(SS) Castro v. Commissioner of Social Security

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5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF CALIFORNIA

7

8 ROSE MARY CASTRO, Case No. 1:20-cv-01706-CDB

9 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT AND

10 v. AFFIRMING THE COMMISSIONER OF

SOCIAL SECURITY’S DECISION

11 COMMISSIONER OF SOCIAL

SECURITY, (Docs. 18, 22)

12

Defendant.

13

14

15 Rose Mary Castro (“Plaintiff”) seeks judicial review of a final decision of the

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

17 disability insurance and supplemental security income benefits under the Social Security Act.

18 (Doc. 1). Plaintiff alleges disability beginning January 21, 2019. (Administrative Record (“AR”)

19 at 28). The matter currently is before the Court on the certified administrative record (Doc. 14)

20 and the parties’ briefs, which were submitted without oral argument. (Docs. 18, 22-23 ).1

21 I. Background

22 Plaintiff applied for benefits on January 21, 2019. (AR 16). Plaintiff’s claim was initially

23 denied on April 26, 2019, and upon reconsideration on August 29, 2019. (AR 160-64, 190-91).

24 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and a hearing was held

25 on May 14, 2020. (AR 41). The ALJ issued an unfavorable decision on June 26, 2020. (AR 13).

26 The ALJ noted that Plaintiff previously filed a claim, which was adjudicated on December 12,

27

1 Both parties have consented to the jurisdiction of a magistrate judge for all proceedings

in this action, in accordance with 28 U.S.C. § 636(c)(1). (Doc. 12).

1 2014, but acknowledged there was new evidence in the record which rebutted the presumption of

2 continuing disability, including evidence of additional impairments that were not previously

3 considered. (AR 17). Plaintiff appealed the ALJ’s unfavorable decision, and the Appeals

4 Council denied her request for review. (AR 1). Thereafter, Plaintiff filed her complaint in this

5 Court on December 14, 2020. (Doc. 1).

6 A. The ALJ’s decision2

7 The ALJ engaged in the five-step sequential evaluation process under 20 C.F.R. §

8 416.920(a). (AR 18). At step one, the ALJ found Plaintiff had not engaged in substantial gainful

9 activity since June 25, 2013, her alleged disability onset date. In her renewed application, Plaintiff

10 amended her alleged onset date to January 21, 2019. (AR 20, 35). At step two, the ALJ found

11 that Plaintiff had the following severe medically determinable impairments (MDIs): multiple

12 sclerosis; type two diabetes mellitus and diabetic polyneuropathy; right ankle plantar and

13 calcaneal spurring with mild malleolus spurring; venous insufficiency; and obesity. (AR 20).

14 Plaintiff was diagnosed with benign essential hypertension, mixed hyperlipidemia, and

15 reflux esophagitis. (AR 20 citing 25, 55). However, the record demonstrates regular heart rate

16 and rhythm with normal heart sounds and no evidence of murmurs. (AR 20 citing AR 508-510,

17 513, 519, 707, 713, 716, 849, 854, 860, 979, 985). The ALJ further found that the record does not

18 document organ damage due to hypertension, or significant cardiovascular or gastrointestinal

19 complications due to hyperlipidemia and reflux esophagitis. (AR 20).

20 Plaintiff also was diagnosed with asthma, but the ALJ noted that in February 2019, her

21 asthma was observed to be mild and intermittent. (AR 712). In February and April 2019, Plaintiff

22 had only mild wheezing with no evidence of rales or rhonchi. (AR 713). The ALJ also noted that

23 Plaintiff frequently presented with unremarkable respiratory findings. (AR 20 citing 508, 513,

24 520; 849, 854, 860; 979-985). Accordingly, the ALJ found the above impairments to be non-

25 severe. (AR 21). Plaintiff was also diagnosed with an anxiety disorder, an adjustment disorder

26 with mixed anxiety and depressed mood. The ALJ evaluated Plaintiff’s alleged mental health

27

2 The ALJ’s decision is summarized herein to the extent it is relevant to the issues brought

1 impairments and found those disorders to be non-severe. (AR 23).

2 At step three, the ALJ found that Plaintiff did not have an impairment or combination of

3 impairments that met or medically equaled the severity of a listed impairment. (AR 23).

4 Specifically, the ALJ found that Plaintiff’s impairments failed to meet listing 1.02 (major

5 dysfunction of a joint), 4.11 (chronic venous insufficiency), 11.09 (multiple sclerosis), and 11.14

6 (peripheral neuropathy). (AR 23). The ALJ further noted that Plaintiff’s diabetes mellitus did not

7 cause organ damage such as amputation, retinopathy, coronary artery disease, peripheral vascular

8 disease, gastroparesis, nephropathy, skin infection, neuropathies, or problems with cognition,

9 depression, or anxiety. Id. The ALJ further considered how Plaintiff’s obesity impacted the

10 severity of her impairments. Id. The ALJ found that Plaintiff’s residual functional capacity

11 (“RFC”) to be as follows:

12 After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity to perform

13 sedentary work as defined in 20 CFR 416.967(a) except: she can lift

and/or carry up to 10 pounds frequently; sit for up to 6 hours total in

14 an 8-hour workday; stand and/or walk for up to 2 hours total in an 8-

hour workday; with occasional stooping, crouching, crawling, and

15 kneeling; occasional climbing ramps and stairs; and never climbing

ladders, ropes, or scaffolds. She could have no exposure to hazards

16 including unprotected heights and dangerous moving machinery.

