Opinion

LaFazio v. Commissioner Social Security Administration

Court
District Court, D. Oregon
Filed
Jun 22, 2023
Cited by
0 cases
Authority
More cited than 28.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KRISTINA L.!

Plaintiff, Civ. No. 1:21-cv-01870-CL

Vv. OPINION AND ORDER

_ COMMISSIONER OF SOCIAL SECURITY

ADMINISTRATION,

Defendant.

MARK D. CLARKE, Magistrate Judge.

Plaintiff Kristina L. (‘Plaintiff’) seeks judicial review of the final decision of the

Commissioner of the Social Security Administration denying her claim for supplemental security

income benefits. Full consent to magistrate jurisdiction was entered on February 23, 2022 (Dkt.

#7), For the reasons provided below, the Commissioner’s decision is AFFIRMED.

BACKGROUND

Plaintiff is a 44-year-old woman who alleges she is unable to work due to mental and.

physical impairments. Plaintiff filed an application for Supplemental Security Income benefits

with a protective filing date of January 21, 2019. Tr. 256; see Tr. 15. In her application, Plaintiff

claimed disability with an alleged onset date of November 25, 2017. /d. Plaintiff then amended

the date she claims she became disabled to March 28, 2018. Tr. 44; see Tr. 256. The new alleged

onset date was amended one day after the prior Administrative Law Decision was published on

‘In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name

of the non-governmental party or parties in this case.

] - Opinion and Order

March 27, 2018. Tr. 114. The claim was denied initially on April 1, 2019 and upon

reconsideration on August 23, 2019. Tr. 170, 178. A telephonic hearing was held on November

19, 2020, before Administrative Law Judge Robert Frank Spaulding due to the Coronavirus

Pandemic. Tr. 35-77. On January 12, 2021, the ALJ issued an unfavorable decision, finding

Plaintiff was not disabled from the alleged onset date, as amended, through the date of decision.

Tr. 15-27. On November 10, 2021, the Appeals Council denied review, making the ALJ’s

decision the final agency decision. Tr. 1. This action followed.

DISABILITY ANALYSIS

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks

the following series of questions:

1. Is the claimant performing “substantial gainful activity”? 20 C.F.R.

§§ 404.1520(a)(4)(i); 416.920(a)(4)(1). This activity is work involving

significant mental or physical duties done or intended to be done for pay or

profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such

work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)qi); 416.920(a)(4)(ii). Unless

expected to result in death, an impairment is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a); 416.921 (a). This impairment must have lasted or

must be expected to last for a continuous period of at least 12 months. 20

2 - Opinion and Order

C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis

proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then

the claimant is disabled. 20 CFR. §§ 404.1520(a)(4)(iii);

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis proceeds to the “residual functional

capacity” (“RFC”) assessment.

a. The ALJ must evaluate medical and other relevant evidence to assess

and determine the claimant’s RFC. This is an assessment of work-

related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the

analysis proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his

or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is not

disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);

416.960(c). If the claimant cannot perform such work, he or she is disabled.

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Jd. at 954, The

Commissioner bears the burden of proof at step five. /d. at 953-54. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.

3 - Opinion and Order

1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work

which exists in the national economy”). If the Commissioner fails to meet this burden, the

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the

Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55,

Tackett, 180 F.3d at 1099,

THE ALJ’S FINDINGS

Applying the above analysis, the ALJ made the following findings:

1. Plaintiff last met the insured status requirements of the Social Security Act on

December 31, 2020. Tr 17.

2, Plaintiff did not engage in substantial gainful activity during the period from her

alleged onset date of November 25, 2017, through her date last insured of December

31, 2020. Tr. 17.

3. Plaintiff has the following severe impairments: mild multilevel thoracic spondylosis;

migraine headaches; fibromyalgia; a history of seizures; mild major depressive

disorder with mild anxious distress; and an unspecified trauma and stressor related

disorder. Tr. 18.

4. Plaintiff does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, □

Subpart P, Appendix |. Tr. 18.

5. Plaintiff has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) except she can frequently climb ramps and stairs, but never climb

ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch, and

crawl. She can tolerate no exposure to loud noise. She can tolerate no exposure

workplace hazards. She is limited to simple routine tasks consistent with a General

Education Development (GED) level of 2 and unskilled work as defined by the

Dictionary of Occupational Titles (DOT1) (which requires vocational preparation of

anything beyond short demonstration up to and including I month). She is limited to

occasional interaction with the public. Tr. 21.

