# Velasquez v. O'Malley

> District Court, S.D. California · September 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10640604

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10640604

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MIGUEL V., Case No.: 23-CV-01683-RBM-BLM

12 Plaintiff,
ORDER:
13 v.
(1) OVERRULING PLAINTIFF’S
14 MARTIN O’MALLEY,1
OBJECTIONS
15 Defendant.
(2) ADOPTING REPORT AND
16 RECOMMENDATION
17
(3) AFFIRMING ALJ DECISION
18
19 [Docs. 9, 10, 13-14]
20
21 Plaintiff Miguel V.2 (hereinafter “Plaintiff” or “Claimant”) brought this action under
22 42 U.S.C. § 405(g) seeking review of the denial of his application for Social Security
23 disability benefits. (Doc. 1.) Plaintiff filed a merits brief (hereinafter, “Plaintiff’s Motion”)
24
25
26
1 Martin O’Malley is now the Commissioner of Social Security, and he is automatically
27 substituted as a party pursuant to Federal Rule of Civil Procedure 25(d).
2 Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court refers to Plaintiff by first name and
28
1 seeking reversal of the Administrative Law Judge’s (“ALJ”) decision finding Plaintiff not
2 disabled and denying him benefits. (Doc. 9.) Defendant filed a Responding Brief
3 (hereinafter “Defendant’s Response”) seeking affirmance of the ALJ’s decision. (Doc.
4 10). Plaintiff filed Plaintiff’s Reply to Defendant’s Response (hereinafter “Plaintiff’s
5 Reply”) (Doc. 12).
6 The Honorable Barbara L. Major, United States Magistrate Judge issued a Report
7 and Recommendation (hereinafter, “R&R”) recommending the ALJ’s decision be
8 affirmed. (Doc. 13.) Plaintiff raised two Objections to the Magistrate Judge’s R&R
9 (hereinafter “Objections”). (Doc. 14.) Defendant filed a Response to Plaintiff’s Objections
10 (hereinafter, “Response to Objections”). (Doc. 15.) The Court has considered the parties’
11 initial briefing, the R&R, and the parties’ briefs on Plaintiff’s Objections. Having
12 conducted a de novo review of the issues to which Plaintiff has objected, for the reasons
13 discussed below, the Court OVERRULES Plaintiff’s Objections, ADOPTS the R&R and
14 AFFIRMS the ALJ’s decision.
15 I. BACKGROUND
16 The R&R summarizes the Procedural Background and provides a Summary of the
17 ALJ’s Findings. (Doc. 13 at 1–4.) The Court adopts the R&R’s Procedural Background
18 and Summary of the ALJ Findings sections in their entirety and only highlights a few
19 specific points from the ALJ decision here.
20 The ALJ found Plaintiff “has the following severe impairments: osteoarthritis and
21 degenerative disc disease of the lumbar spine, bilateral knee osteoarthritis, osteoarthritis
22 and degenerative joint disease of the hips, major depressive disorder, and generalized
23 anxiety disorder with insomnia.” (AR 20.) The ALJ found Plaintiff’s “medically
24 determinable impairments of shoulder tendinitis, history of ganglion cyst in the left wrist,
25 history of carpel tunnel syndrome, right ankle pain, and obesity cause only slight
26
27
3 The ALJ’s decision became the final decision of the Commissioner of Social Security
28
1 abnormalities that would have no more than a minimal effect on his ability to work during
2 the timeframe in question, and therefore qualify as ‘non-severe impairments’ under the
3 regulatory analysis.” (AR 20–21.) The ALJ found Plaintiff’s combination of impairments
4 did not meet a Listing and specifically discussed Listings 1.15 and 1.18. (AR 22–24.)
5 The ALJ assessed the following Residual Functional Capacity (“RFC”):
6 [C]laimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except: He cannot climb ladders, ropes,
7
scaffolds, but can occasionally balance, stoop, kneel, crouch, crawl, and climb
8 ramps and stairs; He must avoid concentrated exposure to extreme cold and
hazards such as unprotected heights and work around dangerous moving
9
machinery; and he can only have occasional work-related general public
10 contact.