17 (AR 24).

18 At step four, the ALJ acknowledged Plaintiff’s alleged limitations from multiple sclerosis

19 and type two diabetes, with symptoms including pain, weakness, buckling of her legs, stiffness,

20 blurred vision, excessive thirst and urination, numbness, tingling, slurred speech, swelling,

21 fatigue, and difficulty sleeping, standing, walking, sitting, lifting, squatting, bending, reaching,

22 kneeling, talking, climbing stairs, using her hands, and completing tasks. (AR 25 citing 305, 330-

23 337, 363, 367). The ALJ further noted that in February 2019, Plaintiff claimed that she was told

24 not to lift more than five pounds. (AR 25 citing AR 335). Plaintiff also stated that she could

25 walk one and a half blocks before needing to rest. (Id. citing AR 335). In October 2019, Plaintiff

26 further asserted that she could only walk for 10 to 15 minutes before needing to take a break

27 lasting 5 to 10 minutes. (Id. citing 367).

1 insulin. (Id. citing AR 67, 308, 366). Plaintiff testified that she did not have treatment

2 specifically for her multiple sclerosis in four years and attributed this lack of treatment to an

3 ineffective neurologist. (Id. citing AR 59). Plaintiff testified that her pain is reduced with use of

4 ibuprofen and baclofen. Id. The ALJ noted that although Plaintiff reported fatigue for her

5 medication during the hearing, she also indicated that she did not have side effects prior to the

6 hearing. (Id. citing 377, 356, 367).

7 Plaintiff also reported use of walker, stating that it was prescribed. (Id. citing 305, 336,

8 366). Plaintiff testified that she had a walker for about six years, asserting she takes it

9 everywhere she goes and uses it seven or eight times a month. (AR 25 see AR 65-66). Plaintiff

10 further indicated that she was hospitalized for three days in November 2018. (Id. citing AR 311).

11 The ALJ found that Plaintiff experiences some limitations from multiple sclerosis;

12 however, her symptom testimony was not supported by the record as a whole. (AR 26). The ALJ

13 found that although Plaintiff’s diagnostic imaging studies have demonstrated multiple sclerosis,

14 they do not document findings supporting the extent of her alleged limitations. Id.

15 The ALJ noted that in November 2018, an MRI of Plaintiff’s brain revealed findings

16 consistent with moderately severe multiple sclerosis. (AR 25 citing 744, 746). However, the ALJ

17 found that the weight of objective examination findings did not support Plaintiff’s alleged

18 limitations. Specifically, the ALJ found that in November 2018, prior to the amended alleged

19 onset date, Plaintiff was hospitalized due to an exacerbation of multiple sclerosis. (AR 26 citing

20 AR 503-53). On evaluation, Plaintiff had decreased sensation and strength of her right lower

21 extremity, an abnormal gait, hyperreflexia, and a positive Babinski reflexes of the great right toe;

22 however, Plaintiff had intact cranial nerve testing and grip strength, as well as intact left lower

23 extremity strength and sensation, full upper extremity strength, and normal range of motion. (Id.

24 citing AR 508, 511, 520-21).

25 The ALJ further noted that in February and March 2019, Plaintiff presented with normal

26 sensation, reflexes, and muscle tone of her extremities, as well as intact cranial nerve test findings

27 with normal coordination and gait. (Id. citing AR 760-761, 835-36). During an evaluation with a

1 two falls within the past six months; however, the ALJ noted that during Plaintiff’s later

2 evaluations, including a neurology evaluation one-week after the May 2019 appointment, Plaintiff

3 denied having two or more falls within the past 12 months. (Id. citing 770, 826, 890, 906, 927,

4 971).

5 The ALJ further noted an examination during which Plaintiff had a normal gait with the

6 ability to walk 25 feet in 7.7 seconds without difficulty and without use of an assistive device.

7 (AR 27 citing 774). Plaintiff could heel and toe walk without difficulty. Id. Plaintiff also

8 presented no pronator drift, tremor, or increase of muscle tone. (AR 27 citing 773). Plaintiff also

9 had normal sensation, reflexes, and muscle tone of her extremities, as well as normal coordination

10 and gait. (AR 779-780).

11 In July 2019, Plaintiff continued to have normal sensation, reflexes, and muscle tone of all

12 her extremities, as well as normal cranial nerve test findings with normal coordination and gait.

