(SS) Ervin v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CRYSTAL ERVIN, No. 2:20-cv-1460-KJN

12 Plaintiff, ORDER

13 v. (ECF Nos. 17, 18.)

14 COMMISSIONER OF SOCIAL

SECURITY,

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Defendant.

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17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security

18 denying her application for Disability Insurance Benefits and Supplemental Security Income.1 In

19 her summary judgment motion, plaintiff contends the Administrative Law Judge erred in:

20 disregarding plaintiff’s skin condition at step two; rejecting a treating psychiatrist’s opinion;

21 resolving her subjective symptom testimony; dismissing third party testimony; and justifying the

22 RFC. Plaintiff seeks a remand for a grant of benefits. The Commissioner opposed, and filed a

23 cross-motion for summary judgment, and seeks affirmance.

24 For the reasons that follow, the court DENIES plaintiff’s motion for summary judgment,

25 GRANTS the Commissioner’s cross-motion, and AFFIRMS the final decision of the

26 Commissioner.

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1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties

28 consented to proceed before a Magistrate Judge for all purposes. (ECF Nos. 6, 9, 14.)

1 I. RELEVANT LAW

2 The Social Security Act provides for benefits for qualifying individuals unable to “engage

3 in any substantial gainfu l activity” due to “a medically determinable physical or mental

4 impairment.” 42 U.S.C. §§ 423(d)(1)(a); 1382c(a)(3). An ALJ is to follow a five-step sequence

5 when evaluating an applicant’s eligibility, summarized as follows:

6 Step one: Is the claimant engaging in substantial gainful activity? If so,

the claimant is found not disabled. If not, proceed to step two.

7 Step two: Does the clai mant have a “severe” impairment? If so, proceed

to step three. If not, then a finding of not disabled is appropriate.

8 Step three: Does the claimant’s impairment or combination of

impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404,

9 Subpt. P, App. 1? If so, the claimant is automatically determined disabled.

If not, proceed to step four.

10 Step four: Is the claimant capable of performing past relevant work? If

so, the claimant is not disabled. If not, proceed to step five.

11 Step five: Does the claimant have the residual functional capacity to

perform any other work? If so, the claimant is not disabled. If not, the

12 claimant is disabled.

13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); see also 20 C.F.R. §§ 404.1520(a)(4);

14 416.920(a)(4). The burden of proof rests with the claimant through step four, and with the

15 Commissioner at step five. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020).

16 A district court may reverse the agency’s decision only if the ALJ’s decision “contains

17 legal error or is not supported by substantial evidence.” Id. at 1154. Substantial evidence is more

18 than a mere scintilla, but less than a preponderance, i.e., “such relevant evidence as a reasonable

19 mind might accept as adequate to support a conclusion.” Id. The court reviews the record as a

20 whole, including evidence that both supports and detracts from the ALJ’s conclusion. Luther v.

21 Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the court may review only the reasons

22 provided by the ALJ in the decision and may not affirm on a ground upon which the ALJ did not

23 rely. Id. “[T]he ALJ must provide sufficient reasoning that allows [the court] to perform [a]

24 review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).

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

26 testimony, and resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is susceptible to

27 more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id. Further, the

28 court may not reverse the ALJ’s decision on account of harmless error. Id.

1 II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS

2 In 2014, plaintiff applied for Disability Insurance Benefits and Supplemental Security

3 Income, alleging an onse t date of August 1, 2013. (Administrative Transcript (“AT”) 174-75;

4 180-81.) Plaintiff claimed disability due to “Borderline Lupus; Rheumatoid Arthritis;

5 Osteoarthritis; Anxiety; Panic Attacks; Hypertension; Hypermobility Syndrome Depression;

6 Joint, Shoulder, Neck, Wrist, Knee, Hips Pain; Pulled IT Band; Torn Meniscus.” (See AT 66-

7 67.) Plaintiff’s applications were d enied initially and upon reconsideration, and she sought

8 review with an ALJ. (AT 90-91; 114-15; 128.) At a January 2017 hearing, plaintiff testified

9 about her conditions, and a vocational expert (“VE”) testified regarding the ability of a person

10 with similar impairments to perform various jobs. (AT 35-65.) An ALJ determined plaintiff was

11 not disabled, finding she could do a full range of work with certain physical and mental

12 limitations. (AT 15-27.)

