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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARICELA BELTRAN, Case No. 1:21-cv-00603-JLT-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT 14 KILOLO KIJAKAZI, Acting Commissioner 15 of Social Security,1 (Docs. 23, 26) 16 Defendant. FOURTEEN-DAY DEADLINE 17 18 19 Findings and Recommendations 20 INTRODUCTION 21 Plaintiff Maricela Beltran (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (“Commissioner”) denying her application for supplemental security 23 income under Title XVI of the Social Security Act. The matter is currently before the Court on the 24 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 25 McAuliffe for issuance of findings and recommendations. 26 27 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this 28 suit. 1 Having considered the briefing and record in this matter, the Court finds that the decision of 2 the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, this Court will recommend denying Plaintiff’s 4 motion for summary judgment, granting Defendant’s cross-motion for summary, and affirming the 5 agency’s determination to deny benefits. 6 FACTS AND PRIOR PROCEEDINGS 7 Plaintiff filed an application for supplemental security income on December 10, 2017. AR 8 282.2 Plaintiff alleged that she became disabled on October 12, 2016, due to lupus, depression, 9 anxiety, GERD, and hiatal hernia. AR 310. Plaintiff’s application was denied initially and on 10 reconsideration. AR 190-94, 205-09. Subsequently, Plaintiff requested a hearing before an ALJ. 11 Following a hearing, ALJ Matthew Kawalek issued an order denying benefits on August 11, 2020. 12 AR 27-45, 128-57. Thereafter, Plaintiff sought review of the decision, which the Appeals Counsel 13 denied, making ALJ Kawalek’s decision the Commissioner’s final decision. AR 9-14. This appeal 14 followed. 15 Hearing Testimony 16 ALJ Kawalek held a telephonic hearing on June 30, 2020. Plaintiff appeared in Bakersfield 17 California, with her attorney, Miguel Lopez. AR 131. Dr. Dennis Duffin, an impartial vocational 18 expert, also appeared and testified. AR 133. 19 In response to questions from her attorney, Plaintiff testified that her neck, shoulders, back, 20 thigh, arms, hands, wrists, legs, knees, feet and joints all cause her pain. She has pain all the time in 21 her lower back and sharp pains in her knees, which are weak. She can stand 15 to 30 minutes without 22 having to sit down and can sit for no more than 30 minutes. In an eight-hour day, she cannot sit more 23 than two hours total or stand more than two hours total. At home, she spends most of her time 24 reclining with her legs elevated and lying down. She can hardly walk because of pain and cannot walk 25 a full two blocks without stopping. She cannot lift more than 20 pounds and cannot bend down to pick 26 27 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page 28 number. 1 something up. She also has problems with her upper extremities, lifting her arms up high causes pain 2 and weakness. She does not have problems holding light things. She feels tiredness and fatigue all the 3 time. She also has trouble with depression and anxiety, along with problems concentrating and 4 focusing. AR 139-44. 5 When asked to describe what she does at home, Plaintiff testified that she just reclines, lies 6 down, sits, watches TV, and reads. She is not able to do housework. She does not wash dishes, do 7 laundry, or sweep floors. She has a government employee (IHSS) that helps with the chores. AR 144- 8 45. 9 Plaintiff testified that she has side effects from her medication. These side effects include 10 drowsiness, sleepiness, and nauseousness. She takes Norco for pain. AR 145-46. She also has 11 headaches about three time a week. AR 146. 12 In response to questions from the ALJ, Plaintiff testified that she still has a commercial driver’s 13 license, but she has not returned for the physical. The IHSS home provider has been helping for three 14 years and was recommended by her primary physician. AR 147. 