# April J. v. Andrew Saul

> District Court, C.D. California · May 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10037991

## Case

- **Court:** District Court, C.D. California
- **Decided:** May 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 APRIL J.,1 Case No. 2:19-cv-07349-JC

12 Plaintiff,
MEMORANDUM OPINION
13 v.
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ANDREW SAUL, Commissioner of
15 Social Security Administration,
16 Defendant.
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I. SUMMARY
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On August 23, 2019, plaintiff filed a Complaint seeking review of the
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Commissioner of Social Security’s denial of plaintiff’s application for benefits.
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The parties have consented to proceed before the undersigned United States
21
Magistrate Judge.
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This matter is before the Court on the parties’ cross motions for summary
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judgment, respectively “Plaintiff’s Motion” and “Defendant’s Motion”
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(collectively “Motions”). The Court has taken the Motions under submission
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27 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
28 Administration and Case Management of the Judicial Conference of the United States.
1
1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management
2 Order ¶ 5.
3 Based on the record as a whole and the applicable law, the decision of the
4 Commissioner is AFFIRMED. The findings of the Administrative Law Judge
5 (“ALJ”) are supported by substantial evidence and are free from material error.
6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
7 DECISION
8 On January 27, 2016, plaintiff filed an application for Disability Insurance
9 Benefits, alleging disability beginning on May 18, 2014, due to neck and back
10 pain, migraines, and “[l]ack of focus due to chronic head pain.” (Administrative
11 Record (“AR”) 299-304, 316). The ALJ subsequently examined the medical
12 record and heard testimony from plaintiff (who was represented by counsel) and a
13 vocational expert. (AR 94-120).
14 On June 18, 2018, the ALJ determined that plaintiff was not disabled
15 through the date of the decision. (AR 81-90). Specifically, the ALJ found:
16 (1) plaintiff suffered from the following severe impairments: spinal and shoulder
17 disorders per MRI testing, depression, and a history of meningitis with related
18 headaches and pain affecting the neck, back and shoulders (AR 83); (2) plaintiff’s
19 impairments, considered individually or in combination, did not meet or medically
20 equal a listed impairment (AR 84); (3) plaintiff retained the following residual
21 functional capacity:
22 [Plaintiff can] lift, carry, push and pull 20 pounds occasionally and 10
23 pounds frequently; she can stand and/or walk for 6 hours in an 8 hour
24 day and sit for 6 hours in an 8 hour day; she can frequently climb
25 ladders, ropes, scaffolds, ramps and stairs; she can frequently balance,
26 stoop, kneel, crouch and crawl and she is limited to occasional
27 overhead reaching with the left upper extremity and right upper
28 ///
2
1 extremity[;] [m]entally, [plaintiff] is limited to unskilled work and is
2 precluded from fast paced work.
3 (AR 85); (4) plaintiff could not perform any past relevant work (AR 88); (5) there
4 are jobs that exist in significant numbers in the national economy that plaintiff
5 could perform, specifically marker, cafeteria attendant, and sales attendant (AR
6 89-90); and (6) plaintiff’s statements regarding the intensity, persistence, and
7 limiting effects of subjective symptoms were not entirely consistent with the
8 medical evidence and other evidence in the record (AR 88).
9 On June 20, 2019, the Appeals Council denied plaintiff’s application for
10 review. (AR 1-3).
11 III. APPLICABLE LEGAL STANDARDS
12 A. Administrative Evaluation of Disability Claims
13 To qualify for disability benefits, a claimant must show that she is unable
14 “to engage in any substantial gainful activity by reason of any medically
15 determinable physical or mental impairment which can be expected to result in
16 death or which has lasted or can be expected to last for a continuous period of not
17 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
18 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R.
19 §§ 404.1505(a), 416.905. To be considered disabled, a claimant must have an
20 impairment of such severity that she is incapable of performing work the claimant
21 previously performed (“past relevant work”) as well as any other “work which
22 exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
23 1999) (citing 42 U.S.C. § 423(d)).
