(SS) Fertig v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SENA MAE FERTIG, Case No. 1:21-cv-01390-CDB (SS) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 13 v. AFFIRMING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 14 COMMISSIONER OF SOCIAL SECURITY,1 (Doc. 15) 15 Defendant. 16 17 18 Sena Mae Fertig (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 20 supplemental security income benefits under the Social Security Act. (Doc. 1). Plaintiff alleges 21 disability beginning February 1, 2017. (Administrative Record (“AR”) at 38, 80). The matter 22 currently is before the Court on the certified administrative record (Doc. 12) and the parties’ 23 briefs, which were submitted without oral argument. (Docs. 15, 17-18).2 24 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social 25 Security Administration. See https://www.ssa.gov/history/commissioners.html. He therefore is substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the 26 “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the 27 Commissioner shall, in [their] official capacity, be the proper defendant.”). 28 2 All parties have consented to the jurisdiction of a magistrate judge for all proceedings in 1 I. BACKGROUND 2 A. Administrative Proceedings 3 On January 30, 2019, Plaintiff filed an application for benefits pursuant to Title XVI of 4 the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (AR at 202-07). Plaintiff was 53 5 years old on the alleged disability onset date. Id. at 80. The Commissioner denied Plaintiff’s 6 application initially and again on reconsideration. Id. at 80-87, 89-100. Plaintiff submitted a 7 written request for a hearing by an Administrative Law Judge (“ALJ”) on August 16, 2019. Id. at 8 127. 9 On October 27, 2020, Plaintiff represented by counsel, appeared for a hearing before ALJ 10 Mary P. Parnow. Id. at 51-79. Vocational Expert (“VE”) John Komar and Hearing Reporter 11 Margaret Buckley also appeared at the hearing. Id. 12 B. Medical Record 13 The relevant medical record was reviewed by the Court and will be referenced below as 14 necessary to this Court’s decision. 15 C. Hearing Testimony 16 At a hearing before the ALJ, Plaintiff testified that she was a legal protester for the 17 carpenters’ union hall in 2007 during which time she would hold signs for six hours a day for four 18 days a week. Id. at 58. Plaintiff claims she held the sign with two other people, and it weighed 19 “maybe five pounds.” Id. at 59. Plaintiff testified she is unable to work because she can’t grasp 20 things and hold them tightly in her hands anymore. Id. at 59, 63. Plaintiff noted she would be 21 unable to pick up and carry a gallon of milk with her left hand. Id. at 63. Plaintiff testified she 22 has arthritis in her hands and experienced pain in her hands every day. Id. at 62. 23 Next, Plaintiff testified she has neck issues and has difficulty standing for long without 24 “excruciating pain.” Id. at 59. Plaintiff asserted she could stand for 20 to 30 minutes before she 25 had to sit down. Id. at 67. Plaintiff also claimed she has neck pain while sitting. Id. at 61. 26 Plaintiff noted she can sit for maybe 45 minutes without problem if she is sitting straight and 27 this action, in accordance with 28 U.S.C. § 636(c)(1). (Doc. 11). 28 1 avoids twisting her head. Id. at 67. Plaintiff testified she has difficulty turning her head right, 2 left, up, and down. Id. at 68. 3 Plaintiff stated she thought all her neck problems started when she was 15 and that she 4 constantly has neck pain every day and goes through traction. Id. at 60, 63. Plaintiff noted she 5 was prescribed a Cervitrac, an inflatable neck brace for her neck that “inflates” and raises her 6 neck because she had “cartilage between any of [her] vertebrate in [her] neck; it’s bone on bone 7 grinding.” Id. at 61. Plaintiff noted she “[does] this Cervitrac for 30 minutes in the morning and 8 30 minutes in the evening, and if she did any strenuous work whatsoever during the day, [she 9 had] to take a timeout and do it then to.” Id. at 60. Plaintiff indicated the Cervitrac relieved some 10 of the issues but did not relieve her pain. Id. Plaintiff testified she took ibuprofen for her neck 11 pain which reportedly did “not really” help her pain but “it eases it.” Id. at 62. Plaintiff claimed 12 she had discussed a procedure to fuse her neck vertebrate. See id. at 60 (“They’re talking about 13 wanting to fuse my neck vertebrae together.”). 14 Plaintiff also testified she has pain in her left shoulder all the time. Id. at 62. Plaintiff 15 noted she could not lift her left arm halfway up her body. Id. Plaintiff noted she cannot lift her 16 left arm over her head and can only lift “maybe three pounds from that arm.” Id. at 59-60, 67. 17 Specifically, Plaintiff claimed she could not lift and carry too much weight with her left arm and 18 left shoulder because it added weight to her neck. Id. at 62. 