# Betsey Townsend v. Nancy A. Berryhill

> District Court, C.D. California · April 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10037750

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10037750

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
10
11 BETSEY TOWNSEND, Case No. EDCV 19-0393-AS
12 Plaintiff,
MEMORANDUM OPINION
13 v.
14 ANDREW M. SAUL, Commissioner
of Social Security,1
15
Defendant.
16

17
PROCEEDINGS
18
19
On March 1, 2019, Plaintiff filed a Complaint seeking review
20
of the Commissioner’s denial of Plaintiff’s application for
21
supplemental security income (“SSI”) under Title XVI of the Social
22
Security Act. (Dkt. No. 1). On July 30, 2019, Defendant filed an
23
Answer and the Administrative Record (“AR”). (Dkt. Nos. 15-16).
24
The parties have consented to proceed before a United States
25
26
1 Andrew M. Saul, Commissioner of Social Security, is
27 substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R.
Civ. P. 25(d).
28
1 Magistrate Judge. (Dkt. Nos. 11-12, 21). On November 22, 2019,
2 the parties filed a Joint Stipulation (“Joint Stip.”) setting forth
3 their respective positions regarding Plaintiff’s claim. (Dkt. No.
4 19).2 The Court has taken this matter under submission without
5 oral argument. See C.D. Cal. C. R. 7-15.
6
7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
8
9 On December 12, 2014, Plaintiff, previously employed as a
10 store cashier, filed an application for SSI alleging a disability
11 onset date of April 1, 2010. (See AR 75-76, 195, 215-16).
12 Plaintiff’s application was denied initially on July 23, 2015, (AR
13 95), and on reconsideration on October 9, 2015. (AR 102).
14
15 On December 14, 2017, Administrative Law Judge Sharilyn Hopson
16 (“ALJ”) heard testimony from Plaintiff, who was represented by
17 counsel, and vocational expert (“VE”) David Rinehart. (See AR 38-
18 54). On January 25, 2018, the ALJ issued a decision denying
19 Plaintiff’s application. (See AR 24-33).
20
21 The ALJ applied the requisite five-step process to evaluate
22 Plaintiff’s case. (AR 26-33). At step one, the ALJ found that
23 Plaintiff has not been engaged in substantial gainful activity
24 since December 12, 2014, the application date. (AR 26). At step
25 two, the ALJ found that Plaintiff has the following severe
26

27 2 The case was reassigned to the undersigned on April 2,
2020. (Dkt. No. 20).
28
1 impairments: degenerative disc disease, peripheral neuropathy,
2 arthritis of left hip, right shoulder pain, affective disorder,
3 and anxiety disorder. (AR 26). At step three, the ALJ determined
4 that Plaintiff’s impairments do not meet or equal a listing found
5 in 20 C.F.R Part 404, Subpart P, Appendix 1. (AR 27). Next, the
6 ALJ found that Plaintiff has the Residual Functional Capacity
7 (“RFC”)3 to perform “a range of medium work as defined in 20 CFR
8 416.967(c) and SSR 83-10,” with the following limitation:
9
10 [Plaintiff can] lift and/or carry 50 pounds occasionally
11 and 25 pounds frequently; she can stand and/or walk for
12 six hours out of an eight-hour workday; she can sit for
13 six hours out of an eight-hour workday; she can
14 occasionally climb, stoop, kneel, and crouch; she can do
15 occasional overhead reaching on the right; she is limited
16 to tasks with a reasoning level of 2 or less; there
17 should be no public interaction and only occasional
18 interaction with supervisors and coworkers; and she is
19 precluded from jobs requiring teamwork.
20
21 (AR 28).
22
23 At step four, the ALJ noted that Plaintiff has no past relevant
24 work. (AR 32). At step five, based on Plaintiff’s RFC, age,
25 education, work experience, and the VE’s testimony, the ALJ
26
3 A Residual Functional Capacity is what a claimant can
27 still do despite existing exertional and nonexertional limitations.
See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1).
28
1 determined that there are jobs that exist in significant numbers
2 in the national economy that Plaintiff could perform, including
3 laundry worker, industrial cleaner, and floor waxer. (AR 32-33).
4 Accordingly, the ALJ concluded that Plaintiff is not disabled. (AR
5 33).
