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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARLENE HUERTAZ, Case No. 1:21-cv-00515-ADA-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING SOCIAL SECURITY COMPLAINT 14 KILOLO KIJAKAZI, Acting Commissioner 15 of Social Security,1 (Doc. 18) 16 Defendant. FOURTEEN-DAY DEADLINE 17 18 19 Findings and Recommendations 20 INTRODUCTION 21 Plaintiff Darlene Huertaz (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (“Commissioner”) denying her application for disability insurance 23 benefits under Title II 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 28 in this 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 appeal and affirming the agency’s determination to deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed an application for supplemental security income on August 3, 2017. AR 19, 249- 7 51.2 Plaintiff alleged that she became disabled on November 30, 2015, due to a lower back injury, 8 degenerative discs in the lower back, and a pinched nerve in the lower back. AR 235. Plaintiff’s 9 application was denied initially and on reconsideration. AR 87-90, 96-101. Subsequently, Plaintiff 10 requested a hearing before an ALJ. Following a hearing, ALJ Kathleen Laub issued an order denying 11 benefits on December 26, 2019. AR 16-35, 40-62. Thereafter, Plaintiff sought review of the decision, 12 which the Appeals Counsel denied, making ALJ Laub’s decision the Commissioner’s final decision. 13 AR 5-9. This appeal followed. 14 Hearing Testimony 15 ALJ Laub held a video hearing on November 19, 2019. Plaintiff appeared in Fresno, 16 California, with her attorney, Amanda Foss. Cyndee Burnett, an impartial vocational expert, also 17 appeared and testified. AR 19, 42. 18 In response to questions from the ALJ, Plaintiff testified that she had completed the tenth grade 19 and received a GED. She also received a medical assistant diploma. Plaintiff’s past work included 20 various picking and packing jobs. Plaintiff felt that she was unable to work because of her lower back. 21 AR 44-46. 22 Between November 30, 2015, and December 31, 2017, the relevant period, Plaintiff took 23 medication for pain, which helped. She also underwent injections, which helped for a couple of 24 weeks. During that time, she lived with her husband. She would walk about 20 feet to stretch, and 25 used a cane, which was not prescribed. AR 46-49. 26 27 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page 28 number. 1 Plaintiff also testified that she had problems with depression during the period at issue. She 2 received medication for it in late 2017. She also saw a counselor twice in either 2017 or 2018. AR 3 49-50. Additionally, she had problems with her left shoulder. AR 50. 4 When asked about a typical day during the relevant period, Plaintiff testified that she would 5 prepare meals, wash dishes, do laundry, and mop. She would go to the grocery store with her 6 husband. She did not drive. After standing for about 15 minutes during the day, she would have to sit 7 down for 15 or 20 minutes at a time. AR 50-53. 8 In response to questions from her attorney, Plaintiff testified that her pain or medication make 9 it difficult for her to focus and concentrate. She has memory issues. She sometimes has to lie down in 10 a fetal position because her lower back is tight. The chiropractor talked about surgery for her lower 11 back, but she is scared to do it. AR 53-54. 12 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE 13 characterized Plaintiff’s past work as picker, packer. AR 56- 57. The ALJ then asked the VE 14 hypothetical questions. For the first hypothetical, the ALJ asked the VE to assume an individual of the 15 same age, education, and past work experience as Plaintiff. This individual could work at a light 16 exertional level with the following additional limitations: sit, stand, and/or walk for one hour at a 17 time, sit for eight hours total, and stand and/or walk for six hours total an eight-hour workday. This 18 individual could never climb ladders, ropes, or scaffolds, but could occasionally climb ramps or stairs, 19 balance, stoop, kneel, crouch, and crawl. This individual could never reach overhead with the left 20 upper extremity and could tolerate occasional exposure to extreme cold and humidity. The VE 21 testified that Plaintiff’s past work would be eliminated, but this individual could perform other work in 22 the national economy, such as merchandise marker, mailroom clerk, and package sorter. AR 57-58. 23 For the next hypothetical, the ALJ asked the VE to assume an individual of the same age, 24 education, and past work experience as Plaintiff and the same limitations as hypothetical one. This 25 individual also either needed to be able to alternate positions or stand up and stretch every 30 minutes. 