19 Plaintiff also testified she has had a heart problem and chest pain due to a diagnosis of 20 unstable angina. Id. at 64. Plaintiff noted this condition causes her to pass out without warning. 21 and that she would be out for a couple of minutes. Id. at 64-65. Plaintiff testified that after she 22 passes out it takes her a second to gain her composure and senses. Id. Plaintiff noted she goes to 23 sleep after she passes out. See id. at 65 (“I go to sleep. I want to sleep after that.”). Plaintiff 24 testified she took medication for her heart, and it helped somewhat. Id. Plaintiff claimed she had 25 not had an episode in about three months leading-up to her October 2020 testimony. Id. 26 Plaintiff separately testified she has experienced migraines since she was 15. Id. at 63. 27 Plaintiff noted she would get “[p]robably three, four migraines a month at least, if not more.” Id. 28 Plaintiff asserted her migraines last on average eight hours and cause her to get sick, throw up, 1 and “can’t stand the light.” Id. at 64. Plaintiff testified that when she experiences a migraine she 2 applies a cold rag to the back of her neck, tries to make everything quiet, darkens the room, lies 3 down, and tries to go to sleep. Id. Plaintiff testified none of her actions help with her migraines. 4 Id. Plaintiff also noted that she has taken medicine for her migraines but that it was discontinued 5 because it negatively interacted with her heart problems. Id. 6 Plaintiff also claimed she experiences asthma and chronic obstructive pulmonary disease 7 (“COPD”). Id. at 66. Plaintiff noted she used an inhaler for her asthma and COPD. Id. at 66-67. 8 Plaintiff testified that on a good air-quality day, she could probably walk one and one-half blocks 9 and that on a bad air-quality day, she can walk only one-half block. Id. Plaintiff noted whether 10 she was standing, walking, or sitting, she was unable to find comfort and that “[it was] going to 11 hurt [no] matter what,” and that her pain limits her sleep. Id. at 68-69. 12 With respect to activities of daily living, Plaintiff testified she does not drive a vehicle. Id. 13 at 68. Plaintiff claimed she is able to do all her personal hygiene, albeit at a slow pace, can cook 14 and prepare meals for herself, and can engage in household chores. Id. at 69-70. Plaintiff noted 15 she could do dishes but had to take a break and that she could mop the floor but would need “to 16 sit down in like thirds because I’m out of breath come I can’t breathe.” Id. Plaintiff claimed she 17 can vacuum, dust, and do laundry “as long as they’re small loads.” Id. 18 The VE testified Plaintiff worked as a labor union picket, DOT number 299.687-014, SVP 19 of 1, light exertion. Id. at 72. The ALJ proffered a hypothetical to the VE of an individual with 20 the same age, education, and work experience as Plaintiff and who is capable of medium work 21 with no limitation on climbing ramps and stairs, balancing, stooping, kneeling, and crouching. Id. 22 The individual can frequently crawl but cannot climb ladders, ropes, and scaffolds, can no more 23 than frequently reach overhead, and would have a limitation in the left upper extremity, which is 24 the nondominant upper extremity. Id. at 72-73. The VE determined that an individual with such 25 limitations could work as a labor union picket as generally or actually performed. Id. The VE 26 also found that the individual could perform work in several fields, including as a hospital 27 cleaner, kitchen helper, and courtesy clerk. Id. 28 The ALJ proffered a second hypothetical of an individual similar to the first hypothetical 1 but with additional limitations that “reaching overhead with the left upper extremity is now 2 reduced to occasional, and handling, fingering and feeling limited to frequently bilaterally.” Id. 3 The VE indicated that an individual with such limitations could also perform the work of the 4 three jobs identified in response to the first hypothetical. Id. at 74. 5 Plaintiff’s counsel proffered a third hypothetical of an individual similar to the ALJ’s 6 second hypothetical, with the exertion changed “medium down to light…[] lifting 20 pounds, 7 standing, walking for six of eight hours, sitting for six of eight hours.” Id. at 75. Additionally, 8 Plaintiff’s counsel added that this individual should be limited to no concentrated exposure to 9 pulmonary irritants, such as dust, fumes, et cetera. Id. The VE noted with the pulmonary 10 restrictions that individual would not be able to do the job of a labor union picket. Id. at 75-76. 11 The VE also noted the individual would be unable to perform the work of the three jobs identified 12 in response to the first hypothetical if limited to light work. Id. at 76. 