Thomas v. Kijakazi

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANKIE ANITA T.,1 Case No.: 20cv2049-MSB 12 Plaintiff, ORDER REGARDING JOINT MOTION FOR 13 v. JUDICIAL REVIEW [ECF NO. 15] 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 On October 16, 2020, Frankie Anita T. (“Plaintiff”) filed a Complaint pursuant to 19 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 20 Security (“Defendant”) denying Plaintiff’s application for supplemental security income. 21 (Compl., ECF No. 1.) Now pending before the Court is the parties’ Joint Motion for 22 Judicial Review (“Joint Motion”). (J. Mot., ECF No. 15 (“J. Mot.”).) For the reasons set 23 forth below, the Court ORDERS that judgment be entered affirming the decision of the 24 Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). 25 26 27 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 2 On March 27, 20182, Plaintiff filed an application for supplemental security 3 income benefits under Title XVI of the Social Security Act, alleging disability beginning 4 January 26, 2018. (Certified Admin. R., 266–68, ECF No. 12 (“AR”).) After her 5 application was denied initially and upon reconsideration, (id. at 120–38, 140–58), 6 Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”), 7 (id. at 180–81). An administrative hearing was held on January 2, 2020. (Id. at 73–103.) 8 Plaintiff appeared at the hearing with counsel, and testimony was taken from her and a 9 vocational expert (“VE”). (Id.) 10 As reflected in his January 29, 2020 hearing decision, the ALJ found that Plaintiff 11 had not been under a disability, as defined in the Social Security Act, from March 15, 12 2018, through the date of the decision. (Id. at 33.) The ALJ’s decision became the final 13 decision of the Commissioner on August 18, 2020, when the Appeals Council denied 14 Plaintiff’s request for review. (Id. at 1–7.) This timely civil action followed. 15 II. SUMMARY OF THE ALJ’S FINDINGS 16 In rendering his decision, the ALJ followed the Commissioner’s five-step 17 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found 18 that Plaintiff had not engaged in substantial gainful activity since the application date. 19 (AR at 23.) At step two, the ALJ found that Plaintiff had the following severe 20 impairments: left foot nodule of plantar fascia, hypertension, chronic anemia, 21 depression, schizoaffective disorder, post-traumatic stress disorder (“PTSD”), and 22 alcohol and methamphetamine use disorder. (Id.) At step three, the ALJ found that 23 Plaintiff did not have an impairment or combination of impairments that met or 24 medically equaled the severity of one of the impairments listed in the Commissioner’s 25 Listing of Impairments. (Id. at 24.) 26 27 2 (“RFC”) to do the following: 3 perform medium work as defined in 20 CFR 416.967(c) except the claimant can lift and/or carry 50 pounds occasionally and 25 pounds frequently; the 4 claimant can sit for 6 hours in an 8-hour workday; the claimant can stand 5 and/or walk for 6 hours in an 8-hour workday with normal breaks; the claimant can frequently balance, kneel, stoop, crouch and crawl; the 6 claimant is limited to understanding, remembering, and carrying out 7 simple, routine, repetitive tasks, with breaks every two hours; no interaction with the general public, and to occasional work-related, non- 8 personal, non-social interaction with co-workers and supervisors involving 9 no more than a brief exchange of information or hand-off of product; the claimant cannot perform highly time pressured tasks such that the claimant 10 is limited to generally goal-oriented work, not time sensitive strict 11 production quotas (that is, production rate pace work with strict by the minute or by the hour production quotas that are frequently and/or 12 constantly monitored by supervisors or that are fast paced); the claimant 13 can work in a low-stress environment where there are few work place changes (i.e., the claimant would not have to switch from task to task) and 14 the claimant has minimal decision-making capability. 15 16 (Id. at 26.) 17 At step four, the ALJ adduced and accepted the VE’s testimony that Plaintiff is 18 capable of performing her past relevant work as a kitchen helper. (Id. at 31, 99.) 19 Alternatively, at step five, based on the VE’s testimony, the ALJ found that a 20 hypothetical person with Plaintiff’s RFC could perform the requirements of occupations 21 that existed in significant numbers in the national economy, such as cleaner II, laundry 22 laborer, and food mixer. (Id. at 32, 99.) Therefore, the ALJ found that Plaintiff was not 23 disabled. (Id. at 33.) 24 III. DISPUTED ISSUE 25 As reflected in the parties’ Joint Motion, Plaintiff is raising the following issue as 26 the grounds for reversal and remand—whether the ALJ properly considered the 27 testimony of Plaintiff. (J. Mot. at 4.) 2 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 3 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of 4 judicial review is limited, and the denial of benefits will not be disturbed if it is 5 supported by substantial evidence in the record and contains no legal error. Id.; Buck v. 6 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Molina v. Astrue, 674 F.3d 1104, 7 1110 (9th Cir. 2012)). 8 “Substantial evidence means more than a mere scintilla but less than a 9 preponderance. It means such relevant evidence as a reasonable mind might accept as 10 adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 11 (quoting Desrosiers v. Sec’y Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)); 12 see also Richardson v. Perales, 402 U.S. 389, 401 (1971). Where the evidence is 13 susceptible to more than one rational interpretation, the ALJ’s decision must be upheld. 