holding that in such circumstances “we 9 must uphold the ALJ’s findings if they are supported by 10 inferences reasonably drawn from the record”
How later courts described this case
- holding that in such circumstances “we 9 must uphold the ALJ’s findings if they are supported by 10 inferences reasonably drawn from the record”
- holding that ALJ’s error in rejecting lay 28 witnesses’ testimony was “harmless” because “ALJ had validly 26 1} rejected all the limitations described by the lay witnesses in discussing [claimant’s] testimony”
- as 15 amended Apr. 9, 1996
- “[B]ecause the ALJ gave specific, clear and 3 convincing reasons for finding [plaintiff] not fully credible, 4 any error in the additional reasons the ALJ provided . . . was 5 harmless.”
Written by the judges who cited it.
The opinion
1
2
3
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5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
KAREN TREJO H.,1 ) Case No. CV 19-7378-JPR
11
)
Plaintiff, )
12
) MEMORANDUM DECISION AND ORDER
v. ) AFFIRMING COMMISSIONER
13
)
ANDREW M. SAUL, )
14
Commissioner of Social )
Security, )
15
)
Defendant. )
16
17
I. PROCEEDINGS
18
Plaintiff seeks review of the Commissioner’s final decision
19
denying her application for Social Security supplemental security
20
income benefits (“SSI”). The parties consented to the
21
jurisdiction of the undersigned U.S. Magistrate Judge under 28
22
U.S.C. § 636(c). The matter is before the Court on the parties’
23
Joint Stipulation, filed July 20, 2020, which the Court has taken
24
under submission without oral argument. For the reasons stated
25
26
1 Plaintiff’s name is partially redacted in line with
27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case
28 Management of the Judicial Conference of the United States.
1
1 below, the Commissioner’s decision is affirmed.
2 II. BACKGROUND
3 Plaintiff was born in 1981 and moved to the United States
4 from Honduras around 1990. (See Administrative Record (“AR”)
5 118, 251.) She graduated high school in 2000 and worked part
6 time as a nurse’s assistant or caregiver from March 2009 until
7 September 2011. (AR 135-36.)
8 On November 18, 2011, Plaintiff applied for SSI, alleging
9 that she had been unable to work full time since July 1, 2004,
10 because of chronic cocci meningitis.2 (AR 118, 135; see AR 29.)
11 After her applications were denied initially and on
12 reconsideration (AR 75, 80; see also AR 54, 65), she requested a
13 hearing before an Administrative Law Judge (AR 85). One was held
14 on August 29, 2013, at which Plaintiff appeared without
15 representation and testified through a Spanish-language
16 interpreter. (AR 38-40, 42-43, 115-17.) The ALJ issued an
17 unfavorable decision on November 5, 2013, finding that she was
18 not disabled as of her filing date, November 18, 2011.3 (AR 20,
19 27.) After retaining counsel, Plaintiff requested review from
20 the Appeals Council (AR 15-16), which denied it on April 23, 2015
21 (AR 1).
22 Plaintiff appealed (AR 576-78, 596-600), and on September
23
24 2 Cocci meningitis is a form of “disseminated”
coccidioidomycosis, colloquially referred to as “Valley Fever,”
25
in which a fungal infection spreads throughout the body. See
26 Edison v. United States, 822 F.3d 510, 513-14 (9th Cir. 2016).
27 3 Because SSI payments may not be awarded retroactively,
Plaintiff’s effective onset date is her filing date. See SSR 83-
28 20, 1983 WL 31249, at *1 (1983).
2
1 27, 2016, this Court reversed and remanded for further
2 administrative proceedings (AR 579-95). On June 28 and September
3 20, 2018, and January 23 and May 22, 2019, the ALJ conducted
4 additional hearings, at which Plaintiff, who was represented by
5 counsel, her mother, her aunt, and a VE testified. (See AR 457-
6 550.) In a written decision dated June 13, 2019, the ALJ again
7 found Plaintiff not disabled. (AR 429-49.) This action
8 followed.
9 III. STANDARD OF REVIEW
10 Under 42 U.S.C. § 405(g), a district court may review the
11 Commissioner’s decision to deny benefits. The ALJ’s findings and
12 decision should be upheld if they are free of legal error and
13 supported by substantial evidence based on the record as a whole.
14 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
15 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence
16 means such evidence as a reasonable person might accept as
17 adequate to support a conclusion. Richardson, 402 U.S. at 401;
18 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It
19 is “more than a mere scintilla, but less than a preponderance.”
20 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
21 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the
22 meaning of ‘substantial’ in other contexts, the threshold for
23 such evidentiary sufficiency is not high.” Biestek v. Berryhill,
24 139 S. Ct. 1148, 1154 (2019). To determine whether substantial
25 evidence supports a finding, the court “must review the
26 administrative record as a whole, weighing both the evidence that
27 supports and the evidence that detracts from the Commissioner’s
28 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
3
1 1998). “If the evidence can reasonably support either affirming
2 or reversing,” the reviewing court “may not substitute its
3 judgment” for the Commissioner’s. Id. at 720-21.
4 IV. THE EVALUATION OF DISABILITY
5 People are “disabled” for Social Security purposes if they
6 can’t engage in any substantial gainful activity owing to a
7 physical or mental impairment that is expected to result in death
8 or has lasted, or is expected to last, for a continuous period of
9 at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v.