13 (AR 26 citing 893). In October 2019, Plaintiff demonstrated an unsteady gait, but displayed

14 normal coordination, sensation, and reflexes. (Id. citing AR 911). The ALJ also noted that in

15 November 2019, Plaintiff displayed unremarkable findings, which included normal coordination

16 and gait. (Id. citing AR 930-31). At an evaluation in February 2020, Plaintiff initially displayed

17 decreased lower extremity sensation; however, at a neurology evaluation, Plaintiff exhibited

18 normal sensation, reflexes, and muscle tone for all her extremities. Plaintiff further displayed

19 intact cranial nerve test findings with normal coordination and gait. (Id. citing 973, 982, 985).

20 The ALJ found that Plaintiff had relatively limited treatment for her multiple sclerosis.

21 (AR 27). The ALJ noted that prior to Plaintiff’s alleged onset date, she was hospitalized for three

22 days in November 2018 due to a flare of multiple sclerosis. (AR 27). Plaintiff has a history of

23 taking medication prescribed to treat her multiple sclerosis, which includes Rebif and Copaxone.

24 (Id. citing AR 477, 759). Plaintiff also reported an allergic reaction to Copaxone, noting that she

25 only took this medication for one-or-two years after her diagnosis in 2005. (Id. citing AR 770).

26 Likewise, the ALJ noted that while hospitalized in November 2018, Plaintiff reported that she did

27 not have medical treatment specifically for multiple sclerosis in a year, and in May 2019, that

1 770).

2 The ALJ noted that although Plaintiff took medications for pain during the period

3 following the amended alleged onset date, she did not take medication specifically for treatment

4 of her multiple sclerosis during this period. (Id. citing AR 759, 769, 783, 971). Plaintiff reported

5 that insurance could not cover a muscle relaxer; however, she reported that she was taking

6 baclofen during the hearing. (Id. citing AR 902, 62). Likewise, the ALJ found that the record

7 does not document emergency room evaluations or hospitalizations due to uncontrolled

8 symptoms of multiple sclerosis after the amended alleged onset date. Id.

9 Relatedly, the ALJ found that Plaintiff received conservative treatment for her diabetes

10 mellitus since her amended alleged onset date. The ALJ noted that the record does not document

11 emergency room evaluations or hospitalizations due to uncontrolled symptoms or complications

12 of diabetes mellitus. (AR 27).

13 The ALJ noted that Plaintiff experiences some limitations from her right ankle plantar and

14 calcaneal spurring with malleolus spurring, but also observed that since her amended alleged

15 onset date, Plaintiff frequently presented at medical evaluations with a normal gait. (AR 27 citing

16 AR 760-768, 774, 832-836, 893, 930-31, 972). The ALJ found that Plaintiff generally received

17 conservative treatment for this condition, and that although she had prescribed medication for

18 pain, there is no evidence Plaintiff required right ankle surgery. Likewise, Plaintiff did not

19 participate in physical therapy, receive injections, or use a brace. The ALJ further noted the lack

20 of evidence of uncontrolled right ankle pain since the amended alleged onset date.

21 The ALJ further considered Plaintiff’s need for an assistive device. Plaintiff reported

22 using a walker for six days prior to admission to the hospital in November 2018, which was

23 before the amended alleged onset date. (AR 27 AR 508). In April 2020, Dr. Reynaldo Garcia,

24 M.D., Plaintiff’s treating provider, prescribed Plaintiff a wheeled walker. (Id. citing AR 384).

25 However, the ALJ found that the medical evidence for the period between January 21, 2019, and

26 Dr. Garcia’s prescription for a walker demonstrated that Plaintiff did not use an assistive device

27 during evaluations. Id. Further, during these evaluations, Plaintiff presented with a normal gait.

1 displayed lower extremity strength in May 2019, an assistive device was not medically necessary,

2 and no such device was provided for in the assessed RFC. (AR 27).

3 The ALJ found that Plaintiff’s activities of daily living weighed against her disability

4 allegations since despite her alleged limitations, Plaintiff prepared her husband’s lunch, cared for

5 a cat, prepared simple meals, drove short distances, shopped in stores, counted change, paid bills,

6 and was able to use money orders and go grocery shopping. (AR 344).

7 The ALJ considered and addressed the various medical opinions in the record – chiefly

8 the opinion of Dr. Reynaldo Garcia. (AR 32). Dr. Garcia is Plaintiff’s treating provider and

9 offered an opinion in April 2020. Dr. Garcia opined that Plaintiff’s symptoms are severe enough

10 to interfere with attention and concentration necessary to sustain simple, repetitive tasks. (AR

11 994). Dr. Garcia further opined that Plaintiff is incapable of low stress work due to her pain.

12 (AR 994). According to Dr. Garcia, Plaintiff could sit 30 minutes and stand 20 minutes at a time

13 for a total of less than two hours sitting and less than two hours standing and walking in an eight-

14 hour day. (AR 994-95). Dr. Garcia also opined that that Plaintiff would need unscheduled breaks

15 every 30 minutes, rarely carry up to 10 pounds, occasionally stoop and climb stairs, and rarely

16 twist and crouch. (AR 32 citing AR 995). Dr. Garcia further estimated that Plaintiff would be

17 absent from work for more than four days a month and would need an assistive advice for

18 mobility. (Id. citing AR 996).