13 In 2018, plaintiff appealed to this court, arguing that the ALJ erred in failing to include

14 limitations in the RFC due to her hypermobility syndrome, eczema, and obesity; weighing the

15 medical evidence regarding plaintiff’s alleged mental impairments; and discounting testimony

16 from plaintiff and three lay witnesses, and ignoring photographs. (See AT 587.) A magistrate

17 judge of this court remanded for further proceedings, finding the ALJ failed to explain why an

18 examining psychiatrist’s opinion was credited over that of plaintiff’s treating psychiatrist; the

19 court declined to address plaintiff’s other arguments. (AT 584-91.) On remand, an ALJ held

20 another hearing on March 24, 2020, where plaintiff and a VE again testified. (AT 509-42.)

21 On April 17, 2020, the ALJ issued a decision determining plaintiff was not disabled. (AT

22 487-500.) As an initial matter, the ALJ determined plaintiff met insured status through December

23 31, 2019. (AT 490.) At step one, the ALJ concluded plaintiff had not engaged in substantial

24 gainful activity since August 1, 2013. (Id.) At step two, the ALJ determined plaintiff had the

25 following severe impairments: benign hypermobility syndrome; anxiety disorder; obesity; mood

26 disorder; cannabis dependence; and lumbar degenerative disc disease. (Id.) Relevant here, the

27 ALJ found plaintiff’s reported eczema non-severe because it was effectively controlled with

28 topical creams and did not persistently outbreak. (Id.)

1 At step three, the ALJ determined plaintiff’s impairments did not meet or medically equal

2 the severity of an impairment listed in Appendix 1. (Id., citing 20 C.F.R. Part 404, Subpart P,

3 Appendix 1). Regarding t he benign hypermobility syndrome, the ALJ found plaintiff lacked

4 evidence showing “neurological changes, motor loss, major peripheral weight-bearing joint or

5 major peripheral upper extremity joint dysfunction as required by the Listings.” (AT 491.) For

6 plaintiff’s mental impairments, the ALJ considered Listing 12.04 for “depressive, bipolar, and

7 related disorders,” and 12.06 for “a nxiety and obsessive-compulsive disorders,” and considered

8 both Paragraphs B and C. (AT 491-92.) Under Paragraph B, the ALJ found moderate limitations

9 in the information, interaction and concentration categories, and mild limitations in the adaptation

10 category. (Id.) For support, the ALJ cited a 2014 examining opinion of Dr. Torrez, plaintiff’s

11 daily activities, and under ‘adapting/managing oneself,’ plaintiff’s medication regimen. (Id.)

12 The ALJ then found plaintiff had the residual functional capacity (“RFC”) to perform a

13 light work, except she “is able to occasionally stoop, bend and crouch[;] is to avoid concentrated

14 exposure to fumes, odors, dusts, chemicals and environments with poor ventilation[;] is able to

15 perform simple tasks that involve occasional public contact, but no fast-paced work.” (AT 492.)

16 In crafting this RFC, the ALJ stated she considered plaintiff’s intense, persistent, and limiting

17 symptoms alongside the medical evidence and opinions of the medical sources. (AT 493.) The

18 ALJ stated this included plaintiff’s symptom and daily-activities testimony (AT 493), medical

19 records regarding plaintiff’s benign hypermobility syndrome, eczema, anxiety and depression

20 (AT 494-96), three third-party statements (AT 497), photos from plaintiff herself (AT 496), and

21 the medical opinions of consultative examining psychiatrist Dr. Torrez, treating psychiatrist Dr.

22 Tubis, and the four State Agency medical consultants (AT 496-97). The ALJ accorded

23 “significant weight” to Dr. Torrez’s opinion on plaintiff’s mental limitations because of the

24 doctor’s assessment of plaintiff’s drug use, consideration of daily activities, and consistency with

25 and support in the medical evidence. (Id.) “Little weight” was assigned to Dr. Tubis’s January

26 2017 mental-limitations opinion because the ALJ found it focused on plaintiff’s physical

27 symptoms, was contrary to her daily activities, failed to account for her stabilized depression and

28 anxiety, and failed to address her drug and alcohol use. (AT 498.) Further, “no weight” was

1 given Dr. Tubis’s March 2017 opinion because of plaintiff’s stabilized mental condition and lack

2 of evidence regarding her hands. (Id.) Finally, the ALJ assigned “little weight” to all four State

3 Agency opinions (each o p ining that all of plaintiff’s alleged physical and mental impairments

4 were non-severe due to a lack of evidence) because they were issued in 2014 and the medical

5 evidence since then “clearly demonstrates more than a minimal effect on functionality.” (AT

6 497.) The ALJ concluded plaintiff was incapable of performing past relevant work, but found

7 there were jobs in the national econ omy she could perform, such as a router, storage facility clerk,

8 and routing clerk, and was therefore not disabled. (AT 498-500.)