11
(AR 24.)
12
13 In support of the RFC, the ALJ specifically discussed Plaintiff’s testimony, Adult
14 Function Report, Pain Questionnaire, and a Third-Party Adult Function Report. (AR 24–
15 25.) The ALJ also discussed Plaintiff’s medical history, treatment, claimed limitations,
16 and daily activities at length in considering Plaintiff’s statements regarding the severity of
17 his symptoms. (AR 25–29.) The ALJ also evaluated numerous physician opinions in
18 detail. (AR 29–31.) After discussing Plaintiff’s vocational background and summarizing
19 the testimony of a vocational expert, the ALJ concluded Plaintiff was able to perform his
20 past relevant work as an architectural drafter and sterilizer. (AR 31–32.)
21 II. STANDARD OF REVIEW
22 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
23 court’s duties in connection with a magistrate judge’s report and recommendation. The
24 district court “may accept, reject, or modify, in whole or in part, the findings or
25 recommendations made by the magistrate judge” and “must determine de novo any part of
26 the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
27 72(b); 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76
28 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The district court is
1 not required to conduct “any review at all,” de novo or otherwise, of any issue that is not
2 the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United
3 States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear
4 that the district judge must review the magistrate judge’s findings and recommendations
5 de novo if objection is made, but not otherwise.”). The portions of the R&R Plaintiff has
6 not objected to are ADOPTED.
7 The Court “may set aside a denial of benefits only if it is not supported by substantial
8 evidence or if it is based on legal error.” Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th
9 Cir. 2005) (quoting Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002)). “Substantial
10 evidence ... is such relevant evidence as a reasonable mind might accept as adequate to
11 support a conclusion.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (citing Vasquez
12 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Where the evidence is susceptible to more
13 than one rational interpretation, the ALJ’s decision must be affirmed.” Id.
14 III. DISCUSSION
15 Plaintiff raises two Objections to the Magistrate Judge’s R&R. (Doc. 14.) He
16 objects that: (1) the ALJ’s RFC for Plaintiff does not account for his carpel tunnel
17 syndrome (id. at 1–2); and (2) that the ALJ erred by failing to properly evaluate Plaintiff’s
18 statements as to the objective findings (id. at 2–5). The Court addresses each of Plaintiff’s
19 Objections below.
20 A. RFC and Carpel Tunnel Syndrome
21 The RFC does not include limitations addressing Plaintiff’s carpel tunnel syndrome.
22 (AR 24.) Having considered Plaintiff’s Objection and conducted a de novo review of this
23 issue, the Court finds the ALJ’s decision on this point is without legal error and supported
24 by substantial evidence. Courts must “affirm the ALJ’s determination of [an] RFC if the
25 ALJ applied the proper legal standard and [the] decision is supported by substantial
26 evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2006) (citations omitted).
27 The general question raised in this objection is whether the ALJ’s RFC was defective
28 because it lacked limitations related to Plaintiff’s carpel tunnel syndrome. However,
1 Plaintiff appears to raise two issues on this point: (1) whether the ALJ considered an
2 impairment the ALJ found to be non-severe—Plaintiff’s carpel tunnel syndrome—in
3 determining Plaintiff’s RFC as the ALJ is required to do; and (2) if the ALJ’s decision not
4 to include limitations based on Plaintiff’s carpel tunnel was supported by substantial
5 evidence. Defendant asserts that “the ALJ considered Plaintiff’s alleged hand and wrist
6 symptoms, but reasonably found no evidence that Plaintiff had an inability to use his upper
7 extremities.” (Doc. 15 [Response to Objections] at 3 (citing Doc. 13 [R&R] at 10–11).)
8 Defendant also argues Plaintiff challenge amounts to advocating for a different
9 interpretation of the evidence and including limitations in the RFC based on that different
10 interpretation. (Doc. 15 at 3.)