19 The ALJ found that Dr. Garcia’s assessed limitations were not supported by his

20 examinations. The ALJ reasoned that during multiple examinations, Dr. Garcia observed non-

21 focal neurological findings, with normal findings on a diabetes foot examination in July 2019.

22 (Id. citing 713, 716, 870, 854, 979). Further, in June, September, and December 2019, Dr. Garcia

23 noted that Plaintiff’s edema was improved. (Id. citing 849, 854, 979). Moreover, some of Dr.

24 Garcia’s recent treatment notes did not document gait abnormalities or use of an assistive device

25 during office visits. (AR 32 citing 554-768, 848-85, 975-92).

26 The ALJ also found that Dr. Garcia’s assessment was inconsistent with the record as a

27 whole. The ALJ supported this finding by citing to instances where Plaintiff presented with

1 normal gait (AR 32 citing B4F/207-28;3 774, 832-36, 893, 930-31, 972). Although Plaintiff had

2 decreased lower extremity strength, it was a minimal decrease, or she had intact strength. (Id.

3 citing AR 760-61, 773-75, 832-36, 893, 910, 930-31, 972). The ALJ further found that Dr.

4 Garcia’s assessment was inconsistent with Plaintiff’s treatment since the amended alleged

5 disability onset date. Specifically, the ALJ noted that although Plaintiff received some treatment,

6 she did not require emergent evaluation or hospitalization since January 21, 2019. (Id. citing AR

7 554-992). Likewise, Plaintiff did not need surgery for her severe impairments. (Id. citing AR

8 554-992). The ALJ noted that although there is evidence of Plaintiff’s past use of Copaxone and

9 Rebif, the record does not show recent use of medication for treatment of multiple sclerosis.

10 Furthermore, since the amended alleged onset date, Plaintiff did not participate in physical

11 therapy, sclerotherapy, or endovenous thermal ablation for her alleged venous insufficiency. The

12 ALJ did not find Dr. Garcia’s opinion persuasive.

13 At step five, the ALJ found that Plaintiff had past relevant work as a delivery driver,

14 security guard, and fast-food worker. (AR 33). The ALJ further found Plaintiff to be not disabled

15 since she could work as an information clerk, order clerk, or account clerk.

16 II. Standard of Law

17 A. The Disability Standard

18 Disability Insurance Benefits and Supplemental Security Income are available for every

19 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual

20 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically

21 determinable physical or mental impairment …”4 Bowen v. Yuckert, 482 U.S. 137, 140 (1987)

22 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To

23 achieve uniformity in the decision-making process, the Social Security regulations set out a five-

24

3 Although the portion of Exhibit B4F referenced in the ALJ’s decision is “207-28,” the

25 Court perceives this as a scrivener’s error that was intended to be listed as “207-08” given that the

observation of normal gate appears at page 208 of the exhibit. See (AR 761).

26

4 A “physical or mental impairment” is one resulting from anatomical, physiological, or

27

psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. § 423(d)(3).

1 step sequential evaluation process to be used in determining if an individual is disabled. See 20

2 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004).

3 Specifically, the ALJ is required to determine:

4 (1) whether a claimant engaged in substantial gainful activity during the period of

alleged disability, (2) whether the claimant had medically determinable “severe”

5

impairments, (3) whether these impairments meet or are medically equivalent to one

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

whether the claimant retained the RFC to perform past relevant work and (5)

7 whether the claimant had the ability to perform other jobs existing in significant

numbers at the national and regional level.

8

9 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is

10 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing

11 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)).

12 Before making the step four determinations, the ALJ first must determine the claimant’s

13 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is the most a claimant

14 can still do despite their limitations and represents an assessment based on all relevant evidence.

15 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant’s

16 impairments, including those that are not severe. 20 C.F.R. § 416.920(e); § 416.945(a)(2). E.g.,

17 Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“These regulations inform us, first, that in

18 assessing the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s

19 medically determinable impairments, whether severe or not severe.”). The RFC is not a medical

20 opinion. 20 C.F.R. § 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to

21 the Commissioner. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th

22 Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine

23 residual functional capacity.”).

24 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform

25 other work in the national economy given the claimant’s RFC, age, education, and work

26 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use

27 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v.

1 Cir. 2001). “Throughout the five-step evaluation, the ALJ ‘is responsible for determining

2 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950

3 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

4 B. Standard of Review

5 Congress has provided that an individual may obtain judicial review of any final decision

6 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In

7 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the

8 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A

9 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on

10 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097

11 (9th Cir. 1999).

12 “Substantial evidence is relevant evidence which, considering the record as a whole, a

13 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278

14 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

15 1457 (9th Cir. 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.

16 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a

17 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v.

18 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted).

