Opinion

(SS) Trujillo v. Commissioner of Social Security

Court: District Court, E.D. California
Filed: Aug 14, 2023
Cited by: 0 cases
Authority: More cited than 18.4%

holding that the ability to engage in frequent reaching and handling is not clearly inconsistent with the inability to engage in excessive or repetitive use of the hands

How later courts described this case

holding that the ability to engage in frequent reaching and handling is not clearly inconsistent with the inability to engage in excessive or repetitive use of the hands
ALJ formulated claimant’s residual functional capacity based on magnetic resonance images without the benefit of any medical opinion about the functional limitations 27 attributable to the impairments depicted in the images

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DARLENE ALICE TRUJILLO, No. 1:21-cv-00273-JLT-GSA

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

7 TO DIRECT ENTRY OF JUDGMENT IN

KILOLO KIJAKAZI, acting FAVOR OF DEFENDANT

8 Commissioner of Social Security, COMMISSIONER OF SOCIAL SECURITY

AND AGAINST PLAINTIFF

Defendant. (Doc. 24, 27)

OBJECTIONS DUE WITHIN FOURTEEN

11 (14) DAYS

I. Introduction

Plaintiff Darlene Alice Trujillo (“Plaintiff”) seeks judicial review of a final decision of the

Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for

supplemental security income pursuant to Title XVI of the Social Security Act. The matter is before

the undersigned for issuance of Findings and Recommendations based on the parties’ briefs.1 Docs.

24, 27. After reviewing the record the undersigned finds that substantial evidence and applicable

law support the ALJ’s decision and recommends that the Court direct entry of judgment in favor of

Defendant, against Plaintiff, affirming the final decision of the Commissioner of Social Security.

II. Factual and Procedural Background2

On October 26, 2018 Plaintiff applied for supplemental security income. The

Commissioner denied the application initially on January 22, 2019 and on reconsideration on March

6, 2019. A hearing was held before an Administrative Law Judge (the “ALJ”) on May 19, 2020.

AR 35–72. On June 1, 2020 the ALJ issued an unfavorable decision. AR 17–34. The Appeals

Council denied review on August 10, 2020. AR 6–11.

1 The parties did not consent to jurisdiction of the Magistrate Judge. See Docs 8, 11. Accordingly, the matter was

27 assigned to “Unassigned” District Judge and subsequently reassigned to District Judge Jennifer Thurston. Doc. 9, 22.

2 The undersigned has reviewed the relevant portions of the administrative record including the medical, opinion and

28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant

portions will be referenced in the course of the analysis below when relevant to the parties’ arguments.

III. The Disability Standard

2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the

3 Commissioner denying a claimant disability benefits. “This court may set aside the

4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

6 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the

7 record that could lead a reasonable mind to accept a conclusion regarding disability status. See

8 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a

preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted).

When performing this analysis, the court must “consider the entire record as a whole and

may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social

Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the

evidence could reasonably support two conclusions, the court “may not substitute its judgment for

that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066

(9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless

error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the

ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

To qualify for benefits under the Social Security Act, a plaintiff must establish that

19 he or she is unable to engage in substantial gainful activity due to a medically

determinable physical or mental impairment that has lasted or can be expected to

last for a continuous period of not less than twelve months. 42 U.S.C. §

21 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . .

his physical or mental impairment or impairments are of such severity that he is not

22 only unable to do his previous work, but cannot, considering his age, education, and

work experience, engage in any other kind of substantial gainful work which exists

23 in the national economy, regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy exists for him, or whether

he would be hired if he applied for work.

25 42 U.S.C. §1382c(a)(3)(B).

26 To achieve uniformity in the decision-making process, the Commissioner has established a

27 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)-

28 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the

claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

2 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial

3 gainful activity during the period of alleged disability, (2) whether the claimant had medically

4 determinable “severe impairments,” (3) whether these impairments meet or are medically

5 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4)

6 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant

7 work, and (5) whether the claimant had the ability to perform other jobs existing in significant

8 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears

the burden of proof at steps one through four, the burden shifts to the commissioner at step five to

prove that Plaintiff can perform other work in the national economy given her RFC, age, education

and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).

