ALJ may properly discount a claimant’s subjective 2 complaints when the daily activities demonstrate an inconsistency between a claimant’s testimony and 3 the claimant’s reported activities
How later courts described this case
- ALJ may properly discount a claimant’s subjective 2 complaints when the daily activities demonstrate an inconsistency between a claimant’s testimony and 3 the claimant’s reported activities
- ALJ need not accept the opinion of any physician, including a treating 6 physician, if that opinion, is brief, conclusory, and inadequately supported by clinical findings”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
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EUGENIA KATHERINE MCGOVRAN, ) Case No.: 1:19-cv-01383-BAM
12 )
Plaintiff, ) ORDER REGARDING SOCIAL SECURITY
13 v. ) COMPLAINT
)
14 ANDREW M. SAUL, Commissioner of Social )
Security, )
15 )
Defendant. )
16
)
17
18 INTRODUCTION
19 Plaintiff Eugenia Katherine Mcgovran (“Plaintiff”) seeks judicial review of a final decision of
20 the Commissioner of Social Security (“Commissioner”) denying her application for disability
21 insurance benefits under Title II 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.1
24 Having considered the briefing and record in this matter, the Court finds the decision of the
25 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole
26
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1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including
28 entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Docs. 5, 7, 18.)
1 and based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to
2 deny benefits.
3 FACTS AND PRIOR PROCEEDINGS
4 Plaintiff filed an application for disability insurance benefits on May 23, 2016. AR 158-63.2
5 Plaintiff alleged that she became disabled on October 23, 2015, due to severe arthritis of the neck,
6 stenosis of the cervical spine C4-C7, numbness and burning in both hands, osteoarthritis of right
7 thumb, pain with grasping, severe neck and shoulder pain, debilitating headaches, fibromyalgia,
8 osteoporosis, and depression. AR 165, 178-79. Plaintiff’s application was denied initially and on
9 reconsideration. AR 85-88, 92-97. Subsequently, Plaintiff requested a hearing before an ALJ. ALJ
10 Timothy Snelling held a hearing on June 13, 2018. AR 29-61. ALJ Snelling issued an order denying
11 benefits on October 28, 2018. AR 10-24. Plaintiff sought review of the ALJ’s decision, which the
12 Appeals Council denied, making the ALJ’s decision the Commissioner’s final decision. AR 1-5. This
13 appeal followed.
14 Hearing Testimony
15 The ALJ held a hearing on June 13, 2018, in Fresno, California. Plaintiff appeared at the
16 hearing by telephone. She was represented by attorney Jeff Milam. Cheryl R. Chandler, an impartial
17 vocational expert, also appeared and testified. AR 15, 31-32.
18 Plaintiff confirmed that her impairments included degenerative disc disease, stenosis of the
19 cervical spine, osteoarthritis of both hands, a history of migraine headaches, fibromyalgia syndrome,
20 osteoporosis, depression, polymyalgia and chronic obstructive pulmonary disease. She was 63 years
21 old and was previously employed in various jobs as a bartender, auction clerk and sales
22 associate/clerk. AR 35-37. The VE classified Plaintiff’s past work as sales person jewelry, sales clerk
23 and bartender. AR 39.
24 In response to questions from her attorney, Plaintiff testified that she has problems being on
25 her feet for long periods of time. The most she can be up and about at one time is approximately one
26 hour. In an eight-hour day, she probably sits for four hours and is on her feet for four hours. The most
27
28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.
1 she can lift and carry is 15 pounds. She has problems with her hands. The longest she can use her
2 hands is 15 minutes before she has to stop and rest for about 15 minutes. It gets harder to use her
3 hands throughout the day. She has arthritis. She also testified that she has neck pain, which causes
4 her to have problems turning her neck. She has problems staring at a TV for a long period of time.
5 She uses ibuprofen and a neck pillow to relieve her neck pain. She also has low back pain. She does
6 not use ice or rubs for her back pain. She has not had any shots for the low back or neck. She takes
7 Gabapentin and ibuprofen. AR 40-45.
8 Plaintiff testified that she has lung problems and is a former smoker. She has shortness of
9 breath with activity. If she is doing things around the house, it gets worse. She also has swelling
10 around the ankles, which causes pain when swollen and worsens if she is on her feet. She does not
11 take medication for it. She has to stay off of her feet because of the swelling three times a week,
12 sitting down for 15-20 minutes and elevating her feet. She cannot sit for long periods, having to
13 change positions every 15-20 minutes. She does not use a cane. AR 46-50.
