“[U]nless an ALJ makes a finding of malingering based on 2 affirmative evidence thereof, he or she may only find an applicant not credible by making 3 specific findings as to credibility and stating clear and convincing reasons for each.”
How later courts described this case
- “[U]nless an ALJ makes a finding of malingering based on 2 affirmative evidence thereof, he or she may only find an applicant not credible by making 3 specific findings as to credibility and stating clear and convincing reasons for each.”
- finding an apparent conflict between an ALJ’s 14 RFC determination that a claimant was limited to “simple, repetitive tasks” and a 15 vocational expert’s testimony that the claimant could perform jobs that required Level 3 16 reasoning
- “[T]here was no conflict between the ALJ’s step five 3 determination that [the claimant] could complete only simple tasks and the vocational 4 expert’s testimony that [the claimant] could do jobs that [the DOT] categorizes at 5 ‘Reasoning Level 2.’”
- holding the ALJ 25 satisfied the duty to develop the record where the ALJ sent notices prior to the hearing 26 instructing the claimant to submit probative evidence and left the record open for 30-days 27 post-hearing to give the claimant a chance to supplement the record
Written by the judges who cited it.
The opinion
1
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 HEATHER C., Case No.: 3:19-cv-01669-AJB-RNB
12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION REGARDING
PLAINTIFF’S MOTION FOR
14 ANDREW SAUL, Commissioner of
SUMMARY JUDGMENT
Social Security,
15
Defendant. (ECF No. 15)
16
17
18 This Report and Recommendation is submitted to the Honorable Anthony J.
19 Battaglia, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local
20 Rule 72.1(c) of the United States District Court for the Southern District of California.
21 On September 3, 2019, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g)
22 seeking judicial review of a decision by the Commissioner of Social Security denying her
23 application for a period of disability and disability insurance benefits. (ECF No. 1.) On
24 January 11, 2020, plaintiff filed a motion for summary judgment. (ECF No. 15.) In
25 accordance with Civil Local Rule 7.1(e)(6)(e), the Commissioner filed opposition to
26 plaintiff’s motion on February 18, 2020 (ECF No. 17), and plaintiff filed a reply thereto on
27 March 2, 2020 (ECF No. 19).
28
1 Thus, this matter now is ready for decision. For the reasons set forth herein, the
2 Court RECOMMENDS that plaintiff’s motion for summary judgment be DENIED, and
3 that Judgment be entered affirming the decision of the Commissioner and dismissing this
4 action with prejudice.
5
6 PROCEDURAL BACKGROUND
7 On May 11, 2016, plaintiff filed an application for a period of disability and
8 disability insurance benefits, alleging disability beginning July 13, 2015. (Certified
9 Administrative Record [“AR”]) 174-80.) Her application was denied initially and upon
10 reconsideration. (AR 114-18, 120-24.)
11 On December 7, 2016, plaintiff requested a hearing before an administrative law
12 judge (“ALJ”). (AR 125-26.) The hearing was held on July 30, 2018. Plaintiff appeared
13 with counsel, and testimony was taken from her and a vocational expert (“VE”), who
14 participated telephonically. (See AR 39-87.) The ALJ issued a decision on October 23,
15 2018, finding that plaintiff was not disabled for purposes of her benefits application. (AR
16 14, 16-27.)
17 Thereafter, on December 3, 2018, plaintiff requested review of the decision by the
18 Appeals Council. (AR 172-73.) The ALJ’s decision became the final decision of the
19 Commissioner on August 26, 2019, when the Appeals Council denied plaintiff’s request
20 for review. (AR 1-6.) This timely civil action followed.
21
22 SUMMARY OF THE ALJ’S FINDINGS
23 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential
24 evaluation process. See 20 C.F.R. § 404.1520.1
25
26
27
1 Unless otherwise indicated, all references herein to the Commissioner’s regulations
28
1 At step one, the ALJ found that plaintiff had not engaged in substantial gainful
2 activity since July 13, 2015, the alleged onset date. (AR 17.)
3 At step two, the ALJ found that plaintiff had the following severe medically
4 determinable impairments: cervical degenerative disc disease, depressive disorder, and
5 anxiety disorder. (AR 18.) As part of his step two determination, the ALJ further found
6 that plaintiff had other medically determinable physical impairments (headaches and
7 obesity) that were non-severe. (Id.)
8 At step three, the ALJ found that plaintiff did not have an impairment or combination
9 of impairments that met or medically equaled the severity of one of the impairments listed
10 in the Commissioner’s Listing of Impairments. (AR 19.)