10 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
11 A. The Five-Step Evaluation Process
12 An ALJ follows a five-step sequential evaluation process to
13 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4);
14 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as
15 amended Apr. 9, 1996). In the first step, the Commissioner must
16 determine whether the claimant is currently engaged in
17 substantial gainful activity; if so, the claimant is not disabled
18 and the claim must be denied. § 416.920(a)(4)(i). If not, the
19 second step requires the Commissioner to determine whether the
20 claimant has a “severe” impairment or combination of impairments
21 significantly limiting her ability to do basic work activities;
22 if not, a finding of not disabled is made and the claim must be
23 denied. § 416.920(a)(4)(ii).
24 If the claimant has a “severe” impairment or combination of
25 impairments, the third step requires the Commissioner to
26 determine whether the impairment or combination of impairments
27 meets or equals an impairment in the Listing of Impairments
28 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix
4
1 1; if so, disability is conclusively presumed and benefits are
2 awarded. § 416.920(a)(4)(iii). If not, the fourth step requires
3 the Commissioner to determine whether the claimant has sufficient
4 residual functional capacity (“RFC”)4 to perform her past work;
5 if so, she is not disabled and the claim must be denied.
6 § 416.920(a)(4)(iv). The claimant has the burden of proving she
7 is unable to perform past relevant work. Drouin, 966 F.2d at
8 1257. If the claimant meets that burden, a prima facie case of
9 disability is established. Id.
10 If that happens or if the claimant has no past relevant
11 work, the Commissioner bears the burden of establishing that the
12 claimant is not disabled because she can perform other
13 substantial gainful work available in the national economy, the
14 fifth and final step of the sequential analysis.
15 § 416.920(a)(4)(v).
16 B. The ALJ’s Application of the Five-Step Process
17 At step one, the ALJ found that Plaintiff had not engaged in
18 substantial gainful activity since November 18, 2011, the
19 application date. (AR 438.) At step two, he determined that she
20 had severe impairments of “chronic cocci meningitis, status post
21 ventricular peritoneal shunt,” and hydrocephalus.5 (Id.) He
22
23 4 RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 416.945; see Cooper v.
24 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The
Commissioner assesses the claimant’s RFC between steps three and
25
four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017)
26 (citing § 416.920(a)(4)).
27 5 Hydrocephalus results from an excessive accumulation of
cerebrospinal fluid in the brain, causing abnormal widening of
28 (continued...)
5
1 concluded that her low-back condition and left-leg pain were not
2 severe because there was “little objective medical evidence for
3 these conditions, and the record show[ed] that the pain she
4 reported was intermittent, addressed primarily with over-the-
5 counter medication, and did not continue in any significant way
6 after November 2015.” (AR 441.) At step three, he found that
7 her impairments did not meet or equal a Listing. (Id.) At step
8 four, he determined that she had the RFC to perform light work
9 with some limitations: she was “able to lift or carry up to 20
10 pounds occasionally [and] 10 pounds frequently”; could “stand or
11 walk for up to 6 hours of an 8-hour workday”; could “sit for up
12 to 8 hours cumulatively in an 8-hour workday”; could
13 “occasionally climb, bend, kneel, and stoop”; “must avoid
14 crawling”; could “less than occasionally push or pull and reach
15 above shoulder level on the bilateral upper extremities”; “should
16 not work at dangerous heights, climb ladders, or operate
17 dangerous, moving machinery”; and “must avoid driving a motor
18 vehicle or ambulating over uneven terrain.” (AR 441-42.) The
19 ALJ found her unable to perform any past relevant work (AR 447),
20 but she could work in other positions existing in significant
21 numbers in the national economy (AR 447-48). Accordingly, he
22 found her not disabled. (AR 448-49.)
23
24
25 5 (...continued)
26 spaces in brain ventricles and potentially harmful pressure on
brain tissues. Hydrocephalus Fact Sheet, Nat’l Inst. Neuro.
27 Disorders & Stroke, http://www.ninds.nih.gov/disorders/
hydrocephalus/detail_hydrocephalus.htm (last visited June 22,
28 2021).
6
1 V. DISCUSSION
2 Plaintiff alleges that the ALJ erred in assessing her
3 symptom testimony and the statements and testimony of her aunt
4 and mother and therefore erroneously concluded that she was not
5 disabled. (See J. Stip. at 4-7, 9-12, 17-18.) For the reasons
6 discussed below, the ALJ properly discounted her symptom
7 statements, and any error in assessing the lay-witness testimony
8 was harmless.
9 A. The ALJ Properly Discounted Plaintiff’s Symptom
10 Statements
11 Plaintiff asserts that the ALJ failed to properly evaluate
12 her subjective symptom statements. (J. Stip. at 9-12.) For the
13 reasons discussed below, the ALJ did not err.
14 1. Applicable law
15 An ALJ’s assessment of a claimant’s allegations concerning
16 the severity of her symptoms is entitled to “great weight.”
17 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as
18 amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as
19 amended Feb. 24, 1986). “[T]he ALJ is not ‘required to believe
20 every allegation of disabling pain, or else disability benefits
21 would be available for the asking, a result plainly contrary to
22 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 674 F.3d 1104,
23 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603
24 (9th Cir. 1989)).
25 In evaluating a claimant’s subjective symptom testimony, the
26 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d
27 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16,
28 2016). “First, the ALJ must determine whether the claimant has
7
1 presented objective medical evidence of an underlying impairment
2 ‘[that] could reasonably be expected to produce the pain or other
3 symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting
4 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). If such
5 objective medical evidence exists, the ALJ may not reject a
6 claimant’s testimony about the severity of her symptoms merely
7 because it lacks evidential support. See id.