9 Plaintiff then filed this action requesting judicial review of the Commissioner’s final

10 decision; the parties filed cross-motions for summary judgment. (ECF Nos. 1, 17, 18, 21.)

11 III. ISSUES PRESENTED

12 Plaintiff contends the ALJ erred in: (A) finding her skin condition non-severe at step two;

13 (B) rejecting her treating psychiatrist’s opinions; (C) resolving her subjective symptom testimony;

14 (D) dismissing third party testimony; and (E) otherwise justifying the RFC. Plaintiff seeks a

15 remand for a grant of benefits, citing the fact that this case has been remanded for further

16 proceedings once before. (ECF Nos. 17, 21.)

17 The Commissioner disagrees, arguing the ALJ properly: (A) resolved plaintiff’s skin

18 impairments at step two; (B) rejected portions of the treating physician’s opinion; (C) rejected the

19 more severe aspects of plaintiff’s subjective symptom testimony; (D) considered the lay witness

20 statements; and (E) formulated the RFC. Thus, the Commissioner contends the decision as a

21 whole is supported by substantial evidence and should result in affirmance. (ECF No. 18.)

22 IV. DISCUSSION

23 A. The ALJ adequately explained why plaintiff’s skin condition was deemed non-severe.

24 Legal Standards at Step Two

25 At step two, the ALJ is to distinguish between those impairments that are “severe” and

26 “non-severe.” See 20 C.F.R. § 404.1520. A “severe” impairment is one that significantly limits

27 the physical or mental ability to perform basic work activities. Id. “An impairment or

28 combination of impairments may be found ‘not severe’ only if the evidence establishes a slight

1 abnormality that has no more than a minimal effect on an individual’s ability to work.” Webb v.

2 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). When asserting a condition has more than a

3 minimal effect, the plain t i ff must provide medical evidence beyond a mere diagnosis and cannot

4 rely solely on symptom testimony. 20 C.F.R. 404.1529(a). However, the step two assessment is

5 a “de minimus screening device to dispose of groundless claims,” and the ALJ’s conclusion must

6 be supported by the medical evidence in the record. Smolen v. Chater, 80 F.3d 1273, 1290 (9th

7 Cir. 1996). Even when evidence in the record is “susceptible to more than one rational

8 interpretation,” the ALJ’s findings are determinative when “supported by inferences reasonably

9 drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

10 Analysis

11 Here, plaintiff has reported having eczema since 2014, and in her first set of proceedings

12 before the ALJ, this condition was deemed severe. (See AT 21.) In the current proceedings,

13 however, the ALJ concluded the condition was non-severe because it “is effectively controlled

14 with the use of topical creams” and because plaintiff “has experienced no persistent outbreaks.”

15 (AT 490.) Plaintiff contends this rationale is insufficient, given the lack of citation after this

16 sentence, the ALJ’s acknowledgement that plaintiff was hospitalized and had a wound vac

17 removed in early 2019 (see AT 496, 787), and the substance of her own testimony about her

18 conditions (AT 520-21). On the whole, however, the court finds the ALJ’s rationale here able to

19 be discerned. Molina, 674 F.3d at 1121 (“Even when an agency explains its decision with less

20 than ideal clarity, we must uphold it if the agency's path may reasonably be discerned.”).

21 The ALJ’s conclusion appears to rest on the fact that in the years leading up to the

22 decision, plaintiff had little evidence of “persistent” outbreaks beyond her own testimony, a

23 hospitalization in early 2019, and management of the condition with topical creams. The

24 regulations and case law do not permit a finding of disability solely on the basis of subjective

25 symptom testimony. See 20 C.F.R § 404.1529(a); Treichler v. Comm’r, 775 F.3d 1090, 1106

26 (9th Cir. 2014). True, medical evidence does exist here, but as plaintiff acknowledges, the record

27 lacks treatment records between 2013-2018 and contains a gap between 2018-19. Ford, 950 F.3d

28 at 1148 (noting the burden of proof rests with plaintiff through step four).

