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

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LISA MARIA HERNANDEZ, Case No. 1:20-cv-01415-SKO 10 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL 11 v. S ECURITY COMPLAINT 12 KILOLO KIJAKAZI1, (Doc. 1) 13 Acting Commissioner of Social Security, 14 Defendant. _____________________________________/ 15 16 17 I. INTRODUCTION 18 On October 5, 2020, Plaintiff Lisa Maria Hernandez (“Plaintiff”) filed a complaint under 19 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of 20 Social Security (the “Commissioner” or “Defendant”) denying her application for Supplemental 21 Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). (Doc. 1.) The 22 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 23 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 24 /// 25 26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 27 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant”). 28 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8.) 1 II. BACKGROUND 2 Plaintiff protectively filed an application for SSI payment on August 7, 2017, alleging she 3 became disabled on March 1, 2014, due to severe back pain, severe sleep apnea, extreme obesity 4 with respiratory disorder, benign intracranial hypertension, secondary anemia, B12 anemia, iron 5 deficiency anemia, and depression. (Administrative Record (“AR”) 88, 166, 178.) Plaintiff was 6 born on February 24, 1988, and was 26 years old as of the alleged onset date. (AR 166, 188.) She 7 graduated high school and has no past work experience. (AR 179.) 8 A. Relevant Medical Evidence3 9 1. Amardeep Aulakh, D.O. 10 On May 23, 2016, Plaintiff presented to Dr. Aulakh for a hematology/oncology consultation 11 regarding her anemia. (AR 479, 613.) Dr. Aulakh noted that Plaintiff’s primary care physician had 12 been treating Plaintiff with oral iron replacement, but Plaintiff had not been compliant. (AR 480, 13 614.) “Given the severity of [Plaintiff’s] anemia,” Dr. Aulakh set forth a plan to treat Plaintiff with 14 intravenous iron replacement. (AR 480, 614.) Upon examination, Dr. Aulakh found that Plaintiff 15 had pain in her back and left knee but no joint swelling, redness, or decreased range of motion. (AR 16 479.) Plaintiff also had normal gait and muscle strength “without obvious weakness.” (AR 480.) 17 On June 19, 2017, Plaintiff presented for a follow-up visit for her anemia. (AR 475.) Dr. 18 Aulakh noted that Plaintiff had been “lost to follow up since May 2016,” when Plaintiff was 19 scheduled for intravenous iron treatment but failed to show up. (AR 475.) Plaintiff received her 20 first round of iron infusions on July 10, 2017, and July 17, 2017, after which her hemoglobin level 21 increased from 6.8g to 11.1g. (AR 466, 470, 603.) At another follow-up appointment on November 22 14, 2017, Plaintiff reported feeling tired but denied any headaches, dizziness, or occasional blurry 23 vision. (AR 466, 599.) Dr. Aulakh noted that “[m]ost of [Plaintiff’s] anemia related symptoms 24 ha[d] resolved.” (AR 467, 600.) Treatment notes recorded that Plaintiff had normal range of 25 motion, strength, and muscle tone. (AR 467.) 26 27 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 On March 5, 2019, Plaintiff presented for a follow-up regarding her anemia. (AR 464, 588.) 2 Treatment notes indicate that Plaintiff had been “a no-show since October 2017” and Plaintiff’s 3 hemoglobin level had decreased to 6.7g. (AR 464, 465, 588, 590.) Dr. Aulakh scheduled Plaintiff 4 to receive a second round of intravenous iron infusions, which she received on March 14, 2019, and 5 March 21, 2019. (AR 458, 461, 465, 582, 585.) Following the infusions, Dr. Aulakh noted that 6 Plaintiff was feeling well and denied any acute complaints, and that Plaintiff’s hemoglobin level 7 had increased from 6.7g to 8.4g. (AR 458, 582.) Upon examination, Plaintiff had normal range of 8 motion, strength, and muscle tone. (AR 459, 462.) 9 2. Fresno Medical Center 10 On April 19, 2017, Plaintiff complained of a headache. (AR 290.) Treatment notes recorded 11 that Plaintiff had undergone a CT scan of her head, which was negative for any acute intracranial 12 process but positive for chronic sinus disease. (AR 291.) The notes also indicated that Plaintiff had 13 complained of “occasional headaches” with sinus congestion flareups. (AR 291.) 14 On December 4, 2017, Plaintiff presented for a follow-up appointment regarding her anemia, 15 allergies, headaches, and seizure disorder. (AR 690.) Upon examination, Plaintiff was found to 16 have 5/5 motor strength bilaterally and normal range of motion. (AR 692.) There was no swelling, 17 redness, or tenderness in Plaintiff’s joints. (AR 688.) Treatment notes from January 15, 2018, 18 January 29, 2018, May 9, 2018, June 11, 2018, February 12, 2019, March 12, 2019, May 28, 2019, 19 August 1, 2019, and September 5, 2019, recorded similar findings. (AR 636, 644, 651, 659, 666, 20 672, 679, 684, 692.) The notes also indicated that Plaintiff had failed to show up for multiple 21 appointments, and the attending provider discussed with Plaintiff about “being noncompliant with 22 treatment and management.” (AR 637.) 23 3. Loveneet Singh, M.D. 24 On December 20, 2017, Plaintiff presented to Dr. Singh, a neurologist, complaining of 25 headaches and neurologic seizures. (AR 757.) Plaintiff had been prescribed Topomax, and she 26 reported that her headaches had improved. (AR 757–58.) Treatment notes from April 4, 2018, 27 August 22, 2018, and March 5, 2019, included similar notations. (AR 745–46, 751–52, 754–55.) 