13 The ALJ proffered a fourth hypothetical of an individual similar to the second 14 hypothetical who must avoid moderate exposure to fumes, odors, dust, gases, poor ventilations, 15 and other pulmonary irritants. Id. at 76. The VE reported that individual could work as a 16 courtesy clerk, but not as a kitchen helper or hospital cleaner. Id. at 77. The VE noted that 17 individual also could work as a canner packager and a store laborer. Id. 18 The ALJ proffered a fifth hypothetical of an individual similar to the fourth hypothetical 19 who was precluded from complex and detailed tasks but could understand and carry out simple, 20 repetitive tasks and routine work environment. Id. The VE reported the jobs provided in 21 response to hypothetical four were still compatible. Id. 22 D. The ALJ’s Decision 23 On January 7, 2021, the ALJ issued a decision finding that Plaintiff was not disabled. Id. 24 at 38-45. The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 25 404.1520(a). Id. at 40-45. At step one, the ALJ found Plaintiff had not engaged in substantial 26 gainful activity since January 30, 2019 (e.g., Plaintiff’s application date). Id. at 40. The ALJ 27 found Plaintiff possessed the following severe impairments: hepatitis, asthma, left shoulder 28 internal derangement, cervical degenerative disc disease, migraine, and methamphetamine use in 1 remission (step two). Id. 2 Next, the ALJ determined Plaintiff did not have an impairment or combination of 3 impairments that meets or medically equals the severity of one of the listed impairments in 20 4 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). Id. at 41. The ALJ then 5 assessed Plaintiff’s residual functional capacity (“RFC”). Id. at 41-42. The ALJ found that 6 Plaintiff retained the RFC: 7 “to perform medium work as defined in 20 CFR 404.1567(c) except with the 8 following limitations: no climbing ladders, ropes or scaffolds; frequently crawl; occasionally reach overhead with left upper extremity; frequently perform handling, 9 fingering and feeling bilaterally; avoid moderate exposure to fumes; perform no complex or detailed tasks; and is able to understand, remember and carry out simple 10 repetitive tasks in a routine work environment. Occasionally is defined as occurring from very little up to one-third of the time, or approximately 2 hours in an 8-hour 11 workday. Frequently is defined as occurring from one-third to two-thirds of the time 12 o r approximately 6 hours in an 8-hour workday.” 13 Id. The ALJ acknowledged that while Plaintiff’s impairments could reasonably be expected to 14 cause her alleged symptoms, Plaintiff’s statements concerning the intensity, persistence, and 15 limiting effects of her symptoms were not entirely consistent with the medical evidence and other 16 evidence in the record. Id. at 42. 17 The ALJ determined objective diagnostic studies revealed no acute findings and that 18 Plaintiff “had scant follow up diagnostic workup and treatment.” Id. at 43. The ALJ noted the x- 19 ray study of Plaintiff’s left shoulder was “considered essentially unremarkable.” Id. The ALJ 20 found Plaintiff had been prescribed medication for hepatitis and that hepatitis C was in remission 21 by 2002. Id. The ALJ also noted Plaintiff did not have episodes of asthma exacerbation requiring 22 urgent care, even though she continued to smoke and reportedly only ceased smoking in August 23 2019. Id. The ALJ acknowledged that while Plaintiff’s “treatment notes contained entries noting 24 migraine, the record lacks a log of the claimant’s migraines or longitudinal treatment notes 25 documenting trials of medications and effectiveness of treatment.” Id. The ALJ also referred to 26 record evidence that Plaintiff had clinical findings of “normal gait, normal neck examination, 27 normal respiratory examination, no edema, visually normal extremities, normal heart sounds, 5/5 28 1 motor strength in bilateral upper and lower extremities and no gross sensory or motor deficits.” 2 Id. The ALJ noted that despite Plaintiff’s reports of severe pain, treatment notes documented 3 reports of pain varying from 0 to 3 on a scale of 10 and that she was not prescribed severe pain 4 medication. Id. The ALJ also discounted Plaintiff’s testimony because Plaintiff had received 5 limited conservative treatment that she reported was beneficial. Id. The ALJ noted Plaintiff 6 “lives alone and she is able to clean, shop and do laundry.” Id. 7 The ALJ considered the report of State Agency Physician Dr. A. Khong and found it less 8 persuasive because the record established severe impairments. Id. at 44. The ALJ considered the 9 opinion of State Agency Physician Dr. D. Tayloe and found it persuasive because objective 10 diagnostic studies and clinical findings supported Dr. Tayloe’s opinions. Id. The ALJ determined 11 the opinions of Plaintiff’s treatment providers were persuasive because they had the opportunity 12 to treat Plaintiff. Id. 13 The ALJ concluded that the RFC assessment was supported by treatment notes, objective 14 diagnostic studies, clinical findings. and Plaintiff’s activities. Id. The ALJ determined that 15 Plaintiff had no past relevant work (step four) but could perform a significant number of other 16 jobs in the national economy, including hospital cleaner, kitchen helper, and courtesy clerk (step 17 five). Id. at 44-45. The ALJ concluded Plaintiff has not been under a disability as defined in the 18 Act. Id. at 45. 