11 1. Consideration of Non-Severe Impairment
12 Plaintiff asserts that “the RFC must reflect the total limiting effects of the
13 combination of all of a claimant’s impairments – both severe impairments and non[-]severe
14 impairments” and argues the ALJ’s RFC is defective “[b]ecause the ALJ failed to translate
15 [Plaintiff’s] carpal tunnel syndrome into RFC limitations.” (Doc. 14 [Objections] at 2
16 (citing 20 C.F.R. § 404.1545(e)); Doc. 9 [Plaintiff’s Motion] at 9 (arguing the ALJ was
17 required to consider severe and non-severe impairments and that Plaintiff’s carpel tunnel
18 syndrome was found to be a non-severe impairment).)
19 The Court finds the ALJ certainly considered Plaintiff’s carpel tunnel syndrome in
20 determining Plaintiff’s RFC. “The ALJ is required to consider all of the limitations
21 imposed by the claimant’s impairments, even those that are not severe.” Carmickle v.
22 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Social Security
23 Ruling (“SSR”) 96-8p). “Even though a non-severe ‘impairment[ ] standing alone may not
24 significantly limit an individual’s ability to do basic work activities, it may—when
25 considered with limitations or restrictions due to other impairments—be critical to the
26 outcome of a claim.’” Id. (quoting SSR 96-8p).
27 Here, there were no limitations related to Plaintiff’s carpel tunnel syndrome included
28 in the RFC because no limitations were warranted. This is not a case in which the ALJ
1 erred by failing to consider an impairment because it was non-severe. The ALJ considered
2 Plaintiff’s carpel tunnel syndrome in detail numerous times throughout the decision. (AR
3 20–22, 25–26, 30.) As discussed further below, the ALJ analyzes Plaintiff’s medical
4 history as to his wrists and hands, starting first with his left hand and wrist (AR 20–21) and
5 then separately addressing his right wrist and hand (AR 21). The ALJ then includes
6 Plaintiff’s “history of ganglion cyst in the left wrist [and] history of carpal tunnel
7 syndrome” among other impairments he finds non-severe under the regulatory analysis
8 because they “cause only slight abnormalities that would have no more than a minimal
9 effect on his ability to work during the timeframe in question.” (AR 21.)
10 The ALJ then explicitly states that “as required by the regulations, the undersigned
11 considered all of the claimant’s medically determinable impairments, including those that
12 are not severe, when assessing the claimant’s residual functional capacity.” (AR 22
13 (emphasis added).) A boilerplate statement like this one might not be enough on its own
14 to establish the ALJ considered all non-severe impairments in determining a claimant’s
15 RFC, particularly if the ALJ did not otherwise discuss the non-severe impairment.
16 However here, this statement is not unsupported. Plaintiff’s wrist and hands are discussed
17 throughout the decision. (AR 22, 25–27, 30.4)
18 It is evident from the Court’s review of the entire decision that Plaintiff’s carpel
19 tunnel syndrome was thoroughly considered by the ALJ. The ALJ simply found limitations
20 associated with Plaintiff’s carpel tunnel syndrome were not supported by the record.
21 Accordingly, the Court finds the ALJ considered Plaintiff’s carpel tunnel syndrome in
22 determining Plaintiff’s RFC.
23

24
25 4 The ALJ’s consideration of Plaintiff’s carpel tunnel syndrome and the records regarding
it is also evident from the hearing testimony. In response to a question from Plaintiff’s
26
representative about not including limitations associated with carpel tunnel syndrome in
27 his hypothetical to the vocational expert, the ALJ stated “the consultive examination found
no limits appropriate for handling, fingering, and feeling” and “the records just don’t
28
1 2. ALJ’s RFC is Supported by Substantial Evidence
2 The ALJ’s decision not to include limitations based on Plaintiff’s carpel tunnel was
3 supported by substantial evidence. “Substantial evidence is such relevant evidence as a
4 reasonable mind might accept as adequate to support a conclusion, and must be more than
5 a mere scintilla, but may be less than a preponderance....” Kitchen v. Kijakazi, 82 F.4th
6 732, 738 (9th Cir. 2023) (quoting Rounds v. Comm’r, 807 F.3d 996, 1002 (9th Cir. 2015)).