14 In response to questions from the ALJ, Plaintiff testified that she has brittle bones with her
15 osteoporosis. She fractured her left wrist when she fell. She receives infusions to help with her
16 osteoporosis. AR 51-53.
17 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The ALJ asked the
18 VE hypotheticals. For the first hypothetical, the ALJ asked the VE to assume an individual restricted
19 to light work, lift and carry 20-10, stand and walk 6 of 8, and sit 6 of 8. The individual could not
20 climb ladders, ropes or scaffolding, but all other postural activities could be performed on an
21 occasional basis, including climbing of ramps and stairs, crouching, crawling, kneeling and stooping.
22 The individual also must avoid concentrated exposure to pulmonary irritants, temperature extremes,
23 dampness, vibration, very loud noise and very bright lights. The VE testified that this individual
24 would be able to perform all three of Plaintiff’s past jobs. AR 54.
25 For the second hypothetical, the ALJ asked the VE to assume everything in hypothetical one
26 and that the individual could have no more than frequent overhead, reach, overhead push and pull,
27 gross manipulation and fine manipulation with the bilateral upper extremities. The VE testified that
28 such an individual would be able to perform Plaintiff’s past work. AR 55.
1 For the third hypothetical, the ALJ asked the VE to assume everything in hypothetical one and
2 that the individual could perform no more than occasional gross manipulation and fine manipulation
3 with the bilateral upper extremities. The VE testified that such an individual would not be able to
4 perform Plaintiff’s past work. AR 55. Based on Plaintiff’s age and education and hypothetical
5 number three, the VE confirmed that Plaintiff did not have any transferable job skills to light work.
6 AR 56.
7 In response to questions from Plaintiff’s attorney, the VE testified that her source for jobs is
8 the DOT and SkillTran. AR 56. The VE also testified that if a person had to change positions every
9 15 to 20 minutes from sitting to standing, Plaintiff’s past work would not be available. The VE
10 indicated that Plaintiff’s past jobs did not allow for a sit/stand option. AR 56-58.
11 Medical Record
12 The relevant medical record was reviewed by the Court and will be referenced below as
13 necessary to this Court’s decision.
14 The ALJ’s Decision
15 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ
16 determined that Plaintiff was not disabled under the Social Security Act. AR 15-24. Specifically, the
17 ALJ found that Plaintiff had not engaged in substantial gainful activity since October 13, 2015, the
18 alleged onset date. AR 17. The ALJ identified degenerative disc disease, stenosis of the cervical
19 spine, osteoarthritis of bilateral hands, mild headaches, fibromyalgia syndrome, osteoporosis,
20 polymyalgia, chronic obstructive pulmonary disorder, emphysema, edema, hypermobility syndrome
21 and depression as severe impairments. AR 17-18. The ALJ determined that the severity of Plaintiff’s
22 impairments did not meet or equal any of the listed impairments. AR 19.
23 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual
24 functional capacity (“RFC”) to perform a wide range of light work. She could lift and carry 20 pounds
25 occasionally and 10 pounds frequently, could stand and/or walk for 6 hours in an 8-hour workday, and
26 sit for 6 hours in an 8-hour workday with normal breaks. She could frequently reach overhead, push,
27 and pull overhead with bilateral upper extremities. She could not climb ladders, ropes, and scaffolds,
28 but occasionally could climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She also must
1 avoid concentrated exposure to extreme cold and heat, wetness, humidity, very loud noise, very bright
2 lights, vibration and pulmonary irritants. AR 20-23. With this RFC, the ALJ found that Plaintiff was
3 capable of performing her past relevant work as a sales person jewelry, sales clerk and bartender. AR
4 23-24. The ALJ therefore concluded that Plaintiff had not been under a disability from October 13,
5 2015, through the date of the decision. AR 24.