IV. The ALJ’s Decision

At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since

her application date of October 26, 2018. AR 23. At step two the ALJ found that Plaintiff had the

following severe impairments: multiple hemangiomas, symptomatic cholelithiasis, small hiatal

hernia, costochondritis, generalized osteoarthritis, and asthma. AR 23–24. At step three the ALJ

found that Plaintiff did not have an impairment or combination thereof that met or medically

equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

AR 24–25.

Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and

concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 416.967(b) with

the following additional restrictions:

. . . she should avoid prolonged exposure to concentrated chemicals, dust, fumes,

24 and gases. Claimant must avoid extreme workplace hazards such as unprotected

heights or dangerous moving machinery. Claimant may only frequently, as opposed

to repetitively, handle and finger bilaterally.

AR 25–29.

At step four the ALJ concluded that Plaintiff could perform her past relevant work as a nut

sorter and bottle line attendant. AR 29–30. Accordingly, the ALJ concluded that Plaintiff was not

disabled at any time since her application date of October 26, 2018. AR 30.

4 V. Issues Presented

5 Plaintiff asserts two claims of error: 1) that the ALJ erred by failing to develop the record

6 with an updated assessment of Plaintiff’s limitations, and 2) that the ALJ “failed to include work-

7 related limitations in the RFC consistent with the nature and intensity of Plaintiff’s limitations, and

8 failed to offer clear and convincing reasons for rejecting Plaintiff’s subjective complaints.” Br. at

9 1, Doc. 24.

10 A. Failure to Develop the Record

1. Applicable Law

Before proceeding to step four, the ALJ must first determine the claimant’s residual

functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2

(C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations”

16 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1),

17 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are

not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p.

In doing so, the ALJ must determine credibility, resolve conflicts in medical testimony and

resolve evidentiary ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). “In

determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record such as

23 medical records, lay evidence and the effects of symptoms, including pain, that are reasonably

24 attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R.

25 § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical and other

evidence). “The ALJ can meet this burden by setting out a detailed and thorough summary of the

facts and conflicting evidence, stating his interpretation thereof, and making findings.” Magallanes

v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

Cir. 1986)).

The ALJ’s duty to further develop the record is triggered only where the evidence is

5 ambiguous or inadequate to allow for proper evaluation. 20 C.F.R. §404.1527(c)(3); Mayes v.

6 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).

7 2. Analysis

8 Dr. Wagner conducted a consultative physical examination of Plaintiff on January 5, 2019.

AR 452–57. He opined Plaintiff could perform medium exertional lifting/carrying (25 pounds

frequently and 50 occasionally) with some environmental limitations (exposure to chemicals, dust,

fumes and gases) but no sitting, standing, or walking limitations, no postural limitations, and no

13 manipulative limitations. AR 456. Drs. Bobba and Mitchell similarly opined at the initial and

14 reconsideration levels in January and March of 2019. AR 132–34; 146–48.

15 The ALJ found support for the restriction on pulmonary irritants, but that the opinions were

otherwise unpersuasive in that “The evidence of record supports a finding of greater exertional

limitations, as well as additional manipulative and environmental limitations.” AR 28.

Plaintiff contends that: 1) Dr. Wagner’s opinion was based only upon hypertension, asthma,

liver hemangiomas, and gallstones; 2) the ALJ also found additional impairments of hiatal hernia,

21 costochondritis, and generalized OA; 3) that the ALJ found the record supported additional

22 limitations; and, 4) The ALJ was not qualified to interpret the additional clinical findings without

assistance from a medical expert, and committed legal error by failing to obtain updated medical

opinion evidence. Br. at 8. These contentions are not entirely factually or legally supported.