7 “Overall, the standard of review is highly deferential.” Id.
8 In finding the ALJ properly considered Plaintiff’s carpel tunnel syndrome, the
9 Magistrate Judge discussed the ALJ’s analysis of Plaintiff’s test results and examinations
10 regarding his wrist and hand symptoms. (Doc. 13 [R&R] at 9–11.) The Magistrate Judge
11 provided a detailed explanation of the ALJ findings, including a review of the records the
12 ALJ relied on to make his findings and additional records regarding Plaintiff’s carpel tunnel
13 syndrome. (Id. at 11–15.) Based on this thorough analysis, the Magistrate Judge concluded
14 there was substantial evidence in the record supporting the ALJ’s decision not to include
15 limitations related to Plaintiff’s carpel tunnel syndrome in the RFC. (Id. at 14–15.) As the
16 Magistrate Judge indicated in the R&R, “when the ALJ decision is supported by substantial
17 evidence and the proper legal standard is applied, even ‘if the evidence is susceptible to
18 more than one interpretation, it is the ALJ’s conclusion that must be upheld.’” (Id. at 15
19 (quoting Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)).)
20 The Court agrees the ALJ’s decision not to include carpel tunnel syndrome
21 limitations in the RFC is supported by substantial evidence. This is not a case where the
22 ALJ has selectively picked only favorable findings regarding an impairment and ignored
23 the unfavorable. Here, the ALJ discusses Plaintiff’s carpel tunnel history in detail in
24 assessing whether it is a severe impairment. (AR 20–21.) The ALJ acknowledges
25 Plaintiff’s reports, as documented in the medical records, and test results over more than
26 three years. (AR 20–21.) The ALJ notes test results that indicated at times Plaintiff had
27 mild to moderate carpel tunnel syndrome. (AR 20–21.) However, the ALJ also explains
28 that at many of these times, he had minimal symptoms or pain, active range of motion
1 without pain, and was successfully treated. (AR 20–21.) As to his left wrist, the ALJ notes
2 little evidence of treatment after a ganglion syst was removed. (AR 20.) And the ALJ
3 notes specifically as to the right wrist and hand, that his February 2022 consultive
4 examination was almost entirely normal and he needed only routine and conservative
5 treatment. (AR 21.)
6 The ALJ returns to Plaintiff’s carpel tunnel syndrome again in explaining why
7 Plaintiff’s impairments do not meet a Listing. The ALJ explained that there “was no
8 evidence that [Plaintiff] had an inability to use one or more of his upper extremities to
9 independently initiate, sustain, and complete work-related activities involving fine and
10 gross motor movements” and repeated, albeit more briefly, his prior finding that there were
11 times Plaintiff had decreased range of motion, but his other findings were normal. (AR
12 22.) The ALJ also addressed Plaintiff’s hand and wrist claims in finding certain physician
13 opinions not persuasive. (AR 30.) The ALJ notes a physician recommendation to avoid
14 sudden or repetitive movement of the hand and then explains that “his hand pain improved
15 with treatment, and the evidence supporting his allegations were not consistently present
16 throughout the record.” (AR 30.) The ALJ cited Plaintiff’s normal range of motion in his
17 hands and wrist during the 2022 consultive examination as an example of the physician not
18 taking into account the entirety of the record. (AR 30.) The ALJ also noted Plaintiff’s
19 improvement in his hands with treatment. (AR 30.)
20 Plaintiff objects to the Magistrate Judge’s reliance on a 2022 consultive examination
21 that Plaintiff suggests only applied to one hand and argues a medical record from 2020
22 establishes Plaintiff’s carpel tunnel syndrome was not improving. (Doc. 14 [Objections]
23 at 2.) The Court is not persuaded either of these issues even raise an ambiguity as to the
24 medical evidence and certainly do not mean the ALJ’s interpretation of the medical
25 evidence was not rationale or supported by substantial evidence. Smartt, 53 F.4th at 494
26 (“ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.”)