6. Plaintiffis unable to perform any past relevant work. Tr. 25.

7. Plaintiff was born on November 4, 1978, and was 42 years old, which is defined as a

younger individual age 18-49, on the date last insured. Tr. 25.

4 - Opinion and Order

8. Plaintiff has at least a high school education and is able to communicate in English.

Tr. 25.

9. Transferability of job skills is not material to the determination of disability because

using the Medical-Vocational Rules as a framework supports a finding that the

claimant is "not disabled," whether or not the claimant has transferable job skills. Tr.

25,

10. Considering Plaintiffs age, education, work experience, and RFC, there are jobs that

exist in significant numbers in the national economy that Plaintiff can perform,

including Routing Clerk, Electrical Accessory Assembler, and Small Products

Assembler. Tr. 26.

11. Plaintiff was not under a disability, as defined in the Social Security Act, at any time

from November 25, 2017, the alleged onset date, through December 31, 2020, the

date last insured. Tr. 27.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the legal findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Batson v. Comm’r Sac. Sec. Admin,, 359 F.3d 1190, 1193 (9th Cir. 2004); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989), ‘Substantial evidence’ means

‘more than a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Bray v.

Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53

F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this Court

must weigh “both the evidence that supports and detracts from the [Commissioner’s]

conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations

of the evidence are insignificant if the Commissioner’s interpretation is rational. Burch v.

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

5 - Opinion and Order

If the decision of the Appeals Council is the final decision of the Commissioner, this

Court must review the decision of the Appeals Council to determine whether that decision is

supported by substantial evidence. Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986). Where

the evidence before the ALJ or Appeals Council is subject to more than one rational

interpretation, the Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing

Andrews, 53 F.3d at 1041). “However, a reviewing court must consider the entire record as a

whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.””

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at

501). Additionally, a reviewing court “cannot affirm the [Commissioner’s] decision on a ground

that the [Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec.

Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse

the Commissioner’s decision on account of an error that is harmless. Jd. at 1055-56. “[T]he

burden of showing that an error is harmful normally falls upon the party attacking the agency’s

determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

Even where findings are supported by substantial evidence, “the decision should be set

aside if the proper legal standards were not applied in weighing the evidence and making the

decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42

U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript

record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or

without remanding the case for a rehearing.

DISCUSSION

Plaintiff presents the following issues for review:

1. Whether the ALJ properly considered Plaintiffs own testimony,

2. Whether the ALJ properly evaluated the medical opinion of Dr. Walter Carlini, and

6 - Opinion and Order

. 3. Whether the ALJ properly considered the lay witness opinions from Plaintiff's father and

sister.

For the following reasons, the Court finds that the ALJ did not err. The decision of the

Commissioner is affirmed.

I. The ALJ properly considered Plaintiff's subjective testimony.

Plaintiff challenges the ALJ’s treatment of Plaintiff's subjective testimony. ECF No. 16

at 9. Plaintiff argues that the reasons the ALJ relied upon to reject Plaintiff's allegations were

not clear and convincing because they were not supported by substantial evidence. ECF No. 16

at 9-15. To assess a claimant’s credibility, the Ninth Circuit is clear that an ALJ must perform a

two-stage analysis. In the first stage, the claimant must produce objective medical evidence of

one or more impairments which could reasonably be expected to produce some degree of

symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant is not

required to show that the impairment could reasonably be expected to cause the severity of the

symptom, but only to show that it could reasonably have caused some degree of the symptom.

Id.

In the second stage of the analysis, the ALJ must consider the intensity, persistence, and

limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7-8. The ALJ

will consider the “[l]ocation, duration, frequency, and intensity of pain or other symptoms”

reported by the claimant, any medical sources, and any non-medical sources.” Jd. The ALJ’s

decision must contain “‘specific reasons for the weight given to the individual’s symptoms, be

consistent with and support by the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Jd.

Additionally, the evidence upon which the ALJ relies must be substantial. See Holohan v,

Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001). In rejecting claimant’s testimony about the

7 - Opinion and Order

severity of her symptoms, the ALJ must give “specific, clear and convincing reasons for doing

so.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).