6
7 On January 7, 2019, the Appeals Council denied Plaintiff’s
8 request to review the ALJ’s decision. (See AR 1-3). Plaintiff
9 now seeks judicial review of the ALJ’s decision, which stands as
10 the final decision of the Commissioner. See 42 U.S.C. §§ 405(g),
11 1383(c).
12
13 STANDARD OF REVIEW
14
15 This Court reviews the Administration’s decision to determine
16 if it is free of legal error and supported by substantial evidence.
17 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).
18 “Substantial evidence” is more than a mere scintilla, but less than
19 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
20 2014). To determine whether substantial evidence supports a
21 finding, “a court must consider the record as a whole, weighing
22 both evidence that supports and evidence that detracts from the
23 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033,
24 1035 (9th Cir. 2001) (internal quotation omitted). As a result,
25 “[i]f the evidence can support either affirming or reversing the
26 ALJ’s conclusion, [a court] may not substitute [its] judgment for
27 that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
28 (9th Cir. 2006).
1 DISCUSSION
2
3 Plaintiff contends that the ALJ failed to properly consider
4 Plaintiff’s testimony regarding her hand pain and limitations.
5 (See Joint Stip. at 4-11, 19-21). After consideration of the
6 record as a whole, the Court finds that the Commissioner’s findings
7 are supported by substantial evidence and are free from material
8 legal error.4
9
10 A. Legal Standard for Assessing Claimant’s Subjective Statements
11
12 When assessing a claimant’s credibility regarding subjective
13 pain or intensity of symptoms, the ALJ must engage in a two-step
14 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
15 First, the ALJ must determine if there is medical evidence of an
16 impairment that could reasonably produce the symptoms alleged. Id.
17 (citing Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)).
18 “In this analysis, the claimant is not required to show that her
19 impairment could reasonably be expected to cause the severity of
20 the symptom she has alleged; she need only show that it could
21 reasonably have caused some degree of the symptom.” Id. (emphasis
22 in original) (citation omitted). “Nor must a claimant produce
23
24
25
4 The harmless error rule applies to the review of
26 administrative decisions regarding disability. See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
27 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be
reversed for errors that are harmless).
28
1 objective medical evidence of the pain or fatigue itself, or the
2 severity thereof.” Id. (citation omitted).
3
4 If the claimant satisfies this first step, and there is no
5 evidence of malingering, the ALJ must provide specific, clear and
6 convincing reasons for rejecting the claimant’s testimony about
7 the symptom severity. Id. (citation omitted); see also Robbins v.
8 Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an
9 ALJ makes a finding of malingering based on affirmative evidence
10 thereof, he or she may only find an applicant not credible by
11 making specific findings as to credibility and stating clear and
12 convincing reasons for each.”); Smolen v. Chater, 80 F.3d 1273,
13 1284 (9th Cir. 1996) (“[T]he ALJ may reject the claimant’s
14 testimony regarding the severity of her symptoms only if he makes
15 specific findings stating clear and convincing reasons for doing
16 so.”). “This is not an easy requirement to meet: The clear and
17 convincing standard is the most demanding required in Social
18 Security cases.” Garrison, 759 F.3d at 1015 (citation omitted).
19
20 Where, as here, the ALJ finds that a claimant suffers from a
21 medically determinable physical impairment that could reasonably
22 be expected to produce her alleged symptoms, the ALJ must evaluate
23 “the intensity and persistence of those symptoms to determine the
24 extent to which the symptoms limit an individual’s ability to
25 perform work-related activities for an adult.” Soc. Sec. Ruling
26 (“SSR”) 16-3p, 2017 WL 5180304, at *3. SSR 16–3p eliminated the
27 term “credibility” from the Agency’s sub-regulatory policy.
28 However, the Ninth Circuit Court of Appeals has noted that SSR 16–
1 3p “makes clear what [the Ninth Circuit’s] precedent already
2 required”:
3
4 that assessments of an individual’s testimony by an ALJ
5 are designed to “evaluate the intensity and persistence
6 of symptoms after the ALJ finds that the individual has
7 a medically determinable impairment(s) that could
8 reasonably be expected to produce those symptoms,” and
9 not to delve into wide-ranging scrutiny of the claimant’s
10 character and apparent truthfulness.
11
12 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16–3p) (alterations
13 omitted).