14 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This includes deferring to 15 the ALJ’s credibility determinations and resolutions of evidentiary conflicts. See Lewis v. 16 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court finds that 17 substantial evidence supports the ALJ’s conclusions, the court must set aside the 18 decision if the ALJ failed to apply the proper legal standards in weighing the evidence 19 and reaching his or her decision. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 20 1193 (9th Cir. 2004). 21 V. DISCUSSION 22 The ALJ Provided Specific, Clear, and Convincing Reasons for Discounting Plaintiff’s 23 Testimony 24 Plaintiff argues that the ALJ failed to provide specific, clear, and convincing 25 reasons for rejecting Plaintiff’s testimony. (J. Mot. at 5–14.) Plaintiff contends that in 26 his written opinion, the ALJ merely provided boilerplate language, followed by a 27 discussion of medical evidence, and the ALJ did not provide legally sufficient rationale to 2 statements regarding her symptoms, thereby precluding review of whether the ALJ’s 3 decision is supported by substantial evidence. (Id. at 11–12.) Plaintiff argues that the 4 ALJ erred, and asks the Court to reverse the ALJ’s decision and award benefits, or, in the 5 alternative, to remand the case for further proceedings. (Id. at 14–15, 21–22.) 6 The Commissioner contends that the ALJ provided legally sufficient reasons for 7 discounting Plaintiff’s symptom testimony. (Id. at 16–21.) The Commissioner alleges 8 that the ALJ properly identified medical evidence that contradicted, or did not 9 corroborate, the degree of limitations that Plaintiff alleged. (Id. at 17–20.) Further, the 10 Commissioner contends that the ALJ properly concluded that Plaintiff’s conservative and 11 efficacious treatment undermined her alleged limitations. (Id. at 19–20.) The 12 Commissioner thus asserts that the ALJ’s decision is supported by substantial evidence 13 and free of legal error, and should be affirmed. (Id. at 19–20, 22–23.) 14 1. Applicable law 15 When evaluating a claimant’s allegations regarding subjective symptoms, the ALJ 16 must engage in a two-step analysis. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 17 1996), superseded, in part, on other grounds by 20 C.F.R. §§ 404.1529(c)(3), 18 416.929(c)(3); see also Social Security Ruling (“SSR”) 16-3p,3 2016 WL 1119029 (Mar. 16, 19 2016). First, the ALJ must determine whether there is objective medical evidence of an 20 underlying impairment that “could reasonably be expected to produce the pain or other 21 symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting 22 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The claimant is not required 23 to show that an underlying impairment could reasonably be expected to cause the 24 25 3 SSR 16-3p, which went into effect before the ALJ’s decision, rescinded and superseded SSR 96-7p and 26 the former “credibility” language. The Ninth Circuit noted that the SSR 16-3p “makes clear what [the] precedent already required: that assessments of an individual’s testimony by an ALJ are designed to 27 ‘evaluate the intensity and persistence of symptoms’ . . . and not to delve into wide-ranging scrutiny of 2 of the pain. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. 3 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 4 Second, if the first step has been satisfied and there is no evidence of malingering, 5 then the ALJ may reject the claimant’s statements about the severity of their symptoms 6 “only by offering specific, clear and convincing reasons for doing so.” Trevizo, 871 F.3d 7 at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and convincing standard is 8 the most demanding required in Social Security cases.” Revels, 874 F.3d at 648 (quoting 9 Garrison, 759 F.3d at 1014–15). General findings are insufficient, and the ALJ must 10 identify which specific symptom statements are being discounted and what evidence 11 undermines those claims. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 12 (citing Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)); Burch 13 v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). An ALJ’s failure to identify specific 14 statements and explain why they are not credible precludes meaningful review, because 15 the reviewing court cannot determine if the ALJ’s decision was supported by substantial 16 evidence, and constitutes reversible error. Brown-Hunter v. Colvin, 806 F.3d 487, 489 17 (9th Cir. 2015); see also SSR 16-3p. 18 “[B]ecause symptoms, such as pain, are subjective and difficult to quantify,” the 19 ALJ considers “all of the evidence presented,” including information about the 20 claimant’s prior work record, statements about their symptoms, evidence submitted by 21 their medical sources, and observations by the Agency’s employees and other persons. 22 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. Factors the ALJ may consider, in 23 addition to objective medical evidence, include Plaintiff’s daily activities; the location, 24 duration, frequency, and intensity of their pain or other symptoms; precipitating and 25 aggravating factors; the type, dosage, effectiveness, and side effects of any medication 26 taken to alleviate pain; treatment; and any other measures used to relieve pain. See 20 27 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. The ALJ may also consider 2 §§ 404.1529(c)(4), 416.929(c)(4); SSR 16-3p. 3 2. Plaintiff’s testimony during the administrative hearing and medical 4 records 5 a. Relevant testimony during Plaintiff’s administrative hearing 6 Plaintiff testified that she had worked in a casino kitchen, washing dishes and 7 cleaning, until she “developed a condition with [her] fingers,” whereby “they all became 8 numb,” as well as problems with her hips and back. (AR at 80.) Plaintiff stated that she 9 cannot work because she is depressed, cannot “get out of bed” three or four times a 10 week, experiences sadness, cries all the time, sometimes hears voices, and sleeps with a 11 light on because she sometimes sees shadows at night. (Id. at 83, 88–89.) She feels “so 12 weak and so tired” that she does not “have the strength to get up and face the day.” 13 (Id. at 88.) Plaintiff has pain in her back, legs, hip, chest, and Achilles tendon. (Id. at 80, 14 83, 89.) 