“Even 27 when the evidence is susceptible to more than one rational interpretation, [the 28 court] must uphold the ALJ’s findings if they are supported by inferences 1 reasonably drawn from the record.”
How later courts described this case
- “Even 27 when the evidence is susceptible to more than one rational interpretation, [the 28 court] must uphold the ALJ’s findings if they are supported by inferences 1 reasonably drawn from the record.”
- “the ALJ may consider . . . 19 unexplained or inadequately explained failure . . . to follow a prescribed course 20 of treatment”
- conflicting medical professional findings a 28 valid consideration in discounting an opinion
- an ALJ may consider a variety of factors in 25 weighing a claimant’s believability, including ordinary techniques of credibility 26 evaluation, prior inconsistent statements, and testimony by the claimant that 27 “appears less than candid”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 EASTERN DIVISION
11 BRIDGET A. A.,1 ) Case No. 5:20-cv-01163-JDE
)
12 )
Plaintiff, ) MEMORANDUM OPINION AND
13 ) ORDER
)
14 v. )
)
15 ANDREW SAUL, ) )
Commissioner of Social Security, )
16
)
)
17 Defendant. )
18
19 Plaintiff Bridgett A. A. (“Plaintiff”) filed a Complaint on June 8, 2020,
20 seeking review of the Commissioner’s denial of her applications for disability
21 insurance benefits (“DIB”) and supplemental security income (“SSI”). The
22 parties filed a Joint Submission (“Jt. Stip.”) regarding the issues in dispute on
23 May 18, 2021. The matter now is ready for decision.
24
25
26
1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P.
27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and
Case Management of the Judicial Conference of the United States.
28
1 I.
2 BACKGROUND
3 Plaintiff protectively filed for DIB and SSI on February 24, 2017, alleging
4 disability commencing November 14, 2016. AR 1092, 1255-59, 1261-69. On
5 February 21, 2019, after her applications were denied (AR 1136-37, 1158-59),
6 Plaintiff, represented by counsel, appeared in Moreno Valley, California, and
7 testified via video before an Administrative Law Judge (“ALJ”) presiding in
8 Albuquerque, New Mexico. AR 16, 1090-1105, 1114-15. A vocational expert
9 (“VE”) also testified telephonically. AR 16, 1092, 1105-1113.
10 On June 6, 2019, the ALJ found Plaintiff was not disabled. AR 16, 19-
11 33.2 The ALJ found Plaintiff met the insurance status requirements of the
12 Social Security Act (“SSA”) through March 31, 2022. AR 21. Although
13 Plaintiff received earnings in 2017, the ALJ found, in an abundance of caution,
14 that Plaintiff had not engaged in substantial gainful activity since her alleged
15 onset date. AR 22. The ALJ concluded Plaintiff has the following severe
16 impairment: “residual effects status-post right hip surgeries.” AR 22-24. The
17 ALJ also found Plaintiff does not have an impairment or combination of
18 impairments that meets or medically equals a listed impairment (AR 24-25),
19 and she has the RFC to perform light work3 except (AR 25):
20
21 2 Portions of the AR, including the ALJ’s decision, appear out of order.
22
3 “Light work” is defined as
23 lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may
24
be very little, a job is in this category when it requires a good deal of
25 walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered
26 capable of performing a full or wide range of light work, [a claimant]
27 must have the ability to do substantially all of these activities.
20 C.F.R. §§ 404.1567(b), 416.967(b); see also Aide R. v. Saul, 2020 WL 7773896, *2
28 n.6 (C.D. Cal. Dec. 30, 2020).
1 [Plaintiff] can only frequently operate foot controls, bilaterally.
2 [Plaintiff] can only occasionally climb ramps, stairs, ladders, ropes,
3 or scaffolds. Additionally, [Plaintiff] can only frequently balance or
4 stoop, but can only occasionally kneel, crouch, or crawl. Similarly,
5 [Plaintiff] can only frequently be required to work in conditions of
6 unprotected height, with moving mechanical parts, in conditions of
7 extreme cold, with vibration, or with dust, odors, fumes, and other
8 pulmonary irritants. Lastly, [Plaintiff] is limited to working in
9 conditions of moderate noise.
10 The ALJ next found that Plaintiff was unable to perform her past relevant
11 work as a Child Monitor (Dictionary of Occupational Titles [“DOT”] 301.677-
12 010) or General Merchandise Salesperson (DOT 279.357-054). AR 29-30. The
13 ALJ also found that Plaintiff, at 37 years old on the alleged onset date, is
14 defined as a younger individual. AR 30. The ALJ further found that Plaintiff
15 has at least a high school education4 and can communicate in English. AR 31.