11 Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”)
12 to perform light work as defined in 20 C.F.R. § 404.1567(b),
13 “except with occasional climbing of stairs and ramps; no climbing of ladders,
scaffolds, and ropes; occasional balancing, stooping, kneeling crouching, and
14
crawling; limited to understanding, remembering, and carrying out simple,
15 routine, repetitive tasks with the need for standard industry work breaks every
two hours; no interaction with the public; and occasional work-related, non-
16
personal, non-social interaction with coworkers and supervisors involving no
17 more than a brief exchange of information or hand-off of product.” (AR 20.)
18
19 For purposes of his step four determination, the ALJ adduced and accepted the VE’s
20 testimony that a hypothetical person with plaintiff’s vocational profile and RFC would not
21 be able to perform the requirements of plaintiff’s past relevant work as a bank branch
22 manager. Accordingly, the ALJ found that plaintiff was unable to perform any past
23 relevant work. (AR 25.)
24 The ALJ then proceeded to step five of the sequential evaluation process. Based on
25 the VE’s testimony that a hypothetical person with plaintiff’s vocational profile and RFC
26 could perform the requirements of representative occupations that existed in significant
27 numbers in the national economy such as a document preparer and garment sorter, the ALJ
28
1 found that plaintiff had not been under a disability, as defined in the Social Security Act,
2 from July 13, 2015, through the date of the ALJ’s decision. (AR 26-27.)
3
4 PLAINTIFF’S CLAIMS OF ERROR
5 As best the Court can discern from plaintiff’s summary judgment motion, plaintiff
6 is claiming that the ALJ committed reversible error in the following respects:
7 1. The ALJ failed to accord proper weight to the “opinion” of plaintiff’s treating
8 psychiatrist reflected in Exhibit 18F (AR 603). (See ECF No. 15-1 at 17-19; ECF No. 19
9 at 4-5.)
10 2. In evaluating plaintiff’s mental impairments, the ALJ failed to follow the
11 “special technique” mandated by 20 C.F.R. § 404.1520(a) and he failed in his duty to
12 develop the record. (See ECF No. 15-1 at 20; ECF No. 19 at 5-6.)
13 3. The ALJ failed to properly consider plaintiff’s subjective symptom testimony.
14 (See ECF No. 15-1 at 21-26; ECF No. 19 at 6-7.)
15 4. The ALJ erred by relying on the VE’s testimony at step five of the
16 Commissioner’s sequential evaluation process when he failed to reconcile the apparent
17 conflict between the VE’s testimony and the reasoning level requirements of the garment
18 sorter and document preparer jobs according to the Dictionary of Occupational Titles
19 (“DOT”). (See ECF No. 15-1 at 27-28; ECF No. 19 at 7-8.)
20
21 STANDARD OF REVIEW
22 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
23 determine whether the Commissioner’s findings are supported by substantial evidence and
24 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846
25 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a
26 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of
27 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is
28 “such relevant evidence as a reasonable mind might accept as adequate to support a
1 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a whole
2 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-
3 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,
4 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452
5 (9th Cir. 1984).
6
7 DISCUSSION
8 A. Reversal is not warranted based on the ALJ’s alleged failure to accord proper
9 weight to the “opinion” of plaintiff’s treating psychiatrist reflected in Exhibit
10 18F.
11 Plaintiff contends that the ALJ erred when he failed to give “great weight” to the
12 “opinion” of plaintiff’s treating psychiatrist, Dr. Heidenfelder, reflected in Exhibit 18F.
13 Exhibit 18F is a one-page document dated July 23, 2018 and signed by Dr. Heidenfelder.
14 The document was addressed “To Whom It May Concern,” and stated the following: “I
15 am writing to confirm that I am treating [plaintiff] for Major Depression and Generalized
16 Anxiety Disorder. Please contact my office for any further information as needed.” (AR
17 603.)
18 In his decision, the ALJ stated that he was not assigning any weight to Exhibit 18F
19 because it was not a medical opinion that required evaluation. (See AR 25.) The Court
20 finds that the ALJ did not err in this regard. In the exhibit, Dr. Heidenfelder merely was
21 advising of the mental impairments for which he was treating plaintiff, which the ALJ did
22 find qualified as “severe” impairments.2 Dr. Heidenfelder was not purporting to render an
23
24
25 2 Step two of the Commissioner’s sequential evaluation process requires the ALJ to
determine the medical severity of the claimant’s medically determinable impairments. See
26
20 C.F.R. § 404.1520(a)(4)(ii). The Social Security Regulations and Rulings, as well as
27 case law applying them, discuss the step two severity determination in terms of what is
“not severe.” Under the Commissioner’s regulations, an impairment is not severe “if it
28
1 opinion on whether plaintiff’s mental impairments rendered her unable to perform gainful
2 employment or an opinion on whether plaintiff’s mental impairments caused any functional
3 limitations. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999)
4 (ALJ not required to credit medical evidence that did not show how a claimant’s symptoms
5 “translate into specific functional deficits which preclude work activity”); see also
6 Youngblood v. Berryhill, 734 F. App’x 496, 498 (9th Cir. 2018) (“An ALJ does not err by
7 not incorporating a physician’s opinion when the physician had not ‘assign[ed] any specific
8 limitations on the claimant.’” (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223
9 (9th Cir. 2010)).
