holding that if the Secretary chooses to 25 disregard side effects of a claimant’s medications, he must support that decision with 26 specific findings
How later courts described this case
- holding that if the Secretary chooses to 25 disregard side effects of a claimant’s medications, he must support that decision with 26 specific findings
- conservative course of treatment 20 suggested “a lower level of both pain and functional limitation”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 Case No.: 21cv1647-NLS
KELLY LUNA, Plaintiff,
12
v. ORDER:
13
KILOLO KIJAKAZI, Acting
(1) DENYING PLAINTIFF’S
14 Commissioner of Social Security,
MOTION FOR SUMMARY
15 Defendant. JUDGMENT; and
16
(2) AFFIRMING THE DECISION OF
17 THE COMMISSIONER
18
[ECF No. 10]
19
20 Plaintiff Kelly Luna (“Plaintiff”) brings this action under the Social Security Act,
21 42 U.S.C. § 405(g), and seeks judicial review of a final decision by the Commissioner of
22 Social Security (“Commissioner”) denying her application for social security disability
23 benefits under Title II of the Social Security Act. Plaintiff filed a motion for summary
24 judgment, Defendant filed an opposition, and Plaintiff filed a reply. ECF Nos. 10, 11,
25 and 12.
26 After considering the papers submitted, the administrative record, and the
27 applicable law, for the reasons set forth below, the Court DENIES Plaintiff’s motion for
28 summary judgment, AFFIRMS the decision of the Commissioner, and DISMISSES this
1 action with prejudice.
2 I. BACKGROUND
3 A. Procedural History
4 Plaintiff protectively filed a Title II application for Social Security Disability
5 Insurance on December 4, 2019, in which she alleged disability beginning on October 31,
6 2019, due to cervical radiculopathy, multi-level cervical spondylosis, multi-level
7 degenerative lumbar spine/facet arthropathy, chronic left and right leg pain/sciatica, right
8 knee arthritis pain, and lumbar spine arthritis, severe right arm pain, neck and back nerve
9 pain. Administrative Record (AR) 51-51, 72. The Commissioner denied Plaintiff’s
10 claim initially on February 21, 2020, AR 72, and on reconsideration on May 13, 2020.
11 AR 80. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”),
12 which was held by telephone on December 18, 2020, due to the coronavirus pandemic.
13 AR 29-50. Plaintiff testified at the hearing at which she was represented by counsel. Id.
14 An impartial vocational expert also testified at the hearing. AR 46-49.
15 On February 26, 2021, the ALJ issued a decision denying Plaintiff’s request for
16 benefits. AR 13-27. On April 22, 2021, Plaintiff requested review of the ALJ’s
17 unfavorable decision. AR 147. The Appeals Council denied Plaintiff’s request for
18 review on August 26, 2021. AR 1–6. On that date, the ALJ’s decision became the final
19 decision of the Commissioner. 42 U.S.C. § 405(h). Plaintiff timely commenced this
20 action in federal court.
21 B. Plaintiff’s Testimony and Self-Reported Symptoms
22 Plaintiff was 53 years old at the time of the administrative hearing. AR 33. She is
23 married with two college age sons. AR 45. She testified that she has a bachelor’s degree,
24 and she was halfway through her master’s degree when she had to quit school because
25 her husband was deployed. AR 33. From 2005 through the first half of 2019, she
26
27 1 The parties have expressly consented that all proceedings in this case may be heard and finally adjudicated by a
28 magistrate judge. 28 U.S.C. § 646(c); Fed. R. Civ. P. 73; ECF No. 4.
1 worked for the Federal Bureau of Investigation (“FBI”) as a human resources (“HR”)
2 specialist. Id. In June 2019, the FBI converted her job to an administrative specialist
3 which entailed duties that differed from her previous position in HR. AR 34. Her work
4 in HR was a desk job that involved benefits, personnel, hiring, recruiting, and payroll.
5 AR 34. There was no lifting involved. Id. She only worked a few months as an
6 administrative specialist. Id. She took an early retirement from the FBI in December
7 2019, ostensibly because extreme pain prevented her from physically doing the work.
8 AR 35, 46.
9 Plaintiff testified she is 5’6” tall and weighs about 230 pounds. AR 35. She has
10 severe pain in her neck that radiates down through her right shoulder, arm and into her
11 fingers. AR 35-36. She described the pain as being like “electricity that goes down into
12 my arms.” Id. She has had low back issues for over 20 years, but those were manageable
13 until March of 2019. AR 36. But now, she has constant severe pain in her back that runs
14 down both of her legs, with constant sciatica on the right side into her feet and
15 intermittent sciatica into the left. Id. She also began having pain in her right knee in
16 2019 which occasionally caused her to stumble. AR 37. She started using a walking
17 stick to prevent falling when her leg gives out. Id. She gets spasms in her hands and legs
18 that cause them to go numb and make her drop things. AR 38-39. When her pain level
19 gets beyond a level seven out of ten, she cannot function at all, mentally or physically.
20 Id. She also gets daily headaches for which she takes medication. Id. In addition to her
21 orthopedic issues, she has had autoimmune problems for 30 years, including
22 hypothyroidism, polycystic ovarian syndrome, chronic fatigue, and joint pain, and more
23 recently, menopause. AR 37.
24 Plaintiff treats her orthopedic pain with massage, acupuncture, physical therapy,
25 aqua therapy, hypnotherapy, and a vibration machine. AR 40-41. She takes naps and
26 medication (Zanaflex2) three to six times a day when the pain gets bad. AR 42-43.
27
2 Zanaflex is used to relieves spasms and tightness in the muscles caused by certain medical or spinal
28
1 When she takes Zanaflex mid-day, it knocks her out anywhere from 60-120 minutes. Id.
2 She also uses a “zero-gravity” massage chair and a “zero-gravity” bed to relieve her pain.
3 Id. When she could not lie down during the day at work, she testified that she was
4 literally crying because she “could not function, couldn’t use her right leg, couldn’t sit,
5 couldn’t stand, and couldn’t drive to work because she was in so much pain.” AR 43. It
6 was “horrific.” Id.
7 Plaintiff testified that she cannot type, use a mouse, or a phone without numbness
8 and pain going down her arm. She can walk around the block for approximately 20
9 minutes a day after which she needs to lie down. AR 44. When she does laundry or
10 dishes, she tries not to lift any weight because she tends to drop things. AR 44-45.
11 C. Medical Providers
12 Plaintiff has received most of her health care through Kaiser Permanente
13 (“Kaiser”), where she has seen a variety of doctors and therapists for her medical
14 problems. The ALJ considered the evidence and opinions from each of the relevant
15 providers.
16 1. Brandon McClellan, M.D. [Physical Medicine]
17 On March 19, 2019, Plaintiff saw Dr. Brandon McClellan following her
18 Emergency Department visit the previous day, at which she complained of severe low
19 back pain with radiating left leg symptoms. AR 263. He noted that she has a history of
20 chronic low back pain. AR 263. His physical exam revealed normal range of motion in
21 both legs and negative straight leg raising tests in both legs. AR 265. Her motor strength
22 in both legs was rated 5/5 and she could squat, heel stand, and toe stand symmetrically.