19 “[A] reviewing court must consider the entire record as a whole and may not affirm

20 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153,

21 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible

22 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford,

23 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the

24 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout,

25 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate

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

27 (quotation and citation omitted). The burden of showing that an error is not harmless “normally

1 409 (2009).

2 III. Discussion

3 Plaintiff advances two arguments for the Court’s review. First Plaintiff claims the ALJ

4 failed to evaluate the opinion of Dr. Garcia, who is Plaintiff’s treating physician. Plaintiff also

5 claims the ALJ erred by discounting her subjective complaints without offering clear and

6 convincing reasons.

7 A. Whether the ALJ Erred by Discounting Dr. Garcia’s Opinion

8 Because Plaintiff applied for SSI after March 27, 2017, the ALJ’s decision was governed

9 by the revised regulations promulgated by the Revisions to Rules Regarding the Evaluation of

10 Medical Evidence (the “Revisions”), 82 Fed. Reg. at 5844 (Jan. 18, 2017) (codified at 20 C.F.R.

11 pts. 404 & 416). See, e.g., Linda F. v. Saul, No. 20-cv-5076-MAT, 2020 WL 6544628, at *2

12 (W.D. Wash. Nov. 6, 2020) (“Because [the] plaintiff filed her applications after March 27, 2017,

13 new regulations apply to the ALJ’s evaluation of medical opinion evidence.”). The Revisions

14 eliminated the hierarchy of medical opinions and instead provide that the Commissioner does not

15 defer to any medical opinions, even those from treating sources. 20 C.F.R. § 416.920c(a) (2017).

16 Instead, under the Revisions, “‘[t]he most important factors’ that the agency considers when

17 evaluating the persuasiveness of medical opinions are ‘supportability’ and ‘consistency.’” Woods

18 v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(a)). Supportability

19 means the extent that a medical source supports the medical opinion by explaining the relevant

20 medical evidence. Id.; § 404.1520c(c)(1). Consistency is the extent to which a medical opinion is

21 consistent with the evidence from other medical as well as nonmedical sources in the claim. Id.;

22 404.1520c(c).

23 Under the revised regulations, the medical source’s relationship with the claimant is still

24 relevant when assessing the persuasiveness of the source’s opinion. Id. (citing 20 C.F.R.

25 404.1520c(c)(3)). Therefore, the ALJ can consider the length and purpose of the treatment

26 relationship, the frequency of examinations, the kinds and extent of examinations the medical

27 source has performed or ordered from specialists, and whether the medical source actually

1 (v)).

2 However, the ALJ is no longer required to discuss these relationship factors and may

3 instead discuss them when “two or more medical opinions . . . about the same issue are . . .

4 equally well-supported . . . and consistent with the record . . . but are not exactly the same.” Id. §

5 404.1520c(b)(3).

6 Plaintiff argues the ALJ erred when he found Dr. Garcia’s opinion “not persuasive”

7 because his assessed limitations are not supported by his own examination findings. She further

8 asserts the ALJ’s references to a July 2019 diabetic foot examination and assessments in June,

9 September, and December 2019, which noted Plaintiff’s edema was improved, reflect a selective

10 representation of the record, which does not demonstrate a consideration of consistency with the

11 record as a whole. (Doc. 18 p. 10). See Torres Aparicio v. Berryhill, No. 1:18-cv-00777, 2019

12 WL 1594891, at *14 (E.D. Cal. Apr. 15, 2019) (finding error where ALJ rejected medical source

13 by citing to selective portions of the record)). Plaintiff argues that the examination findings

14 consistently revealed tenderness on the right medial part of her foot, tenderness on both knees,

15 edema to the bilateral legs, non-pitting edema on both legs, and tenderness with mild swelling on

16 the lower leg. (Doc. 18 p. 10 citing AR 849, 854, 860, 863, 866, 976, 979, 982, 985). Plaintiff

17 further points to an examination on February 5, 2020, which revealed diminished protective and

18 vibratory sensation on both feet and venous stasis ulcerations. (AR 982).

19 Plaintiff further argues that the ALJ erred when he found Dr. Garcia’s opinion to be

20 inconsistent with the other medical evidence in the record. Plaintiff argues the reasons proffered

21 by the ALJ – including that there is no evidence of retinopathy, nephropathy, gastroparesis,

22 dermatitis, superficial varicosities, or persistent ulcerations – as well as pointing to Plaintiff’s lack

23 of surgery and hospitalizations, physical treatment, and other treatment, are based entirely on

24 unrelated findings and the ALJ offered no reasons why these unobserved circumstances

25 contradict Dr. Garcia’s opinion.