8 If the claimant meets the first test, the ALJ may discount
9 her subjective symptom testimony only if he makes specific
10 findings that support the conclusion. See Berry v. Astrue, 622
11 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative
12 evidence of malingering, the ALJ must provide a “clear and
13 convincing” reason for rejecting the claimant’s testimony.
14 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as
15 amended) (citing Lingenfelter, 504 F.3d at 1036); Treichler v.
16 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014).
17 The ALJ may consider, among other factors, the claimant’s (1)
18 reputation for truthfulness, prior inconsistent statements, and
19 other testimony that appears less than candid; (2) unexplained or
20 inadequately explained failure to seek treatment or to follow a
21 prescribed course of treatment; (3) daily activities; (4) work
22 record; and (5) physicians’ and third parties’ statements. See
23 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir.
24 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th
25 Cir. 2002). If the ALJ’s evaluation of a plaintiff’s alleged
26 symptoms is supported by substantial evidence in the record, the
27 reviewing court “may not engage in second-guessing.” Thomas, 278
28 F.3d at 959.
8
1 2. Relevant background
2 a. Plaintiff’s Medical History
3 In 2004, Plaintiff was diagnosed with recurrent cocci
4 meningitis and “communicating” hydrocephalus.6 (AR 237, 400-02.)
5 She was prescribed voriconazole7 on a long-term basis. (AR 237.)
6 She was hospitalized overnight in 2009 with a flare-up. (AR 391-
7 93.) An October 2011 brain scan showed “hydrocephalus with
8 enlarged lateral and third ventricles,” with “hypodensity
9 surrounding the frontal horns of the lateral ventricles,
10 suggestive of transependymal fluid flow.”8 (AR 237-38.) In
11 October 2011, she stopped taking her medication because she
12 wanted to become pregnant, but she soon required hospitalization
13 after developing worsening headaches, nausea, and vomiting. (AR
14 237, 242.) A shunt was placed in her brain. (AR 237.)
15 Following this surgery, she reported that she was “doing well,”
16 with some dizziness but none of the headaches, nausea, or blurred
17
18
6 “Communicating” means that cerebrospinal fluid can still
19 flow between the ventricles, which remain open. See
Hydrocephalus, Health, https://www.hopkinsmedicine.org/health/
20 conditions-and-diseases/hydrocephalus (last visited June 22,
2021).
21
22 7 Voriconazole is used to treat a variety of fungal
infections. See Voriconazole, WebMD, https://www.webmd.com/
23 drugs/2/drug-63366-5326/voriconazole-oral/voriconazole-oral/
details (last visited June 22, 2021).
24
8 Transependymal fluid flow occurs when increased pressure
25
within the cerebral ventricles causes the ependymal lining to be
26 disrupted and allows the migration of cerebrospinal fluid into
the brain parenchyma around the cerebral ventricles.
27 Transependymal Edema, Radiopaedia, https://radiopaedia.org/
articles/transependymal-oedema (last visited June 29, 2021). It
28 usually occurs during acute obstructive hydrocephalus. Id.
9
1 vision she had experienced before the surgery. (AR 2364.)
2 In March and April 2013, she was “stable,” and in August
3 2013, her condition was “well controlled on voriconazole without
4
symptoms.” (Suppl. AR 1225-26, 1229, 1231.)9 In August 2014,
5 she reported having headaches three or four times a month but
6 said that had “improved from before” the shunt was placed.
7 (Suppl. AR 1218.)
8 In August 2014, she became pregnant against medical advice.
9 (Suppl. AR 1214, 1285.) She had a catheter placed in September
10 and began taking a different, intravenous medication. (Suppl. AR
11 1209-13, 1283.) Her pregnancy was ectopic and was discontinued
12 (Suppl. AR 1274-75, 1278), and she resumed taking voriconazole
13 (Suppl. AR 1144).
14 In August 2015, she had a headache, which she treated with
15 ibuprofen with “good relief.” (Suppl. AR 1090.) She refused her
16 doctor’s recommendation to go to the emergency department for
17 further evaluation. (Suppl. AR 1091.)
18 A September 2015 CT scan of her brain showed “slit-like”
19 lateral and third ventricles, but the fourth ventricle appeared
20 “slightly larger” than in the previous CT scan, which “rais[ed a]
21
suspicion for focal entrapment.”10 (Suppl. AR 1257.) But there
22
23 9 Exhibit 9F was not included in the Certified
Administrative Record filed with the Court on February 26, 2020.
24 On January 14, 2021, prompted by the Court, Defendant filed
Exhibit 9F and paginated it 1086 through 1291. Because the
25
original AR includes different documents with those page numbers
26 (see AR 1086-291), the Court uses “Suppl. AR” in referring to the
pages of Exhibit 9F.
27
10 Focal entrapment of a ventricle is an obstruction to the
28 (continued...)
10
1 was no hydrocephalus, “extra-axial fluid collections,” or edema
2 along the shunt catheter. (Id.) That same month, she complained
3 of right-sided “intermittent, throbbing . . . headache[s]” and
4 reported having “some dizziness.” (Suppl. AR 1086.) On November
5 6, she reported having a headache that had started the previous
6
week, but ibuprofen provided “good relief.” (AR 1251.) Kernig11
7
and Brudzinski12 tests were negative, and she deferred going to
8 the emergency department because the headache was not severe and
9 she was otherwise asymptomatic. (Id.)
