Eaton v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

JESSICA E.,1

Plaintiff, Civ. No. 3:23-cv-0745-MK

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

KASUBHAI, United States Magistrate Judge:

Plaintiff Jessica E seeks judicial review of the final decision of the Commissioner of the

Social Security Administration (“Commissioner”) denying her applications for disability

insurance benefits (“DIB”) under Title II and supplemental security income (“SSI”) under Title

XVI of the Social Security Act (the “Act”). This Court has jurisdiction to review the

Commissioner’s decision under 42 U.S.C. § 405(g). All parties have consented to allowing a

Magistrate Judge to enter final orders and judgment per the Federal Rule of Civil Procedure 73

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

of the last name of the non-governmental party.

and 28 U.S.C. § 636(c). See ECF No. 3. For the following reasons, the Commissioner’s final

decision is AFFIRMED.

PROCEDURAL BACKGROUND

Before Plaintiff’s present applications, Plaintiff was found disabled for a closed period

from May 2004 through August 2007. See Tr. 2 996–1009. Plaintiff filed her current DIB

application in January 2015 and SSI application in February 2015. Tr. 734. Plaintiff alleged a

disability onset date of September 5, 2014. Id. Plaintiff’s claims were denied by an

administrative law judge (“ALJ”) on November 1, 2017. Tr. 746. Plaintiff timely appealed the

ALJ’s decision, and on April 30, 2020, this Court remanded the case for further proceedings. Tr.

2423. Specifically, the ALJ was instructed to “(1) allow a medical expert to opine as to

Plaintiff’s functional limitations after reviewing all of the medical evidence of record; (2)

conduct a de novo review of the medical evidence in light of the medical expert’s opinion; (3)

accept or provide legally sufficient reasons for rejecting Plaintiff’s subjective symptom

testimony; and (4) conduct any further necessary proceedings.” Tr. 2423.

On remand, the ALJ conducted additional hearings on October 22, 2020, and February 9,

2021. Tr. 2206, 2179. Plaintiff’s claims were ultimately denied for the second time on March 29,

2021. Tr. 2169. The Appeals Council denied Plaintiff’s request for review, making the ALJ’s

decision the final decision of the Commissioner. Tr. 2139. This appeal followed.

FACTUAL BACKGROUND

Born in 1975, Plaintiff was 39 years old on her alleged disability onset date. Tr. 140.

Plaintiff left school in the 11th grade and later obtained a GED. Tr. 922, 2087. Plaintiff has past

2 “Tr” refers to the Transcript of Social Security Administrative Record provided by the

Commissioner.

work experience as a cashier and as a truck driver. Tr. 922–23, 1282. She alleges disability based

on the effects of her cerebrovascular accident (“CVA”)3; migraines; vertigo; mental health

conditions; and plantar fasciitis. Tr. 737, 1184–1207.

LEGAL STANDARD

The court must affirm the Commissioner's decision if it is based on proper legal standards

and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879

F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh

“both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez

v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400

F.3d 676, 680–81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where

the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must

consider the entire record as a whole and may not affirm simply by isolating a specific quantum

of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected ... to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

3 In 2004, Plaintiff sustained several small strokes of unknown etiology. Tr. 820.

The Commissioner has established a five-step process for determining whether a person

is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First,

the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if

so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).

At step two, the Commissioner determines whether the claimant has a “medically severe

impairment or combination of impairments.” Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§

404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's]

physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If

not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner

determines whether the impairments meet or equal “one of a number of listed impairments that

the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the analysis proceeds. Yuckert, 482 U.S. at 141.

At this point, the Commissioner must evaluate medical and other relevant evidence to

determine the claimant's “residual functional capacity” (“RFC”), which is an assessment of

work-related activities that the claimant may still perform on a regular and continuing basis,

despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)–(c),

416.920(e), 416.945(b)–(c). At the fourth step, the Commissioner determines whether the

claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141, 107 S.Ct. 2287; 20 C.F.R.