26 She would not be off task while making positional changes or stretching. The VE testified that the 27 jobs would not be affected with a standing and walking alternation. If the individual needed to sit for 28 five minutes, then the jobs would be reduced by 50%. AR 58-59. 1 For the third hypothetical, the ALJ asked the VE to assume an individual of the same age, 2 education, and past work experience as Plaintiff. This individual could sit for 15 minutes one time, 3 stand for 5 minutes at one time, and could sit, stand, and/or walk for less than two hours total in an 4 eight-hour workday. This individual also required a cane with which to ambulate or stand and could 5 occasionally lift and carry less than ten pounds. This individual could rarely climb stairs, defined as 1 6 to 5% of an eight-hour workday. This individual could never twist, stoop, crouch, or climb ladders. 7 This individual could handle with the bilateral upper extremities for 70% of an eight-hour workday, 8 could finger with the bilateral upper extremities for 80% of a workday, could reach in front of the 9 body for 20% of an eight-hour workday and could never reach overhead with the bilateral upper 10 extremities. This individual also was incapable of low stress work and would be off task 25% or more 11 of an eight-hour workday and would be absent from work more than four days per month. The VE 12 testified that all work would be eliminated. AR 59-60. 13 The VE confirmed that information regarding positional changes, reaching, use of a cane, and 14 off task and absenteeism tolerances were based on her knowledge of how the jobs are performed and 15 industry standards through job analysis. AR 60. 16 In response to a question from Plaintiff’s counsel, the VE testified that all employment would 17 be eliminated if an individual would likely miss two days a month unscheduled consistently. AR 61. 18 Medical Record 19 The relevant medical record was reviewed by the Court and will be referenced below as 20 necessary to this Court’s decision. 21 The ALJ’s Decision 22 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 23 determined that Plaintiff was not disabled under the Social Security Act through December 31, 2017, 24 the date last insured. AR 19-35. Specifically, the ALJ found that Plaintiff had not engaged in 25 substantial gainful activity during the period from her alleged onset date of November 30, 2015, 26 through her date last insured of December 31, 2017. AR 21. The ALJ identified the following severe 27 impairments: left rotator cuff tendonitis with possible tear, degenerative disc disease of the lumbar 28 spine, and chronic cervical and lumbosacral musculoligamentous strain/sprain. AR 21-24. The ALJ 1 determined that Plaintiff did not have an impairment or combination of impairments that met or 2 medically equaled any of the listed impairments, specifically considering listings 1.02 for major 3 dysfunction of a joint due to any cause and 1.04 for disorders of the spine. AR 24-25. 4 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 5 functional capacity (“RFC”) to perform light work, except she could sit, stand, or walk for one hour at 6 a time. She could sit for a total of eight hours and could stand and/or walk for a total of six hours 7 during an eight-hour workday. She could never climb ladders, ropes, or scaffolds. She could 8 occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. She could never reach 9 overhead with the left upper extremity. She could tolerate occasional exposure to extreme cold and 10 humidity. AR 25-34. With this RFC, the ALJ found that Plaintiff could not perform any past relevant 11 work, but that there were jobs in the national economy that Plaintiff could have performed, such as 12 merchandise marker, mailroom clerk, and package sorter. AR 33-35. The ALJ therefore concluded 13 that Plaintiff had not been under a disability at any time from November 30, 2015, the alleged onset 14 date, through December 31, 2017, the date last insured. AR 35. 15 SCOPE OF REVIEW 16 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 17 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 18 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 19 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 20 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 21 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 22 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 23 considered, weighing both the evidence that supports and the evidence that detracts from the 24 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 25 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 26 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 27 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 28 1 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 2 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 3 REVIEW 4 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 5 substantial gainful activity due to a medically determinable physical or mental impairment which has 6 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 7 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 8 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 9 her age, education, and work experience, engage in any other kind of substantial gainful work which 10 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 11 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 12 1990). 