Plaintiff argues the ALJ is bound to the clear and convincing standard used for rejecting a

claimant’s subjective testimony, however, “the ALJ is not required to believe every allegation of

disabling pain, or else disability benefits would be available for the asking[.]” Molina v. Astrue,

674 F.3d 1104, 1112 (9th Cir, 2012), superseded on other grounds by 20 C.F.R. § 404,1502(a).

If the ALJ finds that claimant's testimony as to the severity of her pain and impairments is

unreliable, the ALJ must make a credibility determination with findings sufficiently specific to

permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony. See

Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc). If the ALJ's credibility

finding is supported by substantial evidence in the record, [the reviewing court] may not engage

in second-guessing. See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999),

Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989).

The ALJ reasonably concluded that the evidence in the record was inconsistent with

Plaintiff's allegations regarding her limitations. Plaintiff alleges that she cannot work due to aura

migraines several days throughout the month, equilibrium issues, dizziness, vertigo, tingling in

face, hands and feet, widespread chronic muscle pain and spasms, total lack of concentration,

depression, anxiety, tremors, and leg numbness and weakness, among other ailments. Tr. 276.

The ALJ found that Plaintiff's “medically determinable impairments could reasonably be

expected to cause some of the claimant's alleged symptoms.” Tr. 22. However, the ALJ found

that “the claimant's statements concerning the intensity, persistence, and limiting effects of these

symptoms are not consistent with the medical evidence and other evidence in the record .. .” Jd.

The ALJ pointed to specific evidence in the record, including the following reports from:

8 - Opinion and Order

- Dr. Carlini, MD, Ph.D, a treating neurologist

- Dr. Narus, DO, a treating neurologist,

Oregon Advanced Imaging, which conducted a 2018 MRI of Plaintiff's lumbar spine,

~ James Berking PA-C, a Physician’s Assistant,

- Dr. Levin, DO, a treating physician,

- Touchstone Interventional Pain Center, a pain-management-focused group practice,

- Samantha Turpin, LPC, a licensed professional counselor,

- Erin Schorran, FNP, a family nurse practitioner,

- Dr. Grable, MD, an anesthesiologist,

- Dr. Chidi, MD, a treating physician, and

- LaClinica Del Valle, a behavioral health service clinic.

A. Immobility due to Thoratic Spondylosis, Fibromyalgia and Migraines

Specifically, the ALJ found evidence in the record that contradicted Plaintiff's claims of

almost complete immobility due to chronic migraines, fibromyalgia, and sciatica. Tr. 276.

Reports from her neurologists Dr. Carlini, and Dr. Narus, and reports from the Touchstone

Interventional Pain Center show no muscular atrophy, grossly intact coordination, and a

consistently normal gait. Tr. 371-382, 458, 460. The ALJ also cited evidence contradicting

Plaintiff's claim in her opening brief that she has a complete antalgic gait requiring her to use a

cane. Dkt. 16 at 11-12. The Disability Determination Explanation by Dr. Bernardo stated “[the]

claimant has normal strength and gait with the exception of a visit specifically for LBP (lower

back pain), where she uses a cane.” Tr. 160. This observation supports the ALJ’s cites to the

overwhelming reports of Plaintiff having normal gait and 5/5 motor power strength. Tr. 144, 145,

149, 160, 165, 382, 639, 640, 650, 652, 809, 829, 830, 838, 884, 888, 893, 898, 957, 960, 972,

9 - Opinion and Order

982, 987, 993. Moreover, this inconsistency between behaviors from one visit to another is

something the ALJ can take into consideration for their ruling. “[T]he ALJ may consider

inconsistencies either in the claimant's testimony or between the testimony and the claimant's

conduct...” Molina, 674 F.3d at 1112, Kendel S. v. Comm Soc. Sec. Admin., No. C20-5800-

MAT, 2021 U.S. Dist. LEXIS 150250, at *21-22 (W.D. Wash. Aug. 10, 2021). Accordingly, the

ALJ reasoned that “[d]espite the claimant’s back impairment and fibromyalgia, her range of

motion was intact and she had a normal gait with instance muscle strength, sensation and

reflexes.” Tr. 23.

Plaintiff argues the ALJ improperly found Plaintiff's testimony regarding her migraines to

be inconsistent with Plaintiff's neurological examinations, including Plaintiff's 2012 MRI. Dkt.