15 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE 16 characterized Plaintiff’s past work as hospital security guard and customer service or salesclerk. AR 17 150. The ALJ then asked the VE hypothetical questions. For the first hypothetical, the ALJ asked the 18 VE to assume an individual of Plaintiff’s age, education and work history. This individual would be 19 limited to occasionally lifting and carrying 10 pounds, frequently lifting and carrying less than 10 20 pounds, could stand and/or walk two hours of an eight-hour workday, sit six hours of eight-hour 21 workday, could only occasionally operate foot controls with the bilateral lower extremities, could 22 never climb ladders, ropes, or scaffolds, could only occasionally balance, stoop, kneel, crouch, crawl, 23 or climb ramps and stairs. This individual could frequently reach, handle, finger, feel, or operate hand 24 controls with the bilateral upper extremities, could tolerate no more than occasional exposure to 25 temperature extremes, wetness, and vibration, and could tolerate no exposure to hazards, including 26 unprotected heights, commercial driving, or operating heavy machinery. The VE testified that this 27 hypothetical individual could not perform either of Plaintiff’s past jobs. The VE further testified that 28 this individual could perform other work in the national economy, such as document specialist or 1 scanner, hand painter or stainer, or lens block gauger (which set the blanks for eyeglass 2 manufacturing). AR 150-51. 3 For the second hypothetical, the ALJ asked the VE to assume an individual of the same age, 4 education, and work history. This individual would be limited to occasionally lifting and carrying 10 5 pounds, frequently lifting and carrying less than 10 pounds, could stand and/or walk two hours of an 6 eight-hour workday, could sit for less than six hours of an eight-hour workday, and would need a rest 7 break from sitting for every 45 minutes. This individual could only occasionally stoop or climb ramps 8 and stairs, could never balance, kneel, crouch, crawl, or climb ladders, ropes, or scaffolds, but could 9 frequently reach. This individual could tolerate no more than occasional exposure to humidity or 10 noise and could tolerate no exposure to temperature extremes, wetness, vibration, pulmonary irritants, 11 or workplace hazards. The VE testified that all competitive work would be eliminated based on the 12 standing/walking and sitting limitations. AR 152-53. 13 For the third hypothetical, the ALJ asked the VE to consider that the individual from 14 hypothetical one was limited to only occasionally reaching, handling, fingering, feeling, or operating 15 hand controls with the bilateral upper extremities. The VE testified that none of the jobs would match, 16 but there would be other jobs, such as a call out operator, who checks references, with approximately 17 8,000 jobs, and a surveillance system monitor, with approximately 4,600 jobs. The ALJ confirmed 18 that he would not take the two occupations totaling just over 12,000 jobs to be a significant number of 19 jobs. AR 153-54. 20 For the next hypothetical, the ALJ asked the VE to consider that the individual from the first 21 hypothetical required three to four unscheduled breaks throughout the workday of five to ten minutes 22 in duration. The VE testified that this would eliminate all work. If the individual was off task more 23 than 5% of the workday, that also would eliminate all work. AR 154-55. If the individual was 24 expected to miss more than one day of work per month, missing two or more days every month on an 25 ongoing basis, this also would eliminate all work. AR 155. 26 The VE confirmed that nothing in his testimony was inconsistent with the Dictionary of 27 Occupational Titles, but specific hours of sitting, standing, or walking, the necessity to rest, additional 28 breaks, off task, or absences were based on the VE’s experience and training. AR 155. 1 Medical Record 2 The relevant medical record was reviewed by the Court and will be referenced below as 3 necessary to this Court’s decision. 4 The ALJ’s Decision 5 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 6 determined that Plaintiff was not disabled under the Social Security Act. AR 30-45. Specifically, the 7 ALJ found that Plaintiff had not engaged in substantial gainful activity since December 10, 2017, the 8 application date. AR 32-33. The ALJ identified the following severe impairments: bursitis/tendonitis 9 of the bilateral shoulders; osteoarthritis of the bilateral knees; left calcaneal spur; osteophyte of the left 10 ankle; left plantar fasciitis; degenerative joint disease and stenosis of the cervical spine; degenerative 11 arthritis; spondylosis, disc protrusion and disc disease of the lumbar spine with radiculopathy; thoracic 12 spondylosis with thoracic radiculopathy; undifferentiated connective tissue disease (including the 13 diagnoses of Epstein-Barr virus and other forms of systemic lupus erythematous); inflammatory 14 arthritis (including the varied diagnoses of polyarthritis, rheumatoid arthritis, generalized lupus 15 arthritis, and inflammatory poly arthropathy); and morbid obesity. AR 33-35. The ALJ determined 16 that Plaintiff did not have an impairment or combination of impairments that met or medically equaled 17 any of the listed impairments. AR 35-36. 