15 Plaintiff further testified that she has problems with her memory, focus, and 16 concentration. (Id. at 83, 86, 91.) Plaintiff can only walk one block, stand for five 17 minutes, sit for twenty minutes, and lift and carry fifteen pounds. (Id. at 90.) Plaintiff 18 used a cane during the administrative hearing, and testified that her doctor prescribed 19 the cane, and she uses the cane to walk. (Id. at 85, 90.) Plaintiff also uses a hand brace 20 on her right non-dominant hand to help with the numbness and pain. (Id. at 85–86.) 21 Plaintiff stated that she is receiving treatment for her high blood pressure and 22 diabetes, and plans to start physical therapy for her foot. (Id. at 83.) Plaintiff said that 23 she takes Metformin for diabetes; Seroquel, Zoloft, and “one other medication” for her 24 mental impairments; and Nitroglycerin, Naproxen, and Acetaminophen for pain. (Id. at 25 87, 89, 93.) Plaintiff also testified she had not used methamphetamine for seven-to- 26 eight months before the administrative hearing. (Id. at 87.) 27 Lastly, Plaintiff testified that she has PTSD from stabbing and killing her daughters’ 2 chores, and her younger son who lives with her pays the bills. (Id. at 77–78.) 3 b. Medical records 4 From May of 2017 to August of 2019, Plaintiff was examined and treated at the 5 Family Health Centers of San Diego. (Id. at 391–423, 425–33, 475–80, 497–505, 829–37, 6 841–43, 846–52.) With respect to physical limitations, Plaintiff reported shoulder pain, 7 (id. at 425, 660); lower back pain, (id. at 398, 402, 412, 475, 497, 501, 660, 836, 841, 8 850); hip pain, (id. at 398, 497); ankle pain, (id. at 475, 660); radicular pain to the legs, 9 (id. at 841); chest pain, (id. at 391, 836, 846, 850); right foot pain, (id. at 402); pain from 10 a lump on the bottom of her left foot, (id. at 425, 475, 834 (9/10 pain when walking); 11 and numbness in her fingers, (id. at 394). Plaintiff was diagnosed with essential 12 hypertension, (id. at 395, 399, 403, 408, 413, 419, 427, 477, 498, 502, 837, 842, 847, 13 851); hyperlipidemia, (id. at 392, 399, 413, 418, 427, 832); iron deficiency anemia, (id. at 14 408, 413, 418, 502); type two diabetes, (id. at 477, 498, 832, 835, 848, 851); plantar 15 fascial fibromatosis, (id. at 832, 835); Achilles tendinitis, right leg, (id. at 477); 16 onychogryphosis, (id. at 835); cardiac murmur, (id. at 413); and vitamin D deficiency, (id. 17 at 399, 413). 18 Treatment notes indicate that Plaintiff had normal gait, (id. at 406, 497, 661); 5/5 19 muscle strength, (id. at 399, 498, 661); no muscle atrophy of the hands, (id. at 395); 20 appropriate tone and muscle build, (id. at 661); a negative Tinel’s test,4 (id. at 395); 21 intact sensation, (id.); and that she was not able to squat fully due to pain, (id. at 399, 22 498). On August 27, 2018, at Plaintiff’s request, she was prescribed a cane and 23 temporary back brace. (Id. at 475, 477.) On January 30, 2019, Plaintiff declined a 24 25 26 27 4 “[A] Tinel’s test ‘is an orthopedic test used to detect irritated nerves. Positive signs of a Tinel’s test is 2 been diagnosed with an “enlarged heart.” (Id. at 403, 412.) 3 With respect to mental limitations, Plaintiff reported a history of depression, (id. 4 at 398, 412); normal appetite, (id. at 412); frequent alcohol consumption, (id. at 394, 5 398, 406); chronic fatigue, (id. at 394); lack of motivation or energy, (id. at 501); and 6 denied suicidal ideations, (id. at 398, 412, 497, 501). During her exams, Plaintiff was 7 alert and oriented, (id. at 395, 399, 402, 413, 417, 498, 501); cooperative, (id. at 498, 8 501); pleasant, (id. at 417, 501); with a depressed mood, (id. at 501), and calm, (id. at 9 498). Plaintiff’s physicians noted her history of noncompliance due to missed office 10 visits and not following up with referrals. (Id. at 398, 403, 501.) Plaintiff also forgot to 11 take her medications at times, (id. at 501), but reported that the mental health 12 treatment was helping, (id. at 497). Plaintiff was diagnosed with schizoaffective 13 disorder, (id. at 408); major depressive disorder (“MDD”), (id. at 399, 403, 498, 502, 14 848); and PTSD, (id. at 848). 15 ii. Psychiatric evaluations 16 On July 12, 2017, Dr. Bohy conducted a behavioral health assessment of Plaintiff. 17 (Id. at 562–66.) Plaintiff reported being depressed, always feeling tired, having visual 18 and auditory hallucinations, and problems with memory and sleep. (Id. at 562, 564.) 19 Plaintiff’s back and foot pain was a 7/10. (Id. at 563.) Dr. Bohy found that Plaintiff was 20 alert; oriented to person, time, place, and current situation; moderately hygienic; 21 dressed appropriately; cooperative; of normal weight; that Plaintiff had coherent 22 thought processes; appropriate affect; age appropriate vocabulary; depressed mood; 23 normal memory; and age appropriate motor skills, judgment, and insight. (Id. at 564– 24 65.) Dr. Bohy diagnosed Plaintiff with schizoaffective disorder, depressive type; alcohol 25 use disorder; and methamphetamine use disorder. (Id. at 565.) Dr. Bohy also filled out 26 a “San Diego County Adult Medi-Cal Mental Health Severity Analysis” questionnaire and 27 2 integrated care,” and no risk of “suicidal/violent, high risk behavior, catastrophic 3 illness/loss, criminogenic behavior, impulsivity, insight, [and] ego discordance.” (Id. at 4 565–66.) 