16 The ALJ then found that, if Plaintiff had the RFC to perform a full range
17 of light work, a Medical-Vocational rule would direct a finding of not disabled.
18 AR 31. But, as Plaintiff’s ability to perform the requirements of light work was
19 impeded by additional limitations, the ALJ consulted the testimony of the VE.
20 AR 31. Considering Plaintiff’s age, education, work experience, RFC, and the
21 VE’s testimony, the ALJ concluded Plaintiff was capable of performing jobs
22 that exist in significant numbers in the national economy, including: Lamp-
23 shade Assembler (DOT 739.684-094), Lens-block Gauger (DOT 716.687-030),
24 and Call-out Operator (DOT 237.367-014). AR 31-33. Thus, the ALJ found
25 Plaintiff was not under a “disability,” as defined in the SSA, from the alleged
26 onset date through the date of the decision. AR 33.
27
4 Plaintiff explained at her hearing that she has “[s]ome college.” AR 1093.
28
1 Plaintiff submitted further evidence to the Appeals Council and sought
2 review of the ALJ’s decision. AR 2. The Appeals Council found the evidence
3 that fell within the relevant period did not show a reasonable probability that it
4 would change the outcome. AR 2. Regarding evidence dated after the ALJ’s
5 decision, the Appeals Council instructed that Plaintiff could file a new claim to
6 obtain review of that evidence. AR 2. Accordingly, the Appeals Council denied
7 review, making the ALJ’s decision the agency’s final decision. AR 1-7.
8 II.
9 LEGAL STANDARDS
10 A. Standard of Review
11 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s
12 decision to deny benefits. The ALJ’s findings and decision should be upheld if
13 they are free from legal error and supported by substantial evidence based on
14 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
15 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
16 Substantial evidence means such relevant evidence as a reasonable person
17 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504
18 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a
19 preponderance. Id.
20 To assess whether substantial evidence supports a finding, the court
21 “must review the administrative record as a whole, weighing both the evidence
22 that supports and the evidence that detracts from the Commissioner’s
23 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the
24 evidence can reasonably support either affirming or reversing,” the reviewing
25 court “may not substitute its judgment” for that of the Commissioner. Id. at
26 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even
27 when the evidence is susceptible to more than one rational interpretation, [the
28 court] must uphold the ALJ’s findings if they are supported by inferences
1 reasonably drawn from the record.”), superseded by regulation on other
2 grounds as stated in Thomas v. Saul, 830 F. App’x 196, 198 (9th Cir. 2020).
3 Lastly, even if an ALJ errs, the decision will be affirmed where such
4 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to
5 the ultimate nondisability determination,” or if “the agency’s path may
6 reasonably be discerned, even if the agency explains its decision with less than
7 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).
8 B. The Five-Step Sequential Evaluation
9 When a claim reaches an ALJ, the ALJ conducts a five-step sequential
10 evaluation to determine at each step if the claimant is or is not disabled. See
11 Ford v. Saul, 950 F.3d 1141, 1148-49 (9th Cir. 2020); Molina, 674 F.3d at
12 1110.
13 First, the ALJ considers whether the claimant currently works at a job
14 that meets the criteria for “substantial gainful activity.” Molina, 674 F.3d at
15 1110. If not, the ALJ proceeds to a second step to determine whether the
16 claimant has a “severe” medically determinable physical or mental impairment
17 or combination of impairments that has lasted for more than twelve months.
18 Id. If so, the ALJ proceeds to a third step to determine whether the claimant’s
19 impairments render the claimant disabled because they “meet or equal” any of
20 the “listed impairments” set forth in the Social Security regulations at 20
21 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec.
22 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). If the claimant’s impairments do
23 not meet or equal a “listed impairment,” before proceeding to the fourth step
24 the ALJ assesses the claimant’s RFC, that is, what the claimant can do on a
25 sustained basis despite the limitations from her impairments. See 20 C.F.R.
26 §§ 404.1520(a)(4), 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p.
27 After determining the claimant’s RFC, the ALJ proceeds to the fourth
28 step and determines whether the claimant has the RFC to perform her past
1 relevant work, either as she “actually” performed it when she worked in the
2 past, or as that same job is “generally” performed in the national economy. See
3 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot
4 perform her past relevant work, the ALJ proceeds to a fifth and final step to
5 determine whether there is any other work, in light of the claimant’s RFC, age,
6 education, and work experience, that the claimant can perform and that exists
7 in “significant numbers” in either the national or regional economies. See
8 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can
9 do other work, she is not disabled; but if the claimant cannot do other work
10 and meets the duration requirement, the claimant is disabled. See id. at 1099.