§§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform

past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step

five, the Commissioner must establish that the claimant can perform other work that exists in

significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)–(f),

416.920(e)–(f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§

404.1566, 416.966.

THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff met the insured status requirements of the Act

but had engaged in substantial gainful activity between April 2016 and March 2017. Tr. 2156.

The ALJ found, however, that there was a continuous 12-month period in which Plaintiff did not

engage in substantial gainful activity, and the remainder of her decision addressed that period.

Tr. 2157.

At step two, the ALJ found that Plaintiff had the following severe impairments: status

post cerebrovascular accident (CVA); migraines; positional vertigo; neurocognitive disorder,

major depressive disorder; post-traumatic stress disorder (PTSD), and panic disorder. Tr. 2157.

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

impairments that met or equaled a listed impairment. Tr. 2158. The ALJ found that Plaintiff had

the RFC to perform light work with the following limitations:

[S]he can lift, carry, push, and pull 25 pounds occasionally and 20 pounds frequently; can

stand and walk six hours total in an eight-hour workday; can sit six hours total in an

eight-hour workday; can frequently climb ramps and stairs; can occasionally climb

ladders, ropes, and scaffolds; can occasionally crouch; should avoid concentrated

exposure to hazards; has sufficient concentration, persistence, and pace to complete

simple, routine tasks in two-hour increments for a normal workday and workweek with

normal breaks; should receive instruction in written format; would work best

independently but can work with a small group of coworkers on an occasional basis;

should be in a workplace with simple and few changes in routine.

Tr. 2160.

At step four, the ALJ found that the Plaintiff was unable to perform any past relevant

work. Tr. 2168. At step five, the ALJ found that, in light of Plaintiff’s age, education, work

experience, and RFC, there were jobs that existed in significant numbers in the national economy

that Plaintiff could perform despite her impairments, including office helper, cleaner

housekeeper, and routing clerk. Tr. 2168-69. Thus, the ALJ concluded that the Plaintiff was not

disabled within the meaning of the Act. Tr. 2169.

DISCUSSION

Plaintiff argues that the ALJ committed several reversible errors, including failing to craft

an RFC that properly accounted for her limitations, improperly relying on a vocational expert’s

testimony at step five, and failing to comply with this Court’s prior instruction regarding

Plaintiff’s symptom testimony. Pl. Br. at 3, 16, 19.

I. The RFC

The RFC is the most a person can do in light of their physical or mental impairments. 20

C.F.R. §§ 404.1545, 416.945. An ALJ is responsible for determining a claimant's RFC. 20

C.F.R. §§ 404.1546(c), 416.946(c). In formulating an RFC, the ALJ must consider all medically

determinable impairments, including those that are not “severe,” and evaluate “all of the relevant

medical and other evidence.” Id.; SSR 96-8p, available at 1996 WL 374184. The RFC is used at

step four of the sequential analysis to determine if a claimant can perform past relevant work and

at step five to determine if a claimant can adjust to other work that exists in significant numbers

in the national economy. 20 C.F.R. §§ 404.1520(a), 416.920(a).

An ALJ may rely on the testimony of a vocational expert (“VE”) to determine whether a

claimant can perform past relevant work at step four or other work in the national or regional

economy at step five. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Limitations

supported by substantial evidence must be incorporated into the RFC and, by extension, the

dispositive hypothetical question posed to the VE. Osenbrock, 240 F.3d at 1163–65. The Court

should uphold step four and five determinations “if the ALJ applied the proper legal standard and

his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th

Cir. 2005).