The RFC need not mirror a particular opinion; it is an assessment formulated by the ALJ

based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). During the gap in time between

28 the initial/reconsideration determinations and the ALJ’s subsequent hearing decision, claimants

often continue pursuing care and generate additional medical records which the ALJ admits into

the record. Thus, an ALJ is almost always tasked with performing some independent review of

medical evidence that was never considered by one of the agency’s reviewing physicians and then

5 translating the same into an RFC. This is consistent with the ALJ’s role. See Rounds v. Comm’r

6 of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015), (“[T]he ALJ is responsible for translating and

7 incorporating clinical findings into a succinct RFC.”).

8 Further, the regulations provide that the agency may obtain a consultative examination to

resolve evidentiary ambiguity or insufficiency, not that an ALJ must do so in every case. See 20

C.F.R. § 404.1519; Meadows v. Saul, 807 F. App’x 643, 647 (9th Cir. 2020). Thus, the timing of

the consultative exam cannot, in and of itself, render the record ambiguous or inadequate for

13 adjudication because the regulations do not require the agency to obtain a consultative exam at all.

14 Plaintiff appears to suggest that Dr. Wagner’s opinion was either stale or based on only a

15 partial view of Plaintiff’s conditions. Hypertension, asthma, liver hemangiomas, and gallstones

were the only four conditions listed under “Diagnoses” in Dr. Wagner’s opinion, but it does not

necessarily follow that these were the only conditions upon which he based his opinion. Br. at 456.

Dr. Wagner noted under “history of present illness” that Plaintiff complained of costochondritis

bilaterally. Br. at 453. He also noted that her past medical history was significant for “possible

21 hiatial hernia.” Br. at 453. Under “review of symptoms” Dr. Wagner noted complaints of hand

22 stiffness and he observed “she has some Heberden’s nodules and some mild bony enlargement of

the joints of the hands consistent with early osteoarthritis,” and that “she has perhaps a slight bit of

difficulty making a tight fist.” AR 453. To the extent those conditions caused functional

limitations, that would have been apparent during Dr. Wagner’s exam irrespective of whether he

identified them as formal diagnoses, possible diagnoses, or merely symptoms.

28 As to the records the ALJ independently reviewed, there is no authority delineating the

permissible scope of an ALJ’s independent medical record review. Cases addressing this issue do,

however, frown upon an ALJ independently interpretating “raw medical data” such as complex

imaging and laboratory testing results, and find harmful error particularly where such records are

5 generated following a new injury not previously considered by the reviewing physicians or a

6 worsening of an existing injury.3

7 The ALJ described the records post- dating Dr. Wagner’s January 2019 exam as follows:

8 A February 2019 biopsy of the claimant’s gallbladder indicated cholelithiasis, but

no dysplasia or malignancy (Ex. B6F). A February 201 9 chest X-ray was normal

with no pneumothorax or effusion (Ex. B4F/28).

Claimant presented for a laparoscopic cholecystectomy in February 2019 (Exs.

11 B4F/22-23; B7F/27-55). Claimant subsequently presented to the emergency room

in March 2019 complaining of flank pain. A CT scan showed hepatic lesions and a

small hiatal hernia. Claimant was discharged with instruction to follow-up with her

13 care providers (Ex. B7F/20-25).

14 Claimant returned to Dr. Kesavaramanujam in March 2019 for evaluation after

visiting the emergency room. Dr. Kesavaramanujam noted that CT scans showed

15 unchanged hepatic lesions and hiatal hernia. On examination, claimant presented

with normal gait and well-healing surgical scars in the abdomen. Dr.

Kesavaramanujam noted “no red flags found” and recommended follow-up on an

17 as-needed basis (Ex. B8F/2-4).

18 Claimant returned to Dr. Kesavaramanujam in July 2019. She reported intermittent

abdominal discomfort. On examination, claimant presented with lungs clear to

19 auscultation, no chest wall tenderness, no costovertebral angle tenderness, normal

range of motion, and normal strength throughout (Ex. B8F/5-8).

21 During a November 2019 primary care appointment, claimant denied any abdominal

pain or cramping. Kristina Komar, N.P., noted lungs clear to auscultation, and an

22 intact motor and sensory examination. Claimant was continued on her albuterol

inhaler (Ex. B5F/9-10).