14
15 In discrediting the claimant’s subjective symptom testimony,
16 the ALJ may consider: “ordinary techniques of credibility
17 evaluation, such as . . . prior inconsistent statements concerning
18 the symptoms, and other testimony by the claimant that appears less
19 than candid; unexplained or inadequately explained failure to seek
20 treatment or to follow a prescribed course of treatment; and the
21 claimant’s daily activities.” Ghanim v. Colvin, 763 F.3d 1154,
22 1163 (9th Cir. 2014) (citation omitted). Inconsistencies between
23 a claimant’s testimony and conduct, or internal contradictions in
24 the claimant’s testimony, also may be relevant. Burrell v. Colvin,
25 775 F.3d 1133, 1137 (9th Cir. 2014). In addition, the ALJ may
26 consider the observations of treating and examining physicians
27 regarding, among other matters, the functional restrictions caused
28 by the claimant’s symptoms. Smolen, 80 F.3d at 1284; accord
1 Burrell, 775 F.3d at 1137. However, it is improper for an ALJ to
2 reject subjective testimony based “solely on a lack of objective
3 medical evidence to fully corroborate the claimant’s allegations.”
4 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
5 2009) (citation omitted).
6
7 The ALJ must make a credibility determination with findings
8 that are “sufficiently specific to permit the court to conclude
9 that the ALJ did not arbitrarily discredit claimant’s testimony.”
10 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation
11 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
12 2015) (“A finding that a claimant’s testimony is not credible must
13 be sufficiently specific to allow a reviewing court to conclude
14 the adjudicator rejected the claimant’s testimony on permissible
15 grounds and did not arbitrarily discredit a claimant’s testimony
16 regarding pain;” citation omitted). Although an ALJ’s
17 interpretation of a claimant’s testimony may not be the only
18 reasonable one, if it is supported by substantial evidence, “it is
19 not [the court’s] role to second-guess it.” Rollins v. Massanari,
20 261 F.3d 853, 857 (9th Cir. 2001).
21
22 B. Plaintiff’s Subjective Statements and Testimony
23
24 In her SSI application, Plaintiff alleged that she was unable
25 to work due to “three herniated disc[s],” post-traumatic stress
26 disorder (PTSD), depression, anxiety, and high blood pressure. (AR
27 198). On a function report dated March 3, 2015, Plaintiff wrote
28 that her conditions limited her ability to work because her anxiety
1 made it hard to leave the house, and the herniated discs in her
2 neck caused “an extreme amount of pain, when sitting for any length
3 of time or walking.” (AR 220). She wrote that on some days she
4 could not put on a bra or shirt due to the pain, she had “a very
5 hard time” raising her hands over her head, and she needed help
6 washing her hair due to numbness in her arms. (AR 221). Plaintiff
7 reported that she did “basic household chores when able,” such as
8 laundry, dishes, and some house cleaning. (AR 221). She prepared
9 meals two or three times a week, but she was limited because
10 standing for extended periods caused numbness, she lacked dexterity
11 in her hands, and was apt to “drop anything with any weight to it.”
12 (AR 222, 227). Plaintiff also did laundry once or twice a week,
13 if someone carried the basket for her. (AR 222). She could do
14 general cleaning, load the dishwasher, and dust. (AR 227). She
15 did gardening and yard work, and was sometimes able to mow if
16 someone helped to empty the grass catcher, but weeding was “next
17 to impossible” because using her hands to “pull small things”
18 caused cramping and numbness. (AR 224, 227). Plaintiff also fed
19 the cats and the dog, and tried to walk the dog twice a week. (AR
20 221). She indicated that she could shop for groceries and basic
21 household items. (AR 223).
22
23 Plaintiff reported that she was able to lift only five or ten
24 pounds. (AR 226). On some days, she could walk for about a quarter
25 of a mile before needing rest, but she could walk almost a mile on
26 good days. (AR 228). She stated that she could sit for half an
27 hour to an hour before needing “to get up and move around due to
28
1 pain in neck [and] lower back.” (AR 228). She could write for
2 about a half hour before her hands started cramping up. (AR 228).