23 Id. Her reflexes and sensation were intact. AR 266. Dr. McClellan reviewed an MRI
24 scan from December 2016 that documented multi-level degenerative changes in the
25 lumbar spine, most pertinently a “disc herniation at L 5-S1 compressing the epidural
26 space more left-sided than right.” AR 267. Dr. McClellan ordered a follow-up MRI and
27
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1 prescribed Naproxen 500mg twice a day for pain and inflammation. AR 268.
2 On March 27, 2019, Dr. McClellan had a telephonic visit with Plaintiff following
3 her MRI scan. At that time, she reported her pain was “milder” and more “nagging.” Id.
4 The new MRI scan documented multi-level degenerative changes of the lumbar spine,
5 including “severe left-sided neural foraminal narrowing at L5-S1 worsened when
6 compared to 2016.” AR 271.
7 Dr. McClellan next saw Plaintiff for an office visit on May 2, 2019. AR 273. At
8 that time, she complained of persistent knee pain lasting for several weeks. Id. She
9 reported “working out and weight training at least four times a week.” AR 274. She told
10 Dr. McClellan she was caring for family members in poor health, caring for children, and
11 juggling a demanding job. AR 274-275. She also told him she used to have Fridays off
12 work, but her new supervisor might not allow that going forward. AR 275.
13 Dr. McClellan documented his willingness to provide her a note so she could take care of
14 family members along with her own care, including massage therapy and strengthening
15 exercises at the gym. Id. An x-ray of her right knee showed no fractures, but there were
16 mild degenerative changes in both knees. AR 276-77. However, a comparison with a
17 2010 x-ray showed no significant change. Id.
18 On June 20, 2019, Dr. McClellan saw Plaintiff again. At this visit, her primary
19 complaint was of right arm pain radiating into her fingers. AR 281. She told
20 Dr. McClellan she “[was] under extreme stress” as she was moved to a completely
21 different job role after 23 years in the FBI. Id. Dr. McClellan’s examination of the neck
22 and cervical spine revealed mild tenderness in the cervical musculature, cervical range of
23 motion within functional limits, and a negative Spurlings3 sign on the right and left as
24 well as a negative Hermitte’s4 sign. Id. His examination of the upper extremities showed
25
26
3The Spurling test is a highly specific provocative test used to diagnose a pinched nerve in the spine. It
27 is done by manipulating the head and neck manually to duplicate the pain the patient is feeling.
www.webmd.com (June 23, 2021).
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1 bilaterally negative Tinel’s sign and Phalen’s test. Id. Plaintiff’s range of motion was
2 within normal limits bilaterally and a right shoulder impingement test was negative. AR
3 282. Plaintiff had no muscle atrophy, and her upper extremity motor strength was rated
4 5/5 bilaterally. AR 283. Deep tendon reflexes in her biceps, brachioradialis, and triceps
5 were normal. Id. Balance and coordination were normal, and she had normal sensation
6 on both sides. Id. There were no pathological reflexes on the Hoffman’s test bilaterally.6
7 Id.
8 Dr. McClellan reviewed Plaintiff’s new MRI scan from March 22, 2019. AR 283.
9 That study showed moderate to severe central canal narrowing at L4-L5, as well as
10 severe left-sided neural foraminal narrowing at L5-S1 that had worsened when compared
11 to a 2016 MRI. AR 284. Dr. McClellan advised Plaintiff to continue treating with
12 Naproxen and Aleve and to wear wrist splints at night. AR 284.
13 Dr. McClellan had a telephonic appointment with Plaintiff on July 23, 2019, during
14 which she reported ongoing radiating right arm pain and that her right knee locked up on
15 her and caused her to fall. AR 289. Dr. McClellan gave her a referral for a cervical
16 epidural steroid injection and a cervical MRI. Id. The cervical MRI in pertinent part
17 showed multilevel cervical spine spondylosis and central canal stenosis that is worst at
18 C6/C7, but with no frank cord compression or cord signal abnormality. AR 291.
19 Neuroforaminal narrowing on the right at C6/C7 was moderate to severe with potential
20 exiting nerve root compression. Id.
21 Both Dr. McClellan and Dr. Alonso (a neurosurgery consultant) saw Plaintiff on
22 October 28, 2019. AR 295-301, 307-316. Dr. McClellan noted in his records that
23 Plaintiff did not plan to pursue surgery. AR 308. At that visit, Plaintiff complained of
24 ongoing neck and right arm pain. AR 308. She told Dr. McClellan she had been offered
25
26 arms, this is indicative of a pinched nerve. www.webmd.com (June 23, 2021).
5 Tinel’s sign and Phalen’s test are used to diagnose carpel tunnel syndrome. www.webmd.com (June
27 23, 2021).
6 A positive Hoffman’s reflex in the fingers may signify a neurological problem in the cervical spine or
28
1 early retirement. Id. She also said that prednisone helped for her low back pain and left
2 leg symptoms but did not help her arm symptoms. Id. Dr. McClellan reviewed her MRI
3 scans and referred her for a repeat cervical epidural steroid injection and aquatic physical
4 therapy for low back symptoms. AR 314. He also ordered a trial of nortriptyline for
5 pain, but cautioned it could be sedating, so she should take it initially just at night. AR
6 317. He continued Plaintiff’s Gabapentin, Zanaflex, Tylenol, and Aleve. Dr. McClellan
7 also referred Plaintiff for physical therapy, where she was treated once a week with
8 cervical traction and a home exercise program. AR 324-331.
9 Dr. McClellan had a phone call with Plaintiff on January 23, 2020. AR 518. She
10 called to give him an update. She reported that the aqua program at SD Sports Medicine
11 was below average, so she switched to the YMCA’s program with which she was doing
12 “much better.” Id. She advised that naps during the day along with aqua therapy and
13 acupuncture have taken her pain from a 10+ to a 5-6. Id. She noted that the aqua classes
14 were also helping with her lower back. Id.
15 In a June 4, 2020, phone call to Dr. McClellan, Plaintiff advised that she had
16 “reordered” Zanaflex because it helps with her pain and allows her to take a nap during
17 the day. AR 752. She noted that with Covid she has been unable to get a massage or do
18 pool therapy, so she purchased a massage chair and is working with her acupuncturist.
19 AR 753. She related to him that the combination of daily aqua PT, biweekly massage,
20 biweekly acupuncture, and daily naps with stretching keep her pain levels to “a somewhat
21 manageable level.” AR 753-54.
22 On September 17, 2020, Plaintiff had an office visit with Dr. McClellan. AR
23 1050-59. On physical exam of the lumbar spine, he noted Plaintiff’s range of motion was
24 within normal limits. AR 1053. The straight leg raising test was positive on the right but
25 negative on the left. Id. She had no muscle atrophy, and her motor strength was 5/5
26 bilaterally. Id. Regarding the cervical spine, there was some tenderness to palpation, but
27 her range of motion was within functional limits. Id. The Phalen’s test on the right
28 induced muscle spasm. AR 1054. Upper extremity motor strength was 5/5 on the left
1 and either 4/5 or 5/5 on the right. Id. Reflexes were absent in the triceps tendon on both
2 sides. Id. Sensation was normal bilaterally in the lower and upper extremities. Id. Dr.