26 In response, the Commissioner argues that the ALJ properly addressed the supportability

27 and consistency factors when finding Dr. Garcia’s opinion not persuasive. For example, the ALJ

1 neurological findings with normal findings. (AR 32 citing AR 713, 716, 849-50, 854, 979). The

2 ALJ also cited Dr. Garcia’s examination notes that Plaintiff’s edema was improving (AR 32

3 citing AR 849, 854, 979); and her treatment notes did not document gait abnormalities or the use

4 of an assistive device during visits. (AR 32). The ALJ further found Dr. Garcia’s assessment

5 inconsistent with the record as a whole since Plaintiff frequently presented at medical evaluations

6 with a normal gait (AR 32 citing AR 760-61, 774, 832-36, 893, 930-31, 972), had minimal

7 decrease in her extremity strength in a May 2019 examination or otherwise had intact strength

8 (AR 32 citing AR 760-61, 773-774, 832-36; 893, 910, 930-31, 972), and unremarkable MRI

9 imaging results (AR 32 citing 747). In addition, the ALJ cited to unremarkable neurological

10 findings regarding sensation, reflexes, muscle tone, cranial nerve testing, and coordination from

11 the record. (AR 32 citing AR 760-61, 832-36, 893, 910, 930-31, 972).

12 Having reviewed these arguments and the evidence cited, the Court concludes the ALJ

13 adequately addressed the supportability and consistency factors when evaluating Dr. Garcia’s

14 opinion. As to supportability, as detailed above, the ALJ made a longitudinal assessment of Dr.

15 Garcia’s treatment records. Although Dr. Garcia repeatedly noted that Plaintiff had swelling in

16 her lower leg, those same treatment notes also documented unremarkable neurological findings

17 showing normal or improved conditions relating to Plaintiff’s diabetic foot and edema. See, e.g.,

18 (AR 849, 854, 860, 863).

19 As to consistency, the ALJ found that Dr. Garcia’s opinion about Plaintiff’s ability to

20 walk and the need to have a walker were contradicted by the medical notes of Dr. Joshi Rohini

21 and William West M.D., which were drafted leading up to and immediately prior to the time of

22 Dr. Garcia’s examinations and prescription of a walker, and mostly found that Plaintiff’s gait was

23 intact and noted Plaintiff was not observed using a walker during the examinations. E.g. (AR 760-

24 61, 774, 832-36, 893, 930-31, 972-73). The ALJ also properly discounted Dr. Garcia’s opinion

25 on consistency grounds with his observations that the record did not document diabetic

26 retinopathy, nephropathy, or gastroparesis, and there was no evidence of brawny edema, nor a

27 demonstration of ongoing or frequent stasis dermatitis or superficial varicosities. AR 32.

1 factors outlined in 404.1520c(a) and his findings are supported by substantial evidence.5

2 B. Whether the ALJ Provided Clear and Convincing Reasons for Rejecting

3 Plaintiff’s Subjective Symptoms

4 The ALJ is responsible for determining credibility,6 resolving conflicts in medical

5 testimony, and resolving ambiguities. Andrews, 53 F.3d at 1039. A claimant’s statements of pain

6 or other symptoms are not conclusive evidence of a physical or mental impairment or disability.

7 42 U.S.C. § 423(d)(5)(A); see SSR 16-3p, 2017 WL 5180304, at *2 (“an individual’s statements

8 of symptoms alone are not enough to establish the existence of a physical or mental impairment

9 or disability”); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (“An ALJ is not required to

10 believe every allegation of disabling pain or other non-exertional impairment.”) (internal

11 quotation marks and citation omitted). Determining whether a claimant’s testimony regarding

12 subjective pain or symptoms is credible requires the ALJ to engage in a two-step analysis.

13 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ must first determine if “the

14 claimant has presented objective medical evidence of an underlying impairment which could

15 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue,

16 504 F.3d 1028, 1036 (9th Cir. 2007) (internal punctuation and citations omitted). This does not

17 require the claimant to show that his impairment could be expected to cause the severity of the

18 symptoms that are alleged, but only that it reasonably could have caused some degree of

19 symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

20 If the first step is met and there is no evidence of malingering, “the ALJ must provide

21 ‘specific, clear and convincing reasons for’ rejecting the claimant’s testimony.” Treichler v.

22

5 Plaintiff separately argues that the ALJ failed to consider the opinion of Marlowe C.

23

Marinas in connection with Plaintiff’s RFC to perform light work. (Doc. 18 at 9). The Court

perceives this to be an erroneous statement inadvertently included in Plaintiff’s briefing as it does

24

not appear Dr. Marinas was involved in this case and Plaintiff’s RFC was limited to sedentary

25 work (not light work).

26 6 Social Security Ruling (SSR) 16-3p applies to disability applications heard by the

agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to

27

emphasize that subjective symptom evaluation is not “an examination of an individual’s character

but an endeavor to “determine how symptoms limit [the] ability to perform work-related

1 Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1281).

2 See Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1160 (9th Cir. 2008) (noting an adverse

3 credibility finding must be based on “clear and convincing reasons”). The clear and convincing

4 standard is “not an easy requirement to meet,” as it is “‘the most demanding requirement in Social

5 Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278

6 F.3d 920, 924 (9th Cir. 2002)). The ALJ must make findings that support this conclusion, and the

7 findings must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the

8 claimant’s testimony on permissible grounds and did not arbitrarily discredit the claimant’s

9 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation and internal

10 quotation marks omitted); see Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (same).