3
4 At the hearing, on December 14, 2017, Plaintiff testified that
5 she lives with her husband and twenty-four year old daughter. (AR
6 44). Plaintiff stated that she “assist[s] [her] daughter in a[n]
7 at-home baking business.” (AR 41). She stated that she started
8 doing this “about eight months ago,” primarily because she “wasn’t
9 able to find work outside the home,” due to issues with her back
10 and neck, along with the fact that she was “missing about 90 percent
11 of [her] teeth,” which was a “real issue” for employers. (AR 42).
12 Plaintiff also explained that she started the work at home because
13 her husband was diagnosed with Alzheimer’s, and had “started
14 wandering,” so Plaintiff “had to pretty much stay home to watch
15 him.” (AR 42-43). Plaintiff further explained that her husband
16 is “permanently disabled at this point,” due to a recent car
17 accident,” so it is “convenient” for Plaintiff “to be there for
18 him and to help her [daughter].” (AR 43).
19
20 Plaintiff explained that the baking business entails making
21 “cakes, wedding cakes, and items along those lines,” and that she
22 “primarily do[es] all the baking for her [daughter],” while her
23 daughter “does all of the decorating.” (AR 42). She sits on a
24 stool while she is “working, doing the baking,” which involves
25 “mix[ing] the mix, throw[ing] it in a pan and put[ting] it in the
26 oven.” (AR 43). Her daughter “comes and pulls the pans out”
27 because Plaintiff “can’t lift them.” (AR 43). When asked how much
28 she makes, Plaintiff responded, “If she makes $600 a month, she’s
1 doing good,” apparently referring to her daughter’s business. (AR
2 42).
3
4 Plaintiff testified that she drives, when not taking her
5 medications for pain and anxiety, but can only drive on “surface
6 streets,” because highway driving gives her “real bad panic
7 attacks.” (AR 44-45). She stated that her husband drove her to
8 the hearing. (AR 45).
9
10 Plaintiff testified that she experiences pain in her upper
11 neck, which has progressively worsened since a car accident the
12 previous October, and it causes both arms and hands to go numb.
13 (AR 47). When she puts on a bra, the straps dig into her shoulders,
14 which “has some effect on the nerve” in her neck, causing both her
15 hands to “go completely numb” and be “useless.” (AR 47). She has
16 “good days” and days when her arms and hands are numb, and she and
17 her pain managements doctor were “discussing options on how to
18 resolve that.” (AR 47). However, because she was allergic to the
19 medications used in injections, her options were limited to being
20 “put to sleep” and having “nerve burning done in the back of [her]
21 neck,” or surgery, which her doctor “doesn’t feel is a good idea
22 at this point.” (AR 47). Plaintiff was waiting to find out if
23 she “could be a candidate for the nerve burning.” (AR 49).
24
25 Plaintiff testified that she can lift and carry “[p]robably
26 10 pounds, if that,” though it “depends on the day.” (AR 48). For
27 baking, Plaintiff remarked that she cannot lift “a 14 inch pan,”
28
1 but “can handle [the] smaller pans and cupcakes,” and otherwise,
2 “it varies.” (AR 48).
3
4 C. The ALJ’s Credibility Findings
5
6 The ALJ found that Plaintiff’s medically determinable
7 impairments could reasonably be expected to cause the alleged
8 symptoms, but her statements concerning the intensity, persistence
9 and limiting effects of these symptoms were “not entirely
10 consistent with the medical evidence and other evidence in the
11 record for the reasons explained in th[e] decision.” (AR 29).
12
13 The ALJ acknowledged that Plaintiff alleges disability due to
14 neck pain, back pain, and numbness in her hands due to neuropathy.
15 (AR 28). The ALJ then noted that Plaintiff “testified at the
16 hearing, however, that she has been working as a baker for her
17 daughter at home,” and that she does so apparently in part because
18 she must “provide care for her husband, who is disabled and recently
19 diagnosed with Alzheimer’s disease.” (AR 28-29).
20
21 The ALJ noted that while Plaintiff’s “physical examinations
22 in 2014 indicated tenderness to palpation of the cervical spine
23 region, decreased range of motion of the neck, and positive
24 cervical facet loading,” her neurological findings “were generally
25 normal.” (AR 29) (citing AR 311, 316, 321). The ALJ remarked that
26 later treatment records “indicate intact neurological findings.”
27 (AR 29) (citing AR 342, 347, 352-53, 357-58).
