“Even where those activities suggest some 7 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the 8 extent that they contradict claims of a totally debilitating impairment.”
How later courts described this case
- “Even where those activities suggest some 7 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the 8 extent that they contradict claims of a totally debilitating impairment.”
- reminding that the opinion 13 of an examining physician is often afforded greater weight than that of a non-examining 14 physician
- physician’s opinion that a 13 claimant is “disabled” is “irrelevant at best” and “not entitled to special significance”
- stating 22 specific and legitimate reasons are given by “setting out a detailed and thorough 23 summary of the facts and conflicting clinical evidence, stating [an] interpretation thereof, 24 and making findings”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 TARA FAE ALEXANDER, Case No. 2:23-cv-1191-CSK
12 Plaintiff, ORDER ON PARTIES’ CROSS MOTIONS
FOR SUMMARY JUDGMENT
13 v.
(ECF Nos. 11, 15)
14 COMMISSIONER OF SOCIAL
SECURITY,
15
Defendant.
16
17 Plaintiff Tara Fae Alexander seeks judicial review of a final decision by Defendant
18 Commissioner of Social Security denying an application for disability insurance benefits
19 and supplemental security income.1 In the summary judgment motion, Plaintiff contends
20 the final decision of the Commissioner contains legal error and is not supported by
21 substantial evidence. Plaintiff seeks a remand for further proceedings. The
22 Commissioner opposes Plaintiff’s motion, filed a cross-motion for summary judgment,
23 and seeks affirmance.
24 For the reasons below, Plaintiff’s motion is DENIED, the Commissioner’s cross-
25 motion is GRANTED, and the final decision of the Administrative Law Judge (ALJ)
26 decision is AFFIRMED.
27
1 This action was referred to the magistrate judge under Local Rule 302(c)(15) and
28 proceeds on the consent of all parties. (ECF Nos. 6, 8, 9.)
1 I. SOCIAL SECURITY CASES: FRAMEWORK & FIVE-STEP ANALYSIS
2 The Social Security Act provides benefits for qualifying individuals unable to
3 “engage in any substantial gainful activity by reason of any medically determinable
4 physical or mental impairment[.]” 42 U.S.C. § 423(d)(1)(a). When an individual (the
5 “claimant”) seeks Social Security disability benefits, the process for administratively
6 reviewing the request can consist of several stages, including: (1) an initial determination
7 by the Social Security Administration; (2) reconsideration; (3) a hearing before an
8 Administrative Law Judge (“ALJ”); and (4) review of the ALJ’s determination by the
9 Social Security Appeals Council. 20 C.F.R. §§ 404.900(a), 416.1400(a).
10 At the hearing stage, the ALJ is to hear testimony from the claimant and other
11 witnesses, accept into evidence relevant documents, and issue a written decision based
12 on a preponderance of the evidence in the record. 20 C.F.R. §§ 404.929, 416.1429. In
13 evaluating a claimant’s eligibility, the ALJ is to apply the following five-step analysis:
14 Step One: Is the claimant engaged in substantial gainful activity? If yes,
the claimant is not disabled. If no, proceed to step two.
15 Step Two: Does the claimant have a “severe” impairment? If no, the
claimant is not disabled. If yes, proceed to step three.
16
Step Three: Does the claimant’s combination of impairments meet or
17 equal those listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1 (the “Listings”)?
If yes, the claimant is disabled. If no, proceed to step four.
18
Step Four: Is the claimant capable of performing past relevant work? If
19 yes, the claimant is not disabled. If no, proceed to step five.
20 Step Five: Does the claimant have the residual functional capacity to
perform any other work? If yes, the claimant is not disabled. If no, the
21 claimant is disabled.
22 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); 20 C.F.R. §§ 404.1520(a)(4),
23 416.920(a)(4). The burden of proof rests with the claimant through step four, and with
24 the Commissioner at step five. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). If the
25 ALJ finds a claimant not disabled, and the Social Security Appeals Council declines
26 review, the ALJ’s decision becomes the final decision of the Commissioner. Brewes v.
27 Comm’r, 682 F.3d 1157, 1161-62 (9th Cir. 2012) (noting the Appeals Council’s denial of
28 review is a non-final agency action). At that point, the claimant may seek judicial review
1 of the Commissioner’s final decision by a federal district court. 42 U.S.C. § 405(g).
2 The district court may enter a judgment affirming, modifying, or reversing the final
3 decision of the Commissioner. Id. (“Sentence Four” of § 405(g)). In seeking judicial
4 review, the plaintiff is responsible for raising points of error, and the Ninth Circuit has
5 repeatedly admonished that the court cannot manufacture arguments for the plaintiff.
6 See Mata v. Colvin, 2014 WL 5472784, at *4 (E.D. Cal, Oct. 28, 2014) (citing Indep.
7 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (stating that the court
8 should “review only issues with are argued specifically and distinctly,” and noting a party
9 who fails to raise and explain a claim of error waives it).
10 A district court may reverse the Commissioner’s denial of benefits only if the ALJ’s
11 decision contains legal error or is unsupported by substantial evidence. Ford, 950 F.3d.
12 at 1154. Substantial evidence is “more than a mere scintilla” but “less than a
13 preponderance,” i.e., “such relevant evidence as a reasonable mind might accept as
14 adequate to support a conclusion.” Id. (citations omitted). The court reviews evidence in
15 the record that both supports and detracts from the ALJ’s conclusion, but may not affirm
16 on a ground upon which the ALJ did not rely. Luther v. Berryhill, 891 F.3d 872, 875 (9th
17 Cir. 2018). The ALJ is responsible for resolving issues of credibility, conflicts in
18 testimony, and ambiguities in the record. Ford, 950 F.3d at 1154. The ALJ’s decision
19 must be upheld where the evidence is susceptible to more than one rational
20 interpretation, or where any error is harmless. Id.
21 II. FACTUAL BACKGROUND AND ALJ’S FIVE-STEP ANALYSIS
22 On January 11, 2017, Plaintiff applied for disability insurance benefits and
23 supplemental security income under Titles II and XVI of the Social Security Act, alleging
24 she has been disabled since January 1, 2012. Administrative Transcript (“AT”) 204-17
25 (available at ECF No. 10). Plaintiff claimed disability due to scoliosis, depression, “high
26 arches on feet,” and being a “[s]low learner.” See AT 65-66. Plaintiff’s applications were
27 denied initially and upon reconsideration; she sought review before an ALJ. AT 95-96,
28 125-26, 141. Plaintiff appeared with a representative at a June 14, 2018 hearing before
1 an ALJ, where Plaintiff testified about her impairments, Psychiatrist Dr. Richard Cohen
2 testified concerning Plaintiff’s mental limitations, and a vocational expert testified about
3 hypothetical available jobs. AT 33-64. On October 26, 2018, the ALJ issued a decision
4 finding Plaintiff was not disabled. AT 16-28.
5 Plaintiff filed a complaint in district court on September 16, 2019. AT 534-38. On
6 March 10, 2021, the court remanded Plaintiff’s case for further proceedings. See AT 546
7 (docket for Alexander v Saul, No. 1:19-cv-1208-SKO (E.D. Cal)). The court found the
8 ALJ properly resolved conflicts with Plaintiff’s symptom testimony and the medical
9 opinions and properly crafted Plaintiff’s residual functional capacity. Alexander v. Saul,
10 2021 U.S. Dist. LEXIS 46090, at *22-52 (E.D. Cal. Mar. 10, 2021). However, the court
11 held the ALJ erred at step five in finding Plaintiff could perform jobs requiring “simple,
12 routine, or repetitive work,” because this limitation is analogous to Level 2 Reasoning
13 and Plaintiff was assigned a residual functional capacity limiting her to “simple, one and
14 two-step tasks,” which is Level 1 Reasoning under the DOT. Id. at *52-53 (citing Zavalin
15 v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015); Dictionary of Occupational Titles (DOT),
16 App. C, § II, available at 1991 WL 688702). On May 3, 2021, the Social Security Appeals
17 Council remanded Plaintiff’s case to an ALJ “for further proceedings consistent with the
18 order of the court.” AT 580.
19 On May 25, 2022, Plaintiff appeared with a representative at a hearing before
20 another ALJ. AT 488-532. At this hearing, the ALJ accepted new evidence into the
21 record, and Plaintiff briefly reconfirmed her symptom testimony from the prior hearing.
22 AT 490-94. The ALJ then heard testimony from Dr. Nickerson Geneve, Doctor of
23 Osteopathic Medicine (D.O.), who testified about Plaintiff’s physical limitations,
24 Psychologist Dr. Richard Anderson, who testified about Plaintiff’s mental limitations, and
25 a vocational expert, who testified about hypothetical available jobs in the national
26 economy. AT 488-533. The ALJ then ordered an updated psychological consultative
27 exam of Plaintiff, which was conducted by Psychologist Dr. Carol A. Johnson-Schroetlin
28 on June 24, 2022. AT 532, 1359-68.