1 Turning to the evidence concerning her skin condition that was in the record, the ALJ

2 primarily cited to records from early in the proceedings noting her condition as “skin picking”

3 that was treatable with to p ical creams. (See AT 495-96, citing AT 291, 313, 376-87, 758, 887.)

4 The ALJ noted plaintiff’s testimony regarding a history of methamphetamine use earlier in these

5 proceedings, but found no limitations in the last several years from any such drug use. (AT 492

6 citing AT 402.) For more recent records, the ALJ cited a 2019 hospital stay, noting not only the

7 wound vac removal but, critically, t hat these issues had subsided after treatment. (AT 496, citing

8 AT 792, 890.) The ALJ acknowledged plaintiff’s photos, but found the whole of the record

9 outweighed them. (AT 496.) Thus, while an ideal analysis on plaintiff’s skin condition would

10 have been contained in the step-two paragraph at AT 490, an examination of the entire decision

11 indicates the ALJ performed her duties in resolving how this condition affects the outcome.

12 Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1991) (“To require [ALJs] to improve their

13 literary skills in this instance would unduly burden the . . . process.”).

14 Given the citations contained throughout the decision, the court finds no error in the ALJ’s

15 treatment of plaintiff’s eczema as a non-severe condition at step two. Smolen, 80 F.3d at (noting

16 no error where an ALJ’s conclusion is supported by the medical evidence in the record); Molina,

17 674 F.3d at 1111 (reminding that an ALJ’s findings are determinative when “supported by

18 inferences reasonably drawn from the record”).

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B. The ALJ provided specific and legitimate reasons for discounting the treating

20 psychiatrist’s opinions concerning plaintiff’s mental impairments.

Legal Standards

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22 For cases filed before March 2017, generally speaking, the ALJ is required to consider a

23 host of factors in deciding the weight given to any medical opinion. These include the examining

24 relationship, the length of the treatment relationship and frequency of examination, the nature and

25 extent of the treatment relationship, supportability, consistency with the record, specialization,

26 and any other factors deemed relevant. 20 C.F.R. § 404.1527(c)(1)-(6).

27 In order to evaluate whether an ALJ properly rejected a medical opinion, in addition to

28 considering its source, the court considers whether: (1) contradictory opinions are in /the record;

1 and (2) clinical findings support the opinions. Lester, 81 F.3d at 831. To reject the contradicted

2 opinion of a treating or examining doctor, the ALJ must provide “specific and legitimate”

3 reasons. Id. at 830. An A LJ provides specific and legitimate reasons by “setting out a detailed

4 and thorough summary of the facts and conflicting clinical evidence, stating [an] interpretation

5 thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 2011).

6 Analysis

7 Here, plaintiff’s argument f ocuses on the ALJ’s treatment of her treating psychiatrist’s

8 opinions from January and March of 2017. The January opinion from Dr. Tubis stated plaintiff

9 was “basically unable to work in any occupation due to fatigue, PTSD from loss of a business,

10 financial reversal, anxiety, depression and pain . . . .” (AT 437.) Dr. Tubis noted plaintiff’s use

11 of anti-depressants, and opined plaintiff had “very limited ability to deal with the mental stress of

12 employment.” (Id.) Dr. Tubis’s March submission included a mental impairment questionnaire,

13 which assessed a GAF score of 50 (AT 478), found plaintiff had fair/poor/no ability to function in

14 24 separate areas (AT 481-82), and found she had extreme limitations in her social abilities

15 alongside frequent limitations in her ability to concentrate, persist and maintain pace (AT 483).

16 The ALJ assigned “little weight” to the first opinion, finding it was contrary to plaintiff’s daily

17 activities, failed to account for her stabilized depression and anxiety, and failed to address her

18 drug and alcohol use. (AT 498.) Further, the ALJ assigned “no weight” to the second opinion

19 due to plaintiff’s stabilized mental condition. (Id.)