11 The Ninth Circuit does “not require ALJs to perform a line-by-line exegesis of the

12 claimant’s testimony, nor do they require ALJs to draft dissertations when denying benefits.”

13 Stewart v. Kijakazi, No. 1:22-cv-00189-ADA-HBK, 2023 WL 4162767, at *5 (E.D. Cal. Jun. 22,

14 2023), F&R adopted, 2023 WL 5109769 (E.D. Cal. Aug. 8, 2023); see Record v. Kijakazi, No.

15 1:22-cv-00495-BAM, 2023 WL 2752097, at *4 (E.D. Cal. Mar. 31, 2023) (“Even if the ALJ’s

16 decision is not a model of clarity, where the ALJ’s ‘path may reasonably be discerned,’ the Court

17 will still defer to the ALJ’s decision.”) (quoting Wilson v. Berryhill, 757 Fed. Appx. 595, 597 (9th

18 Cir. 2019)). “The standard isn’t whether our court is convinced, but instead, whether the ALJ’s

19 rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 494

20 (9th Cir. 2022) (the clear and convincing standard requires an ALJ to show his work).

21 The ALJ may consider numerous factors in weighing a claimant’s credibility, including

22 “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying,

23 prior inconsistent statements concerning the symptoms, and other testimony by the claimant that

24 appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to

25 follow a prescribed course of treatment; and (3) the claimant’s daily activities.” Smolen, 80 F.3d

26 at 1284. In evaluating the credibility of symptom testimony, the ALJ must also consider the

27 factors identified in SSR 16-3P. Id. 7 (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.

1 1991)). Accord Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). These

2 factors include:

3 (1) Daily activities; (2) The location, duration, frequency, and intensity of pain or

other symptoms; (3) Factors that precipitate and aggravate the symptoms; (4) The

4 type, dosage, effectiveness, and side effects of any medication an individual takes

or has taken to alleviate pain or other symptoms; (5) Treatment, other than

5 medication, an individual receives or has received for relief of pain or other

symptoms; (6) Any measures other than treatment an individual uses or has used

6 to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for

15 to 20 minutes every hour, or sleeping on a board); and (7) Any other factors

7 concerning an individual’s functional limitations and restrictions due to pain or

other symptoms.

8

9 SSR 16-3P, 2017 WL 5180304, at *7. See 20 C.F.R. § 404.1529(c)(3). If the ALJ’s finding is

10 supported by substantial evidence, the court may not engage in second-guessing. Tommasetti,

11 533 F.3d at 1039 (citations and internal quotation marks omitted).

12 “The fact that a claimant’s testimony is not fully corroborated by the objective medical

13 findings, in and of itself, is not a clear and convincing reason for rejecting it.” Vertigan, 260 F.3d

14 at 1049. See 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity

15 and persistence of your pain or other symptoms or about the effect your symptoms have on your

16 ability solely because the objective medical evidence does not substantiate your statements.”).

17 Rather, where a claimant’s symptom testimony is not fully substantiated by the objective medical

18 record, the ALJ must provide additional reasons for discounting the testimony. Burch, 400 F.3d

19 at 680. “The ALJ must specify what testimony is not credible and identify the evidence that

20 undermines the claimant’s complaints – ‘[g]eneral findings are insufficient.’” Id. (quoting

21 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988)).

22 However, the medical evidence “is still a relevant factor in determining the severity of the

23 claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.

24 2001). The Court of Appeals has distinguished testimony that is “uncorroborated” by the medical

25 evidence from testimony that is “contradicted” by the medical records and concluded that

26 contradictions with the medical records, by themselves, are enough to meet the clear and

27

2017 WL 5180304). See Amy E.S. v. Comm’r, No. 6:20-cv-1997-AC, 2022 WL 92939, at *9 n.4

1 convincing standard. Hairston v. Saul, 827 Fed. Appx. 772, 773 (9th Cir. 2020) (quoting

2 Carmickle, 533 F.3d at 1161). The Court of Appeals has also acknowledged that the ALJ is not

3 “required to believe every allegation of disabling pain, or else disability benefits would be

4 available for the asking, a result plainly contrary to” the Social Security Act. Molina v. Astrue,

5 674 F.3d at 1112. In essence, “the ‘clear and convincing’ standard requires an ALJ to show his

6 work.” Smartt, 53 F.4th at 499.

7 Here, the ALJ acknowledged and engaged in this two-part analysis. (AR 25). The ALJ

8 found that Plaintiff’s MDIs could reasonably be expected to cause the alleged symptoms, but

9 separately noted: “the claimant’s statements concerning the intensity, persistence and limiting

10 effects of these symptoms are not entirely consistent with the medical evidence and other

11 evidence in the record for the reasons explained in this decision.”