10
11 B. Reversal is not warranted based on the ALJ’s alleged failure to follow the
12 “special technique” mandated by 20 C.F.R. § 404.1520(a) and/or the ALJ’s
13 alleged failure to develop the record with respect to plaintiff’s mental
14 impairments.
15
16 1. The ALJ did not fail to follow the “special technique mandated by 20 C.F.R.
17 § 404.1520(a).
18 Under the Commissioner’s regulations, to determine whether a claimant has a severe
19 mental impairment at step two of the sequential evaluation process, an ALJ must follow a
20 “special technique.” See 20 C.F.R. § 404.1520a(a). This entails the following steps:
21 determining whether the claimant has any medically determinable mental impairments;
22 rating the degree of functional limitation resulting from the mental impairment(s) in four
23 broad functional areas; determining the severity of the mental impairment(s); and then, if
24
25
activities.” See 20 C.F.R. § 404.1522(a). Basic work activities are “the abilities and
26
aptitudes necessary to do most jobs,” including mental activities such as understanding,
27 carrying out, and remembering simple instructions; use of judgment; responding
appropriately to supervision, co-workers, and usual work situations; and dealing with
28
1 any of the mental impairments is severe, proceeding to step three of the sequential
2 evaluation process. See 20 C.F.R. § 404.1520a(b)-(d).
3 The four broad functional areas are: understand, remember, or apply information;
4 interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.
5 See 20 C.F.R. § 404.1520a(c)(3). In rating the degree of limitation in these areas, the
6 following five-point scale is utilized: None, mild, moderate, marked, and extreme. See 20
7 C.F.R. § 404.1520a(c)(4). Under the Commissioner’s regulations, if the degrees of
8 limitation are rated as “none” or “mild,” the impairment generally is considered not severe,
9 “unless the evidence otherwise indicates that there is more than a minimal limitation in
10 your ability to do basic work activities.” See 20 C.F.R. § 404.1520a(d)(1).
11 Here, the ALJ did find at step two of the sequential evaluation process that plaintiff’s
12 medically determinable mental impairments of depressive disorder and anxiety disorder
13 qualified as severe, and did then proceed to step three of the sequential evaluation process.
14 (See AR 18, 19-20.) Accordingly, the Court fails even to see the point of plaintiff’s
15 contention that the ALJ erred by failing to follow the “special technique.” In any event,
16 the ALJ’s decision reflects that he did follow the “special technique.” In the part of his
17 decision relating to his listings determination at step three of the sequential evaluation
18 process,3 the ALJ rated the degree of functional limitation resulting from plaintiff’s mental
19 impairments in each of the four broad functional areas as “moderate.” (See AR 19-20.)
20 The Court therefore finds that reversal is not warranted based on the ALJ’s alleged
21 failure to follow the “special technique” mandated by 20 C.F.R. § 404.1520(a).
22
23
24
25 3 Under the Commissioner’s regulations, the determination of whether a claimant has
met the listing for a mental impairment also requires consideration of the ratings in the four
26
broad functional areas. As the ALJ noted (see AR 19), to satisfy the criteria for Listing
27 12.04 (which encompasses depressive disorders) and Listing 12.06 (which encompasses
anxiety disorders), the mental impairments must result inter alia in at least one extreme or
28
1 2. The ALJ did not fail in his duty to develop the record.
2 It is well established in the Ninth Circuit that the ALJ has a special duty to fully and
3 fairly develop the record and to assure that the claimant’s interests are considered, and that
4 this special duty exists even when the claimant is represented by counsel. See, e.g., Garcia
5 v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014); Tonapetyan v. Halter, 242 F.3d
6 1144, 1150 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Brown
7 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). However, it remains the claimant’s duty to
8 prove that he/she is disabled. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001);
9 Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). As noted in Mayes, 276 F.3d at 459-
10 60, an ALJ’s duty to develop the record further is triggered only when there is ambiguous
11 evidence or when the record is inadequate to allow for proper evaluation of the evidence.