11 The claimant generally bears the burden at steps one through four to
12 show she is disabled or meets the requirements to proceed to the next step and
13 bears the ultimate burden to show she is disabled. See, e.g., Ford, 950 F.3d at
14 1148; Molina, 674 F.3d at 1110. However, at Step Five, the ALJ has a
15 “limited” burden of production to identify representative jobs that the claimant
16 can perform and that exist in “significant” numbers in the economy. See Hill v.
17 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.
18 III.
19 DISCUSSION
20 The parties present two disputed issues, reordered as (Jt. Stip. at 4):
21 Issue No. 1: Did the ALJ properly consider Plaintiff’s testimony
22 concerning pain, symptoms, and level of limitation5; and
23
5 Before the ALJ’s decision, SSR 16-3p went into effect. See SSR 16-3p, 2016
24
WL 1119029 (Mar. 16, 2016). SSR 16-3p provides that “we are eliminating the use of
25 the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this
term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is
26
not an examination of an individual’s character” and requires that the ALJ consider
27 all of the evidence in an individual’s record when evaluating the intensity and
persistence of symptoms. Id.; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th
28
1 Issue No. 2: Did the ALJ properly evaluate the treating physician
2 opinion.
3 A. Subjective Symptom Testimony
4 In Issue No. 1, Plaintiff contends that the ALJ improperly assessed her
5 subjective testimony regarding her pain, symptoms, and level of limitation. Jt.
6 Stip. at 4, 14-18
7 1. Applicable Law
8 Where a claimant produces objective medical evidence of an impairment
9 that could reasonably be expected to produce the pain or other symptoms
10 alleged, absent evidence of malingering, “the ALJ may reject the claimant's
11 testimony about the severity of those symptoms only by providing specific,
12 clear, and convincing reasons for doing so.” Lambert v. Saul, 980 F.3d 1266,
13 1277 (9th Cir. 2020) (citations and internal quotation marks omitted); Moisa v.
14 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). The ALJ’s findings “must be
15 sufficiently specific to allow a reviewing court to conclude that the [ALJ]
16 rejected [the] claimant’s testimony on permissible grounds and did not
17 arbitrarily discredit the claimant’s testimony.” Moisa, 367 F.3d at 885 (citation
18 omitted). But if the ALJ’s assessment of the claimant’s testimony is reasonable
19 and is supported by substantial evidence, it is not the Court’s role to “second-
20 guess” it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Finally,
21 the ALJ’s finding may be upheld even if not all the ALJ’s reasons for rejecting
22
23 Cir. 2017) (as amended). Thus, the adjudicator “will not assess an individual’s overall
character or truthfulness in the manner typically used during an adversarial court
24
litigation. The focus of the evaluation of an individual’s symptoms should not be to
25 determine whether he or she is a truthful person.” SSR 16-3p, 2016 WL 1119029, at
*10. SSR 16-3p’s elimination of the word “credibility” from the Agency’s subjective-
26
symptom evaluation “does not, however, alter the standards by which courts will
27 evaluate an ALJ’s reasons for discounting a claimant’s testimony.” Elizabeth B. v.
Comm’r Soc. Sec., 2020 WL 1041498, *3 (W.D. Wash. Mar. 4, 2020).
28
1 the claimant’s testimony are upheld. See Batson v. Comm’r Soc. Sec. Admin.,
2 359 F.3d 1190, 1197 (9th Cir. 2004).
3 2. Hearing Testimony
4 The February 2019 hearing is summarized as follows. Plaintiff last
5 worked in 2016 as a nanny. AR 1094. That job ended when a family member
6 moved in to watch the kids and she was no longer needed to watch them. Id.
7 After the nanny position, through Redlands Agency, she found a job
8 working for a sign company that made LED light boards. AR 1094. That work
9 eventually became too difficult for her because it required standing for long
10 periods of time, so she quit. AR 1094-95.
11 After the sign company, she continued to look for employment but could
12 not find anything. AR 1095. Then she began having pain in her right thigh,
13 limiting her ability to sit and stand. AR 1095. She continued to search for full-
14 time employment through the Agency and on her own by searching the
15 internet. AR 1095-96. She looked for customer service and nanny positions.