5 From September 2017 to April 2018, Plaintiff was treated by Dr. Smith, a 6 psychiatrist. (Id. at 354–57, 438–44, 553–56.) At the initial psychiatric evaluation on 7 September 28, 2017, Plaintiff alleged that she had been “depressed for years” and 8 “recently things [had] been worse.” (Id. at 354.) She reported that she had “very little 9 energy, [was] sleeping poorly, with poor concentration, [had] increased appetite, 10 anhedonia, guilt and hopelessness,” “sometimes hear[d] a voice calling her name,” 11 “[saw] shadows out of the corner of her eye,” and had “occasional nightmares.” (Id.) 12 Additionally, Plaintiff stated that she felt extremely guilty for stabbing her daughters’ 13 father in self-defense, which led to his death. (Id.) Plaintiff stated she consumed 14 alcohol three-to-four nights a week and had used methamphetamine a few months 15 before the examination. (Id.) Dr. Smith diagnosed Plaintiff with PTSD and MDD with 16 psychotic features that occur only during depressive periods. (Id. at 354, 356.) He 17 prescribed Gabapentin and Lexapro. (Id. at 354–55.) 18 Dr. Smith’s treatment note from January 10, 2018, stated that Plaintiff 19 experienced some improvement after taking prescribed medications, and that Plaintiff 20 reduced her alcohol intake to one-to-two nights per week. (Id. at 553.) Plaintiff, 21 22 23 5 “Moderate clinical complexity” finding indicates “schizophrenia, major mood or anxiety disorder— stable on medications, baseline function, sustained recovery; prior history of effective treatment, 24 uncomplicated management; minimal cognitive impairment; no recent hospitalizations; [alcohol or 25 drug disorder] misuse.” Patricia C. v. Saul, Case No.: 19-cv-00636-JM-JLB, 2020 WL 4596757, at *3 n.4 (S.D. Cal. Aug. 10, 2020) (internal citations omitted). 26 6 “Moderate life circumstances” finding indicates “intermittent emotional distress as a manifestation 27 of a mental illness which is worsened by life stressors; limited resources [and] support; strained 2 her symptoms. (Id. at 438, 441, 553.) On February 14, 2018, Dr. Smith noted that 3 significant stressors in Plaintiff’s life, such as losing her job at the casino, exacerbated 4 her depression and psychotic symptoms. (Id. at 441–42.) Plaintiff continued to have 5 auditory and visual hallucinations. (Id. at 438, 441, 553.) 6 Dr. Smith repeatedly noted that Plaintiff had speech within normal limits; linear 7 thought processes; normal thought content; restricted mood and affect; and 8 appropriate associations, judgment and insight, fund of knowledge, attention span and 9 concentration, and recent and remote memory. (Id. at 355, 439, 442, 554.) Plaintiff was 10 alert and oriented, cooperative, and articulate. (Id.) Dr. Smith also repeatedly assessed 11 moderate “clinical complexity” and “life circumstances,” medium “benefit of integrated 12 care,” and no risk of “suicidal/violent, high risk behavior, catastrophic illness/loss, 13 criminogenic behavior, impulsivity, insight, [and] ego discordance.” (Id. at 356–57, 440, 14 443, 555.) Dr. Smith reaffirmed his diagnoses of PTSD and MDD with psychotic features. 15 (Id. at 439, 442.) However, on January 10, 2018, because Plaintiff’s auditory 16 hallucinations were the “worst when she was depressed,” Dr. Smith opined that this 17 “may suggest more of a schizoaffective disorder picture instead of MDD with psychotic 18 features.” (Id. at 553–54.) On April 11, 2018, Dr. Smith noted that Plaintiff continued to 19 struggle with depressive symptoms, had “ups and downs,” and was “depressed with low 20 energy and [had] difficulty getting up off the couch” four to five days a week. (Id. at 21 438.) 22 On August 10, 2018, Dr. Glassman, a consultative examining psychiatrist, 23 completed a psychiatric evaluation of Plaintiff. (Id. at 462–67.) Dr. Glassman wrote that 24 Plaintiff stopped working because of “problems with her hands, with decreased use of 25 her hands, and also pain in her hip and low back.” (Id. at 463.) Plaintiff reported that 26 she was not able to perform basic work because she could not “remember things,” was 27 “very tired” and depressed, and had “very low energy, interest, or motivation.” (Id. at 2 at its worst after she lost her husband and after she killed her daughters’ father in self- 3 defense. (Id.) Plaintiff told Dr. Glassman that she consumed alcohol twice a week to 4 improve her mood, and had used methamphetamine three-to-four months before the 5 appointment. (Id. at 464.) 6 Dr. Glassman noted that Plaintiff had problems with low self-esteem, abusive 7 relationships, feelings of alienation, identity confusion, lack of direction, affective 8 lability, controlling her anger and temper, and managing stress. (Id.) With respect to 9 Plaintiff’s activities of daily living, Dr. Glassman wrote the following: 10 She stated that she does not sleep well. It is hard to get to sleep, because of being worried and anxious. She does not take care of her grooming very 11 well. She can go a week or more without a shower. She only brushes her 12 teeth about once a week. She stated she “tries” to do household chores, but “[i]t is hard . . . [she] get[s] panic attacks, feel[s] the world is closing in!” 13 She stated her son has to do much of the grocery shopping, as she is 14 avoidant of going there. 15 16 (Id. at 465.) 