12 Here, plaintiff has done a wholly inadequate job of articulating her argument that the
13 ALJ failed in his duty to develop the record. Plaintiff has failed to specify what additional
14 medical evidence relating to her mental impairments existed but was omitted from the
15 record, what ambiguous evidence supposedly triggered the duty to further develop the
16 record, or in what respects the record supposedly was inadequate to allow for proper
17 evaluation of the evidence. In any event, the Court finds that the ALJ fulfilled his duty to
18 develop the record when he sent plaintiff a pre-hearing notice instructing her to submit all
19 evidence known to her that related to her disability claim and advising her of her right to
20 request a subpoena for additional records (see AR 149, 150), when he admitted into the
21 record the evidence that plaintiff had untimely submitted (see AR 14), and when he acceded
22 to plaintiff’s counsel’s request to hold the record open for two weeks following the
23 administrative hearing to allow plaintiff to submit additional medical records (see AR 85-
24 86). See Conner v. Colvin, 674 F. App’x 629, 630 (9th Cir. 2017) (holding the ALJ
25 satisfied the duty to develop the record where the ALJ sent notices prior to the hearing
26 instructing the claimant to submit probative evidence and left the record open for 30-days
27 post-hearing to give the claimant a chance to supplement the record); Tonapetyan, 242 F.3d
28 at 1150 (“The ALJ may discharge his duty to develop the record in several ways, including:
1 subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians,
2 continuing the hearing, or keeping the record open after the hearing to allow
3 supplementation of the record.”); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998)
4 (holding that ALJ satisfied any duty to develop record by requesting additional records
5 from claimant and her counsel, and by keeping post-hearing record open for supplemental
6 medical evidence).
7 Insofar as plaintiff is contending as part of this claim that the ALJ’s finding that she
8 has mild to moderate mental limitations was based on insufficient evidence, the Court
9 disagrees. Contrary to plaintiff’s contention that the ALJ did not review her mental health
10 records, the ALJ’s decision reflects that he did consider the medical records concerning
11 plaintiff’s mental health treatment provided by her primary care physician, Dr. Green
12 (Exhs. 6F, 14F, 15F, and 16F) and by her treating psychiatrist, Dr. Heidenfelder (Exhs. 3F
13 and 18F). (See AR 23, 25.)4 Indeed, the last time plaintiff saw Dr. Heidenfelder, which
14 was on June 1, 2016, Dr. Heidenfelder himself characterized both plaintiff’s depression
15 and her anxiety as “mild-moderate.” (See AR 344-45.) Moreover, Dr. Heidenfelder’s
16 treatment notes reflect that, throughout the period he treated her, plaintiff presented with
17 largely normal mental status findings, including “intact” memory and recall, and “intact”
18 attention and concentration. (See AR 344, 350, 353, 356.) Finally, the Court concurs with
19 the Commissioner that the ALJ’s finding that plaintiff has mild to moderate mental
20 limitations also was supported by the opinions of the State agency psychological
21 consultants, who opined based on their review of plaintiff’s medical records that her mental
22 impairments caused only mild limitations. (See AR 93-94, 104-06.)
23 Accordingly, the Court finds that reversal is not warranted based on the ALJ’s
24 alleged failure to develop the record.
25
26
27 4 Although the ALJ did not specifically reference Exh. 10F, the treating notes of Dr.
Heidenfelder contained in that exhibit are all contained in Exh. 3F. (Compare AR 539-52
28
1 C. Reversal is not warranted based on the ALJ’s alleged failure to properly
2 consider plaintiff’s subjective symptom testimony.
3
4 1. Summary of plaintiff’s subjective symptom testimony at the administrative
5 hearing
6 At the administrative hearing, plaintiff testified that her physical impairments were
7 what caused her to stop working; and that her psychological impairments had increased,
8 but she attributed this to her increase in physical symptoms. (AR 49.) She further testified
9 that she had problems straightening her neck, with pain down the sides of her neck, from
10 her spine to her waist. (AR 50.) In addition, she had a constant headache caused by nerve
11 pain. (Id.) Plaintiff acknowledged that her January 2017 fusion surgery had helped her
12 symptoms, as it allowed her to stop taking her prescribed opiates for pain and to manage
13 her pain with only over-the-counter ibuprofen. (AR 56-57.)
14 Plaintiff estimated that, in a workday, she could stand and walk for up to five hours,
15 and that she could sit for up to two hours. (AR 57-58.) However, she would need to lie
16 down during the day in intervals totaling at least three hours. (AR 59.) She also claimed
17 that she was confined to bed approximately two times a week due to pain. (AR 60.) She
18 further testified that the tingling in her fingers made it difficult to push buttons, to grasp
19 small items, and that this tingling caused her to drop items. (AR 60-61.) She said that she
20 could bend over, crouch, stoop, and crawl, but she was limited to doing so just five to six
21 times a day. (AR 62.) She also claimed that, on a typical day, her pain level was at a 3 to
22 4 on a scale of 1 to 10, but it increased to a 6 or 7 by the end of the day. (AR 74.)