28 /// 1 4. State Agency Physicians 2 On September 7, 2017, I. Ocrant, M.D., a state agency physician, reviewed the record and 3 assessed Plaintiff’s physical residual functional capacity (“RFC”).4 (AR 68–70.) Dr. Ocrant opined 4 that Plaintiff was limited to: occasionally lifting and carrying 10 pounds; standing and/or walking 5 for a total of two hours; sitting for “[m]ore than 6 hours on a sustained basis in an 8-hour workday”; 6 occasionally climbing ramps/stairs, balancing, stooping, kneeling, crouching, and crawling; and 7 never climbing lappers/ropes/scaffolds. (AR 68–69.) Dr. Ocrant further opined that Plaintiff should 8 avoid concentrated exposure to hazards. Dr. Ocrant noted that Plaintiff “clearly also has benign 9 cranial [hypertension] treated [with] acetazolamide . . . . However, [Plaintiff] is not alleging a visual 10 disturbance.” (AR 70.) Upon reconsideration on November 28, 2017, another state agency 11 physician, E. Christian, M.D., reviewed the record and affirmed Dr. Ocrant’s findings. (AR 83– 12 85.) 13 B. Plaintiff’s Adult Function Report 14 On August 12, 2017, Plaintiff completed an adult function report describing how her 15 impairments limited her activities. (AR 214–222.) Plaintiff indicated that she lived in an apartment 16 with family, and she had difficulty performing tasks “like moving around lifting, and standing for a 17 long period of time[.]” (AR 214.) On a normal day, Plaintiff wakes up when her alarm goes off, 18 gets her children ready for school, uses the bathroom, and then goes to watch television while “trying 19 to manage [her] back pain.” (AR 215.) Plaintiff takes care of her children by setting an alarm for 20 them, and Plaintiff’s father helps her get the children ready and feeds them before school. (AR 215.) 21 As a result of her impairments, Plaintiff is no longer able to lie down, walk long distances, or stand 22 for a long period. (AR 215.) Plaintiff is able to prepare simple meals and perform “light cleaning,” 23 such as picking up after her children; she is unable to do yard work. (AR 216.) Plaintiff can drive 24 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours a day, for five days a week, or an equivalent work schedule. 26 TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions 27 that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 when her back “doesn’t hurt as much[”] (AR 217.) She is also able pay her bills, count change, and 2 use a checkbook/money order. (AR 217.) Her hobbies and interests include watching television 3 and playing on her phone. (AR 218.) 4 According to Plaintiff, her impairments affect her ability to squat, stand, walk, sit, kneel, and 5 climb stairs. (AR 219.) She is unable to walk a short distance because of her back pain, headaches, 6 and difficulty breathing. (AR 219.) Plaintiff indicated that she can walk for less than 10 minutes 7 before needing to take a 30 to 45 minute break. (AR 219.) 8 C. Administrative Proceedings 9 The Commissioner initially denied Plaintiff’s application for SSI benefits on September 11, 10 2017, and again on reconsideration on December 8, 2017. (AR 89, 100.) Consequently, Plaintiff 11 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 106.) At the hearing on 12 October 8, 2019, Plaintiff appeared with counsel and testified before an ALJ as to her alleged 13 disabling conditions. (AR 38, 41–56.) 14 1. Plaintiff’s Testimony 15 Plaintiff is approximately five feet three inches tall and weighs 378 pounds. (AR 48.) She 16 testified that she completed high school and had never worked, other than volunteering. (AR 41.) 17 Plaintiff had volunteered at DAV Thrift Stores for approximately three weeks in 2013, three days a 18 week for five hours a day, stocking items. (AR 41.) According to Plaintiff, she is unable to work 19 due to “so much pain” in her back and headaches that leave her unable to see. (AR 42.) Plaintiff 20 gets headaches “all the time,” and they “do[n’t] go away.” (AR 42.) Plaintiff testified that her 21 doctor informed her that the cause of the headaches was fluid in her brain, which she has drained 22 once every six or seven months. (AR 53.) Her headaches improve after each draining, but her 23 condition worsens as time lapses. (AR 53.) For her back pain, Plaintiff has been receiving shots 24 and taking narcotics. (AR 42.) As for her headaches, Plaintiff has been taking medication, which 25 has been helping her condition. (AR 42–43.) Plaintiff had seizures when she was younger but no 26 longer has them now. (AR 43.) Plaintiff’s knees also hurt “all the time,” and they “give out” once 27 every couple of weeks, causing her to fall. (AR 49.) 28 Plaintiff further testified she had problems with depression and anxiety due to her separation 1 from her husband, who had recently been released from prison. (AR 43.) Her husband was “a little 2 violent,” and Plaintiff had obtained a restraining order against him for her two children, who were 3 seven and eight years old. (AR 43.) After her husband’s release, Plaintiff started experiencing panic 4 attacks. (AR 50.) Plaintiff takes medication to help with her anxiety and depression. (AR 44.) She 5 has also been receiving mental health treatment. (AR 51.) 6 Plaintiff testified that she also had anemia, for which she receives infusions every six 7 months. (AR 44.) She also receives blood transfusions. (AR 47.) There was a period between 8 2017 and early 2019 when Plaintiff did not receive infusions despite needing them. (AR 44–45.) 