17 Dr. Glassman noted that during the examination, Plaintiff was “a bit rumpled and 18 unkempt in her physical presentation.” (Id. at 466.) She was alert and oriented, had 19 socially appropriate behavior, was able to follow directions, and had coherent, relevant, 20 and goal-directed thought processes. (Id.) Plaintiff was “poorly engaged,” “[h]er eye 21 contact was limited,” and she “appeared very depressed,” sobbing intermittently during 22 the evaluation. (Id.) 23 Dr. Glassman diagnosed Plaintiff with ongoing alcohol and methamphetamine 24 use; dysthymic disorder; borderline personality features; and probable borderline 25 personality disorder. (Id. at 467.) As to Plaintiff’s ability to function in a workplace 26 setting, Dr. Glassman found that: 27 / / / 2 caappparociptyri atote g meta anlnoenrg, addueeq tuoa hteelry p woiothr gortohoemrsi nagn da ntod bsieghnaifvicea innt a d seopcrieasllsyio-n. 3 She has mild impairment in her capacity to understand and follow even simple instructions consistently. [She] has moderate impairment in her 4 capacity to maintain concentration, persistence, and pace, and to adapt to 5 changes and stressors in a workplace setting. 6 7 (Id.) Dr. Glassman further opined that “[a] clean and sober lifestyle and 8 appropriate substance abuse treatment” could decrease Plaintiff’s symptoms and 9 improve functioning. (Id.) 10 On November 1, 2018, Dr. Ariella conducted a behavioral health assessment of 11 Plaintiff. (Id. at 539–43.) Plaintiff reported: 12 depressed mood, anhedonia, hypersomnia, fatigue, poor appetite, feelings of guilt or worthlessness, trouble concentrating, psychomotor retardation, 13 thoughts of being better off dead. [U]ncontrollable worry and nervousness 14 about multiple issues, trouble relaxing, restlessness, irritability, and feeling afraid something awful might happen. [S]ymptoms of posttraumatic stress 15 disorder 2–3 times a week, including increased arousal, psychological and 16 physiological responses to (and avoidance of) reminders of trauma, feeling of detachment, negative overall view of the world. 17 18 (Id. at 539.) Plaintiff reported that her pain level was an 8/10. (Id. at 540.) Plaintiff also 19 stated that she had visual and auditory hallucinations. (Id. at 541.) 20 Dr. Ariella noted that Plaintiff was alert; oriented to person, time, place, and 21 current situation; hygienic; dressed appropriately; cooperative; overweight; had normal 22 speech; coherent thought processes; appropriate affect; average intellect; age 23 appropriate vocabulary; depressed mood; normal memory; slowed motor skills; and age 24 appropriate judgment and insight. (Id.) Dr. Ariella diagnosed Plaintiff with PTSD; MDD, 25 recurrent; and generalized anxiety disorder. (Id. at 542.) Dr. Ariella assessed moderate 26 “clinical complexity” and “life circumstances,” medium “benefit of integrated care,” and 27 no risk of “suicidal/violent, high risk behavior, catastrophic illness/loss, criminogenic 2 [that] time.” (Id. at 853.) 3 Dr. Dobos treated Plaintiff from November 2018 to January 2019. (Id. at 532–38, 4 775–78, 856–59.) At the initial evaluation, Plaintiff reported that she “had depression 5 for a number of years,” did not have any energy, was “always tired,” had nightmares 6 and flashbacks about the killing of her daughters’ father, heard voices, saw shadows, 7 and had “passive thoughts of not caring if she goes on living.” (Id. at 532.) Plaintiff 8 reported consuming alcohol three times a week, and using methamphetamine in March 9 2018. (Id.) Dr. Dobos diagnosed Plaintiff with MDD, recurrent; other psychotic disorder; 10 PTSD; generalized anxiety disorder; panic disorder; alcohol use disorder; and 11 methamphetamine use disorder. (Id. at 536.) 12 At subsequent visits, Plaintiff reported improved mood and a reduction in 13 psychotic symptoms after beginning Zoloft, but her auditory and visual hallucinations 14 persisted. (Id. at 775, 856.) Dr. Dobos reaffirmed his initial diagnoses. (Id. at 776, 857.) 15 Dr. Dobos noted that Plaintiff was pleasant and polite, (id. at 536, 776, 857); normally 16 groomed and attired, (id. at 536, 776, 857); alert, (id. at 536, 776); and sad and worried, 17 (id. at 536.) 18 Dr. Dobos found that Plaintiff had speech within normal limits; coherent and 19 circumstantial thought processes; paranoid ideation; auditory and visual hallucinations; 20 ideas of reference; fair judgment and insight; limited fund of knowledge; fair attention 21 span and concentration; anxious and depressed mood and affect; and appropriate 22 associations. (Id. at 535–36, 775–76, 856–57.) Plaintiff was alert and oriented, 23 cooperative, and articulate. (Id.) Dr. Dobos assessed severe “clinical complexity” and 24 “life circumstances,” medium “benefit of integrated care,” and mild risk of 25 “suicidal/violent, high risk behavior, catastrophic illness/loss, criminogenic behavior, 26 impulsivity, insight, [and] ego discordance.” (Id. at 538, 777–78.) 27 / / / 2 On December 1, 2017, Plaintiff saw Dr. Puccinelli because of a painful lump in her 3 left plantar arch and chronic heel pain. (Id. at 347.) Dr. Puccinelli noted that Plaintiff 4 had a palpable firm module approximately 1.5 centimeters in diameter with pain to 5 palpation, and “pain to palpation posterior right heel at insertion site of Achilles 6 tendon.” (Id.) Plaintiff had a decreased range of motion with her knee extended, and 7 her sensation was grossly intact via light touch. (Id.) Dr. Puccinelli noted that Plaintiff 8 was “[o]riented to person, place and time,” and her “[m]ood and affect [were] normal 9 and appropriate to situation.” (Id.) Dr. Puccinelli diagnosed Plaintiff with plantar fascial 10 fibromatosis, Achilles tendonitis, and equinus left and right. (Id.) He advised Plaintiff to 11 wear supportive shoes, stretch daily, and prescribed physical therapy. (Id. at 348.) 