12 Plaintiff argues that the ALJ improperly rejected her symptom testimony on the grounds

13 that she was administered only conservative medical treatment and because there otherwise was a

14 lack of objective medical evidence to support the severity of the symptoms and conditions she

15 alleged. She asserts that the ALJ failed to identify specific testimony the ALJ deemed not

16 credible and failed to connect Plaintiff’s complaints to specific medical findings that rebutted the

17 testimony. Plaintiff further argues that the ALJ did not explain how her observation at medical

18 appointments without an assistive device demonstrates any ability to work on a consistent basis.

19 (Doc. 18 at 15). Plaintiff further argues that the ALJ failed to explain how her activities of daily

20 living – including watching television, preparing simple meals, caring for a cat, shopping, driving

21 short distances, and paying bills – undermine her credibility or undercut her assertion, for

22 instance, that she is unable to sit for more than 30 minutes or walk more than 10-20 minutes

23 without a break. Id.

24 Turning first to the argument regarding the ALJ’s reliance on Plaintiff’s activities of daily

25 living, the Court notes that a claimant’s activities of daily living may be used to discount her

26 subjective complaints where (1) those activities “contradict [her] other testimony” or (2) they

27 “meet the threshold for transferable work skills.” Orn, 495 F.3d at 639. To properly discredit a

1 activities “and their transferability to conclude that a claimant’s daily activities warrant an

2 adverse credibility determination.” Id. (citing Burch, 400 F.3d at 681). Here, the ALJ did not find

3 that Plaintiff’s activities of daily living contradicted her alleged limitations, but rather, found that

4 “even if the claimant’s daily activities are truly as limited as alleged, it is difficult to attribute that

5 degree of limitation to the claimant’s medical condition, as opposed to other reasons.” (AR 30).

6 In the light of this finding, the Court does not deem Plaintiff’s activities of daily living to be a

7 sufficient basis on which the ALJ could discount her testimony.

8 However, the ALJ’s reliance on one improper ground to discount a claimant’s testimony

9 may amount to harmless error if the ALJ relied on other, proper grounds to discount the

10 testimony. See Carmickle, 533 F.3d at 1163 (upholding an adverse credibility finding where the

11 ALJ provided four reasons to discredit the claimant, two of which were invalid); Batson v.

12 Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming a credibility finding

13 where one of several reasons was unsupported by the record). Here, the ALJ supported his

14 credibility determination though other means. For example, the ALJ noted that Plaintiff sought

15 conservative treatment for her conditions, as during a hospitalization in November 2018, Plaintiff

16 reported that she did not have medical treatment specifically for multiple sclerosis in a year, and

17 in May 2019, she told providers that she had not been taking medication for at least three years.

18 (AR 27 citing AR 520, 770). The ALJ further found that after her amended alleged onset date of

19 January 21, 2019, Plaintiff’s treatment for multiple sclerosis had been limited and did not

20 document instances where her symptoms became uncontrollable. (AR 27). The ALJ further

21 found Plaintiff generally received treatment for her right ankle plantar and calcaneal spurring

22 which included prescriptions for pain medication, but no evidence that she received physical

23 therapy or injections, used a brace, or had surgery in her right ankle. (AR 28).

24 Conservative treatment is a proper basis to find complaints of disabling symptoms not

25 credible. Tommasetti, 553 F.3d at 1039-40; Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007)

26 (“We have previously indicated that evidence of ‘conservative treatment’ is sufficient to discount

27 a claimant’s testimony regarding severity of an impairment.”). See Vue Yang v. Comm’r of Soc.

1 | plaintiff who received nonsteroidal anti-inflammatory medication, a walking boot, and did not

2 || require a cane constituted conservative treatment); Gee v. Comm’r of Soc. Sec., No. 2:16-cv-

3 | 00124-MKD, 2017 WL 3749810, at *4 (E.D. Wash. Aug. 30, 2017) (finding treatment for plantar

4 | fasciitis through anti-inflammatories, and cortisone injections to constitute conservative

5 || treatment); Flores v. Colvin, No. 2:14-cv-00806-JCM-GWE, 2016 WL 742693, at *5-6 (D. Nev.

6 | Oct. 26, 2015) F&R adopted by 2016 WL 750550 (finding reported symptoms related to

7 | calcaneal spurs in both feet to be contradicted by conservative treatment despite plaintiff

8 | attempting physical therapy, injections, and ultimately surgery in 2012, since Plaintiff

9 | sporadically sought treatment after surgery).

10 In sum, the ALJ properly discounted Plaintiff’s credibility on the grounds that it was

11 | inconsistent with objective medical findings and Plaintiffs conservative medical treatment.

12 | IV. Conclusion and Order

13 Accordingly, for the foregoing reasons it is ORDERED:

14 1. Plaintiff's motion for summary judgment (Doc. 18) is DENIED and the decision of the

15 Commissioner of Social Security is AFFIRMED.

16 2. The Clerk is directed to enter judgment in favor of the Commissioner of Social Security,

17 terminate any pending deadlines, and close this case.

18 | IT IS SO ORDERED.

| Dated: _ August 7, 2024 | Narn D Pr

20 UNITED STATES MAGISTRATE JUDGE

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