9 Plaintiff stated that she was “scared to go outside” because her husband’s family was threatening 10 her and wanted to “take the kids away.” (AR 45.) 11 According to Plaintiff, she has been unable to see for “a couple of years” and thus cannot 12 drive. (AR 45.) She uses Lyft, a rideshare service, to get around. (AR 45.) On a typical day, 13 Plaintiff watches television with her children, who are homeschooled by Plaintiff’s father and sister. 14 (AR 45-46.) The homeschooling came about because Plaintiff was unable to walk her children to 15 school. (AR 51.) Plaintiff sometimes goes outside when she “feel[s] better,” which is “rare.” (AR 16 48.) Plaintiff’s sister helps Plaintiff with paying bills online and ordering the car from Lyft when 17 needed. (AR 45, 46–47.) Plaintiff does not go grocery shopping or do household chores. (AR 47.) 18 Plaintiff “[m]icrowave[s] stuff” for food when she can get up. (AR 47.) 19 Plaintiff testified that she uses a walker with a seat “all the time.” (AR 48.) She can stand 20 for only 15 to 20 minutes before she needs to sit down due to back pain. (AR 49.) Plaintiff can sit 21 for about 45 minutes before she needs to stand up. (AR 49.) According to Plaintiff, she is unable 22 to lie down, so she sleeps sitting up. (AR 49.) Due to her insomnia, she has to take two or three 45 23 minute naps every day. (AR 52.) 24 2. Vocational Expert’s Testimony 25 The ALJ asked the Vocational Expert (“VE”) to consider a person of Plaintiff’s age, 26 education, and work experience. (AR 57.) The VE was also to assume this person was limited to 27 sedentary work with the following additional limitations: never climb ladders, ropes, or scaffolds, 28 or crawl; occasionally climb ramps or stairs, balance, stoop, kneel, and crouch; and no exposure to 1 hazards such as unprotected heights and heavy mechanical machinery. (AR 57.) The VE testified 2 that such a person could performs the sedentary jobs of clerical addresser, Dictionary of Operational 3 Titles (“DOT”) code 209.587-010, semi-conductor dies loader, DOT code 726.687-030, and touch- 4 up screener in the printer circuit board industry, DOT 726.684-110, all with a specific vocational 5 preparation (“SVP”) 5 of 2. (AR 57–58.) 6 In a second hypothetical, the ALJ asked the VE to consider the person described in the first 7 hypothetical, but with the following additional limitations. (AR 58.) The person can: perform work 8 that “needs little or no judgment to do simple duties that can be learned on the job in a short period 9 of time of up to 30 days,” with a reasoning level of no higher than two; sustain ordinary routines; 10 understand, carry out, and remember simple instructions; use judgment in making simple work- 11 related decisions; attend and concentrate for two-hour periods, totaling a normal eight-hour workday 12 with usual work breaks; respond appropriately to supervision and co-workers; tolerate occasional 13 interaction with the general public; and handle changes in a routine work setting. (AR 58–59.) The 14 VE testified that such a person could perform the three jobs identified in the first hypothetical, in 15 addition to the jobs of semiconductor bonder, DOT code 726.685-066, and call-out operator, DOT 16 code 237.367-014, both with an SVP of 2. (AR 59.) 17 In a third hypothetical, the ALJ asked the VE to consider the person described in the second 18 hypothetical, with the additional limitation that the person would be absent from work four or more 19 days per month due to headaches. (AR 59.) The VE testified that person would not be able to 20 perform any work in the regional or national economy. (AR 59.) 21 D. The ALJ’s Decision 22 In a decision dated December 3, 2019, the ALJ found that Plaintiff was not disabled, as 23 defined by the Act. (AR 19–30.) The ALJ conducted the five-step disability analysis set forth in 24 20 C.F.R. § 416.920. (AR 21–30.) The ALJ determined that Plaintiff had not engaged in substantial 25 gainful activity since August 7, 2017, the application date (step one). (AR 21.) At step two, the 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the 28 DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – 1 ALJ found Plaintiff’s following impairments to be severe: seizure disorder, depressive disorder, 2 post-traumatic stress disorder, mild intellectual disability, degenerative disc disease of the lumbar 3 spine, and obesity. (AR 21.) Plaintiff did not have an impairment or combination of impairments 4 that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 5 Appendix 1 (“the Listings”) (step three). (AR 22.) 6 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 7 five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your 8 residual functional capacity . . . . We use this residual functional capacity assessment at both step 9 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 10 had the RFC: 11 to perform sedentary work as defined in 20 CFR [§] 416.967(a) except [Plaintiff] can never climb ladders, ropes, or scaffolds. [Plaintiff] can occasionally climb ramps or 12 stairs, balance, stoop, kneel, crouch, but never crawl. [Plaintiff] cannot tolerate any exposure to hazards such as unprotected heights and heavy mechanical machinery 13 like a jackhammer or tractor. [Plaintiff] can perform work that needs little or no judgment to do simple duties that can be learned on the job in a short period of time 14 up to 30 days and has a reasoning level of no higher than 2. [Plaintiff] can sustain ordinary routines, understand, carry out and remember simple instructions and use 15 judgment in making simple work related decisions. [Plaintiff] can attend and concentrate for two-hour periods totaling a normal eight hour workday with usual 16 work breaks. [Plaintiff] can respond appropriately to supervision and coworkers, and can tolerate occasional interaction with the general public. [Plaintiff] can deal with 17 changes in a routine work setting. 