19 E. The Appeals Council’s Decision 20 On January 7, 2021, the Appeals Council denied Plaintiff’s request for review, making the 21 ALJ’s decision the final decision of the Commissioner. Id. at 23-26. Plaintiff filed this action on 22 September 16, 2021, seeking judicial review of the denial of her application for benefits. (Doc. 23 1). The Commissioner lodged the administrative record on March 30, 2022. (Doc. 12). Plaintiff 24 filed an opening brief on May 11, 2022. (Doc. 15). On June 27, 2022, Defendant filed a 25 responsive brief and Plaintiff filed a reply on July 11, 2022. (Docs. 17-18). 26 II. LEGAL STANDARD 27 A. The Disability Standard 28 Disability Insurance Benefits and Supplemental Security Income are available for every 1 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual 2 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically 3 determinable physical or mental impairment …”3 Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 4 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To 5 achieve uniformity in the decision-making process, the Social Security regulations set out a five- 6 step sequential evaluation process to be used in determining if an individual is disabled. See 20 7 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 8 Specifically, the ALJ is required to determine: 9 (1) whether a claimant engaged in substantial gainful activity during the period of 10 alleged disability, (2) whether the claimant had medically determinable “severe” impairments, (3) whether these impairments meet or are medically equivalent to one 11 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to perform 12 past relevant work and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 13 14 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 15 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 16 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)). 17 Before making the step four determinations, the ALJ must determine the claimant’s RFC. 18 20 C.F.R. § 416.920(e). The RFC is the most a claimant can still do despite their limitations and 19 represents an assessment based on all relevant evidence. 20 C.F.R. §§ 404.1545(a)(1); 20 416.945(a)(1)). The RFC must consider all of the claimant’s impairments, including those that 21 are not severe. 20 C.F.R. § 416.920(e); § 416.945(a)(2). E.g., Wells v. Colvin, 727 F.3d 1061, 22 1065 (10th Cir. 2013) (“These regulations inform us, first, that in assessing the claimant’s RFC, 23 the ALJ must consider the combined effect of all of the claimant’s medically determinable 24 impairments, whether severe or not severe.”). The RFC is not a medical opinion. 20 C.F.R. § 25 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to the Commissioner. 20 26 3 A “physical or mental impairment” is one resulting from anatomical, physiological, or 27 psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 28 1 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“[I]t is the 2 responsibility of the ALJ, not the claimant’s physician, to determine residual functional 3 capacity.”). 4 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform 5 other work in the national economy given the claimant’s RFC, age, education, and work 6 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use 7 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v. 8 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 9 Cir. 2001). “Throughout the five-step evaluation, the ALJ ‘is responsible for determining 10 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950 11 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 12 B. Standard of Review 13 Congress has provided that an individual may obtain judicial review of any final decision 14 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 15 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the 16 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A 17 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on 18 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097 19 (9th Cir. 1999). 20 “Substantial evidence is relevant evidence which, considering the record as a whole, a 21 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 22 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 23 1457 (9th Cir, 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 24 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a 25 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 26 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted). 