18 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 19 functional capacity (“RFC”) to perform a reduced range of sedentary work. She could lift/carry 10 20 pounds occasionally, less than 10 pounds frequently, and could stand and/or walk 2 hours and sit 6 21 hours of an 8-hour workday. She could occasionally operate foot controls with the bilateral lower 22 extremities, but she could never climb ladders, ropes, or scaffolds, and could occasionally balance, 23 stoop, kneel, crouch, crawl, or climb ramps and stairs. She could frequently reach, handle, finger, feel, 24 or operate hand controls with the bilateral upper extremities. She could tolerate no more than 25 occasional exposure to temperature extremes, wetness, or vibration, and could have no exposure to 26 hazards, including unprotected heights, operating heavy machinery, or commercial driving. AR 37- 27 44. With this RFC, the ALJ found that Plaintiff could not perform any past relevant work, but that 28 there were jobs in the national economy that Plaintiff could perform, such as document specialist, 1 hand painter/stainer, and lens block gauger. AR 44-45. The ALJ therefore concluded that Plaintiff 2 had not been under a disability since December 10, 2017, the date her application was filed. AR 45. 3 SCOPE OF REVIEW 4 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 5 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 6 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 7 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 8 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 9 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 10 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 11 considered, weighing both the evidence that supports and the evidence that detracts from the 12 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 13 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 14 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 15 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 16 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 17 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 18 REVIEW 19 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 20 substantial gainful activity due to a medically determinable physical or mental impairment which has 21 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 22 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 23 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 24 her age, education, and work experience, engage in any other kind of substantial gainful work which 25 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 26 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 27 1990). 28 1 DISCUSSION3 2 Plaintiff contends that the ALJ erred by finding the opinions from C. Slaughter, PAC, and Dr. 3 Martinez not persuasive. Plaintiff also contends that the ALJ failed to include work-related limitations 4 in the RFC consistent with the nature and intensity of her limitations and failed to offer any reasons to 5 reject Plaintiff’s subjective complaints. (Doc. 23 at 13.) 6 A. Evaluation of Medical Opinions 7 Plaintiff argues that the ALJ erred in her evaluation of the opinions of C. Slaughter, PAC, and 8 Marilyn Martinez, Ph.D., and did not properly consider the supportability and consistency of those 9 opinions. (Doc. 23 at 11.) 10 1. Legal Standard 11 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 12 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 13 416.920c. Under the new regulations, the Commissioner does “not defer or give any specific 14 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 15 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 416.920c(a). 16 The Commissioner evaluates the persuasiveness of the medical opinions based on the following 17 factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 18 (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence 19 in the claim or an understanding of our disability program’s policies and evidentiary requirements.” 20 20 C.F.R. § 416.920c(c)(1)-(5). Supportability and consistency are the most important factors. 20 21 C.F.R. § 416.920c(b)(2). Supportability means the extent to which a medical source supports the 22 medical opinion by explaining the “relevant ... objective medical evidence.” 20 C.F.R. § 23 416.920c(c)(1); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Consistency means the 24 extent to which a medical opinion is “consistent ... with the evidence from other medical sources and 25 nonmedical sources in the claim.” 20 C.F.R. § 416.920c(c)(2); Woods, 32 F.4th at 792. 