18 (AR 25.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 19 to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as “not entirely 20 consistent with the medical evidence and other evidence in the record.” (AR 26.) 21 The ALJ determined that Plaintiff had no past relevant work (step four). (AR 29.) The ALJ 22 ultimately concluded that, given her RFC, Plaintiff was not disabled because Plaintiff could perform 23 a significant number of other jobs in the national economy, specifically clerical addressor, loader 24 semiconductor, touchup screener, semiconductor bonder, and callout operator (step five). (AR 29– 25 30.) 26 On December 12, 2019, Plaintiff sought review of the ALJ’s decision before the Appeals 27 Council. (AR 11.) On July 30, 2020, the Appeals Council denied review. (AR 5.) Therefore, the 28 ALJ’s decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. 1 III. LEGAL STANDARDS 2 A. Applicable Law 3 An individual is considered “disabled” for purposes of disability benefits if he or she is 4 unable “to engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has lasted or can 6 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). 7 However, “[a]n individual shall be determined to be under a disability only if his physical or mental 8 impairment or impairments are of such severity that he is not only unable to do his previous work 9 but cannot, considering his age, education, and work experience, engage in any other kind of 10 substantial gainful work which exists in the national economy.” Id. at § 1382c(a)(3)(B). 11 “The Social Security Regulations set out a five-step sequential process for determining 12 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 13 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 14 Ninth Circuit has provided the following description of the sequential evaluation analysis: 15 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step 16 two and evaluates whether the claimant has a medically severe impairment or 17 combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of 18 impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 19 proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to 20 step five and examines whether the claimant has the [RFC] . . . to perform any other 21 substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 22 23 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also 20 C.F.R. § 416.920(a)(4) (providing 24 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 25 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 26 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 27 “The claimant carries the initial burden of proving a disability in steps one through four of 28 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden 2 shifts to the Commissioner in step five to show that the claimant can perform other substantial 3 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 4 B. Scope of Review 5 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 6 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 7 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such 8 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 10 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 11 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 12 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 13 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 14 only if that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell 15 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s 16 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., 17 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more 18 than one rational interpretation, the court may not substitute its judgment for that of the 19 Commissioner.” (citations omitted)). 20 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 21 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 22 determine whether the Commissioner applied the proper legal standards and whether substantial 23 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 24 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply 25 by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa 26 v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a 27 whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 28 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 1 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 3 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 4 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti 5 v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins v. Social Sec. Admin., 466 F.3d 6 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon 7 the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) 8 (citations omitted). 9 IV. DISCUSSION 10 Plaintiff contends that the ALJ harmfully erred in two ways. First, the ALJ erred at step two 11 by finding her anemia and pseudoutumor cerebri nonsevere. (See Doc. 19 at 33–36.) Second, the 12 ALJ erred in rejecting Plaintiff’s testimony about her pain and symptoms. (See Doc. 19 at 36–40.) 