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

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ERICA YVONNE BLEA, Case No. 1:21-cv-00971-JLT-BAM 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 v. REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 KILOLO KIJAKAZI, Acting Commissioner 13 of Social Security,1 (Doc. 22) 14 Defendant. FOURTEEN-DAY DEADLINE 15 16 17 Findings and Recommendations 18 INTRODUCTION 19 Plaintiff Erica Yvonne Blea (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying her application for Supplemental 21 Security Income under Title XVI of the Social Security Act. The matter is currently before the Court 22 on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 23 McAuliffe for findings and recommendations. 24 Having considered the parties’ briefs, along with the entire record in this case, the Court finds 25 that the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the 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 record and is based upon proper legal standards. Accordingly, this Court will recommend affirming 2 the agency’s determination to deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff protectively filed an application for supplemental security income on August 30, 5 2017. AR 36, 212-18.2 Plaintiff alleged that she became disabled on May 8, 2017, due to lupus, 6 unspecified seizures, anemia, tricuspid and mitral heart valve prolapse and Raynaud’s Syndrome. AR 7 212, 234. Plaintiff’s application was denied initially and on reconsideration. AR 111-15, 123-27. 8 Subsequently, Plaintiff requested a hearing before an ALJ. ALJ Shane McGovern held a hearing on 9 April 3, 2020. AR 43-75. ALJ McGovern issued an order denying benefits on April 28, 2020. AR 10 21-36. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, making the 11 ALJ’s decision the Commissioner’s final decision. AR 10-15. This appeal followed. 12 Hearing Testimony 13 The ALJ held a telephonic hearing on April 3, 2020. Plaintiff appeared with her attorney, 14 Jonathan O. Pena. Robin Cook, an impartial vocational expert, also appeared and testified. AR 24, 15 45. 16 In response to questions from the ALJ, Plaintiff testified that, at least during the week, she 17 lives with four of her children ranging in age from 16 to 10 years old. They assist her with things 18 around the home, like cooking dinner, doing laundry, opening jars and taking out the trash. AR 51-52. 19 Plaintiff does not have a driver’s license. It was medically suspended in 2017 due to her seizures. If 20 she has a doctor’s appointment, her husband, father or sister will pick her up. AR 52-53. 21 When asked about her education and work background, Plaintiff testified that she attended 22 some community college and completed medical assistant vocational training in 2008. She has not 23 worked since 2017. In the past, she worked as a caregiver and in private in-home care. AR 53- 24 Following questions from the ALJ, Plaintiff’s counsel asked Plaintiff regarding the reasons she 25 is unable to work. When asked about her lupus, Plaintiff testified that it has worsened since 2017. It 26 limits her ability to work because she is extremely fatigued. There are times she cannot use her hands 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 due to soreness, stiffness and joint pain. She has edema in her legs, sun sensitivity and stress 2 sensitivity. She lies down frequently because of pain, swelling or fatigue, and in an eight-hour period 3 she would have to lie down for about three to four hours. She has daily swelling of her hands. She 4 also has random flare-ups that cause frequent fevers. She could be fine and then a couple hours later 5 she will have a fever. She also has sun sensitivity that causes pain and a butterfly rash on her cheeks. 6 Another flare-up issue is hair loss, she gets anemic, and her vitamin D starts to get deficient. She also 7 can gain or lose weight depending on her medications. She has flare-ups every couple weeks and they 8 can last from a couple days to two weeks. With regard to the edema in her lower extremities, she 9 deals with it on a daily basis. They have her on a diuretic, which sometimes helps with the swelling. 10 She also has to elevate her lower extremities, which she will do when she is lying down for three or 11 four hours. AR 57-59. Her seizures are now stabilized, and she had not had a seizure in about a year. 12 She takes heavy sedatives for her seizures, and they bring on fatigue. AR 60. 13 Plaintiff additionally testified that she has a heart arrhythmia that causes fatigue, swelling, 14 lightheadedness and shortness of breath. She was sent to a cardiac surgeon and will need pacemaker 15 surgery and ablation surgery. AR 61. 