24 To assess whether a claimant is disabled, an ALJ is required to use the five-
25 step sequential evaluation process set forth in Social Security regulations. See
26 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
27 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
28 416.920). The claimant has the burden of proof at steps one through four – i.e.,
3
1 || determination of whether the claimant was engaging in substantial gainful activity
2 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or
3 || combination of impairments that meets or medically equals one of the conditions
4 || listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and
5 || retains the residual functional capacity to perform past relevant work (step 4).
6 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
7 || Commissioner has the burden of proof at step five — 7.e., establishing that the
8 | claimant could perform other work in the national economy. Id.
9 B. Federal Court Review of Social Security Disability Decisions
10 A federal court may set aside a dental of benefits only when the
11 || Commissioner’s “final decision” was “based on legal error or not supported by
12 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
13 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
14 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r
15 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation
16 || marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could
17 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at
18 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must
19 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec.
20 | Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if
21 | (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path
22 || may reasonably be discerned despite the error) (citation and quotation marks
23 || omitted).
24 Substantial evidence is “such relevant evidence as a reasonable mind might
25 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
26 || “substantial evidence” as “more than a mere scintilla, but less than a
27 || preponderance’) (citation and quotation marks omitted). When determining
28 || whether substantial evidence supports an ALJ’s finding, a court “must consider the

1 || entire record as a whole, weighing both the evidence that supports and the
2 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.
3 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
4 Federal courts review only the reasoning the ALJ provided, and may not
5 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
6 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
7 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
8 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
9 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
10 A reviewing court may not conclude that an error was harmless based on
11 || independent findings gleaned from the administrative record. Brown-Hunter, 806
12 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently
13 || conclude that an error was harmless, a remand for additional investigation or
14 | explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
15 | (9th Cir. 2015) (citations omitted).
16], IV. DISCUSSION
17 Plaintiff argues that the ALJ erred (1) in assessing her mental impairments
18 || in the residual functional capacity (“RFC”) finding and (2) in discrediting her
19 || testimony regarding her symptoms and limitations. (Plaintiff's Motion at 5-14).
20 || For the reasons discussed below, plaintiff has not shown that a reversal or remand
21 || is required on either of these grounds.
22 A. Substantial Evidence Supports the ALJ’s Assessment of
23 Plaintiff’s Mental Impairments
24 1. Pertinent Law
25 Before proceeding to steps four and five, an ALJ must first assess the
26 || claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e); Social Security Ruling
27 | ///
28 | ///

1 || (“SSR”) 96-8P at *1.* The RFC represents “the most [a claimant] can still do
2 || despite [his or her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
3 || When assessing RFC, an ALJ must evaluate “on a function-by-function basis”
4 || how particular impairments affect a claimant’s abilities to perform basic physical,
5 | mental, or other work-related functions. SSR 96-8P at *1 (citing 20 C.F.R.
6 || §§ 404.1545(b)-(d), 416.945(b)-(d)). An ALJ must account for limitations caused
7 || by all of a claimant’s impairments, even those that are “not severe.” SSR 96-8P at
8 | *5 Ganternal quotation marks omitted). In addition, an ALJ must consider all
9 || relevant evidence in the record, including medical records, lay evidence, and the
10 || effects of a claimant’s subjective symptoms (i.e., pain), that may reasonably be
11 || attributed to a medically determinable impairment. Robbins v. Soc. Sec. Admin.,
12 || 466 F.3d 880, 883 (9th Cir. 2006) (citations omitted); see 20 C.F.R.
13 | §§ 404.1545(a)(1), 416.945(a)(1).
14 ALJs have an “independent duty” to help claimants “fully and fairly develop
15 || the record” at every step of the sequential evaluation process. Tonapetyan v.