In a January 2020 primary care appointments, claimant reported “slight pain” but

noted she was taking only acetaminophen. It was noted that claimant had presented

25 for multiple emergency room visits with CT scans in the previous years and she was

26 3 See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (ALJ formulated claimant’s residual functional capacity

based on magnetic resonance images without the benefit of any medical opinion about the functional limitations

27 attributable to the impairments depicted in the images); Goodman v. Berryhill, No. 2:17-CV-01228 CKD, 2019 WL

79016, at *5 (E.D. Cal. Jan. 2, 2019) (finding that the ALJ erred in adopting state agency consultants’ opinions which

28 were rendered before “plaintiff sustained a fall in November 2014” and before “an April 2015 MRI of the lumbar

spine [which] showed L1 compression deformity with worsened kyphosis . . .”).

advised to avoid further CT scans due to the radiation. Claimant was referred to

2 gastroenterology for evaluation of her hiatal hernia (Ex. B5F/5-9).

3 A February 2020 ultrasound of the claimant’s abdomen showed a minimally

enlarged fatty liver with small and unchanged hemangioma as well as interval

4 cholecystectomy without acute process (Ex. B5F/3).

AR 26-27.

Unlike the caselaw cited above in footnote 3, the ALJ’s discussion here does not suggest

the ALJ independently interpreted raw medical data, complex imaging findings, or records

concerning new or worsening impairments not considered b y one of the agency’s reviewing or

10 examining physicians.

11 The February 2019 gallbladder biopsy revealing cholelithiasis (gallstones) and the

subsequent cholecystectomy (gallbladder removal) were not novel developments. The agency

reviewer on reconsideration (Dr. Bobba) had access to those records, was aware of the cholelithiasis

diagnosis and the pending referral for cholecystectomy, as was Dr. Wagner. AR 144; 453.

The fact that Plaintiff did in fact undergo the cholecystectomy as planned does not speak to

17 new or worsening limitations arising from the procedure as compared to the pre-surgical records

18 reviewed by the agency physicians. The post-surgical examination records do not suggest any

19 period of extended recovery, complications, or associated limitation. To the contrary, as the ALJ

noted, a follow up examination with Dr. Kesavaramanujam in March 2019 noted well-healing

surgical scars with “no red flags found”, and Plaintiff was advised to follow-up on an as-needed

basis. AR 27 (citing Ex. B8F/2-4, AR 606–607). These examination notes were self-explanatory

and no expert medical guidance was needed for the ALJ to decipher them.

25 The March 2019 ER visit for flank pain also did not appear to yield any novel findings.

26 Although the CT scan showed small hiatial hernia and hepatic lesions, the hepatic lesions (aka

“benign hemangiomata”) and hiatial hernia were pre-existing diagnoses dating back to CT scans

and Ultrasounds from May 2017 as described by the ALJ. AR 26 (citing Ex. B7F/63-101, AR 567;

585). Those diagnoses pre-dated the agency physicians’ review and Dr. Wagner’s examination,

and there is no reason to believe the conditions worsened thereafter. To the contrary, a February

2020 ultrasound noted “hemangioma unchanged” as described by the ALJ. AR 27 (citing Ex.

5 B5F/3, AR 491).

6 Similarly, there is no basis to find the ALJ erred in independently interpreting records

7 concerning her costochondritis. The diagnosis dates back to May 2018 as described by the ALJ,

8 AR 26 (citing Ex. B2F/17-18, AR 413–414), which predated the agency physician’s review at the

initial and reconsideration levels and also predated Dr. Wagner’s consultative examination. To the

extent there were any novel developments thereafter related to this condition in the records cited

by the ALJ above, there was nothing for the ALJ to interpret as they were self-evidently negative.

13 See AR 27 (citing Ex. B8F/5-8, AR 609–12) (no chest wall tenderness and no costovertebral angle

14 tenderness). In sum, Plaintiff does not identify any particular records the ALJ impermissibly or

15 inadequately interpreted, nor is there anything apparently anomalous about the ALJ’s independent

review of medical evidence here that would have required an updated opinion of a medical expert.