16 When asked about her activities, Plaintiff testified she can walk about 20 to 30 minutes at one 17 time. She can stand about 30 to 45 minutes before she needs to sit. She can sit for about an hour 18 before she has to get up or elevate her legs. She can lift less than 10 pounds. She can engage in a 19 chore activity, such as sweeping, cooking, or cleaning, for one to two hours. AR 61-63. 20 When asked about her carpal tunnel, Plaintiff testified that it is getting hard to write, open jars, 21 and brush her hair. Prior to her carpal tunnel issues, she was able to take care of her own personal 22 needs. AR 63. 23 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE categorized 24 Plaintiff’s past work as home attendant. AR 66-67. The ALJ also asked the VE hypotheticals. For 25 the first hypothetical, the ALJ asked the VE to assume a person of the claimant’s age, education, and 26 work background. This person could perform sedentary work, but no ladders, ropes, or scaffolds, 27 occasional ramps and stairs, balance, stoop, crouch, kneel, and crawl, with no exposure to moving 28 mechanical parts or nonprotected heights or driving. The VE confirmed this eliminates past work, but 1 there are other jobs available, such as semi-conductor bonder, call-out operator, and document 2 specialist. AR 67-68. 3 For the second hypothetical, the ALJ asked the VE to add to the first hypothetical that the 4 person would be limited to a position that could be learned within 30 days and that did not involve 5 conveyor belts or hourly quotas. The VE testified that only the position of document specialist would 6 remain. AR 68-69. 7 For the third hypothetical, the ALJ asked the VE to add to the first hypothetical that the person 8 would be limited to no more than frequent handling, fingering, and feeling bilaterally. The VE 9 testified that the jobs remained the same in the same numbers. AR 69-70. 10 The VE additionally testified that employers generally will tolerate off-task behavior up to 11 15% of the workday. In terms of absenteeism, employers will tolerate 10 to 12 days per year, on 12 average one day per month. AR 70-71. 13 Following the ALJ’s questions, Plaintiff’s counsel asked the VE additional hypothetical 14 questions. For the fourth hypothetical, counsel asked the VE to assume hypothetical one and add that 15 this person would require the ability to elevate the lower extremities to above waist for two hours 16 throughout the workday. The VE testified that the hypothetical individual could not perform any of 17 the identified jobs. AR 71. 18 For the fifth hypothetical, counsel asked the VE to assume hypothetical one, but add that the 19 individual would need a 10-minute break every 45 minutes. The VE testified that this individual 20 would not be able to perform any work in the national economy. AR 71-72. 21 For the final hypothetical, the ALJ asked the VE to add to either the first hypothetical or the 22 third hypothetical that the person would be limited to a position that could be learned within thirty 23 days. The VE confirmed that the jobs provided for in hypotheticals one and three would remain. AR 24 72. 25 Medical Record 26 The relevant medical record was reviewed by the Court and will be referenced below as 27 necessary to this Court’s decision. 28 /// 1 The ALJ’s Decision 2 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 3 determined that Plaintiff was not disabled under the Social Security Act. AR 24-36. Specifically, the 4 ALJ found that Plaintiff had not engaged in substantial gainful activity since August 30, 2017, her 5 application date. AR 26. The ALJ identified the following severe impairments: fibromyalgia and 6 chronic pain syndrome with unspecified opioid use; degenerative disc disease of the cervical spine; 7 seizure disorder; systemic lupus; and morbid obesity. AR 26-29. The ALJ determined that Plaintiff 8 did not have an impairment or combination of impairments that met or medically equaled any of the 9 listed impairments. AR 29-30. 10 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 11 functional capacity (“RFC”) to perform sedentary work, except she could never climb ladders, ropes, 12 or scaffolds, could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, could 13 frequently handle, finger, and feel bilaterally, could have no exposure to moving mechanical parts or 14 unprotected heights and could perform no driving while at work. AR 30-34. With this RFC, the ALJ 15 found that Plaintiff could not perform any past relevant work, but could perform other jobs in the 16 national economy, such as semi-conductor bonder, call out operator, and document specialist. AR 34- 17 36. The ALJ therefore concluded that Plaintiff was not disabled. AR 36. 