At issue in this case is the ALJ’s translation of Plaintiff’s limitations into concrete

restrictions within the RFC. To start, the ALJ found Plaintiff had a moderate limitation in

understanding, remembering, and applying information. Tr. 2158. The ALJ, citing the agency

doctors’ opinions, explained that although Plaintiff was markedly limited in understanding and

remembering detailed information, she was not limited in understanding and remembering

simple instructions, work procedures, and locations. Id., citing Tr. 1020-22. Additionally, in

accordance with the agency doctors’ findings, the ALJ concluded Plaintiff was moderately

limited in her ability to interact and get along with others. Tr. 2159. The ALJ noted that although

Plaintiff reported having difficulty getting along with others, she denied having problems with

authority figures and denied having a history of losing work because of difficulty getting along

with others. Id. Thus, the ALJ determined moderate limitations were warranted in understanding,

remembering, and applying information and in interacting and getting along with others.

a. Limitation to simple information

An ALJ's hypothetical to a vocational expert must accurately set forth all of a claimant's

credited limitations. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

2009) (“If an ALJ's hypothetical does not reflect all of the claimant's limitations, then ‘the

expert's testimony has no evidentiary value to support a finding that the claimant can perform

jobs in the national economy.’” (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir.

1991)). However, the Court may affirm if the ALJ's failure to include all of the claimant's

limitations was harmless. See, e.g., Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)

(reviewing for harmless error). “An error is harmless only if it is ‘inconsequential to the ultimate

nondisability determination.’” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (quoting

Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)).

Plaintiff alleges error because RFC restrictions to “simple, routine tasks” and “receiv[ing]

instruction in written format” do not address her limitation to “simple information.” Tr. 2160; Pl.

Br. at 8-9. Plaintiff argues that limiting the types of tasks she can perform and the format in

which instructions are conveyed does not address the complexity of the information she would

be required to process. Pl. Br. at 8. According to Plaintiff, she would “have difficulty receiving

every kind or type of information, and in whatever form,” and therefore, a limitation to simple

information was incorrectly omitted from her RFC. Pl. Br. at 9. Plaintiff thus contends that this

omission resulted in an erroneous RFC and hypothetical to the VE.

The Court agrees that omitting the limitation to “simple information” without explanation

amounts to legal error. The Commissioner argues that the limitation to simple information was

“considered and addressed” in the functional limitations to simple, routine tasks and receiving

instructions in written format. Def. Br. at 6. However, the agency doctors’ opinions make it clear

that Plaintiff’s limitation to “understand and recall simple information” and her limitation to

complete “simple, routine tasks,” are separate limitations. See Tr. 1057. The limitations are even

classified separately in the agency doctors’ report. For example, under the heading “[r]ate the

individual’s understanding and memory limitations, the agency doctors stated that while Plaintiff

can “understand and recall simple information,” she cannot “remember detailed or complex

information.” Tr. 1057; whereas, under the heading “[r]ate the individual’s sustained

concentration and persistence limitations,” the agency doctors state that Plaintiff “is able to

maintain attention, concentration, persistence, and pace for simple routine tasks.” It is clear to the

Court that, while memory and understanding may have some overlap with concentration,

persistence, and pace, they are not the same. Therefore, the restrictions to simple tasks and

written instructions in the hypothetical to the VE do not address the level of complexity of

instructions that Plaintiff is capable of understanding. Thus, the ALJ erred. As explained below,

however, the ALJ’s error is ultimately harmless.

The ALJ’s failure to include a limitation to simple information in the hypothetical may

have resulted in the VE offering representative jobs that exceed Plaintiff’s reasoning level. For

example, in Leach v. Kijakazi, 70 F.4th 1251 (9th Cir. 2023), the ALJ omitted the word “short”

from the limitation to “short, simple, instructions” in the hypothetical to the VE. Based on the

hypothetical, the VE offered three representative jobs, all with a reasoning level of two. Jobs

with reasoning level one only require an ability to “apply commonsense understanding to carry

out simple one- or two-step instructions,” whereas jobs with reasoning level two require an

ability to “apply commonsense understanding to carry out detailed but uninvolved written or oral

instructions.” Leach, 70 F.4th at 1256 (emphasis added). In that case, the Court could not

conclude whether someone with limitations to short, simple instructions could perform the three

exemplary jobs, and the case was remanded for further proceedings.