B. Manipulative Limitations

Plaintiff disputes the ALJ’s finding that she can perform handling and fingering “frequently,

as opposed to repetitively.” AR 25. Plaintiff cites cases noting frequency and repetition are distinct

21 concepts in that a job may require only frequent (2/3 of 8-hour day), or even occasional (1/3)

22 manipulation, but still require some degree of repetition. Br. at 9 (citing Jacques v. Colvin, CV 12-

2550-SP, 2013 WL 812100, at *5 (C.D. Cal. Feb. 25, 2013)).

Defendant responds that the Ninth Circuit has found “the ability to engage in frequent

reaching and handling is not clearly inconsistent with the inability to engage in excessive or

repetitive use of the hands.” Resp. at 11, Doc. 27 (citing Stark v. Astrue, 462 F. App’x 756, 756-

28 57 (9th Cir. 2011) (holding that the ability to engage in frequent reaching and handling is not clearly

inconsistent with the inability to engage in excessive or repetitive use of the hands).

To Plaintiff’s point, it is not necessarily the case that a limitation to frequent handling and

fingering rules out the possibility of repetitive handling and fingering. If a job requires only 2 hours

5 of total daily handling and fingering (much less than 2/3 of an 8-hour day), but those activities must

6 be performed in succession with no break in the action, then that would be repetitive in the ordinary

7 sense of the word. Conversely, to Defendant’s point, a job requiring frequent handling and

8 fingering does not necessarily require repetitive handling and fingering. A job conceivably might

require 6 hours of total daily manipulative activity, but with other tasks interspersed.

Here, the ALJ appeared to be under the mistaken impression that limiting Plaintiff to

frequent handling and fingering ruled out the possibility of repetitive handling and fingering. See

13 AR 29 (“Therefore I have limited her to frequent handling and fingering to avoid repetitive use of

14 her hands . . . Claimant may only frequently, as opposed to repetitively, handle and finger

15 bilaterally.”). If repetitive handling and fingering was precluded, at least one of Plaintiff’s two

previous jobs would likely be eliminated (nut sorter, unskilled, sedentary per the DOT) given that

“[m]ost unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-

finger actions.” SSR 83-10, 1983 WL 31251, at * 5 (emphasis added).

Defendant nevertheless reasons that the ALJ “clearly used the term ‘repetitive’ as

21 synonymous with ‘constant, and, because the term ‘repetitive’ has no fixed meaning in the

22 regulations, this Court should affirm.” Resp. at 11. Although it is a close call, the undersigned

agrees remand is not warranted solely for the ALJ to correct the imprecise language used as the

evidence here does not support restrictions beyond frequent handling and fingering.

As the ALJ noted, there was no evidence to support a medically determinable impairment

of carpal tunnel syndrome. AR 23–24. Plaintiff testified to a vague recollection of being referred

28 to therapy for the condition years earlier, that they would put her hands in ice and wax, and that Dr.

Tim (perhaps the physical therapist) “checked me and said I have carpal tunnel.” AR 61–62.

As to her bilateral hand osteoarthritis, the evidence is also limited. Plaintiff testified she

had not been referred to a specialist and was taking ibuprofen and Tylenol for pain. AR 62–63.

5 The medical evidence reflects a diagnosis of “Generalized OA (Polyarthritis, unspecified)” though

6 it was rendered in the context of a visit to address a chief complaint of shoulder pain. AR 349–

7 350.

8 The consultative examiner, Dr. Wagner, provided what appears to be the only detailed

examination findings regarding Plaintiff’s hand arthritis noting, “Heberden’s nodules and some

mild bony enlargement of the joints of the hands consistent with early osteoarthritis,” that “she has

perhaps a slight bit of difficulty making a tight fist,” but he nevertheless opined that she had no

13 manipulative limitations. AR 453, 456. In Jacques, by contrast (which Plaintiff cites in support

14 of her argument), the examining physician opined the claimant could not perform repetitive

15 grasping or gripping. Jacques v. Colvin, No. CV 12-2550-SP, 2013 WL 812100, at *5 (C.D. Cal.

