Opinion

(SS) Meza v. Commissioner of Social Security

Court: District Court, E.D. California
Filed: Dec 20, 2021
Cited by: 0 cases
Authority: More cited than 17.7%

“The 25 claimant carries the initial burden of proving a disability.”

How later courts described this case

“The 25 claimant carries the initial burden of proving a disability.”
noting that inconsistency with independent 20 21 clinical findings in the record is a specific and legitimate reason to reject a contradicted opinion of 22 a treating physician
“Despite the deference usually 12 13 accorded to the Secretary’s application of regulations, numerous appellate courts have imposed a 14 narrow construction upon the severity regulation applied here.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JUAN MEZA, SR., No. 1:20-cv-01216-GSA

Plaintiff,

v. ORDER DIRECTING ENTRY OF

7 JUDGMENT IN FAVOR OF DEFENDANT

KILOLO KIJAKAZI, acting COMMISSIONER OF SOCIAL SECURITY

8 Commissioner of Social Security, AND AGAINST PLAINTIFF

9 (Doc. 17, 19)

Defendant.

I. Introduction

Plaintiff Juan Meza, Sr. (“Plaintiff”) seeks judicial review of a final decision of the

Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for

disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before

the Court on the parties’ briefs which were submitted without oral argument to the Honorable Gary

S. Austin, United States Magistrate Judge.1 See Docs. 17, 19, 20. After reviewing the record the

Court finds that substantial evidence and applicable law support the ALJ’s decision. Plaintiff’s

appeal is therefore denied.

II. Factual and Procedural Background2

On June 29, 2018 Plaintiff applied for benefits alleging disability as of December 5, 2017.

AR 169–77. The Commissioner denied the applications initially on September 19, 2018, and on

reconsideration on December 21, 2018. AR 59–69; 71–82. Plaintiff requested a hearing which

was held before an Administrative Law Judge (the “ALJ”) on September 4, 2019. AR 37–55. On

September 24, 2019 the ALJ issued a decision denying Plaintiff’s application. AR 15–36. The

26 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 7 and

27 2 The Court has reviewed the administrative record including the medical, opinion and testimonial

28 evidence, about which the parties are well informed. Relevant portions thereof will be referenced

in the course of the analysis below when relevant to the arguments raised by the parties.

Appeals Council denied review on June 29, 2020. AR 1–8. On August 27, 2020 Plaintiff filed a

2 complaint in this Court. Doc. 1.

3 III. The Disability Standard

4 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the

5 Commissioner denying a claimant disability benefits. “This court may set aside the

6 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

7 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

8 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the

record that could lead a reasonable mind to accept a conclusion regarding disability status. See

Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a

preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted).

When performing this analysis, the court must “consider the entire record as a whole and

may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social

Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the

evidence could reasonably support two conclusions, the court “may not substitute its judgment for

that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066

(9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless

error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the

ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

To qualify for benefits under the Social Security Act, a plaintiff must establish that

21 he or she is unable to engage in substantial gainful activity due to a medically

determinable physical or mental impairment that has lasted or can be expected to

last for a continuous period of not less than twelve months. 42 U.S.C. §

23 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . .

his physical or mental impairment or impairments are of such severity that he is not

24 only unable to do his previous work, but cannot, considering his age, education, and

work experience, engage in any other kind of substantial gainful work which exists

25 in the national economy, regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy exists for him, or whether

he would be hired if he applied for work.

27 42 U.S.C. §1382c(a)(3)(B).

28 To achieve uniformity in the decision-making process, the Commissioner has established a

sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)-

2 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the

3 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

4 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial

5 gainful activity during the period of alleged disability, (2) whether the claimant had medically

6 determinable “severe impairments,” (3) whether these impairments meet or are medically

7 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4)

8 whether the claimant retained the residual functional capacity (“RFC”) to perform 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. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears

the burden of proof at steps one through four, the burden shifts to the commissioner at step five to

prove that Plaintiff can perform other work in the national economy given her RFC, age, education

and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).