28
1 The ALJ noted that the examination by orthopedic consultant,
2 Dr. Elzik, revealed “tenderness of the midline and paraspinal
3 musculature of the neck” and limited range of motion of the
4 thoracolumbar spine, but negative straight leg raising bilaterally
5 in the sitting and supine positions. (AR 29; see AR 393). Dr.
6 Elzik’s examination also showed Plaintiff’s active range of motion
7 of the right upper extremity was restricted at the shoulder joint
8 at 90 degrees, but her range of motion was “better at 120 degrees
9 with passive movement.” (AR 29; see AR 393-94). Plaintiff’s
10 “neurological evaluation was also unremarkable for weakness or
11 sensory disturbances.” (AR 29; see AR 395). Dr. Elzik opined that
12 Plaintiff “could perform a range of medium work with occasional
13 postural activities,” with a limitation to occasional overhead
14 reaching with the right upper extremity. (AR 30; see AR 396-97).
15
16 The ALJ observed that Plaintiff’s treatment records “in the
17 latter part of 2015 continue[d] to reveal intact neurologic
18 functioning and gait despite limited range of motion of the right
19 shoulder, and tenderness to palpation of that joint and the
20 bilateral hips.” (AR 30) (citing AR 406, 409-10). The ALJ also
21 noted that treatment records in 2017 showed “tenderness to
22 palpation of the lumbar and bilateral sacroiliac region, [and]
23 positive lumbar facet loading,” but cervical spine and right upper
24 extremity findings “remained unchanged,” and “neurological
25 findings were also unremarkable.” (AR 30) (citing AR 596, 600-01,
26 605, 717).
27
28
1 The ALJ found that Dr. Elzik’s opinion was “consistent with
2 the generally benign examination findings documented by
3 [Plaintiff’s] pain management specialist, as well as [Plaintiff’s]
4 recent work history as described at the hearing.” (AR 31). The
5 ALJ thus gave Dr. Elzik’s opinion the “greatest weight” among the
6 medical opinions. (AR 31). The ALJ found that the consultative
7 examiners’ opined restriction to light work was “overly restrictive
8 in light of the lack of any significant diagnostic workups such as
9 MRI studies for the neck, back or shoulder.” (AR 31). The ALJ
10 noted there was also “no indication that [Plaintiff] has required
11 EMG studies for her complaints of upper extremity numbness.” (AR
12 31). In addition, the ALJ remarked that Plaintiff has undergone
13 “a stable course of conservative pain management without surgical
14 intervention.” (AR 31). The ALJ found, moreover, that Plaintiff’s
15 “capacity to work as a baker suggest[s] a higher level of physical
16 functioning” that is “more in line” with a range of medium work.
17 (AR 31). The ALJ thus assessed an RFC for medium work, with an
18 ability to lift and/or carry fifty pounds occasionally and twenty-
19 five pounds frequently, with occasional overhead reaching on the
20 right, among other restrictions. (AR 28).
21
22 D. Analysis
23
24 As set forth below, the ALJ’s evaluation of Plaintiff’s
25 subjective statements and testimony regarding hand pain and
26 limitations was supported by specific, clear and convincing reasons
27 backed by substantial evidence in the record. Plaintiff has failed
28 to identify any material error in the ALJ’s assessment.
1 First, the ALJ appropriately considered Plaintiff’s baking
2 activities to find that her “capacity to work as a baker suggests
3 a higher level of physical functioning” consistent with an ability
4 to perform the range of medium work set forth in the RFC. (AR 31).
5 Plaintiff disputes this finding, contending that she “does not work
6 as baker,” but instead simply “helps her daughter with her at-home
7 baking business.”5 (Joint Stip. at 6) (citing AR 41). However,
8 Plaintiff fails to demonstrate any material difference in this
9 characterization; she testified at the hearing that she “primarily
10 do[es] all the baking” for her daughter’s baking business, which
11 entails “mix[ing] the mix, throw[ing] it in a pan and put[ting] it
12 in the oven.” (AR 42-43). The ALJ accurately characterized this
13 as “work[ing] as a baker,” and reasonably found that it suggested
14 “a higher level of physical functioning” than Plaintiff claimed.