20 Plaintiff’s argument here appears to focus primarily on the fact that the ALJ preferred the

21 opinion of Dr. Torrez (a consultative examiner) over Dr. Tubis’s opinion on her mental

22 impairments, arguing the ALJ failed to provide specific and legitimate reasons to do so. The ALJ

23 accorded “significant weight” to Dr. Torrez’s opinion on plaintiff’s mental limitations, citing the

24 examining psychiatrist’s consideration of plaintiff’s drug use and daily activities, as well as the

25 opinion’s consistency with and support in the medical evidence. (Id.) Dr. Torrez found plaintiff

26 moderately limited in her ability to concentrate; mild-to-moderately limited in her ability to

27 withstand stress of a routine workday and adapt to changes in the workplace; mildly limited in her

28 ability to maintain pace and persistence for complex tasks, adapt to changes in the workplace, and

1 interact with co-workers, supervisors, and the public; and otherwise not limited. (AT 397-98.)

2 The ALJ relied heavily on this opinion, citing it when assessing moderate limitations in each of

3 the four paragraph B are a s . (AT 491-92.)

4 Regarding the ALJ’s rationale for discounting Dr. Tubis’s opinions on plaintiff’s mental

5 conditions, the court finds no error. For each of Dr. Tubis’s contentions, the ALJ offered multiple

6 reasons for discounting the extreme and frequent limitations he opined. However, consistent

7 between them was the ALJ’s findin g that plaintiff’s depression and anxiety were stable on

8 medication and that she was “doing well.” (AT 498.) The ALJ cited medical records from across

9 plaintiff’s medical history demonstrating this fact, both in the specific paragraph discounting Dr.

10 Tubis’s opinion (AT 498, citing, e.g., AT 821 and 850 (September 2019 and March 2018 reports

11 noting plaintiff’s anxiety and depression were controlled with medications)), and in the medical

12 history earlier in the decision (see AT 494, citing AT 318 (August 2012 report noting significant

13 improvement with medications, fewer panic attacks); AT 495, citing, e.g., AT 327 (August 2013

14 report noting plaintiff’s anxiety was stable with medications), AT 296 (April 2014 report noting

15 slight anxiety but otherwise normal behavior); AT 788 (negative psych findings for anxiety,

16 depression, and insomnia).) Lack of support and consistency are specific and legitimate reasons

17 to discount a medical opinion. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999)

18 (treating physician’s minimally supported opinion properly rejected); Andrews v. Shalala, 53

19 F.3d 1035, 1041 (9th Cir. 1995) (noting that inconsistency with independent clinical findings in

20 the record is a specific and legitimate reason to reject a contradicted opinion of a treating

21 physician). Plaintiff argues a condition can be stable and still be disabling, but in this instance,

22 the thrust of the ALJ’s reasoning was that plaintiff’s mental conditions were both stable and well-

23 managed with medication. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (noting that

24 an ALJ may discount a physician’s extreme opinion that is inconsistent with the conservative

25 nature of the claimant's treatment). Thus, regardless of the substance of plaintiff’s remaining

26 arguments about the ALJ’s treatment of Dr. Tubis’s opinions, the court finds no error in the

27 ALJ’s resolution of plaintiff’s mental impairments.

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1 C. The ALJ appropriately rejected the severe aspects of plaintiff’s symptom testimony.

2 Legal Standards

3 A claimant’s stat e m ents of subjective symptoms alone are insufficient grounds to establish

4 disability. 20 C.F.R § 404.1529(a). If an ALJ was required to believe every allegation of pain or

5 impairment, disability benefits would run afoul of the Social Security Act and its purpose. See

6 Treichler, 775 F.3d at 1106. In evaluating the extent to which an ALJ must credit the claimant’s

7 report of their symptoms, the Ninth Circuit has stated:

8 First, the ALJ must determine whether the claimant has presented objective

medical evidence of an underlying impairment which could reasonably be

9 expected to produce the pain or other symptoms alleged. In this analysis, the

claimant is not required to show that her impairment could reasonably be

10 expected to cause the severity of the symptom she has alleged; she need only

show that it could reasonably have caused some degree of the symptom. Nor must

11 a claimant produce objective medical evidence of the pain or fatigue itself, or the

severity thereof.

12 If the claimant satisfies the first step of this analysis, and there is no evidence of

malingering, the ALJ can reject the claimant's testimony about the severity of her

13 symptoms only by offering specific, clear and convincing reasons for doing so.