In this case, as in Leach, it is unclear whether Plaintiff would be capable of performing

jobs with reasoning level two because of limitations in her ability to understand and remember

detailed information. This case, however, is distinguishable from Leach because the VE in this

case provided a representative occupation requiring only reasoning level one: cleaner

housekeeper. Moreover, the cleaner housekeeper position accounts for 219,000 jobs in the

national economy, which exceeds the threshold for existing in significant numbers. See Gutierrez

v. Comm’r of Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2014) (25,000 jobs in the national economy

presented a close call but is significant). Consequently, because the VE provided an exemplary

job that accounts for Plaintiff’s limitations at reasoning level one and exists in significant

numbers in the national economy, the Court concludes that the ALJ’s error was harmless because

it was inconsequential to the ultimate non-disability determination. Lambert, 980 F.3d at 1278.

Ultimately, the ALJ’s error is harmless because the VE provided jobs that account for the

Plaintiff’s limitation to simple information that also exist in significant numbers in the economy.

b. Limitation to superficial interactions

Plaintiff next argues the ALJ erred by failing to include a limitation to only “superficial”

interactions with coworkers, supervisors, and the public in the RFC. According to Plaintiff, the

ALJ failed to include the limitation to only superficial interactions in the written RFC, and thus,

remand is warranted. But as Plaintiff acknowledged, the ALJ included the limitation to

superficial contact in the hypothetical to the VE during the hearing.4 Pl. Br. at 9. The ALJ stated

and clarified the superficial contact limitation several times to be sure the VE fully understood

the scope of the limitation. See Tr. 2194, 2195, 2196, 2199. The VE then made

recommendations that accounted for the superficial interaction limitation. As such, any error in

failing to include the superficial interaction limitation in the written RFC is inconsequential, as

the VE was given an accurate summary of Plaintiff’s limitations upon which his testimony is

based. See Leach v. Kijakazi, 70 F.4th 1251, 1255 (9th Cir. 2023) (stating that when an ALJ

“inaccurately summarizes a claimant's limitations, we ordinarily must reverse and remand . . . by

contrast, [when] an ALJ accurately summarizes a claimant's limitations, we ordinarily must

affirm”).

4 Plaintiff advanced a separate claim of error that the ALJ failed to provide any

interaction limitations for supervisors. Pl. Br. at 5-6. However, this argument is undeveloped and

in any event, the ALJ included supervisors in the superficial contact limitation in her

hypothetical to the VE. See Tr. 2195, 2196, 2199.

c. Limitation to small groups of coworkers

Finally, Plaintiff argues the ALJ erred by failing to specify what constitutes a “small

group” of coworkers. This argument is unavailing for several reasons. To start, Plaintiff offers no

caselaw or statutory support for her assertion that the failure to quantify the exact boundaries of

what number constitutes a “small group” amounts to legal error. Instead, Plaintiff argues that the

VE “interpreted ‘a small group’ of coworkers as not being restrictive, thereby allowing [Plaintiff]

to work with large numbers of coworkers.” Pl. Br. at 4. According to Plaintiff, the VE’s flawed

interpretation resulted in representative jobs that require extensive contact with coworkers and

the public. Pl. Br. at 4-5. Plaintiff claims the ALJ erred in relying on VE testimony at step five

by failing to reconcile conflicts between the VE’s testimony and the DOT. Pl. Br. at 17.

Specifically, Plaintiff claims that the jobs identified by the VE at step five conflicted with the

RFC limitation to occasionally working with a small group of coworkers. Plaintiff relies on

Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017), arguing that “our common

experience” confirms the jobs cited by the VE exceed the limitations proffered included in the

RFC. Pl. Br. at 17. In Lamear, the Ninth Circuit found the ALJ was required to ask the VE to

reconcile an apparent conflict between a person with limitations in his ability to handle, finger,

and feel with his left hand, and representative jobs that required his being able to handle, finger

and reach for as much as two-thirds of the workday. According to Plaintiff, this case is analogous

to Lamear because the “office helper job involves extensive involvement with coworkers,” and

the cleaner-housekeeper is required to “render personal assistance to patrons.” Pl. Br. at 18. For

the reasons stated below, this argument is unavailing.