13 DISCUSSION3 14 Plaintiff contends that the ALJ erred by finding the opinions from treating physician, Dr. Peter 15 J. Mandell, and examining physician, Dr. Daria Majzoubi, not persuasive. Plaintiff also contends that 16 the ALJ failed to include work-related limitations in the RFC consistent with the nature and intensity 17 of her limitations and failed to offer clear and convincing reasons to reject Plaintiff’s subjective 18 complaints. (Doc. 18 at 1.) 19 A. Evaluation of Medical Opinions 20 Plaintiff argues that the ALJ erred in her evaluation of the opinions of Drs. Mandell and 21 Majzoubi and did not properly consider the supportability and consistency of those opinions. (Doc. 18 22 at 11.) 23 1. Legal Standard 24 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 25 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 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. 1 404.1520c Under the new regulations, the Commissioner does “not defer or give any specific 2 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 3 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). 4 The Commissioner evaluates the persuasiveness of the medical opinions based on the following 5 factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 6 (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence 7 in the claim or an understanding of our disability program’s policies and evidentiary requirements.” 8 20 C.F.R. § 404.1520c(c)(1)-(5). Supportability and consistency are the most important factors. 20 9 C.F.R. § 404.1520c(b)(2). 10 Ninth Circuit case law preceding the new regulations afforded deference to the medical 11 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 12 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 13 the medical opinions of treating or examining physicians. These standards of articulation no longer 14 apply in light of the new regulations, and the ALJ is not required to provide “specific and legitimate 15 reasons” to discount the medical opinions. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 16 (finding revised social security regulations “clearly irreconcilable with our caselaw according special 17 deference to the opinions of treating and examining physicians on account of their relationship with 18 the claimant”). The Ninth Circuit has clarified that “under the new regulations, an ALJ cannot reject 19 an examining or treating doctor’s opinion as unsupported or inconsistent without providing an 20 explanation supported by substantial evidence.” Id. “The agency must ‘articulate ... how persuasive’ 21 it finds ‘all of the medical opinions’ from each doctor or other source, . . . and ‘explain how [it] 22 considered the supportability and consistency factors’ in reaching these findings.” Id. (internal 23 citations omitted). 24 2. Analysis 25 Dr. Mandell 26 Dr. Mandell conducted a Worker’s Compensation exam of Plaintiff on April 22, 2016. AR 27 329-36. Plaintiff informed Dr. Mandell that she injured herself on May 4, 2015, while moving totes, 28 but she did not report the injury. AR 329-30. On physical examination, Plaintiff had no tenderness of 1 the cervical, thoracic, or lumbar spines, or paraspinous musculature and had no tenderness about the 2 sternocleidomastoids, trapezii, rhomboids, sacroiliac joints, or sacrosciatic notches. She had reduced 3 active motion of the cervical and lumbar spine. AR 332-33. Her straight leg testing measured 80/80 4 degrees bilaterally in the seated position and 45/30 degrees (R/L) in the recumbent position. She 5 walked with a mild limp. Her deep tendon reflexes were equal and active. She had a collapsing-type 6 weakness of both upper extremities and a fluttering-type weakness of both extensor hallucis longus 7 muscles. Her sensory examination was normal. AR 334. 