16 || Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and internal quotation
17 || marks omitted). An ALJ may satisfy this duty, in part, by ordering a consultative
18 || examination, but the ALJ has “broad latitude in deciding whether to do so. See
19 || Reed v. Massanari, 270 F.3d 838, 841-42 (9th Cir. 2001) (citations omitted). An
20 || ALJ’s duty to develop the record further is triggered only when the existing
21 || administrative record contains “ambiguous evidence” or is “inadequate to allow
22 || for proper evaluation of the [medical] evidence.” McLeod v. Astrue, 640 F.3d
23, |
74 *Social Security Rulings reflect the Social Security Administration’s (“SSA”) official
interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although
25 || they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of
6 the ... Administration[,]” and are entitled to deference if they are “consistent with the Social
Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Comm’r of Soc. Sec. Admin.,
27 || 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v.
Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security
28 rulings).

1 881, 885 (9th Cir. 2011) (citation omitted); see also 20 C.F.R. § 404.1519a(b)
2 (ALJ may order consultative examination “to try to resolve an inconsistency in the
3 evidence, or when the evidence as a whole is insufficient to [ALJ] to make a
4 determination or decision on [] claim”).
5 2. ALJ’s Findings
6 The ALJ found, at step two, that plaintiff’s depression is a severe
7 impairment. (AR 83). In assessing whether plaintiff met the criteria for any listed
8 impairments, the ALJ determined that plaintiff’s mental impairments limited her to
9 (1) “a moderate restriction in understanding, remembering, or applying
10 information”; (2) “no limitation related to interacting with others”; (3) “a moderate
11 limitation with regard to concentrating, persisting, or maintaining pace”; and
12 (4) “a moderate limitation related to adapting or managing oneself.” (AR 84-85).
13 When assessing plaintiff’s RFC, the ALJ noted that the record reflects
14 diagnosis and treatment for depression during the relevant period, but found that
15 the treatment record was “scant” with respect to this condition. (AR 87). The ALJ
16 observed that plaintiff “attended biweekly therapy sessions from August 24, 2016
17 through April 2018.” (AR 87) (citing AR 946). The ALJ noted mental health
18 treatment records from March 2018 reflecting a diagnosis of “major depressive
19 disorder, recurrent, moderate” and an “improved mood” with medication
20 (Zyprexa). (AR 87) (citing AR 818). The ALJ also noted that a mental status
21 examination on October 26, 2017, revealed “a depressed and anxious mood, a
22 constricted affect, avoidant eye contact and slowed activity,” but the ALJ
23 determined that the examination findings were “otherwise unremarkable and
24 showed a logical thought process, a normal thought content, normal cognition, and
25 normal insight and judgment.” (AR 87-88) (citing AR 836). The ALJ also took
26 into account the assessment of plaintiff’s pain management specialist, Dr.
27 Salvatore Danna, that plaintiff’s pain prevents her from engaging in work that
28 requires “mental agility.” (AR 88; see AR 525).
7
1 Overall, the ALJ determined “that the combination of [plaintiff’s] pain and
2 depressive conditions reasonably impose mental restrictions precluding the
3 performance of detailed, complex work and fast paced work,” but there was no
4 medical evidence that “would indicate an inability to perform unskilled work that
5 is not at a fast pace.” (AR 88). Thus, in assessing plaintiff’s mental RFC, the ALJ
6 found only that plaintiff “is limited to unskilled work and is precluded from fast-
7 paced work.” (AR 85).