27 (citations omitted).
28
1 Plaintiff asserts the “ALJ only generally referenced Exhibit 8F to support his finding
2 that [Plaintiff] experienced improvement for his carpel tunnel syndrome” and then points
3 to a medical record in 2020 from Dr. Beazley, contained within Exhibit 8F in which
4 Plaintiff argues he reported his “carpel tunnel syndrome on his right side was worse” and
5 Plaintiff “was having significant hand weakness.” (Doc. 14 [Objections] at 2 (citing AR
6 639–40).) Plaintiff’s characterization of the ALJ’s analysis is inaccurate. The ALJ
7 repeatedly cites specific medical records within Exhibit 8F to support his finding that
8 Plaintiff’s carpel tunnel syndrome was only mild to moderate with many normal findings
9 and improvement with treatment. (AR 20–22, 30.) As explained above, the ALJ’s findings
10 are supported by substantial evidence. Similarly, Plaintiff’s interpretation of the 2022
11 consultive examination as potentially only applying to one side is not supported. The
12 examination clearly addresses Plaintiff’s carpel tunnel syndrome on both sides. The
13 examination results refer to “wrists” and “hands” without any indication the examiner was
14 referring to only one hand or the other. (AR 560.)
15 While Plaintiff may interpret the record to require inclusion of carpel tunnel
16 syndrome limitations in the RFC based on his interpretation of specific medical records,
17 the “ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.”
18 Smartt, 53 F.4th 489, 494 (9th Cir. 2022) (citing Tommasetti v. Astrue, 533 F.3d 1035,
19 1041–42 (9th Cir. 2008) and Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
20 Here, even assuming the evidence could be interpreted as Plaintiff argues, the ALJ’s
21 interpretation is equally, if not a more supported, by the evidence. “When the evidence
22 can rationally be interpreted in more than one way, the court must uphold the [ALJ’s]
23 decision.” Ahearn v. Saul, 988 F.3d 1111, 1116–17 (9th Cir. 2021). Accordingly, the
24 Court OVERRULES Plaintiff’s first Objection to the R&R.
25 B. ALJ’s Evaluation of Plaintiff’s Statements Based on Objective Findings
26 Plaintiff’s second Objection is that the ALJ was required to “explain how the
27 objective findings undercut Plaintiff’s testimony” and did not connect objective findings
28 to specific testimony from Plaintiff. (Doc. 14 at 2, 4 (citing Lambert v. Saul, 980 F.3d
1 1266, 1277 (9th Cir. 2020)).) The Court finds, as to the objective findings reason only,
2 that the ALJ did not sufficiently specify which objective findings were inconsistent with
3 Plaintiff’s testimony. The ALJ sufficiently explained how Plaintiff’s statements regarding
4 his symptoms were inconsistent with the objective findings and that even if the ALJ’s
5 decision was not sufficiently specific in connecting the objective findings to the testimony
6 it undermined, the error was harmless.
7 1. Objective Findings and Plaintiff’s Testimony
8 “An ALJ engages in a two-step analysis to determine whether 5 a claimant’s testimony
9 regarding subjective pain or symptoms is credible.” Smith v. Kijakazi, 14 F.4th 1108, 1111
10 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). “First,
11 the ALJ must determine whether the claimant has presented objective medical evidence of
12 an underlying impairment which could reasonably be expected to produce the pain or other
13 symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014). “At this step, the medical
14 evidence need not corroborate the severity of the alleged symptoms; the medical evidence
15 need only establish that the impairment could reasonably be expected to cause some degree
16 of the alleged symptoms.” Id. (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
17 2007)).