18 SCOPE OF REVIEW 19 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 20 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 21 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 22 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 23 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 24 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 25 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 26 considered, weighing both the evidence that supports and the evidence that detracts from the 27 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 28 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 1 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 2 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 3 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 4 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 5 REVIEW 6 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 7 substantial gainful activity due to a medically determinable physical or mental impairment which has 8 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 9 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 10 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 11 her age, education, and work experience, engage in any other kind of substantial gainful work which 12 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 13 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 14 1990). 15 DISCUSSION3 16 Plaintiff contends that the ALJ erred in evaluating the following: (1) the medical opinion 17 evidence in developing Plaintiff’s RFC; and (2) Plaintiff’s symptom testimony. 18 A. Residual Functional Capacity – Medical Opinion Evidence 19 Plaintiff asserts that the ALJ improperly relied on his own interpretation of the evidence in 20 determining the RFC. In particular, Plaintiff argues that the ALJ improperly rejected the medical 21 opinion evidence. (Doc. 22 at 10-13.) Although Plaintiff appears to challenge the ALJ’s evaluation of 22 the state agency physician opinions and the consultative examiner opinion, she does not disagree with 23 the ALJ’s determination that she is more limited than those doctors found. (Doc. 22 at 11.) Instead, 24 the crux of Plaintiff’s argument is that the ALJ’s RFC failed to properly consider the opinion of her 25 treating physician, Dr. Okey Sams. (Id. at 12-13.) Specifically, Plaintiff argues that the ALJ erred by 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 failing “to articulate his rationale relative to the findings of Dr. Sams that assessed off task behavior 2 and absenteeism.” (Doc. 22 at 13.) The Court therefore limits its focus to the ALJ’s evaluation of Dr. 3 Sams’ opinion.4 4 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 5 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 6 416.920c Under the new regulations, the Commissioner does “not defer or give any specific 7 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 8 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 416.920c(a)(1). 9 The Commissioner evaluates the persuasiveness of the medical opinions based on the following 10 factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 11 (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence 12 in the claim or an understanding of our disability program’s policies and evidentiary requirements.” 13 20 C.F.R. § 416.920c(c)(3)(1)-(5). Supportability and consistency are the most important factors. 20 14 C.F.R. § 416.920c(b)(2). 15 Ninth Circuit case law preceding the new regulations afforded deference to the medical 16 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 17 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 18 the medical opinions of treating or examining physicians. These standards of articulation no longer 19 apply in light of the new regulations. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 20 (finding revised social security regulations “clearly irreconcilable with our caselaw according special 21 deference to the opinions of treating and examining physicians on account of their relationship with 22 the claimant”). The Ninth Circuit has clarified that “under the new regulations, an ALJ cannot reject 23 24 4 Plaintiff faults the ALJ for failing to adopt any of the medical opinions in developing Plaintiff’s 25 RFC. However, the ALJ is not required to “defer or give any specific evidentiary weight to any medical opinion(s).” 20 C.F. R. § 416.920c(a)(1). “The RFC need not mirror a particular opinion; it is 26 an assessment formulated by the ALJ based on all relevant evidence.” Ashlock v. Kijakazi, No. 1:21- CV-01687-GSA, 2022 WL 2307594, at *3 (E.D. Cal. June 27, 2022); see 20 C.F.R. § 416.945 (“We 27 will assess your residual functional capacity based on all of the relevant medical and other evidence.”). 28 1 an examining or treating doctor’s opinion as unsupported or inconsistent without providing an 2 explanation supported by substantial evidence.” Id. “The agency must ‘articulate ... how persuasive’ 3 it finds ‘all of the medical opinions’ from each doctor or other source, . . . and ‘explain how [it] 4 considered the supportability and consistency factors’ in reaching these findings.” Id. (internal 5 citations omitted); see 20 C.F.R. § 416.920c(b). 