6 SCOPE OF REVIEW
7 Congress has provided a limited scope of judicial review of the Commissioner’s decision to
8 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this
9 Court must determine whether the decision of the Commissioner is supported by substantial evidence.
10 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales,
11 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112,
12 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as
13 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be
14 considered, weighing both the evidence that supports and the evidence that detracts from the
15 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the
16 evidence and making findings, the Commissioner must apply the proper legal standards. E.g.,
17 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s
18 determination that the claimant is not disabled if the Commissioner applied the proper legal standards,
19 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of
20 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987).
21 REVIEW
22 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in
23 substantial gainful activity due to a medically determinable physical or mental impairment which has
24 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §
25 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such
26 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or
27 her age, education, and work experience, engage in any other kind of substantial gainful work which
28 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The
1 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.
2 1990).
3 DISCUSSION3
4 Plaintiff contends that the ALJ erred by rejecting the opinion of her treating physician, Dr.
5 Boniske, and the opinions of the state agency physicians do not constitute substantial evidence
6 sufficient to reject that opinion. Plaintiff also contends that the ALJ failed to give legally adequate
7 reasons for rejecting her subjective complaints.
8 1. Treating Physician Opinion
9 On May 14, 2018, Dr. Charles Boniske (and Colleen Gleason, FNP) completed a
10 Questionnaire – Fibromyalgia (W/Emphasis on Hands) form. Dr. Boniske felt that Plaintiff’s medical
11 problems precluded her from performing any full-time work at any exertion level. Plaintiff’s primary
12 impairment was chronic pain. She was able to stand/walk for short periods of time during an 8-hour
13 workday with frequent rest due to pain. She also had pain in both hands, decreased grip, peripheral
14 neuropathy complaints in both hands and cervical stenosis at C5/C6 bilaterally. Dr. Boniske indicated
15 that Plaintiff dropped items frequently, but she could lift 10-15 pounds with pain. She could reach,
16 handle, feel, push/pull and grasp 20-25% of the day with significant pain. She was unable
17 repetitiously perform these tasks. Dr. Boniske noted that several attempts to return to the work force
18 had failed. AR 344-45.
19 Dr. Boniske (and Nurse Practitioner Gleason) also prepared a letter, which stated as follows:
20 [Plaintiff] is an established patient in this office since June 2010. Initially she was given a
DX of Polymyalgia rheumatica, eventually fibromyalgia. At the time of the fibromyalgia
21 Dx she also complained of multiple joint, neck and back pain. . . . In 2012 radiology studies
were obtained confirming severe cervical disc disease. The patient does suffer from
22
fibromyalgia, but her primary complaints stem from osteoarthritis, cervical disc disease
23 with stenosis and degenerative disc disease of the lumbar spine. She complains of pain in
the neck with radiculopathy into both arms and pain in both feet. She suffers from
24 decreased grip strength from osteoarthritis of bilateral CMC joints.
25
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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 argument or brief is not to
28 be construed that the Court did not consider the argument or brief.
1 The cervical spine x-ray in 2012 confirmed severe cervical disc disease, with neural
foraminal narrowing. MRI in May of 2012 showed neural foraminal narrowing and central
2 canal stenosis at several levels. In 2016 X-ray of the lumbar spine confirmed possible
central annular tear at L5 and S1. X-rays of both hands confirmed severe osteoarthritis at
3
both CMC joints. R>L.
4
The paper work for Social Security disability was requested on the diagnosis of
5 fibromyalgia. The work disability issues are primarily related to the osteoarthritis of the
hands and spine.
6
7 She made several attempts to return to the workforce and failed. She is in persistent pain,
the pain is exacerbated with lifting her arms and grasping. The grip strength is weak
8 secondary to the osteoarthritis. The pain in the shoulder girdle is most likely secondary to
cervical stenosis.
9
10 AR 343.
11 Plaintiff argues that the ALJ erred by rejecting Dr. Boniske’s opinion that Plaintiff was unable
12 to work full-time at any exertional level. (Doc. 15 at 12-15.) Cases in this circuit identify three types
13 of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not
14 treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant
15 (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). As a general rule,
16 more weight should be given to the opinion of a treating source than to the opinions of doctors who do
17 not treat the claimant. Id. Where a treating physician’s opinion is not contradicted by another doctor,
18 it may be rejected only for “clear and convincing” reasons. Id. If the treating physician’s opinion is
19 contradicted by another doctor, the Commissioner must provide “specific and legitimate” reasons
20 supported by substantial evidence in the record to reject this opinion. Id. “The medical opinion of a
21 claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported by medically
22 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
23 substantial evidence in [the] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)
24 (quoting 20 C.F.R. § 404.1527(c)(2)).