10 In January 2016, she reported that her headaches had
11 returned. (AR 1465.) But they were “much less severe” than when
12 she had meningitis, and she had no dizziness, nausea, or
13
phonophobia.13 (Id.) Ibuprofen provided relief. (Id.) A
14
15 10 (...continued)
entry and exit path of cerebrospinal fluid through the ventricle.
16 Trapped Ventricle, Radiopaedia, https://radiopaedia.org/articles/
17 trapped-ventricle (last visited June 29, 2021).
18 11 A Kernig sign indicates the presence of meningitis.
Medical Definition of Kernig Sign, MedicineNet, https://
19 www.medicinenet.com/kernig_sign/definition.htm (last visited
June 22, 2021). The test is done by having the person lie flat
20 on the back, flex the thigh so that it is at a right angle to the
trunk, and completely extend the leg at the knee joint. Id. If
21
the leg cannot be completely extended because of pain, that may
22 indicate meningitis. Id.
23 12 A Brudzinski test is used to diagnose meningitis.
Brudzinski’s Sign, Physiopedia, https://www.physio-pedia.com/
24 Brudzinski%E2%80%99s_Sign (last visited June 22, 2021). Severe
neck stiffness causes a patient’s hips and knees to flex when the
25
neck is flexed, which is a symptom of meningitis. Id.
26
13 Phonophobia is an intolerance of or hypersensitivity to
27 sound. Phonophobia, Merriam-Webster, https://
www.merriam-webster.com/dictionary/phonophobia (last visited June
28 30, 2021).
11
1 February 2016 brain scan revealed that her “shunt catheter tip
2 placement” was “stable.” (AR 1362.) Her lateral and third
3 ventricles were “slightly enlarged when compared to” a September
4 2015 scan “but remain[ed] small to normal in size.” (Id.) The
5 fourth ventricle was “enlarged and slightly larger when compared
6 to [the] prior CT” scan. (Id.) In August 2016, she reported
7 that she had headaches two or three times a week, but they
8 “completely improve[d] with ibuprofen.” (AR 1190.) She stated
9 that she was under a lot of stress because of a “recent divorsc
10 [sic] and living with parents, trying to find a job.” (Id.) On
11 December 5, 2016, she reported that her headaches were
12 “improved,” and she was taking ibuprofen as needed up to three
13 times a week. (AR 1069.) On December 8, she discontinued
14 voriconazole because of a skin reaction and began taking
15 posaconazole.14 (AR 1026.)
16 On January 9, 2017, Plaintiff had a head CT scan, which
17 showed “[n]o significant change from the prior examination,” with
18 the “shunt . . . in stable position with unchanged size of the
19 ventricular system.” (AR 1991.) She reported “intermittent
20 headaches” on January 17, 2017, but said they were relieved by
21 over-the-counter medication; she denied any other complaints.
22 (AR 2068.) During an examination, she could “[m]ove all
23 extremities without difficulty” and had “5/5 strength
24
25 14 Posaconazole is an antifungal used to prevent fungal
26 infections in patients who have weakened immune systems. See
Posaconazole 100 Mg Tablet, Delayed Release Azole Antifungals-
27 Systemic, WebMD, https://www.webmd.com/drugs/2/drug-145142-1598/
posaconazole-oral/posaconazole-delayed-release-oral/details (last
28 visited June 22, 2021).
12
1 throughout,” a “[s]teady gait upon ambulation,” and no pain.
2 (Id.) In March 2017, she reported that she was taking
3 posaconazole without any issues and denied having any headaches,
4 nausea, or vomiting. (AR 1990.) In September 2017, she again
5 reported that she was “doing well,” with “no issues,” and denied
6 having headaches, nausea, or vomiting. (AR 1942.)
7 In November 2017, she complained of a “few episodes of
8 confusion” within the previous two weeks, “including not knowing
9 where she was” and being “slower in answers.” (AR 1858.) She
10 denied having any headaches, fever, chills, neck pain, or
11 stiffness. (Id.) She was referred to a neurologist. (AR 1859.)
12 On November 30, 2017, she reported that her “episodes of
13 confusion ha[d] completely resolved.” (AR 1775.) On that date,
14 “[s]he was fully oriented to person, place, and time, and knew
15 who the president was.” (Id.) “Her conversation was fluid,”
16 “without hesitation or delay,” and she “denie[d] any headaches,
17 fever/chills/sweats.” (Id.) During a neurological examination
18 on December 7, 2017, she presented with “no complaints” and
19 “continue[d] to have resolution of her confusion issues.” (AR
20 1693.) Her examination was “unremarkable,” and the neurologist
21 noted that the “most likely causes” of the confusion episodes
22 were “sleep deprivation and/or stress in her life.” (AR 1694.)
23 Plaintiff had a head CT scan on December 12, 2017, in which
24 “[t]he lateral and 3rd ventricles appear[ed] well-decompressed,
25 without significant interval change in size, although minimally
26 larger than the prior examination.” (AR 1652.) “The 4th
27 ventricle [was] enlarged, but grossly unchanged from the prior
28 examination.” (Id.) There was “no gross acute infarct, mass,
13
1 bleed, midline shift, or abnormal extra-axial fluid collections.”
2 (Id.)
3 On February 1, 2018, she reported that she had been
4 “persistently without symptoms since November” and denied any
5 dizziness, confusion, difficulty walking, or headache. (AR
6 1565.) She again denied any symptoms on February 13, 2018, and
7 was “neuro[logically] intact.” (AR 2066.)