6 Dr. Sams’ Opinion 7 On January 23, 2020, Dr. Sams completed a Physical Medical Source Statement. AR 1814-17. 8 Dr. Sams opined that Plaintiff could walk less than a block, sit for 30 minutes at one time and stand for 9 30 minutes at one time. In an 8-hour working day, she could sit less than 2 hours and stand/walk for 10 less than 2 hours. She would need a job that permitted shifting positions at will and that included 11 periods of walking every 60 minutes for 10 minutes at a time. AR 1814. She also would need to take 12 unscheduled breaks 3-4 times for 10-15 minutes. With prolonged sitting, Plaintiff did not need to 13 elevate her legs. AR 18156. Dr. Sams further opined Plaintiff could lift 10 pounds occasionally and 14 20 pounds rarely, could frequently twist, occasionally stoop (bend), rarely crouch/squat and never 15 climb stairs or ladders. Plaintiff also had significant limitations with reaching, handling, or fingering. 16 AR 1816. Additionally, Dr. Sams opined that Plaintiff would be off task 25% or more of a typical 17 workday. She would have “good days” and “bad days,” and, on average, would miss more than four 18 days per month. She also would have limitations from temperature extremes, sick co-workers, sun 19 exposure and stress. AR 1817. 20 In evaluating Dr. Sams’ opinion, the ALJ reasoned as follows: 21 Dr. Sams opined that the claimant had several extreme limitations including that the claimant would need to take three to four unscheduled breaks per day for ten to fifteen 22 minutes, would be off task more than twenty-five precent of the day, and would miss more than four days of work per month [ ]. This opinion is not persuasive. This opinion was not 23 supported by reference to the claimant’s objective examinations or an adequate explanation 24 of the claimant’s limitations. [ ] Additionally, this opinion is inconsistent with the objective medical record. For example, this opinion is inconsistent with the claimant’s 25 electroencephalography reports that generally showed diffuse slowing and very occasional right temporal sharp waive [sic], but with no seizures or epileptiform discharges and were 26 noted as possibly being pseudoseizures (Exhibit 2F/22, 23, 37; 3F/72, 203; 7F/11; and 27 14F/1). Furthermore, this opinion is inconsistent with the claimant’s physical examinations that often showed no edema (Exhibits 2F/5; 3F/10-156; 5F/2; 7F/2, 4, 15, 18, 28 20; 8F/3, 10F/2, 4; 12F/167; 18F/5; and 29F/12). Thus, this opinion is not persuasive. 1 AR 34. 2 The Court finds that the ALJ properly evaluated Dr. Sams’ opinion under the new regulations. 3 First, the ALJ found that Dr. Sams’ opinion was not supported by reference to the Plaintiff’s objective 4 examinations or an adequate explanation of the claimant’s limitations. Id. This reason expressly 5 invokes the supportability factor, which is one of the key factors an ALJ must consider when 6 determining the persuasiveness of a medical opinion. 20 C.F.R. § 416.920c(b)(2). The more relevant 7 objective evidence and supporting explanations that support a medical opinion, the more persuasive 8 that medical opinion is. 20 C.F.R. § 416.920c(c)(1). Here, Dr. Sams’ opinion largely consists of 9 checked mark boxes. AR 1814-17. Although Dr. Sams reportedly treated Plaintiff every three 10 months, there are no explanations correlating any examination findings with Dr. Sams’ opinion. 11 Further, Dr. Sams’ treatment notes generally reveal physical findings within normal limits with the 12 exception of Plaintiff’s obesity. See AR 1797, 1799, 1802-05, 1838-39. The Court concludes that the 13 ALJ’s assessment is supported by the record. 14 Next, the ALJ found that Dr. Sams’ opinion was inconsistent with the objective medical 15 record. The ALJ’s reasoning invokes the consistency factor, which means the extent to which a 16 medical opinion is “consistent ... with the evidence from other medical sources and nonmedical 17 sources in the claim’” 20 C.F.R. § 416.920c(c)(2). As an example, the ALJ cited an inconsistency 18 between Dr. Sams’ opinion and Plaintiff’s electroencephalography reports that generally showed 19 diffuse slowing and very occasional right temporal sharp wave, but with no seizures or epileptiform 20 discharges and were noted as possibly being pseudoseizures. AR 34. The ALJ’s finding of an 21 inconsistency is supported record evidence of Plaintiff’s EEGs showing no seizures. See AR 351 22 (normal EEG, no seizures or epileptiform discharges, “advised this is a pseudoseizure”), 370-71 23 (“diffuse slowing,” no seizures or epileptiform discharges), 385 (normal EEG, no seizures or 24 epileptiform discharges, “No changes are noted in the EEG during any of the patient’s clinical 25 events.”); 505 (on EEG “very occasional right temporal sharp wave”); 635-36; 1082 (“pt has had 26 multiple negative EEG’s”). 