1 On November 1, 2022, the ALJ issued a decision finding Plaintiff was not
2 disabled. AT 462-78. At step one, the ALJ found Plaintiff had not engaged in substantial
3 gainful activity since January 1, 2012. AT 464. At step two, the ALJ determined Plaintiff
4 had the following severe impairments: curvature of the thoracic and lumbar spines, mild
5 spondylosis of the thoracic and lumbar spines, asthma, right carpal tunnel syndrome,
6 major depressive disorder, anxiety disorder, and learning disability. AT 465. At step
7 three, the ALJ found Plaintiff’s combination of impairments did not meet or medically
8 equal any Listing. AT 465 (citing 20 C.F.R Part 404, Subpart P, Appendix 1). Relevant
9 here, the ALJ considered Listings 12.04 (depression), 12.06 (anxiety), and 12.11
10 (neurodevelopmental), examining the “Paragraph B” criteria for these Listings.2 The ALJ
11 found Plaintiff moderately limited in understanding, remembering, or applying information
12 and in concentrating, persisting or maintaining pace; she also found Plaintiff mildly
13 limited in interacting with others and in adapting or managing oneself. AT 465-67. In
14 making these findings, the ALJ noted conflicts in the record between Plaintiff’s testimony,
15 the medical evidence, and the medical opinions in the record. See id.
16 The ALJ then found Plaintiff had the residual functional capacity to perform light
17 work (20 C.F.R. §§ 404.1567(b), 416.967(b)), except that Plaintiff:
18 [C]an lift and carry 20 pounds occasionally and 10 pounds
frequently; can stand, walk, and sit six hours in an eight-hour
19 workday; can occasionally climb stairs and ramps; can never
climb ladders, ropes, and scaffolds; can occasionally
20 balance, stoop, kneel, crouch, and crawl; can frequently
handle, fine finger, and feel with the right upper extremity;
21 can have occasional exposure to hazards (such as moving
dangerous machinery and unprotected heights); should avoid
22 concentrated exposure to cold temperature extremes,
wetness, and pulmonary irritants[;] and can perform simple
23 and repetitive tasks.
24
2 “Paragraph B” lists four categories for evaluating how a claimant’s mental disorders
25
limit their functioning: understanding, remembering, or applying information; interacting
26 with others; concentrating, persisting, or maintaining pace; and adapting or managing
oneself. To be found disabled under the Paragraph B categories, the mental disorder
27 must result in an “extreme” limitation of one, or “marked” limitation of two, of the four
areas of mental functioning. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00 Mental
28 Disorders, sub. A.2.b.
1 AT 467-68. In crafting this residual functional capacity, the ALJ stated she considered
2 Plaintiff’s symptom testimony, including Plaintiff’s disability reports from 2017 (AT 224-
3 30, 257-65, 268-72, 277-82) and Plaintiff’s testimony at the June 2018 hearing (AT 33-
4 64). AT 468. The ALJ stated she also considered the objective medical evidence, other
5 evidence, and medical opinions from February 2012 through March 2022. Id.
6 Evaluating the medical opinions on Plaintiff’s physical limitations, the ALJ gave
7 little weight to the opinion of Dr. Geneve, who opined (among other things) that Plaintiff
8 was limited to lifting and carrying 10 pounds occasionally and 5 pounds frequently, could
9 only stand and walk two hours in a workday, and might miss two days of work a month
10 due to her pain. AT 474-75 (citing AT 504-05, 509). The ALJ found this opinion
11 unsupported by the evidence cited by Dr. Geneve and inconsistent with the record. AT
12 475. Instead, the ALJ credited the opinions of two examining physicians (Dr. Dale H. Van
13 Kirk, M.D., and Dr. Arundati Halappa, M.D.) and two state-agency doctors (Dr. W.
14 Jackson, M.D., and Dr. E. Wong, M.D.) who reviewed Plaintiff’s application at the initial
15 and reconsideration stages. AT 474-75.
16 Evaluating the medical opinions on Plaintiff’s mental limitations, the ALJ gave little
17 weight to four opinions in the record. AT 474-75. Dr. Johnson-Schroetlin opined Plaintiff
18 was mildly-to-moderately limited in her ability to maintain regular attendance, work
19 consistently and without special supervision, complete a normal workday/week without
20 psychiatric interruptions, accept instruction from supervisors, and interact with co-
21 workers and the public; and was moderately limited in her ability to deal with work stress.
22 AT 1368. Dr. Cohen opined Plaintiff had moderate-to-marked limitations in utilizing and
23 applying information and in concentrating, persisting, and maintaining pace; and had
24 moderate limitations in interacting with others and adapting and managing herself, the
25 latter of which included a “marginal ability” to adapt to the stress of work. AT 57-58.
26 Licensed Clinical Social Worker (“LCSW”) Araceli Vigil, who treated Plaintiff in 2018,
27 opined Plaintiff was moderately limited in her ability to receive and carry out instructions
28 from supervisors and withstand the stress and pressure of a workday. AT 403. The ALJ
1 found each of these opinions unsupported by, and inconsistent with, the “relatively
2 unremarkable examination findings” in the record. AT 474. The ALJ also found Dr.
3 Johnson-Schroetlin’s opinion internally inconsistent and Dr. Cohen’s opinion too reliant
4 on Plaintiff’s subjective statements. AT 474-75. Finally, the ALJ noted a May 6, 2021
5 treatment record from Dr. Barbara Huynh, who stated Plaintiff had “significant
6 impairment occupationally and socially,” could only “do the bare minimum activities of
7 daily living,” and “will not be able to perform meaningful work.” AT 867. The ALJ gave
8 this opinion little weight because it spoke to the ultimate issue of disability and otherwise
9 did not apply Social Security law and regulations. AT 475. In contrast to these four
10 opinions, the ALJ favored the opinions of an examining psychologist (Dr. David
11 Pingitore, Ph.D) and the two state-agency doctors (Dr. G. Ikawa, M.D. and Dr. R.
12 Solomon, M.D.) who reviewed Plaintiff’s application at the initial and reconsideration
13 stages. AT 474.
14 Based on the residual functional capacity, the ALJ determined at step four that
15 Plaintiff was incapable of performing past relevant work. AT 476. However, at step five,
16 the ALJ found Plaintiff capable of performing other jobs in the national economy,
17 including: (i) office helper, light, SVP 2, reasoning level 2, with 10,516 jobs nationally;
18 (ii) housekeeping cleaner, light, reasoning level 1, with 194,495 jobs nationally; and
19 (iii) cafeteria attendant, light, SVP 2, reasoning level 2, with 22,125 jobs nationally.3 AT
20 477. Thus, the ALJ found Plaintiff not disabled during the relevant period. AT 477.
21 On May 4, 2023, the Appeals Council rejected Plaintiff’s appeal. AT 446-49.
22 Plaintiff filed this action requesting judicial review of the Commissioner’s final decision,
23
3 “Light” in the ALJ’s step-five determination references light work, as defined by
24 20 C.F.R. §§ 404.1567(b) and 416.967(b).
“SVP” is “specific vocational preparation,” defined as “the amount of lapsed time
25
required by a typical worker to learn the techniques, acquire the information, and
26 develop the facility needed for average performance in a specific job-worker situation.”
See DOT, App. C, § II, available at 1991 WL 688702.
27 Reasoning Levels in the Social Security context range from Level One (simplest)
to Level Six (most complex). See Rounds v Comm’r, 807 F.3d 996, 1003 (9th Cir. 2015)
28 (citing DOT, App. C, § III, 1991 WL 688702).
1 and the parties filed cross-motions for summary judgment. (ECF Nos. 1, 11, 15.)
2 III. ISSUES PRESENTED FOR REVIEW
3 Plaintiff contends the ALJ erred by failing to provide: (A) specific and legitimate
4 reasons for discounting the medical opinions of Dr. Geneve, Dr. Johnson-Schroetlin, Dr.
5 Cohen, LCSW Vigil, and Dr. Huynh; and (B) clear and convincing reasons to discount
6 the more severe aspects of Plaintiff’s symptom testimony. Plaintiff seeks a remand for
7 further proceedings. (ECF Nos. 11, 16.)
8 The Commissioner argues the ALJ: (A) appropriately resolved conflicts in the
9 record regarding the medical opinions; and (B) properly rejected the more severe
10 aspects of Plaintiff’s symptom testimony. Thus, the Commissioner contends the decision
11 as a whole is supported by substantial evidence and should be affirmed. (ECF No. 15.)