16 at 11. The ALJ acknowledged Plaintiffs 2012 brain MRI was positive for migrainous lesions

but was otherwise normal. Tr. 22. Plaintiff argues that the ALJ did not identify what evidence

undermined her allegations of having debilitating migraine headaches. Dkt. 16 at 11. However,

the ALJ pointed to the inconsistencies between her headache log and what she reported to her

providers. “[T]he record found in this log shows almost daily headaches which is not consistent

with the claimant’s reports to her medical providers of headaches averaging around 15 per

month.” Tr, 24. In fact, the record varies with the number of headaches Plaintiff claims to have

depending on the provider who is treating her. Tr. 371, 374, 584, 641, 973, 992. Plaintiff's

October 2020 Touchstone report is the first time since 2016 where Plaintiff informs the PA of

her migraines: “She also has debilitating migraine headaches that she gets about 21 to 22 days of

the month that she has not mentioned before.” Tr. 957. Elsewhere in the decision, the ALJ cited

treatment notes from various providers observing Plaintiff to be alert and oriented, with intact

memory, average intellectual functioning, average fund of knowledge, and a generally linear and

10 - Opinion and Order

organized thought process, and intact thought content. See, e.g., Tr. 382, 388, 458, 460, 462, 464,

507-08, 566, 584, 628, 631, 634, 638-40, 644, 769, 802, 806, 809, 829, 838, 957, 960, 977-78.

Therefore, the ALJ reasonably concluded that the objective medical record is inconsistent with

Plaintiff's clams of disabling symptoms due to migraines, fibromyalgia, and sciatica.

B. Plaintiff's Allegations of Seizures

Plaintiff argues the medical record supports her allegations of disabling limitations for

both tonic-clonic and dyscognitive seizures. There is no such evidence in the objective medical

record, In fact, the record shows that Plaintiff's most recent seizure in 2020 was a breakthrough

seizure, the first in over 11 years, caused by newly introduced Botox injections. Tr. 988, 842.

Due to this, Dr. Carlini administered Emgality at that visit on February 4", 2020, a medication

with which Plaintiff has had much success. Tr. 632, 972, 973, 976, 982, 988. Therefore, the ALJ

reasonably found Plaintiff's subjective testimony regarding the frequency and severity of her

seizure symptoms to be inconsistent with the medical evidence, and the ALJ's reasoning was

specific, clear, and convincing.

The ALJ noted the contradiction between the record and Plaintiff's claim that she had

“[nJo results with any medicine therapy.” Tr. 276. The ALJ pointed out that in a Touchstone

Interventional Pain Center report, Plaintiff had as much as 50% improvement in her functional

abilities and 40% pain relief from her current medication regimen. Tr. 23, 960. In fact, in all of

Plaintiff's subjective pain pre-assessment reports she marks at least a 30% pain reduction and

improvement in function each visit, with a range between 30%-50%. Tr. 482, 485,488, 491, 590,

593, 596, 601, 604, 608, 610, 612. The ALJ also cites Dr. Bernardo’s consultative examination

done in 2019 where he states, “She reported 1 migraine in the last week, which is an

improvement.” Tr. 160. Accordingly, the ALJ found that these inconsistencies diminished the

11 - Opinion and Order

reliability of Plaintiff's allegations and demonstrated a level of functioning in excess of Plaintiff's

claimed limitations. Tr. 23. An ALJ may reject subjective testimony upon finding it contradicted

by or inconsistent with the medical record. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d

1155, 1161 (9th Cir, 2008). Here, the ALJ offered “specific, clear and convincing” reasons for

finding Plaintiff's testimony was inconsistent with the medical evidence in the record and,

therefore, did not err by rejecting Plaintiff's testimony about the severity of her limitations.

II. The ALJ properly evaluated and credited the medical opinions of Dr. Carlini.

Under prior Social Security regulations, a hierarchy of medical opinions dictated the

weight that must be given by an ALJ: treating doctors were generally given the most weight and

non-examining doctors were generally given the least weight. See 20 C.F.R. §§ 404.1527,

416.927 (1991); 56 Fed. Reg. 36,932 (Aug. 1, 1991). For applications filed on or after March 27,

2017, the new regulations eliminate the old hierarchy of medical opinions, 20 C.F.R. §§

404.1520c(a), 416.920c(a) (2017). Plaintiff filed an application for disability insurance benefits

on January 21,2019. Thus, the Commissioner’s new regulations apply to the ALJ’s assessment

of this opinion. See 20 C.F.R. § 404.1520c; 82 Fed. Reg. 5844 (Jan. 18, 2017); see also 82 Fed.