15 See Ghanim, 763 F.3d at 1165 (“Engaging in daily activities that
16 are incompatible with the severity of symptoms alleged can support
17 an adverse credibility determination.”); Molina v. Astrue, 674
18 F.3d 1104, 1113 (9th Cir. 2012) (“[T]he ALJ may discredit a
19 claimant’s testimony when the claimant reports participation in
20 everyday activities indicating capacities that are transferable to
21 a work setting”; “Even where those activities suggest some
22
5 Plaintiff also disputes the ALJ’s suggestion that
23 Plaintiff earns about $600 a month from baking, (Joint Stip. at 6;
citing AR 26), pointing out that her hearing testimony instead
24
indicates that her daughter’s business makes about $600 a month,
25 on a good month. (AR 42). However, even if the ALJ mis-
characterized Plaintiff’s earnings, any error is harmless because
26 the ALJ noted this income at step one, and still found that the
work did not amount to substantial gainful activity. (AR 26).
27 There is no indication that the ALJ considered these earnings in
the RFC finding or at steps four or five.
28
1 difficulty functioning, they may be grounds for discrediting the
2 claimant’s testimony to the extent that they contradict claims of
3 a totally debilitating impairment.”).
4
5 Plaintiff also takes issue with the ALJ’s statement that
6 Plaintiff started helping her daughter bake because “she was unable
7 to find work outside the home and because she must provide care
8 for her husband, who is disabled and recently diagnosed with
9 Alzheimer’s disease.” (Joint Stip. at 7) (quoting AR 29).
10 Plaintiff points out that she testified she could not find work
11 partly because of her back and neck issues, and contends that this
12 “is a valid reason to receive benefits.” (Joint Stip. at 7) (citing
13 AR 42). She also contends that caring for her husband is not a
14 basis to discount her complaints, the nature and extent of her care
15 for her husband “remains undeveloped” in the record, aside from
16 her testimony that she needed to “stay home to watch him” because
17 he had “started wandering,” due to Alzheimer’s. (Id.) (citing AR
18 42). Regardless, the ALJ’s statement accurately reflects
19 Plaintiff’s testimony. (See AR 42-43). Plaintiff’s professed
20 inability to find work to accommodate her limitations does not
21 undermine the ALJ’s findings regarding the extent of those
22 limitations and the availability of jobs in the national economy
23 to accommodate them. Moreover, the ALJ did not suggest that
24 Plaintiff provides physical assistance to her husband, or that such
25 assistance is a basis to discredit her complaints.
26
27 Plaintiff asserts that treatment notes consistently report
28 that she suffers neck pain that radiates bilaterally to her hands,
1 and that using her hands/upper extremities worsens the pain. (See
2 Joint Stip. at 8-9). However, the ALJ correctly observed that
3 Plaintiff’s neurological findings in the record were largely
4 normal, (see AR 26, 29-31; see, e.g., AR 342, 358, 363, 367, 395-
5 96, 415, 457-67, 535, 542, 592, 605, 621, 708, 721, 740, 756, 780,
6 801), and appropriately considered these normal findings, among
7 other evidence in the record, to discount the severity of
8 Plaintiff’s alleged hand pain and limitations. See Rollins, 261
9 F.3d at 857 (“While subjective pain testimony cannot be rejected
10 on the sole ground that it is not fully corroborated by objective
11 medical evidence, the medical evidence is still a relevant factor
12 in determining the severity of the claimant’s pain and its
13 disabling effects.”); SSR 16-3p, *5 (“objective medical evidence
14 is a useful indicator to help make reasonable conclusions about
15 the intensity and persistence of symptoms, including the effects
16 those symptoms may have on the ability to perform work-related
17 activities”).
18
19 While Plaintiff acknowledges these normal neurological
20 examinations, she contends that her cervical spine examinations
21 were generally abnormal, documenting “positive bilateral cervical
22 facet loading and tenderness to palpation over the bilateral
23 cervical facets throughout 2014, 2015, 2016, and 2017.” (Joint
24 Stip. at 8). However, the medical record also reflects largely
25 normal findings in other respects. For example, examinations from
26 2016 and 2017 showed mild to moderate tenderness, but intact
27 strength and sensation and negative straight leg raising, among
28 other findings. (See AR 630-32, 635-37, 641-43). Similarly, Dr.