This is not an easy requirement to meet: The clear and convincing standard is the

14 most demanding required in Social Security cases.

15 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison, 759 F.3d at 1014-15).

16 The ALJ’s reasons for discounting or rejecting a claimant’s subjective symptom testimony

17 must be “sufficiently specific to allow a reviewing court to conclude the adjudicator . . . did not

18 arbitrarily discredit a claimant’s testimony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th

19 Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). Examples of

20 “specific, clear and convincing reasons” for discounting or rejecting a claimant’s subjective

21 symptom testimony include: the effectiveness of or noncompliance with a prescribed regime of

22 medical treatment, prescription of conservative treatment, inconsistencies between a claimant’s

23 testimony and conduct (including daily activities), and whether the alleged symptoms are

24 consistent with the medical evidence of record. See Tommasetti, 533 F.3d at 1040; Lingenfelter

25 v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). A lack of corroborating, objective medical

26 evidence alone is insufficient grounds for an ALJ to discount a claimant’s subjective symptoms;

27 however, it is a factor the ALJ may consider. See Rollins, 261 F.3d at 857 (citing 20 C.F.R

28 § 404.1529(c)(2)).

1 Analysis

2 Here, plaintiff disputes that the ALJ actually discredited the more severe aspects of her

3 symptom testimony, argu i ng the decision failed to identify what testimony was not credible and

4 what evidence undermined it. Plaintiff hones in on the text of the decision at AT 494-96, where

5 she contends the ALJ merely interspersed conclusory assertions into the summary of her

6 conditions, vaguely summarized the medical evidence, and restated conclusions from the

7 preceding paragraphs. Thus, plaint iff argues the ALJ did not properly evaluate her credibility,

8 deeming the decision “indiscernible.” However, plaintiff also argues the ALJ appears only to rely

9 on a lack of medical evidence in discrediting her testimony. The court finds the ALJ’s resolution

10 of plaintiff’s testimony not only discernible but also legally sufficient.

11 Regarding plaintiff’s physical conditions, the ALJ summarized plaintiff’s testimony,

12 specifically noting her pain and fatigue contentions associated with her benign hypermobility

13 syndrome (including in her hips, back, ankles, fingers, knees, and shoulders) that affect her stated

14 inability to sit, stand, and walk; the effect of her skin condition on her stated inability to sleep,

15 walk, write, keyboard, and perform daily activities; and her difficulties due to her back pain. (AT

16 493.) As to the mental conditions, the ALJ noted plaintiff’s testimony about how her anxiety and

17 depression affects her ability to sleep and leave the house as well as her testimony concerning her

18 panic attacks. (Id.) The ALJ then provides a conclusion for each of these issues on the next page

19 of the decision, noting generally the evidence concerning her hypermobility syndrome and

20 eczema and the fact that her conditions can be controlled with prescribed therapy. (AT 494.) The

21 ALJ also generally concluded the effects of plaintiff’s anxiety and depression did not appear to be

22 severe as plaintiff contended, noting the results evident in some of her medical records and

23 opinion evidence and the effectiveness of medication. (Id.)

24 What follows is the ALJ’s recounting of the medical and opinion evidence concerning

25 each of these opinions. (AT 494-96.) This includes citations to medical records stretching from

26 2012 (AT 494, citing Ex. 2F) to 2014 (AT 495, citing Ex. 1F) that recorded the effects of

27 plaintiff’s hypermobility syndrome, including that plaintiff’s pain appeared controllable with

28 juicing, exercise, heading pads, spas, bandaging of joints, massage therapy, weight loss, physical

1 therapy, and exercise. This also includes similar citations and findings concerning plaintiff’s skin

2 condition (AT 495-96, citing Ex. 1F, 4F, 7F, and 16F) and back pain (AT 496, citing Ex. 14F).

3 Also throughout this sec t i on is detailed the evidence concerning plaintiff’s anxiety and

4 depression, with similar citations to the record from 2012-14 (AT 494-95, citing Exs. 1F, 2F, and

5 11F) and 2018-2019 (AT 495-96, citing Exs. 8F, 14F, 15F, and 17F).