8 On March 2, 2018, she went to an emergency department with
9 confusion and headache. (AR 2251.) She refused a head scan
10 because she was pregnant and underwent an MRI, which revealed no
11 issues with her shunt. (Id.) A March 5, 2018 head scan showed
12 that her “ventricular shunt [was] in place,” with “mild to
13 moderate hydrocephalus, unchanged in degree from [the] prior
14 MRI.” (AR 2082.) There was no hemorrhage, extra-axial fluid
15 collections, or masses. (Id.) Despite the lack of changes,
16 Plaintiff underwent a right frontal shunt revision that day.
17 (AR 2265.) The next day she complained of dizziness and
18 “difficulty fixating” (AR 2270), demonstrated a “slow, cautious
19 gait,” “required occasional assistance to manage [a] front
20 wheeled walker,” and her walking “[d]istance [was] limited by
21 fatigue” (AR 2274). While she was in the hospital it was
22 discovered that her pregnancy had ended as a result of a
23 spontaneous abortion. (AR 2278.) A March 8 head CT scan
24 confirmed that the ventricular shunt had been revised and showed
25 that the lateral ventricles and the third ventricle were
26 “significantly decreased in size,” but the fourth ventricle
27 “remain[ed] unchanged in size.” (AR 2076.) On March 20, 2018,
28 Plaintiff reported that she was “doing well,” with “no headaches,
14
1 nausea, vomiting, dizziness or confusion.” (AR 2297.)
2 In October 2018, Plaintiff again became pregnant. (AR
3 4243.) She stopped taking posaconazole (AR 4044) and started
4 undergoing intravenous infusion of Ambisome15 through her first
5 trimester of pregnancy. (AR 4636.) In January 2019, she was
6 “doing well,” had “occasional nausea,” which she thought was “due
7 to pregnancy,” and had “[n]o other neuro[logical symptoms].”
8 (AR 7119.)
9 b. The ALJ’s Decision
10 The ALJ noted that Plaintiff
11 testified she has many headaches, dizziness, loss of
12 balance, and back pain. She testified she becomes dizzy
13 when she bends over, and she moves around slowly. She
14 testified she does not take public transportation alone,
15 and her aunt goes with her when she goes out to walk.
16 She testified her aunt helps her with bathing, caring for
17 her hair, and cooking. She testified she must rest
18 during the day because she feels weak and fatigued. She
19 testified she has headaches every day, for which she
20 takes Tylenol. She testified . . . she was forgetting
21 things prior to her surgery in March 2018, and her memory
22 has not improved since then.
23 (AR 442.) The ALJ reviewed these claimed limitations and found
24 that her “medically determinable impairment[s] could reasonably
25
26
15 Ambisome is used to treat a variety of serious fungal
infections in patients who cannot tolerate other treatments and
27 is usually given by injection. Ambisome Vial, WebMD, https://
www.webmd.com/drugs/2/drug-6421/ambisome-intravenous/details
28 (last visited June 22, 2021).
15
1 be expected to cause the alleged symptoms; however, [her]
2 statements concerning the intensity, persistence and limiting
3 effects of these symptoms [were] not entirely consistent with the
4 medical evidence and other evidence in the record.” (AR 443.)
5 He discounted her subjective symptom statements because they were
6 inconsistent with the medical record. The medical record
7 shows relatively few complaints of headaches, dizziness,
8 or other symptomology.
9 (Id.)
10 He also noted that her symptom statements were inconsistent
11 with her conservative treatment, stating that
12 except for when she stopped taking her medication in
13 October 2011, she uniformly reported that ibuprofen
14 resolved the headaches, and the record contain[ed] little
15 or no evidence of [her] requiring stronger medication for
16 her headaches.
17 (Id.)
18 Next, he found her symptom statements inconsistent with her
19 admitted daily activities, noting that
20 [i]n August 2014, she reported she had gone to Guatemala
21 a couple of months before. In September 2015, she was
22 planning to travel to Brazil . . . .
23 At her first occupational therapy visit after the
24 March 2018 revision of her shunt [she] indicated she
25 previously had no limitation, was driving, and enjoyed
26 dancing . . . .
27 At the consultative psychological evaluation,
28 [Plaintiff] reported watching television, listening to
16
1 music, caring for pets, exercising, . . . performing
2 household chores[,] . . . socializing with friends on
3 weekends[, and] . . . work[ing] as a babysitter from
4 approximately 2005 to 2006 until 2012.
5 (AR 444-45 (some citations omitted).)
6 Finally, he noted that despite her alleged debilitating
7 symptoms, “in much of the medical record,” her “primary concern
8 appear[ed] to be with contraception or conceiving a child.”
9 (AR 445.)
10 3. Analysis
11 Plaintiff challenges the ALJ’s discounting of her subjective
12 symptom statements. (See J. Stip. at 9-12.) For the reasons
13 discussed below, the ALJ did not err.