12 IV. DISCUSSION
13 A. Medical Opinion Evidence
14 1. Legal Standards
15 For cases filed before March 27, 2017, the ALJ is required to consider a number
16 of factors in deciding the weight given to any medical opinion. These include the
17 examining relationship, the length of the treatment relationship and frequency of
18 examination, the amount of support detailed in the opinion, the consistency of the
19 opinion with the record, specialization of the medical professional, and any other factors
20 deemed relevant. 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). Additionally, in the
21 Ninth Circuit, the weight afforded a medical opinion depends on whether it was proffered
22 by a treating, examining, or non-examining professional. Holohan v. Massanari, 246 F.3d
23 1195, 1201-02 (9th Cir. 2001); Lester, 81 F.3d at 830. This also depends on whether the
24 opinion was offered from an acceptable or non-acceptable medical source. Molina v.
25 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
26 For acceptable medical sources in pre-March 27, 2017 cases, a treating
27 physician’s opinion carries more weight than an examining physician’s opinion, and an
28 examining physician’s opinion carries more weight than a non-examining physician’s
1 opinion. Holohan, 246 F.3d at 1202. However, if a treating professional’s opinion is
2 contradicted by an examining professional’s opinion with support in the record, the ALJ
3 is to resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing
4 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The opinion of a non-
5 examining professional, by itself, is insufficient to reject the opinion of a treating or
6 examining professional. Lester, 81 F.3d at 831; but see Tonapetyan v. Halter, 242 F.3d
7 1144, 1149 (9th Cir. 2001) (“Although the contrary opinion of a non-examining medical
8 expert does not alone constitute a specific, legitimate reason for rejecting a treating or
9 examining physician’s opinion, it may constitute substantial evidence when it is
10 consistent with other independent evidence in the record.”).
11 In order to evaluate whether an ALJ properly rejected a contradicted opinion from
12 an acceptable medical source, the court considers whether other contradictory opinions
13 are in the record and whether clinical findings support the opinions. Lester, 81 F.3d at
14 831. Under the pre-March 27, 2017 framework, an ALJ must provide “specific and
15 legitimate” reasons to reject the contradicted opinion of a treating or examining doctor.
16 Id. at 830-31. An ALJ provides specific and legitimate reasons by “setting out a detailed
17 and thorough summary of the facts and conflicting clinical evidence, stating [an]
18 interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751. However, the
19 ALJ is not required to give a medical opinion any weight if it is conclusory or supported
20 by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999).
21 In contrast to acceptable medical sources, the evaluative framework differs for
22 opinions from “medical sources who are not acceptable medical sources,” such as nurse
23 practitioners, physician’s assistants, chiropractors, audiologists, therapists, and licensed
24 clinical social workers. 20 C.F.R. §§ 404.1527(f), 416.927(f); see also Molina, 674 F.3d
25 at 1111. Even though these sources are afforded less weight in Social Security cases
26 filed before March 27, 2017, the ALJ is still required to consider the same factors as with
27 acceptable medical sources. See 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6); see
28 also Soc. Sec. Ruling (SSR) 06-03p, available at 2006 WL 2329939, at *3 (noting these
1 professionals “have increasingly assumed a greater percentage of the treatment and
2 evaluation functions previously handled primarily by physicians and psychologists,” and
3 so their opinions are still relevant in determining a claimant’s severe impairments and
4 ability to work). However, an ALJ need only articulate reasons “germane to the witness”
5 when rejecting these sources’ opinions. Molina, 674 F.3d at 1111, see also Delegans v.
6 Berryhill, 766 F. App’x 477, 480 (9th Cir. 2019) (in a case filed prior to March 27, 2017,
7 finding no error in the ALJ’s rejection of testimony from a licensed clinical social worker
8 because the ALJ provided germane reasons for discounting the opinion).
9 Finally, the ALJ is not required to give any special significance to a medical
10 source’s statement that a claimant is “disabled” or “unable to work,” as this is an issue
11 reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1); see also
12 Boardman v. Astrue, 286 F. App’x 397, 399 (9th Cir. 2008) (physician’s opinion that a
13 claimant is “disabled” is “irrelevant at best” and “not entitled to special significance”).
14 2. Plaintiff’s Physical Limitations
15 Plaintiff’s first point of error focuses on the ALJ’s evaluation of the opinion from
16 Dr. Nickerson Geneve, D.O., stated at the May 25, 2022 administrative hearing. AT 499-
17 509. Because Dr. Geneve’s opinion was contradicted by four other medical opinions,
18 each with their own support in the record, the Court examines whether the ALJ provided
19 “specific and legitimate” reasons to reject Dr. Geneve’s opined limitations. See Lester,
20 81 F.3d at 831. The Court focuses on the lift/carry, sit/stand, and attendance limitations,
21 as these are the only limitations opined by Dr. Geneve that differed from what was
22 adopted in the residual functional capacity.
23 The ALJ gave “significant weight” to the opinions of two examining doctors (Dr.
24 Van Kirk and Dr. Halappa) and two reviewing physicians (Drs. Jackson and Wong), each
25 of whom opined lift/carry, sit/stand, and no attendance limitations that aligned with the
26 residual functional capacity (six-hour stand/walk limitation, lift/carry limits of 20 pounds
27 occasionally and 10 pounds frequently). See AT 474. This included the opinion of Dr.
28 Van Kirk, which the ALJ found supported by the doctor’s May 25, 2016 examination and
1 consistent with other evidence in the record “as discussed above.” AT 474 (citing AT
2 320-24). This also included the May 29, 2018 opinion of Dr. Halappa, which the ALJ
3 found supported and consistent with the doctor’s “relatively unremarkable findings on
4 examination . . . as previously discussed.” AT 474 (citing AT 402). As for the opinions of
5 Drs. Jackson and Wong, the ALJ found them supported by Dr. Kirk’s exam and
6 consistent with the record “as described above.” AT 474 (citing AT 73-75 and 104-06).
7 Preceding the ALJ’s discussion of these medical opinions, the ALJ extensively
8 reviewed and summarized the medical evidence from 2012 to 2022. AT 468-75. This
9 included noting Plaintiff was “ambulatory without assistance” after a November 2013
10 emergency room visit and otherwise had no records of medical appointments until May
11 2016. AT 468-69 (citing AT 307). At a May 2016 exam, Dr. Van Kirk noted Plaintiff had
12 “no gait abnormalities, no assistive device, full cervical range of motion without pain or
13 difficulty, a slight scoliotic curve apex to the left from the mid-thoracic area to the mid-
14 lumbar spine area, pain in the mid-lumbar spine area radiating to the waist area and into
15 the buttocks, decreased range of motion of the dorsolumbar spine[, and] full range of
16 motion of the hips, knees, ankles and feet, shoulders, elbows, wrists, and fingers and
17 thumbs (without pain or difficulty).” AT 469 (citing AT 321-22). Dr. Halappa’s January
18 2017 treatment notes indicate Plaintiff had some tenderness and moderate pain in the
19 spine, but normal gait and reflexes. AT 469 (citing AT 327). The ALJ noted x-rays
20 confirmed the diagnoses of kyphosis, mild degenerative spondylosis, scoliosis, and facet
21 arthropathy of the spine at L5-S1. AT 470 (citing AT 340-41).
22 From there, the ALJ cited medical records from 2017-2018 showing a varied
23 picture of Plaintiff’s physical limitations. AT 470 (citing AT 378 (attendance at physical
24 therapy in March 2017), AT 360 (March 2017 exam showing reduced range of motion in
25 the spine but normal gate), AT 366 (March 2017 x-ray showing stable scoliosis and facet
26 arthropathy), AT 406 (October 2017 record showing muscle spasms in the back, but
27 normal balance and gait), AT 422 (April 2018 findings of excessive lordosis and
28 scoliosis, limited lumbar range of motion, but normal strength and negative straight leg
1 raising)). The ALJ also cited records from late 2018 through 2022 showing a similarly
2 varied picture. AT 471-73 (citing AT 1220-22 (November 2018 exam showing abnormal
3 lumbar range of motion, positive straight leg raising, sitting and supine, bilaterally,
4 positive slump tests bilaterally, 4/5 strength in ankle dorsiflexion and hip abduction
5 bilaterally but otherwise 5/5 strength, and tenderness to palpation), AT 1130 (February
6 2019 MRI showing some deteriorating of the spine but similar mild findings as previous),
7 AT 1086 (September 2019 severely reduced thoracic and lumbar range of motion but
8 normal gait), AT 1153 (December 2020 abnormal lumbar range of motion and
9 inconsistent ankle and hip strength, but negative straight leg raising, normal gait,
10 reflexes, and sensation, and “otherwise 5/5 strength throughout”), AT 978 (January 2021
11 normal balance and gait), AT 1147 (March 2021 decreased lumbar range of motion and
12 tenderness, but normal reflexes and sensation and 5/5 strength in legs), AT 893 (June
13 2021 treatment record showing tenderness and scoliosis in spine but no range of motion
14 issues), AT 1344 (March 2022 physical therapy for back pain)).