In Lamear, the court noted, an ALJ’s duty to inquire further into conflicts between a

VE’s testimony and the DOT, is triggered only when conflicts are obvious and apparent.

Lamear, 865 F.3d at 1205. In this case, there is no obvious or apparent conflict between the VE’s

testimony and the DOT. As the Commissioner points out, the DOT descriptions for the three jobs

proposed by the VE are consistent with limitations to “both superficial and minimal interpersonal

interaction.” Def. Br. at 8. For example, cleaner housekeepers and routing clerks are both

categorized as functional level 8, the lowest rating possible for interacting with people; office

helpers are categorized as functional level 6, but interacting with people is still considered “not

significant.” See DOT Appendix B - Explanation of Data, People, and Things, 1991 WL 688701;

Office Helper DICOT 239.567-010 (G.P.O.), 1991 WL 672232. Moreover, as stated in Lamear,

in order to avoid appeals, an ALJ should ordinarily ask the VE to explain why there is no conflict

between the DOT and a claimant’s RFC, which is precisely what the ALJ did here. Lamear, 865

F.3d at 1206; Tr. 2198. The ALJ thus did not err in relying on the VE’s testimony at step five.

II. This Court’s prior instructions to the ALJ on remand

This Court’s prior ruling instructed that on remand, the ALJ must “accept or provide

legally sufficient reasons for rejecting Plaintiff’s subjective symptom testimony.” Tr. 2423.

When a claimant has medically documented impairments that could reasonably be expected to

produce some degree of the symptoms complained of, and the record contains no affirmative

evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity of . . .

symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v.

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion [that]

the claimant is not credible is insufficient; instead, the ALJ must “state which . . . testimony is

not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12

F.3d 915, 918 (9th Cir. 1993). The reasons must be “sufficiently specific to permit the reviewing

court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.

Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the ALJ’s finding

regarding the claimant’s subjective symptom testimony is “supported by substantial evidence in

the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947,

959 (9th Cir. 2002) (internal citation omitted).

Social Security Ruling (“SSR”) 16-3p provides that “subjective symptom evaluation is

not an examination of an individual’s character.” It requires that the ALJ consider all the

evidence in an individual’s record when evaluating the intensity and persistence of symptoms.

SSR 16-3p, available at 2016 WL 1119029, at *1–2. The ALJ must examine “the entire case

record, including the objective medical evidence; an individual’s statements about the intensity,

persistence, and limiting effects of symptoms; statements and other information provided by

medical sources and other persons; and any other relevant evidence in the individual’s case

record.” Id. at *4.

The ALJ found Plaintiff’s testimony as to the severity of her symptoms was inconsistent

with the evidence in the record. Tr. 2163. The ALJ stated that it is “reasonable to infer from the

evidence that the claimant is capable of performing and sustaining work activities at a modified

light exertional level with nonexertional limitations.” Tr. 2161. To support her conclusion, the

ALJ cited to Plaintiff’s routine conservative medical treatment, activities of daily living,

improved symptoms with treatment, and lack of objective medical evidence.

The ALJ also pointed to treatment notes indicating that Plaintiff’s symptoms improved

with treatment, including a note from July 2020 in which Plaintiff attested to “feeling great.” Id.,

citing Tr. 3069, 3109, 3225, 3597.

/ / /

/ / /

a. Treatment history inconsistent with alleged symptom severity

The ALJ cited Plaintiff’s treatment history for headaches and vertigo to support

discounting Plaintiff’s symptom testimony. Tr. 2161. A claimant’s treatment record is relevant

evidence that ALJs should consider when evaluating subjective complaints. See 20 C.F.R. §§

404.1529(c)(1)–(3), 416.929(c)(1)–(3). Treatment records, as well as the “type, dosage,

effectiveness, and side effects of any medication,” are appropriate factors for an ALJ to consider

in assessing a claimant’s subjective symptom testimony. 20 C.F.R. §§ 404.1529(c), 416.929(c);

see also Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Evidence of a favorable response to

conservative treatment can undermine a claimant’s report of disabling pain. See Tommasetti v.