14 a. Plaintiff’s Symptom Statements and Testimony
15 i. Medical and other evidence
16 The ALJ properly concluded that Plaintiff’s subjective
17 symptom statements were inconsistent with the medical record’s
18 “relatively few complaints of headaches, dizziness, or other
19 symptomology.” (AR 443); Morgan v. Comm’r of Soc. Sec. Admin.,
20 169 F.3d 595, 600 (9th Cir. 1999) (finding “conflict” with
21 “objective medical evidence in the record” to be “specific and
22 substantial reason[]” undermining plaintiff’s allegations);
23 § 416.929(c)(2). Among other things, the ALJ noted that neither
24 of two consultative internal-medicine evaluations supported the
25 “low level of functionality” Plaintiff claimed. (AR 443.) A
26 February 2012 evaluation noted that she reported having
27 “occasional headaches” and “sometimes get[ting] dizzy.” (AR
28 289.) She denied any fatigue, seizures, or other medical
17
1 problems. (Id.) Her memory “appeared to be average,” and she
2 “appeared to be in no acute distress.” (AR 290.) She
3 “ambulate[d] with a normal gait,” exhibited “no evidence of
4 incoordination,” and was able to perform a tandem walk. (AR 291-
5 92.) Her cerebellar testing was “intact without dysmetria16 on
6 finger-to-nose,” and heel-to-shin testing was intact. (AR 292.)
7 At an April 2018 consultative evaluation, she walked with a
8 normal gait and balance, exhibited normal muscle bulk and tone
9 without atrophy, and had 5/5 strength throughout without focal
10 motor deficits except for some weakness in her grip. (AR 443;
11 see AR 2427-29.) She reported having chronic daily headaches (AR
12 2426), but three weeks later she denied any headaches to her own
13 medical provider and reported “feeling well with no specific
14 concerns or questions.” (AR 2519.)
15 And as the ALJ noted, treatment records indicate that her
16 symptoms were not as severe or frequent as she described. For
17 instance, her reported dizziness and confusion reported in mid-
18 November 2017 had completely resolved on its own by November 30.
19 (AR 1775.) During a December neurological examination she
20 reported that the confusion had not returned. (AR 1693.) The
21 medical records showed that her headaches, too, were less
22 frequent and debilitating than she described. She reported on
23 numerous dates that she had no headaches or other symptoms, that
24 any headaches were only occasional, and that they were well
25
26
16 Dysmetria is the inability to control the distance,
speed, and range of motion necessary to perform smoothly
27 coordinated movements. Dysmetria: What Is It, Causes, Diagnosis,
Treatment, and More, Osmosis, https://www.osmosis.org/answers/
28 dysmetria (last visited June 29, 2021).
18
1 controlled with ibuprofen. (See AR 1251 (Nov. 2015), 1465 (Jan.
2 2016), 1190 (Aug. 2016), 1069 (Dec. 2016), 2068 (Jan. 2017), 1942
3 (Sept. 2017), 1775 (Nov. 2017), 1858 (Nov. 2017), 1693-94 (Dec.
4 2017), 1565 (Feb. 2018), 2066 (Feb. 2018), 2297 (Mar. 2018).)
5 At most, the few records cited by Plaintiff establish that
6 the medical evidence was susceptible of more than one rational
7 interpretation, which is insufficient to warrant reversal. See
8 Molina, 674 F.3d at 1111 (holding that in such circumstances “we
9 must uphold the ALJ’s findings if they are supported by
10 inferences reasonably drawn from the record”); Tommasetti v.
11 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ is “final
12 arbiter with respect to resolving ambiguities in the medical
13 evidence”). The ALJ properly considered the objective record in
14 discounting Plaintiff’s symptom statements.
15 ii. Conservative treatment
16 The ALJ properly discounted Plaintiff’s allegations because
17 the record showed that her symptoms were generally controlled
18 with conservative treatment. As an initial matter, Plaintiff has
19 not discussed or contested the ALJ’s reliance on this reason to
20 discount her symptom statements. By failing to do so, she
21 implicitly concedes its legitimacy. See Arlene R.M. v. Comm’r of
22 Soc. Sec., No. 17-CV-370-FVS, 2019 WL 267912, at *5 (E.D. Wash.
23 Jan. 18, 2019) (rejecting plaintiff’s argument that her
24 “credibility” was “bolstered” by certain evidence when she
25 “fail[ed] to address the reasons cited by the ALJ or demonstrate
26 any error”). For that reason alone, remand is not warranted on
27 this claim. In any event, this reason and the others the ALJ
28 gave were clear and convincing and fully supported by the record.
19
1 Parra, 481 F.3d at 750-51 (finding “conservative treatment,” such
2 as “treat[ment] with an over-the-counter pain medication,”
3 sufficient to discount claimant’s testimony as to severity of
4 impairment). Although Plaintiff took various medications for her
5 chronic cocci meningitis and periodically underwent scans to
6 evaluate her headaches, she repeatedly reported that the latter
7 resolved with ibuprofen, and she did not need stronger
8 medication, as the ALJ noted (AR 443), or more aggressive
9 treatment.
10 For instance, on November 6, 2015, she reported that she had
11 had a headache the prior week one day when waking up and that she
12 “[t]ried ibuprofen with good relief.” (AR 1251.) Although the
13 attending physician recommended that she go to the emergency room
14 “for further evaluation,” she refused, stating that she “would
15 like to defer ER admission since she [was] otherwise
16 asymptomatic.” (Id.) A January 27, 2016 neurosurgery-
17 consultation note indicates that she believed her headaches were
18 related to stress caused by her separation from her husband and
19 that when she “[took] ibuprofen 600 mg . . . [they went] away.”
20 (AR 1465.) And on August 22, 2016, she reported that her
21 headaches still occurred “2-3x/week [but were] completely
22 improve[d] with ibuprofen.” (AR 1190.) She reiterated the
23 effectiveness of her ibuprofen treatment and that she had no
24 symptoms on numerous other dates. (See AR 2068 (Jan. 2017), 1942
25 (Sept. 2017), 1775 (Nov. 2017), 1858 (Nov. 2017), 1693 (Dec.