15 In contrast to the medical opinions given “significant weight” by the ALJ, Dr.
16 Geneve opined that Plaintiff could lift/carry 10 pounds occasionally and 5 pounds
17 frequently, stand/walk for two hours, and might miss two days a month due to her pain.
18 AT 504-05, 509. The ALJ gave Dr. Geneve’s opinion “little weight,” finding the lift/carry,
19 sit/stand, and attendance limitations “not supported by the evidence upon which [the
20 doctor] relied (such as the examination and treatment records explicitly referenced), [and
21 not] consistent with the other evidence in the record (including the absence of persistent
22 and significant abnormalities on examination), as discussed above.” AT 475. Plaintiff
23 contends this evaluation of Dr. Geneve’s opinion is conclusory, fails to elaborate the
24 ALJ’s rationale, and fails to cite supporting evidence. (ECF No. 11 at 17.) However, as
25 the Court has just noted, the ALJ provided a “detailed and thorough summary of the
26 facts and conflicting clinical evidence” prior to evaluating the medical opinions. See
27 Magallanes, 881 F.2d at 751. The ALJ sufficiently connected this evidence to her
28 findings on Dr. Geneve’s opinion by citing the “examination and treatment records [Dr.
1 Geneve] explicitly referenced” and the “other evidence in the record (including the
2 absence of persistent and significant abnormalities on examination), as discussed
3 above.” AT 475. The ALJ was not required to re-summarize or repeat her seven-page
4 summary of the evidence in the section of the ALJ’s decision weighing Dr. Geneve’s
5 opinion. See Magallanes, 881 F.2d at 751.
6 Plaintiff also contends there is other medical evidence in the record that supports
7 Dr. Geneve’s more restrictive residual functional capacity. The ALJ did not ignore this
8 medical evidence, and in fact cited to some of the same records Plaintiff highlights. (ECF
9 No. 11 at 16-17.) Thus, the Court finds the ALJ’s decision did not “cherry pick” the record
10 by ignoring probative evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir.
11 2014). Instead, the decision demonstrates the ALJ fulfilled her duty to address conflicts
12 in the record; the Court has no authority to reweigh Plaintiff’s cited evidence to arrive at a
13 different conclusion. See Ford, 950 F.3d at 1154.
14 In sum, the decision demonstrates that while Plaintiff’s severe physical
15 impairments cause her to be limited in her ability to sit, stand, lift, and carry, they were
16 not as limiting as Dr. Geneve opined. The ALJ provided a detailed and thorough
17 summary of the supporting evidence, gave “significant weight” to the opinions of Dr. Van
18 Kirk, Dr. Halappa, and the two state-agency consulting physicians because these
19 opinions were consistent with the evidence, and found Dr. Geneve’s opinion inconsistent
20 with the same evidence. The ALJ’s discounting of Dr. Geneve’s opinion meets the Ninth
21 Circuit’s “specific and legitimate reasons” test. See Magallanes, 881 F.2d at 751 (stating
22 specific and legitimate reasons are given by “setting out a detailed and thorough
23 summary of the facts and conflicting clinical evidence, stating [an] interpretation thereof,
24 and making findings”); Tonapetyan, 242 F.3d at 1149 (reminding that a contrary opinion
25 of a non-examining medical expert can be included in the rationale for discounting a
26 treating or examining physician’s opinion if “consistent with other independent evidence
27 in the record”); see also 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (allowing an ALJ to
28 give a medical opinion less weight if it is less consistent with the record as a whole).
1 3. Plaintiff’s Mental Limitations
2 Plaintiff’s next four points of error focus on the ALJ’s findings on Plaintiff’s mental
3 limitations. The ALJ found Plaintiff had the severe mental impairments of “major
4 depressive disorder, anxiety disorder, and learning disability.” AT 464. The ALJ found
5 Plaintiff moderately limited in the Paragraph B categories of understanding,
6 remembering, or applying information and concentrating, persisting or maintaining pace,
7 and mildly limited in the Paragraph B categories of interacting with others and adapting
8 or managing oneself. AT 465-67. Because Plaintiff did not have two Paragraph B
9 categories with “marked” limitations, or one category with “extreme” limitations, the ALJ
10 found Plaintiff did not meet any listing at step three, including Listing 12.06 (anxiety). AT
11 464-65. At the residual functional capacity stage, the only mental limitation the ALJ
12 assigned was one to “simple and repetitive tasks,” which is similar to Level 2 Reasoning.
13 AT 468. The ALJ then found Plaintiff could perform jobs in the national economy
14 requiring, among other things, Levels 1 and 2 reasoning.
15 In making these findings, the ALJ noted the many conflicts in the record
16 concerning Plaintiff’s mental impairments. AT 465-76. This included Plaintiff’s January
17 2017 exam with LCSW Vigil, who noted Plaintiff’s impaired ability to make decisions but
18 who otherwise reported normal mental exam results. AT 470 (citing AT 337-38). This
19 also included the ALJ’s citation to a November 2017 treatment record showing anxiety
20 but normal affect (AT 406); March 2018 records noting depression, anxiety, and an
21 impaired ability to make decisions, but normal cognition and average intelligence (AT
22 417); a July 2020 treatment record noting anxiety but otherwise appropriate mood, no
23 memory deficits, normal insight and judgment, normal attention and concentration (AT
24 1009); a May 2021 treatment record as mentally “stable” (AT 883); a September 2021
25 treatment note with normal findings (AT 1162); exams from January and April 2022
26 showing “okay” mood and otherwise normal thought processes, unremarkable memory,
27 and intact attention, concentration, insight, judgment, and impulse control (AT 1274, AT
28 1308). Finally, this included results from Dr. Johnson-Schroetlin’s June 2022 exam,
1 which noted Plaintiff’s slightly impaired attention, concentration, and knowledge;
2 impaired recent memory, insight, and judgment; adequate ability to abstract; but
3 otherwise normal presentation of her mental faculties. AT 473 (citing AT 1363-64).
4 Ultimately, the ALJ relied on the opinions of one examining psychologist and two
5 reviewing psychologists. This included the opinion from Dr. Pingitore, who performed a
6 psychological consultative examination of Plaintiff in March 2016, and the opinions of the
7 two state-agency doctors who reviewed Plaintiff’s application at the initial and
8 reconsideration stages. AT 475 (citing AT 72-77, 103-07, 315-17). The ALJ assigned
9 these opinions “significant weight,” finding Dr. Pingitore’s opinion “supported by his
10 relatively unremarkable findings on examination and consistent with the other evidence
11 in the record, as discussed earlier,” and finding the two state-agency doctors’ opinions
12 “supported by the evidence upon which [they] relied (such as Dr. Pingitore’s findings and
13 opinions and the treatment records and claimant activities referenced), as previously
14 described.” AT 475. The ALJ crafted Plaintiff’s residual functional capacity in alignment
15 with these doctors’ recommendations with one exception: Dr. Pingitore assigned a
16 mental limitation of one- or two-step instructions (i.e., Reasoning Level 1), but the ALJ
17 adopted the two state-agency doctors’ limitation of simple and repetitive tasks (i.e.,
18 Reasoning Level 2). See id.
19 Set against this backdrop, the Court examines whether the ALJ appropriately
20 resolved the conflicts in the medical opinions from: (a) Dr. Johnson-Schroetlin,
21 (b) Dr. Cohen, (c) LCSW Vigil, and (d) Dr. Huynh.
22 a. Psychologist Dr. Johnson-Schroetlin
23 On June 24, 2022, Plaintiff attended a consultative examination performed by
24 psychologist Dr. Carol A. Johnson-Schroetlin, who opined Plaintiff was moderately and
25 mildly impaired in some areas and not at all in others. AT 1359-60, 1368. Relevant here,
26 Dr. Johnson-Schroetlin found Plaintiff mildly-to-moderately limited in her ability to
27 maintain regular attendance, work consistently and without special supervision, complete
28 a normal workday/week without psychiatric interruptions, accept instruction from
1 supervisors, and interact with co-workers and the public; and moderately limited in her
2 ability to deal with work stress. AT 1368. However, the ALJ gave “little weight” to this
3 opinion, finding it “internally inconsistent, not fully supported by her relatively
4 unremarkable findings on examination, and not consistent with the other evidence in the
5 record, as discussed in detail above.” AT 474.