27 28 1 Plaintiff asserts that the ALJ’s reason is internally inconsistent because, while the ALJ noted 2 no seizure activity in objective testing, the ALJ found Plaintiff’s seizure disorder to be a severe 3 impairment. (Doc. 22 at 13.) However, Plaintiff’s assertion does not undermine the ALJ’s 4 determination of the apparent inconsistency between Dr. Sams’ identified diagnosis of seizures and the 5 absence of seizure activity in objective testing. In other words, Plaintiff does not argue or otherwise 6 suggest that the finding of an inconsistency between Dr. Sams’ opinion and the objective medical 7 record is error. Indeed, Plaintiff admits that there was no seizure activity in objective testing. (Doc. 8 22 at 13 [“While this is true…”].) 9 Plaintiff instead argues that regardless of whether Plaintiff suffers from seizures or pseudo 10 seizures, “the net effect is that [Plaintiff] suffers from significant symptoms that would reasonably be 11 expected to preclude acceptable attendance and on-task behavior.” (Id.) However, Plaintiff 12 apparently overlooks the ALJ’s determination that the record and Plaintiff’s own testimony 13 demonstrated that Plaintiff’s seizure medication was effective, the seizure activity had stabilized, and 14 Plaintiff had not experienced a seizure in over a year. AR 32, 60 (“Right now it’s stabilized. It’s 15 working. I haven’t had a seizure in about a year”), 65 (“I’ve been maintaining with the medication that 16 I’m on . . . .”), 1840 (2/19/2020 medical record noting no seizure since 2/2019); see also AR 445, 531, 17 1212, 1308, 1348, 1590, 1794 (no seizure breakthroughs), 1797 (same), 1802 (seizures quiescent), 18 1803 (in July 2019, no seizures for about one year). Impairments that can be controlled effectively 19 with medication are not disabling. Warre v. Comm'r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 20 2006). Further, the record evidence regarding the effectiveness of Plaintiff’s treatment for seizures 21 does not support Plaintiff’s argument that the ALJ’s assessment failed to account for the frequency of 22 Plaintiff’s seizure activity or “to define how an individual experiencing multiple seizures per day 23 could satisfy the attendance and on-task behavior tolerances to which the vocational expert testified.” 24 (Doc. 22 at 11.) 25 In evaluating the consistency of Dr. Sams’ opinion with the objective medical record, the ALJ 26 also found the opinion inconsistent with the claimant’s physical examinations that often showed no 27 edema. AR 34. The ALJ’s assessment is supported by record evidence. AR 353, 443, 445, 449, 455, 28 460, 470,481, 485, 488, 492, 494, 497, 503, 507. 508, 511, 516, 519, 522, 529, 531, 532-33, 537, 540, 1 545, 547, 550, 553, 556, 559, 1011, 1073, 1075, 1086, 1089, 1091, 1129, 1141, 1143, 1332, 1535, 2 1847. Plaintiff argues that this inconsistency regarding edema is not germane to the finding of 3 attendance and on-task behavior and asserts that if the ALJ had properly reviewed the evidence, 4 including when she needed to go to the emergency room or be admitted to the hospital for lupus flares 5 (and seizures addressed supra), then “the ALJ would have found that Plaintiff could not meet the 6 attendance and on-task demands of competitive work.” (Doc. 22 at 14.) 7 Plaintiff’s argument is not persuasive for several reasons: First, Plaintiff’s argument does not 8 undermine or otherwise challenge the ALJ’s determination that Dr. Sams’ opinion was inconsistent 9 with examination findings regarding edema. Indeed, Dr. Sams’ opinion relied on symptoms of 10 swelling and Plaintiff’s related lupus diagnosis. AR 1814. Second, and as noted by the ALJ, Plaintiff 11 alleged that she was unable to work because her lupus caused, among other issues, edema in her legs, 12 forcing her to lie down and elevate her legs for three to four hours during the day. AR 30, 57 (“I have 13 edema all in my legs”), 58-59. The ALJ’s opinion therefore accounted for certain symptoms resulting 14 from Plaintiff’s lupus. Third, and critically, Plaintiff once more overlooks the ALJ’s finding that 15 Plaintiffs “lupus flare-ups were generally treated with medication, including Plaquenil, which the 16 claimant reported helped her symptoms.” AR 32, 1041. The ALJ also relied on record evidence that 17 Plaintiff’s lupus was often noted as being stable, quiescent, and in remission with medication, which is 18 supported by substantial evidence in the record. AR 32, 1021 (“Lupus stable and in remission, 19 continue Plaquenil”), 1024 (same), 1027 (same), 1034 (same), 1037 (same), 1040 (“Lupus stable and 20 in remission”), 1046 (“SLE in remission continue Plaquenil”), 1049 (same), 1653 (“Lupus stable an in 21 remission, continue Plaquenil”), 1820 (in October 2020, lupus “somewhat quiescent now”); 1799 22 (stable, quiescent). Again, impairments that can be controlled effectively with medication are not 23 disabling.” Warre, 439 F.3d at1006. Based on the foregoing, the Court finds that the ALJ’s decision 24 to deem Dr. Sams’ opinion unpersuasive is supported by substantial evidence after consideration of the 25 factors of supportability and consistency. 