16 AR 1096. Although she did not receive any offers, if she had, she would have
17 tried to work. AR 1096. She also received unemployment benefits for about a
18 year in 2017 and then other disability benefits. AR 1095-96. Even if she had
19 accepted employment, she does not know how long she would have lasted due
20 to the pain, “but [she] would have at least tried.” AR 1096. In the customer
21 service positions, she believes sitting for long periods of time “would have
22 really hurt [her].” Id. She stopped looking for work in early 2018. AR 1097.
23 She was experiencing a lot of pain at the time and medical professionals
24 discovered her prosthetic was loose and she therefore needed surgery. Id.
25 Plaintiff lives with her mother and grandmother in a senior mobile home
26 park. AR 1097. She was permitted to stay there, even though it is reserved for
27 residents 55 and over, so she could recover from surgery. Id.. She is trying to
28 move out but lacks funds to do so. Id.
1 In the morning, she can get up, get out of bed, and clean and dress
2 herself without help from her mother or grandmother. AR 1098. It takes her a
3 while to get out of bed because she has limited movement and stiffness in the
4 morning; after arising, she generally stays in the mobile home because it’s
5 comfortable. Id. She will stay there unless she needs to go to the grocery store
6 or places like that. AR 1099. She can drive and drove to the hearing. AR 1093.
7 Plaintiff has two kids, ages seven and eleven, and she does her best to
8 cook for them and do their laundry. AR 1098-99. She shares custody of her
9 children with her ex-husband. AR 1098. They are with her every other week.
10 AR 1098-99. When Plaintiff’s legs hurt, her mother will sometimes take the
11 children to school. AR 1099. If her mother is not feeling well, Plaintiff will get
12 up and take them, and pick them up later. Id.
13 To pass time, Plaintiff watches movies or TV, but she mostly just lays in
14 her mother’s bed once her mother gets up. AR 1100. Plaintiff uses her mother’s
15 bed because it is electric and can lift her head up. Id.
16 Plaintiff’s doctor said she cannot yet resume physical therapy, indicating
17 that she needs more time to recover. AR 1100. Her doctor said she should start
18 after six weeks, but, as of the hearing, it had been seven weeks and he said she
19 is still not ready. AR 1101. At this point, her doctor just wants her to walk
20 daily to keep her leg moving. AR 1100. If she walks for longer than 10 or 15
21 minutes, however, the nerves in her leg cause pain. AR 1101. Plaintiff still uses
22 a crutch when she walks due to weakness on her side. AR 1101-02. She
23 brought the crutch to the hearing. AR 1102.
24 Plaintiff’s main problem preventing her from working full time is sitting
25 and standing for long periods because it “causes the nerves and the muscles to
26 go off,” causing pain. AR 1101. She can sit or stand for about 10 to 15
27 minutes. Id. If she visits the mall or somewhere that will require too much
28 walking, she will use a wheelchair. AR 1102. She does not think she could
1 walk a city block, but she can walk about 15 minutes in the grocery store. Id.
2 Plaintiff also has difficulty driving long distance. Id. Further, Plaintiff has
3 migraine headaches, about three a month, that affect her ability to work
4 because she has to take time off to control them. Id. Medication sometimes
5 helps her migraines. AR 1103.
6 Plaintiff has had six surgeries and a revision in 2015. AR 1103. She is
7 prone to dislocations, and her surgeries have been related to those repeated
8 dislocations. AR 1104. In terms of future treatment, doctors have only
9 recommended physical therapy when she is ready. AR 1104.
10 3. Analysis
11 The ALJ provided a summary of Plaintiff’s testimony and found her
12 medically determinable impairments could reasonably be expected to cause the
13 alleged symptoms, but her statements “concerning the intensity, persistence[,]
14 and limiting effects of [the] symptoms” were not entirely consistent with the
15 medical evidence and other evidence in the record. AR 25-26, 28. The ALJ
16 found Plaintiff’s subjective complaints inconsistent with: (1) her daily activities
17 and stated abilities; (2) the objective evidence; (3) findings that she was
18 ambulatory without assistance; (4) failure to follow treatment
19 recommendations; and (5) other inconsistent statements. AR 26-28.
20 To start, the Court notes the ALJ did not reject Plaintiff’s testimony in
21 full but found it “not entirely” consistent with the record, constrained the RFCs
22 to a limited range of light work, including limiting Plaintiff’s physical abilities
23 and her working environment. AR 25, 28. Those determinations necessarily
24 partially credited Plaintiff’s subjective complaints. To the extent the ALJ did
25 not fully credit Plaintiff’s complaints, at least four of his reasons for doing so
26 were legally sufficient.