8 3. Analysis
9 Plaintiff contends that the ALJ impermissibly “relied on [his] own lay
10 understanding to interpret the medical records and examination results to assess
11 the seriousness of [plaintiff’s] mental limitations in functional terms,” and the ALJ
12 “should have more fully and fairly developed the ambiguous record in this case,”
13 by ordering consultative examinations. (Plaintiff’s Motion at 6-8). Plaintiff
14 additionally disputes the ALJ’s review of the evidence regarding her mental
15 impairments and mental health treatment, including the ALJ’s reference to her
16 “improved mood” in one treatment note from March 9, 2018. (Id. at 7). Plaintiff
17 contends that this same treatment note also reflects plaintiff’s reports that she was
18 “feeling down, depressed or hopeless, and had little interest or pleasure in doing
19 things at the time.” (Id.) (citing AR 816, 818). Plaintiff points, as well, to records
20 showing that, in November 2016, she “presented with inappropriate mood affect”
21 (see AR 598); in December 2016, she “disclosed auditory hallucinations of
22 hearing two men plotting to kill her” (see AR 697); in February 2017, she
23 “presented with anxious and irritable mood and constricted affect,” her “posture
24 was tense, eye contact was intense, and activity was slowed,” and her “ attitude
25 towards the examiner was evasive/anxious and demanding” (see AR 675); in April
26 2017, she “presented with depressed mood and tearful affect” (see AR 651); in
27 June 2017, she “presented with tense posture, avoided eye contact, anxious mood
28 and constricted affect,” and she “reported auditory hallucination and paranoid
8
1 thought content” (see AR 618); and in October 2017, she presented with depressed
2 and anxious mood, constricted affect, tense posture, avoidant eye contact, and
3 slowed activity, and was described as evasive and anxious toward the examiner
4 (see AR 836). (Plaintiff’s Motion at 7).
5 Notwithstanding these contentions, substantial evidence supports the ALJ’s
6 assessment of plaintiff’s mental RFC limiting plaintiff to unskilled, non-fast-paced
7 work. (AR 85). At the time of the decision, plaintiff had been receiving mental
8 health treatment for less than two years, beginning on August 24, 2016, and the
9 record reflects that she experienced some improvement during that time. (See AR
10 818, 946). At the hearing, plaintiff testified that her symptoms had improved with
11 treatment, though she stated that it is “still hard,” as she “still sometimes”
12 experiences symptoms of paranoia, causing her to “look over [her] shoulder.” (AR
13 112-13). Plaintiff did not testify that any symptoms from her mental conditions
14 significantly limit her ability to function. While plaintiff contends, here, that her
15 medical records have continued to document symptoms such as anxious mood,
16 constricted affect, and reports of paranoid episodes, the ALJ appropriately
17 acknowledged such evidence, while also accurately noting plaintiff’s generally
18 normal mental status examination findings, as reflected in numerous records,
19 including logical thought process, normal thought content, normal cognition, and
20 normal insight and judgment. (AR 87-88; see AR 736, 740, 748, 753, 758, 764,
21 836).
22 The evidence in the record does not indicate any significant limitation in
23 mental functioning beyond what the ALJ assessed in the mental RFC. Moreover,
24 plaintiff has failed to demonstrate that the evidence in the record was ambiguous
25 or otherwise inadequate to support the ALJ’s evaluation of plaintiff’s mental
26 limitations. Accordingly, substantial evidence supports the ALJ’s mental RFC
27 determination, and the ALJ had no duty to develop the record further.
28 ///
9
1 B. The ALJ Did Not Err in Discrediting Plaintiff’s Testimony
2 1. Pertinent Law
3 When determining disability, an ALJ is required to consider a claimant’s
4 impairment-related pain and other subjective symptoms at each step of the
5 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when
6 a claimant presents “objective medical evidence of an underlying impairment
7 which might reasonably produce the pain or other symptoms [the claimant]
8 alleged,” the ALJ is required to determine the extent to which the claimant’s
9 statements regarding the intensity, persistence, and limiting effects of his or her
10 subjective symptoms (“subjective statements” or “subjective complaints”) are
11 consistent with the record evidence as a whole and, consequently, whether any of
12 the individual’s symptom-related functional limitations and restrictions are likely
13 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R.
14 §§ 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304, at *4-10.3 When an
15 individual’s subjective statements are inconsistent with other evidence in the
16 record, an ALJ may give less weight to such statements and, in turn, find that the
17 individual’s symptoms are less likely to reduce the claimant’s capacity to perform
18 work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases,
19 when there is no affirmative finding of malingering, an ALJ may “reject” or give
20 less weight to the individual’s subjective statements “only by providing specific,
21
22
3Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the
23 term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective
24 symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . .
. [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR
25 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. The SSA subsequently republished SSR 16-3p
making no change to the substantive policy interpretation regarding evaluation of a claimant’s
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subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “[when making]
27 determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply
“the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s
28 decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, *13 n.27.
10
1 || clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89."
2 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The
3 || clear and convincing standard is the most demanding required in Social Security
4 || cases.”’) (citation and quotation marks omitted).
5 An ALJ’s decision “must contain specific reasons” supported by substantial
6 || evidence in the record for giving less weight to a claimant’s statements. SSR 16-
7 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
8 || statement being rejected and the particular evidence in the record which
9 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation
10 | omitted). Unless there is affirmative evidence of malingering, the Commissioner’s
11 || reasons for rejecting a claimant’s testimony must be “clear and convincing.”
12 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks
13 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]”
14 || Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
15 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
16 || supported by substantial evidence, it is not the court’s role to second-guess it. See
17 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When
18 || an ALJ fails properly to discuss a claimant’s subjective complaints, however, the
19 || error may not be considered harmless “unless [the Court] can confidently conclude
20 || that no reasonable ALJ, when fully crediting the testimony, could have reached a
21 || different disability determination.” Stout, 454 F.3d at 1056; see also Brown-
22 || Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting
23 || claimant testimony “will usually not be harmless’’).
24
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6 “It appears to this Court, based upon its research of the origins of the requirement that
there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s
27 || subjective statements absent an affirmative finding of malingering, that such standard of proof
remains applicable even when SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5
28 (citations omitted).
11

1 2. Plaintiff’s Statements and Testimony
2 On March 28, 2016, plaintiff completed a Headache Questionnaire stating
3 the following: She suffered constant headaches on a daily basis, described as a
4 sharp, stabbing pain accompanied by pressure, all over her head, making it
5 difficult to move or focus. (AR 325-26). The pain increases with “any body
6 movement,” talking or loud noises, heat, and stress. (AR 325-26). To alleviate it,
7 she takes pain medication and lies down for hours with bags of ice on her head,
8 which enables her “to get up and move for a short time” (AR 325). The
9 medications have helped reduce the pain, “but nothing takes the pain away
10 completely.” (AR 327).
11 At the hearing on May 24, 2018, plaintiff testified to the following:
12 She last worked in May 2014, when she was hospitalized with viral meningitis,
13 and was “bedridden” for “a long time” after. (AR 102-03). The condition caused
14 plaintiff’s headaches, back pain, and neck pain, and “the pain never stopped.”
15 (AR 102-04, 114). Plaintiff now “feels like [she] can’t live [her] life.” (AR 104).
16 She experiences “very bad migraines constantly during the day,” that on some
17 days feel like she is being kicked all over her head. (AR 107-08). Doctors have
18 told her that surgery is not an option, and have recommended physical therapy.
19 (AR 114). She went to physical therapy twice a week for “a couple weeks,” but
20 had not gone for “over a month.” (AR 116). The physical therapy included
21 massages, which help “for the moment” to “relieve that tension,” but “exercises
22 flare it up.” (AR 114). She has also been experiencing anxiety and paranoia for a
23 little over a year, for which she has been taking medication and seeing a counselor
24 every two weeks. (AR 111-12). These symptoms have improved with treatment.
25 (AR 112-13).
26 Plaintiff further testified: She lives with her elderly father and two children
27 (ages 16 and 22). (AR 99). She is “pretty much at home all the time.” (AR 102).
28 When she awakes in the morning, she is “good for maybe three hours” of activity.
12
1 (AR 100). She drops her daughter off at school, runs the dishwasher, has a bowl
2 of cereal, and then must lie down and ice her head. (AR 100). She basically lies
3 down in bed for the rest of the day, watching television, and then gets up for
4 dinner. (AR 100-01, 105-06). She gets up on some days to pick her daughter up
5 from school. (AR 100-01).