25 In this instance, Dr. Boniske’s treating opinion was contradicted by the opinions of the state
26 agency medical consultants, Drs. Michal Douglas and E. Wong. Drs. Douglas and Wong both opined
27 that Plaintiff could lift and/or carry 20 pounds occasionally, 10 pounds frequently, could stand and/or
28
1 walk about 6 hours in 8-hour workday, could sit about 6 hours in an 8-hour workday, could
2 occasionally climb ladders, ropes and scaffolds, could occasionally crawl, could climb ramps/stairs,
3 balance, stoop, kneel and crouch without limitation, could frequently reach overhead on her right and
4 could frequently handle/finger on her right. AR 68-69, 79-81. In light of these opinions, the ALJ was
5 required to provide specific and legitimate reasons supported by substantial evidence in the record to
6 discount Dr. Boniske’s opinion.
7 In evaluating Dr. Boniske’s opinion, the ALJ reasoned as follows:
8 Treating physician, Dr. Boniske, opined the claimant’s fibromyalgia precluded her from
performing any full-time work at any exertion level. He also opined she could lift and
9 carry 10-15 pounds with pain, and stand, walk, and sit, but only for short periods with
frequent rest (Exhibit 10F, p. 2). The claimant was unable to repetitively perform reaching,
10
handling, feeling, pushing, pulling, or grasping and would need to rest between [her]
11 activities (Exhibit 10F, p. 2). The undersigned gives less weight to this opinion because it
is overly restrictive. The claimant reported she was able to clean, do the laundry, cook
12 (Exhibit 5E, p. 3), occasionally go out to lunch with friends, decorate, grocery shop, and
drive a car (Exhibit 5E, pp. 4-5). Additionally, the claimant reported prescribed
13
medications helped some (Exhibit 7F, p. 5), and she used ice, heat rub, and hot showers,
14 which also helped with the pain (Hearing Transcript). The objective evidence corroborated
the claimant does suffer from several impairments, including fibromyalgia (Exhibits 1F, p.
15 2; 7F, pp. 10 and 13; and 8F, p.2), but the record also demonstrated she was physically
very capable, as detailed above. For these reasons, the undersigned gives less weight to
16 this opinion.
17 AR 23.
18 Having considered the record, the Court finds that the ALJ provided specific and legitimate
19 reasons supported by substantial evidence to assign less weight to Dr. Boniske’s opinion. First, the
20 ALJ assigned Dr. Boniske’s opinion less weight because it was overly restrictive in light of her
21 activities of daily living, which included the ability to clean, do laundry, cook, go out to lunch with
22 friends, decorate, grocery shop and drive. AR 23. “A conflict between a treating physician’s opinion
23 and a claimant’s activity level is a specific and legitimate reason for rejecting the opinion.” Ford v.
24 Saul, 950 F.3d 1141, 1155 (9th Cir. 2020), citing Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir
25 2001). The ALJ’s decision to discount Dr. Boniske’s opinion as inconsistent with Plaintiff’s activity
26 level is supported by substantial evidence. Dr. Boniske opined that Plaintiff could only stand, walk
27 and sit for short periods and could not repetitively reach, handle, feel, push, pull, or grasp. However,
28 in contrast with Dr. Boniske’s opinion, in the Function Report – Adult relied upon by the ALJ (Exhibit
1 5E), Plaintiff reported that during the day she did normal household duties, including cooking,
2 cleaning and laundry “all day and every day mostly.” AR 202. She also went outside daily, and was
3 able to walk, drive a car and ride in car. She shopped for groceries every couple of weeks for “maybe
4 an hour to two hours.” AR 203. She also engaged in decorating and taking care of her home. AR
5 204. She occasionally went to lunch or friends would come to her home or talk on the phone. AR
6 204. Additionally, she occasionally babysat her great grandchildren with her husband. AR 201.