27 First, the ALJ listed several of Plaintiff’s activities of daily living, such as
28 her stated ability during the hearing to walk the grocery store without needing a
1 wheelchair, sit up in bed to watch television and movies for the duration of the
2 day, drive her children to and from school, cook for them, and do their laundry.
3 AR 26-27. The Ninth Circuit has “repeatedly warned that ALJs must be
4 especially cautious in concluding that daily activities are inconsistent with
5 testimony about pain, because impairments that would unquestionably
6 preclude work and all the pressures of a workplace environment will often be
7 consistent with doing more than merely resting in bed all day.” Garrison v.
8 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); Vertigan v. Halter, 260 F.3d 1044,
9 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that
10 a plaintiff has carried on certain daily activities, such as grocery shopping,
11 driving a car, or limited walking for exercise, does not in any way detract from
12 her [testimony] as to her overall disability.”). However, some activities, such as
13 childcare, may support an ALJ’s decision when it can be determined that they
14 are performed for a substantial part of the day. See, e.g., Rollins, 261 F.3d at
15 857 (the ability to care for children may undermine complaints of severe
16 limitations); Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999) (claimant’s
17 ability to fix meals, do laundry, work in the yard, and occasionally care for his
18 friend’s child was evidence of claimant’s ability to work); Elizondo v. Astrue,
19 2010 WL 3432261, *5 (E.D. Cal. Aug. 31, 2010) (“A claimant’s performance of
20 chores such as preparing meals, cleaning house, doing laundry, shopping,
21 occasional childcare, and interacting with others has been considered sufficient
22 to support an adverse finding when performed for a substantial portion of the
23 day.” (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008)).
24 Here, it is unclear if the ALJ’s discussion of Plaintiff’s activities was
25 intended to be a reason discounting the testimony. Notably, the Commissioner
26 does not attempt to defend it. Moreover, the ALJ did not make any findings
27 regarding the frequency of Plaintiff’s activities or their transferability to the
28 workplace. See Martinez v. Berryhill, 721 F. App’x 597, 600 (9th Cir. 2017)
1 (ALJ improperly “discounted [claimant]’s testimony based on her daily
2 activities . . . [without] support[ing] the conclusions as to the frequency of those
3 activities or their transferability to the workplace.”); Orn v. Astrue, 495 F.3d
4 625, 630 (9th Cir. 2007) (ALJ must make “specific findings related to [the daily]
5 activities and their transferability to conclude that a claimant’s daily activities
6 warrant” discounting testimony); Swanson v. Colvin, 2017 WL 8897144, *21
7 (D. Ariz. Feb. 7, 2017) (claimant’s daily activities of “simple meal preparation,
8 light housekeeping, driving short distances, and caring for her children are so
9 undemanding that they cannot be said to bear a meaningful relationship to the
10 activities of the workplace” (internal quotation marks omitted)). Accordingly,
11 the Court concludes that the ALJ did not provide a sufficiently specific, clear,
12 and convincing reasons for discounting Plaintiff’s testimony in his discussion of
13 her daily activities. See Lambert, 980 F.3d at 1277.
14 Second, the ALJ provided a detailed summary of the medical evidence
15 of record and noted that it documented findings “generally” unsupportive of
16 Plaintiff’s claim of disability. AR 26. “Although lack of medical evidence
17 cannot form the sole basis for discounting pain testimony,” it is a factor that
18 the ALJ can consider in his analysis. Burch v. Barnhart, 400 F.3d 676, 681 (9th
19 Cir. 2005); see also Rollins, 261 F.3d at 857. For example, the ALJ pointed to
20 the various examinations and findings where Plaintiff had no tenderness, full
21 and painless range of motion in lower extremities, and no edema, clubbing, or
22 other issues. AR 27, 1379, 1401-02, 1436, 1438-39, 1441-42, 1446-47, 1450,
23 1453, 1457, 1470, 1478-79, 1487, 1494-95, 1501, 1506 (following surgery,
24 “[d]isposition home in stable condition”); 1509 (noting mild swelling and
25 tenderness following surgery, but Plaintiff in “[n]o distress”), 1691 (“reports
26 doing overall well”; denies any numbness, tingling, weakness, or stiffness),
27 1728 (appears generally “in no distress”; “extremities normal”; neurologic
28 “[g]rossly normal”), 1730-32, 1749 (“[d]enies [a]dditional musculoskeletal
1 pain”), 1753 (normal findings) 1754 (noting multiple “well-healed and well[-]
2 appearing surgical scars over right hip” and Plaintiff “in no apparent distress . .