IV. The ALJ’s Decision

At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since

his alleged onset date of December 5, 2017. AR 23. At step two the ALJ found that Plaintiff had

the following severe impairments: degenerative disc disease of the lumbar spine. AR 23. The ALJ

also determined at step two that Plaintiff had the following non-severe impairments: obesity, sleep

apnea, Bell’s palsy, and adjustment disordered with mixed anxiety and depressed mood. AR 24–

27. At step three the ALJ found that Plaintiff did not have an impairment or combination thereof

that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. AR 27.

Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and

concluded that Plaintiff had the RFC to perform light work as defined in 20 CFR 404.1567(b) with

limitations on postural activities. AR 27–30. At step four the ALJ concluded that, considering his

RFC, Plaintiff could not perform his past relevant work as a cook (medium exertional level) or

fence erector (heavy exertional level). AR 25–26. At step five, in reliance on the VE’s testimony,

the ALJ concluded that Plaintiff could perform other jobs existing in significant numbers in the

national economy at the light exertional level to which his skills of cooking and food preparation

2 were transferrable, namely: short order cook, lunch cook, cold meat cook. AR 31–32.

3 Accordingly, the ALJ concluded that Plaintiff was not disabled at any time since his alleged

4 disability onset date of December 5, 2017. AR 26.

5 V. Issues Presented

6 Plaintiff asserts four claims of error: 1) that the ALJ erred in finding his mental impairments

7 non-severe, and in rejecting the associated medical opinions; 2) that the ALJ improperly rejected

8 his testimony; 3) that the ALJ improperly rejected the lay witness testimony; and, 4) the step-five

finding is unsupported because cooking is not a transferrable skill.

A. Non-Severity Finding; Rejection of Associated Opinions

1. Applicable Law

At step two of the five-step process, plaintiff has the burden to provide evidence of a

14 medically determinable physical or mental impairment that is severe and that has lasted or can be

15 expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d

1002, 1004–05 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). A medically determinable

physical or mental impairment “must result from anatomical, physiological, or psychological

abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic

techniques,” and will not be found based solely on the claimant’s statement of symptoms, a

21 diagnosis or a medical opinion. 20 C.F.R. § 404.1521.

22 Step two is “a de minimis screening device [used] to dispose of groundless claims.” Smolen

23 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A “severe” impairment or combination of

impairments is one that significantly limits physical or mental ability to do basic work activities.

20 C.F.R. § 404.1520. An impairment or combination of impairments should be found to be “non-

severe” only when the evidence establishes merely a slight abnormality that has no more than a

minimal effect on an individual’s physical or mental ability to do basic work activities. Webb v.

Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 20 C.F.R. §§ 404.1522, 416.922. “Basic work

activities” mean the abilities and aptitudes necessary to do most jobs, including physical functions

such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, and

5 mental functions such as the ability to understand, carry out, and remember simple instructions,

6 deal with changes in a routine work setting, use judgment, and respond appropriately to supervisors,

7 coworkers, and usual work situations. 20 C.F.R. § 404.1522, 416.922.

8 When reviewing an ALJ’s findings at step two the Court “must determine whether the ALJ

had substantial evidence to find that the medical evidence clearly established that [the claimant]

did not have a medically severe impairment or combination of impairments.” Webb, 433 F.3d at

687 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference usually

13 accorded to the Secretary’s application of regulations, numerous appellate courts have imposed a

14 narrow construction upon the severity regulation applied here.”)).

15 Before proceeding to step four, the ALJ must first determine the claimant’s residual

functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2

(C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations”

and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1),

416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are

21 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p.

22 A determination of residual functional capacity is not a medical opinion, but a legal decision

that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a

medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is

the responsibility of the ALJ, not the claimant’s physician, to determine residual functional

capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must

28 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities.

Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995).

“In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record

such as medical records, lay evidence and the effects of symptoms, including pain, that are

5 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also

6 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical

7 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough

8 summary of the facts and conflicting evidence, stating his interpretation thereof, and making

findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799

F.2d 1403, 1408 (9th Cir. 1986)).