13 For the reasons explained below, the Court finds that the ALJ did not err. 14 A. The ALJ Did Not Harmfully Err at Step Two 15 1. Legal Standard 16 “At step two of the five-step sequential inquiry, the Commissioner determines whether the 17 claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 80 18 F.3d 1273, 1289–90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987)). “[A]t 19 the step two inquiry, . . . the ALJ must consider the combined effect of all of the claimant’s 20 impairments on her ability to function, without regard to whether each alone was sufficiently 21 severe.” Id. at 1290 (citing 42 U.S.C. § 423(d)(2)(B) and TITLES II & XVI: THE SEQUENTIAL 22 EVALUATION PROCESS, Social Security Ruling (“SSR”) 86-8 (S.S.A. 1986)). 23 “[A]n impairment is not severe if it does not significantly limit [the claimant’s] . . . ability 24 to do basic work activities.” Smolen, 80 F.3d at 1290 (citing 20 C.F.R. §§ 404.1520(c) & 25 404.1521(a)). “[B]asic work activities are the abilities and aptitudes necessary to do most jobs.” 26 TITLES II & XVI: MED. IMPAIRMENTS THAT ARE NOT SEVERE, SSR 85-28 (S.S.A. 1985). Examples 27 of “basic work activities” include (1) “[p]hysical functions such as walking, standing, sitting, lifting, 28 pushing, pulling, reaching, carrying, or handling,” (2) “[c]apacities for seeing, hearing, and 1 speaking,” (3) “[u]nderstanding, carrying out, and remembering simple instructions,” (4) “[u]se of 2 judgment,” (5) “[r]esponding appropriately to supervision, co-workers and usual work situations,” 3 and (6) “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922(b). 4 “An impairment or combination of impairments can be found ‘not severe’ only if the 5 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an [individual’s] 6 ability to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85–28). Additionally, “an ALJ may find 7 that a claimant lacks a medically severe impairment or combination of impairments only when his 8 conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th 9 Cir. 2005) (citing SSR 85–28); cf. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (finding 10 that the claimant “failed to meet his burden of establishing disability” where “none of the medical 11 opinions included a finding of impairment, a diagnosis, or objective test results”). 12 “Great care should be exercised in applying the not severe impairment concept.” SSR 85– 13 28. “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the effect 14 of an impairment or combination of impairments on the individual’s ability to do basic work 15 activities, the sequential evaluation should not end with the not severe evaluation step.’” Webb, 433 16 F.3d at 687 (alteration in original) (quoting SSR 85–28). 17 Ultimately, “[t]he severity regulation increases the efficiency and reliability of the evaluation 18 process by identifying at an early stage those claimants whose medical impairments are so slight 19 that it is unlikely they would be found to be disabled even if their age, education, and experience 20 were taken into account.” Brown v. Yuckert, 482 U.S. 137, 153 (1987). In other words, “the step- 21 two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 22 1290 (citing Yuckert, 482 U.S. at 153–54). Nonetheless, “[t]he plaintiff has the burden of 23 establishing the severity of the impairment.” Cookson v. Comm’r of Soc. Sec., No. 2:12–cv–2542– 24 CMK, 2014 WL 4795176, at *2 (E.D. Cal. Sept. 25, 2014) 25 2. Analysis 26 At step two of the sequential evaluation process, the ALJ determined that Plaintiff’s anemia 27 and pseudotumor cerebri (intracranial hypertension) were nonsevere. (AR 21.) With regard to the 28 former, the ALJ explained that Plaintiff’s iron deficiency anemia was “improved when [Plaintiff] 1 [wa]s compliant with treatment.” (AR 21.) The medical records cited by the ALJ (see AR 21) 2 indicate that Plaintiff initially presented to Dr. Aulakh in May 2016 for a hematology/oncology 3 consultation regarding her anemia, at which time Dr. Aulakh set forth a plan to treat Plaintiff with 4 intravenous iron replacement. (AR 479, 480, 613, 614.) Plaintiff, however, failed to show up for 5 treatment for over year, until she presented for a follow-up in June 2017. (See AR 475.) Treatment 6 notes indicate that, after Plaintiff eventually received her first round of iron infusions on July 10, 7 2017, and July 17, 2017, her hemoglobin level increased from 6.8g to 11.1g. (AR 466, 470, 603.) 8 In November 2017, Plaintiff reported feeling tired but denied any headaches, dizziness, or 9 occasional blurry vision, and Dr. Aulakh noted that “[m]ost of [Plaintiff’s] anemia related symptoms 10 ha[d] resolved.” (AR 466, 467, 599, 600.) The record further indicates that Plaintiff did not seek 11 treatment for her anemia again until March 2019, nearly a year and a half later, at which point her 12 hemoglobin level had decreased to 6.7g. (AR 464, 465, 588, 590.) After Plaintiff received a second 13 round of iron infusions in March 2019, Dr. Aulakh noted that Plaintiff was feeling well and denied 14 any acute complaints, and that Plaintiff’s hemoglobin level had increased from 6.7g to 8.4g. (AR 15 458, 461, 582, 585.) 