6 Plaintiff contends this rationale is neither specific nor legitimate, citing Dr.
7 Johnson-Schroetlin’s exam results showing Plaintiff’s low scores in comprehension,
8 reasoning, memory, and IQ. See AT 1364-66. Plaintiff also points to other treatment
9 records where she exhibited behaviors stemming from her anxiety and depression. (See
10 ECF No. 11 at 23 (citing AT 337-38, 354, 409, 417, 434, 1283, 1291).) However, as
11 noted by the Court above, the ALJ did not ignore this evidence cited by Plaintiff. In fact,
12 these and similar records were the basis for the ALJ’s assignment of the mild and
13 moderate limitations at step three and the limitation in the residual functional capacity to
14 simple and repetitive tasks. AT 468. Thus, this is not a case of the ALJ “cherry picking”
15 the record. See Ghanim, 763 F.3d at 116 (finding error where the ALJ’s decision did not
16 account for record “as a whole,” but rather relied on “cherry-picked” evidence).
17 Plaintiff also contends the ALJ’s conclusion on Dr. Johnson-Schroetlin’s opinion is
18 conclusory and unsupported. However, as described above, the ALJ provided a
19 “detailed and thorough summary of the facts and conflicting clinical evidence” prior to
20 evaluating Dr. Johnson-Schroetlin’s opinion. See Magallanes, 881 F.2d at 751. The ALJ
21 sufficiently connected this evidence to her findings on Dr. Johnson-Schroetlin’s opinion
22 by stating it was “not consistent with the other evidence in the record, as discussed in
23 detail above.” AT 475. The ALJ was not required to re-summarize or repeat her seven-
24 page summary of the evidence in the paragraph giving Dr. Johnson-Schroetlin’s opinion
25 little weight. See Magallanes, 881 F.2d at 751.
26 Finally, Plaintiff disputes the ALJ’s conclusion that Dr. Johnson-Schroetlin’s
27 opinion was internally consistent. However, a review of the doctor’s two reports
28 submitted on June 24, 2022 shows this to be the case for many of the Paragraph B
1 categories. For example, Dr. Johnson-Schroetlin opined in her written report that Plaintiff
2 was moderately limited in understanding, remembering, or applying information, but
3 checked boxes on a parallel form opining Plaintiff had no impairments with
4 understanding, remembering, or carrying out simple instructions. Compare AT 1359, with
5 AT 1368. Similarly, Dr. Johnson-Schroetlin wrote that Plaintiff was mildly-to-moderately
6 limited in her ability to interact with others but checked the “none” boxes for this
7 category, and wrote that Plaintiff had moderate limitations in her ability to deal with work
8 stress but checked the mild box for “[r]espond appropriately to usual work situations and
9 to changes in a routine work setting.” See id. Plaintiff is correct that other categories from
10 these two documents did not conflict, but the ALJ was within her authority to resolve the
11 internal inconsistencies present in Dr. Johnson-Schroetlin’s reports by comparing those
12 limitations with the evidence in the record. See Ford, 950 F.3d at 1154.
13 b. Psychologist Dr. Richard Cohen
14 At the June 14, 2018 hearing, Dr. Richard Cohen stated he reviewed Plaintiff’s
15 medical records available at the time (Exhibits 1A-13F) but did not examine Plaintiff
16 personally. AT 56. Dr. Cohen opined Plaintiff had moderate-to-marked limitations in
17 utilizing and applying information and in concentrating, persisting, and maintaining pace;
18 and had moderate limitations in interacting with others and adapting and managing
19 herself, the latter of which included a “marginal ability” to adapt to the stress of work. AT
20 57-58. The ALJ gave “little weight” to Dr Cohen’s opinion, finding it “relie[d] on the
21 claimant’s subjective statements,” was “not supported by the evidence upon which he
22 relied (such as Dr. Pingitore’s examination findings and opinion, the state-agency
23 doctors’ opinions, or the treatment records cited),” and was “inconsistent with the other
24 evidence in the record (reflecting relatively unremarkable findings on mental status
25 examination throughout the period in question), as described above.” AT 475.
26 Plaintiff contends this rationale is neither specific nor legitimate, citing medical
27 records consistent with Dr. Cohen’s report that were available in 2018, as well as later-
28 generated records like Dr. Johnson-Schroetlin’s 2022 exam results. (ECF No. 11 at 20.)
1 Much for the same reasons discussed above regarding Dr. Johnson-Schroetlin’s opinion,
2 the Court rejects Plaintiff’s argument here. The ALJ did not ignore probative evidence
3 supporting Plaintiff’s arguments, as this evidence was the basis for the ALJ’s assignment
4 of the mild and moderate limitations at step three and the limitation to simple and
5 repetitive tasks in the residual functional capacity. See Ghanim, 763 F.3d at 116. The
6 ALJ provided a “detailed and thorough summary of the facts and conflicting clinical
7 evidence” prior to evaluating Dr. Cohen’s opinion, as described by the Court above. See
8 Magallanes, 881 F.2d at 751. The ALJ sufficiently connected this evidence to her
9 findings on Dr. Cohen’s opinion by stating it was “inconsistent with the other evidence in
10 the record (reflecting relatively unremarkable findings on mental status examination
11 throughout the period in question), as described above.” AT 475. The ALJ was not
12 required to re-summarize or repeat her seven-page summary of the evidence in the
13 paragraph giving Dr. Cohen’s opinion little weight. See Magallanes, 881 F.2d at 751.
14 Additionally, Plaintiff argues the ALJ’s rationale is flawed because Dr. Cohen
15 never indicated he relied on Plaintiff’s symptom statements, and even if he did,
16 psychiatric evaluations by their nature rely on self-reports. (ECF No. 11 at 19 (citing
17 Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“Psychiatric evaluations may
18 appear subjective, especially compared to evaluation in other medical fields. Diagnoses
19 will always depend in part on the patient’s self-report, as well as on the clinician’s
20 observations of the patient. But such is the nature of psychiatry.”)).) While true Dr.
21 Cohen did not explicitly describe Plaintiff’s self-reports during his testimony, he generally
22 reported he had reviewed the record between Exhibits 1A-13F, which were the records
23 available at the time of the 2018 hearing. AT 55-56. A review of these records indicates
24 some were, in fact, based on Plaintiff’s self-reports. For example, Dr. Cohen referenced
25 a record from January 30, 2017 where Plaintiff scored a low score of 19 on a PHQ-9,
26 which rates for depression. AT 57 (citing AT 336); see also Lim v. Saul, 2020 U.S. Dist.
27 LEXIS 89815, at *25 (N.D. Cal. May 20, 2020) (noting the PHQ-9 questionnaire reflects
28 a patient’s reported self-assessment). Dr. Cohen also explicitly noted Plaintiff’s
1 experience applying for a job, which was relayed to Dr. Pingitore during the 2016
2 psychological consultative exam Dr. Pingitore performed. See AT 57, 316. Thus, the ALJ
3 was not incorrect to note that some of Dr. Cohen’s opinion was based on Plaintiff’s self-
4 reporting. Further, ALJs are permitted to give less weight to those portions of a medical
5 source’s opinion that are based on the plaintiff’s subjective reports, where those reports
6 were also properly discounted by the ALJ. See Fair v. Bowen, 885 F.2d 597, 605 (9th
7 Cir. 1989) (holding that physician’s opinion may be disregarded if it is based on
8 subjective complaints that were properly discredited). Here, the ALJ noted Dr. Cohen’s
9 partial reliance on Plaintiff’s self-reports in order to resolve the conflict between Dr.
10 Cohen’s opined limitations and those of, for example, Dr. Pingitore. AT 475. The Court
11 finds no error in the ALJ’s conclusions, as these conflicts are for the ALJ to resolve. See
12 Ford, 950 F.3d at 1154; see also Andrews, 53 F.3d at 1041 (reminding that the opinion
13 of an examining physician is often afforded greater weight than that of a non-examining
14 physician). The Court has no authority to reweigh the evidence to arrive at a different
15 conclusion. See Ford, 950 F.3d at 1154.
16 c. Licensed Clinical Social Worker Vigil
17 On June 5, 2018, LCSW Vigil opined Plaintiff was moderately limited in her ability
18 to maintain concentration and attention; withstand the stress and pressures associated
19 with working; understand, remember, and carry out simple and complex instructions; and
20 receive and carry out instructions from supervisors; and mildly limited in her ability to
21 deal with the public and relate and interact with co-workers. AT 403. However, the ALJ
22 gave “little weight” to this opinion, finding it “not supported by the treating social worker’s
23 relatively unremarkable examination findings (such as preoccupations and ruminations
24 generally but no other abnormalities), as detailed above, or consistent with the other
25 evidence in the record (such as Dr. Pingitore’s findings and opinion and the state-agency
26 opinions), as discussed above.” AT 474. Like with Dr. Johnson-Schroetlin and Dr.