26 B. Plaintiff’s Subjective Testimony 27 Plaintiff argues that “the ALJ failed to set forth reasons, consistent with and supported by the 28 evidence, for discounting Plaintiff’s complaints of symptoms relative to her physical impairments . . . 1 include[ing] unpredictable days of pain and seizure activity.” (Doc. 22 at 15.) 2 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 3 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. 4 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical 5 evidence of her impairment that could reasonably be expected to produce some degree of the symptom 6 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no 7 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of her 8 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 9 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 10 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 11 persistence and limiting effects of those symptoms. AR 31. The ALJ was therefore required to 12 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 13 The Court finds that the ALJ provided specific, clear, and convincing reasons for discounting 14 Plaintiff’s subjective complaints. First, the ALJ acknowledged Plaintiff’s report of chronic lupus 15 flare-ups, seizures, back pain, shortness of breath, and chest pain arising, at least in part, out of her 16 fibromyalgia and chronic pain syndrome, degenerative disc disease of the cervical spine, seizure 17 disorder, and systemic lupus. AR 31. However, the ALJ found that Plaintiff’s allegations of constant 18 symptoms were “out of proportion to her typically unremarkable presentation during appointments.” 19 AR 31. Although lack of supporting medical evidence cannot form the sole basis for discounting 20 testimony, it is a factor that the ALJ can consider. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 21 2005). 22 Plaintiff first argues that she consistently reported that her symptoms were unpredictable, not 23 constant as asserted by the ALJ, citing evidence of her lupus flare-ups and seizures that could recur at 24 any time. (Doc. 22 at 15.) Plaintiff maintains that the ALJ’s mischaracterization that she reported 25 constant pain is not a legitimate reason for discounting her testimony. The Court does not agree that 26 the ALJ mischaracterized Plaintiff’s allegations of “constant symptoms.” AR 31. Plaintiff herself 27 testified that she has swelling of the hands on a “daily” basis, (AR 58), and experiences edema in the 28 lower extremities “on a daily basis” (AR 59). Further, the ALJ found that Plaintiff had “chronic pain 1 syndrome,” a severe impairment. AR 26. Plaintiff does not challenge the ALJ’s finding of chronic 2 pain syndrome. Further, the ALJ’s evaluation of the objective medical evidence was not limited to 3 Plaintiff’s complaints regarding her lupus flare-ups, which she reported as “unpredictable,” or her 4 seizure episodes, which could “recur at any time.” AR 243. For instance, the ALJ also considered 5 objective evidence regarding Plaintiff’s degenerative disc disorder and her cardiovascular condition. 6 AR 31-32. Plaintiff also does not challenge the ALJ’s findings relative to these impairments. 7 Plaintiff next argues that the ALJ willfully disregarded the nature of her impairments by citing 8 records where she was in no acute or apparent distress (AR 31). In particular, Plaintiff faults the ALJ 9 for citing to Plaintiff’s post-treatment state during a hospital visit in which Plaintiff was 10 “unresponsive,” in “full tonic clonic” seizure, and had to be intubated, but was in no distress, alert, 11 oriented, and stable on discharge. AR 31, 1074-76, 1082. Plaintiff also points to other instances in 12 which Plaintiff was rushed to the hospital due to her seizures, arguing that it stands to reason that an 13 individual rushed to the hospital, unconscious, in tonic-clonic state or intubated is neither mildly 14 distressed or not acutely distressed. Plaintiff therefore concludes that ALJ’s rationale for discounting 15 her symptoms lacks legitimacy. (Doc. 22 at 16.) The Court does not disagree that the ALJ erred in 16 citing certain post-treatment evidence or other evidence regarding Plaintiff’s emergency or hospital 17 treatment in discounting Plaintiff’s subjective testimony. Nevertheless, the Court finds that any such 18 error is harmless because, as discussed below, the ALJ provided other valid reasons for discounting 19 Plaintiff’s subjective testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161-63 20 (9th Cir. 2008) (finding that two invalid reasons to reject a claimant’s testimony were harmless error 21 where the ALJ articulated two other reasons supported by substantial evidence in the record); Molina 22 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“several of our cases have held that an ALJ’s error was 23 harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony, 24 but also provided valid reasons that were supported by the record”). 