Feb. 25, 2013). There is no such opinion in the record here.

Relatedly. Plaintiff’s daughter provided a third party statement noting, among other things,

“during last five years I noticed that she has a hard time with a lot of things, her hands started

getting stuck, she couldn't bend her fingers. I would notice that when she tried to wash dishes and

21 her hands wound got swollen and puffy, she couldn't wash dishes for a long time. She would try to

22 clean them all and she would end up dropping dishes and breaking them.” AR 335–36.

In sum, the evidence does support some manipulative limitations attributable to hand

arthritis, but not beyond a restriction to frequent handling and fingering.

C. Plaintiff’s Subjective Complaints

1. Applicable Law

28 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record

such as medical records, lay evidence and the effects of symptoms, including pain, that are

reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also

20 C.F.R. § 404.1545(a)(3).

5 The ALJ is responsible for determining credibility,4 resolving conflicts in medical

6 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A

7 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental

8 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p.

An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding

subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective

13 medical evidence of an impairment that could reasonably be expected to produce some degree of

14 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the

15 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the

intensity and persistence of [the claimant’s] symptoms to determine the extent to which the

symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2.

An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and

convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p

21 at *10. Subjective testimony “cannot be rejected on the sole ground that it is not fully corroborated

22 by objective medical evidence,” but the medical evidence “is still a relevant factor in determining

the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857

(9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)).

27 4 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling

16-3p eliminated the use of the term “credibility” to emphasize that subjective symptom evaluation is not “an

28 examination of an individual’s character” but an endeavor to “determine how symptoms limit ability to perform work-

related activities.” S.S.R. 16-3p at 1-2.

The ALJ must examine the record as a whole, including objective medical evidence; the

claimant’s representations of the intensity, persistence and limiting effects of his symptoms;

statements and other information from medical providers and other third parties; and any other

5 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5.

6 2. Analysis

7 Plaintiff emphasizes her testimony that, among other things, she can stand and walk no more

8 than an hour, lift only a half gallon of milk, and struggles with daily activities due to hand pain,

stiffness, and daily sharp pain in her chest, lower ribs and abdomen which remains strong despite

gallbladder removal surgery.

After summarizing the medical evidence, the ALJ found that “despite claimant’s allegations

13 that she is unable to sit, stand, walk and move freely, lift objects, or successfully complete many

14 activities of daily living, the record establishes that clinical examination findings and objective

15 medical studies have been largely mild to moderate overall and at least relatively stable; with

claimant reporting at least some improvement with medications and surgical repair.” AR 27.

The ALJ also noted at the end of the RFC analysis that Plaintiff “suffered from occasional

epigastric abdominal pain, and occasion pain in her lower ribs. The pain is not consistent and she

has numerous normal physical exams, including normal abdominal exams. Physical exams do not

21 generally demonstrated loss of function or range of motion, or strength.” AR 29.

22 Plaintiff disputes the ALJ’s discussion of the objective evidence as insufficiently specific

insofar as the ALJ did not identify which evidence undermines which pieces of testimony. The

ALJ’s clear and concise discussion of the fairly limited straightforward medical records

substantiates the generalization the ALJ provided at the beginning and end of the RFC analysis. No

inferential leaps are required to reach that conclusion. The physical exams described mild to

28 moderate abnormalities with several normal abdominal exams, normal range, and normal strength.

The ALJ described the following examinations: 1) May 2017 (mildly tender to deep

palpation of the liver, no costovertebral tenderness, intact breath sounds, normal ROM) (AR 569);

2) February 2018 (non-tender abdomen, normal gait, normal ROM) (AR 404); 3) May 2018 (same)

5 (AR 413); 4) January 2019 (minimally tender abdomen, normal strength, normal range of motion)

6 (454–55); 5) July 2019 (“gastrointestinal: soft, nontender,” no chest wall tenderness, no

7 costovertebral angle tenderness, normal ROM, and normal strength); 6) November 2019 (denied

8 abdominal pain or cramping) (AR 498); and, 7) January 2020 (reported “slight pain”) (AR 493).