16 As the record supports that Plaintiff’s anemia symptoms improved when Plaintiff was 17 compliant with treatment, the ALJ reasonably determined that Plaintiff’s anemia was a non-severe 18 impairment. See Beck v. Astrue, 303 F. App’x 455, 457 (9th Cir. 2008) (holding that the ALJ 19 properly found impairment non-severe because claimant failed to follow recommended treatment 20 plan, and the record showed that with treatment, the impairment would be controlled effectively) 21 (citing Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006) (holding that an 22 impairment that can be controlled effectively is not disabling for social security purposes)); Fry v. 23 Comm’r of Soc. Sec., No. 2:15–cv–2023–KJN (PS), 2017 WL 999459, at *3 (E.D. Cal. Mar. 15, 24 2017) (the ALJ properly found the plaintiff’s plantar fasciitis to be non-severe where the plaintiff 25 acknowledged that the condition improved when he used orthotic inserts). Even if the record 26 evidence could be construed more favorably to Plaintiff, as she suggests (see Doc. 19 at 34), the 27 Court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner 28 and will not disturb the ALJ’s finding on this basis. See Robbins, 466 F.3d at 882; Thomas v. 1 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to more than one 2 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 3 upheld”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (“When 4 evidence reasonably supports either confirming or reversing the ALJ’s decision, we may not 5 substitute our judgment for that of the ALJ.”). 6 As for Plaintiff’s benign intracranial hypertension and pseudotumor cerebri, the ALJ 7 determined that those conditions “d[id] not appear to cause [Plaintiff] any problems or symptoms.” 8 (AR 21.) Related to these diagnoses are Plaintiff’s migraines and chronic nonintractable headaches, 9 which the ALJ also found to be nonsevere because imaging studies were negative for any acute 10 intracranial process and recent neurology records indicated that the headaches were improving. (AR 11 21.) Specifically, treatment notes indicate that a CT scan of Plaintiff’s head was negative for any 12 acute intracranial process, but positive for chronic sinus disease, and Plaintiff had “occasional 13 headaches” with sinus congestion flareups. (AR 291.) Treatment notes from December 2017, April 14 2018, August 2018, and March 2019 recorded that Plaintiff’s headaches improved with the use of 15 Topamax (AR 745–46, 751–52, 754–55, 757–58), which is consistent with Plaintiff’s own 16 testimony (see AR 43). Additionally, two state agency physicians, whose opinions the ALJ found 17 persuasive (AR 27–28), considered Plaintiff’s benign intracranial hypertension and did not find it 18 to be severe, noting that the condition was being treated with acetazolamide and that Plaintiff was 19 “not alleging a visual disturbance.”6 (AR 70, 85.) 20 Plaintiff contends that the ALJ failed to consider Plaintiff’s testimony in assessing the 21 severity of her anemia and pseudotumor cerebri. (See Doc. 19 at 35.) An ALJ, however, need not 22 believe every allegation of disabling pain or functional limitation advanced by a claimant. See 23 Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). For the reasons explained below (see infra 24 Section IV.B), the Court finds that the ALJ properly rejected Plaintiff’s testimony regarding her 25 limitations. 26 27 6 Plaintiff contends that one of the state agency physicians, Dr. Ocrant, “highlighted the significance of visions problems 28 in his opinion” (Doc. 19 at 35), but it is unclear to the Court how this contention is supported by Dr. Ocrant’s statement 1 Based upon the record, the Court concludes that substantial evidence supports the ALJ’s 2 finding that Plaintiff’s anemia and pseudotumor cerebri were not severe enough to have more than 3 a minimal effect on her ability to work. Therefore, the ALJ did not err by finding those impairments 4 nonsevere at step two. 5 3. Harmless Error 6 Even assuming that the ALJ erred in finding Plaintiff’s anemia and pseudotumor cerebri 7 nonsevere, Plaintiff has the burden of establishing that any error resulted in actual harm. See Ludwig 8 v. Astrue, 681 F.3d 1047, 1054–55 (9th Cir. 2012). An “ALJ’s error is harmless where it is 9 inconsequential to the ultimate nondisability determination.” See Molina, 674 F.3d at 1115 10 (quotation marks and citations omitted). Even assuming the ALJ erred in finding Plaintiff’s anemia 11 and pseudotumor cerebri to be nonsevere, the error was harmless because Plaintiff failed to identify 12 additional limitations caused by those impairments that the ALJ should have included in their RFC 13 determination. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); 14 Stout, 454 F.3d at 1055 (error harmless where it is non-prejudicial to claimant or irrelevant to the 15 ALJ’s ultimate disability conclusion); Frazier v. Colvin, No. CV–13–270–JPH, 2014 WL 943137, 16 at *5 (E.D. Wash. Mar. 11, 2014) (finding that “any error at step two is harmless here because 17 Frazier fails to identify any more restrictive limitations caused by fatigue”). Indeed, here, the ALJ 18 determined that Plaintiff had the RFC to perform sedentary work, the most restrictive of all work 19 categories, with significant additional restrictions. (See AR 25.) 20 Citing to an unpublished Ninth Circuit decision, Ortiz v. Comm’r of Soc. Sec., 425 F. App’x 21 653, 655 (9th Cir. 2011), Plaintiff contends that remand for further proceedings is warranted, should 22 the Court find error at step two. (See Doc. 19 at 36.) But Ortiz is distinguishable, as the ALJ in that 23 case made a determination of nondisability at step two, finding that the claimant did not suffer from 24 any severe impairments. Ortiz, 425 F. App’x at 654. By contrast, the ALJ here resolved step two 25 in Plaintiff’s favor, finding that she had several severe impairments. (See AR 21.) The Ninth Circuit 26 has held that when the ALJ has resolved step two in a claimant’s favor, any error in designating 27 specific impairments as severe at that step does not necessarily prejudice a claimant. See, e.g., Buck 28 v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“[S]tep two was decided in [the plaintiff’s] favor 1 after both hearings. He could not possibly have been prejudiced. Any alleged error is therefore 2 harmless and cannot be the basis for a remand.”) (citation omitted). 