7 Second, the ALJ discounted Dr. Boniske’s opinion because Plaintiff received some relief from
8 her symptoms with medication. AR 23. “Impairments that can be controlled effectively with
9 medication are not disabling for the purpose of determining eligibility for SSI benefits.” See Warre v.
10 Comm’r of the SSA, 439 F.3d 1001, 1006 (9th Cir. 2006); see also Sehovic v. Saul, No. EDCV 19-
11 00953-AS, 2020 WL 3511572, at *6 (C.D. Cal. June 29, 2020) (finding ALJ provided clear and
12 convincing, specific and legitimate reason for assigning little weight to physician’s opinion where
13 claimant’s pain symptoms and fibromyalgia were adequately managed with medication). The ALJ’s
14 decision to discount Dr. Boniske’s opinion because she received some relief with medications is
15 supported by substantial evidence.4 As noted by the ALJ, in July 2017, Plaintiff reported that her
16 “medications help.” AR 289. The corresponding treatment record indicted that gabapentin “continues
17 to help with the radiculopathy component” and ibuprofen “helps” with Plaintiff’s cervical disc disease
18 with chronic pain. AR 290. Treatment records also reflect “some relief” with gabapentin (AR 291),
19 “[s]ome improvement with gabapentin and ibuprofen” (AR 291), “gabapentin does help with the
20 radiculopathy component” of fibromyalgia (AR 292), and “[i]buprofen does seem to help” with her
21 cervical disc degeneration (AR 292). In addition, treatment records reflected some relief with cervical
22 epidural injections. AR 249, 267 (“CESI helped very well”).
23
24 4 As Plaintiff argues, the ALJ incorrectly found that Plaintiff’s use of ice, heat rub, and hot
showers helped with the pain. AR 23. Plaintiff indicated only that she used heat, hot showers and hot
25 baths for her lower back pain. AR 45. However, any such error is harmless as the ALJ provided
other specific and legitimate reasons supported by substantial evidence for discounting Dr. Boniske’s
26 opinion. “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).
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1 Third, the ALJ discounted Dr. Boniske’s opinion regarding Plaintiff’s physical limitations
2 based on objective medical evidence demonstrating that she was physically very capable. AR 23.
3 An ALJ may properly reject a treating physician’s opinion that is unsupported by clinical findings. See
4 Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
5 1219, 1228 (9th Cir. 2009) (ALJ need not accept the opinion of any physician, including a treating
6 physician, if that opinion, is brief, conclusory, and inadequately supported by clinical findings”).
7 Here, Dr. Boniske opined that Plaintiff’s work disability issues were “primarily related to the
8 osteoarthritis of the hands and spine.” AR 343. With respect to Plaintiff’s hands in particular, the
9 ALJ noted that upon physical examination by her treating physician, Plaintiff presented with 5/5
10 strength for biceps, triceps, and handgrip, and no atrophy was noted, and that she continued to present
11 with good grip strength. AR 22, 260, 264, 275, 295. The treatment notes, including certain of Dr.
12 Boniske’s notes cited by the ALJ, demonstrated that Plaintiff frequently presented with normal grip
13 strength (AR 244, 260, 275, 285, 289, 295, 297) and normal muscle strength in her upper extremities
14 (AR 251, 262, 264. 267, 269, 273, 302, 304, 306, 307).5 With respect to her spine, an MRI in October
15 2015 showed mild cervical spondylosis and central spinal canal stenoses that did not compress the
16 spinal cord or cause myelomalacis, with the ALJ (noting no nerve impingement or cord compression
17 (AR 21, 253-54, 260; 274), and an MRI of the lumbar spine in October 2016 showed a possible central
18 annular tear or cleft at L5-S1 and no neural foraminal narrowing or definite nerve root impingement
19 (AR 21, 283).
20 As a final matter, Plaintiff argues that the opinions of the non-examining physicians are not
21 substantial evidence sufficient to reject the opinion of her treating physician. However, the opinions
22 of non-examining physicians may serve as substantial evidence when their opinions “are consistent
23 with independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947,
24 957 (9th Cir. 2002); see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) (“reports of the
25 nonexamining advisor need not be discounted and may serve as substantial evidence when they are
26
27
5 She also presented with a normal gait (AR 251, 260, 262, 264, 267, 269, 274, 285, 289, 292,
28 299, 302, 304, 306, 307).