8 Dr. Mandell opined that for her cervical spine Plaintiff had a 6% whole person impairment and 9 would need treatment for the neck in the form of pain management, including injections, medications, 10 and physical therapy for flare-ups. AR 335. For her lumbar spine, Dr. Mandell opined that Plaintiff 11 had a 12% whole person impairment and would need treatment in the form of injections, medications 12 and physical therapy for flare-ups. AR 335. Dr. Mandell opined that Plaintiff could not return to her 13 former job and was precluded from lifting more than 10 pounds or so, standing for more than 15 14 minutes or so, sitting for more than 30 minutes or so, and from repetitive stooping and bending. AR 15 335. 16 The ALJ found the medical opinion of Dr. Mandell not persuasive, and reasoned as follows: 17 He restricted the claimant to a limited range of sedentary work that involved no more than 15-minutes of standing or 30-minutes of sitting per occasion and no repetitive stooping or 18 bending. While some of the abnormalities, including decreased range of motion and muscle strength, detailed in Dr. Mandell’s examination findings support some physical 19 limitations, [t]he normal reflexes, sensation, and absence of tenderness throughout the 20 claimant’s spinal region do not support such restrictive limitations. Furthermore, Dr. Mandell’s medical opinion is not consistent with the claimant’s very conservative medical 21 treatment, the recurring decreases in reported pain levels, and the totality of the evidence of record. 22 23 AR 32. 24 Plaintiff argues that in assessing the supportability of Dr. Mandell’s opinion, the ALJ “simply 25 summarized benign mental status findings” but failed to support that the normal findings “effectively 26 ‘cancel out’ the impact of Plaintiff’s severe mental status abnormalities.” (Doc. 18 at 12.) Plaintiff’s 27 argument misses the mark and lacks support. The ALJ did not rely on “benign mental status findings” 28 in assessing the supportability of Dr. Mandell’s opinion. Rather, the ALJ relied on the normal 1 physical findings from Dr. Mandell’s examination, such as normal reflexes and sensation, along with 2 the absence of tenderness throughout Plaintiff’s spinal region. AR 32, 332-34. The ALJ determined 3 that those normal physical findings did not support Dr. Mandell’s more restrictive limitations. This 4 determination properly invoked the supportability factor, which means the extent to which a medical 5 source supports the medical opinion by explaining the “relevant ... objective medical evidence.” Id. § 6 404.1520c(c)(1).” Woods, 2022 WL 1195334, at * 6. 7 Insofar as Plaintiff cites Johnson v. Berryhill, No. C17-5623-MAT, 2018 WL 3008879, at *4 8 (W.D. Wash. June 15, 2018) and William B. v. Saul, No. 2:19-CV-00261-JTR, 2020 WL 4318755, at 9 *3 (E.D. Wash. July 27, 2020), to support the proposition that a physician’s normal findings on 10 examination do not negate other abnormal findings, this citation is not persuasive. (Doc. 18 at 12.) 11 The cited cases are not controlling precedent in this district. Moreover, the cited cases are 12 distinguishable as they relate to mental status examinations, not physical examinations. See Johnson, 13 2018 WL 3008879, at *4 (W.D. Wash. June 15, 2018) (“Furthermore, the ALJ did not acknowledge 14 the extent to which Dr. Wingate’s mental status examination (“MSE”) revealed abnormal findings; the 15 existence of other normal findings does not negate Dr. Wingate’s examination.”); William B., 2020 16 WL 4318755, at *3 (“Simply because Plaintiff did well on portions of the mental status exam does not 17 negate the other abnormal findings, as well as Dr. Islam-Zwart's professional assessments.”). 18 Plaintiff next argues that with respect to consistency, the ALJ’s assertion that Dr. Mandell’s 19 opinion is inconsistent with Plaintiff’s conservative treatment is “disingenuous.” (Id. at 12-13.) 20 Plaintiff contends that her treatment history reveals that she underwent aggressive care, including 21 trigger point injections on multiple occasions in addition to treatment with narcotic pain medications. 22 Plaintiff asserts that the ALJ’s characterization of this treatment as conservative is erroneous. (Id. at 23 13.) 24 The record reflects that Plaintiff was prescribed narcotic pain medications and underwent 25 steroid injections. AR 398-99, 404-05, 513, 667, 672, 675, 836, 852. However, courts have found 26 that the fact that a plaintiff has been prescribed narcotic medication or received injections does not 27 negate the reasonableness of an ALJ’s finding that Plaintiff's treatment as a whole was conservative, 28 particularly when undertaken in addition to other, less invasive treatment methods. See Martin v. 1 Colvin, No. 1:15-cv-01678-SKO, 2017 WL 615196, at *10 (E.D. Cal. Feb. 14, 2017) (collecting 2 cases); see also Schilling v. Comm’r of Soc. Sec., No. 1:21-CV-01268-SAB, 2022 WL 17418343, at 3 *10 (E.D. Cal. Dec. 5, 2022). 