23 When questioned about her psychological impairments, plaintiff testified that she
24 had difficulty concentrating, focusing, and remembering things. (AR 67.) She maintained
25 that this affected her personal relationships, as she was unable to remember the things
26 people told her and unable to remember their names. (AR 68.) She also claimed to have
27 difficulties taking care of herself, which made her not want to see people, and to have daily
28 crying spells, sometimes in public. (AR 69, 72.) Plaintiff further testified that she had
1 been prescribed a number of psychiatric medications, which caused her to become angry
2 as a side effect and increased her thoughts of depression. (AR 73.) Plaintiff claimed that
3 she was unable to perform sedentary work because she did not have the capacity to
4 concentrate on even simple instructions, and the pain that she experienced would cause her
5 not to perform as expected. (AR 74.)
6
7 2. Law applicable to consideration of subjective symptom testimony
8 An ALJ’s assessment of pain severity and claimant credibility is entitled to “great
9 weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779
10 F.2d 528, 531 (9th Cir. 1986). Under the “Cotton standard,” where the claimant has
11 produced objective medical evidence of an impairment which could reasonably be
12 expected to produce some degree of pain and/or other symptoms, and the record is devoid
13 of any affirmative evidence of malingering, the ALJ may reject the claimant’s testimony
14 regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ makes
15 specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen,
16 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen, 80 F.3d at 1281; Dodrill v. Shalala,
17 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991).
18 Here, after summarizing plaintiff’s subjective symptom testimony, the ALJ stated:
19 “After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
20
to cause the alleged symptoms; however, the claimant’s statements
21 concerning the intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence in the
22
record for the reasons explained in this decision.” (AR 22.)
23
24 Since the ALJ did not make an express finding of malingering or cite any evidence
25 of malingering, the issue before the Court is whether the ALJ provided reasons for his
26 adverse credibility determination that satisfy the standard set forth above. See Vasquez v.
27 Astrue, 572 F.3d 586, 592 (9th Cir. 2009) (“clear and convincing’ standard applies where
28 ALJ did not cite any evidence of malingering); Robbins v. Social Sec. Admin., 466 F.3d
1 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on
2 affirmative evidence thereof, he or she may only find an applicant not credible by making
3 specific findings as to credibility and stating clear and convincing reasons for each.”).
4
5 3. Analysis
6 Preliminarily, the Court notes that the ALJ did partially credit plaintiff’s subjective
7 symptom testimony. As stated in the decision, the ALJ accommodated the symptoms
8 caused by plaintiff’s degenerative disc disease by limiting plaintiff’s RFC to light work,
9 with only occasional climbing of stairs and ramps; no climbing of ladders, scaffolds,
10 and ropes; and only occasional balancing, stooping, kneeling, crouching, and crawling.
11 (AR 25.) The ALJ also accommodated the symptoms caused by plaintiff’s mental
12 impairments by limiting plaintiff’s RFC to understanding, remembering, and carrying
13 out simple, routine, repetitive tasks with the need for standard industry breaks every
14 two hours; no interaction with the public; and only occasional work related, non-
15 personal, non-social interaction with coworkers and supervisors involving no more
16 than a brief exchange of information or hand-off of product. (Id.)
17 The ALJ’s primary rationale for not crediting plaintiff’s testimony to the effect that
18 her physical and mental impairments were of disabling severity during the period at issue
19 was that her allegations were undermined by her continued engagement in a large number
20 of activities of daily living. Plaintiff had acknowledged in her adult function report that
21 she helped her child prepare for school and otherwise cared for her, prepared her own meals
22 daily, performed household chores, drove her car and could do so alone, and shopped in
23 stores and online. (See AR 23, citing AR 233-46.) The Court finds that this reason
24 constituted a legally sufficient reason upon which the ALJ could properly rely in support
25 of his adverse credibility determination. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th
26 Cir. 1991) (ability to take care of personal needs, prepare easy meals, do light housework
27 and shop for some groceries “may be seen as inconsistent with the presence of a condition
28 which would preclude all work activity”); see also, e.g., Thomas v. Barnhart, 278 F.3d
1 947, 958-59 (9th Cir. 2002) (ALJ may properly rely on inconsistencies between claimant’s
2 testimony and claimant’s daily activities); Morgan, 169 F.3d at 600 (ALJ may properly
3 rely on contradictions between claimant’s reported limitations and claimant’s daily
4 activities).