3 McClellan reviewed Plaintiff’s cervical and lumbar MRI scans from 2019. AR 1056-57.
4 He assessed Plaintiff at that time as having chronic neck pain, right-sided cervical
5 radiculopathy, chronic low back pain with right lower lumbar radiculopathy. AR 1058.
6 He noted that she has found Zanaflex quite helpful as well as changing positions and
7 laying down for periods throughout the day. Id. He recommended she maintain her
8 current regimen of aquatic exercise, massage therapy, vibration therapy, cupping, and
9 acupuncture. Id.
10 On September 25, 2020, Dr. McClellan wrote a “to whom it may concern” letter
11 for Plaintiff. AR 1135. In the letter, he says he has been treating Plaintiff since March of
12 2019 for chronic neck pain, right-sided cervical radiculopathy, chronic low back pain
13 with right lower radiculopathy and chronic muscle spasms. Id. Dr. McClellan goes on to
14 say that Plaintiff’s imaging studies correlate well with her symptoms. He relates that the
15 cervical MRI demonstrates significant spondylosis with multi-level moderate to severe
16 central and foraminal stenosis including likely impingement on her C7 nerve. Her
17 lumbar spine MRIs show multi-level fair-to-severe degenerative changes which have
18 progressed. Id. She also has moderate to severe central stenosis at L4/5 and severe left
19 foraminal narrowing at L5/S1. Id. Dr. McClellan indicates that Plaintiff’s pain can be
20 “quite diffuse,” and she has done a “tremendous job” trying to manage her symptoms
21 with myriad active and passive treatments. Id. He notes that despite these activities her
22 condition worsened to the point where she had to retire for medical reasons. Id. He says
23 she experiences pain with any kind of prolonged activity. She cannot sit for more than
24 10-20 minutes at a time without needing to change positions or ideally to lie down. Id.
25 With daily aquatic aerobics, she can keep herself moving and functionally independent.
26 She does acupuncture, massage, cryotherapy, vibration therapy, and hypnotherapy. She
27 also gets medications and injections. She must lay down throughout the day to manage
28 her pain. Id. Dr. McClellan concludes by saying she will likely have to continue with
1 these therapies and treatments “indefinitely” to maintain her independence. Id.
2 2. Fernando Enrique Alonso, M.D. [Neurosurgery consultant]
3 On October 28, 2019, Dr. Fernando Enrique Alonso, a neurosurgeon, evaluated
4 Plaintiff for right upper extremity cervical radiculopathy. He noted her complaint of right
5 arm pain radiating into her fingers and her history of lumbar radiculopathy. At that time,
6 Dr. Alonso noted that “the patient denies dropping objects, changes or loss of dexterity,
7 inability, or difficulty with writing, typing, or buttoning clothes.” AR 295. She also
8 “denied gait instability or slowness, the need for a cane or walker or recent falls.” Id.
9 She similarly denied motor weakness, bowel, or bladder incontinence. AR 296. Her
10 medications included Zanaflex for muscle spasms, Neurontin, Prednisone, and Aleve.
11 AR 297. After reviewing her cervical MRI, Dr. Alonso diagnosed multilevel cervical
12 spinal stenosis at the C5-C7 levels with potential nerve root compression. He told her if
13 she wanted to proceed with surgery, the surgery would possibly include a fusion with
14 instrumentation. AR 301. Regarding the lumbar spine, Dr. Alonso had a frank
15 discussion with Plaintiff about weight loss. He did not recommend lumbar surgery at that
16 time. Id.
17 3. Carolyn Smyth, DACM/LAc
18 Plaintiff began acupuncture treatment with Dr. Carolyn Smyth on October 28,
19 2019. AR 460. At the first visit, Plaintiff reported right arm pain at 10/10. After a one-
20 hour treatment with acupuncture, Plaintiff reported a reduction in pain. Id. Dr. Smythe’s
21 treatment plan included acupuncture and cupping once a week for 6 weeks, then bi-
22 weekly appointments for 12 weeks. Dr. Smythe’s goal was to reduce the pain to a 4/10
23 after 12 treatments. Id.
24 At her next appointment with Dr. Smythe on November 2, 2019, Plaintiff reported
25 a reduction in pain to 8/10. On November 6, 2019, Plaintiff reported a further reduction
26 in pain to 7/10. AR 461. On November 12, 2019, Plaintiff reported pain at 7/10 with
27 relief from pain for two days after treatment as well as pain and numbness in the arm
28 when she sits for long periods of time. AR 462. On November 19, 2019, Plaintiff
1 reported her pain level was 6/10. AR 463. She reported that same pain level on
2 December 7, 2019. Id. By January 4, 2020, Plaintiff’s reported pain level was 5/10. AR
3 464. She reported that same pain level at her visit on January 16, 2020. Id. She also said
4 her pain level had decreased since she stopped working. Id. On February 20, 2020,
5 Plaintiff reported a pain level of 4/10 with relief from pain for four days after a treatment.
6 AR 465. On February 15, 2020, she reported a 4/10 pain level and an increase in
7 mobility of the arm and frequency of range of motion exercises. Id. By February 29,
8 2020, Plaintiff’s reported pain level was 3/10 with relief from symptoms for five days
9 after treatment. AR 466. On March 28, 2020, Plaintiff’s pain had increased to 6/10
10 because she had not been to acupuncture, massage, or water therapy in a month due to the
11 stay-at-home order. Id. On April 4, 2020, Plaintiff reported her pain level at 5/10. Dr.
12 Smythe told her to return bi-weekly and try doing yoga and stretching at home. AR 467.
13 On April 13, 2020, Plaintiff’s reported pain level was again 5/10.
14 4. Adrienne Moore Kelly [Primary Care Physician]
15 Plaintiff saw Dr. Kelly on September 9, 2020, for the purpose of getting letters
16 confirming her diagnosis and functional limitations as she was trying to get disability
17 retirement. AR 997. Dr. Kelly noted Plaintiff’s longstanding issues with cervical
18 radiculopathy, lumbar radiculopathy with sciatica as well as bilateral osteoarthritis in the
19 knees. She also observed that Plaintiff had been actively followed by Physical Medicine
20 for these issues. AR 998. Dr. Kelly reported that Plaintiff’s neck pain radiates down her
21 right arm and any range of motion causes shooting pain with numbness to the fingers.
22 AR 996. The pain makes it difficult to do computer work and significantly interferes
23 with her activities of daily living (cleaning, cooking and even bathing). AR 998.
24 Dr. Kelly noted that x-ray and MRI scans confirm cervical canal stenosis and further
25 opined that surgery is not likely to help her symptoms. Id. Regarding the low back, Dr.