26 27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 Ninth Circuit case law preceding the new regulations afforded deference to the medical 2 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 3 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 4 the medical opinions of treating or examining physicians. These standards of articulation no longer 5 apply in light of the new regulations, and the ALJ is not required to provide “specific and legitimate 6 reasons” to discount the medical opinions. See Woods, 32 F.4th at 792 (finding revised social security 7 regulations “clearly irreconcilable with our caselaw according special deference to the opinions of 8 treating and examining physicians on account of their relationship with the claimant”). The Ninth 9 Circuit has clarified that “under the new regulations, an ALJ cannot reject an examining or treating 10 doctor’s opinion as unsupported or inconsistent without providing an explanation supported by 11 substantial evidence.” Id. “The agency must ‘articulate ... how persuasive’ it finds ‘all of the medical 12 opinions’ from each doctor or other source, . . . and ‘explain how [it] considered the supportability and 13 consistency factors’ in reaching these findings.” Id. (internal citations omitted). 14 2. Analysis 15 PAC Slaughter 16 On June 26, 2020, PAC Slaughter completed a Physical Residual Functional Capacity 17 Assessment form, identifying Plaintiff’s primary diagnosis as Rheumatoid Arthritis and her secondary 18 diagnosis as Systemic Lupus Erythematosus. AR 936-43. As to exertional limitations, PAC Slaughter 19 opined that Plaintiff could occasionally and frequently lift and/or carry less than 10 pounds, she had 20 limited ability to push and/or pull in both her upper and lower extremities, and she could sit with 21 normal breaks for a total of less than about 6 hours in an 8-hour workday. PAC Slaughter identified 22 no period of time that Plaintiff could stand/walk, even with normal breaks. AR 937. PAC Slaughter 23 explained that Plaintiff did not “have the strength to consistently lift, push, pull, walk, stoop, bend or 24 engage in repetitive movements” and she could not sit “greater than 30-45 minutes without resting.” 25 AR 937. As to postural limitations, PAC Slaughter opined that Plaintiff could occasionally climb 26 ramps and stairs and occasionally kneel, but she could never climb ladders, ropes, or scaffolds, 27 balance, kneel, crouch, or crawl. AR 938. As to manipulative limitations, PAC Slaughter opined that 28 Plaintiff was limited in reaching all directions (including overhead). AR 939. Plaintiff did not have 1 any visual or communicative limitations. As to environmental limitations, PAC Slaughter opined that 2 Plaintiff must avoid even moderate exposure to humidity and noise and must avoid all exposure to 3 extreme cold, extreme heat, wetness, vibration, fumes, odors, dusts, gases, poor ventilation, and 4 hazards. PAC Slaughter indicated that these environmental limitations aggravated Plaintiff’s joint 5 pain and ability to cope with her limitations. AR 940. PAC Slaughter attributed Plaintiff’s symptoms 6 to her rheumatoid arthritis, systemic lupus erythematosus, and degenerative joint disease in her 7 thoracic and lumbar spine. PAC Slaughter opined that the increasing severity of Plaintiff’s symptoms 8 was consistent with the medical and non-medical evidence, with extremes in temperature in the 9 environment making her symptoms worse and her pain causing difficulty with memory and cognitive 10 function. AR 941. 11 The ALJ found the medical opinion of PAC Slaughter not persuasive, and reasoned as follows: 12 PAC Slaughter supported her opinion with her exam findings, including the claimant’s symptoms from her rheumatoid arthritis, lupus, and degenerative disc disease in her 13 thoracic and lumbar spine. PAC Slaughter’s records do not corroborate her extensive limitations, particularly from an objective standpoint. PAC Slaughter relies on subjective 14 allegations that are rarely, if ever, documented in her own notes. The evidence of her 15 varied physical exams is inconsistent with PAC Slaughter’s opinion. For example, the claimant’s varied range of motion in her spine is inconsistent with finding she can never 16 balance, crouch, kneel, or crawl. Additionally, the stiffness and numbness in her wrists and hand is more consistent with the more specific finding of the residual functional 17 capacity that she can frequently perform manipulative activities. For these reasons, I find 18 PAC Slaughter’s opinion not persuasive. 19 AR 42. 20 Plaintiff argues that the ALJ did not appropriately address the factors of supportability and 21 consistency in discussing the persuasiveness of PAC Slaughter’s opinion. The Court disagrees. First, 22 with respect to supportability, the ALJ found that PAC Slaughter’s extensive limitations were not 23 corroborated by her own treatment notes, relying instead on subjective allegations. AR 42. This 24 portion of the ALJ’s decision is not a model of clarity, but because the ALJ’s “path may reasonably be 25 discerned,” the court will still defer to the ALJ’s decision. Wilson v. Berryhill, 757 F. App’x 595, 597 26 (9th Cir. 2019). For instance, the ALJ referenced PAC Slaughter’s varied physical examination 27 findings, which showed that Plaintiff had a normal gait in November 2019, an antalgic gait in January 28 2020, and a normal gait again in March 2020, with no tenderness in her spine. AR 38, 594, 596, 598. 