18 “If the claimant satisfies the first step of this analysis, and there is no evidence of
19 malingering, ‘the ALJ can reject the claimant’s testimony about the severity of [their]
20
21
5 The Court is not required to consider this argument because it is being raised for the first
22
time in Plaintiff’s Objections to the R&R. Plaintiff did not raise this argument in Plaintiff’s
23 Motion or Plaintiff’s Reply brief before the Magistrate Judge. District courts have
“discretion, but [are] not required, to consider” an argument presented for the first time in
24
an objection to a magistrate judge’s recommendation. United States v. Howell, 231 F.3d
25 615, 621 (9th Cir. 2000); see also Medina v. Colvin, Case No. 16CV215-GPC(KSC), 2017
WL 1135730, at *13 (S.D. Cal. Mar. 27, 2017) (exercising discretion to consider argument
26
raised for the first time in an objection from a pro se plaintiff). Because Defendant has not
27 challenged Plaintiff raising this new argument in Objections and Plaintiff at least noted
objective findings in Plaintiff’s Motion, albeit not on this point or clearly, the Court
28
1 symptoms only by offering specific, clear, and convincing reasons for doing so.’” Ahearn,
2 988 F.3d at 1116 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “When
3 objective medical evidence in the record is inconsistent with the claimant’s subjective
4 testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt, 53 F.4th
5 at 498 (collecting cases); see also Carmickle, 533 F.3d at 1161 (“Contradiction with the
6 medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”).
7 Here, because the ALJ found Plaintiff satisfied the first step, the ALJ proceeded to
8 the second step. (AR 26 (Plaintiff’s “medically determinable impairments could
9 reasonably be expected to cause the alleged symptoms; however statements concerning the
10 intensity, persistence and limiting effects of these symptoms are not entirely consistent
11 with the medical evidence and other evidence in the record for the reasons explained in this
12 decision.”).6) The ALJ then provides three specific, clear, and convincing reasons to
13 discount Plaintiff’s statements regarding his symptoms: (1) daily activities (AR 27);
14 conservative and routine treatment (AR 27–28); and objective findings (AR 26, 28–29).7
15 Plaintiff’s Objection is directed at the third reason given by the ALJ, the
16 inconsistency between the objective findings and Plaintiff’s symptom testimony. (Doc. 14
17 [Objections] at 2–5.) “Plaintiff agrees with the Magistrate [Judge] that an inconsistency
18 between objective medical evidence and a plaintiff’s testimony can be a valid reason for
19

20
21 6 It is clear from the ALJ’s analysis that he found inconsistencies between Plaintiff’s
statements and the objective medical evidence, not that he required “positive objective
22
evidence ‘fully corroborating’ every allegation within the subjective testimony.” Smartt,
23 53 F.4th at 499. The Ninth Circuit has noted that “ALJs commonly use the phrase ‘not
entirely consistent’ … to mean that the claimant’s testimony is inconsistent with other
24
evidence in the record,” as the ALJ did here. Smartt, 53 F.4th at 499 n.2 (explaining this
25 phrasing is commonly confused with “not fully corroborated” and recommending instead
using “inconsistent.”).
26
7 Although the Court cites the specific portion of the decision addressing objective findings
27 in the section of the decision addressing Plaintiff’s symptom testimony, the objective
findings are also discussed repeatedly throughout the decision in relation to other issues.
28
1 rejecting subjective statements” but now argues “the ALJ did not connect specific
2 testimony to specific objective findings.” (Id. at 2.) Plaintiff argues “[t]he ALJ doesn’t
3 explain which objective findings he is using as a basis to reject which of [Plaintiff’s]
4 statements.” (Id. at 4.)8
5 The clear and convincing standard requires more than the boilerplate statement from
6 the ALJ that “statements concerning the intensity, persistence and limiting effects of these
7 symptoms are not entirely consistent with the medical evidence.” Lambert v. Saul, 980
8 F.3d 1266, 1277 (9th Cir. 2020). Even when combined with a summary of medical
9 evidence, it “is not the same as providing clear and convincing reasons for finding the
10 claimant’s symptom testimony not credible.” Id. at 1278 (citations omitted). More than
11 “non-specific conclusions that [a plaintiff’s] testimony [is] inconsistent with [their]
12 medical treatment” is required. Id. at 1277. “The ALJ must identify the testimony that
13 was not credible and specify ‘what evidence undermines the claimant’s complaints.’”