5 With respect to plaintiff’s subjective symptom testimony relating to her degenerative
6 disc disease, the ALJ’s adverse credibility determination also was based the evidence of
7 improvement in plaintiff’s mobility and pain following her physical therapy treatment. The
8 ALJ noted in this regard that, during her initial February 2017 physical therapy visit
9 following her surgery, plaintiff was noted to have pain in her neck at a three on a ten-
10 point scale, with ten being the most severe, despite pain management with
11 hydrocodone. (Ex. 19F/14). Plaintiff also was noted to have back pain at a five on this
12 same scale. However, by her June 2017 discharge, plaintiff had reported
13 improvements in mobility and pain, and reported that she would like to return to
14 softball, tennis, and hiking. (See AR 23, citing AR 617, 641.) The ALJ further noted
15 that plaintiff had not returned to physical therapy since June 2017. (AR 23.) Plaintiff’s
16 apparent improvement with treatment also constituted a legally sufficient reason on which
17 the ALJ could properly rely in support of his adverse credibility determination. See Odle
18 v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (ALJ may consider whether treatment
19 produced fair response or control of pain that was satisfactory).
20 In addition, the ALJ noted that plaintiff had visited a pain management clinic
21 consistently through 2017 and in early 2018, to address her back pain. During a March
22 2017 visit, shortly after her spinal surgery, plaintiff had been managing her back pain with
23 Norco, 1 tablet as needed, and over-the counter anti-inflammatory medication. However,
24 during her most recent visit in January 2018, although plaintiff had reported her pain as
25 “not tolerable,” she also had reported pain at only a three on a ten-point scale, with ten
26 being the most severe, despite having weaned herself entirely off prescription pain
27 medication and managing her symptoms with only over-the counter medication. In other
28 words, plaintiff was able to tolerate her pain to the extent that she chose not to manage her
1 pain with prescription pain medication. (See AR 23, citing AR 560-77.) In general,
2 “evidence of conservative treatment is sufficient to discount a claimant’s testimony
3 regarding severity of an impairment,” and a prominent example of conservative treatment
4 is use of only over-the-counter pain medication. See Parra v. Astrue, 481 F.3d 742, 751
5 (9th Cir. 2007); Osenbrock v. Apfel, 240 F.3d 1156, 1166 (9th Cir. 2001) (ALJ properly
6 rejected excess symptom testimony where claimant had not been using a strong Codeine
7 or Morphine based analgesic).
8 The ALJ’s reasons for not crediting plaintiff’s testimony regarding the severity of
9 her headaches is reflected in the part of his decision explaining why he did not find
10 plaintiff’s headaches to be a severe impairment. The ALJ noted that plaintiff had visited
11 a neurologist on one occasion in August 2015, who stated that he believed the majority
12 of the claimant's pain was caused by her neck condition (and not her headaches). (See
13 AR 18, citing AR 383.) The ALJ further noted that plaintiff had not seen a neurologist
14 for this condition since; that her headaches were currently being managed by her
15 primary care physician, with gabapentin daily; and that, in April 2017, plaintiff had
16 reported an improvement in the condition due to this drug. (See AR 18, citing AR
17 568.) The ALJ also noted that plaintiff’s medical record frequently stated that she
18 presented with “no headaches,” indicating a transient condition. (See AR 18, citing
19 AR 350, 353, 356, 415, 421, 540, 546.) The ALJ reasoned that plaintiff’s lack of
20 specialist treatment of this condition, combined with her recent report that her current
21 medication regimen helped, and the apparently transient nature of the condition, all led
22 to the conclusion that plaintiff’s headache condition was non-severe. In other words,
23 the headaches did not significantly limit plaintiff’s physical or mental ability to do basic
24 work activities.” See 20 C.F.R. § 404.1522(a). The Court finds that these reasons for not
25 crediting plaintiff’s testimony regarding the severity of her headaches satisfied the legal
26 standard set forth above.
27 With respect to plaintiff’s subjective symptom testimony relating to her mental
28 impairments, the ALJ noted that the medications prescribed to manage plaintiff’s
1 psychological conditions had remained consistent throughout the adjudication period, with
2 recent decreases in plaintiff’s clonazepam dosage suggesting an improvement in
3 symptoms. (See AR 23, citing AR 451.) The ALJ further noted that both psychological
4 conditions thus appeared to be well managed with just medication prescribed by plaintiff’s
5 primary care physician, as plaintiff had not visited a mental health professional since June
6 2016. (See id., citing AR 344-62.) The ALJ also noted that, during plaintiff’s most recent
7 psychiatry visit in June 2016, her psychological conditions were described as “mild
8 moderate.” (See id., citing AR 345). The seeming efficacy of plaintiff’s medication
9 regimen also constituted a legally sufficient reason for not crediting plaintiff’s testimony
10 regarding the severity of her mental impairments under both the Commissioner’s
11 regulations and Ninth Circuit case law. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v); Warre v.