27 Cohen, Plaintiff contends this rationale is neither specific nor legitimate because it is
28 conclusory, fails to cite supporting evidence, and other evidence in the record supported
1 LCSW Vigil’s limitations. (ECF No. 11 at 27-29.)
2 First, Plaintiff is incorrect that the ALJ was required to provide specific and
3 legitimate reasons for discounting LCSW Vigil’s opinion. Plaintiff’s claims for benefits
4 were filed prior to March 27, 2017, and so the regulations and associated case law
5 regarding acceptable and non-acceptable medical sources apply to Plaintiff’s case. See
6 Molina, 674 F.3d at 1111; Delegans, 766 F. App’x at 480. Thus, while the ALJ was
7 required to “consider” LCSW Vigil’s opinion, she only needed to provide “germane”
8 reasons to discount it. 20 C.F.R. §§ 404.1527(f), 416.927(f); Molina, 674 F.3d at 1111.
9 Second, while the ALJ gave LCSW Vigil’s opinion “little weight,” a comparison of
10 the social worker’s opinion to the ALJ’s Paragraph B findings shows there is little
11 difference between them. LCSW Vigil opined Plaintiff was moderately limited in
12 maintaining concentration and attention, and in understanding, remembering, and
13 carrying out simple and complex instructions, and mildly limited in dealing with the public
14 and relating and interacting with co-workers. AT 403. The ALJ assigned these very
15 limitations at step three. AT 465-67. The only differences between LCSW Vigil’s opinion
16 and the Paragraph B categories were in Plaintiff’s ability to withstand the stress and
17 pressures associated with working, and to receive and carry out instructions from
18 supervisors. Compare AT 403 (LCSW Vigil’s assignments of “moderate” limitations in
19 these two categories), with AT 466-67 (ALJ’s assignment of “mild” limitations in Plaintiff’s
20 ability to adapt and manage herself and to interact with others).
21 Against this backdrop, the Court finds no error in the ALJ’s resolution of the
22 conflicting portions of LCSW Vigil’s opinion, similar to the Court’s analysis of Dr.
23 Johnson-Schroetlin’s and Dr. Cohen’s opinions. The ALJ noted LCSW’s Vigil’s “relatively
24 unremarkable examination findings” and inconsistency of Vigil’s opinion with other
25 evidence “such as Dr. Pingitore’s findings and opinion and the state-agency opinions),
26 as discussed above.” AT 474. This rationale, accompanied by the ALJ’s extensive
27 discussion of the probative evidence in the preceding seven pages, is sufficiently
28 germane to LCSW Vigil’s opinion, and thus the ALJ did not err in discounting it. 20
1 C.F.R. §§ 404.1527(f), 416.927(f); Molina, 674 F.3d at 1111. Further, the ALJ was
2 allowed to reject Vigil’s opinion because it was brief, conclusory, and inadequately
3 supported by clinical findings. Meanel, 172 F.3d at 1114. Nor did the ALJ ignore
4 probative evidence when resolving the conflict between LCSW Vigil’s opinion and the
5 other evidence in the record. See Ghanim, 763 F.3d at 116. In fact, the evidence cited
6 by Plaintiff was the basis for the ALJ’s assignment of the mild and moderate limitations
7 at step three and the limitation to simple and repetitive tasks in the residual functional
8 capacity.
9 d. Dr. Barbara Huynh, D.O.,
10 After a telemedicine appointment on May 3, 2021, Dr. Huynh completed a form for
11 Stanislaus County requesting information “needed to evaluate eligibility for General
12 Assistance.” AT 867; see also AT 881. On this form, Dr. Huynh noted Plaintiff’s
13 diagnoses of depression, anxiety, and unspecified intellectual disabilities, checking yes
14 boxes under permanent disability and inability to work full or part time. Id. Under
15 “Limitations,” Dr. Huynh wrote Plaintiff “has significant impairment occupationally and
16 socially,” can only do the bare minimum activities of daily living,” and “will not be able to
17 perform meaningful work.” Id. The ALJ gave “little weight” to this opinion, finding it
18 “infringe[d] upon the discretion of the Commissioner and [did] not explicitly apply the
19 Social Security laws and regulations that govern disability.” AT 475.
20 Plaintiff contends this rationale is neither specific nor legitimate, arguing that
21 because Dr. Huynh’s opinion relates to the nature and severity of Plaintiff’s mental
22 impairments, the ALJ should have articulated a rationale for why it was rejected. The
23 Court disagrees. First, the ALJ was not required to comment on any statement that
24 Plaintiff was disabled, as the ultimate issue of disability is reserved to the Commissioner.
25 20 C.F.R. § 404.1527(d); Boardman, 286 F. App’x at 399. Second, the ALJ is permitted
26 to give opinions little to no weight if they are conclusory or supported by minimal clinical
27 findings. See Meanel, 172 F.3d at 1114. Dr. Huynh’s opinions that Plaintiff “can only do
28 the bare minimum activities of daily living” and has “significant impairment occupationally
1 and socially” are just that: conclusory and unsupported by any reference to evidence in
2 the record. To the extent these statements opine on what Plaintiff “can still do despite
3 impairment(s),” 20 C.F.R. § 404.1427(a)(1), the ALJ’s assignment of “little weight” is
4 supported by substantial evidence for the same reasons stated in the ALJ’s evaluation of
5 the opinions of Drs. Johnson-Schroetlin and Cohen. See Magallanes, 881 F.2d at 751.
6 The Court finds no reversible error in the ALJ’s treatment of Dr. Huynh’s statement of
7 disability. See Treichler v. Comm’r, 775 F.3d 1090, 1099 (9th Cir. 2014) (reminding that
8 courts should not reverse if “the agency’s path may reasonably be discerned,” even if
9 explained with “less-than-ideal clarity”).
10 B. Subjective Symptom Testimony
11 Plaintiff’s last point of error focuses on her assertions that her impairments
12 severely affected her ability to “lift, squat, bend, stand, reach, walk, kneel, remember,
13 complete tasks, concentrate, understand, and follow instructions.” (ECF No. 11 at 9.)
14 Plaintiff contends the ALJ erred by only relying on the medical evidence when analyzing
15 Plaintiff’s symptom statements, by failing to explain why the more severe aspects of her
16 testimony were rejected, and by ignoring other medical evidence in the record supports
17 her testimony. (Id. at 9-15.)
18 1. Legal Standards
19 A claimant’s statements of subjective symptoms alone are insufficient grounds to
20 establish disability. 20 C.F.R §§ 404.1529(a), 416.929(a). If an ALJ was required to
21 believe every allegation of pain or impairment, disability benefits would run afoul of the
22 Social Security Act and its purpose. Treichler v. Comm’r, 775 F.3d 1090, 1106 (9th Cir.
23 2014). In evaluating the extent to which an ALJ must credit the claimant’s report of their
24 symptoms, the Ninth Circuit has stated:
25 First, the ALJ must determine whether the claimant has presented
objective medical evidence of an underlying impairment which could
26 reasonably be expected to produce the pain or other symptoms
alleged. In this analysis, the claimant is not required to show that her
27 impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could
28 reasonably have caused some degree of the symptom. Nor must a
1 claimant produce objective medical evidence of the pain or fatigue
itself, or the severity thereof.
2
If the claimant satisfies the first step of this analysis, and there is no
3 evidence of malingering, the ALJ can reject the claimant’s testimony
about the severity of her symptoms only by offering specific, clear and
4 convincing reasons for doing so. This is not an easy requirement to
meet: The clear and convincing standard is the most demanding
5 required in Social Security cases.
6 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quotations omitted). The ALJ’s
7 reasons for discounting or rejecting a claimant’s subjective symptom testimony must be
8 sufficiently specific to allow a reviewing court to conclude the adjudicator did not
9 arbitrarily discredit a claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493
10 (9th Cir. 2015) (quotations omitted). Examples of “specific, clear and convincing
11 reasons” for discounting or rejecting a claimant’s subjective symptom testimony include:
12 prescription of conservative treatment, Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.