12 Plaintiff was hospitalized on January 14, 2018, due to chest pain and numbness in 13 both of her hands. (Id. at 367–69.) Her neurologic exam was normal, her head CT 14 showed no evidence of acute intracranial abnormalities, and a chest x-ray showed a 15 normal heart size. (Id. at 368, 377.) Plaintiff was alert and oriented, had “5 out of 5 16 muscle strength throughout,” and her sensation to light touch was intact. (Id. at 370.) 17 She was diagnosed with atypical chest pain, bilateral hand paresthesias, hypertension, 18 dyslipidemia, hypertriglyceridemia, prediabetes, crystal methamphetamine abuse, and 19 obesity, and discharged as stable on January 15, 2018. (Id. at 367–68.) 20 On August 31, 2018, Dr. Yashruti, a consultative orthopedic examiner, completed 21 an orthopedic evaluation of Plaintiff. (Id. at 468–74.) Plaintiff complained of “[n]eck 22 and low back pain with bilateral hip, right ankle, and foot pain with numbness in the tips 23 of the fingers of both hands.” (Id. at 468.) Plaintiff stated that she had been involved in 24 a motor vehicle accident ten years ago, and in December 2017, or January 2018, she 25 developed numbness in the tips of her fingers of both hands. (Id.) Plaintiff was taking 26 Metformin, Gabapentin, and Abilify, which “helped a little,” and used a cane when she 27 was in pain. (Id.) 2 able to walk on her heels and toes without the limp, and could partially squat. (Id. at 3 469.) Plaintiff had normal range of motion of the shoulders, elbows, wrists, fingers, 4 hips, knees, ankles, and feet. (Id. at 470–71.) She had a decreased range of motion of 5 the cervical and lumbar spine. (Id.) Plaintiff had full extension of her fingers, and her 6 Phalen’s test7 was negative. (Id. at 471–72.) She had no muscle weakness in upper or 7 lower extremities, and her straight-leg raising test was negative in both the sitting and 8 supine positions. (Id. at 472.) 9 Dr. Yashruti opined that Plaintiff had the following functional limitations: 10 [Plaintiff] is able to sit with no limitations. She is able to stand and walk on level ground six hours a day. She is able to squat, kneel, crouch, and crawl 11 frequently. She is able to lift 50 pounds occasionally and 25 frequently. 12 She is able to reach with the arms and manipulate with the hands with no limitations. 13 14 (Id. at 473.) 15 c. Disability determinations 16 On September 18, 2018, at the initial level of review, Dr. Kalmar reviewed 17 Plaintiff’s medical records based on her alleged impairments of depression, anxiety, high 18 blood pressure and cholesterol, arthritis, an enlarged heart, and numbness in the hands. 19 (Id. at 120–38.) Dr. Kalmar found that Plaintiff had the following severe impairments: a 20 disorder of the back, essential hypertension, and substance addiction disorder. (Id. at 21 129.) Additionally, after finding that Plaintiff had moderate limitations with respect to 22 her ability to understand, remember, or apply information; interact with others; and 23 concentrate, persist, or maintain pace; and a mild limitation as to her ability to adapt or 24 manage herself, Dr. Kalmar concluded that Plaintiff’s depression was not severe. (Id.) 25 26 27 7 “[A] Phalen’s test is a maneuver used in the physical diagnosis of carpal tunnel symptoms.” 2 twenty-five pounds frequently; stand, walk, and sit for six hours in an eight-hour 3 workday; and that Plaintiff had an unlimited ability to push and pull. (Id. at 132.) Dr. 4 Kalmar also found that Plaintiff’s limitations ranged from “moderate” to “not 5 significantly limited” with respect to understanding and memory, concentration and 6 persistence, and social interaction. (Id. at 133–35.) Dr. Kalmar noted that Plaintiff’s 7 statements regarding her symptoms of pain and weakness were not “substantiated by 8 the medical evidence alone,” and her “statements regarding symptoms considering the 9 total medical and non-medical evidence” were “[p]artially [c]onsistent.” (Id. at 131.) Dr. 10 Kalmar concluded that Plaintiff was capable of performing her past relevant work and 11 was not disabled. (Id. at 136–37.) 12 On January 5, 2019, at the reconsideration level, Dr. Zukowsky reviewed Plaintiff’s 13 records for the same alleged impairments, and an additional claim that Plaintiff was 14 borderline diabetic. (Id. at 140–58.) Dr. Zukowsky found that Plaintiff had the following 15 severe impairments: essential hypertension and substance addiction disorder. (Id. at 16 149.) Further, after finding that Plaintiff had moderate limitations with respect to her 17 ability to understand, remember, or apply information; interact with others; 18 concentrate, persist or maintain pace; and adapt or manage oneself, Dr. Zukowsky 19 concluded that Plaintiff’s depression was not severe. (Id.) 20 Dr. Zukowsky opined that Plaintiff could lift or carry fifty pounds occasionally and 21 twenty-five pounds frequently; stand, walk, or sit for six hours in an eight-hour workday; 22 and that Plaintiff’s ability to push and pull was not restricted. (Id. at 152.) Dr. Zukowsky 23 also found that that Plaintiff’s limitations ranged from “moderate” to “not significantly 24 limited” with respect to understanding and memory, concentration and persistence, 25 social interaction, and adaptation. (Id. at 153–55.) Dr. Zukowsky noted that Plaintiff’s 26 statements regarding her symptoms of pain and weakness were not “substantiated by 27 the medical evidence alone,” and her “statements regarding symptoms considering the 2 and was not disabled. (Id. at 156–57.) 