1 Elzik’s one-time orthopedic examination on June 6, 2015, revealed
2 negative straight leg raising bilaterally in the sitting and supine
3 positions, full (5/5) strength and intact sensation in the upper
4 and lower extremities, and full pain-free range of motion in the
5 left upper extremity. (AR 393-95). The right upper extremity
6 generally had full pain-free range of motion, as well, with the
7 exception of the right shoulder, which showed some restricted range
8 of motion in the active range (90 degrees), but was “better at 120
9 degrees with passive movement.” (AR 29, 393-94). The ALJ accounted
10 for this latter finding by limiting Plaintiff to only occasional
11 overhead reaching on the right. (AR 28).
12
13 Plaintiff also disputes the ALJ’s reliance on the lack of any
14 EMG studies and “significant diagnostic workups such as MRI studies
15 for the neck, back or shoulder.” (Joint Stip. at 10) (quoting AR
16 31). Plaintiff contends that there is “no evidence that an EMG
17 was available” to her, and the ALJ cannot “us[e] the physician’s
18 choice of treatment to discredit [her] testimony.” (Id.). She
19 also contends that the ALJ “failed to reference” a cervical and
20 lumbar MRI from November 23, 2016. (Id.) (citing AR 637–38). The
21 MRI documented mild findings that prompted a diagnosis of cervical
22 and lumbar radiculopathy. (AR 638). However, these findings do
23 not demonstrate a need for further restrictions in the upper
24 extremities, or undermine the ALJ’s suggestion that, despite
25 Plaintiff’s complaints of neck pain and upper extremity numbness,
26 her physicians apparently did not find it necessary to obtain EMG
27 studies or “significant diagnostic workups” focused on Plaintiff’s
28 neck, shoulder, and upper back.
1 The ALJ’s determination that Plaintiff’s treatment involved a
2 “stable course of conservative pain medication without surgical
3 intervention,” (AR 31), was supported by the substantial evidence
4 in the record. While Plaintiff does not dispute that her treatment
5 “was arguably conservative, and did not require surgical
6 intervention,” she contends that this was not a basis to discount
7 her complaints because the medication sometimes did not help, and
8 her pain persisted. (Joint Stip. at 9-10). However, as Defendant
9 points out, Plaintiff often reported at least “fair” pain control.
10 (AR 702, 730, 735, 747, 751, 759, 767, 775, 783, 795, 800, 805,
11 809). Notwithstanding Plaintiff’s contention that “fair does not
12 mean good” (Joint Stip. at 20), she continued this conservative
13 course of treatment, and whatever symptoms persisted generally do
14 not seem to have caused serious distress or to have significantly
15 disrupted her daily activities. (See, e.g., AR 352, 357, 362, 366,
16 405, 591, 595, 600, 604, 614, 620, 624, 702, 707, 711, 716, 720,
17 730, 735, 739, 743, 747, 759, 767, 775, 779, 783, 796, 801, 805,
18 809). Moreover, Plaintiff’s symptoms also do not appear to have
19 prevented Plaintiff from regularly engaging in baking activities
20 for her daughter’s business – including mixing and pouring batter
21 and “put[ting] it in the oven” (see AR 43) - along with performing
22 other activities requiring a certain degree of manipulation, such
23 as driving and yard work (see AR 221, 224, 227, 44-45). Thus, the
24 ALJ reasonably considered Plaintiff’s conservative treatment with
25 pain medication as a basis, among other factors, to discount
26 Plaintiff’s subjective complaints. See Warre v. Comm’r of Soc.
27 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that
28
1 can be controlled effectively with medication are not disabling
2 for the purpose of determining eligibility for SSI benefits.”).
3
4 Accordingly, the ALJ appropriately discounted Plaintiff’s
5 complaints of debilitating hand pain and numbness, due to
6 Plaintiff’s ability to work as a baker and engage in other
7 activities, along with her conservative medication treatment,
8 generally normal neurological findings, and other factors.
9
10 CONCLUSION
11
12 For the foregoing reasons, the decision of the Commissioner
13 is AFFIRMED.
14
LET JUDGMENT BE ENTERED ACCORDINGLY.
15

16

17 Dated: April 28, 2020
18

19 ______________/s/_____________
ALKA SAGAR
20 UNITED STATES MAGISTRATE JUDGE
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037750. Public record. Not legal advice.