25 Moreover, the ALJ acknowledged Plaintiff’s history of multiple hospitalizations, intubations, 26 and emergency room treatment for actives seizures, but found that Plaintiff reported relief from 27 treatment, her seizure medication was effective, and she had not experienced a seizure in over a year. 28 AR 32. The ALJ also cited to record evidence that Plaintiff’s lupus was generally treated with 1 medication and her lupus was often noted as being stable, quiescent, and in remission with medication. 2 AR 32. As reiterated in this order, impairments that can be controlled effectively with medication are 3 not disabling. Warre, 439 F.3d at 1006; 20 C.F.R. § 416.929(c)(3)(iv) (an ALJ may consider the 4 effectiveness of medication in evaluating a claimant’s symptoms). Indeed, a plaintiff's improvement 5 with treatment is a clear and convincing reason for discounting her subjective symptom testimony. 6 See Deyon v. Kijakazi, No. 1:20-CV-01532-SKO, 2022 WL 1782465, at *10 (E.D. Cal. June 1, 2022) 7 (citations omitted). 8 Plaintiff maintains that “had the ALJ properly considered the evidence as well as her testimony 9 regarding the unpredictable nature of her impairments, he would have determined that while there was 10 improvement with treatment, the episodic nature of her impairments remained, requiring multiple 11 additional occurrences of emergent care due to recurrence of significant symptomatology.” (Doc. 22 12 at 17.) Plaintiff’s argument is not wholly persuasive. According to treatment records from February 13 2020, Plaintiff had not had a seizure February 2019. AR 1840. Plaintiff testified in April 2020 that her 14 seizure medication was effective, the seizure activity had stabilized, and she had not experienced a 15 seizure in over a year. AR 60, 65. Treatment records from July 2019 also noted no seizures for about 16 one (1) year. AR 1803. The Court therefore finds substantial evidence supports the ALJ’s 17 determination that Plaintiff’s seizures improved and were controlled with medications. Given 18 Plaintiff’s own admission, there is no indication that once controlled with medications she required 19 additional emergent care due to recurrences of significant symptomology. Additionally, Plaintiff’s 20 lupus was often noted as being stable, quiescent, and in remission with medication. AR 1021 (“Lupus 21 stable and in remission, continue Plaquenil”), 1024 (same), 1027 (same), 1034 (same), 1037 (same), 22 1040 (“Lupus stable and in remission”), 1046 (“SLE in remission continue Plaquenil”), 1049 (same), 23 1653 (“Lupus stable an in remission, continue Plaquenil”), 1820 (in October 2020, lupus “somewhat 24 quiescent now”); 1799 (stable, quiescent). Plaintiff does not cite evidence of recurrent emergent care 25 following stabilization or noted remission of her lupus with medication. 26 Additionally, the ALJ noted the conservative treatment Plaintiff received for her lupus, which 27 was treated with medication, including Plaquenil. An ALJ is permitted to consider evidence of 28 conservative treatment in evaluating a claimant’s subjective complaints. See Parra v. Astrue, 481 F.3d 1 742, 750-51 (9th Cir. 2007) (finding evidence of conservative treatment sufficient to discount 2 claimant’s testimony regarding severity of impairment). Plaintiff does not appear to challenge this 3 finding by the ALJ. 4 CONCLUSION AND RECOMMENDATION 5 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 6 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 7 HEREBY RECOMMENDED as follows: 8 1. Plaintiff’s appeal from the administrative decision of the Commissioner of Social 9 Security be denied; and 10 2. The Clerk of this Court be directed to enter judgment in favor of Defendant Kilolo 11 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff Erica Yvonne 12 Blea. 13 These Findings and Recommendations will be submitted to the United States District Judge 14 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 15 served with these findings and recommendations, the parties may file written objections with the 16 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 17 Recommendations.” The parties are advised that the failure to file objections within the specified time 18 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 19 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 20 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 Dated: July 26, 2022 /s/ Barbara A. McAuliffe _ 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28