Plaintiff at times did report severe pain “like someone punching her in the stomach,” she

visited the ER several times, and she ultimately underwent gallbladder removal surgery after which

she stated the pain remained at level 10/10. Ar. 405, 448-449, 496, 569. Nevertheless as the ALJ

13 noted, other evidence reflects Plaintiff’s pain responded to medication. Indeed, she testified her

14 pain comes and goes mostly in the afternoon, and that ibuprofen and Tylenol reduced it from 10/10

15 to 4/10. AR 54-55. Impairments controlled effectively with medication are generally not

disabling. Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006).

The ALJ also cited Plaintiff’s failure to complete the adult function report, which Plaintiff

reasonably disputes. The function report was largely duplicative of issues discussed at the hearing.

Plaintiff further disputes the ALJ’s reliance on Plaintiff’s activities of daily living, including:

21 “caring for her teenage granddaughter, riding in cars, going to doctor’s appointments, walking to

22 the store, shopping, providing part-time caretaking services, and spending time with her family.”

AR 28. An ALJ can rely on a claimant’s daily activities to discredit claimant testimony if: (1) the

daily activities contradict the claimant’s other testimony; or (2) “a claimant is able to spend a

substantial part of [her] day engaged in pursuits involving the performance of physical functions

that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

28 The ALJ’s discussion here did not add to the persuasiveness of the ALJ’s decision. Caring

for her teenage granddaughter and spending time with family are non-specific. Riding in cars

doesn’t undermine any of Plaintiff’s contentions as she alleged no difficulty with sitting. AR 64.

It should require no explanation that “going to doctor’s appointments” is not an activity inconsistent

5 with a contention of debilitating pain. Indeed, ALJs often cite not going to doctors’ appointments

6 (e.g., gaps in treatment or failure to follow up) for the same purpose.

7 As to the part-time caretaking services, Defendant contends such work activity is

8 inconsistent with total disability. Resp. at 14 (citing Sample v. Schweiker, 694 F.2d 639, 642, 643 (9th

Cir.1982) (ALJ entitled to accept admission that claimant actively looking for work to be a tacit

admission that he could perform substantial gainful activity). But Plaintiff testified she was let go

because she was sitting down too much due to pain in her side, which does not undermine her

contention that she still cannot work due to pain in her side. AR 47. An unsuccessful work attempt

14 is not considered a clear and convincing reason to reject a claimant’s pain and symptom testimony.

15 Ligenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007).

The ALJ did however cite Dr. Wagner’s consultative exam notes that Plaintiff said she

walked half a mile to and from the store for exercise (AR 453, which differed from her testimony

that she only walks to the mailbox and back for a total of 5 minutes. AR 65. That was the only

potentially valid example of daily activities the ALJ cited, though the ALJ didn’t note the

21 contradiction.

22 Nevertheless, the largely benign physical examinations cited by the ALJ (in relevant

23 respects such as chest tenderness, abdominal tenderness, strength, and range of motion, as well as

Plaintiff’s own reported pain levels to her clinicians) tend to undermine Plaintiff’s contention of

debilitating pain as well as her testimony that her pain was intermittent and reduced to a 4/10 by

Tylenol and ibuprofen. The ALJ therefore reasonably declined to fully adopt Plaintiff’s allegations

in the RFC.

VI. Conclusion

For the reasons stated above, the undersigned recommends that the Court find that

substantial evidence and applicable law support the ALJ’s conclusion that Plaintiff was not

5 disabled. The undersigned further recommends that Plaintiff’s appeal from the administrative

6 decision of the Commissioner of Social Security be denied and that the Clerk of Court be directed

7 to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social Security,

8 and against Plaintiff Darlene Alice Trujillo.

VII. Objections Due within 14 Days

These Findings and Recommendations will be submitted to the United States District Judge

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

13 days after being served with these Findings and Recommendations, any party may file written

14 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

15 Findings and Recommendations.” The parties are advised that failure to file objections within the

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

21 Dated: August 12, 2023 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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