6 Taken together, the court reads the ALJ’s decision as one discounting the more severe

7 aspects of plaintiff’s physical and m ental symptom testimony due to conflicting evidence in the

8 medical record, the use of conservative treatment, and the fact that these impairments could be

9 controlled with medication. These are legally sufficient reasons for the ALJ’s decision on

10 plaintiff’s symptom testimony. See Rollins, 261 F.3d 857 (finding that medical evidence can be

11 considered if paired with other reasons); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“We

12 have previously indicated that evidence of conservative treatment is sufficient to discount a

13 claimant’s testimony regarding severity of an impairment”); Warre v. Comm’r, 439 F.3d 1001,

14 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not

15 disabling”). Further, given the analysis, the court is satisfied the ALJ “did not arbitrarily discredit

16 a claimant’s testimony.” Brown-Hunter, 806 F.3d at 483. Thus, the court rejects the point of

17 error concerning the ALJ’s resolution of plaintiff’s subjective symptom testimony.

18 D. The ALJ did not commit harmful error regarding the third-party statements.

19 “[C]ompetent lay witness testimony cannot be disregarded without comment.” Molina,

20 674 F.3d at 1114 (internal quotation and citation omitted). “[I]n order to discount competent lay

21 witness testimony, the ALJ must give reasons that are germane to each witness.” Id. “Further,

22 the reasons ‘germane to each witness’ must be specific.” Bruce v. Astrue, 557 F.3d 1113, 1115

23 (9th Cir. 2009).

24 Contradictory evidence in the record is a germane reason for rejecting lay testimony. See

25 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Additionally, when the ALJ provides clear

26 and convincing reasons for discounting the claimant’s subjective complaints, and third-party

27 witness testimony is similar to claimant’s subjective complaints, the ALJ also provides germane

28 reasons for rejecting the third-party witness testimony. See Valentine v. Comm’r, 574 F.3d 685,

1 694 (9th Cir. 2009) (the ALJ provided germane reasons for rejecting third-party witness

2 testimony similar to claimant’s subjective testimony where the ALJ provided clear and

3 convincing reasons for re j ecting claimant’s subjective testimony).

4 Here, the ALJ noted that she considered the observations of plaintiff’s neighbor, her

5 daughter, and a friend, but found the statements did not support a conclusion plaintiff was

6 precluded from all work. (AT 498, citing AT 237, 238, and 239-40.) Plaintiff contends this

7 rationale is insufficient under the pr e-2017 regulations. The court agrees that the ALJ could have

8 provided a much more thorough explanation for why these statements were rejected. However,

9 the court finds any such error harmless, as the ALJ sufficiently discounted similar statements

10 from plaintiff herself and the court has just concluded there was no error with that portion of the

11 decision. See Valentine, 574 F.3d at 694.

12 E. The court finds no other error in the ALJ’s formulation of the RFC.

13 The regulations define the residual functional capacity (“RFC”) as “the most you can still

14 do despite your limitations.” 20 C.F.R. § 404.1545(a). In determining plaintiff’s RFC, an ALJ is

15 to consider the objective medical evidence and other evidence. See Id. at sub. (b)-(d) (concerning

16 the assessment of physical, mental, and other abilities); see also 20 C.F.R. § 404.1529 (governing

17 how symptoms are to be evaluated). The ALJ is responsible for assessing the RFC at the hearing

18 stage. 20 C.F.R. § 404.1546(c). An ALJ may synthesize and translate assessed limitations into

19 an RFC assessment without repeating each functional limitation verbatim in the RFC assessment.

20 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008).

21 Plaintiff contends “there is no explanation for the residual functional capacity,”

22 specifically arguing it is unclear how Dr. Torrez’s “mild to moderate” limitations became “simple

23 tasks that involve occasional public contact but no fast-paced work,” how the evidence of

24 plaintiff’s DDD translated into light work, and how the intermittent muscle pain from her

25 hypermobility syndrome is incorporated. Plaintiff also restates her challenge concerning the ALJ

26 rejection of Dr. Tubis’s mental opinion, plaintiff’s subjective symptom testimony, her allegations

27 concerning her skin condition, and the third-party statements.

28 ///

1 Reading the decision as a whole, the court reads it as one where the ALJ relied on the

2 medical evidence in the record and, for plaintiff’s mental conditions, Dr. Torrez’s opinion, in

3 formulating the RFC. (S e e AT 494-98.) With each limitation, the ALJ provided citation to the

4 record from plaintiff’s longitudinal medical records, which constitutes substantial evidence.