1 PAC Slaughter’s examination findings also identified a normal gait in February, March, April, and 2 May 2019. AR 611, 613, 615, 617. These examination findings are inconsistent with PAC Slaughter’s 3 apparent indication that Plaintiff could not stand and/or walk for any period of time. As another 4 example, PAC Slaughter’s examinations included a notation in February 2019 that Plaintiff had 5 tenderness in the bilateral shoulders, with limited abduction, but good internal and external rotation, 6 but the remainder of the examinations identified no objective findings regarding Plaintiff’s shoulders. 7 AR 617. The absence of objective findings is inconsistent with PAC Slaughter’s opinion that Plaintiff 8 was limited in reaching in all directions, including overhead. 9 Second, with respect to consistency, the ALJ further noted that the varied physical exams were 10 inconsistent with PAC Slaughter’s opinion. AR 38, 47. In the opinion, the ALJ identified the varied 11 physical examinations at issue. The ALJ noted that in 2018, Plaintiff had an abnormal gait, she could 12 not heel or toe walk, her straight leg test was positive, her right upper extremity flexor and extensor 13 strength was four-out-of-five, and she had some reduced range of motion throughout her spine along 14 with tenderness. AR 38, 398, 572-73, 584. However, by August 2018, she had normal strength in 15 both her upper and lower bilateral lower extremities. AR 883. As noted, she also had a normal gait in 16 November 2019, an antalgic gait in January 2020, and a normal gait again in March 2020, with no 17 tenderness in her spine. AR 38, 594, 596, 598. 18 The ALJ also found Plaintiff’s varied range of motion in her spine inconsistent with PAC 19 Slaughter’s finding Plaintiff could never balance, crouch, kneel, or crawl. AR 47. The ALJ identifies 20 an examination indicating that Plaintiff had “some reduced range of motion throughout her spine,” 21 with no other indication of reduced range of spine motion. AR 38, 583. Plaintiff has not identified 22 other findings of reduced spine range of motion in the record to undermine the ALJ’s determination. 23 The ALJ further found the stiffness and numbness in Plaintiff’s wrists and hand to be more 24 consistent with a finding that Plaintiff could frequently perform manipulative activities. AR 47. 25 According to the record, and as noted by the ALJ, Plaintiff sometimes had numbness and stiffness in 26 her hands. AR 39, 629, 641, 799. However, Plaintiff generally had a normal range of motion in her 27 wrists and hands. AR 39, 551, 584. Although at one examination she had diffuse swelling throughout 28 her hands and wrists, there was no tenderness over the metacarpophalangeal joints, proximal 1 interphalangeal joints, or distal interphalangeal joints. AR 39, 620. Her Tinel’s sign and Phalen’s sign 2 tests were negative. AR 584. 3 Based on the foregoing, the Court finds that the ALJ appropriately considered the factors of 4 supportability and consistency in evaluating PAC Slaughter’s opinion. 5 Marilyn Martinez, Ph.D. 6 On March 8, 2018, Dr. Martinez, a licensed clinical psychologist, completed a consultative 7 mental status examination. AR 503-08. Plaintiff reported completing some self-dressing, self- 8 bathing, and personal hygiene, but required assistance with getting dressed, taking a shower, 9 housecleaning, cooking, shopping, and cutting her toenails. She was able to drive and had a 10 commercial driver’s license, but her outside activities were nonexistent. She was able to pay bills, go 11 out alone, focus attention during the interview and had no difficulty completing household tasks or 12 making decisions. AR 505. On mental status examination, Plaintiff’s thought process and 13 organization were linear and within normal limits. Her mood was euthymic and her affect within 14 normal limits and congruent with thought content. Plaintiff was not tearful, and denied feelings of 15 hopelessness, helplessness, and worthlessness. AR 505. Her speech was normal and clearly 16 articulated, but she appeared to be of limited intellectual functioning. AR 505-06. She did not know 17 the name of the current president, the capital of the United States, or the capital of California. 18 Plaintiff’s concentration, calculation, and abstract thinking appeared grossly intact. Her judgment 19 appeared intact, but her insight appeared limited. AR 506. 20 Dr. Martinez opined that Plaintiff’s presentation was consistent with diagnoses of generalized 21 anxiety disorder, major depressive disorder – recurrent, and rule out intellectual disability. With 22 regard to generalized anxiety disorder, Dr. Martinez stated that Plaintiff presented with excessive 23 anxiety and worry, occurring more days than not for a least 6 months. Her anxiety and worry were 24 associated with being easily fatigued, difficulty concentrating, sleep disturbance and general disease. 25 Dr. Martinez opined that these symptoms caused clinically significant distress in multiple areas, 26 including occupational, social, and relational. AR 507. With regard to depressive disorder, testing 27 suggested that Plaintiff had difficulty with sustained effort and attention due to depressive symptoms. 28 Plaintiff reported depressed mood, loss of interest in pleasure, and significant changes to weight and/or 1 appetite. She also reported sleep disturbance, fatigue, feelings of worthlessness, and diminished 2 ability to think, concentrate and make decisions. Dr. Martinez opined that these symptoms caused 3 significant impairment socially and occupationally as Plaintiff did not engage in social exchange with 4 others and found the day-to-day requirements of sustained employment difficult. AR 507. 5 Dr. Martinez indicated that Plaintiff’s prognosis was poor due to physical decline. Based on 6 the examination, Dr. Martinez concluded that Plaintiff had no impairment in the ability to understand, 7 remember, and carry out simple one-or-two-step job instructions, moderate impairment in the ability 8 to do detailed and complex instructions, marked impairment due to pain in the ability to relate and 9 interact with co-workers and the public, marked impairment due to anxiety in the ability to maintain 10 concentration and attention, persistence, and pace, marked impairment due to pain in the ability to 11 associate with day-to-day work activity, including attendance and safety, no impairment in the ability 12 to accept instructions from supervisors, marked impairment due to pain in the ability to maintain 13 regular attendance in the workplace and perform work activities on a consistent basis, and moderate 14 impairment in the ability to perform work activities without special or additional supervision. AR 15 507-08. 16 The ALJ found Dr. Martinez’s opinion not persuasive and reasoned as follows: 17 Dr. Martinez’s psychiatric exam does not support her opinion. The exam was entirely normal and did not support any moderate or marked limitation in any area. Additionally, 18 Dr. Martinez supported her opinion by referencing the claimant’s pain. The claimant’s pain is subjective and beyond a psychologists [sic] purview to evaluate. The evidence of 19 the claimant’s daily activities is inconsistent with Dr. Martinez’s opinion. For example, 20 the claimant cares for her thirteen-year-old son, which is inconsistent with finding significant impairments in her performing activities without special instructions or that 21 were complex or detailed in nature. Additionally, the claimant enjoys watching movies with family and friends, which is inconsistent with Dr. Martinez’s severe restrictions on 22 the claimant’s interactions with others. For these reasons, I find Dr. Martinez’s opinion 23 not persuasive. 24 AR 43. 25 The Court finds that the ALJ properly evaluated the persuasiveness of Dr. Martinez’s opinion. 26 First, the ALJ determined that Dr. Martinez’s examination did not support her opinion, noting the 27 examination was normal and not supportive of any moderate or marked limitations. AR 43. This 28 reasoning invokes the supportability factor, which means the extent to which a medical source 1 supports the medical opinion by explaining the “relevant ... objective medical evidence.” 20 C.F.R. § 2 416.920c(c)(1). Dr. Martinez’s normal mental status examination findings generally showed that 3 Plaintiff’s thought processing and organization were linear and within normal limits, her mood was 4 euthymic, her affect within normal limits, she was not tearful, and she denied feelings of hopelessness, 5 helplessness, and worthlessness. AR 505. Plaintiff was oriented to time, place, person, and the 6 purpose of the evaluation. AR 506. Her memory functioning, concentration, and calculation appeared 7 grossly intact. AR 506. She was able to pay bills and handle cash appropriately, go out alone, focus 8 attention during the interview, and reported no difficulty completing household tasks or making 9 decisions. AR 505. The ALJ’s determination that these normal findings did not support any moderate 10 or marked limitations is supported by substantial evidence.4 11 Second, the ALJ found that Dr. Martinez’s opinion was not consistent with Plaintiff’s daily 12 activities. AR 43. This reasoning properly invokes the consistency factor. Woods, 32 F.4th at 792. 13 In this instance, the ALJ specifically considered Plaintiff’s ability to care for her thirteen-year-old son, 14 concluding that it was inconsistent with Dr. Martinez’s finding of significant impairments in Plaintiff 15 performing activities without special instructions or that were complex or detailed in nature. AR 43, 16 504. Further, as noted, Plaintiff indicated that she was able to pay bills and handle cash, go out alone, 17 and had no difficulty completing household tasks or making decisions. AR 505. Additionally, the 18 ALJ considered the fact that Plaintiff reported enjoying watching movies with family and friends 19 conflicted with Dr. Martinez’s severe restrictions on the claimant’s interactions with others. AR 43, 20 505. Indeed, Dr. Martinez noted Plaintiff’s relationships with her family and friends were reported to 21 be good. AR 505. 22 23 4 The ALJ also found Dr. Martinez’s opinion unpersuasive and unsupported because it was based on Plaintiff’s 24 pain. This does not appear to be a valid reason. Cf. Farris v. Barnhart, 147 F. App’x 638, 639 (9th Cir. 2005) (noting precedent foreclosed rejecting psychologist’s opinion because it was based on the combined impact of 25 pain and mental impairment). While this reason may have been invalid, any such error is harmless because the ALJ provided at least one other valid reason in addressing the supportability factor. See Jones v. Kijakazi, No. 26 1:20-CV-01689-SKO, 2022 WL 4082245, at *7 (E.D. Cal. Sept. 6, 2022) (finding it unnecessary to address one arguably improper reason in finding opinion unpersuasive where the ALJ provided other valid reasons in 27 addressing the supportability factor); Barber v. Astrue, No. 1:10–cv–01432–AWI–SKO, 2012 WL 458076, at *13 (E.D. Cal. Feb. 10, 2012) (finding harmless error where the ALJ “stated other valid reasons” for rejecting a 28 physician’s opinion). 1 To the extent Plaintiff suggests an alternative interpretation of the evidence, this is not 2 sufficient to establish reversible error. If the evidence “is susceptible to more than one rational 3 interpretation, it is the ALJ’s conclusion that must be upheld.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 4 Cir. 2020), citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 5 B. Plaintiff’s Subjective Complaints 6 Plaintiff argues that the ALJ failed to offer any clear or convincing reasons to reject her 7 subjective complaints. 8 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 9 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. 10 Sec. Admin., 359 F.3d 1190, 1196 (2004). First, the claimant must produce objective medical 11 evidence of her impairment that could reasonably be expected to produce some degree of the symptom 12 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no 13 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of her 14 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 15 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 16 expected to cause some of the alleged symptoms, but discounted her statements concerning the 17 intensity, persistence and limiting effects of those symptoms. AR 28. The ALJ was therefore required 18 to provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 19 The Court finds that the ALJ provided clear and convincing reasons to discount Plaintiff’s 20 subjective complaints. First, the ALJ found that the medical record was not entirely consistent with 21 the degree of limitation alleged. AR 38. Although lack of supporting medical evidence cannot form 22 the sole basis for discounting testimony, it is a factor that the ALJ can consider. See Burch, 400 F.3d at 23 681. For instance, the ALJ considered x-rays and imaging of Plaintiff’s spine, noting that cervical 24 spine x-rays in May 2018 showed only “mild” degenerative disc narrowing at C6-C7 and “moderate” 25 spondylosis a C6-C7, thoracic spine imaging showed only generalized, “moderate” thoracic 26 spondylosis, and a lumbar spine MRI in August 2018 revealed only “minimal” spondylosis and a 27 small disc extrusion resulting in “mild” bilateral recess stenosis. AR 38, 686 (cervical spine); 490 28 (thoracic spine); 654 (MRI). The ALJ also considered evidence, discussed above, that her gait varied 1 on examination. AR 38. Additionally, the ALJ considered objective evidence that Plaintiff generally 2 had normal range of motion in her shoulders, elbows, wrists, and joints in hands, as well as normal 3 range of motion in her hips, knees, and ankles. AR 39, 551, 584 (shoulders, elbows, wrists, joints in 4 hands). 5 Second, the ALJ also considered Plaintiff’s overall, relatively conservative course of treatment. 6 AR 39. An ALJ is permitted to consider evidence of conservative treatment in evaluating a claimant’s 7 subjective complaints. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (finding evidence of 8 conservative treatment sufficient to discount claimant’s testimony regarding severity of impairment). 9 Here, the ALJ noted that Plaintiff treated her back with lumbar injections and medications, including 10 Norco, and her knee pain with bilateral injections and the same medications used to treat her other 11 impairments. AR 39, 40, 511-14, 522-34, 580, 638. 12 Third, the ALJ considered that Plaintiff found relief from her spine pain (radiating into her hips 13 and lower extremities) with treatment, such that the pain was no longer debilitating. AR 39. 14 Impairments that can be controlled effectively with medication are not disabling. Warre v. Comm'r 15 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). According to the record, and as noted by the 16 ALJ, Plaintiff reported that her regime gave her “moderate” relief and her pain eased up to the point 17 where it was not debilitating. Given this relief, the claimant’s pain management specialist decided to 18 continue with her current medications. AR 39, 574, 700 (March 2020). 19 Fourth, the ALJ considered Plaintiff’s failure to pursue certain treatment. AR 39. An ALJ 20 may properly consider a failure to pursue prescribed treatments in evaluating a claimant’s subjective 21 complaints. See Burch, 400 F.3d at 681 (“That Burch’s pain was ‘not severe enough to motivate [her] 22 to seek [these forms of] treatment,’ . . . even if she sought some treatment, is powerful evidence 23 regarding the extent to which she was in pain”); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) 24 (finding that “unexplained, or inadequately explained, failure to seek treatment or follow a prescribed 25 course of treatment” to be a relevant factor in assessing a claimant’s subjective complaints); Schilling 26 v. Comm’r of Soc. Sec., No. 1:21-cv-01268-SAB, 2022 WL 17418343, at *9 (“the failure to pursue 27 prescribed treatments is also a relevant consideration to the ALJ’s credibility determination”). The 28 ALJ noted Plaintiff’s report that she tried physical therapy, but said it made her pain worse. However, 1 physical therapy records showed that the Plaintiff completed her evaluation but did not attend any 2 sessions. AR 39, 625, 880 (referred for physical therapy 2-3 times weekly for six weeks; did not 3 attend any sessions). 4 Based on the above, the Court finds that the ALJ did not err in the evaluation of Plaintiff’s 5 subjective complaints. However, even if one of the reasons for discounting Plaintiff’s subjective 6 complaints was invalid, any such error is harmless because the ALJ provided other valid reasons for 7 discounting Plaintiff’s subjective testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 8 1155, 1161-63 (9th Cir. 2008) (finding that two invalid reasons to reject a claimant’s testimony were 9 harmless error where the ALJ articulated two other reasons supported by substantial evidence in the 10 record); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“several of our cases have held that an 11 ALJ’s error was harmless where the ALJ provided one or more invalid reasons for disbelieving a 12 claimant’s testimony, but also provided valid reasons that were supported by the record”). 13 CONCLUSION AND RECOMMENDATION 14 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 15 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 16 HEREBY RECOMMENDED as follows: 17 1. Plaintiff’s motion for summary judgment and appeal from the administrative decision 18 of the Commissioner of Social Security be denied; 19 2. Defendant’s cross-motion for summary judgment be granted, affirming the agency’s 20 determination to deny benefits; and 21 3. The Clerk of this Court be directed to enter judgment in favor of Defendant Kilolo 22 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff Maricela 23 Beltran. 24 These Findings and Recommendations will be submitted to the United States District Judge 25 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 26 served with these findings and recommendations, the parties may file written objections with the 27 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” The parties are advised that the failure to file objections within the specified time 1 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 2 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 3 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 Dated: February 17, 2023 /s/ Barbara A. McAuliffe _ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28