12 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (stating that
13 “[i]mpairments that can be controlled effectively with medication are not disabling for
14 purposes of determining eligibility for [social security] benefits”).
15 The ALJ’s other reasons for not crediting plaintiff’s subjective symptom testimony
16 relating to her mental impairments are reflected in the part of his decision explaining why
17 he did not find plaintiff’s mental impairments to be of listing level severity. The ALJ’s
18 reasons for not crediting plaintiff’s testimony that she had difficulty remembering
19 generally, understanding what was said to her, following instructions, and completing
20 tasks were (a) plaintiff also stated that she could prepare meals, pay bills, go to doctor's
21 appointments, take medications, shop, drive, and read; and (b) the record showed that
22 plaintiff was able to provide information about her health, describe her prior work
23 history, follow instructions from healthcare providers, and comply with treatment
24 outside of a doctor’s office or hospital. (See AR 19, citing AR 212-20, 240-41, 478-
25 79, 598, 638.)
26 The ALJ’s reasons for not crediting plaintiff’s testimony that she had difficulty
27 getting along with others were (a) according to her statements, plaintiff also was able
28 to shop, spend time with friends and family, deal appropriately with authority, and live
1 with others; and (b) the medical evidence showed that plaintiff was generally described
2 as pleasant and cooperative. (See AR 19, citing AR 238, 243, 244, 557, 560, 562, 565,
3 568, 571, 585, 588, 591.)
4 The ALJ’s reasons for not crediting plaintiff’s testimony that she had limitations in
5 concentrating generally, focusing generally, and following instructions were (a) she also
6 was able to drive, prepare meals, watch TV, read, manage funds, and use the internet; and
7 (b) the record failed to show any mention of distractibility and an inability to complete
8 testing that assessed concentration and attention, but rather frequently discussed plaintiff’s
9 attention and concentration as “intact.” (See AR 19-20, citing AR 239-41, 474, 540, 543,
10 546.)
11 The Court therefore finds that the ALJ did provide clear and convincing reasons,
12 supported by the substantial evidence of record, for not fully crediting plaintiff’s subjective
13 symptom testimony. Accordingly, the Court finds that reversal is not warranted based on
14 the ALJ’s alleged failure to properly consider plaintiff’s subjective symptom testimony.
15
16 D. Reversal is not warranted based on the ALJ’s alleged error at step five of the
17 sequential evaluation process.
18 In making disability determinations, the ALJ relies primarily on the DOT for
19 “information about the requirements of work in the national economy.” Massachi v.
20 Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). “The DOT describes the requirements for
21 each listed occupation, including the necessary General Education Development (‘GED’)
22 levels; that is, ‘aspects of education (formal and informal) . . . required of the worker for
23 satisfactory job performance.’” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015)
24 (quoting DOT, App. C, 1991 WL 688702 (4th ed. 1991)). “The GED levels [include] the
25 reasoning ability required to perform the job, ranging from Level 1 (which requires the
26 least reasoning ability) to Level 6 (which requires the most).” Id. (citing DOT, App. C,
27 1991 WL 688702).
28
1 In addition to the DOT, the ALJ “uses testimony from vocational experts to obtain
2 occupational evidence.” Massachi, 486 F.3d at 1153; see also Zavalin, 778 F.3d at 846.
3 Generally, the VE’s testimony should be consistent with the DOT. See SSR 00-4p;
4 Massachi, 486 F.3d at 1153. But when conflicts occur, neither the DOT nor the VE’s
5 evidence automatically trumps. Massachi, 486 F.3d at 1153. “Thus, the ALJ must first
6 determine whether a conflict exists.” Id.
7 “When there is an apparent conflict between the vocational expert’s testimony and
8 the DOT—for example, expert testimony that a claimant can perform an occupation
9 involving DOT requirements that appear more than the claimant can handle—the ALJ is
10 required to reconcile the inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi, 486
11 F.3d at 1153-54). The ALJ must ask the VE whether his or her testimony conflicts with
12 the DOT. Massachi, 486 F.3d at 1153-54. If it does conflict, “the ALJ must then determine
13 whether the vocational expert’s explanation for the conflict is reasonable and whether a
14 basis exists for relying on the expert rather than the [DOT].” Id. at 1153.