6 She additionally testified: She can sit for only a half hour, and stand for
7 “less than a minute” before her back starts hurting. (AR 101-02). She cannot
8 walk for “very long.” (AR 106). She can lift a couple of pounds, but not ten
9 pounds. (AR 106-07). She does the laundry with her daughter, and she cooks
10 meals, sometimes with the help of her daughter or her son’s girlfriend. (AR 104-
11 05). She shops for groceries, drives her father to doctors’ appointments about
12 twice a month, and drives herself to appointments about once a week, sometimes
13 more, though it “hurts” to do so. (AR 99, 101, 105). When she shops, “the people
14 at the store help [her] to get milk or anything else,” and her children carry the
15 groceries inside when she gets home. (AR 106).
16 3. ALJ’s Findings
17 The ALJ found that plaintiff’s “medically determinable impairments could
18 reasonably be expected to cause symptoms,” but determined that her “statements
19 concerning the intensity, persistence and limiting effects of these symptoms” were
20 “not entirely consistent with the medical evidence and other evidence in the record
21 for the reasons explained in th[e] decision.” (AR 88). The ALJ found that
22 plaintiff’s allegations of constant, daily, debilitating pain and“markedly limited
23 functioning” were inconsistent with the treatment and consultative examination
24 records, as well as the objective findings and treatment records, which “show
25 improvement of pain with treatment,” according to the ALJ. (AR 88). The ALJ
26 noted, for example, a treatment record from May 28, 2015, indicating that
27 plaintiff’s reported that she felt “generally well,” that her treatment with Dr. Danna
28 had resulted in “better control” of pain symptoms, and that she experienced a
13
1 “large decrease in pain” following osteopathic manipulative treatment. (AR 86)
2 (citing AR 445). The ALJ also noted a record from September 14, 2017,
3 indicating that plaintiff’s “pain ha[d] improved,” and a record on December 11,
4 2017, reflecting that plaintiff was “doing well.” (AR 86-87) (citing AR 828 (Dec.),
5 838 (Sept.)). In addition, the ALJ pointed to “multiple” occasions in the treatment
6 records where plaintiff’s pain was assessed as a 0 out of 10. (AR 86) (citing AR
7 807, 816, 836, 843, 874). The ALJ also took into account that Dr. Danna had
8 remarked that plaintiff could perform housework and light chores. (AR 86, 88)
9 (citing AR 525). The ALJ found, moreover, that plaintiff’s claim of disability was
10 inconsistent with her failure to follow up with physical therapy treatment, despite
11 showing some improvement. (AR 87) (citing AR 944).
12 The ALJ also reviewed a consultative internal medical evaluation by Dr. Jay
13 Dhiman, which revealed “hypertrophy of the nasal turbinates and tenderness of the
14 occipital nerves consistent with occipital neuralgia,” as well as “muscle spasm and
15 tenderness of the paracervical and trapezius muscles,” but it also showed “no
16 cervical radicular signs or symptoms,” along with a normal gait, normal
17 coordination, intact sensation and motor function, and normal range of motion in
18 the shoulder and lumbar and cervical spine. (AR 87) (citing AR 498-503).
19 4. Analysis
20 Upon review of the record, the Court concludes that the ALJ provided
21 specific, clear and convincing, legitimate reasons to discount plaintiff’s
22 allegations, based on inconsistencies with the treatment records, objective
23 examinations, and daily activities, along with plaintiff’s failure to follow up with
24 prescribed treatment. These findings are supported by substantial evidence in the
25 record.
