derivative RFC argument also fails. See Stubbs-Danielson, 539 F.3d at 6 | 1175-76 (rejecting a step five argument that “simply restates” arguments about medical evidence 7 | and testimony); Hairston, 827 Fed. App’x at 773 (summarily rejecting claimant’s arguments that 8 | RFC and step-five findings were unsupported by substantial evidence as “derivative of her 9 | preceding arguments addressed and rejected above.”); see also Embrey v. Bowen, 849 F.2d 418, 10 | 423 (9th Cir. 1988) (acknowledging there is no requirement that testimony for which the ALJ has 11 || provided specific and legitimate reasons to discount be included in the hypothetical given the 12 | VE). 13 VI. 14 CONCLUSION AND ORDER 15 For the foregoing reasons, IT IS HEREBY ORDERED that: 16 1. Plaintiff's appeal from the decision of the Commissioner of Social Security (ECF 17 No. 18) is DENIED; and 18 2. The Clerk of the Court is DIRECTED to enter judgment in favor of Defendant 19 Commissioner of Social Security and against Plaintiff Bertha Chavez Carlos and 20 close this case. 21 IT IS SO ORDERED. DAM Le 93 | Dated: _ February 9, 2023 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 94S