13 2007); inconsistencies between the plaintiff’s testimony and conduct (including daily
14 activities), Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005); whether the alleged
15 symptoms are consistent with the medical evidence of record, Rollins v. Massanari, 261
16 F.3d 853, 857 (9th Cir. 2001); an unexplained or inadequately explained failure to follow
17 a prescribed course of treatment, Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991);
18 or prior inconsistent statements by the plaintiff, Fair v. Bowen, 885 F.2d 597, 604 n. 5
19 (9th Cir. 1989). A lack of corroborating, objective medical evidence alone is insufficient
20 grounds for an ALJ to discount subjective symptoms; however, it is a factor the ALJ may
21 consider. Rollins, 261 F.3d at 857 (citing 20 C.F.R § 404.1529(c)(2)).
22 2. Symptom Testimony re: Physical Impairments
23 Regarding Plaintiff’s statements that she had disabling physical pain such that
24 she could not work, the ALJ began by summarizing Plaintiff’s statements from her
25 disability reports and at the 2018 hearing. AT 468. In Plaintiff’s 2017 disability reports,
26 she stated she “cannot do any of the things checked” and checked boxes for lifting,
27 squatting, bending, standing, reaching, walking, and kneeling. AT 262. Plaintiff also
28 stated she could not walk a block and had to rest 20-30 minutes between walks. AT 262-
1 63. At the 2018 hearing, Plaintiff stated she could only sit and stand for fifteen minutes at
2 a time, had to use a (non-prescribed) cane to walk, and had to lie down more than fifty
3 percent of the day. AT 42-54. The ALJ concluded the symptoms Plaintiff alleged could
4 be caused by her physical impairments, but “the intensity, persistence and limiting
5 effects of these symptoms are not entirely consistent with the medical evidence and
6 other evidence in the record for the above reasons.” AT 476. Specifically, the ALJ found
7 Plaintiff’s “allegations of generally disabling symptoms and limitations” to be
8 unsubstantiated by “the evidence in the record, including the imaging studies, the
9 consultative examinations, the treatment history . . ., [her] activities[,] the medical
10 opinions . . ., [and] the evidence of non-compliance with treatment, as previously
11 discussed.” Id. The ALJ also noted Plaintiff did not “describe side effects from
12 medication.” AT 468 (citing AT 264, 271, 280).
13 First, the ALJ properly noted the conflicts between Plaintiff’s testimony and the
14 objective medical evidence “as discussed.” AT 468-76. The ALJ noted Plaintiff was
15 “ambulatory without assistance” in November 2013 (AT 307) and had no gait
16 abnormalities, had full cervical range of motion without pain or difficulty, and had full
17 range of motion of the hips, knees, ankles, feet, shoulders, elbows, wrists, fingers and
18 thumbs (without pain or difficulty) in May 2016 (AT 321-22). The ALJ also noted a
19 number of other “normal” findings, such as her stable scoliosis in March 2017 (AT 366);
20 normal gait and reflexes in January, March, and October 2017, September 2019, and
21 January 2021 (AT 327, 360, 978, 1086); normal strength and negative straight leg
22 raising in April 2018 (AT 422); negative straight leg raising, normal gait, reflexes, and
23 sensation, and “otherwise 5/5 strength throughout” in December 2020 (AT 1153); normal
24 reflexes and sensation and 5/5 strength in legs in March 2021 (AT 1147); and no range
25 of motion issues in June 2021 (AT 893). This evidence of normal or mild impairments
26 contradicts Plaintiff’s statements that she could not “do any of the things checked,”
27 including lifting, squatting, bending, standing, reaching, kneeling, walking more than a
28 block at a time. AT 262-63. This evidence also contradicts Plaintiff’s statements at the
1 2018 hearing that she could only sit and stand for fifteen minutes at a time, had to use a
2 cane to walk, and has to lie down more than fifty percent of the day. AT 42-54. The ALJ
3 could consider the objective medical evidence in resolving conflicts in Plaintiff’s
4 testimony, and did not err in finding Plaintiff’s own stated extreme limitations contradicted
5 by the mostly normal medical findings in the record. See Rollins, 261 F.3d at 857; see
6 also Marshall v. Saul, 830 F. App’x 179, 181 (9th Cir. 2020) (finding clear and convincing
7 reasons to reject the plaintiff’s symptom testimony where there was a “disjunction
8 between his statements that [he] could not walk and medical evidence showing that his
9 gait was normal”). The ALJ connected this evidence to her conclusions “as discussed,”
10 and was not required to re-summarize this evidence in the paragraph where she stated
11 her conclusions on Plaintiff’s symptom testimony. See Treichler, 775 F.3d at 1099
12 (reminding that courts should not reverse if “the agency’s path may reasonably be
13 discerned,” even if explained with “less-than-ideal clarity”).
14 Plaintiff contends other evidence supports the more severe aspects of her
15 symptom testimony, including medical records showing she suffered from back spasms,
16 reduced range of motion, facet arthropathy, spinal deterioration, and inconsistent
17 ankle/hip strength. See AT 360, 366, 406, 422, 471-73, 893, 1086, 1130, 1086, 1153,
18 1147. However, as discussed above in the Court’s analysis of Dr. Geneve’s opinion, the
19 ALJ noted much of this other evidence when resolving the conflicts between Plaintiff’s
20 testimony and the record. See AT 470-73. Dr. Van Kirk, Dr. Halappa, and the two state-
21 agency physicians reviewed many of these records and did not opine limitations as
22 severe as Plaintiff asserted. See AT 73-75, 104-06, 321-22, 327, 340-41. The ALJ
23 considered the whole of this record in crafting Plaintiff’s physical limitations in the
24 residual functional capacity. See Ghanim, 763 F.3d at 116.
25 In addition to relying on the medical evidence, the ALJ found Plaintiff was
26 noncompliant with conservative treatments “as previously discussed.” AT 476. The Court
27 finds the ALJ sufficiently cited evidence in the decision to support this conclusion. For
28 example, the ALJ noted that in December 2019, Plaintiff’s treatment provider at Golden
1 Valley Health Care recorded Plaintiff’s noncompliance with application of topical creams
2 or icing for her feet, ankle, and gait pain. AT 1055-56. The ALJ also cited records from
3 Plaintiff’s pain management provider noting she was noncompliant with her prescribed
4 care concerning her lumbar pain in January 2022. AT 1187. Noncompliance with a
5 prescribed course of treatment is a permissible reason to discount Plaintiff’s symptom
6 testimony. See Bunnell, 947 F.2d at 346. Plaintiff did not specifically challenge the ALJ’s
7 findings on this point. See Mata, 2014 WL 5472784, at *4 (reminding that the court
8 cannot manufacture arguments for the plaintiff on review).
9 The ALJ also cited Plaintiff’s activities of daily living as a reason for discounting
10 the more severe aspects of her testimony. AT 476. The ALJ noted multiple times when
11 Plaintiff reported being able to perform tasks that contradicted her statements she
12 “cannot do any of the [postural activities] checked,” could not walk a block, had to rest
13 20-30 minutes between walks, could only sit and stand for fifteen minutes at a time, had
14 to use a (non-prescribed) cane, and had to lie down more than fifty percent of the day.
15 AT 42-54, 262-63. This included Plaintiff’s reporting to Dr. Pingitore in March 2016 that
16 she took walks with her boyfriend (AT 315-16); reporting to Dr. Van Kirk in May 2016 that
17 she took the trash out, did the dishes and the laundry, and took walks outdoors (AT 320);
18 reporting to Dr. Huynh in that her activities of daily living were “fine” in May 2021 (AT
19 883) and that she participated in chores and activities outside the home “with much less
20 pain” in January 2022 (AT 1187); and reporting to Dr. Johnson-Schroetlin in June 2022
21 she had no limitations with daily self-care and was independent for basic activities of
22 daily living (AT 1363). Contradictions between Plaintiff’s symptom testimony and her
23 actual activities of daily living is a permissible reason to discount Plaintiff’s severely
24 limiting symptom statements. See Burch, 400 F.3d at 680-81 (finding symptom
25 statements contradicted by the plaintiff’s ability to care for her personal needs, cook,
26 clean and shop, interact with family and boyfriend, and noting that though these daily
27 activities “may also admit of an interpretation more favorable to [the plaintiff], the ALJ’s
28 interpretation was rational” and must be upheld where susceptible to more than one
1 rational interpretation). Plaintiff did not explicitly challenge the ALJ’s findings on this point
2 in her opening brief. See Mata, 2014 WL 5472784, at *4.
3 Finally, the ALJ did not wholly discount Plaintiff’s symptom statements. The ALJ
4 did not deem Plaintiff able to perform any job in the national economy. Instead, the ALJ
5 found that Plaintiff was limited to light work, with many additional physical limitations
6 included in her residual functional capacity. AT 467-68, 477. Under the regulations,
7 Plaintiff’s statements of subjective symptoms alone are insufficient grounds to establish
8 disability. 20 C.F.R §§ 404.1529(a), 416.929(a). The Court finds the ALJ provided
9 sufficiently specific reasons for discounting the more severe aspects of Plaintiff’s
10 symptom testimony regarding her physical impairments, such that the Court does not
11 find Plaintiff’s testimony was arbitrarily discredited. See Brown-Hunter, 806 F.3d at 493.