14 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (quoting
15 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). However, ALJs are not required
16 “to perform a line-by-line exegesis of the claimant’s testimony [or] to draft dissertations
17 when denying benefits.” Lambert, 980 F.3d at 1277. “Ultimately, the ‘clear and
18
19
8 As noted above, Plaintiff raised this argument for the first time in his Objections to the
20
R&R. (See supra Section III.B.1 note 6.) Plaintiff’s Motion did include a section regarding
21 objective findings, but Plaintiff did not articulate a clear argument, certainly not the one
asserted now. (Doc. 9 at 12–13.) As the Magistrate Judge noted explicitly in the R&R,
22
“Plaintiff present[ed] no argument other than to state that ‘the ALJ is mistaken regarding
23 what he is to consider when evaluating [Plaintiff’s] statements. Objective evidence is one
of many factors that the ALJ must consider when evaluating subjective statements.’” (Doc.
24
13 [R&R] at 17 (quoting Doc. 9 [Plaintiff’s Motion] at 13).) After this two-sentence
25 statement about objective evidence, Plaintiff proceeded to challenge two other reasons
given by the ALJ for discounting Plaintiff’s testimony regarding his symptoms—daily
26
activities and routine, conservative treatment. (Doc. 9 at 13–17.) Plaintiff also did not
27 address objective findings in Plaintiff’s Reply. The R&R understandably does not address
Plaintiff’s new argument, i.e. that the ALJ failed to “connect specific testimony to specific
28
1 convincing’ standard requires an ALJ to show his work.” Smartt, 53 F.4th at 499. “The
2 standard isn’t whether [the] court is convinced, but instead whether the ALJ’s rationale is
3 clear enough that it has the power to convince.” Id.
4 In arguing the ALJ was not sufficiently specific in connecting the objective findings
5 to Plaintiff’s statements, Plaintiff quotes a portion of the ALJ decision that discusses the
6 objective findings as to Plaintiff’s back, hips, and knees. (Id. at 3 (quoting AR 28).) The
7 portion quoted is three paragraphs, one each addressing back, hips, and knees and more
8 than half a page single spaced. (Doc. 14 [Objections] at 3.) Plaintiff then states
9 [t]hus, the ALJ recognizes the following objective findings:
10
o Diminished range of motion in his back
o Tenderness to palpation over his lumbar spine and positive straight
11 leg raise on the left
12
o Xray revealing mild to moderate findings in his lumber spine
o Diminished range of motion in his hip
13 o Abnormal range of motion in the knees

14
(Id. at 3–4.)
15

16 Plaintiff then asserts “[y]et, the ALJ does not explain how the objective findings
17 contradict [Plaintiff’s] statements.” (Id. at 4.) Plaintiff seems to be arguing the ALJ was
18 required to identify the most negative objective findings about Plaintiff’s back, hips, and
19 knees, and explain how those specific objective findings undercut Plaintiff’s testimony.
20 However, Plaintiff cites no authority that requires the ALJ to identify an inconsistency
21 between Plaintiff’s symptom testimony and the most negative objective findings the
22 Plaintiff can identify. Plaintiff seems to demand the ALJ explain how every single
23 objective finding undercuts Plaintiff testimony on a finding-by-finding basis. This would
24 certainly be comparable to requiring the ALJ “to perform a line-by-line exegesis of the
25 claimant’s testimony [or] to draft dissertations when denying benefits.” Lambert, 980 F.3d
26 at 1277.
27 However, the Court cannot find the ALJ explained which of the objective findings
28 undermined Plaintiff’s testimony. Looking to the ALJ’s analysis, there is simple not a
1 clear enough connection between the ALJ’s summary of the objective findings and
2 Plaintiff’s testimony. While the Court recognizes the many relatively mild and normal
3 objective findings certainly appear to be inconsistent with Plaintiff’s more extreme
4 symptom testimony, the ALJ just does not provide that reason or explanation. (AR 25.)