3 3. Analysis 4 Neither party contests the ALJ’s determination that Plaintiff has the following 5 severe impairments: left foot nodule of plantar fascia, hypertension, chronic anemia, 6 depression, schizoaffective disorder, PTSD, and alcohol and methamphetamine use 7 disorder. (See id. at 23; see also J. Mot.) Because the ALJ found that Plaintiff’s 8 “medically determinable impairments could reasonably be expected to cause the 9 alleged symptoms,” a finding that is not contested by the parties, the first prong of the 10 ALJ’s inquiry regarding Plaintiff’s subjective symptoms is satisfied. (See AR at 27; see 11 also J. Mot.) Further, neither party alleges that the ALJ found that Plaintiff was 12 malingering. (See J. Mot.) As a result, the Court must determine whether the ALJ 13 identified which of Plaintiff’s subjective allegations of impartment he discounted, and 14 whether the ALJ provided specific, clear, and convincing reasons for doing so. See 15 Brown-Hunter, 806 F.3d at 489; Trevizo, 871 F.3d at 678; Garrison, 759 F.3d at 1014–15. 16 In his written opinion, the ALJ noted that Plaintiff alleged in the disability report 17 that she could not work due to “depression, anxiety, high blood pressure, high 18 cholesterol, arthritis, an enlarged heart and numbness in her hands.” (AR at 27.) The 19 ALJ further stated the following with respect to Plaintiff’s testimony: 20 At the hearing, the claimant testified that she lives with her son and he pays all the bills (See Testimony). Her last employment was washing dishes 21 and she was let go as she developed a condition with her fingers and hips, 22 as she could not perform the job. She has medical issues and major depression, somedays she cannot get [out] of bed due to sadness and 23 hearing voices. She further testified she cries all the time, and she limits 24 her exercise due to heart and back pain. Her cane was prescribed about two years ago, and her hand brace helps with the numbness. The claimant 25 stated she no longer uses methamphetamine, and last used [the drug] 26 seven or eight months ago. She further testified she can stand for five minutes and walk a block. She can sit for twenty minutes before changing 27 positions. She can lift and carry five pounds (Id.). 2 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be 3 expected to cause the alleged symptoms; however, the claimant’s 4 statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and 5 other evidence in the record for the reasons explained in this decision. 6 7 (Id.) The ALJ then discounted Plaintiff’s statements regarding her impairments, citing 8 the following reasons: (1) Plaintiff’s statements conflicted with the objective medical 9 evidence; (2) Plaintiff received conservative treatment for her mental health issues; and 10 (3) Plaintiff failed to follow a prescribed course of treatment. (See AR at 28–30.) 11 When reviewing the ALJ’s basis for discounting Plaintiff’s testimony, the Court can 12 only assess the reasoning provided by the ALJ in his decision. See Brown-Hunter, 806 13 F.3d at 495; Garrison, 759 F.3d at 1010. The Court will therefore address the validity of 14 each of the ALJ’s stated reasons for discounting Plaintiff’s statements. 15 a. Inconsistencies between Plaintiff’s testimony and objective medical 16 evidence 17 The ALJ’s identification of inconsistencies between Plaintiff’s testimony and the 18 objective medical evidence is a clear and convincing reason to discount Plaintiff’s 19 testimony. See Koch v. Berryhill, 720 F. App’x 361, 364 (9th Cir. 2017) (finding that the 20 “ALJ properly discredited [plaintiff’s] testimony because it was inconsistent with 21 objective medical evidence”; reasoning that “although [plaintiff] testified her carpel 22 tunnel syndrome caused significant pain and numbness in her hands, objective findings 23 were unremarkable and relatively mild”); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 24 2007) (finding that inconsistencies between plaintiff’s testimony and medical record are 25 proper grounds to discredit plaintiff’s testimony); Burch v. Barnhart, 400 F.3d 676, 681 26 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for 27 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 2 convincing reason to discredit claimant testimony.”). 3 In this case, the ALJ stated in his written decision that “[t]he clinical findings of the 4 examining medical sources fail to corroborate the claimant’s allegations of disabling 5 functional limitations,” and “[t]he records since the claimant’s alleged onset date show 6 no significant worsening of her symptoms since before her alleged onset date.” (AR at 7 27.) The ALJ further identified specific inconsistencies between Plaintiff’s statements 8 and the objective medical evidence. 9 First, the ALJ identified Plaintiff’s report that she had an “enlarged heart,” which 10 Plaintiff also alleged as an impairment in her disability application. (Id. at 24, 121.) The 11 ALJ reasoned that there were no signs of acute heart failure during Plaintiff’s 12 examinations, “no orthopnea, palpitations, shortness of breath or wheezing,” and that 13 Plaintiff’s chest x-ray revealed a normal heart size and no other physical abnormalities 14 that would suggest an enlarged heart. (Id.; see also id. at 141, 377, 403, 412.) The 15 medical records the ALJ cited and discussed support his conclusion. (See id.) 16 Additionally, the ALJ discussed Plaintiff’s allegation of numbness in her hands. (Id. 17 at 24, 29–30.) The ALJ pointed out that the record in this case indicates no muscle 18 atrophy in Plaintiff’s hands, a negative Tinel’s test, intact sensation, and a negative 19 Phalen’s test. (See id. at 24, 29–30; see also id. 367–69, 394–95, 468, 472.) 20 Further, in his subsequent discussion of the medical evidence, the ALJ also 21 detailed Plaintiff’s alleged symptoms related to her mental, social, and cognitive 22 functioning, which she reported to various medical care providers. (See id. at 27–29.) 