27 “[A] reviewing court must consider the entire record as a whole and may not affirm 28 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible 2 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford, 3 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the 4 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 5 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 6 nondisability determinations.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 7 (quotation and citation omitted). The burden of showing that an error is not harmless “normally 8 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 9 409 (2009). 10 III. LEGAL ISSUES 11 Plaintiff presents the following issues for review: 12 1. The ALJ violated 20 C.F.R. § 416.929 and SSR 16-3p; despite finding that Plaintiff 13 established medically determinable impairments that could reasonably be expected to 14 cause restrictions which Plaintiff alleges, the ALJ improperly rejected Plaintiff’s 15 allegations. 16 (Doc. 15 at 9-15). Having reviewed the record, administrative transcript, parties’ briefs, and the 17 applicable law, the Court finds as follows. 18 IV. DISCUSSION 19 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 20 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 21 The ALJ must determine whether there is “objective medical evidence of an underlying 22 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 23 Id. (internal quotation marks omitted). “The claimant is not required to show that this impairment 24 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 25 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 26 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 27 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 28 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 1 gives specific, clear and convincing reasons for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 2 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 3 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 4 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 5 1995)); see Thomas, 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with 6 findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 7 discredit claimant’s testimony.”). 8 However, “[t]he standard isn’t whether [the] court is convinced, but instead, whether the 9 ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 10 489, 499 (9th Cir. 2022). An ALJ’s reasoning as to subjective testimony “must be supported by 11 substantial evidence in the record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 12 1995); see Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Accordingly, our 13 next task is to determine whether the ALJ’s adverse credibility finding of Carmickle’s testimony 14 is supported by substantial evidence under the clear-and-convincing standard.”). 15 Plaintiff argues that the ALJ failed to offer clear and convincing reasons for rejecting her 16 subjective complaints and failed to include work-related limitations in the RFC consistent with 17 the nature and intensity of her limitations. Id. at 11-14. Plaintiff claims this failure resulted in 18 vocational testimony which was not based on an accurate RFC. Id. at 15. 19 First, Plaintiff argues the ALJ erred in rejecting her testimony based on her daily 20 activities. (Docs. 15 at 11, 14; 18 at 5). Plaintiff asserts her ability to live alone, clean, shop, and 21 do laundry does not in any way establish her physical ability to successfully perform full-time 22 work at the medium exertional level. (Doc. 18 at 5). In contrast, Defendant argues the ALJ 23 reasonably found that Plaintiff’s statements of her activities “detracted from her testimony 24 alleging extreme inactivity.” (Doc. 17 at 7). Defendant contends it was significant that her 25 activities undermined her testimony. Id. Defendant claims “the ALJ need not have identified 26 evidence that she could perform full-time work in accordance with the RFC finding in order to 27 rely on the inconsistency of Plaintiff’s testimony with her admitted activities.” Id. (citing Molina 28 v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)). 1 An ALJ is “permitted to consider daily living activities” in addressing a Plaintiff’s 2 credibility and subjective statements. Burch, 400 F.3d at 681. Daily activities “form the basis for 3 an adverse credibility determination” when: (1) the daily activities contradict the claimant’s other 4 testimony or (2) the daily activities meet the threshold for transferable work skills. Orn v. Astrue, 5 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). A 6 claimant need not be “utterly incapacitated” to be eligible for benefits. Fair, 885 F.2d at 603. 7 Thus, for instance, a claimant’s engagement in undemanding activities of daily living does not 8 constitute substantial evidence permitting an adverse credibility finding absent a showing of a 9 “meaningful relationship to the activities of the workplace.” Orn, 495 F.3d at 639. 