Reg. 15,132 (Mar. 27, 2017) (correcting technical errors). ,

The new rules no longer provide for any inherent weight: “We [the SSA] will not defer or

give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s) including those from your medical sources.” 20 C.F.R. §§

404.1520c(a), 416.920c(a). The SSA “considers” various medical opinions for claims filed on or

after March 27, 2017, and determines which medical opinions are most persuasive. 20 C.F.R. §§

1520c(a), 416.920c(a). In evaluating which opinions are most persuasive, the ALJ considers

several factors. The two most important factors are supportability & consistency. Jd. Secondary

12 - Opinion and Order

factors include the relationship with the claimant, specialization, and other factors. Jd. at

404.1520c(c), 416.920c(c).

Plaintiff contends that the ALJ did not properly consider the factors of supportability and

consistency in evaluating the opinions of Dr. Carlini. Plaintiff is incorrect, and the ALJ did not

commit a harmful error. Regarding the aforementioned factors of supportability and consistency,

the definitions are as follows:

Supportability: the “more relevant the objective medical evidence

and supporting explanations presented by a medical source,” the

more persuasive that medical opinion will be.

20 CLF.R. § 404.1520c(c)(1). .

Consistency: the “more consistent a medical opinion” is with “the

evidence from other medical sources and nonmedical sources in the

claim, the more persuasive the medical opinion” will be.

20 C.F.R. § 404.1520c(c)(2).

The Commissioner concedes that the ALJ could have explained his rationale with more clarity.

Dkt. 17 at 10. However, the Ninth Circuit is clear that a decision explained with “less than ideal

clarity may be upheld so long as the agency’s path may be reasonably discerned.” Treichler v.

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099. The ALJ stated that Dr. Carlini’s October and

November medical opinions were “not persuasive,” and that they were “not consistent with the

evidence of record.” Tr. 25. There is evidence in the objective record to support both statements.

Dr. Carlini’s opinions fail to include the entirety of Plaintiff's treatment plan, some of which had

medications and various therapies that were successful to relieve her pain, migraine frequency,

and mental health issues. When asked to describe Plaintiff's treatment and response, Dr. Carlini

only lists Botox, Emgality, TPM, VPA, and GBP as being “no help,” but fails to list the success

of propranolol in reducing her migraines to about 3 or 4 per month, nor mentions the success of

13 Opinion and Order

her other pain medications and in-home physical therapy program. Tr. 807, 960, 961, 968. This

evidence goes directly against both factors of supportability and consistency because Dr.

Carlini’s opinions are inconsistent with other providers in the record and fail to describe how,

objectively, or personally to Plaintiff, migraines would impede function. Moreover, so long as

the ALJ’s findings represent a reasonable interpretation of the evidence, the Court must uphold

them. “[I]f evidence exists to support more than one rational interpretation, we must defer to the

Commissioner’s decision[.]” Batson v. Comm’r of Soe. See. Admin., 359 F.3d 1193 (9th Cir.

2004). The Court finds no conflict here to resolve. The ALJ’s decision is affirmed.

WW. The ALJ properly evaluated the lay witness opinions of Plaintiff's Father and

Sister.

Plaintiff argues the ALJ improperly rejected the lay witness testimony of Plaintiff's father

and sister. Dkt. 16 at 19. Plaintiff's father and sister prepared five nonmedical statements

describing Plaintiffs conditions related to her movement, eating habits, moods and daily

activities. Tr. 291-98, 320-24, 345-47. “[L]ay testimony as to a claimant's symptoms is

competent evidence that an ALJ must take into account, unless he or she expressly determines to

disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v.

Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

Plaintiff argues that the ALJ failed to provide specific, germane reasons for rejecting the

lay witness statements. Dkt. 16, at 19. As discussed above, the ALJ properly evaluated Plaintiff's

subjective symptom testimony and reasonably found medical evidence, as well as evidence that

Plaintiff's immobility due to fibromyalgia, chronic pain and migraine symptoms could be

improved with medication and various treatments, to be inconsistent with Plaintiff's claims of

debilitating impairments. “In light of our conclusion that the ALJ provided clear and convincing

reasons for rejecting [the claimant's] own subjective complaint, and because [the lay witness]

14 - Opinion and Order

testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for

rejecting [the lay witness] testimony” Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685,

694 (9th Cir. 2009). Accordingly, the ALJ provided germane reasons for discounting the lay

witness testimony, and Plaintiff has not shown that the ALJ erred.

ORDER

The ALJ did not err. The decision is AFFIRMED.

It is so ORDERED and DATED this 14th day of June, 2022. Cae

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MARK D. CLARKE

United States Magistrate Judge

15 - Opinion and Order

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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