5 For example, the ALJ identified the consultive examination results showing “normal range
6 of motion in all planes, with no tenderness and only mild findings” as to his hips and
7 “normal range of motion with no swelling, effusion, or joint deformities” and “X-ray scans
8 reveal[ing] early osteoarthritis only” as to Plaintiff’s knees. (AR 29.) These normal and
9 mild findings seem inconsistent with Plaintiff’s claim that he cannot walk more than fifteen
10 feet. (AR 25.) But the ALJ never makes that connection even in a summary fashion. As
11 to the objective findings for Plaintiff’s back, hips, and knees, the ALJ simple summarizes
12 the findings without explaining the inconsistency with Plaintiff’s testimony. Because the
13 ALJ failed to explain which objective findings undermined Plaintiff’s testimony, the
14 objective findings are not a clear and convincing reason to discredit Plaintiff’s testimony.
15 Treichler, 775 F.3d at 1103 (citations omitted).
16 2. Harmless Error
17 Even though the ALJ’s analysis of the inconsistency between Plaintiff’s testimony
18 and the objective findings was not sufficiently specific, the error is harmless here because
19 the ALJ provided two additional clear and convincing reasons for rejecting Plaintiff’s
20 symptom testimony. “An ALJ’s error [is] harmless where the ALJ provide[s] one or more
21 invalid reasons for disbelieving a claimant’s testimony, but also provide[s] valid reasons
22 that were supported by the record.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
23 superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Glendenning v. Kijakazi,
24 No. 22-35391, 2023 WL 3479564, at *1 (9th Cir. May 16, 2023) (“even assuming the
25 ALJ’s reasoning regarding the objective medical evidence was insufficiently specific, any
26 error was harmless, because the ALJ relied on other valid reasons to discredit [the
27 plaintiff’s] testimony including … the conservative nature of her treatment and her daily
28 activities.”).
l Here, the ALJ provided two other clear and convincing reasons for discounting
2 || Plaintiff's symptom testimony—Plaintiff’s daily activities and his routine conservative
3 ||treatment. (AR 27-28.) The Magistrate Judge’s R&R found both were clear and
4 || convincing reasons to discount Plaintiff's symptom testimony and supported by substantial
5 |}evidence. (Doc. 13 [R&R] at 20-23 (daily activities); id. at 23-26 (conservative routine
6 ||treatment)’.) Plaintiff did not object to these findings and the Court agrees the ALJ
7 || provided clear and convincing reasons to discount Plaintiff's symptom testimony. Smartt,
8 F.4th at 500 (‘[E]vidence of ‘conservative treatment’ is sufficient to discount a
9 || claimant's testimony regarding severity of an impairment.’’) (quoting Parra v. Astrue, 481
10 || F.3d 742, 751 (9th Cir. 2007)); Smartt, 53 F.4th at 499-500 (explaining daily activities
11 ||may be grounds for discrediting a claimant’s testimony).
12 IV. CONCLUSION
13 For the reasons set forth above, the Court OVERRULES Plaintiff's Objections
14 ||(Doc. 14), ADOPTS Magistrate Judge Major’s R&R (Doc. 13), DENIES Plaintiff's
15 || Motion (Doc. 9), and AFFIRMS the ALJ’s decision.
16 IT IS SO ORDERED.
17 || Dated: September 27, 2024 Fe Le ; ? L □
I8 HON. RUTH BERMUDEZ MONTENEGRO
19 UNITED STATES DISTRICT JUDGE
20
21
22
23

25
26 As to Plaintiff s mental health treatment, the R&R finds the ALJ erred in finding
psychotropic medications were conservative treatment but finds the error harmless because
27 || Plaintiff did not explain what symptoms he believed were improperly discounted on this
28 basis and because Plaintiff's RFC included a limitation based on his mental health
symptoms. (Doc. 13 [R&R] at 25—26.) Plaintiff did not object to this portion of the R&R.
15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640604. Public record. Not legal advice.