10 Here, the ALJ summarily referred to Plaintiff’s activities of daily living as a grounds for 11 discounting her testimony, noting that she “lives alone and she is able to clean, shop, and do 12 laundry.” (AR at 43). But the ALJ undertook no analysis of these activities and the relationship 13 between them and Plaintiff’s ability to engage in work. To meet the substantial evidence 14 standard, an ALJ must identify what parts of Plaintiff’s testimony are inconsistent with Plaintiff’s 15 activities of daily living and explain where and how the inconsistency arises. Treichler v. 16 Comm’r of SSA, 775 F.3d 1090, 1103 (9th Cir. 2014); Orn, 495 F.3d at 639; see Yamada v. 17 O’Malley, No. 1:20-cv-001386-JLT-BAM, 2024 WL 3226798, at *7 (E.D. Cal. June 28, 2024) 18 (“Courts in this district have found that the ALJ erred when the ALJ failed to precisely identify 19 how the daily activities conflicted with symptom testimony.”) (citing cases). 20 Defendant argues that Plaintiff’s ability to live alone, clean, shop, and do laundry is 21 inconsistent with her testimony “alleging extreme inactivity.” (Doc. 17 at 7). However, the ALJ 22 did not adequately articulate how Plaintiff’s ability to engage in these activities undermined her 23 testimony. E.g., Yamada, 2024 WL 3226798, at *7 (“However, the ALJ’s discussion of these 24 limited activities does not explain how they contradict Plaintiff's allegations of neck pain, back 25 pain, bending ability, or other limitations.”). Moreover, the record indicates Plaintiff’s ability to 26 live alone, clean, shop, and do laundry was limited beyond the ALJ’s summary reference. For 27 instance, while the ALJ acknowledged Plaintiff could clean (AR at 43), Plaintiff testified she 28 needed to take breaks doing dishes and mopping the floor and could no longer do household 1 duties that involved lifting. See (id. at 69-70) (“I will take a break doing dishes. It takes me 2 probably, in a 12 by 15 room, to mop that floor; I’m going to sit down in like thirds because I’m 3 out of breath come I can’t breathe.”). Similarly, while the ALJ noted Plaintiff could do laundry, 4 he did discuss that she could do so “as long as they [were] small loads.” Id. at 43, 70. Likewise, 5 while the ALJ cited Plaintiff’s ability to “shop” (id. at 43), the ALJ failed to address Plaintiff’s 6 testimony that her daughter was normally with her when she went shopping. See id. at 70 (“Well, 7 my daughter will normally take me so that I don’t have an episode, but we take it in short spurts. 8 If I’m not feeling good, I’ll go out to the car while she pays for it or something like that, but she’ll 9 take me grocery shopping. She’s normally with me when I do that.”). Therefore, the ALJ’s 10 failure to offer any discussion explaining how Plaintiff’s testimony was inconsistent with her 11 daily activities falls short of the substantial evidence standard. 12 Next, Plaintiff asserts the ALJ erred in discounting her testimony on the grounds of 13 conservative treatment. (Doc. 18 at 3-4). Plaintiff claims the ALJ mislabeled her fairly extensive 14 care, prescription medication, home exercises, physical therapy, and cervical traction, as 15 conservative treatment. Id. at 3. 16 Evidence of conservative treatment is sufficient to discount a claimant’s testimony 17 regarding the severity of the impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). 18 Noncompliance with medical care or unexplained or inadequately explained reasons for failing to 19 seek medical treatment cast doubt on a claimant’s subjective complaints. 20 C.F.R. §§ 404.1530, 20 416.930; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Macri v. Chater, 93 F.3d 540, 544 21 (9th Cir. 1996). However, “[a] claimant cannot be discredited for failing to pursue non- 22 conservative treatment options” where “the record does not reflect that more aggressive treatment 23 options are appropriate or available.” Lapeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 664 (9th Cir. 24 2010); see Carmickle, 533 F.3d at 1162 (“[A]lthough a conservative course of treatment can 25 undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the 26 claimant’s credibility where the claimant has a good reason for not seeking more aggressive 27 treatment.”). 28 Here, the record reflects the ALJ reasonably relied on Plaintiff’s record of conservative 1 treatment as a proper basis to discount Plaintiff’s subjective complaints. The ALJ properly noted 2 that Plaintiff was not prescribed severe pain medication, but instead, naproxen, and that Dr. 3 Bradford Anderson determined they would “hold off on adjusting her pain medication…” (AR at 4 43, 663). Cf. Carmickle, 533 F.3d at 1162 (ibuprofen deemed conservative) with Bostock v. 5 Berryhill, No. 2:18-cv-02565-JDE, 2018 WL 5906174, at *4 (C.D. Cal. Nov. 9, 2018) 6 (concluding that the use of narcotic pain medications is viewed as non-conservative) and Teresa 7 M.W. v. Kijakazi, No. 21-cv-00564-JC, 2022 WL 3586208, at *5 (C.D. Cal. Aug. 22, 2022) 8 (plaintiff’s consistent treatment with narcotic pain medications over a four-year period coupled 9 with multiple epidural steroid injections did not qualify as conservative treatment); see Warre v. 10 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 11 controlled effectively with medication are not disabling). The ALJ’s determination that 12 Plaintiff’s treatment with naproxen constituted conservative treatment was proper. 