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

The ALJ noted Plaintiff did not report any increase in migraine symptoms or frequency

until a November 12, 2015, visit with her primary care doctor. Tr. 2161, citing Tr. 2021. The

ALJ also pointed out that Plaintiff left a psychological exam on November 10, 2015, alleging a

migraine, and later told the examining psychologist she had “received emergency treatment and

was assessed with multiple strokes” upon leaving the exam. Tr. 2161, citing Tr. 1944-45.

However, the ALJ stated that there were no medical records showing subsequent emergent care

for migraines, nor is there evidence of any new stroke occurrences anywhere in the record. Tr.

2161. The ALJ noted that Plaintiff’s complaints of migraines were infrequent until early 2017.

Tr. 2162. In March 2017, the ALJ cited records showing Plaintiff’s migraines had “improved

overall,” but in May 2017, she stopped taking her medication because she was concerned it may

cause eye problems, despite being told this was unlikely. Id. The ALJ also pointed out that in

January 2018, although Plaintiff reported only a few headache-free days a month, the majority of

her medical appointments from 2018 through 2020 show Plaintiff denies both headache and

dizziness. Id. citing Tr. 2968, 3109, 3223, 3262, 3298, 3338, 3426, 3374, 3497, 3550.

Although Plaintiff complained of debilitating back pain, the ALJ cited treatment records

diagnosing only “strain of muscle, fascia, and tendon of the lower back” a Tr. 2164, citing Tr.

2756. An orthopedic examination after a work accident found only mild degenerative changes to

Plaintiff’s lumbar spine, and no strength or sensory deficits. Tr. 2164, citing Tr. 2882-83.

Additionally, the ALJ noted subsequent treatment notes reported improvements in the frequency

and severity of Plaintiff’s pain. Tr. 2164, citing Tr. 2933, 3069.

Upon review, the ALJ’s conclusions are a reasonable reading of the record. To start, ALJ

may discount testimony based on “unexplained or inadequately explained failure to seek

treatment or to follow a prescribed course of treatment.” Molina v. Astrue, 674 F.3d 1104, 1112

(9th Cir. 2012). For example, on November 10, 2015, Plaintiff complained of debilitating

migraines to the extent that she left in the middle of a consultative psychological exam to seek

emergent care. Tr. 1945. However, there is no record of her seeking any medical treatment for

worsening migraines until an appointment with her primary care provider on November 12,

2015, two days after leaving the consultative exam. Tr. 2021. Thereafter, the record shows few

complaints of migraines until early 2017. See, e.g., Tr. 2017, 2012, 2007, 2003, 1998, 1995,

1990, 1986, 1981, 1975. Plaintiff reported experiencing relief when taking Topimirate but in

May 2017, reported discontinuing the medication due to concerns it may cause eye problems. Tr.

2123. Plaintiff reported that she had a “couple of migraines per month” but that she could head

them off with tramadol. Id. Finally, in April 2019, Plaintiff was switched to a new migraine

medication, and thereafter does not complain of migraines, even reporting “feeling great” in July

2020. Tr. 3515, 3597. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.

2006) (impairments that “can be controlled effectively with medication are not disabling for the

purpose of determining eligibility”). The reasoning provided by the ALJ is supported by

substantial evidence and thus will not be disturbed.

b. Activities of daily living

The ALJ cited Plaintiff’s activities of daily living to support discounting her symptom

testimony. Activities of daily living can form the basis for an ALJ to discount a claimant’s

testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold

for transferable work skills”; or (2) where the activities “contradict [a claimant’s] testimony.”