12 3. Symptom Testimony re: Mental Impairments
13 Regarding Plaintiff’s statements that she could not work due to her disabling
14 mental impairments, the ALJ began by summarizing Plaintiff’s statements from her
15 disability reports and at the 2018 hearing. AT 468. In Plaintiff’s 2017 disability reports,
16 she stated she “cannot do any of the things checked” and checked boxes for memory,
17 completing tasks, concentration, understanding, and following instructions. AT 262.
18 Plaintiff also stated she could not pay attention “that often,” could not follow written or
19 spoken instructions “that well,” “can’t handle stress,” and “can’t deal with changes in
20 routine.” AT 262-63. At the 2018 hearing, Plaintiff stated she has difficulty reading the
21 newspaper, could not write a grocery list without help, has daily panic attacks, and does
22 not visit public places. AT 42-54. The ALJ concluded the symptoms Plaintiff alleged
23 could be caused by her mental impairments, but “the intensity, persistence and limiting
24 effects of these symptoms are not entirely consistent with the medical evidence and
25 other evidence in the record for the above reasons.” AT 476. Specifically, the ALJ found
26 Plaintiff’s “allegations of generally disabling symptoms and limitations” to be
27 unsubstantiated by the evidence in the record, including “the consultative examinations,
28 the treatment history (reflecting no persistent neurological deficits and few significant
1 abnormalities in mental status examinations), [her] activities[,] the medical opinions[.]”
2 AT 476.
3 First, the ALJ properly noted the conflicts between Plaintiff’s testimony and the
4 objective medical evidence “as discussed.” AT 468-76. The ALJ noted portions of
5 Plaintiff’s mental exam in January 2017 demonstrating mild and moderate limitations in
6 the Paragraph B categories and consistent with simple and repetitive tasks (AT 337-38);
7 normal affect in November 2017 (AT 406); normal cognition and average intelligence in
8 March 2018 (AT 417); appropriate mood, no memory deficits, normal insight and
9 judgment, normal attention and concentration in July 2020 (AT 1009); a May 2021
10 treatment record finding Plaintiff mentally “stable” (AT 883); a September 2021 treatment
11 note with normal findings (AT 1162); “okay” mood and otherwise normal thought
12 processes, unremarkable memory, and intact attention, concentration, insight, judgment,
13 and impulse control in January and April 2022 (AT 1274, AT 1308); and the June 2022
14 exam results demonstrating Plaintiff had an adequate ability to abstract and normal
15 presentation in many of her mental faculties (AT 1363-64). Further, as discussed above,
16 Dr. Pingitore, Dr. Johnson-Schroetlin, LCSW Vigil, and the two stage-agency
17 psychologists had many of these medical records available to them when opining on
18 Plaintiff’s mental limitations, and the ALJ ultimately assigned Paragraph B ratings and a
19 residual functional capacity that aligned with the opinions of Drs. Pingitore, Ikawa, and
20 Solomon. (See Section IV.A.3. above.)
21 The above evidence contradicts Plaintiff’s statements that she had no ability to
22 use her memory, complete tasks, concentrate, understand, follow instructions, not often
23 pay attention, handle any stress or any changes in her routine, or visit public places. AT
24 42-54, 262-63. The ALJ could consider the objective medical evidence in resolving
25 conflicts in Plaintiff’s testimony, and could reject the more extreme portions of her
26 testimony when in conflict with this evidence. Rollins, 261 F.3d at 857; see also Tidwell
27 v. Saul, 836 F. App’x 523, 525-26 (9th Cir. 2020) (finding in part that medical evidence
28 showing improvements in mental health “undercut such expansive limitations that it was
1 “impossible” to work around others, he had difficulties concentrating and was unable to
2 follow instructions); Gregg v. Astrue, 2009 WL 3295117, at *4 (E.D. Wash. Oct. 13,
3 2009) (discounting the plaintiff’s symptom testimony in part based on the medical
4 evidence because it was not consistent with the plaintiff’s broad assertions she could not
5 work anymore due to worsening mental illness, nervousness around people, poor
6 memory, inability to focus, and experience of panic attacks). The ALJ connected this
7 evidence to her conclusions “as discussed,” and was not required to re-summarize or
8 repeat her seven-page summary of this evidence in her statement of her conclusions
9 regarding Plaintiff’s symptom testimony. See Treichler, 775 F.3d at 1099 (reminding that
10 courts should not reverse if “the agency’s path may reasonably be discerned,” even if
11 explained with “less-than-ideal clarity”).
12 Plaintiff contends other evidence supports the more severe aspects of her
13 symptom testimony, including exams showing her impaired ability to make decisions,
14 presentation of anxiety, depression, and impaired decision making at appointments in
15 January 2017, November 2017, March 2018, and July 2020. See AT 337-38, 406, 417,
16 1009. However, as noted above in the Court’s analysis of the opinions from Dr. Johnson-
17 Schroetlin, Dr. Cohen, LCSW Vigil, and Dr. Huynh, the ALJ considered this other
18 evidence when resolving the conflicts in the record. See AT 470-73. As discussed
19 above, the ALJ did not ignore the evidence cited by Plaintiff. See Ghanim, 763 F.3d at
20 1161. In fact, these and similar records were the basis for the ALJ’s assignment of the
21 mild and moderate limitations at step three and the limitation to simple and repetitive
22 tasks. AT 468.
23 The ALJ also cited Plaintiff’s activities of daily living, noting multiple times when
24 Plaintiff reported being able to perform tasks that contradicted her symptom statements
25 This included Plaintiff’s reporting to Dr. Pingitore in March 2016 that she watches
26 television with her boyfriend (AT 315-16); reporting to Dr. Pingitore she went out to
27 restaurants with her father (AT 315-16); reporting to Dr. Huynh her “ADLs” were “fine” in
28 May 2021 (AT 883) and that she participated in activities outside the home in January
1 2022 (AT 1187); and denying limitations with daily self-care and reporting of
2 independence for her basic activities of daily living during her June 2022 exam with Dr.
3 Johnson-Schroetlin (AT 1363). These are permissible reasons to discount Plaintiff’s
4 statements that she had a complete inability to use her memory, complete tasks,
5 concentrate, understand, follow instructions, handle stress or changes in routine. AT
6 262-63. See Molina, 674 F.3d at 1113 (“Even where those activities suggest some
7 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the
8 extent that they contradict claims of a totally debilitating impairment.”); Burch, 400 F.3d
9 at 680-81 (noting that though cited daily activities “may also admit of an interpretation
10 more favorable to [the plaintiff], the ALJ’s interpretation was rational” and must be upheld
11 where susceptible to more than one rational interpretation). Plaintiff did not specifically
12 challenge the ALJ’s findings on this point in her opening brief. See Mata, 2014 WL
13 5472784, at *4.
14 Finally, the ALJ did not wholly discount Plaintiff’s symptom statements, such that
15 she was deemed able to perform any job in the national economy. Plaintiff was found to
16 be limited to light work with a restriction to simple and repetitive tasks, which is akin to
17 Level 2 Reasoning. AT 468. Under the regulations, Plaintiff’s statements of subjective
18 symptoms alone are insufficient grounds to establish disability. 20 C.F.R §§ 404.1529(a),
19 416.929(a). The Court finds the ALJ provided sufficiently specific reasons for discounting
20 the more severe aspects of Plaintiff’s symptom testimony regarding her mental
21 impairments, such that the Court does not find Plaintiff’s testimony was arbitrarily
22 discredited. See Brown-Hunter, 806 F.3d at 493.
23 V. CONCLUSION
24 Having addressed all of the points of error raised by Plaintiff, the Court finds the
25 ALJ’s decision otherwise supported by substantial evidence in the record and free from
26 legal error. See Ford, 950 F.3d at 1148 (noting that a district court may reverse only if
27 the ALJ’s decision “contains legal error or is not supported by substantial evidence”).
28 / / /
1 ORDER
2 Accordingly, the Court ORDERS:
3 1. Plaintiffs motion for summary judgment (ECF No. 11) is DENIED;
4 2. The Commissioner’s cross-motion (ECF No. 15) is GRANTED;
5 3. The final decision of the Commissioner is AFFIRMED; and
6 4. The Clerk of the Court is directed to CLOSE this case.
7
8 | Dated: September 20, 2024 C □□ $ \U
9 CHI S00 KIM
40 UNITED STATES MAGISTRATE JUDGE
11 || 3, alex.1191
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