3 . smiling”). Plaintiff contends the ALJ unreasonably determined this evidence
4 was inconsistent with her testimony in light of other medical records, claiming
5 the ALJ ignored certain evidence in his detailed discussion. Jt. Stip. at 17.
6 However, as mentioned, “[i]f the evidence can support either affirming or
7 reversing the ALJ’s conclusion, [the Court] may not substitute our judgment
8 for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
9 2006); Reddick, 157 F.3d at 725 (ALJ can satisfy substantial evidence
10 requirement “by setting out a detailed and thorough summary of the facts and
11 conflicting clinical evidence, stating his interpretation thereof, and making
12 findings”). The ALJ properly considered the inconsistency between the
13 objective medical findings and Plaintiff’s subjective allegation of disability as
14 one of other valid factors supporting the decision. See Burch, 400 F.3d at 681.
15 Third, the ALJ noted Plaintiff testified about the need for an assistive
16 device, but other evidence showed she was ambulatory without assistance and
17 negative for a gait problem. AR 27, 1101-02. This reason is supported by the
18 record. AR 27, 1378-79 (report of “normal gai[t] problem,” normal
19 examination of lower extremities), 1441 (negative for gait problem despite
20 complaints of knee giving out; Plaintiff “is ambulatory without assistance”),
21 1442 (“[g]ait is steady without assistive device”) 1447 (normal examination of
22 lower extremities including range of motion, with only tenderness noted), 1458
23 (“[n]egative for gait problem and joint swelling”); See Ghanim v. Colvin, 763
24 F.3d 1154, 1163 (9th Cir. 2014) (an ALJ may consider a variety of factors in
25 weighing a claimant’s believability, including ordinary techniques of credibility
26 evaluation, prior inconsistent statements, and testimony by the claimant that
27 “appears less than candid”). The ALJ could therefore properly consider this
28 factor. See Colter v. Colvin, 554 F. App’x 594, 596 (9th Cir. 2014) (ALJ
1 properly discounted claimant’s credibility based on her own admissions and
2 inconsistency between her testimony, descriptions of her abilities, and medical
3 tests); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (in analyzing
4 pain complaints, ALJ may consider inconsistencies between testimony and
5 conduct). While other records show Plaintiff at times needed assistance, see,
6 e.g., AR 1808 (“SBA [stands by assist] for gait” with crutches but demonstrates
7 “good step to sequencing”), where the evidence is susceptible to more than one
8 interpretation, “one of which supports the ALJ’s decision, the ALJ's conclusion
9 must be upheld.” Thomas, 278 F.3d at 954; Molina, 674 F.3d at 1111.
10 Fourth, the ALJ noted occasions where Plaintiff failed to follow
11 treatment recommendations, notably she refused to attend some physical
12 therapy and take medication. AR 27, 1449-50 (Plaintiff tripped, fell, and tore
13 meniscus, but did not “take any pain medications” because she preferred not to
14 feel groggy (emphasis added)), 1457 (Plaintiff states she “doesn’t like to take
15 pills”; “Norco helps” she but takes it inconsistently),1459 (refused referral to
16 physical therapy), 1691 (Plaintiff “[d]oes not exercise”); 1808 (declined
17 physical therapy “stair training”), 1810 (same). The ALJ properly considered
18 this factor. See Molina, 674 F.3d at 1112 (“the ALJ may consider . . .
19 unexplained or inadequately explained failure . . . to follow a prescribed course
20 of treatment”); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (in analyzing
21 claimant’s pain, ALJ may consider inadequately-explained failure to seek
22 treatment or follow prescribed treatment); 20 C.F.R. §§ 404.1530, 416.930
23 (claimants must “follow treatment prescribed by [their] medical source(s) if this
24 treatment is expected to restore [their] ability to work”).
25 Fifth, and relatedly, the ALJ noted that although Plaintiff alleged
26 physical therapy did not help, when she attended, it did. AR 27, 1457 (Plaintiff
27 states physical therapy “did not work”), 1808 (Plaintiff “did not complain of
28 pain” during physical therapy), 1810 (same), 1809-10 (goals met in physical
1 therapy). The ALJ properly considered Plaintiff’s inconsistent statements in
2 assessing her testimony. See Ghanim, 763 F.3d at 1163; Colter, 554 F. App’x
3 at 596; Thomas, 278 F.3d at 958-59.