1 supported by other evidence in the record and are consistent with it”); Magallanes v. Bowen, 881 F.2d
2 747, 752 (9th Cir. 1989) (finding the report of a non-examining, non-treating physician need not be
3 discounted when it “is not contradicted by all other evidence in the record”) (emphasis in original).
4 As discussed, the state agency medical consultants, Drs. Douglas and Wood, both opined that Plaintiff
5 could lift and/or carry 20 pounds occasionally, 10 pounds frequently, could stand and/or walk about 6
6 hours in 8-hour workday, could sit about 6 hours in an 8-hour workday, could occasionally climb
7 ladders, ropes and scaffolds, could occasionally crawl, could climb ramps/stairs, balance, stoop, kneel
8 and crouch without limitation, could frequently reach overhead on her right and could frequently
9 handle/finger on her right. AR 68-69, 79-81. The ALJ assigned “some weight” to these opinions
10 because they were generally consistent with and supported by the record but added additional
11 pulmonary restrictions to account for Plaintiff’s diagnoses of COPD and emphysema. AR 23. In so
12 doing, the ALJ considered Plaintiff’s testimony that she could lift and carry 15 pounds and she was
13 capable of cleaning, doing the laundry and cooking. AR 23, 41, 202-03. The ALJ also considered
14 objective evidence in the treatment records indicating that Plaintiff presented with good grip strength
15 despite allegations that she dropped things. AR 23, 244, 260, 275, 285, 289, 295, 297. Thus, the ALJ
16 did not err by affording some weight to the opinions of the non-examining state agency consultants
17 where supported by evidence in the record.
18 B. Subjective Complaints
19 Plaintiff contends that the ALJ failed to give legally adequate reasons for rejecting her
20 testimony. In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a
21 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc.
22 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical
23 evidence of her impairment that could reasonably be expected to produce some degree of the symptom
24 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no
25 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of her
26 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015.
27 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be
28 expected to cause the alleged symptoms, but discounted her statements concerning the intensity,
1 persistence and limiting effects of those symptoms. AR 21-22. The ALJ was therefore required to
2 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints.
3 Plaintiff argues that the ALJ erred in evaluating her testimony by failing to meet the specificity
4 requirements explained in Brown–Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015). (Doc. No. 15 at 18-
5 19.) In Brown–Hunter, the Ninth Circuit reiterated its holding that an ALJ errs “by making only a
6 single general statement that the claimant’s statements concerning the intensity, persistence and
7 limiting effects of these symptoms are not credible to the extent they are inconsistent with the above
8 residual functional capacity assessment, without identifying sufficiently specific reasons for rejecting
9 the testimony, supported by evidence in the case record.” 806 F.3d at 493 (citation and quotation
10 marks omitted). There, the ALJ “stated only that she found, based on unspecified claimant testimony
11 and a summary of medical evidence, that ‘the functional limitations from the claimant’s impairments
12 were less serious than she has alleged.’” Id. The Ninth Circuit found the ALJ’s analysis erroneous and
13 concluded that any such error was not harmless as it could not “discern the agency’s path because the
14 ALJ made only a general credibility finding without providing any reviewable reasons why she found
15 [the claimant’s] testimony to be not credible.” Id. at 494. The failure to identify which testimony the
16 ALJ found not credible and which evidence contradicted that testimony fell short of meeting the ALJ’s
17 responsibility to provide the reason or reasons upon which her adverse determination was based. Id. at
18 494-95 (citation omitted).