26 Plaintiff disputes the ALJ’s finding that her symptoms improved with
27 treatment. (Plaintiff’s Motion at 11). She contends that the ALJ failed to consider
28 the records in context. (Id. at 11-12). Plaintiff notes, for example, that when a
14
| || treatment record described her as doing “generally well,” on May 28, 2015, she
2 || had been prescribed powerful medications, including fentanyl, Percocet, and
3 || sumatriptan. (Id. at 11) (citing AR 86, 445). Plaintiff also points out that despite
4 || Dr. Danna’s report of improvement with treatment on September 14, 2015,
5 || plaintiff continued to suffer from headaches and appeared with “disuse atrophy
6 || and deconditioning.” (Id. at 12) (quoting AR 518). When Dr. Danna observed
7 || plaintiff's improvement on April 28, 2017, the doctor also noted that plaintiff
8 || presented as “a weakened and pallored individual” who continued to experience
9 || muscle strain, spasms of cervical spine with tension, and traction cephalgia. (Id.)
10 | (quoting AR 507). Similarly, plaintiff disputes the ALJ’s reliance on records
11 | rating plaintiff's pain as a 0 out of 10 because, plaintiff contends, “‘other records
12 || during the same period showed [plaintiff] complaining of headaches to various
13 || providers.” (Id. at 13) (citing AR 838, 913, 937). Plaintiff asserts that the record,
14 || as a whole, “demonstrates ongoing complaints of headaches not inconsistent with
15 | [plaintiff's] testimony.” (Id.).
16 Notwithstanding these contentions, plaintiff fails to show that the ALJ
17 || overlooked material evidence or otherwise erred in considering the medical
18 || treatment records when evaluating plaintiff's symptom testimony. Plaintiff
19 || testified that her pain was daily, constant and unremitting. (See AR 107, 325,
20 || 327). Thus, even if the records reflect that there was still pain on some days, the
21 || ALJ reasonably found that plaintiffs allegations were inconsistent with the record
22 || overall, which indicated at least periodic improvement and relief from pain. See,
23 || Bailey v. Colvin, 659 F. App’x 413, 415 (9th Cir. 2016) (evidence that
24 || “impairments had been alleviated by effective medical treatment,” to the extent
25 || inconsistent with “alleged total disability[,]” specific, clear, and convincing reason
26 || for discounting subjective complaints) (citing Warre v. Comm’r of Soc. Sec
27 || Admin, 439 F.3d 1001, 1006 (9th Cir. 2006)).
28 | ///
15

1 Plaintiff contends that the ALJ improperly relied on her activities of daily
2 living to reject her testimony. (Plaintiff’s Motion at 13). She argues that the ALJ
3 inaccurately characterized her testimony “as describing a bedridden individual,”
4 despite that she testified to performing some light housework and chores. (Id. at
5 12-13). Plaintiff asserts that the ALJ thereby “attempt[ed] to manufacture an
6 inconsistency between [plaintiff’s] testimony and the medical records” by
7 distorting plaintiff’s account of her daily activities. (Id. at 12).
8 However, even if plaintiff did not claim to be entirely bedridden, the ALJ
9 accurately observed that plaintiff “testified that she basically was homebound and
10 performed minimal activities due to headaches.” (AR 86). Plaintiff testified that
11 she was “pretty much at home all the time” (AR 102), and that she could manage
12 only about three hours of activity in the morning, during which she drops her
13 daughter at school, runs the dishwasher “if [she is] able,” and has a bowl of cereal
14 (AR 100). After that, according to plaintiff, she lies down in bed “for the rest of
15 the day.” (AR 100-01). She also stated that she can sit for only a half hour, and
16 stand for “less than a minute” before her back starts hurting. (AR 101-02).
17 Despite this, upon questioning, plaintiff also acknowledged that she prepares
18 meals, does laundry with her daughter, shops for groceries, drives herself and her
19 father to doctors’ appointments, and picks her daughter up from school. (AR 101,
20 104-05). The extent of these activities undermines plaintiff’s claim that she could
21 basically only function, in a very limited fashion, for about three hours in the
22 morning, and must spend the rest of the time in bed due to severe, constant pain.