23 The symptoms included low energy, poor sleep and concentration, increased appetite, 24 anhedonia, feelings of guilt and hopelessness, auditory and visual hallucinations, 25 frequent alcohol use, memory problems, constant anxiety, and panic attacks. (Id.) The 26 ALJ noted, however, that Plaintiff’s examinations included findings that Plaintiff was 27 cooperative, calm, alert and oriented, articulate, able to follow directions, had socially 2 memory. (Id.; see also AR at 355, 439, 442, 466–67, 535–36, 541, 554, 564–65, 775–76, 3 856–57.) 4 Accordingly, the ALJ identified Plaintiff’s specific statements regarding her 5 symptoms, and explained why they were inconsistent with the medical record. Such 6 identification constitutes a specific, clear, and convincing reason to discount Plaintiff’s 7 symptom testimony. However, this reason cannot be the sole factor to reject Plaintiff’s 8 symptom testimony. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); 20 C.F.R. 9 § 404.1529(c)(2); SSR 16-3p, 2017 WL 5180304, at *5. The Court will therefore examine 10 whether the ALJ provided other clear and convincing reasons for rejecting Plaintiff’s 11 symptom testimony. 12 b. Conservative mental health treatment 13 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 14 testimony regarding severity of an impairment.” Morris v. Astrue, 323 F. App’x 584, 586 15 (9th Cir. 2009) (quoting Parra, 481 F.3d. at 751). Conservative treatment, nevertheless, 16 “is not a proper basis for rejecting the claimant’s credibility where the claimant has a 17 good reason for not seeking more aggressive treatment.” Carmickle v. Comm’r, Soc. 18 Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation omitted). “Discrediting a 19 [p]laintiff for not receiving inpatient mental health treatment is a position some district 20 courts have rejected or found questionable.” Duarte v. Berryhill, Case No.: 16CV2654 W 21 (BGS), 2018 WL 785819, at *9 (S.D. Cal. Feb. 8, 2018) (citing Mason v. Colvin, No. 1:12- 22 cv-00584 GSA, 2013 WL 5278932, at *6 (E.D. Cal. Sept. 18, 2013) (concluding that 23 treatment with antidepressants and antipsychotic medications was not “conservative”); 24 Odisian v. Colvin, No. CV 12-9521-SP, 2013 WL 5272996, at *8 (C.D. Cal. Sept. 18, 2013) 25 (finding that treatment with psychiatric medications and sessions with a psychologist 26 did not constitute “conservative treatment”); Matthews v. Astrue, No. EDCV 11-01075- 27 JEM, 2012 WL 1144423, at *9 (C.D. Cal. April 4, 2012) (“Claimant does not have to 2 “conservative treatment for her mental health issues, and reported the treatment 3 helped.” (AR at 30; see also id. at 28.) Plaintiff’s medical records contain her reports 4 that the mental health treatment she was receiving was helping. (See i.e., id. at 497, 5 721 (Dr. Chug’s July 13, 2018 note that Plaintiff “[is] currently seeing mental health for 6 her depression” and “feels this is helping”); id. at 468 (Dr. Yashruti’s August 31, 2018 7 note that Plaintiff reported she was treated with medications and “the treatment 8 helped a little”).) Nevertheless, it is not apparent that Plaintiff’s mental health 9 treatment consisting of therapy and medication was “conservative.” Without further 10 explanation from the ALJ, Plaintiff’s alleged conservative treatment is not a specific, 11 clear, and convincing reason to discredit Plaintiff’s testimony. See Duarte, 2018 WL 12 785819, at *9–10; Odisian, 2013 WL 5272996, at *8; Matthews, 2012 WL 1144423, at 13 *9. 14 c. Failure to follow a prescribed course of treatment 15 “An ALJ may discount an allegation of disabling excess pain based on ‘an 16 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed 17 course of treatment.’” Moreno v. Comm’r Soc. Sec., Case No. 1:19-cv-01580-SAB, 2021 18 WL 84376, at *15 (E.D. Cal. Jan. 11, 2021) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th 19 Cir. 1989)); see also Rachel G. v. Kijakazi, Case No. 5:20-cv-01594-GJS, 2022 WL 952630, 20 at *4 (C.D. Cal. Mar. 29, 2022) (citation omitted) (“noncompliance with a prescribed 21 course of treatment is [a] clear and convincing reason for finding a claimant’s subjective 22 complaints lack credibility”). 23 In this case, the ALJ noted in his written decision that Plaintiff had not consistently 24 taken her medications, and was repeatedly advised to comply with her prescribed 25 treatment and medications. (AR at 28–29.) The medical record indicates that, at times, 26 Plaintiff did not take her prescribed medications and did not follow the treatment 27 recommended by her doctors. (See i.e., id. at 401–02 (Dr. Chung’s October 24, 2017 1 || days and does not some days”; and that “much time [was] spent on counseling patient 2 || on importance of taking medications as directed”); id. at 501 (Dr. Chung’s June 29, 2018 3 || note that Plaintiff “has not followed through with physical therapy” and “[florgets to 4 ||take her medications at times”).) Accordingly, Plaintiff’s failure to follow a prescribed 5 || course of treatment is an additional specific, clear, and convincing reason provided by 6 ||the ALJ to discount Plaintiff’s symptom testimony. See Rachel G., 2022 WL 952630, at 7 || *4, 8 VI. CONCLUSION AND ORDER 9 For the foregoing reasons, the Court finds that the ALJ properly identified which 10 || of Plaintiff's statements he discounted, and that the AU provided specific, clear, and 11 || convincing reasons for doing so. The Court therefore ORDERS that judgment be entered 12 || affirming the decision of the Commissioner pursuant to sentence four of 42 U.S.C. 13 || § 405(g) and dismissing this case. 14 IT IS SO ORDERED. 15 ||Dated: September 8, 2022 = _ 2 FF Honorable Michael S. Berg United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28