19 The Court finds this case distinguishable from Brown–Hunter. Here, the ALJ summarized
20 portions of Plaintiff’s subjective testimony regarding the persistence, intensity, frequency, and limiting
21 effects of her pain. AR 20-21. Specifically, the ALJ summarized Plaintiff’s subjective allegations that
22 her ability to work was limited by difficulty standing, sitting, and walking and she experienced
23 headaches and pain in her neck, shoulders, back, hips, knees, ankles, elbows, and right hand. AR 20,
24 200, 201, 205. The ALJ also considered Plaintiff’s assertion that she could walk a city block before
25 needing to rest. AR 20, 205. Additionally, the ALJ considered Plaintiff’s hearing testimony that she
26 could stand for up to an hour, could lift and carry 15 pounds, and experienced bilateral hand pain. AR
27 21, 40-42. The ALJ expressly identified that he discounted Plaintiff’s hearing testimony that she
28 occasionally dropped things because the record indicated she presented with good grip strength. AR
1 23 (“The record indicated she presented with good grip strength (Exhibits 4F, p. 1 and 7F, p. 11),
2 despite her allegations that she occasionally dropped things (Hearing Transcript).”). Brown–Hunter
3 also is distinguishable because, as discussed below, the Court is able to “reasonably discern” the
4 ALJ’s path. See, e.g., Green v. Saul, No. 1:19-cv-00058-BAM, 2020 WL 1227895, at *10 (E.D. Cal.
5 Mar. 13, 2020), (distinguishing Brown-Hunter and noting that while the ALJ’s opinion could have
6 been more clearly stated, the court was able to reasonably discern the ALJ’s path for the purpose of
7 review), report and recommendation adopted, No. 1:19-cv-00058-NONE-BAM, 2020 WL 3496998
8 (E.D. Cal. June 29, 2020); Hoefer v. Berryhill, No. 1:17-cv-01695-BAM, 2019 WL 1283932, at *5, n.
9 5 (E.D Cal. Mar. 20, 2019) (same).
10 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting
11 Plaintiff’s subjective complaints. First, the ALJ considered that Plaintiff’s statements were not
12 entirely consistent with the medical record. AR 21-22. Although lack of supporting medical evidence
13 cannot form the sole basis for discounting testimony, it is a factor that the ALJ can consider. See
14 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). As mentioned, the ALJ found that the record
15 “indicated she presented with good grip strength …, despite her allegations that she occasionally
16 dropped things (Hearing Transcript).” AR 23. The ALJ observed in the decision that “[u]pon physical
17 examination [by her treating physician] she presented with 5/5 strength for biceps, triceps, and
18 handgrip, and no atrophy was noted . . . . The record indicated she continued to present with good grip
19 strength.” AR 22, 260, 264, 275, 295. Treatment notes generally demonstrated that Plaintiff
20 presented with normal grip strength (AR 244, 260, 275, 285, 289, 295, 297) and normal muscle
21 strength in her upper extremities (AR 251, 262, 264. 267, 269, 273, 302, 304, 306, 307).
22 Second, the ALJ considered that “[t]he objective evidence corroborated that the claimant does
23 suffer from several impairments, including fibromyalgia . . ., but the record also demonstrated she was
24 physically very capable, as detailed above.” AR 23. In his decision, the ALJ detailed Plaintiff’s
25 ability to engage in a variety of activities of daily living, including the ability to clean, do laundry,
26 cook, go out to lunch with friends, decorate, grocery shop and drive. AR 23. Engaging in daily
27 activities that are incompatible with the severity of symptoms alleged can support an ALJ’s
28 determination to discount a claimant’s subjective testimony. Trevizo, 871 F.3d at 682; Burrell v.
1 Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (ALJ may properly discount a claimant’s subjective
2 complaints when the daily activities demonstrate an inconsistency between a claimant’s testimony and
3 the claimant’s reported activities). Plaintiff contends that her ability to engage in activities was not a
4 reason given by the ALJ for rejecting her testimony. (Doc. 17 at 6.) Although the ALJ’s statement
5 concerning Plaintiff’s physical capabilities was made in connection with his evaluation of Dr.
6 Boniske’s opinion (AR 23), it is evident that he was considering Plaintiff’s medically determinable
7 impairments but discounting the intensity and limiting effects of her alleged symptoms related to those
8 impairments based on her activities.
9 CONCLUSION
10 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial
11 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court
12 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security.
13 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul,
14 Commissioner of Social Security, and against Plaintiff Eugenia Katherine Mcgovran.
15
16 IT IS SO ORDERED.
17 Dated: March 24, 2021 /s/ Barbara A. McAuliffe _
18 UNITED STATES MAGISTRATE JUDGE
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