26 2017), 1565 (Feb. 2018), 2066 (Feb. 2018), 2297 (Mar. 2018).)
27 True, she underwent surgeries in October 2011 (AR 237),
28 before her effective onset/application date, and March 2018 (AR
20
1 2265), even though her head scan was unchanged (AR 2082), to
2 place a shunt in her brain and to revise it, respectively. But
3 her conservative medication treatment consistently provided
4 effective symptom relief between those surgeries and afterward.
5 See Patricia W. v. Saul, No. SA CV 19-1537-PLA, 2020 WL 2523242,
6 at *12 (C.D. Cal. May 18, 2020) (holding that ALJ properly
7 discounted plaintiff’s testimony based on her generally
8 conservative treatment even though she underwent hip surgery,
9 given that she was able to work until four months before surgery
10 and walked with normal gait and had less hip pain after it).
11 Therefore, the ALJ properly discounted Plaintiff’s symptom
12 statements and testimony as inconsistent with her conservative
13 treatment.
14 iii. Daily activities
15 The ALJ properly discounted Plaintiff’s allegations as
16 inconsistent with her daily activities. (AR 444.) An ALJ may
17 discredit a claimant’s subjective symptom testimony “when [she]
18 reports participation in everyday activities indicating
19 capacities that are transferable to a work setting.” Molina, 674
20 F.3d at 1113. “Even where those activities suggest some
21 difficulty functioning, they may be grounds for discrediting the
22 claimant’s testimony to the extent that they contradict claims of
23 a totally debilitating impairment,” id., or “suggest” that her
24 “claims about the severity of [her] limitations were
25 exaggerated,” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,
26 693 (9th Cir. 2009).
27 The ALJ noted that Plaintiff reported at various times that
28 she had traveled out of the country, was driving, enjoyed
21
1 dancing, cared for pets, exercised, performed household chores,
2 socialized with friends on the weekends, and worked as a
3 babysitter. (AR 444-45.) The ALJ properly concluded that these
4 activities suggested some ability to work and were inconsistent
5 with her claims of complete disability. See Burch v. Barnhart,
6 400 F.3d 676, 680 (9th Cir. 2005) (ALJ properly discounted
7 plaintiff’s statements when her activities “suggest[ed] that she
8 is quite functional” because she was “able to care for her own
9 personal needs, cook, clean and shop,” “interact[] with her
10 nephew and her boyfriend,” and “manage her own finances”);
11 Fleming v. Astrue, 274 F. App’x 571, 572 (9th Cir. 2008) (ALJ
12 properly discounted plaintiff’s claims concerning effects of her
13 chronic fatigue syndrome given her daily activities, which
14 included gardening and bicycling).
15 iv. Planned pregnancy
16 Finally, the ALJ discounted Plaintiff’s symptom statements
17 as inconsistent with her plans and attempts to conceive a child.
18 As the ALJ noted, despite her alleged debilitating symptoms, “in
19 much of the medical record,” her “primary concern appear[ed] to
20 be with contraception or conceiving a child.” (AR 445.) She
21 attempted to get pregnant despite the risks a pregnancy posed for
22 someone with her condition. In fact, she discontinued the
23 medication that controlled her cocci meningitis in order to
24 accommodate a pregnancy. (AR 4636.)
25 Even assuming the ALJ erred, however, any error was harmless
26 because as discussed he provided three clear and convincing
27 reasons for partially discounting Plaintiff’s testimony —
28 inconsistency with the medical record, conservative treatment,
22
1 and daily activities. See Larkins v. Colvin, 674 F. App’x 632,
2 633 (9th Cir. 2017) (“[B]ecause the ALJ gave specific, clear and
3 convincing reasons for finding [plaintiff] not fully credible,
4 any error in the additional reasons the ALJ provided . . . was
5 harmless.”).
6 b. RFC and VE Hypotheticals
7 The ALJ properly discounted Plaintiff’s testimony, so he was
8 not required to posit hypotheticals to the VE based on her
9 subjective symptoms or include them in the RFC. (See J. Stip. at
10 5-7 (claiming that ALJ erroneously discounted her subjective
11 symptoms and therefore erred in hypotheticals he presented to
12 VE)); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)
13 (failure to include limitations in RFC was not erroneous when ALJ
14 properly discounted plaintiff’s testimony regarding severity of
15 her symptoms related to them); Batson v. Comm’r of Soc. Sec.
16 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (RFC assessment that
17 was contrary to VE’s opinion was not erroneous when ALJ properly
18 discounted testimony on which VE opinion was based). As
19 discussed, substantial evidence supported the ALJ’s discounting
20 of Plaintiff’s subjective symptom statements.
21 B. Any Error In Discounting the Lay-Witness Testimony of
22 Plaintiff’s Relatives Was Harmless
23 Plaintiff asserts that the ALJ failed to properly evaluate
24 the lay-witness testimony of her mother and aunt. (J. Stip. at
25 17-18.) For the reasons discussed below, any error was harmless.