13 The ALJ also properly discounted Plaintiff’s testimony based on the conservative nature 14 of her home exercises, physical therapy, and cervical traction treatments. See Smartt, 53 F.4th at 15 500 (suggesting “physical therapy, temporary use of a neck brace and wheelchair, and ongoing 16 pain medication” constitutes conservative treatment); Cervantes v. O’Malley, No. 1:20-cv- 17 001446-JLT-BAM, 2024 WL 3569543, at *7 (E.D. Cal. July 26, 2024) (the record typically 18 demonstrated that a conservative combination of physical therapy, pain medication, and muscle 19 relaxants appeared effective for treating Plaintiff’s back pain); Walter v. Astrue, No. EDCV 09- 20 1569 AGR, 2011 WL 1326529, at *3 (C.D. Cal. Apr. 6, 2011) (ALJ permissibly discounted 21 plaintiff’s allegations of pain based on conservative treatment of medication, physical therapy, 22 and injection). 23 In reply, Plaintiff argues the ALJ’s assessment of conservative treatment should be 24 ignored because “the evidence in the case at bar includes x-rays which confirm erosions of both 25 the inferior facet joint of the left shoulder, as well the greater tuberosity of the medial facet.” 26 (Doc. 18 at 3). Specifically, Plaintiff claims Dr. Anderson observed Plaintiff had a decreased 27 range of motion of her neck and left shoulder, with tenderness in her neck, left shoulder, and left 28 side. (Doc. 18 at 3-4) (citing AR at 659)). Plaintiff asserts Dr. Anderson observed atrophy of the 1 supraspinatus and infraspinatus muscles on the left side and diagnosed Plaintiff with cervical 2 spondylosis with radiculopathy and disorder of the left rotator cuff. (Doc. 18 at 4) (citing AR at 3 659)). 4 The Court finds Plaintiff’s argument is unavailing. While Dr. Anderson did identify the 5 above limitations, he only recommended conservative treatment. Specifically, Dr. Anderson 6 recommended Plaintiff continue physical therapy and pain medication, ordered a pneumatic 7 cervical traction unit for Plaintiff to use at home, use moist heat on her neck, undergo an injection 8 for her pain, recommended acupuncture treatments, and proffered that a TENS unit could help 9 her. (AR at 660, 663, 665-66, 669). The Court also notes that Plaintiff testified somebody was 10 “talking about wanting to fuse [her] neck vertebrate together.” Id. at 60. However, Plaintiff 11 points to nothing in the record to suggest that aggressive treatment of her conditions was pursued. 12 See generally (Docs. 15, 18). Therefore, the ALJ properly rejected Plaintiff’s testimony based on 13 her conservative treatment. 14 Defendant argues the ALJ properly considered Plaintiff’s improvement with treatment as 15 a separate reason to discount Plaintiff’s testimony. (Doc. 17 at 6-7). A claimant’s improvement 16 with treatment is “an important indicator of the intensity and persistence of…symptoms.” 20 17 C.F.R. § 404.1529(c)(3). As discussed above (supra 14), impairments that can be controlled 18 effectively with medication generally are not disabling for the purpose of determining eligibility 19 for social security benefits. Warre, 439 F.3d at 1006. Symptom improvements, however, must 20 be weighed within the context of an “overall diagnostic picture.” Holohan v. Massanari, 246 21 F.3d 1195, 1205 (9th Cir. 2001); see Lester, 81 F.3d at 833 (“Occasional symptom-free 22 periods…are not inconsistent with disability.”). 23 The ALJ rejected Plaintiff’s reports of pain noting that Plaintiff had conceded that her 24 treatment “was beneficial.” (AR at 43). The ALJ highlighted that “[d]espite [Plaintiff’s] reports 25 of severe pain, treatment notes document reports of pain varying from 0 to 3 on a scale of 10, and 26 she was not prescribed severe pain medication.” Id. at 43. While some of the treatment notes 27 referenced by the ALJ indicate that Plaintiff reported little to no pain in 2017 and early 2019 (AR 28 at 349, 357, 366, 460, 469, 474), the ALJ did not address a medical record from Dr. Anderson in 1 July 2020 (AR at 665) indicated that Plaintiff’s alleged pain was not improving. Rather, Dr. 2 Anderson found that “[o]n a scale from 0-10, the patient[’s] pain is usually between 2-7 on the 3 visual analog scale” and that with the use of pain medication like ibuprofen she gets about 30% to 4 40% pain relief. Id. at 665. Dr. Anderson’s assessment of Plaintiff’s pain is above the ALJ’s 5 reliance on treatment notes documenting reports of pain varying from 0 to 3. Id. at 43; see id. at 6 659 (“On a scale from 0-10, the [patient’s pain] fluctuates between 1-9 on the visual analog scale. 