4 Here, the ALJ appropriately identified other, less invasive treatment. For example, the ALJ 5 noted that despite Plaintiff’s report that she injured her lumbar spine in May 2015, while lifting a tote 6 at work, she did not obtain immediate treatment and she continued to work until November 2015. AR 7 26-27. The ALJ also noted that Plaintiff initially was being treated conservatively by her primary care 8 provider, and this treatment included the use of medication and physical therapy/chiropractic 9 treatment. AR 27, 399. 402, 405, 407, 409, 411, 413. Thereafter, Plaintiff underwent several months 10 of chiropractic treatment with Paul Schroeder, DC, beginning in November 2015 and continuing 11 through at least July 2016. AR 27. AR 346-49, 354-57, 362-66, 370-73, 377-80, 389-93,416-20, 424- 12 26, 430-33, 439-43. Plaintiff then transitioned her care to Dr. Daria Majzoubi in September 2016 and 13 was treating her pain only with ibuprofen at that time. AR 29, 680. By October 2017, Plaintiff was 14 managing her pain with medication, with a reported pain level of 0. AR 30, 660. These conservative 15 treatment options appear to support the ALJ’s finding that Plaintiff’s overall treatment plan was 16 conservative in nature during the relevant period. Schilling, 2022 WL 17418343, at *10. The Court 17 finds the ALJ's characterization of Plaintiff's treatment on the whole as conservative was not 18 unreasonable, where her treatment history consisted largely of medications and chiropractic care. Id. 19 Plaintiff further contends that the ALJ’s assertion that the symptoms were managed with 20 treatment “is a misstatement of the record” because records show that Plaintiff’s reported 21 improvement was as little as 20% relief from pain and any relief was temporary. (Doc. 18 at 13.) The 22 Court does not find that the ALJ misstated the record. 23 In this case, the ALJ noted that by March 2016, with regular chiropractic treatment, Plaintiff 24 felt better and no longer needed to take anti-inflammatory medication. AR 27-28, 362. Her 25 chiropractor also documented and confirmed “significant functional improvements” resulting from 26 Plaintiff’s prior chiropractic treatment, and Plaintiff herself reported that her pain was 25% less 27 following the prior treatment. AR 364. Further, the ALJ also noted that in May 2016, Plaintiff 28 reported that her previous chiropractic treatment “reduced her pain by 50%” and “her pain went down 1 to a 4/10 immediately and stayed that way for several weeks. Significant relief was provided by 2 chiropractic treatment on the last treatment.” AR 348. 3 After stopping chiropractic treatment in or around July 2016, and transitioning to treatment 4 with Dr. Majzoubi in September 2016, Plaintiff reported her pain as 10/10. However, as indicated by 5 the ALJ, Dr. Majzoubi’s subsequent treatment records reflected an overall reduction in Plaintiff’s pain 6 levels with treatment. AR 29-30, 659-80. Indeed, following steroid injections on January 6, 2017, 7 Plaintiff’s pain level was noted to be 0 out of 10 through the end of March 2017, with Dr. Majzoubi 8 indicating that Plaintiff’s pain was much improved. AR 29, 669, 670, 671, 672. After steroid 9 injections in May 2017, Plaintiff again reported a reduction of pain. AR 29, 666. By October 2017, 10 shortly before her date last insured, Plaintiff was managing her pain with medication and reported a 11 pain level of 0. AR 30, 660. Plaintiff’s final examinations with Dr. Majzoubi, prior to her date last 12 insured, included no pain ratings. AR 30, 659, 872. 13 The ALJ’s determination that Plaintiff's symptoms were managed with treatment was not 14 unreasonable. To the extent Plaintiff suggests an alternative interpretation of the evidence, this is not 15 sufficient to establish reversible error. If the evidence “is susceptible to more than one rational 16 interpretation, it is the ALJ's conclusion that must be upheld.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 17 Cir. 2020), citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 18 Dr. Majzoubi 19 On November 21, 2017, Dr. Majzoubi completed a Physical Medical Source Statement form. 20 Dr. Majzoubi opined that Plaintiff could walk one city block without rest or severe pain. Plaintiff 21 could sit for 15 minutes at one time, could stand for 15 minutes at one time, could sit less than 2 hours 22 in an 8-hour workday and could stand/walk less than 2 hours in an 8-hour workday. AR 714. Dr. 23 Majzoubi further opined that Plaintiff must use a cane or other hand-held assistive device while 24 standing/walking due to imbalance and pain. Plaintiff could occasionally lift and carry less than 10 25 pounds, could rarely climb stairs, and could never twist, stoop (bend), crouch/squat or climb ladders. 