5 Ford, 950 F.3d at 1154 (noting that substantial evidence is more than a mere scintilla, but less

6 than a preponderance, i.e., “such relevant evidence as a reasonable mind might accept as adequate

7 to support a conclusion.”). Further , courts have found no legal error in similar translations of a

8 doctor’s mental limitations into the RFC. See, e.g., Shaibi v Berryhill, 883 F.3d 1102, 1107 (9th

9 Cir. 2017) (holding the ALJ adequately accounted for doctor's opinion about claimant's

10 “moderate” social limitations by limiting him to “simple routine tasks in a non-public setting,

11 with ‘occasional’ interaction with co-workers”).

12 The ALJ accounted for all conditions and recognized relevant medical records in

13 resolving her alleged physical limitations corresponding with light work. (See AT 494, citing Ex.

14 2F (records from August 2012 showing normal gait); AT 495, citing Ex. 11F (evidence showing

15 plaintiff could work when seated and when paired with rehab); Ex. 4F (August 2013 records

16 showing normal gait, mild lower extremity edema, and moving extremities well); AT 496, citing

17 Ex. 14F (noting mild findings regarding plaintiff’s DDD). As to Dr. Tubis’s opinions on

18 plaintiff’s physical impairments, the ALJ was authorized to give this less weight given that it was

19 outside the doctor’s specialty and given its inconsistency with the medical record already cited.

20 See 20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the opinion of a specialist

21 about medical issues related to his or her area of specialty than to the opinion of a source who is

22 not a specialist”); Andrews, 53 F.3d at 1041 (inconsistency). To the extent the ALJ did not

23 discuss plaintiff’s physical conditions as they existed between 2014 and 2019, plaintiff recognizes

24 the gap in records. See Ford, 950 F.3d 1141, 1148 (9th Cir. 2020) (reminding that the burden of

25 proof rests with the claimant through step four).

26 As to plaintiff’s arguments in this last section concerning the challenges already resolved

27 above (step-two eczema, Dr. Tubis’s mental opinions, plaintiff’s testimony, and the third-party

28 statements), the court will not repeat the analysis here. Rather, the court simply notes it has

1 | rejected many of plaintiffs challenges, and those arguments do not alter the court’s findings on

2 | the ALJ’s RFC assessment.

3] V. CONCLUSION

4 Finally, the court notes plaintiff's briefing contains a number of arguments interspersed

5 || throughout as to the quality of the ALJ’s decision. (See, e.g., ECF No. 17 at 15:5 (noting the

6 || ALJ’s apparent misuse of the word “all” in contradiction to other evidence noted by the ALJ).)

7 || For clarity, the court constrained its analysis to each major challenge in each section. The court

8 | finds no error in any remaining argument raised by plaintiff in her briefing, as the court has been

9 || able to perform a review and understand the ALJ’s rationale. Lambert, 980 F.3d at 1277; see also

10 || T-Mobile South, LLC v. City of Roswell, Ga., 135 S. Ct. 808, 815 (2015) (recognizing in an

11 || administrative proceeding, an agency’s reasons need not be “elaborate or even sophisticated, but

12 || rather... simply clear enough to enable judicial review.”); Magallanes, 881 F.2d at 755 (“[A]

13 || reviewing court [is] not deprived of [its] faculties for drawing specific and legitimate inferences

14 | from the ALJ’s opinion.”).

15 Beyond plaintiffs challenges, the court finds that the ALJ’s decision otherwise supported

16 || by substantial evidence in the record as a whole. Ford, 950 F.3d at 1148 (noting that a district

17 || court may reverse only if the ALJ’s decision “contains legal error or is not supported by

18 || substantial evidence”).

19 Accordingly, IT IS HEREBY ORDERED that:

20 1. Plaintiff's motion for summary judgment (ECF No. 17) is DENIED;

21 2. The Commissioner’s cross-motion (ECF No. 18) is GRANTED;

22 3. The final decision of the Commissioner is AFFIRMED; and

23 4. The Clerk of Court is directed to CLOSE this case.

24 | Dated: September 12, 2022

Foci) Aharon

2% KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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08 ervi.1460

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