7 On average her pain has been about 5.”). 8 The ALJ is not permitted to “cherry-pick” the evidence in the record to construct a result. 9 See Holohan, 246 F.3d at 1207 (reversing ALJ’s selective reliance on certain evidence in the 10 record while ignoring many other records supporting the plaintiff’s claim). The Court finds the 11 ALJ’s reliance on records indicating improvement with treatment and failure to address reports of 12 higher pain do not, standing alone, constitute a specific, clear, and convincing reason to discount 13 Plaintiff’s symptom testimony. 14 Defendant also argues that the ALJ properly rejected Plaintiff’s testimony based on the 15 objective medical evidence in the record. (Doc. 17 at 5). In contrast, Plaintiff contends that the 16 ALJ simply recited Plaintiff’s medical records and failed to specify which testimony she found 17 not credible and “then provide clear and convincing reasons, supported by evidence in the record, 18 to support that credibility determination.” (Doc. 15 at 13, quoting Brown-Hunter v. Colvin, 806 19 F.3d 487, 488 (9th Cir. 2015)). An ALJ properly may rely in part on inconsistencies between a 20 claimant’s testimony and the objective medical evidence in discounting the claimant’s testimony. 21 Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); cf. Rollins v. Massanari, 22 261 F.3d 853, 857 (9th Cir. 2001) (an ALJ may not discredit a claimant’s pain testimony and 23 deny benefits solely because the degree of pain alleged is not supported by objective medical 24 evidence). 25 Here, the ALJ summarized Plaintiff’s testimony (AR at 42) and then recited treatment 26 notes, objective diagnostic studies, and clinical findings (id. at 43) as grounds for discounting 27 Plaintiff’s testimony. Specifically, the ALJ found Plaintiff’s objective diagnostic studies revealed 28 no acute findings and an x-ray study of Plaintiff’s left shoulder was “considered essentially 1 unremarkable.” (AR at 43). The ALJ acknowledged Plaintiff had clinical findings of left 2 shoulder tenderness with a moderately reduced range of motion. Id. However, the ALJ also 3 noted Plaintiff had clinical findings of normal gait, normal neck examination, normal respiratory 4 examination, no edema, visually normal extremities, normal heart sounds, 5/5 motor strength in 5 bilateral upper and lower extremities, and no gross sensory or motor deficits. Id. 6 The Court finds the ALJ sufficiently explained her reasons for discounting Plaintiff’s 7 symptom testimony based in part on the objective medical evidence. The Court can readily follow 8 her reasoning and meaningfully review those reasons. Guthrie v. Kijakazi, No. 21-36023, 2022 9 WL 15761380, at *1 (9th Cir. Oct. 28, 2022) (citing Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th 10 Cir. 2022) (stating that the court considers “the ALJ’s full explanation” and the “entire record”)); 11 see Mazon v. Comm’r of Soc. Sec., No. 1:22-cv-00342-SAB, 2023 WL 3177797, at *7 (E.D. Cal. 12 May 1, 2023) (the ALJ’s sequence of summarizing evidence followed by giving specific findings 13 followed a conventional organization for the ALJ’s decision writing which is sufficiently clear for 14 judicial review). Accordingly, the Court finds that the ALJ properly discounted Plaintiff’s 15 testimony based in part on the objective medical evidence in the record. 16 In conclusion, the ALJ provided specific, clear, and convincing reasons to discount 17 Plaintiff’s symptom testimony based on conservative treatment the objective medical evidence, 18 and any reason that the ALJ provided that did not meet that standard amounts to harmless error. 19 Carmickle, 533 F.3d at 1163 (upholding an adverse credibility finding where the ALJ provided 20 four reasons to discredit the claimant, two of which were invalid); Batson v. Comm'r of Soc. Sec. 21 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming a credibility finding where one of several 22 reasons was unsupported by the record). 23 V. CONCLUSION 24 A reviewing court should not substitute its assessment of the evidence for the ALJ. 25 Tackett, 180 F.3d at 1098. On the contrary, a reviewing court must defer to an ALJ’s assessment 26 as long as it is supported by substantial evidence and proper analysis. For this and the reasons set 27 forth above, IT IS HEREBY ORDERED: 28 1. Plaintiff’s motion for summary judgment (Doc. 15) is DENIED; 1 2. The decision of the Commissioner of Social Security is AFFIRMED; and 2 3. The Clerk of the Court is directed to enter judgment in favor of the Commissioner of 3 Social Security and to close this case. 4 | IT IS SO ORDERED. ° Dated: _ October 11, 2024 | hr Rr 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 18