26 Kelly noted that MRI scans confirm multilevel degenerative changes of the lumbar spine
27 and severe central canal narrowing that has progressively worsened. Sitting or standing
28 for any length of time exacerbated her back pain or sciatica. Id. Dr. Kelly noted that
1 Plaintiff says “she pretty much does physical therapy all day long. She has a zero-gravity
2 chair and bed and can get her pain down to 8/10 if she takes a muscle relaxant and a nap
3 every day.” AR 998. Plaintiff told Dr. Kelly that since October 2019, she gets massages
4 and acupuncture every two weeks, and she also does aquatic therapy at the YMCA. Id.
5 Dr. Kelly noted on physical examination that Plaintiff has pain with straight leg raising
6 on the right, no atrophy, decreased patellar tendon reflexes on both sides, pain with
7 abduction of the right arm and spasm in the cervical spine and lower lumbar region. AR
8 999. In her assessment of Plaintiff, Dr. Kelly included cervical radiculopathy, lumbar
9 radiculopathy, sciatica on the right side, osteoarthritis of both knees, and severe obesity.7
10 AR 1000. Dr. Kelly told Plaintiff to follow up with her physical medicine doctor for a
11 letter supporting her diagnosis and functional limitations. AR 997, 1000, 1045.
12 On September 21, 2020, Dr. Kelly wrote a “to whom it may concern” letter that
13 documented her assessment of Plaintiff’s medical issues and functional limitations. AR
14 1131-1132. She documented a longstanding history of pain and numbness in Plaintiff’s
15 upper and lower right extremities due to cervical and lumbar spondylosis and
16 radiculopathy. Id. Dr. Kelly goes on to observe that Plaintiff’s cervical stenosis
17 (confirmed on MRI) causes severe radiating pain down her right arm. The pain, she
18 noted, limited her ability to perform activities of daily living such as cooking, cleaning,
19 bathing, and computer activities. AR 1131. Steroid injections have been ineffective, and
20 surgery is not indicated due to multi-level involvement. Id. Regarding the low back, Dr.
21 Kelly noted a longstanding history of low back pain and a 2019 MRI scan that confirms
22 multi-level degenerative changes and central canal stenosis. Id. She stated that sitting or
23 standing for any length of time exacerbates Plaintiff’s back pain or sciatica. She also gets
24 significant cramping when she stands or walks. Id. Dr. Kelly noted that Plaintiff treats
25 the pain with physical therapy most of the day along with using a zero-gravity chair and
26 bed. Id. She also related that Plaintiff gets massage and acupuncture every two weeks.
27
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1 Based on her symptoms and limitations, Dr. Kelly opined that plaintiff is unable to work.
2 AR 1132.
3 Along with the letter she wrote for Plaintiff, Dr. Kelly completed a medical
4 information questionnaire for the Social Security Administration. AR 1132-1134. In that
5 questionnaire, Dr. Kelly opined that Plaintiff’s level of functioning is for “sedentary
6 work,” but even sedentary tasks that involve sitting or using her right arm can increase
7 her symptoms of pain and numbness. AR 1133. Dr. Kelly says it is medically necessary
8 for Plaintiff to use her zero-gravity chair and bed at 15 to 20-minute intervals during the
9 day to reduce her level of pain. Id.
10 5. Dr. Sophia Chang, DACM/LAc
11 Dr. Chang wrote a letter on Plaintiff’s behalf dated November 11, 2020. AR 1137.
12 In it, she noted that she has been treating Plaintiff since October 11, 2020. She detailed
13 Plaintiff’s multiple orthopedic issues and chronic debilitating pain, which she says is
14 supported by cervical and lumbar MRI scans. Id. Like Dr. McClellan, Dr. Chang stated
15 that Plaintiff’s symptoms require her to lay down several times a day and take naps to
16 control her pain. Dr. Chang’s treatment plan for Plaintiff was to continue acupuncture 1-
17 2x per week. She said Plaintiff’s condition is indefinite and irreversible and will only
18 worsen if she does not maintain her current therapies and treatments. Id.
19 D. Vocational Expert Testimony
20 A vocational expert, Stephen Davis, testified at the administrative hearing. AR 46-
21 49.8 Mr. Davis testified that Plaintiff’s prior work as a Human Resources Specialist, code
22 166.267-038,9 would be considered medium, sedentary work as she performed it, SVP
23 7.10
24
25 8 Mr. Davis has a master’s degree in counseling psychology and is board certified by the American
Board of Vocational Experts. He has extensive experience in workers’ compensation, long-term
26 disability, short-term disability, and Social Security Disability. AR 238-40.
9 The “codes” referred to by the vocational expert refer to the Dictionary of Occupational Titles (DOT),
27 U.S. Department of Labor-Fourth Edition, Revised. 1991.
10 To determine the skill level of various jobs, the SSA uses a Specific Vocational Preparation (SVP)
28
1 The ALJ engaged in the following colloquy with Mr. Davis:
2 EXAMINATION OF VOCATIONAL EXPERT BY ADMINISTRATIVE LAW
JUDGE:
3
4 Q: In this case we have two hypotheticals. First, assume a hypothetical claimant,
age 52 at the alleged onset date, with 16 plus years of education, the past work: the
5
one job previously described. In the first hypothetical, let’s opine that this
6 hypothetical claimant can lift and carry 20 pounds occasionally, ten pounds
frequently; can stand or walk for at least six hours out of eight; sit for at least six
7
hours out of eight; should never climb ropes, ladders, or scaffolds; can
8 occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl;
should avoid concentrated exposure to extreme cold, vibration, unprotected
9
heights, and moving and dangerous machinery. Give those restrictions and those
10 alone, could this hypothetical claimant return to any past relevant work?
11
A: Yes, Your Honor. The job could be performed as defined and would be able - -
12 to be able as she performed it.
13
Q: Ok, and our second hypothetical is similar to the first except it’s ten pounds
14 occasionally, less than ten pounds frequently; stand or walk for up to two hours out
of eight; sit for at least six; everything else stays the same and this hypothetical
15
claimant would have the option to use a handheld device that’s - -as a cane or a
16 walking stick to get to and from the work area. Would this allow for a return to past
work?
17
18 A. Yes, sir.
19
Q: Okay. And as far as using a cane or a walking stick in the work area, that’s
20 something that’s not covered by the DOT; is that correct?
21
A. That’s correct, Your Honor.
22
Q: And is that based on your experience and education?
23
24 A: 40 plus years’ experience doing job analysis and seeing how it can impact on the
ability to perform effectively, Your Honor. So, yeah, it’s based on my experience.
25
26 Q: And so, you’re supplementing the DOT then, rather than conflicting with it. Is
27
translates to up to seven months training to learn the job. SSA Grid Rules: Understanding Specific
28
1 that a fair statement?
2
A: That’s correct. For the cane, Your Honor.
3
Q: And has your testimony today been consistent with the DOT and Selected
4
Characteristics of Occupations other than the instance of supplementation?
5
A: That’s correct. Everything else is consistent with the DOT except for the cane,
6
Your Honor, which is based on my experience.
7
ALJ: Okay. Questions counsel?
8
9 ATTY; Thank you, Judge.
10
BY ATTORNEY:
11
Q: Mr. Davis, back to hypothetical number two, if you’d also add the restriction that
12
the claimant needs to lie down for pain relief, which results in her being off-task
13 approximately two hours through the course of the workday, does that affect the past
work?
14
15 A: Well, that eliminates all work.
16
AR 47-49.
17
II. THE ALJ DECISION
18
A. The Sequential Process
19
To qualify for disability benefits under the Social Security Act, an applicant must
20
show that he or she cannot engage in any substantial gainful activity because of a
21
medically determinable physical or mental impairment that has lasted or can be expected
22
to last at least twelve months. 42 U.S.C. §§ 423(d), 1382(c)(a)(3). The Social Security
23
regulations establish a five-step sequential evaluation to determine whether an applicant
24
is disabled under this standard. 20 C.F.R. §§ 404.1520(a), 416.920(a); Batson v. Comm’r
25
of the Social Security Admin., 359 F.3d 1190, 1194 (9th Cir. 2004).
26
At step one, the ALJ determines whether the applicant is engaged in substantial
27
gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(b). If not, then at step two the
28
1 ALJ must determine whether the applicant suffers from a severe impairment or a
2 combination of impairments. Id. §§ 404.1520(a)(4)(ii), 416.920(c). If the impairment is
3 severe, at step three the ALJ must determine whether the applicant’s impairment or
4 combination of impairments meets or equals an impairment contained under 20 C.F.R.
5 Part 404, Subpart P, Appendix 1. Id. §§ 404.1520(a)(4)(iii), 416.920(d). If the
6 applicant’s impairment meets or equals a listing, he or she must be found disabled. Id.
7 If the impairment does not meet or equal a listing, the ALJ must determine the
8 applicant’s residual functional capacity (“RFC”). 11 20 C.F.R. §§ 404.1520(a)(4)(iv),
9 416.920(e). Then, the ALJ must determine at step four whether the applicant retains the
10 residual functional capacity to perform past relevant work. Id. §§ 404.1520(a)(4)(iv),
11 416.920(f). If the applicant cannot perform past relevant work, at step five the ALJ must
12 consider whether the applicant can perform any other work that exists in the national
13 economy. Id. §§ 404.1520(a)(4)(v), 416.920(g).
14 The applicant carries the burden to prove eligibility from steps one through four
15 but the burden at step five is on the agency. Celaya v. Halter, 332 F.3d 1177, 1180 (9th
16 Cir. 2003). Applicants not disqualified at step five are eligible for disability benefits. Id.
17 B. Substance of the ALJ’s Decision
18 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
19 activity since October 31, 2019, the alleged onset date. AR 15.
20 At step two, the ALJ determined Plaintiff has the following severe impairments:
21 degenerative disc disease of the lumbar and cervical spines with radiculopathy;
22 degenerative joint disease in the right knee; and obesity. Id. The ALJ determined that
23 those listed medically determinable impairments significantly limited her ability to
24 perform basic work activities as required by SSR 85-28. The ALJ noted that the medical
25 evidence showed Plaintiff has a history of headaches, skin problems, diverticulitis,
26 hypothyroidism, and hyperlipidemia. However, he determined those conditions do not
27
11 A claimant’s residual functional capacity (“RFC”) is the most she can still do in a work setting
28
1 more than minimally interfere with her ability to perform basic work activities and
2 therefore are not severe. AR 15.
3 At step three, the ALJ found Plaintiff does not have an impairment or combination
4 of impairments that meet or medically equal the severity of one of the listed impairments.
5 AR 17.
6 Next, the ALJ determined that Plaintiff retained the RFC to perform light work as
7 defined in 20 C.F.R. § 404.1567(b) in that:
8 The claimant can lift and carry 20 pounds occasionally and ten pounds
frequently. She can stand and/or walk for six hours out of an eight-hour day;
9
can sit for six hours of an eight-hour day; never climb
10 ropes/ladders/scaffolds; occasionally climb ramps/stairs, balance, stoop,
kneel, crouch, and crawl; avoid concentrated exposure to extreme cold,
11
vibration, unprotected heights and moving and dangerous machinery.
12
Id. In making his RFC assessment, the ALJ noted he had considered the entire medical
13
record, including Plaintiff’s symptoms and the extent to which these symptoms can
14
reasonably be accepted as consistent with the objective medical evidence, as well as the
15
medical opinion and other opinion evidence.
16
At step four, the ALJ determined that Plaintiff can perform her past relevant work
17
as a human resource specialist as it is actually and generally performed in the national
18
economy. AR 24. The ALJ noted that the vocational expert testified that someone with
19
the claimant’s age, education, work experience, and residual functional capacity could
20
perform this past relevant work. Id. The expert also testified that claimant’s job would
21
remain sedentary and would allow the claimant to use a handheld device to get to and
22
from the workstation. This work does not require performance of work-related activities
23
precluded by the claimant’s residual functional capacity. Id.
24
In sum, the ALJ found Plaintiff was not disabled as defined in the Social Security
25
Act as any time from October 31, 2019, the alleged onset date, through the date of his
26
decision. AR 24.
27
III. LEGAL STANDARD OF REVIEW
28
1 The Social Security Act provides for judicial review of a final agency decision
2 denying a claim for disability benefits. 42 U.S.C. § 405(g). A reviewing court will set
3 aside a denial of benefits only when the ALJ decision is “based on legal error or not
4 supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 664, 675
5 (9th Cir. 2017) (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir.
6 2003)). Substantial evidence is “more than a mere scintilla” and means “such relevant
7 evidence as a reasonable mind might accept as adequate to support a conclusion.”
8 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); see Molina v. Astrue, 674 F.3d 1104,
9 1110 (9th Cir. 2012) (quotation and citation omitted). It is a “highly deferential” standard
10 of review. Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009). However, the Court
11 must consider the entire record, weighing both the evidence that supports and the
12 evidence that detracts from the Commissioner’s conclusion, and it “may not affirm
13 simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759
14 F3d. 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
15 Cir. 2007)).
16 “The ALJ is responsible for determining credibility, resolving conflicts in medical
17 testimony, and for resolving ambiguities.” Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th
18 Cir. 2008) (internal quotations and citation omitted). If the evidence is susceptible to
19 more than one reasonable interpretation, the agency’s decision must be upheld. Molina,
20 674 F.3d at 1111. It is not the Court’s role to reinterpret or re-evaluate the evidence, even
21 if a re-evaluation may reasonably result in a favorable outcome for the plaintiff. Batson,
22 359 F.3d at 1193. Moreover, the Court may not uphold an ALJ’s decision on a ground
23 not actually relied on by the ALJ. Molina, 674 F.3d at 1121.
24 IV. DISCUSSION
25 Plaintiff argues that the ALJ erred in three respects: (1) by failing to give clear and
26 convincing reasons for rejecting Ms. Luna’s symptom testimony by using her extensive
27 treatment regimen to undermine her credibility, (2) by failing to provide sufficient
28 reasons supported by substantial evidence for rejecting the opinions of Dr. Kelly and Dr.
1 McClellan, and (3) by failing to consider the side effects of Ms. Luna’s medications in
2 determining her RFC. The court is not persuaded by any of these arguments.
3 A. The ALJ properly evaluated plaintiff’s subjective symptom
testimony and made findings that are supported by substantial
4
evidence.
5
Plaintiff first argues that the ALJ erred in discounting her subjective symptom
6
testimony. The Commissioner contends that the ALJ properly applied the two-step
7
process in considering Plaintiff’s alleged symptoms and made findings that are properly
8
supported by the record and sufficiently specific to ensure that he did not “arbitrarily
9
discredit” her subjective testimony. See Thomas v. Barnhart, 278 F.3ed 947, 958 (9th
10
Cir. 2001) (citing Bunnel v Sullivan, 947 F.2d 341-345-46 (9th Cir. 1991)).
11
Both the Act and the regulations prohibit granting disability benefits based solely
12
on a claimant’s subjective complaints. 42 U.S.C. § 423(d)(5)(A) (“[a]n individual’s
13
statement as to pain or other symptoms shall not alone be conclusive evidence of
14
disability”); 20 C.F.R. § 404.1529(a) (“statements about your pain or other symptoms
15
will not alone establish that you are disabled”). As one court observed, the ALJ “is not
16
required to believe every allegation of disabling pain, or else disability benefits would be
17
available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v.
18
Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
19
The Ninth Circuit has established a two-step process to determine whether a
20
claimant’s testimony about subjective pain is credible. Kramer v. Kijakazi, Case No.
21
20cv2065-GPC (AHG), 2022 WL 873630 *11 (S.D. Cal. March 24, 2022) (citing
22
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-1036 (9th Cir. 2007)). First, the ALJ must
23
determine whether the claimant provided objective evidence of an impairment or
24
impairments that could reasonably be expected to produce the alleged pain or symptoms.
25
Id. at 1036. Second, if the first factor is met and there is no evidence of malingering, “the
26
ALJ can reject the claimant’s testimony about the severity of her symptoms only by
27
offering specific clear and convincing reasons for doing so.” Id.
28
1 “While subjective pain testimony cannot be rejected solely on the ground that it is
2 not fully corroborated by objective medical evidence, the medical evidence is
3 nevertheless a relevant factor in determining the severity of the claimant’s pain and its
4 disabling effects.” Kramer, 2022 WL 873630 *11 (citing Rollins v. Massanari, 261 F.3d
5 853, 857 (9th Cir. 2001)). “In evaluating the claimant’s testimony, the ALJ may use
6 ‘ordinary techniques of credibility evaluation.’ For instance, the ALJ may consider
7 inconsistencies either in the claimant’s testimony or between the testimony and the
8 claimant’s conduct, . . . and ‘whether the claimant engages in daily activities inconsistent
9 with the alleged symptoms.’” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
10 Following the two-step process, the ALJ determined first that Plaintiff’s medically
11 determinable impairments (i.e., degenerative disc disease of the lumbar and cervical
12 spines with radiculopathy; degenerative joint disease in the right knee; and obesity) could
13 reasonably be expected to cause some of her alleged symptoms (i.e., daily pain in her
14 neck and shoulders that radiates to her arms and fingers along with muscle spasms and
15 low back pain with sciatica that radiates into her right leg). AR 15, 17, and 18.
16 Having satisfied the first step of the process, the ALJ next found that Plaintiff’s
17 allegations concerning the intensity, persistence, and limiting effects of her symptoms
18 were not entirely consistent with the objective medical evidence in the record. AR 18.
19 For example, the ALJ noted that “[t]here was no evidence of atrophy on September 9,
20 2020, which would be consistent with a significant limitation of extremity use.” AR 18
21 (citing AR 999). The ALJ also observed that despite Plaintiff’s complaints of severe
22 pain, “the physical examination noted normal gain and posture,” specifically noting “mild
23 tenderness in the cervical spine with some tender knots in the right trapezius, but cervical
24 range of motion within functional limits, she had negative Spurling’s sign, negative
25 L’Hermitte’s sign, negative Tinel’s sign, and negative Phalen’s test on the left although it
26 was positive on the right.” AR 19 (citing AR 282). The ALJ noted Plaintiff had normal
27 range of motion throughout the shoulders bilaterally, normal motor strength in the
28 bilateral upper extremities, no muscle atrophy, intact sensation, normal deep tendon
1 reflexes, and normal balance and coordination. AR 19 (citing AR 282-83). The ALJ
2 further observed that while Plaintiff claimed she was limited to lifting and carrying
3 almost no weight and could only walk one block without pain or numbness, those claims
4 were inconsistent with other evidence in the record that showed she was not precluded
5 from performing all such activities. AR 18. For example, Dr. Alonso, the consulting
6 neurosurgeon, noted that “the patient denies dropping objects, changes or loss of
7 dexterity, inability, or difficulty with writing, typing, or buttoning clothes.” AR 295. She
8 also “denied gait instability or slowness, the need for a cane or walker or recent falls.”
9 AR 297.
10 Additionally, at her visit with Dr. McClellan in May 2019, Plaintiff reported
11 “working out and weight training at least four times a week.” AR 274. She told Dr.
12 McClellan she was caring for family members in poor health, caring for children, and
13 juggling a demanding job. Id. These activities are inconsistent with her complaints of
14 severe, constant, disabling pain.
15 Finally, the ALJ reasonably concluded that Plaintiff’s conservative course of
16 treatment was inconsistent with the extreme limitations she alleged. AR 18. He observed
17 that the treating notes indicate she was able to manage her pain with conservative
18 treatment through acupuncture, massage, physical therapy, and medication. Id.; see
19 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (conservative course of treatment
20 suggested “a lower level of both pain and functional limitation”). In 2019, Plaintiff
21 repeatedly told her doctors that she was able to control her back pain with a combination
22 of exercise, Epsom salts, stretching, cryotherapy, massage, and hot yoga. AR 18 (citing
23 AR 263, 518, 664, 750). She also reported to her doctor in January 2020 that aqua
24 therapy, acupuncture, medication, and naps reduced her pain level significantly. AR 664,
25 750.
26 In sum, the Court concludes that the ALJ provided specific, clear, and convincing
27 reasons to discount Plaintiff’s symptom testimony. Where, as here, the evidence is
28 susceptible to more than one reasonable interpretation, the agency’s decision must be
1 upheld. Molina, 674 F.3d at 1111. It is not the Court’s role to re-evaluate the evidence,
2 even if a re-evaluation may reasonably result in a favorable outcome for the plaintiff.
3 Batson, 359 F.3d at 1193; see also Thomas, 278 F.23d at 959 (“[i]f the ALJ’s credibility
4 finding is supported by substantial evidence in the record, we may not engage in second-
5 guessing.”).
6 B. The ALJ did not err in discounting the opinions of Dr. Adrienne
Kelly and Dr. Brandon McClellan.
7
8 Plaintiff’s second argument is that the ALJ committed error by failing to provide
9 sufficient reasons supported by substantial evidence for rejecting the opinions of
10 Plaintiff’s treating physicians, Drs. Kelly and McClellan.
11 On January 18, 2017, the Social Security Administration (“SSA”) revised the
12 regulations that apply to evaluation of medical evidence, effectively abolishing the so-
13 called “treating physician rule” for cases filed on or after March 27, 2017. As both
14 parties acknowledge, this changed regulation applies to Plaintiff’s case. ECF 10 at 11,
15 ECF 11 at 6-7.
16 Under the revised regulations, the previous hierarchy of medical opinions was
17 eliminated, meaning that an ALJ no longer must assign a certain weight to a medical
18 practitioner’s opinion. Rather, ALJs are now to “consider” the “persuasiveness” of
19 opinions from all medical sources. 20 C.F.R. §§ 404.1520c(a); 416.920c(a).12
20 The ALJ is now required to focus on the persuasiveness of a medical opinion or
21 prior administrative finding(s) using the following five factors:
22 (1) Supportability
23 (2) Consistency
24
25
12 For Social Security applications filed before March 27, 2017, the medical opinion of a treating
26 physician was given controlling weight so long as it was well-supported by medically acceptable clinical
and laboratory techniques and was not inconsistent with the other substantial evidence in claimant’s
27 medical record. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting 20 CFR §§
404.1527(c)(2)).
28
1 (3) Relationship with the claimant (including):
2 a. Length of treatment relationship
3 b. Frequency of examinations
4 c. Purpose of the treatment relationship
5 d. Extent of the treatment relationship
6 e. Examination relationship
7 (4) Specialization
8 (5) Other factors
9 20 C.F.R. § 404.1520c(a)-(c) (2017).
10 Supportability and consistency are the two most important factors to be considered
11 by the ALJ in determining the persuasiveness of a medical source’s opinion. 20 C.F.R.
12 § 404.1520c(b)(2). The ALJ must explain in his decision how persuasive he finds a
13 medical opinion based on these two factors. Id. The ALJ may, but is not required to,
14 explain how he considered the other remaining factors, unless the ALJ finds that two
15 medical opinions on the same issue are equally well supported and consistent with the
16 record, but are not identical. 20 C.F.R. § 404.1520c(b)(2).
17 Here, the ALJ found that Dr. Kelly’s opinion was not supported by or consistent
18 with the evidence in the record. AR 22. Dr. Kelly’s narrative letter in support of
19 Plaintiff’s disability claim, AR 1131-1132, described Plaintiff’s history of neck and back
20 pain and concluded that those chronic issues rendered her unable to work. Id. In
21 Dr. Kelly’s opinion, Plaintiff’s spondylosis and central canal stenosis, which were
22 confirmed on MRI, caused Plaintiff severe radiating pain down her right arm. Dr. Kelly
23 related Plaintiff’s complaint that any range of motion involving her arm causes “shooting
24 pain down to her fingertips.” AR 1131. Dr. Kelly opined that due to the severity of her
25 symptoms, Plaintiff’s activities of daily living (e.g., cooking, cleaning, bathing) and
26 computer activities were significantly limited. Id. Dr. Kelly also noted that steroid
27 injections have been ineffective, and surgery is not indicated due to multi-level
28 involvement. Id.
1 Regarding the low back, Dr. Kelly noted Plaintiff’s longstanding history of chronic
2 low back pain and stated that was consistent with a 2019 MRI depicting multi-level
3 degenerative changes and central canal stenosis that is progressively worsening. AR
4 1131. Dr. Kelly indicated that sitting or standing for any length of time exacerbates
5 Plaintiff’s back pain or sciatica and that she also gets significant cramping when she
6 stands or walks. Id. Dr. Kelly observed that Plaintiff treats her pain with physical
7 therapy “for the majority of the day.” Id. Additionally, she used a zero-gravity chair and
8 bed at 20-minute intervals during the day, along with a muscle relaxer. Id. Dr. Kelly
9 went on to note that Plaintiff gets massage, aqua therapy, and acupuncture every two
10 weeks which she has done since October 2019. Based on her symptoms and limitations,
11 Dr. Kelly opines that Plaintiff is unable to work. AR 1132.
12 The ALJ found Dr. Kelly’s opinion unpersuasive because it was not supported by
13 or consistent with the record as a whole. He noted that physical examinations of Plaintiff
14 did not reveal significant neurological defects. Rather, she had generally normal motor
15 strength in the upper and lower extremities. AR 22 (citing AR 299, 310-311). The ALJ
16 found that this was consistent with Plaintiff’s own report to the neurosurgeon, Dr.
17 Alonso, in which she denied dropping objects, changes or loss of dexterity, inability to
18 write or type, gait instability, the need for a cane, motor weakness or incontinence. AR
19 295-296. Despite her subjective complaints of pain, Dr. Kelly’s notes on physical exam
20 indicated Plaintiff had no muscle atrophy, she had intact varus and valgus strength, and
21 she was able to walk without assistance. AR 22 (citing AR 999). Dr. Kelly did indicate
22 that Plaintiff had pain with straight leg raising on the right, decreased patellar tendon
23 reflexes on both sides, pain with abduction of the right arm and spasm in the cervical
24 spine and lower lumbar region. AR 999. Despite these positive findings, the ALJ
25 reasonably concluded that Dr. Kelly’s opinion regarding Plaintiff’s functional capacity
26 should be discounted due to the lack of objective evidence of significant neurological
27 involvement and because Dr. Kelly was not treating Plaintiff for the problems she claims
28 are disabling. AR 22 (citing AR 989). Further, the ALJ’s opinion appropriately
1 addressed supportability and consistency, as required under the regulations.
2 The ALJ similarly found Dr. McClellan’s opinion unpersuasive as it was not
3 supported by and consistent with the medical record as a whole. AR 22-23. On
4 September 25, 2020, Dr. McClellan wrote a “to whom it may concern” letter for Plaintiff.
5 AR 1135. In the letter, he said he has been treating Plaintiff since March of 2019 for
6 chronic neck pain, right-sided cervical radiculopathy, chronic low back pain with right
7 lower radiculopathy and chronic muscle spasms. Id. Dr. McClellan went on to say that
8 Plaintiff’s imaging studies correlate well with her symptoms. He said that the cervical
9 MRI demonstrates significant spondylosis with multi-level moderate to severe central and
10 foraminal stenosis including likely impingement on her C7 nerve. Id.
11 Regarding the lumber spine, Dr. McClellan noted Plaintiff’s MRIs show multi-
12 level, fair-to-severe degenerative changes which have progressed. Id. She also has
13 moderate to severe central stenosis at L4/5 and severe left foraminal narrowing at L5/S1.
14 Id. Dr. McClellan indicated that Plaintiff’s pain can be “quite diffuse,” and she has done
15 a “tremendous job” trying to manage her symptoms with myriad active and passive
16 treatments. Id. He noted that despite her efforts, her condition worsened to the point
17 where she had to retire for medical reasons. Id. He said she experiences pain with any
18 kind of prolonged activity. She cannot sit for more than 10-20 minutes at a time without
19 needing to change positions or ideally lie down. Id. With daily aquatic aerobics, she can
20 keep herself moving and functionally independent. She does acupuncture, massage,
21 cryotherapy, vibration therapy, and hypnotherapy. She also gets medications and
22 injections. She must lay down throughout the day to manage her pain. Id. Dr.
23 McClellan concluded by saying she will likely have to continue with these therapies and
24 treatments “indefinitely” to maintain her independence. Id.
25 On review of Dr. McClellan’s letter opinion, the ALJ found that his statements
26 merely repeated Plaintiff’s history and relied too heavily on her subjective complaints
27 rather than objective evidence. AR 23. Dr. McClellan’s physical examination, by
28 comparison, revealed that Plaintiff had normal gait, normal range of motion in the lumbar
1 spine, normal motor strength in both the upper and lower extremities, no atrophy,
2 substantially normal reflexes, and bilaterally intact sensation in the upper and lower
3 extremities. Id. (citing AR 263-266, 281-283, 1050-1059). The ALJ also observed the
4 record contained no evidence of any electrodiagnostic testing that would confirm the
5 diagnosis of radiculopathy. AR 23. Additionally, the ALJ observed that claimant was
6 able to manage her symptoms with conservative treatment. Id. Because these were valid
7 reasons for discounting Plaintiff’s complaints of disabling pain, they are equally valid
8 reasons for rejecting Dr. McClellan’s opinion. See Tommasetti, 533 F. 3d at 1041 (“An
9 ALJ may reject a . . . physician’s opinion if it is based ‘to a large extent’ on a claimant’s
10 self-reports that have been properly discounted as incredible.”).
11 The ALJ also reasonably considered the opinions of the state agency doctors who
12 opined that Plaintiff had significantly less functional limitation than she claims. For
13 example, Dr. Hedge and Dr. Steinsapir (state agency reviewers) both found Plaintiff to be
14 only limited to light work with some postural limitations. AR 21, 56-57, 65-68. After
15 recounting the many “normal” findings on Plaintiff’s physical examinations, the ALJ
16 found these opinions persuasive because they were supported and consistent with the
17 record as a whole. AR 21.
18 In sum, the Court finds that the ALJ did not err in discounting the opinions of
19 Dr. Kelly and Dr. McClellan.
20 C. The ALJ correctly determined Plaintiff’s Residual Functional Capacity
21 Plaintiff’s third and final argument is that the ALJ erroneously failed to consider
22 the side-effects of her medications when determining her residual functional capacity,
23 citing Social Security Ruling (SSR) 16-3 and Varney v. Secretary of Health and Human
24 Services, 846 F.2d 581-585 (9th Cir. 1988) (holding that if the Secretary chooses to
25 disregard side effects of a claimant’s medications, he must support that decision with
26 specific findings). ECF 10 at 16-17. However, the Court finds that here, the ALJ did
27 discuss Plaintiff’s medications throughout his decision, noting that her symptoms were
28 mostly relieved with her current treatment regimen. AR 21-22.
1 The only side effect of medications Plaintiff did report was that Zanaflex makes
2 her sleepy. AR 43. She had previously told her doctors that she intentionally took that
3 medication at lunchtime, so she could nap. AR 661, 1051. She testified at the
4 administrative hearing that when she takes Zanaflex at mid-day it “knocks her out” from
5 60 to 120 minutes. AR 43. While the ALJ did not specifically make a finding on the side
6 effect of Plaintiff napping for 1-2 hours a day, this side effect is essentially the same as
7 other testimony that the ALJ did consider. For example, the ALJ specifically noted in his
8 opinion that Plaintiff “laid down during the day for one to hours at a time” and that she
9 “alleged spending approximately two to four hours a day lying in bed.” AR 18. As
10 discussed above, the Court concluded that the ALJ properly evaluated plaintiff’s
11 subjective symptom testimony. Where the side effects from the medicine are “essentially
12 the same” as the other general symptoms that Plaintiff already testified about, it is not
13 error if the ALJ fails to specifically mention the side effects in his opinion. See
14 Muhammed v. Apfel, No. C 98-02952 CRB, 1999 WL 260974, at *8 (N.D. Cal. Apr. 2,
15 1999) (where “Plaintiff's side effects [of dizziness and headaches] were essentially the
16 same as her general symptoms such as, dizziness, flushed face and feeling tired,” “it is
17 reasonable to conclude that the ALJ’s explicit specific findings regarding Plaintiff's
18 subjective complaints of pain and symptoms implicitly constitute determinations as to the
19 medicinal side effects” and thus, “as required by Varney, the ALJ did address the
20 Plaintiff's side effects in his findings”).
21 Other than the side effect of “sleepiness” from Zanaflex, the record contained no
22 other statements regarding limitations caused by medications. No doctor or other health
23 care provider suggested that this medication would adversely affect Plaintiff’s ability to
24 work. See Thomas v. Barnhart, 278 F3d 947, 960 (9th Cir. 2002) (although claimant
25 contended the ALJ erroneously excluded the side effects of her pain medications, she
26 offered no objective evidence that her medications affected her concentration or caused
27 dizziness, and the only evidence offered regarding these symptoms were her own
28 statements to her doctor); see also Roquemore v. Comm’r of Soc. Sec. Admin, 374 Fed.
1 || Appx. 693, 695 (9th Cir. 2010)(“[nJothing in the record suggests that [plaintiffs] ability
2 ||to work was affected by his medications.’’).
3 For these reasons, the ALJ was not required to include a discussion of the side
4 lleffects of Zanaflex. See also Atchison v. Astrue, No. 10cv1987-BAM, 2012 WL 3143871
5 *12 (B.D. Cal. Aug. 1 2012) (“When no objective evidence in the record suggests that
6 ||a claimant’s ability to work was hampered by his or her medications, an ALJ is not
7 required to include a discussion of side effects in the hearing decision.”). Because there
8 |/is no evidence here that the side effects of Plaintiff's medications result in greater
9 || limitations than those assessed by the ALJ in Plaintiff's RFC, he did not have to
10 || specifically refer to them in his decision. Jd.
11 V. CONCLUSION
12 The ALJ carefully reviewed Plaintiff's disability claim, held a hearing, and
13 ||conducted a thorough review of the record. The Court finds that he provided clear and
14 || convincing reasons for discounting Plaintiff's subjective claims regarding her symptoms.
15 || As discussed above, the ALJ identified specific evidence in the record indicating that
16 || Plaintiff's activities of daily living and the objective medical evidence were not
17 consistent with the severity of pain alleged by Plaintiff, or with a disabling level of
18 ||impairment. The Court has reviewed the record and finds substantial evidence
19 supporting these reasons and the ALJ’s findings. The Court therefore DENIES
20 || Plaintiff's Motion for Summary Judgment, affirms the decision of the Commissioner, and
21 || dismisses this action with prejudice. The Clerk of the Court shall enter judgment in
22 || accordance with this Order.
23 IT IS SO ORDERED.
Dated: November 15, 2022
05 Mite. Z Lome
Hon. Nita L. Stormes
26 United States Magistrate Judge
27
28