Orn, 495 F.3d at 639. A claimant, however, need not be utterly incapacitated to receive disability

benefits, and sporadic completion of minimal activities is insufficient to support a negative

credibility finding. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also Reddick,

157 F.3d at 722 (9th Cir. 1998) (requiring the level of activity to be inconsistent with the

claimant’s alleged limitations to be relevant to his or her credibility).

The ALJ first noted that Plaintiff testified she does not do housework or prepare meals

but pointed out that testimony conflicted with Plaintiff’s function report stating she “was able to

prepare simple meals and do housework for as long as needed.” Tr. 2163, citing Tr. 929, 1266-

67. The ALJ cited Plaintiff’s ability to drive, and shop weekly for groceries and animal supplies.

Tr. 2163. The ALJ pointed out that, during the relevant period, Plaintiff was able to care for

animals, including horses, ducks, and chickens. Id. Finally, the ALJ noted Plaintiff was able to

work past her alleged onset date, even reaching “substantial gainful activity level for 12 months.”

Tr. 2164. Plaintiff was still working part-time as of the date of the last hearing, October 22, 2020.

Tr. 2266. The ALJ noted that the type of work Plaintiff performed as a cashier would be

precluded by her RFC, meaning her “level of functioning was generally inconsistent with the

extent of her alleged symptoms and limitations.” Id.

Ordinarily, a plaintiff’s ability to do housework and prepare simple meals does not

amount to substantial evidence the ALJ may rely on to discount Plaintiff’s symptom testimony.

See Vertigan, 260 F.3d at 1050 (“This court has repeatedly asserted that the mere fact that a

Plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited

walking for exercise, does not in any way detract from her credibility as to her overall disability.

One does not need to be ‘utterly incapacitated’ in order to be disabled.”) (quoting Fair v. Bowen,

885 F.2d 597, 603 (9th Cir. 1989)). However, when a Plaintiff’s daily activities contradict their

attested limitations, an ALJ may rely on those inconsistencies to discount Plaintiff’s testimony.

See Reddick, 157 F.3d at 722 (9th Cir. 1998) (requiring the level of activity to be inconsistent

with the claimant’s alleged limitations to be relevant to his or her credibility). In this case, the

ALJ identified a conflict between Plaintiff’s testimony that she does not cook or do the dishes

anymore, and only vacuums about “once a month,” with her written testimony stating she cooks

“daily,” “sweeps floors, laundry, dishes, feed and water animals” for “as long as it takes to get

done. Tr. 966, 1266-67. Additionally, Plaintiff’s ability to work throughout the period of alleged

disability, despite claims of worsening symptoms, is clear and convincing evidence that her

symptoms are not as limiting as alleged. Again, here, it is not the minimal activities that provide

substantial evidence on which the ALJ may rely, but the conflict between the attested limitations

and the daily activities.

Much of Plaintiff’s argument addressing daily activities centers on the ALJ again

“improperly citing [her] activities of cleaning horse stalls as a basis to discredit her testimony.”

Pl. Br. at 19. Although the ALJ again relied on records of Plaintiff mucking out horse stalls to

discount Plaintiff’s symptom testimony, the ALJ provided additional support for her findings,

beyond statements regarding caring for animals and mucking out horse stalls. Had caring for

animals been the only basis for rejecting her testimony, such reasoning would again fall far short

of the clear and convincing standard. However, the ALJ provided additional clear and

convincing reasons for rejecting Plaintiff’s symptom testimony, supported by substantial

evidence, and her determination is therefore affirmed. See also Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining that an error in an ALJ’s subjective

symptom analysis is harmless where an ALJ provides at least one valid reason for discounting

testimony).

In sum, the ALJ’s findings are supported by substantial evidence, are a reasonable

interpretation of the record, and any errors that may have been committed were ultimately

harmless to the disability determination. Therefore, the ALJ’s decision must be upheld. Ford,

950 F.3d at 1154.

CONCLUSION

Because the ALJ’s decision is supported by substantial evidence in the record, the

Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

DATED this 12th day of July 2024.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge