“Impairments that can be controlled effectively with medication are 15 not disabling for the purpose of determining eligibility for SSI benefits.”
How later courts described this case
- “Impairments that can be controlled effectively with medication are 15 not disabling for the purpose of determining eligibility for SSI benefits.”
- stating that an ALJ may 26 properly rely on inconsistencies between claimant’s testimony and claimant’s daily 27 activities
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 MARY G.,1 Case No.: 21cv2135-LR
12 Plaintiff,
ORDER REGARDING JOINT
13 v. MOTION FOR JUDICIAL REVIEW
14 KILOLO KIJAKAZI, Acting
[ECF NO. 22]
Commissioner of Social Security,
15
Defendant.
16
17
18 On December 28, 2021, Mary G. (“Plaintiff”) filed a Complaint pursuant to 42
19 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
20 Security (“Defendant”) denying Plaintiff’s application for social security disability
21 benefits and supplemental security income. (ECF No. 1.) Now pending before the Court
22 is the parties’ “Joint Stipulation” seeking judicial review (“Joint Motion”). (ECF No. 22
23 (“J. Mot.”).) For the reasons discussed below, the Court ORDERS that judgment be
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25
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27 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court’s opinions in Social Security cases filed under
42 U.S.C. § 405(g) “refer to any non-government parties by using only their first name and last initial.”
28
1 entered affirming the decision of the Commissioner pursuant to sentence four of 42
2 U.S.C. § 405(g).
3 I. PROCEDURAL BACKGROUND
4 On April 26, 2018, Plaintiff filed an application for social security disability
5 benefits under Title II of the Social Security Act and supplemental security income
6 benefits under Title XVI of the Social Security Act, alleging disability beginning
7 October 1, 2017. (ECF No. 12 (“AR”)2 at 15, 76, 301.) After her application was denied
8 initially and upon reconsideration, (id. at 75–90, 92–107, 109–25, 127–43), Plaintiff
9 requested an administrative hearing before an administrative law judge (“ALJ”), (id. at
10 157). An administrative hearing was held on May 4, 2021.3 (Id. at 42–69.) Plaintiff
11 appeared at the hearing with counsel, and testimony was taken from her and a vocational
12 expert (“VE”). (Id.)
13 As reflected in his May 26, 2021 hearing decision, the ALJ found that Plaintiff had
14 not been under a disability, as defined in the Social Security Act, from October 1, 2017,
15 through the date of the decision. (Id. at 28.) The ALJ’s decision became the final
16 decision of the Commissioner on October 26, 2021, when the Appeals Council denied
17 Plaintiff’s request for review. (Id. at 1–5.) This timely civil action followed. (See ECF
18 No. 1.)
19 / / /
20 / / /
21 / / /
22
23
2 “AR” refers to the Administrative Record filed on May 17, 2022. (ECF No. 12.) The Court’s
24
citations to the AR in this Order are to the page numbers listed on the original document rather than the
25 page numbers designated by the Court’s Case Management/Electronic Case Filing System (“CM/ECF”).
For all other documents, the Court’s citations are to the page numbers affixed by CM/ECF.
26
3 Plaintiff initially appeared for a hearing on January 7, 2020, but the hearing was continued so that
27 Plaintiff could obtain counsel. (See id. at 15, 70–74.) On August 11, 2020, Plaintiff appeared for the
rescheduled hearing with counsel, but that hearing was continued to allow Plaintiff’s counsel to
28
1 II. SUMMARY OF THE ALJ’S FINDINGS
2 The ALJ followed the Commissioner’s five-step sequential evaluation process.
3 See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in
4 substantial gainful activity since the application date. (AR at 18.) At step two, the ALJ
5 found that Plaintiff had the following severe impairments: history of psoriatic arthritis,
6 methicillin-sensitive staphylococcus aureus infection secondary to laminectomy,
7 laminectomy at L4–L5 and spinal fusion revision surgery, fibromyalgia, depression, and
8 anxiety. (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or
9 combination of impairments that met or medically equaled the severity of one of the
10 impairments listed in the Commissioner’s Listing of Impairments. (Id. at 19.)
11 Next, the ALJ determined that Plaintiff had the residual functional capacity
12 (“RFC”) to do the following:
13 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
the claimant can lift and/or carry, push and/or pull, 20 pounds occasionally
14
and 10 pounds frequently; stand and/or walk 2-hours in an 8-hour day; sit for
15 6-hours in an 8-hour day with normal breaks; occasionally climb ramps and
stairs; never climb ladders, ropes, and scaffolds; occasionally balance, stoop,
16
kneel, crouch, and crawl; and avoid concentrated exposure to extreme cold,
17 vibrations, and unprotected heights and dangerous moving machinery. In
addition, the claimant is limited to understanding, remembering, and
18
carrying out simple, routine, repetitive tasks, with breaks every two hours; to
19 no interaction with the general public; and to occasional work-related, non-
personal, non-social interaction with co-workers and supervisors involving
20
no more than a brief exchange of information or hand-off of product. The
21 claimant cannot perform fast paced work, and needs a low-stress
environment where there are few work place changes.
22
23 (Id. at 21–22.)
24 At step four, the ALJ accepted and cited the VE’s testimony that Plaintiff is not
25 capable of performing her past relevant work as patient scheduler, loan clerk, and
26 customer service representative. (Id. at 26; see also id. at 63–65.) Alternatively, at step
27 five, based on the VE’s testimony, the ALJ found that a hypothetical person with
28 Plaintiff’s RFC could perform the requirements of occupations that existed in significant
1 numbers in the national economy, such as document preparer/scanner, final assembler,
2 and table worker/inspector. (Id. at 27–28; see also id. at 65–67.) The ALJ then found
3 that Plaintiff was not disabled. (Id. at 28.)
4 III. DISPUTED ISSUE
5 As reflected in the parties’ Joint Motion, Plaintiff is raising the following issue as
6 the ground for reversal and remand—whether the ALJ improperly rejected Plaintiff’s
7 testimony regarding pain and functional limitations. (J. Mot. at 5.)
8 IV. STANDARD OF REVIEW
9 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
10 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of
11 judicial review is limited, and the denial of benefits will not be disturbed if it is supported
12 by substantial evidence in the record and contains no legal error. See id.; Buck v.
13 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). “Substantial evidence means more than a
14 mere scintilla, but less than a preponderance. It means such relevant evidence as a
15 reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill,
16 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec’y Health & Hum. Servs.,
17 846 F.2d 573, 576 (9th Cir. 1988)). In determining whether the Commissioner’s decision
18 is supported by substantial evidence, a reviewing court “must assess the entire record,
19 weighing the evidence both supporting and detracting from the agency’s conclusion,”
20 and “may not reweigh the evidence or substitute [its] judgment for that of the ALJ.”
21 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence can be
22 interpreted in more than one way, the court must uphold the ALJ’s decision. Id. at 1115–
23 16; Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). The Court may consider “only
24 the reasons provided by the ALJ in the disability determination and may not affirm the
25 ALJ on a ground upon which [he or she] did not rely.” Revels, 874 F.3d at 654 (internal
26 quotation omitted).
27 / / /
28 / / /
1 V. DISCUSSION
2 Plaintiff argues that the ALJ improperly rejected her testimony regarding
3 subjective symptoms by failing to provide specific, clear and convincing reasons
4 supported by substantial evidence in the record. (J. Mot. at 6–13.) Specifically, Plaintiff
5 asserts that the ALJ did not provide clear and convincing reasons to discount her
6 testimony that she could not work because she has back pain, cannot stand or sit for long
7 periods of time, can only drive short distances, rarely cooks, and experiences anxiety and
8 panic attacks. (Id. at 10–11.) Plaintiff claims that the ALJ dismissed her testimony
9 regarding physical impairments by merely summarizing medical evidence, stating that
10 the impartments were not disabling, and by incorrectly concluding that the symptoms
11 have improved. (Id. at 11.) Plaintiff also asserts the ALJ dismissed her mental health
12 impairments as “not disabling,” which lacks the required specificity and inaccurately
13 describes the record. (Id. at 12.) Plaintiff therefore moves the Court to reverse the
14 Commissioner’s decision and remand the case for an award of benefits, or, in the
15 alternative, to remand the case to the Commissioner for further proceedings. (Id. at 21.)
16 Defendant argues that substantial evidence supported the ALJ’s finding that
17 Plaintiff’s testimony was not consistent with the “objective and treatment evidence of
18 record.” (Id. at 13, 20–21.) Defendant contends that the ALJ properly determined that
19 Plaintiff’s medical records indicated that her symptoms and impairments improved with
20 treatment, medications, and surgical intervention, and the records contradicted the alleged
21 severity of Plaintiff’s physical impairments. (Id. at 17–18.) Defendant also states that
22 the ALJ found that although Plaintiff’s mental health impairments were chronic, they
23 were not disabling because they were controllable. (Id. at 18.) Finally, Defendant
24 maintains that the ALJ considered and found persuasive the findings of the State Agency
25 psychiatric medical consultants Yanira Olaya, M.D. and Phaedra Caruso-Radin, Psy.D.,
26 and psychiatric consultative examiner Jaganath Glassman, M.D. regarding Plaintiff’s
27 limitations, which were consistent with the limitations in the ALJ’s RFC determination.
28
1 (Id. at 19.) Defendant therefore asks the Court to affirm the ALJ’s findings, or, in the
2 alternative, remand case. (Id. at 13, 20–21.)
3 A. Applicable Law
4 The Ninth Circuit has established a two-part test for evaluating a claimant’s.
5 allegations regarding subjective symptoms. See Trevizo v. Berryhill, 871 F.3d 664, 678
6 (9th Cir. 2017); see also Social Security Ruling (“SSR”) 16-3p,4 2016 WL 1119029
7 (Mar. 16, 2016). First, the ALJ determines whether there is “objective medical evidence
8 of an underlying impairment that could reasonably be expected to produce the pain or
9 other symptoms alleged.” Trevizo, 871 F.3d at 678 (quoting Garrison v. Colvin, 759
10 F.3d 995, 1014–15 (9th Cir. 2014)). Second, if a claimant presented such evidence, and
11 there is no evidence of malingering, the ALJ may reject the claimant’s statements about
12 the severity of his or her symptoms “only by offering specific, clear and convincing
13 reasons for doing so.” Id.
14 When evaluating subjective symptom testimony, “[g]eneral findings are
15 insufficient.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). “[A]n ALJ
16 does not provide specific, clear, and convincing reasons for rejecting a claimant’s
17 testimony by simply reciting the medical evidence in support of his or her residual
18 functional capacity determination.” Id. at 489. Instead, the ALJ must identify the
19 testimony regarding the claimant’s symptoms that the ALJ finds not credible, and explain
20 what evidence undermines the claimant’s testimony. See Lambert v. Saul, 980 F.3d
21 1266, 1277 (9th Cir. 2020) (citing Treichler, 775 F.3d at 1102); see also Burrell v.
22 Colvin, 775 F. 3d 1133, 1139 (9th Cir. 2014) (finding error where the ALJ “never
23 connected the medical record” to the claimant’s testimony, and did not make “a specific
24
25
26 4 “[A]ssessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and
persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable
27 impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into
wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo, 871 F.3d at 678
28
1 finding linking a lack of medical records to [the claimant’s] testimony about the
2 intensity” of her symptoms); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)
3 (providing that the ALJ’s reasons for discounting a claimant’s testimony must be
4 “sufficiently specific to permit the reviewing court to conclude that the ALJ did not
5 arbitrarily discount the claimant’s testimony”).
6 “Because symptoms sometimes suggest a greater severity of impairment than can
7 be shown by objective medical evidence alone,” the ALJ considers “all of the evidence
8 presented,” including information about the claimant’s prior work record, statements
9 about symptoms, evidence from medical sources, and observations by the Agency’s
10 employees and other individuals. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR
11 16-3p, 2016 WL 1119029. In addition, the ALJ may consider other factors, such as
12 Plaintiff’s daily activities; the location, duration, frequency, and intensity of their pain or
13 other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness,
14 and side effects of any medication taken to alleviate pain; treatment; and any other
15 measures used to relieve pain. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-
16 3p, 2016 WL 1119029.
17 B. Plaintiff’s Testimony During the Administrative Hearing and Medical
18 Records
19 1. Relevant testimony during Plaintiff’s administrative hearing
20 Plaintiff testified that she was forty-one years old at the time of the hearing and
21 that she stopped working because of “medical issues,” including back pain and arthritis,
22 and “[m]ultiple mental” issues. (AR at 47, 52.) Since 2017, Plaintiff symptoms have
23 worsened, she developed sciatic arthritis, and was diagnosed with spondylitis in her
24 spine. (Id.) In 2019, Plaintiff had a revision spinal surgery, and two weeks later, was
25 hospitalized for infection she developed after the surgery. (Id. at 57.) Plaintiff has not
26 worked since June 2017, and collected unemployment through January 2018. (Id. at 54.)
27 In 2017, Plaintiff spent two-to-three hours per day in bed, and her condition has
28 worsened overtime. (Id. at 47–48.) She “do[es not] do a lot of standing or sitting,” and is
1 most comfortable lying down because it does not strain her back. (Id. at 48.) Plaintiff
2 has more bad days than good days. (Id.) On a bad day, Plaintiff’s “[p]ain level is so high
3 that pain medication doesn’t even help [her] that much,” and she lies down and forces
4 herself to sleep to cope with pain. (Id. at 49.) On a typical day, Plaintiff gets up, lets her
5 pets out, goes back to bed, spends four-to-five hours in bed, and in the afternoon, lets her
6 pets out again. (Id. at 48.)
7 Plaintiff lives with her seventy-five year old father and does “minimal” chores.
8 (Id. at 49, 51–52.) At the time of the hearing, Plaintiff and her father were living in a
9 motel. (Id. at 51.) Plaintiff used to cook a lot, but stopped cooking after her 2019 spinal
10 fusion repair surgery. (Id. at 49.) Plaintiff leaves home once or twice per week, can
11 drive short distances, but cannot drive long distances because of pain. (Id. at 50.) She
12 occasionally uses a walker, but the walker was not prescribed by any physician; rather,
13 Plaintiff obtained the walker “because she knew [she] needed it.” (Id. at 58.)
14 With respect to her mental health symptoms, Plaintiff testified that she suffers from
15 depression and anxiety, which affect her ability to work. (Id. at 50.) Her “anxiety is
16 absolutely awful,” and she experiences “quite a few panic attacks and . . . anxiety-related
17 issues.” (Id.) Plaintiff sometimes has problems with attention. (Id.) She has been
18 receiving therapy and taking medications since 1987, and was hospitalized for a mental
19 health issue in 2013. (Id. at 58–59.)
20 2. Relevant medical records
21 Plaintiff’s May 12, 2017, lumbar spine X-ray revealed a “posterior fusion at L4–S1
22 with intervertebral body disc spacers.” (Id. at 464.) It also noted a “questionable fracture
23 of the most inferior left screw at the level of fusion at S1.” (Id.)
24 Plaintiff’s May 24, 2017, CT scan of the lumbar spine indicated that she was status
25 post L4–L5, surgical fusion, there was a “fracture through the mid-portion of the left S1
26 pedicle screw,” and “minimal angulation along the mid-portion of the right S1 pedicle
27 screw.” (Id.) The CT scan also revealed “[s]pinous process impingement . . . at L3–L4,”
28 and “[d]egenerative disc disease at L5–S1 with associated mild right and moderate left
1 L5-S1 with associated mild right and moderate left L5–S1 neural foraminal stenosis.”
2 (Id.)
3 Plaintiff’s March 18, 2019, CT of lumbar spine showed “stable postsurgical
4 changes compatible with posterior fusion of the L4–S1 vertebral bodies with interbody
5 disc spacer in place at the L4–L5 and L5–S1 levels.” (Id. at 617.) It also revealed
6 “[s]table fracture of the midportion of the left S1 pedicular screw,” and “[s]table 5 mm
7 right paracentral calcified fragment at the L5–S1 level and mild right and moderate left
8 neural foraminal stenosis secondary to inferior osteophyte encroachment.” (Id. at 618.)
9 On April 3, 2019, Plaintiff had a surgery for her lumbar pseudoarthrosis L4–5 and
10 L5–S1, lumbar radiculopathy, lumbar degenerative disc disease, and chronic pain. (Id. at
11 591.) The indication for the surgery was a “posterior PLIF fusion 6 years ago with
12 pseudoarthrosis with failed hardware noted posteriorly.” (Id. at 593.)
13 On April 22, 2019, Plaintiff was hospitalized because she developed an MSSA
14 infection at the left wound cite after her April 3, 2019 surgery. (Id. at 833.) The wound
15 was disinfected, and Plaintiff was discharged on April 26, 2019. (Id.)
16 On May 5, 2019, Dr. Paul Kim at the Spine Institute of San Diego noted that
17 Plaintiff reported that she “saw pain management and they put her back on BuTrans patch
18 and her back is feeling better already.” (Id. at 745.) He also noted that “[t]he patient is
19 doing very well” after the surgery. (Id. at 746.)
20 On May 20, 2019, Dr. Khalid at the Spine Institute of San Diego stated that
21 Plaintiff “is clinically doing better.” (Id. at 749.) Plaintiff was given prescription refill,
22 was seeing her pain management doctor, and was “making ‘progress.’” (Id.) On
23 June 17, 2019, Dr. Khalid noted that “[t]he patient is progressing well.” (Id. at 753.) On
24 August 4, 2019, he stated that Plaintiff’s “back symptoms have changed,” and her back
25 was “feeling better.” (Id. at 754–55.)
26 On September 1, 2019, Dr. Kim noted that Plaintiff “has turned the corner and is
27 doing excellent. She has 0/10 pain.” (Id. at 760; see also id. at 761.) He also stated that
28 Plaintiff “is very pleased with the results so far.” (Id. at 761.)
1 Plaintiff’s thoracic spine x-ray on October 8, 2020, showed “minimal scoliosis and
2 spondylosis.” (Id. at 1883). Her October 8, 2020, lumbar spine x-ray revealed “[s]table
3 examination with stable appearing postoperative changes from L4 through S1.” (Id.)
4 On December 3, 2020, Dr. Khalid noted that Plaintiff experienced low back pain,
5 which she “described as a moderate dull aching,” aggravated by bending, lifting, sitting,
6 and standing. (Id. at 1666.) He also noted that “[t]here has been no use of assistive
7 devices.” (Id.)
8 With respect to Plaintiff’s mental health impairments, Plaintiff’s June 7, 2018
9 Behavior Health Assessment noted that she experienced anxiety, depression, and grief
10 from her mother’s recent passing. (Id. at 552.) Plaintiff stated that she worried “about
11 various topics, but lately about finances and her father’s health.” (Id.) She reported that
12 she coped with anxiety with “high level of activity,” including cleaning and gardening.
13 (Id. at 552–53.)
14 On July 13, 2018, Dr. Glassman conducted a psychiatric disability evaluation of
15 Plaintiff. (Id. at 476–81.) Plaintiff reported being “anxious virtually all the time,” and
16 stated that her “feelings of depression come and go.” (Id. at 477.) Dr. Glassman noted
17 that Plaintiff’s “mood can be fine at times,” but she had a history of self-cutting and self-
18 picking on her face. (Id. at 477–78.) Plaintiff reported that she had difficulties with
19 sleep, did not have energy or motivation, showered once a week, but brushed her teeth
20 daily. (Id. a 478.) She did household chores when her pain was not too strong, enjoyed
21 reading, quilted, and tried to “stay busy.” (Id. at 479.)
22 Dr. Glassman’s mental status examination results noted that Plaintiff “did not
23 appear to be sad or down; more anxious, mildly agitated and irritated.” (Id.) He further
24 concluded the following:
25 From a psychiatric perspective, [Plaintiff] has moderate impairment in her
capacity to get along adequately with others and to behave in socially-
26
appropriate manner. She is capable of understanding and following at least
27 simple instructions. She has moderate impairment in her capacity to
28
1 maintain concentration, persistence, and pace, and to adapt ion changed and
stresses in a workplace setting.
2
3 She has not been in any consistent mental health treatment. Consistent
treatment could help decrease her symports and improve her functioning.
4
5 (Id. at 480.)
6 October 17, 2018 progress note from Nurse Practitioner Sweeney lists the
7 following diagnoses: “Major depressive disorder, recurrent, unspecified,” “Generalized
8 anxiety disorder,” and “Anxiety disorder, unspecified.” (Id. at 722.) Plaintiff reported
9 that “[t]hings [we]re ok,” she had excess energy, and could not sit still. (Id.) She was
10 feeling hopeless, her mood was “low,” but her memory and cognition were intact, and
11 she displayed fair insight and judgment. (Id. at 722–23.) The note lists the medications
12 Plaintiff was prescribed, and states that she was taking those medications and denied any
13 side effects. (Id. at 720.)
14 November 21, 2018 progress note from Nurse Practitioner Sweeney lists the
15 following diagnoses: “Major depressive disorder, recurrent, unspecified,” “Generalized
16 anxiety disorder,” and “Anxiety disorder, unspecified.” (Id. at 719.) Plaintiff’s chief
17 complaint was “[t]he holidays are a little difficult, but trying to keep myself busy.” (Id.)
18 Plaintiff reported that her mood was “okay,” but she was “more angry due to holidays,”
19 and was planning to do “all the cooking for Thanksgiving.” (Id.) Plaintiff stated that she
20 slept 4–5 hours per night and denied napping throughout the day. (Id.) She reported
21 depression 7/10, but during the examination was “jovial, [and] laughed a lot at this visit
22 compared to previous visits.” (Id.) The progress note also states that Plaintiff “appears
23 less depressed than when first presenting to this clinic,” and Plaintiff reported that her
24 mood was “‘okay’ with congruent euthymic affect.” (Id. at 719–20.) The note lists
25 Plaintiff’s prescribed medications, and states that Plaintiff was taking those medications
26 and denied any side effects. (Id.)
27 March 22, 2019 Patient Visit Note from Physician Assistant Leon states that
28 Plaintiff’s standardized depression screening and screening for anxiety revealed “no
1 significant symptoms.” (Id. at 1397.) Further, when Plaintiff was asked “[h]ow often
2 [she was] feeling down, depressed or hopeless,” and “[h]ow often [she was] feeling
3 nervous, anxious or on edge,” she responded to both questions with “[n]ot at all.” (Id. at
4 1398.)
5 May 17, 2019 progress note from Psychiatrist Dr. Cann lists diagnoses for “Major
6 depressive disorder, recurrent, unspecified,” “Generalized anxiety disorder,” and
7 “Anxiety disorder, unspecified.” (Id. at 716.) Plaintiff reported that she was living with
8 her boyfriend and father, her father had medical problems, and she was her father’s
9 caretaker. (Id.) Plaintiff stated that “she was doing well but only getting 2–3 hours of
10 sleep at night,” and explained that she was anxious, in part, due to financial pressures.
11 (Id.) Her psychiatric examination revelated that she was alert, oriented, calm and
12 cooperative, had normal station and gait, and good eye contact, her behavior was
13 appropriate, she was not agitated, and her speech was normal. (Id. at 717.) Plaintiff’s
14 mood was depressed, affect was “dysphoric but appropriate and reactive,” and she denied
15 suicidal thoughts. (Id.) Plaintiff had linear thinking, no confusion, intact memory, and
16 fair judgement. (Id.) Plaintiff’s diagnosis was “Major Depressive Disorder, recurrent
17 moderate.” (Id.)
18 July 26, 2019 progress note from Dr. Cann lists the following diagnoses: “Major
19 depressive disorder, recurrent, unspecified,” and “Generalized anxiety disorder.” (Id. at
20 713.) Plaintiff stated that depression, anxiety, and insomnia were her “main problems,”
21 and that she was irritable without her prescribed medication. (Id.) The note also states
22 that “[t]oday, [Plaintiff] reports feeling OK.” (Id.) Plaintiff reported that “[p]art of [her]
23 pressure is financial and she is constantly worrying about that.” (Id.) Plaintiff’s
24 psychiatric examination revelated that she was alert, oriented, calm, cooperative, had
25 normal station and gait, and good eye contact. (Id. at 714.) Her behavior was
26 appropriate, she was not agitated, her mood was depressed, affect was “dysphoric but
27 appropriate and reactive,” she denied suicidal thoughts, and had “linear thinking, no
28
1 confusion, intact memory, and fair judgement.” (Id.) Plaintiff’s diagnosis was “Major
2 Depressive Disorder, recurrent moderate.” (Id.)
3 Plaintiff’s November 20, 2019 Behavior Health Assessment notes state that
4 Plaintiff had “anxious mood with congruent affect,” and reported that she had anxiety and
5 depression that occurred daily. (Id. at 1131.) Plaintiff described her depression as
6 “maybe a 5” on a scale of 1–10, and “reported that in the last year she experienced a
7 decrease in depressive [symptoms].” (Id.)
8 February 5, 2020 progress note from Dr. Cann lists diagnoses for “Major
9 depressive disorder, recurrent, unspecified,” “Generalized anxiety disorder,” and
10 “Factitial dermatitis.” (Id. at 1128.) Plaintiff had insomnia and anxiety. (Id.) She could
11 not identify a trigger, but stated that “not being financially stable was a problem,” and she
12 “was hoping to get SSI in January.” (Id.) Plaintiff was alert, oriented, calm, cooperative,
13 had normal station and gait, and good eye contact. (Id. at 1129.) Her behavior was
14 appropriate, speech was normal, mood was depressed, affect was “dysphoric but
15 appropriate and reactive,” she denied suicidal thoughts, and had “linear thinking, no
16 confusion, intact memory, and fair judgement.” (Id.) Plaintiff’s diagnosis was “Major
17 Depressive Disorder, recurrent moderate.” (Id.)
18 October 30, 2020 progress note from Psychiatrist Dr. Keri lists the following
19 diagnoses: “Major depressive disorder, recurrent, unspecified,” “Generalized anxiety
20 disorder,” and “Factitial dermatitis.” (Id. at 1125.) Plaintiff reported “7/10 severe
21 anxiety with daily panic,” insomnia with daytime sleepiness, “depressed mood without
22 suicidality,” and “fair concentration.” (Id.) Dr. Keri noted that “[Plaintiff] was hoping to
23 get SSI in January,” which was “a source of major stress.” (Id.) Plaintiff reported that
24 she remained in bed all day, but before her “flare up had been tending house though
25 constantly fel[l] behind on tasks.” (Id.) She further stated that she “[s]pends her time
26 watching tv with some enjoyment.” (Id.) Plaintiff also reported that she “take[s] care of
27 too many things for other people.” (Id. at 1125–26.) Her speech was normal, and mood
28 was “anxious” and “depressed,” she denied suicidal thoughts, and had “linear thinking,
1 no confusion, intact memory, and fair judgement.” (Id.) Plaintiff’s diagnosis was “Major
2 Depressive Disorder, recurrent moderate.” (Id.)
3 3. Analysis
4 The parties do not dispute the ALJ’s finding that Plaintiff has the following severe
5 impairments: history of psoriatic arthritis, methicillin-sensitive staphylococcus aureus
6 infection secondary to laminectomy, laminectomy at L4–L5 and spinal fusion revision
7 surgery, fibromyalgia, depression, and anxiety. (See AR at 18; see also J. Mot.) Further,
8 the parties do not contest the ALJ’s determination that Plaintiff’s “medically
9 determinable impairments could reasonably be expected to cause the alleged symptoms.”
10 (AR at 22.) Accordingly, the first prong of the ALJ’s inquiry regarding Plaintiff’s
11 subjective symptoms is satisfied.
12 Further, neither party alleges that the ALJ found that Plaintiff was malingering.
13 (See J. Mot.) The Court therefore is required to determine whether the ALJ identified
14 which of Plaintiff’s subjective allegations of impartment he discounted, and whether the
15 ALJ provided specific, clear, and convincing reasons for doing so. See Brown-Hunter,
16 806 F.3d at 489; Lambert, 980 F.3d at 1277.
17 The ALJ stated the following in his written opinion:
18 The claimant underwent spinal fusion surgery in 2019; however, she still has
back pain. She cannot stand or sit for long periods of time. She can
19
only drive short distances. She rarely cooks. The claimant testified she has
20 anxiety and panic attacks.
21
22 (AR at 22.)
23 The ALJ further stated that the “consistency of [Plaintiff’s] allegations regarding
24 the severity of her symptoms and limitations is diminished because those allegations are
25 greater than expected in light of the objective evidence of record.” (Id. at 24.) The ALJ
26 provided the following reasons for his conclusion:
27 [S]ince the lumbar revision surgery, the claimant’s back pain has shown
improvement. On July 17, 2019, the claimant reported her back is feeling
28
1 better (Exh. 10F, at pg. 33). On December 3, 2020, the claimant still
complained of low back pain with bending, lifting, sitting, and standing;
2
however, she no longer used assistive devices to ambulate (Exh. 21F, at pg.
3 7). A lumbar x-ray on October 8, 2020, showed stable post-operative
changes in the lumbar spine (Exh. 22F, at pg. 126). A thoracic spine x-ray
4
on October 8, 2020, showed minimal scoliosis and spondylosis (Exh. 22F, at
5 pg. 124). The claimant also carries a diagnosis of fibromyalgia; however, as
of April 22, 2019, it is controlled with medication (Exh. 12F, at pg. 15).
6
There is also minimal treatment records for the claimant’s fibromyalgia.
7 This contravenes the alleged severity of the claimant’s impairments.
. . . .
8
9 [T]he claimant’s mental symptoms are chronic, but controllable. Despite
constant feelings of anxiety and depression, she has consistently normal
10
mental status results (Exh. 9F, at pgs. 6, 9, 12, 15; 15F, at pgs. 2, 5). On
11 November 21, 2018, the claimant felt “OK” (Exh. 9F, at pg. 11). Moreover,
as of October 30, 2020, the claimant watched television with enjoyment
12
(Exh. 15F, at pg. 1). This is inconsistent with the inability to concentrate at
13 least on a simple level. Moreover, the claimant testified she rarely cooks,
drives, or does anything for herself. Yet on October 30, 2020, the claimant
14
reported to “taking care of too many things for too many people” (Exh. 15F,
15 at pg. 2). Having responsibility for many people is inconsistent with the
reduced functionality the claimant alleges. Furthermore, on April 3, 2019,
16
the claimant denied ever having depressive or anxiety symptoms (Exh. 17F,
17 at pg. 186). In terms of her physical impairments, the claimant alleges she
must use an assistive device to ambulate. However, there is no prescription
18
for the same in the medical record. Moreover, the record indicates as of at
19 least December 3, 2020, the claimant no longer used assistive devices to
ambulate (Exh. 21F, at pg. 7). These inconsistencies undermine the
20
claimant’s allegations.
21
22 (Id. at 23–25.)
23 The Court can only assess the reasoning the ALJ provided in his decision. See
24 Revels, 874. F.3d at 654 (stating that a court may consider “only the reasons provided by
25 the ALJ in the disability determination and may not affirm the ALJ on a ground upon
26 which [he or she] did not rely”); Garrison, 759 F.3d at 1010 (same). The Court will
27 therefore examine the validity of the ALJ’s stated reasons for discounting Plaintiff’s
28 testimony.
1 a. Improvement of Plaintiff’s symptoms with treatment, medication, and
2 surgery
3 The ALJ discounted Plaintiff’s testimony regarding pain and physical limitations
4 because he found that after Plaintiff’s lumbar revision surgery, Plaintiff’s “back pain has
5 shown improvement.” (AR at 23.) The ALJ also concluded that Plaintiff’s fibromyalgia
6 was controlled with medication. (Id.)
7 In assessing a claimant’s subjective symptoms, an ALJ may properly consider the
8 “type, dosage, effectiveness, and side effects of any medication taken to alleviate pain,”
9 as well as “treatment, other than medication” the claimant receives or has received to
10 relieve “pain or other symptoms.” See 20 C.F.R. §§ 404.1529(c)(3)(iv)–(v),
11 416.929(c)(3)(iv)–(v); see also Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017)
12 (stating that “evidence of medical treatment successfully relieving symptoms can
13 undermine a claim of disability”); Warre v. Comm’r Soc. Sec. Admin., 439 F.3d 1001,
14 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are
15 not disabling for the purpose of determining eligibility for SSI benefits.”). Plaintiff
16 testified during her administrative hearing that she stopped working because of “medical
17 issues,” including back pain and arthritis. (Id. at 47, 52.) As noted above, on April 3,
18 2019, Plaintiff had spinal surgery. (Id. at 591.) The records the ALJ cited in his decision
19 show that three months after the surgery, Plaintiff reported that her back was feeling
20 better. (Id. at 757). Further, Plaintiff’s October 8, 2020 lumbar spine x-ray showed
21 “stable appearing postoperative changes from L4 through S1,” and her thoracic spine x-
22 ray on the same day showed “minimal scoliosis and spondylosis.” (Id. at 1881, 1883).
23 Numerous medical records containing reports from Plaintiff’s physicians documenting
24 improvements in her symptoms after the April 3, 2019 spinal surgery support the ALJ’s
25 conclusion. (See, e.g., id. at 749 (containing Dr. Khalid’s May 20, 2019 report that
26 Plaintiff was “clinically doing better” and “making ‘progress’”), id. at 754–55
27 (documenting Dr. Khalid’s June 17, 2019 finding that Plaintiff was “progressing well”
28 and her back was “feeling better”), id. at 760–61 (containing Dr. Kim’s September 1,
1 2019 report that Plaintiff “has turned the corner and is doing excellent. She has 0/10
2 pain”; also noting that Plaintiff “is very pleased with the results so far”).) Additionally,
3 as the ALJ pointed out in his written decision, Plaintiff’s medical records contain reports
4 that her psoriatic arthritis symptoms significantly improved when she was taking her
5 medication. (See id. at 1431–32, 1452 (documenting Plaintiff’s August 5, 2019 report
6 that she experienced 80% improvement when she takes her medication), id. at 1428
7 (containing October 14, 2019 progress note that Plaintiff “was previously partially
8 improved on methotrexate and then further improved once she was started on a TNFalpha
9 blocker”).)
10 Accordingly, the ALJ identified specific statements regarding Plaintiff’s symptoms
11 he was discounting, and explained why he found them not fully credible. See Guthrie v.
12 Kijakazi, No. 21-36023, 2022 WL 15761380, at *1 (9th Cir. 2022) (finding that the ALJ
13 reasonably relied on evidence of plaintiff’s improvement with treatment to find that the
14 plaintiff’s symptom allegations were not entirely credible; reasoning that the ALJ
15 provided specific, clear and convincing reasons for discounting the plaintiff’s symptom
16 testimony); Bowen v. Kijakazi, No. 21-35600, 2022 WL 2610242, at *1 (9th Cir. 2022)
17 (concluding that the ALJ properly discounted plaintiff’s testimony about her limitations
18 and symptoms, where the plaintiff told her medical care providers that she was “[d]oing
19 extremely well” and had “no complaints” after her surgery). The Court therefore finds
20 that the ALJ provided a specific, clear, and convincing reason to discount Plaintiff’s
21 symptom testimony.
22 b. Depression and anxiety symptoms
23 The ALJ discounted Plaintiff’ testimony regarding her mental symptoms, stating
24 that they were “chronic, but controllable.” (AR at 24.) The ALJ noted that “[d]espite
25 constant feelings of anxiety and depression, [Plaintiff] has consistently normal mental
26
27
28
1 status results,” on November 21, 2018, Plaintiff reported feeling “OK,” and on April 3,
2 2019,5 denied having depressive or anxiety symptoms. (Id. at 24–25.)
3 Plaintiff testified during the administrative hearing that she suffers from anxiety
4 and depression, which affect her ability to work, her “anxiety is absolutely awful,” and
5 she experiences “quite a few panic attacks and . . . anxiety-related issues.” (Id. at 50.)
6 The Court carefully examined the reasons the ALJ discussed in discounting Plaintiff’s
7 testimony and the medical records the ALJ cited in support of his conclusion. As the
8 ALJ stated in his written decision, Plaintiff’s mental status examination results were
9 within the norm. (See id. at 24; see also id. at 714, 717, 719–20, 722–23, 1126, 1128–29,
10 1399.) Further, on November 21, 2018, Plaintiff reported that her mood was “okay,” but
11 she was “more angry due to holidays,” (id. at 719), and on March 22, 2019, Plaintiff
12 denied having depressive or anxiety symptoms, (id. at 1398). Additionally, when asked
13 on March 22, 2019, “[h]ow often [she was] feeling down, depressed or hopeless,” and
14 “[h]ow often [she was] feeling nervous, anxious or on edge,” Plaintiff responded with
15 “[n]ot at all.” (Id.) Plaintiff’s other medical records also document statements to medical
16 care providers regarding Plaintiff’s mental health impairments that are inconsistent with
17 her testimony during the administrative hearing. (See e.g., id. at 477 (containing Dr.
18 Glassman’s July 13, 2018 report that Plaintiff’s “feelings of depression come and go,”
19 and her “mood can be fine at times”), id. at 1131 (documenting Plaintiff’s report on
20 November 20, 2019, that her depression was “maybe a 5” on a scale of 1–10, and she
21 “reported that in the last year she experienced a decrease in depressive [symptoms]”).)
22 As such, Plaintiff’s reports to her medical care providers regarding her depression and
23 anxiety conflict with Plaintiff’s testimony during the administrative hearing that she
24
25
5 The Court notes that the Patient Visit Note is dated March 22, 2019. (AR at 1397, 1400.) The ALJ
26 cited April 3, 2019, the date of Plaintiff’s planned surgery for which she was undergoing screening.
(See id.; see also id. at 24.) The planned surgery date is listed right above Plaintiff’s Behavioral Health
27 Screening responses at issue. (See id. at 1398.) As such, a minor discrepancy in the date the ALJ cited
appears to be a typo.
28
1 suffers from debilitating anxiety and depression. “When the evidence before the ALJ is
2 subject to more than one rational interpretation, [the Court] must defer to the ALJ’s
3 conclusion.” Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004)
4 (quoting Andrews, 53 F.3d at 1041); Ahearn, 988 F.3d at 1115–16 (same).
5 Accordingly, the ALJ identified Plaintiff’s specific statements regarding her
6 mental symptoms he found not credible, and explained what evidence undermined
7 Plaintiff’s testimony. Such identification constitutes a specific, clear, and convincing
8 reason to discount Plaintiff’s symptom testimony.
9 c. Daily Activities
10 The ALJ stated in his written decision that Plaintiff’s testimony that she rarely
11 cooks, drives, or does anything for herself is inconsistent with her October 30, 2020
12 report that she is “taking care of too many things for too many people,” because
13 “[h]aving responsibility for many people is inconsistent with the reduced functionality
14 [Plaintiff] alleges.” (AR at 24.) Additionally, the ALJ reasoned that Plaintiff’s report of
15 watching television with enjoyment is inconsistent with her alleged inability to
16 concentrate at least on a simple level. (Id.)
17 An ALJ may properly consider the claimant’s daily activities in evaluating
18 testimony regarding subjective pain. See 20 C.F.R. §§ 404.1529(c)(3)(i),
19 416.929(c)(3)(i). There are “two grounds for using daily activities to form the basis of an
20 adverse credibility determination”: an ALJ may find that daily activities either
21 (1) contradict the claimant’s other testimony, or (2) meet the threshold for transferable
22 work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Steele v.
23 Berryhill, Case No.: 3:17-cv-01923-LAB (RNB), 2018 WL 2718033, at *3 (S.D. Cal.
24 June 6, 2018) (same). In this case, the ALJ is relying on the first ground.
25 Plaintiff testified during her administrative hearing that she does “minimal” chores,
26 rarely cooks, leaves home once or twice per week, and rarely drives. (AR at 49–50.) The
27 ALJ cited October 30, 2020 note from Plaintiff’s Psychiatrist Dr. Keri, documenting
28 Plaintiff’s report that she lived with her boyfriend and father, and was taking care of “too
1 many things for other people.” (Id.) Plaintiff’s testimony during the administrative
2 hearing regarding her daily activities is inconsistent with her report to Dr. Keri. The
3 testimony is also inconsistent with Plaintiff’s other reports to her medical care providers.
4 (See e.g., id. at 115 (containing June 27, 2018 report that Plaintiff “reiterated many times
5 feeling that she takes on other people[’]s problems,” and “does lots of work for others”),
6 id. at 719 (containing November 21, 2018 progress note that Plaintiff “will be doing all
7 the cooking for Thanksgiving”), id. at 716 (containing May 17, 2019 progress note that
8 Plaintiff’s father has medical problems and “she is his caretaker”), id. at 394–95, 401
9 (containing Plaintiff’s function report dated May 10, 2019, in which she stated that she
10 prepares breakfast every day and dinner “some nights,” takes care of pets, cooks and
11 grocery shops for her father, cleans, does laundry and yard work, and “sometimes” mops
12 the floors).) Additionally, Dr. Keri’s October 30, 2020 progress note states that Plaintiff
13 reported that she “[s]pends her time watching tv with some enjoyment.” (Id. at 1125.)
14 The note also contains Dr. Keri’s finding that Plaintiff had “fair concentration.” (Id.)
15 “When the evidence before the ALJ is subject to more than one rational interpretation,
16 [the Court] must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198 (quoting
17 Andrews, 53 F.3d at 1041); Ahearn, 988 F.3d at 1115–16 (same); see also Elizondo v.
18 Astrue, No. 1:09–cv–0989 SKO, 2010 WL 3432261, at *5 (E.D. Cal. Aug. 31, 2010)
19 (“The mere fact of a claimant’s carrying on certain daily activities does not necessarily
20 detract from credibility as to overall disability”; however, a “negative inference is
21 permissible where the activities contradict the other testimony of the claimant[.]”).
22 Plaintiff’s testimony regarding her daily activities contained several internal
23 inconsistencies, and the ALJ rationally concluded that Plaintiff’s testimony regarding her
24 daily activities contradicted Plaintiff’s testimony regarding her level of functioning. See
25 Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002) (stating that an ALJ may
26 properly rely on inconsistencies between claimant’s testimony and claimant’s daily
27 activities); see also Scolari v. Kijakazi, Case No.: 21-cv-1250-BLM, 2022 WL 6785752,
28 at *4–5 (S.D. Cal. Oct. 11, 2022) (finding that substantial evidence supported the ALJ’s
1 determination that plaintiff’s daily activities were not consistent with her subjective
2 testimony and claims, which was a clear and convincing reason to discount the plaintiff’s
3 subjective testimony and claims). The Court therefore finds that the ALJ provided a
4 legally sufficient reason to discount Plaintiff’s testimony.
5 d. Use of assistive device to ambulate
6 The ALJ stated in his written decision that although Plaintiff “alleges she must use
7 an assistive device to ambulate,” there is no prescription for the assistive device in the
8 medical record, and the record indicates that on December 3, 2020, Plaintiff no longer
9 used assistive devices to ambulate. (AR at 25.) Plaintiff testified during the
10 administrative hearing as follows: “I have a walker that I do use on occasion, more often
11 than not anymore, but that was actually something that I had gotten myself because I
12 knew I needed it.” (Id. at 58.) Having reviewed the transcript of Plaintiff’s testimony,
13 the Court notes that the ALJ mischaracterized Plaintiff’s testimony by stating that she
14 testified that she “must” use an assistive device to ambulate. (See id. at 25.) Rather,
15 Plaintiff testified that she occasionally uses a walker. (Id. at 58.) She also stated that the
16 walker was not prescribed by any physician and acknowledged that she obtained the
17 walker herself. (Id.) Accordingly, this reason cited by the ALJ is not clear and
18 convincing, and the Court disregards it. Nevertheless, as discussed above, the ALJ
19 provided several other clear and convincing reasons for discounting Plaintiff’s testimony
20 regarding her pain and functional limitations. See Scolari, 2022 WL 6785752, at *4–5,
21 *8 (finding that the ALJ provided clear and convincing reasons for rejecting plaintiff’s
22 subjective symptom testimony, where the plaintiff’s testimony regarding her symptoms
23 was inconsistent with her activities of daily living, the nature of treatment, and her
24 progress and improvement); Heather C. v. Saul, Case No.: 3:19-cv-01669-AJB-RNB,
25 2020 WL 1169691, at *6–8 (S.D. Cal. Mar. 10, 2020) (finding that the ALJ provided
26 clear and convincing reasons for rejecting plaintiff’s subjective symptom testimony
27 regarding her physical and mental impairments, where the plaintiff continuously engaged
28
1 a large number of activities of daily living, and her condition improved with treatment
2 medication).
3 The Court therefore finds that the ALJ provided clear and convincing reasons,
4 supported by the substantial evidence of record, for not fully crediting Plaintiffs
5 || subjective symptom testimony. Accordingly, the Court finds that reversal is not
6 || warranted based on the ALJ’s alleged failure to make a proper adverse credibility
7 || determination.
8 VI. CONCLUSION AND ORDER
9 For the reasons state above, the Court finds that the ALJ properly identified which
10 || of Plaintiff’s statements he discounted, and that the ALJ provided specific, clear, and
11 |}convincing reasons for doing so. The Court therefore ORDERS that judgment be
12 || entered affirming the decision of the Commissioner pursuant to sentence four of 42
13 || U.S.C. § 405(g) and dismissing this case.
14 IT IS SO ORDERED.
15 ||Dated: March 20, 2023
16 LY
17 Honorable Lupe Rodriguez, Jr.
13 United States Magistrate Judge
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