3 In sum, the Court concludes that the ALJ did not harmfully err in finding Plaintiff’s anemia 4 and pseudotumor cerebri nonsevere. 5 B. The ALJ Did Not Err in Evaluating Plaintiff’s Testimony 6 1. Legal Standard 7 In evaluating the credibility of a claimant’s testimony regarding her impairments, an ALJ 8 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 9 the ALJ must determine whether the claimant has presented objective medical evidence of an 10 underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. The 11 claimant is not required to show that their impairment “could reasonably be expected to cause the 12 severity of the symptom she has alleged; she need only show that it could reasonably have caused 13 some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 14 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only 15 reject the claimant’s testimony about the severity of the symptoms if they give “specific, clear and 16 convincing reasons” for the rejection. Id. As the Ninth Circuit has explained: 17 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 18 for lying, prior inconsistent statements concerning the symptoms, and other 19 testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of 20 treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 21 22 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 23 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 24 consider include a claimant’s work record and testimony from physicians and third parties 25 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social 26 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 27 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 28 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 1 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 2 findings are not sufficient to satisfy this standard; the ALJ “‘must identify what testimony is not 3 credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 4 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 5 2. Analysis 6 Plaintiff contends that the ALJ failed to provide a clear and convincing reason, supported by 7 substantial evidence, for discounting her testimony. (Doc. 19 at 37–40.) As an initial matter, the 8 Court observes that the ALJ did not completely reject Plaintiff’s testimony that her impairments 9 limited her ability to work, ultimately assessing that Plaintiff had an RFC to perform less than the 10 full range of sedentary work, which is the most restrictive exertional category. (See AR 25, 26.) 11 The ALJ recognized that Plaintiff’s obesity “significantly limits her ability to engage and work 12 activity” and causes her to “experience[] greater pain and functional limitations than might be 13 expected” from her other impairments. (AR 26.) 14 Ultimately, the ALJ determined that the record did not support the full extent of Plaintiff’s 15 alleged limitations, rejecting those beyond the ones identified in the ALJ’s RFC determination. (AR 16 26.) As the ALJ found Plaintiff’s “medically determinable impairments could reasonably be 17 expected to cause the alleged symptoms,” the ALJ was required to provide “specific, clear and 18 convincing reasons” to reject the additional limitations alleged by Plaintiff. See Vasquez, 572 F.3d 19 at 591. Here, the ALJ properly discounted Plaintiff’s testimony because her alleged limitations were 20 unsupported by the objective medical evidence of record and her activities of daily living. (AR 25– 21 26.) 22 a. Objective Evidence of Record 23 “[T]he Ninth Circuit has repeatedly emphasized that, ‘in evaluating the credibility of . . . 24 testimony after a claimant produces objective medical evidence of an underlying impairment, an 25 ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence 26 to fully corroborate the alleged severity of [the impairment].’ ” Ondracek v. Comm’r of Soc. Sec., 27 No. 1:15–cv–01308–SKO, 2017 WL 714374, at *8 (E.D. Cal. Feb. 22, 2017) (quoting Burch, 400 28 F.3d at 680); see, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (a claimant’s 1 testimony “cannot be rejected on the sole ground that it is not fully corroborated by objective 2 medical evidence). Nonetheless, “lack of medical evidence . . . is a factor that the ALJ can consider 3 in h[er] credibility analysis.” Burch, 400 F.3d at 681. 4 The ALJ discounted Plaintiff’s testimony regarding her “allegations of disabling symptoms 5 and limitations,” including that Plaintiff can stand for only 15 to 20 minutes at one time due to her 6 back pain, in part because Plaintiff’s complaints were unsupported by the medical evidence. (AR 7 25–27.) The ALJ provided sufficient support for this conclusion, identifying ample unremarkable 8 findings. (See AR 26–27.) For example, treatment notes from May 2016 through September 2019 9 consistently recorded that Plaintiff had gait within normal limits, in addition to normal 10 musculoskeletal range of motion, strength, tone, and reflexes. (See AR 459, 462, 467, 469, 479–80, 11 636, 644, 651, 659, 666, 672, 679, 684, 688, 692.) The ALJ also noted that Plaintiff had not been 12 compliant with treatment for her impairments, as she failed to show up for scheduled appointments 13 multiple times (AR 27, 637). See Molina, 674 F.3d at 1112 (an ALJ may consider an unexplained 14 or inadequately explained failure to seek treatment or to follow a prescribed course of treatment). 15 Based on the record, the ALJ reasonably concluded that the medical evidence provided 16 support for severe limitations—as reflected in the ALJ’s RFC determination limiting Plaintiff to 17 sedentary work with additional restrictions—but not a total inability to work as alleged by Plaintiff. 18 Accordingly, the Court finds that the ALJ properly considered lack of support by the objective 19 evidence, in addition to other “clear and convincing” reasons, to discount Plaintiff’s credibility. See 20 Salas v. Colvin, No. 1:13–cv–00429–BAM, 2014 WL 4186555, at *6 (E.D. Cal. Aug. 21, 2014). 21 b. Activities of Daily Living 22 The ALJ also found that Plaintiff’s daily activities indicated that her impairments were not 23 as severe as she reported them to be. (AR 25–26.) An ALJ can consider a claimant’s activities that 24 undermine claims of totally disabling pain in making the credibility determination. See Fair v. 25 Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 26 600 (9th Cir. 1999); Rollins, 261 F.3d at 857; see also Thomas, 278 F.3d at 958–59. If the claimant 27 is able to spend a substantial part of their day engaged in pursuits involving the performance of 28 physical functions that are transferable to a work setting, a specific finding as to this fact may be 1 sufficient to discredit an allegation of disabling excess pain. Fair, 885 F.2d at 603. “Even where 2 the claimant’s activities suggest some difficulty functioning, they may be grounds for discrediting 3 the claimant’s testimony to the extent that they contradict claims of a totally debilitating 4 impairment.” Molina, 674 F.3d at 1113. 5 Here, the ALJ noted conflicting reports of Plaintiff’s activities of daily living between 6 Plaintiff’s adult function report and Plaintiff’s testimony. (See AR 25–26.) For example, Plaintiff 7 asserted in her adult function report that she was able to do light cleaning, prepare simple meals, 8 drive when her back does not bother her, shop via the computer, pay bills, count change, and use a 9 checkbook/money order. (AR 26, 216–17.) At the hearing, however, Plaintiff testified that she is 10 unable to drive or perform most household chores, and that she requires her sister’s assistance to 11 pay bills online because she does not know how to do so. (AR 45–47.) An ALJ’s credibility finding 12 may be based upon “ordinary techniques” of credibility evaluation, including inconsistent 13 statements. See Smolen, 80 F.3d at 1284; Alonzo v. Colvin, No. 1:14–cv–00460–SKO, 2015 WL 14 5358151, at *17 (E.D. Cal. Sept. 11, 2015) (finding that one inconsistent statement “comprised a 15 clear and convincing reason to discount a claimant’s credibility”). 16 Ultimately, the ALJ appeared to assign greater weight to Plaintiff’s statements in her adult 17 function report, and determined that Plaintiff had “described daily activities [i.e., performing most 18 activities of personal care, preparing simple meals, paying her bills, and getting along with others] 19 which are inconsistent with her complaints of disabling symptoms and limitations.” (AR 26.) The 20 record also indicates that Plaintiff lives alone with her two young children, whom she cares for and 21 homeschools with the assistance of her father and sister. (AR 46, 214.) Based on the record, the 22 Court finds that Plaintiff’s activities were reasonably considered by the ALJ to be inconsistent with 23 her alleged inability to work due to the severity of her symptoms. Even if some of these activities 24 do not rise to the level of transferable work skills, as Plaintiff suggests (see Doc. 19 at 38–39), they 25 are, as a whole, inconsistent with allegations of completely debilitating impairment. Molina, 674 26 F.3d at 1113. Accordingly, the inconsistency between Plaintiff’s activity level and her complaints 27 was a clear and convincing reason to find her testimony not credible. See 20 C.F.R. § 416.929(c)(3); 28 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). 1 3. Harmless Error 2 Even assuming the ALJ erred in discounting Plaintiff’s testimony, the error was harmless 3 because it is unclear what functional limitations Plaintiff believes her testimony established that 4 were not accounted for in the ALJ’s RFC assessment. Plaintiff does not identify what portion of 5 her testimony the ALJ should have credited or what additional limitations should have been included 6 in her RFC, nor does she explain how the ALJ’s RFC determination is inconsistent with her 7 testimony. (See Doc. 19 at 37–40.) See Carmickle, 533 F.3d at 1162; Stout, 454 F.3d at 1055. As 8 discussed above, the ALJ determined that Plaintiff had the RFC to perform sedentary work, the most 9 restrictive of all work categories, with significant additional restrictions. (See AR 25). Therefore, 10 the Court concludes that the ALJ did not harmfully err in their evaluation of Plaintiff’s testimony. 11 V. CONCLUSION AND ORDER 12 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 13 evidence and is therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in 14 favor of Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff 15 Lisa Marie Hernandez. 16 IT IS SO ORDERED. 17 18 Dated: March 17, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28