15 Here, plaintiff contends that there was an apparent conflict between the VE’s
16 testimony and the DOT in that both jobs that the ALJ found plaintiff remained capable of
17 performing require reasoning levels that exceed plaintiff’s RFC.
18 With respect to the garment sorter job, plaintiff is mistaken. As plaintiff
19 acknowledges, the DOT specifies that the garment job (DOT 222.687-014) requires a
20 reasoning level of 2. There was no apparent conflict between the VE’s testimony and the
21 DOT because the ALJ found that plaintiff retained the RFC to perform “simple, routine,
22 repetitive tasks” and courts in this Circuit regularly have concluded that an ability to
23 perform simple and repetitive tasks is consistent with Reasoning Level 2. See, e.g.,
24 Hernandez v. Berryhill, 707 F. App’x 456, 458–59 (9th Cir. 2017) (“There was no apparent
25 conflict between the ALJ’s residual functional capacity (‘RFC’) determination that [the
26 claimant] was ‘limited to simple, repetitive tasks’ and the vocational expert’s testimony
27 that she could work as an envelope addresser, a job ... requiring ‘Level 2’ reasoning.”);
28 Lara v. Astrue, 305 F. Appx. 324, 326 (9th Cir. 2008) (“[S]omeone able to perform simple,
1 repetitive tasks is capable of ... Reasoning Level 2 jobs.”); Abrew v. Astrue, 303 F. Appx.
2 567, 569 (9th Cir. 2008) (“[T]here was no conflict between the ALJ’s step five
3 determination that [the claimant] could complete only simple tasks and the vocational
4 expert’s testimony that [the claimant] could do jobs that [the DOT] categorizes at
5 ‘Reasoning Level 2.’”); Coleman v. Astrue, 2011 WL 781930, at *5 (C.D. Cal. Feb. 28,
6 2011) (“[T]he weight of prevailing authority precludes a finding of any inconsistency
7 between a reasoning level of two and a mere limitation to simple, repetitive tasks or
8 unskilled work.”) (collecting cases)); see also Harrington v. Astrue, 2009 WL 102689, at
9 *2 (S.D. Cal. Jan. 14, 2009) (simple, repetitive work is consistent with the definition of
10 GED reasoning level two).
11 Accordingly, even if the ALJ did err by failing to reconcile the apparent conflict
12 between the VE’s testimony and the Reasoning Level 3 requirement of the document
13 preparer job, see Zavalin, 778 F.3d at 847 (finding an apparent conflict between an ALJ’s
14 RFC determination that a claimant was limited to “simple, repetitive tasks” and a
15 vocational expert’s testimony that the claimant could perform jobs that required Level 3
16 reasoning), any such error was harmless. See, e.g., Mitchell v. Colvin, 584 Fed. App’x 309,
17 312 (9th Cir. 2014) (finding that erroneous identification of job constituted harmless error
18 where ALJ identified another that existed in significant numbers); Brad H. v. Berryhill,
19 2019 WL 1861310, at *7 (C.D. Cal. Apr. 25, 2019) (“Because this occupation
20 independently satisfied the Commissioner’s burden at step five, the ALJ’s error in failing
21 to resolve conflicts about the two other representative jobs was harmless.”); Camper v.
22 Berryhill, 2018 WL 542587, at *4 (C.D. Cal. Jan. 23, 2018) (“[E]ven if Plaintiff could not
23 perform the other two positions identified by the vocational expert, . . . by properly
24 identifying the storage/rental facility clerk position (180,000 jobs nationally), the ALJ has
25 met his burden to demonstrate that Plaintiff could perform some work that exists in
26
27
28
1 “significant numbers” in the national or regional economy, taking into account Plaintiff’s
2 RFC . . . .”).5
3
4 RECOMMENDATION
5 For the foregoing reasons, the Court RECOMMENDS that plaintiff’s motion for
6 summary judgment be DENIED, and that Judgment be entered affirming the decision of
7 the Commissioner and dismissing this action with prejudice.
8 Any party having objections to the Court’s proposed findings and recommendations
9 shall serve and file specific written objections within 14 days after being served with a
10 copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections
11 should be captioned “Objections to Report and Recommendation.” A party may respond
12 to the other party’s objections within 14 days after being served with a copy of the
13 objections. See id.
14 IT IS SO ORDERED.
15
16 Dated: March 11, 2020
17 _____________________________
ROBERT N. BLOCK
18
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25 5 The VE testified that 35,000 garment sorter jobs existed in the national economy
(see AR 78) and that his information about job numbers came from the Bureau of Labor
26
Statistics (see AR 84). This number of jobs satisfied the Commissioner’s step five burden
27 of proving that plaintiff could perform an occupation existing in significant numbers in the
national economy. See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir.
28