23 The record thus supports the ALJ’s impression that plaintiff was capable of more
24 activity than many of her statements suggested, and she seemed to downplay the
25 extent of her activities and abilities. See Reddick, 157 F.3d at 722 (ALJ may
26 consider daily activities to extent plaintiff’s “level of activity [is] inconsistent with
27 [the] . . . claimed limitations”); cf. Molina, 674 F.3d at 1113 (“Even where
28 [claimant’s] activities suggest some difficulty functioning, they may be grounds
16
1 || for [giving less weight to] the claimant’s testimony to the extent that they
2 || contradict claims of a totally debilitating impairment.”) (citations omitted); see,
3 || e.g., Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (claimant’s ability to
4 || “take care of her personal needs, prepare easy meals, do light housework and shop
5 || for some groceries . . . may be seen as inconsistent with the presence of a
6 || condition which would preclude all work activity”) (citing Fair v. Bowen, 885
7 | F.2d 597, 604 (9th Cir. 1989)).
8 Plaintiff argues that the ALJ improperly relied on her failure to follow up
9 || with physical therapy treatment. (Plaintiff's Motion at 13). Plaintiff contends that
10 || there was “a good reason for the noncompliance” here because physical therapy
11 || was not helpful. (Id.). She points to her testimony that physical therapy made her
12 | symptoms flare up. (Id.) (citing AR 114, 116). She also asserts that when she
13 | “tried physical therapy in the past,” Dr. Danna noted in November 2016 that it was
14 | not helpful, and worsened plaintiff's neck and back pain. (Id.) (citing AR 511).
15 However, plaintiff's physical therapist did in fact remark that plaintiff “had
16 || made slight improvements,” after just six sessions in November and December
17 | 2017. (AR 944; see AR 936-43). At the hearing, plaintiff stated that she did the
18 || therapy for just couple weeks” before stopping. (AR 116). She indicated that
19 || her doctors had prescribed physical therapy as essentially her only treatment
20 || option (aside from pain medications). (AR 114, 117). Plaintiff acknowledged that
21 || the massages, which were part of the physical therapy, provided some relief. (AR
22 || 114). She stated that “[t]he exercises flare it up, so they do like really light
23 || exercises.’”” (AR 114). According to the physical therapy provider, plaintiff was
24 || discharged because she “did not follow up to continue with treatments.” (AR
25 || 944). Considering that plaintiff discontinued this prescribed treatment after just a
26
2700
This statement arguably suggests that the “really light exercises” did not cause serious
28 flaring up.
17

1 brief period in which she demonstrated some improvement and felt some relief,
2 the ALJ reasonably relied on this as a further basis to discount plaintiff’s
3 testimony.6 See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (in
4 discrediting the claimant’s subjective symptom testimony, the ALJ may consider
5 “unexplained or inadequately explained failure to seek treatment or to follow a
6 prescribed course of treatment”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)
7 (“Our case law is clear that if a claimant complains about disabling pain but fails
8 to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may
9 use such failure as a basis for finding the complaint unjustified or exaggerated.”)
10 (citing Fair, 885 F.2d at 603).
11 Accordingly, plaintiff has failed to identify any material error in the ALJ’s
12 evaluation of the her subjective testimony regarding her symptoms and limitations.
13 V. CONCLUSION
14 For the foregoing reasons, the decision of the Commissioner of Social
15 Security is AFFIRMED.
16 LET JUDGMENT BE ENTERED ACCORDINGLY.
17 DATED: May 19, 2020
18 _____________/s/____________________
Honorable Jacqueline Chooljian
19
UNITED STATES MAGISTRATE JUDGE
20
21
22
23
24
25
26
6The ALJ specifically stated that “physical therapy records reflect that [plaintiff] was
27 discharged from treatment, despite slight improvements with therapy, due to [plaintiff’s] failure
to follow up with treatment.” (AR 87) (citing AR 944). The ALJ found that plaintiff’s
28 “noncompliance with treatment is inconsistent with her assertions of disability.” (AR 87).
18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037991. Public record. Not legal advice.