26 1. Applicable law
27 “In determining whether a claimant is disabled, an ALJ must
28 consider lay witness testimony concerning a claimant’s ability to
23
1 work.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)
2 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053
3 (9th Cir. 2006)). “Such testimony is competent evidence and
4 ‘cannot be disregarded without comment.’” Bruce, 557 F.3d at
5 1115 (emphasis in original) (quoting Nguyen v. Chater, 100 F.3d
6 1462, 1467 (9th Cir. 1996)); Robbins, 466 F.3d at 885 (“[T]he ALJ
7 is required to account for all lay witness testimony in the
8 discussion of his or her findings.”). When rejecting the
9 statements of a lay witness, an ALJ must give specific reasons
10 germane to that witness. Diedrich v. Berryhill, 874 F.3d 634,
11 640 (9th Cir. 2017); Bruce, 557 F.3d at 1115.
12 If an ALJ errs by providing reasons that are not germane,
13 the error may be harmless. See Valentine, 574 F.3d at 694. Such
14 an error is harmless if it is “‘inconsequential to the ultimate
15 nondisability determination’ in the context of the record as a
16 whole,” Molina, 674 F.3d at 1122; see also Tommasetti, 533 F.3d
17 at 1038, as when “the same evidence that the ALJ referred to in
18 discrediting [the claimant’s] claims also discredits [the lay
19 witness’s] claims,” Molina, 674 F.3d at 1122 (alterations in
20 original) (citing Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir.
21 2011)).
22 2. The ALJ’s decision
23 The ALJ noted that Plaintiff’s aunt
24 testified that when she talks to [Plaintiff], she seems
25 lost, very quiet, and forgetful [and] reports having
26 frequent headaches and reports dizziness. She testified
27 that she and [Plaintiff] go on walks together, and
28 [Plaintiff] walks very slowly. [Plaintiff’s aunt] . . .
24
1 is afraid to leave [Plaintiff] alone and takes her along
2 when [she] leaves the house. The witness stated that
3 during the day, [Plaintiff] is sad, depressed, and does
4 not want to do very much.
5 [Plaintiff’s] mother . . . testified she is with her
6 daughter every day [and] helps her daughter to wash her
7 clothes and cook. She testified that [Plaintiff]
8 “always” has headaches[,] sometimes gets dizzy, and . .
9 . sometimes forgets things or does not understand and
10 repeats herself. She testified that sometimes a friend
11 comes to take [Plaintiff] out for a walk or to go to the
12 movies. She testified that [Plaintiff] sometimes cannot
13 lift her left leg and holds her left hand in a clenched
14 fist position. She testified that [Plaintiff] and family
15 members go to church together every Sunday, and they read
16 the Bible and books together.
17 (AR 442-43.) The ALJ reviewed this testimony and discounted it
18 for the same reasons he discounted Plaintiff’s testimony: it was
19 “inconsistent with the medical record” (AR 443), her conservative
20 treatment (id.), and her daily activities (AR 444-45).
21 3. Analysis
22 The lay-witness testimony was largely consistent with
23 Plaintiff’s, and the ALJ discounted it for the same reasons.
24 Plaintiff’s aunt testified that Plaintiff “forg[ot] things,” got
25 “[l]ots of headaches,” walked slowly, got dizzy, had loss of
26 appetite, lay down “most of the time,” had leg and hand pain, was
27 depressed, and had trouble using her left arm. (AR 502-04, 540-
28 46.) She testified that she helped Plaintiff with bathing and
25
1 making meals and went to the hospital with her. (AR 541-42.)
2 Plaintiff’s mother testified that she sometimes drove Plaintiff
3 to the hospital and doctor’s appointments, washed her clothes,
4 and cooked for her. (AR 513-14.) She added that Plaintiff had
5 dizziness, headaches, and trouble lifting her left leg and hand;
6 forgot things; and sometimes repeated questions. (AR 515, 517-
7 18.)
8 The Ninth Circuit has held that lack of support from medical
9 evidence is not a germane reason for discounting lay
10 observations, at least in some cases. See Diedrich, 874 F.3d at
11 640 (noting that lay observations “may offer a different
12 perspective than medical records alone,” which “is precisely why
13 such evidence is valuable at a hearing”). But see Bayliss, 427
14 F.3d at 1218 (inconsistency with medical evidence can be germane
15 reason for rejecting testimony of “friends and family”). Thus,
16 as a matter of law, the ALJ may have erred by discounting the
17 lay-witness observations on this ground. Any error was harmless,
18 however.
19 As discussed, the ALJ provided clear and convincing reasons
20 for discounting Plaintiff’s own testimony, thereby establishing a
21 sufficient basis for rejecting the similar statements of her
22 mother and aunt. See Valentine, 574 F.3d at 694 (finding that
23 although ALJ improperly discounted claimant’s wife’s testimony in
24 part because she was “an interested party,” any error was
25 harmless because ALJ gave clear and convincing reasons for
26 rejecting claimant’s “similar” subjective complaints); Molina,
27 674 F.3d at 1122 (holding that ALJ’s error in rejecting lay
28 witnesses’ testimony was “harmless” because “ALJ had validly
26
1} rejected all the limitations described by the lay witnesses in
discussing [claimant’s] testimony”).
3 Thus, because the ALJ provided sufficient reasons to
4} discount Plaintiff’s similar testimony, any error in discounting
5 || the lay-witness testimony was harmless and remand is not
6} warranted on this ground.
CONCLUSION
8 Consistent with the foregoing and under sentence four of 42
9WU.S.C. § 405(g), IT IS ORDERED that judgment be entered
10 |] AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s
11 | request for remand, and DISMISSING this action with prejudice.
12
13oarep: July 6, 2021 [te Freeda
JEAN ROSENBLUTH
14 U.S. Magistrate Judge
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