26 AR 715. Dr. Majzoubi reported that Plaintiff had significant limitations with reaching, handling or 27 fingering. She could grasp, turn or twist objects 70% of an 8-hourworkday with her bilateral hands, 28 could engage in fine finger manipulations 80% of an 8-hour workday with her bilateral fingers, could 1 reach in front of her body 20% of an 8-hour workday with her bilateral arms, and could reach 2 overhead 0% of an 8-hour workday with her bilateral arms. Dr. Majzoubi opined that Plaintiff would 3 be off task 25% or more of a typical workday, she was incapable of even “low stress” work, and she 4 would likely be absent from work more than four days per month. AR 716. Plaintiff also would need 5 to take unscheduled breaks during a working day more than 30 times (every 15 minutes) for 15 6 minutes at a time. AR 717. 7 The ALJ found the medical opinion of Dr. Majzoubi not persuasive, reasoning as follows: 8 Dr. Majzoubi’s opinion that the claimant is limited to a combined total of four hours of sitting and standing and/or walking during an eight-hour workday is not supported by his 9 treatment notes that generally only address muscle spasms and document very limited objective abnormalities. Moreover, his opinion is not consistent with the claimant’s 10 conservative treatment and general ability to manage her symptoms with the use of 11 medication. 12 AR 32. 13 In challenging the ALJ’s findings, Plaintiff argues that “the ALJ failed to explain how the 14 objective findings contradict this opinion, Plaintiff’s treatment was not conservative, and it was not 15 well managed with medication as relief was only partial and temporary.” (Doc. 18 at 13-14.) 16 For the same reasons discussed above in connection with Dr. Mandell’s opinions, the ALJ’s 17 determinations that Plaintiff's treatment generally was conservative and that her symptoms were 18 managed with treatment were not unreasonable, and the Court does not find error. As to Plaintiff’s 19 assertions regarding the objective findings, the ALJ explained that Dr. Majzoubi’s treatment notes 20 identified only muscle spasms and documented limited objective abnormalities, which would not 21 support a limitation to a combined total of four hours of sitting and standing and/or walking during an 22 eight-hour workday. AR 32, 659-60, 663-64, 668, 670-71, 673-74, 676, 678-80. Plaintiff does not 23 specifically identify any objective findings that the ALJ failed to consider or that would otherwise 24 suggest error. (Doc. 18 at 13-14.) 25 Based on the above, the Court finds that the ALJ did not err in her evaluation of the opinions of 26 Drs. Mandell and Majzoubi. 27 /// 28 /// 1 B. Plaintiff’s Subjective Complaints 2 Plaintiff argues that the ALJ failed to provide clear and convincing reasons to reject her 3 subjective complaints. 4 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 5 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. 6 Sec. Admin., 359 F.3d 1190, 1196 (2004). First, the claimant must produce objective medical 7 evidence of her impairment that could reasonably be expected to produce some degree of the symptom 8 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no 9 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of her 10 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 11 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 13 persistence and limiting effects of those symptoms. AR 26. The ALJ was therefore required to 14 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 15 The Court finds that the ALJ provided clear and convincing reasons to discount Plaintiff’s 16 subjective complaints. First, the ALJ found that Plaintiff’s statements regarding her symptoms were 17 inconsistent with the conservative nature of her treatment. AR 26. An ALJ is permitted to consider 18 evidence of conservative treatment in evaluating a claimant’s subjective complaints. See Parra v. 19 Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (finding evidence of conservative treatment sufficient to 20 discount claimant’s testimony regarding severity of impairment). As discussed above, the ALJ’s 21 determination that Plaintiff’s impairments were treated conservatively was reasonable and supported 22 by substantial evidence in the record. 23 Second, the ALJ found that Plaintiff’s statements regarding her symptoms were inconsistent 24 with the limited objective findings. AR 26. Although lack of supporting medical evidence cannot 25 form the sole basis for discounting testimony, it is a factor that the ALJ can consider. See Burch v. 26 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). As an example, and discussed above, the ALJ properly 27 identified that Dr. Majzoubi’s treatment records reflected only muscle spasms and limited objective 28 findings. 