For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy

13 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight,

14 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s),

15 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating

any medical opinion, the regulations provide that the ALJ will consider the factors of supportability,

consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c).

Supportability and consistency are the two most important factors and the agency will articulate

how the factors of supportability and consistency are considered. Id.

21 2. Analysis

22 On September 7, 2018 Dr. DeBattista performed a consultative psychiatric examination of

Plaintiff at the request of the agency. AR 387. He diagnosed major depressive disorder interrelated

to physical chronic pain and opined, in relevant part, that Plaintiff would have mild to moderate

impairment in his ability to maintain attention, concentration and pace. AR 389. Plaintiff contends

the ALJ erred in rejected this opinion by finding only mild limitations, and therefore concluding

28 that Plaintiff’s mental health impairments were non-severe.

Notably, the ALJ did not reject the majority of the opinion in finding only mild limitations

caused by Plaintiff’s mental health impairments. Indeed, Dr. Debattista performed a functional

assessment of nine work-related capacities and opined that Plaintiff had no impairment in five out

5 of nine, that plaintiff had only a mild impairment in three out of nine, and that Plaintiff had a mild

6 to moderate impairment in one out of nine (attention, concentration and pace). In that respect, the

7 ALJ concluded Plaintiff was only mildly limited, not mild to moderately limited. This was the sole

8 departure from Dr. Debattista’s opinion, and a minor one at that. It was well supported by the

ALJ’s reasoning, namely that Plaintiff’s treating provider noted normal attention span and

concentration. AR 25–26 (citing Exhibit 11F/7, AR 423); 20 C.F.R. § 404.1520c(c)(2). (“The

more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence

13 from other medical sources and nonmedical sources in the claim, the more persuasive the medical

14 opinion(s) or prior administrative medical finding(s) will be.”).

15 Plaintiff criticizes the ALJ’s reliance on clinical examinations noting adequate

concentration, contending that “an ability to pay attention during a 15-minute medical appointment

does not translate to an ability to attend and concentrate in a work setting on a regular and

continuing basis.” Br. at 5-6. Plaintiff criticizes the ALJ’s reliance on his daily activities of meal

preparation, driving, shopping, fishing and engaging in hobbies which do not translate to an ability

21 to sustain concentration throughout a workday.

22 Plaintiff’s argument is not well taken. It is not the ALJ’s burden to prove that Plaintiff has

the ability to sustain attention and concentration in a workplace setting. Rather, it is Plaintiff’s

burden to prove that he cannot. See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (“The

claimant carries the initial burden of proving a disability.”). Plaintiff cites Dr. Debattista’s opinion

to establish his concentration limitations. Yet Dr. Debatissta’s opinion was similarly based only

28 on his one time in person examination during which Plaintiff demonstrated inadequate

concentration. Plaintiff’s argument is internally inconsistent insofar as he criticizes the ALJ’s

reliance on one examination noting adequate concentration, yet asks the ALJ to rely on another

examination noting inadequate concentration. In such instance courts are to defer to the ALJ’s

5 conclusion. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted) (noting

6 that if the evidence could reasonably support two conclusions, the court “may not substitute its

7 judgment for that of the Commissioner” and must affirm the decision.).

8 Plaintiff’s treating physician, Dr. Diego, opined that Plaintiff had substantial limitations in

essentially every area of mental functioning due to his anxiety. AR 461. Plaintiff criticizes the

ALJ’s rejection of that opinion for the same reasons discussed above. To Plaintiff’s credit, the cited

activities of daily living do not necessarily foreclose all of Dr. Diego’s identified categories of

13 mental limitations, though they are generally inconsistent with the notion that Plaintiff suffered

14 substantial limitations in essentially every area of mental function.3

15 In any event, the ALJ identified several other reasons for rejecting Dr. Diego’s opinion,

including that it was: 1) “quite conclusory and cites no objective clinical findings to support the

extent and severity of the limitations assessed;”4 2) unsupported by Dr. Diego’s own clinical

findings during a June 3, 2019 examination reflecting adequate concentration and that Plaintiff

denied anxiety, nervousness, depression, sadness, and stress (Ex. 11F/7, AR 423); 3) inconsistent

21 with the record as a whole which documented generally unremarkable mental status findings,

22 routine and conservative treatment; and 4) that Plaintiff did not allege mental impairments at the

3 Some of the daily activities the ALJ underscored were quite unremarkable, such as Plaintiff’s

25 “ability to live with his wife” and “watch television.” AR 24. Cohabitating with a spouse and

watching tv in no way speaks to work-related mental functional capacity, yet these items all too

26 often appear in an ALJ’s laundry list of activities which purportedly undermine the existence of

disabling limitations.

27 4 Indeed, Dr. Diego cited no clinical findings or objective signs in support of the opinion, but merely

28 identified “counseling and medical provider visits” without indicating what clinical findings or

objective signs were revealed during those visits which suggest mental limitations. AR 465.

hearing until prompted to do so by counsel. AR 26.

Thus, the ALJ evaluated the required regulatory factors of supportability and consistency

and cited ample evidence in support of the conclusion that Dr. Diego’s opinion was not supported

5 by, or consistent with, Dr. Diego’s own mental status examination findings or other mental status

6 examinations in the record. 20 C.F.R. § 404.1520c(c)(2). Plaintiff’s terse discussion is largely

7 non-responsive to the ALJ’s cited reasoning. Rather, Plaintiff’s effort in the opening brief and

8 reply was primarily directed at outlining the history of the treating physician rule, it’s interpretation

and development within the circuit, and the argument for its continued viability notwithstanding

the regulatory changes. As Plaintiff reads the prevailing law, the March 27, 2017 regulatory

changes should not be read to displace the pre-existing treating physician rule and associated

13 requirements of specific and legitimate reasoning for rejecting a contradicted medical opinion,

14 along with clear and convincing reasoning for rejecting an uncontradicted medical opinion.

15 The distinction is perhaps more useful in theory than in practice. Supportability and

consistency are factors that must be specifically discussed under the regulatory changes when

evaluating medical opinion evidence, and the lack of supportability and consistency would certainly

be legitimate reasons to reject an opinion based on case law pre-dating the regulatory changes. See

Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (noting that inconsistency with independent

21 clinical findings in the record is a specific and legitimate reason to reject a contradicted opinion of

22 a treating physician). Thus, where an ALJ’s rationale for rejecting a contradicted treating

physician’s opinion satisfies the new regulatory standard, it would almost certainly pass scrutiny

under the old standard as well.

Although any notion of medical opinion hierarchy has been eliminated, one could argue

that the revised regulatory standard is actually more demanding of the ALJ when dealing with the

28 medical opinion evidence generally as it underscores the two regulatory factors that must always

be discussed, namely supportability and consistency. The new regulations clarify that a treating

physician’s opinion cannot not be rejected solely based on factors such as lack of specialization,

duration of treatment relationship, frequency of examinations, or “other factors” such as a check-

5 box format, factors which some courts may previously have found to constitute “specific and

6 legitimate” reasoning under the old standard.

7 To the extent the previous standard can be read as more demanding of the ALJ and more

8 deferential to the treating physician than the current standard, courts in this circuit have rejected

the notion that the treating physician rule still pertains to claims filed after March 27, 2017. Kathy

Jean T. v. Saul, No. 20CV1090-RBB, 2021 WL 2156179, at *5 (S.D. Cal. May 27, 2021) (Although

prior case law required an ALJ to provide “clear and convincing” or “specific and legitimate”

13 reasons for discounting a treating or examining opinion, this “measure of deference to a treating

14 physician is no longer applicable under the 2017 revised regulations.”).

15 Thus, the ALJ’s discussion (as set forth above) was amply specific and legitimate under the

pre-existing treating physician rule as well. Dr. Diego’s opinion that Plaintiff had substantial

limitations in nearly all areas of mental functioning was owed no deference here. Dr. Diego’s

opinion was contradicted by his own treatment notes, unsupported by other mental status

examination in the record, and in stark contrast to the other three opinions of record which identified

21 no more than mild limitations in any area of mental functioning save for the “mild to moderate”

22 mental limitation Dr. Debattista identified solely in the area of attention, concentration, and pace.

B. Plaintiff’s Subjective Symptomology

1. Applicable Law

The ALJ is responsible for determining credibility,5 resolving conflicts in medical

27 5 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after

28 March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that

subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor

testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A

claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental

impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p.

5 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding

6 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

7 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective

8 medical evidence of an impairment that could reasonably be expected to produce some degree of

the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the

claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the

intensity and persistence of [the claimant’s] symptoms to determine the extent to which the

13 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2.

14 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and

15 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p

at *10. Subjective pain testimony “cannot be rejected on the sole ground that it is not fully

corroborated by objective medical evidence,” but the medical evidence “is still a relevant factor in

determining the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261

F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)).

21 The ALJ must examine the record as a whole, including objective medical evidence; the

22 claimant’s representations of the intensity, persistence and limiting effects of his symptoms;

statements and other information from medical providers and other third parties; and any other

relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5.

28 to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 16-3p at 1-

2. Analysis

Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably

be expected to cause the alleged symptoms and found no malingering. AR 28. Thus, the ALJ was

5 required to articulate clear and convincing reasons before rejecting Plaintiff’s reported symptoms.

6 Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017).

7 Plaintiff specifically underscores the following testimony which he contends ought to have

8 been credited as true, namely that he: 1) had excruciating pain in his legs and lower back making

standing painful; 2) could wash a few dishes, water plants and feed his pets but could not lift the

laundry into the washer; 3) needed a cane to rise from a seated position; 4) had to take daily breaks

to lie down; 5) could not bend over to lift anything from the ground; 5) suffered forgetfulness and

13 incontinence from his stroke, and 6) was depressed. AR 42, 45, 46, 47, 49, 53–55.

14 The ALJ rejected his testimony, noting: 1) additional daily activities mentioned in the record

15 such as independent personal care, preparing meals for over an hour, going to the park, fishing

twice weekly, shopping for up to two hours, vising family weekly, going to church weekly, making

walking sticks in his garage, making rosaries, and managing money. AR 28–29. Although these

activities do not necessarily establish an exceptionally high level of functionality, nor establish

Plaintiff’s ability to sustain gainful employment, they did reasonably establish that his symptoms

21 were not as disabling as alleged. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685,

22 693 (9th Cir. 2009) (finding the ALJ satisfied the “clear and convincing” standard for an adverse

credibility determination where claimant engaged in “gardening and community activities . . .

evidence [which] did not suggest Valentine could return to his old job,” but “did suggest that

Valentine’s later claims about the severity of his limitations were exaggerated.”).

The ALJ also found the physical limitations unsupported by objective evidence. The ALJ

28 acknowledged MRI findings of disc space narrowing at L5-S1 with grade 1 anterior

spondylolisthesis and bilateral spondylosis. AR 28. Nevertheless, the ALJ noted that

musculoskeletal and neurological examinations were overall unremarkable with the exception of

occasional findings of lumbar spine tenderness and numbness of the right leg. AR 28 (citing Exhibit

5 6F/6-7; 7F/16 and 21; 10F/9, 17, 26; 11F/20).

6 A review of the ALJ’s cited exhibits generally confirms the accuracy of the ALJ’s

7 description of the same as generally unremarkable save for occasional spine tenderness and

8 numbness to right leg, a characterization which Plaintiff does not acknowledge or dispute. See AR

316–317; 347; 351; 398; 436. Subjective pain testimony “cannot be rejected on the sole ground

that it is not fully corroborated by objective medical evidence,” but the medical evidence “is still a

relevant factor in determining the severity of claimant’s pain and its disabling effects.” Rollins v.

13 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)).

14 The ALJ further noted his conservative treatment was limited to pain medication, heat, ice

15 and exercise. Evidence of “conservative treatment” is sufficient to discount a claimant's testimony

regarding severity of an impairment. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995) ; Parra

v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007).

Plaintiff contends the ALJ did not specify any more invasive or extensive treatment

measures that Plaintiff was offered. Br. at 10. Plaintiff identifies no authority for the proposition

21 that, in order to reject a claimant’s testimony based on conservative treatment, the claimant must

22 have been offered and rejected more invasive treatment measures. Nor would such a proposition

be logically defensible. If a claimant’s medical providers never offer the more invasive treatment

in the first place, that strongly suggests the invasive treatment was not medically necessary, whereas

a claimant’s refusal thereof might potentially be explainable for reasons other than lack of medical

necessity.

C. Third Party Function Report

1. Applicable Law

“[F]riends and family members in a position to observe a claimant’s symptoms and daily

5 activities are competent to testify to her condition.” Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th

6 Cir. 1993). Disregarding lay evidence without comment violates the regulatory provision that the

7 Commissioner will evaluate evidence from nonmedical sources. 20 C.F.R. §§ 404.1513(a)(4),

8 416.913(a)(4). However, “[a]n ALJ need only give germane reasons for discrediting the testimony

of lay witnesses.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Inconsistency with

medical evidence is a germane reason. Id. An ALJ also provides germane reasons for rejecting

testimony when the lay witness’s testimony is substantively similar to other subjective testimony

13 that has already been validly rejected. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694

14 (9th Cir. 2009).

15 2. Analysis

Plaintiff’s wife submitted a third-party function report describing Plaintiff’s limitations,

including taking breaks to lie down, inability to stand for long periods, difficulty dealing with stress

and routine changes, and reduced ability to lift, squat, bend, stand, walk, kneel, hear, climb stairs,

memory, and completing tasks. AR 208–214. The ALJ acknowledged the third-party report and

21 stated that it repeated the claimant’s own subjective statements. Plaintiff does not dispute that

22 proposition, but rather relies on his argument that his own statements were well supported. That

argument fails for the reasons discussed above. Because the third-party statement largely echoed

Plaintiff’s own subjective complaints, the ALJ’s analysis of the latter was equally applicable to the

former. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In light of

our conclusion that the ALJ provided clear and convincing reasons for rejecting Valentine’s own

28 subjective complaints, and because Ms. Valentine’s testimony was similar to such complaints, it

follows that the ALJ also gave germane reasons for rejecting her testimony.”)

D. Step-Five Finding

Plaintiff contends the step five finding is unsupported because the ALJ found he had

5 transferrable skills of cooking and food preparation. Plaintiff cites the definition of a skill from

6 SSR 82-41, which provides as follows:

7 What a "skill" is. A skill is knowledge of a work activity which requires the exercise

of significant judgment that goes beyond the carrying out of simple job duties and

8 is acquired through performance of an occupation which is above the unskilled level

(requires more than 30 days to learn). It is practical an d familiar knowledge of the

principles and processes of an art, science or trade, combined with the ability to

10 apply them in practice in a proper and approved manner. This includes activities like

making precise measurements, reading blueprints, and setting up and operating

11 complex machinery. A skill gives a person a special advantage over unskilled

workers in the labor market.

13 Plaintiff asserts, with no elaboration or legal support, that cooking and food preparation do not meet

14 that definition as they confer no advantage over unskilled workers in the labor market. Plaintiff

15 has established no conflict with the VE’s testimony. It appears reasonably self-evident that

cooking and food preparation (skills Plaintiff obtained as a cook) are transferrable to the

occupations of short order cook, lunch cook, and meat cook, in that the abilities to cook and prepare

food would confer an advantage over others in the labor market with no such experience.

Moreover, at least one unpublished case has noted that cooking is a transferrable skill. Resp. at 18

21 (citing Tamara M. B. v. Comm’r of Soc. Sec., No. 2:19-CV-00413-FVS, 2021 WL 785092, at *7

22 (E.D. Wash. Mar. 1, 2021)). With no authority to the contrary identified by Plaintiff, there is no

basis to find error here.

VII. Conclusion and Order

For the reasons stated above, the Court finds that substantial evidence and applicable law

support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from

28 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court

is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social

Security, and against Plaintiff Juan Meza Sr.

5 IT IS SO ORDERED.

6 Dated: December 16, 2021 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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