4 The Court finds that, even if Plaintiff’s activities of daily living do not
5 support the ALJ’s determination, the ALJ nonetheless provided other
6 sufficiently specific, clear, and convincing reasons for finding Plaintiff’s
7 testimony not entirely consistent with the record, that is the conflict with the
8 objective evidence, findings regarding her ambulatory ability, failure to follow
9 treatment recommendations, and other inconsistent statements. See Reyes v.
10 Berryhill, 716 F. App’x 714, 714 (9th Cir. 2018) (where ALJ provided valid
11 reasons for discounting claimant’s testimony, “[a]ny error in other reasons
12 provided by the ALJ was harmless”); Batson, 359 F.3d at 1197; Williams v.
13 Comm’r, Soc. Sec. Admin., 2018 WL 1709505, *3 (D. Or. Apr. 9, 2018)
14 (“Because the ALJ is only required to provide a single valid reason for
15 rejecting a claimant’s pain complaints, any one of the ALJ’s reasons would be
16 sufficient to affirm the overall . . . determination.”). Those grounds are
17 sufficient to affirm the ALJ’s decision on the issue.
18 B. Opinion Evidence
19 In Issue No. 2, Plaintiff contends the ALJ improperly evaluated the
20 opinion of her treating physician Dr. Mark A. Newman. Jt. Stip. at 4-9.
21 1. Applicable Law
22 In setting an RFC, an ALJ must consider all relevant evidence, including
23 medical records, lay evidence, and “the effects of symptoms, including pain,
24 that are reasonably attributable to the medical condition.” Robbins, 466 F.3d
25 at 883 (citation omitted); 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ
26 must also consider all the medical opinions “together with the rest of the
27 relevant evidence [on record].” 20 C.F.R. §§ 404.1527(b), 416.927(b).
28
1 “There are three types of medical opinions in social security cases: those
2 from treating physicians, examining physicians, and non-examining
3 physicians.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th
4 Cir. 2009). “As a general rule, more weight should be given to the opinion of a
5 treating source than to the opinion of doctors who do not treat the claimant.”
6 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The opinion of an
7 examining physician is, in turn, entitled to greater weight than the opinion of a
8 nonexamining physician.” Id. “[T]he ALJ may only reject a treating or
9 examining physician’s uncontradicted medical opinion based on clear and
10 convincing reasons” supported by substantial evidence in the record.
11 Carmickle v. Comm’r Sec. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)
12 (citation omitted). “Where such an opinion is contradicted, however, it may be
13 rejected for specific and legitimate reasons that are supported by substantial
14 evidence in the record.” Id. at 1164 (citation omitted).
15 An ALJ is not obligated to discuss “every piece of evidence” when
16 interpreting the evidence and developing the record. See Howard ex rel. Wolff
17 v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation omitted). Similarly,
18 an ALJ is also not obligated to discuss every word of a doctor’s opinion or
19 include limitations not actually assessed by the doctor. See Fox v. Berryhill,
20 2017 WL 3197215, *5 (C.D. Cal. July 27, 2017); Howard, 341 F.3d at 1012.
21 Finally, the ALJ is not required to recite “magic words” or “incantations” to
22 reject an opinion. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). “A
23 reviewing court [is] not deprived of [its] faculties for drawing specific and
24 legitimate inferences from the ALJ’s opinion.” Id.; Towne v. Berryhill, 717 F.
25 App’x 705, 707 (9th Cir. 2017) (citing Batson, 359 F.3d at 1193 (if the ALJ
26 provides enough information that the reviewing court can draw reasonable
27 inferences from the record in support of the ALJ's findings, then the ALJ's
28 findings should be upheld)).
1 2. Analysis
2 In March 2017, Dr. Newman filled out a page-and-a-half, mostly check-
3 box, “Physical Assessment” form. AR 1427. He indicated Plaintiff’s diagnosis
4 was “failed right total hip replacement, hamstring tendonitis,” and opined that
5 Plaintiff’s symptoms were severe enough to interfere with her attention and
6 concentration “constantly.” AR 1427. He marked “N/A” for medication side
7 effects impacting her capacity to work. AR 1427. Dr. Newman further
8 indicated that Plaintiff needed to lie down, could only walk less than one block,
9 sit/stand/walk for only one-hour a day, and frequently lift less than 10 pounds,
10 occasionally lift 10-20 pounds, but never 50 pounds or more. AR 1427. Finally,
11 he indicated that Plaintiff would miss work more than four times a month
12 because of her impairments or treatments. AR 1428.
13 The ALJ stated he considered Dr. Newman’s opinion, summarized it,
14 found it was partially consistent with the RFC, but gave little weight to the
15 more extreme functional limitations, such as the need to lie down during the
16 day or take 30 minute breaks every hour, finding them “far more restrictive and
17 inconsistent” with Plaintiff’s functional capacity shown in other examinations.