1 Third, the ALJ properly considered Plaintiff’s inconsistent statements regarding her symptoms 2 and limitations. AR 26. An ALJ may properly consider inconsistent statements by a claimant in 3 evaluating the claimant’s testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); 4 see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010). To illustrate these 5 inconsistencies, the ALJ considered that Plaintiff’s reports to medical providers suggested greater 6 functional abilities than those described by the claimant throughout the disability process. AR 26. 7 The ALJ cited Plaintiff’s Pain Questionnaire and her Function Report – Adult, in which she reported 8 that she was unable to prepare meals or perform any household chores and she spent most of her days 9 alone, isolated in her room. AR 26, 252-54, 279-86. In contrast, the ALJ referenced Plaintiff’s report 10 to the consultative examiner in September 2017 that she was able to complete household chores in the 11 apartment where she lived with her husband and four-month-old child. AR 31, 652 (daily activities 12 included cooking, vacuuming, mopping, taking out the trash, doing laundry and doing dishes). The 13 ALJ also contrasted Plaintiff’s questionnaire and function report with Plaintiff’s hearing testimony that 14 she could complete some household chores, such as preparing meals, washing dishes, doing laundry, 15 and grocery shopping with her husband. AR 26, 51-52. 16 Similarly, the ALJ considered Plaintiff’s inconsistent statements regarding the efficacy of her 17 chiropractic treatment. AR 26. For instance, the ALJ contrasted Plaintiff’s assertion that her 18 chiropractic treatment did not help her chronic pain with her report of symptom improvement just 19 prior to her suspension of chiropractic treatment. AR 28 (“The report of symptom improvement just 20 prior to the claimant’s suspension of chiropractic care seems to conflict with the claimant’s allegations 21 that her chiropractic treatment did not help her chronic pain.”). In particular, the ALJ cited Plaintiff’s 22 report to her chiropractor in March 2016 that she had run out of anti-inflammatory medication but did 23 not need a refill as she was feeling better. AR 28, 362. The ALJ also cited Plaintiff’s statements to 24 her chiropractor in May 2016 that her previous chiropractic treatment “immediately reduced her pain 25 by 50%” and “her pain went down to 4/10 immediately and stayed that way for several weeks.” AR 26 28, 348. Additionally, the ALJ found that these reports to her treating chiropractor regarding the 27 effectiveness of her treatment varied significantly from statements she made during her evaluation 28 with Dr. Mandell in April 2016. AR 28. In particular, the ALJ noted that Plaintiff “informed Dr. 1 Mandell that her chiropractic treatment was not working, which seems to conflict with her reports to 2 her chiropractor.” AR 28, 330 (“the treatments aren’t helping, she informs me”). 3 Based on the above, the Court finds that the ALJ did not err in her evaluation of Plaintiff’s 4 subjective complaints. However, even if one of the reasons for discounting Plaintiff’s subjective 5 complaints was invalid, any such error is harmless because the ALJ provided other valid reasons for 6 discounting Plaintiff's subjective testimony. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 7 1155, 1161-63 (9th Cir. 2008) (finding that two invalid reasons to reject a claimant’s testimony were 8 harmless error where the ALJ articulated two other reasons supported by substantial evidence in the 9 record); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“several of our cases have held that an 10 ALJ’s error was harmless where the ALJ provided one or more invalid reasons for disbelieving a 11 claimant’s testimony, but also provided valid reasons that were supported by the record”). 12 CONCLUSION AND RECOMMENDATION 13 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 14 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 15 HEREBY RECOMMENDED as follows: 16 1. Plaintiff’s appeal from the administrative decision of the Commissioner of Social 17 Security be denied; and 18 2. The Clerk of this Court be directed to enter judgment in favor of Defendant Kilolo 19 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff Darlene 20 Huertaz. 21 22 These Findings and Recommendations will be submitted to the United States District Judge 23 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 24 served with these findings and recommendations, the parties may file written objections with the 25 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendations.” The parties are advised that the failure to file objections within the specified time 27 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 28 1 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 2 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: December 14, 2022 /s/ Barbara A. McAuliffe _ 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28