18 AR 28-29. Instead, the ALJ afforded greater weight to the other, less restrictive,
19 opinions in the record. AR 28.
20 The ALJ conducted a proper assessment of Dr. Newman’s opinion.
21 Preliminarily, the Court notes that the ALJ did not reject Dr. Newman’s
22 opinion entirety as Plaintiff suggests. See Jt. Stip. at 4 (“The ALJ rejected Dr.
23 Newman’s opinion”). By assigning the opinion “little” weight instead of “no”
24 weight, the ALJ necessarily gave consideration and credited aspects of the
25 opinion. AR 28-29. The ALJ specifically found aspects of the opinion
26 consistent with Plaintiff’s RFC, a point Plaintiff does not contest. AR 29; see,
27 e.g., Waldner v. Colvin, 2015 WL 711020, at *6 (D. Or. Feb. 18, 2015) (no
28 error in RFC finding that specifically included limitations tailored to claimant).
1 To the extent the ALJ did not accept the more-restrictive physical
2 limitations, such as the need to take unscheduled, 30-minute breaks every hour,
3 totaling 240 minutes in a workday, he gave proper reasons for doing so. The
4 ALJ found that limitation far more restrictive and inconsistent than Plaintiff
5 had demonstrated on other examinations. That objective evidence, discussed
6 above, properly supported the ALJ’s reasoning. See, e.g., Shavin v. Comm’r
7 Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject
8 physician’s opinion by “noting legitimate inconsistencies and ambiguities in the
9 doctor’s analysis or conflicting lab test results[ or] reports . . .” (internal citation
10 omitted)); Aranda v. Comm’r Soc. Sec. Admin., 405 F. App’x 139, 141 (9th
11 Cir. 2010) (persuasiveness of physician’s opinion must take into account the
12 opinion’s consistency with the record as a whole, among other factors).
13 The ALJ also discussed the other medical opinions and assigned them
14 great weight. AR 28. For example, the ALJ discussed Dr. Yu’s March 2019
15 consultative examination and opinion, occurring just three months after
16 Plaintiff’s last surgery. AR 1813-23. Dr. Yu opined that Plaintiff could lift/carry
17 20 pounds occasionally and 10 pounds frequently; walk/stand/for four hours in
18 an eight-hour day; sit for six hours in an eight-hour day; walk without the an
19 assistive device, except long distances where she “may require the use of a
20 cane”; perform occasional postural activities including bending, crouching,
21 stooping, and crawling; walk on uneven terrain, climb ladders, and work at
22 heights occasionally; and finger, handle, feel, and reach without limitation. AR
23 1816-17. Dr. Yu indicated he reached his conclusion based on formal testing, as
24 well as direct observation of Plaintiff during the examination. AR 1817. The
25 ALJ properly considered the conflict between Dr. Newman’s opinion and Dr.
26 Yu’s opinion, in assessing the opinions, assigning weight, and fashioning the
27 RFC. See Ford, 950 F.3d at 1156 (conflicting medical professional findings a
28 valid consideration in discounting an opinion); Batson, 359 F.3d at 1197 (“[I]t
1 || was permissible for the ALJ to give [opinions] minimal evidentiary weight, in
2 || light of... opinions and observations of other doctors.”’).
3 The ALJ also discussed the findings of the State Agency doctors, all of
4 whom concluded Plaintiff could work, and assigned them great weight. AR 28,
5 |}1121-35, 1138-57. Plaintiff does not address these opinions, and they are
6 additional substantial evidence supporting the ALJ’s reasoning. See Saelee v.
7 Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (“We have held that the
8 || findings of a nontreating, nonexamining physician can amount to substantial
9 || evidence, so long as other evidence in the record supports those findings.”’);
10 || Kane v. Colvin, 2015 WL 5317149, *3 (E.D. Cal. Sept. 10, 2015) (ALJ properly
11 rejected treating physician’s opinion in part because it was contradicted by state
12 ||agency physicians’ findings).
13 The Court finds that the ALJ did not err in his assessment of Dr.
14 || Newman’s opinion. Accordingly, reversal is not warranted.
15
16 IV.
17 ORDER
18 IT THEREFORE IS ORDERED that Judgment be entered affirming
19 the decision of the Commissioner and dismissing this action with prejudice.
20
1 Dated: June 25, 2021
22 Lio AG
23 JOHN D. EARLY
24 United States Magistrate Judge
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