Pope v. Kijakazi

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2

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4

5 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

6

7 MICHAEL P.,

NO. 4:23-CV-5090-TOR

8 Plaintiff,

ORDER AFFIRMING DENIAL OF

9 v. TITLE II BENEFITS

10 KILOLO KIJAKAZI, Acting

Commissioner of the Social Security

11 Administration,

12 Defendant.

13 BEFORE THE COURT is Plaintiff’s motion seeking a reversal of the Social

14 Security Commissioner’s denial of benefits (ECF No. 7). The Court has reviewed

15 the administrative record and the parties’ completed briefing, and is fully informed.

16 For the reasons discussed below, the Court DENIES Plaintiff’s motion and

17 AFFIRMS the final order of the Social Security Commissioner denying benefits.

18 JURISDICTION

19 The Court has jurisdiction over this case under 42 U.S.C. § 405(g).

20 //

1 STANDARD OF REVIEW

2 A district court’s review of a final decision of the Commissioner of Social

3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

4 limited: the Commissioner’s decision will be disturbed “only if it is not supported

5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,

6 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means

7 relevant evidence that “a reasonable mind might accept as adequate to support a

8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently,

9 substantial evidence equates to “more than a mere scintilla[,] but less than a

10 preponderance.” Id. In determining whether this standard has been satisfied, a

11 reviewing court must consider the entire record as a whole rather than searching

12 for supporting evidence in isolation. Id.

13 In reviewing a denial of benefits, a district court may not substitute its

14 judgment for that of the Commissioner. If the evidence in the record “is

15 susceptible to more than one rational interpretation, [the court] must uphold the

16 ALJ’s findings if they are supported by inferences reasonably drawn from the

17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted).

18 Further, a district court “may not reverse an ALJ’s decision on account of an error

19 that is harmless.” Id. An error is harmless “where it is inconsequential to the

20 [ALJ’s] ultimate nondisability determination.” Id. at 1115 (quotation and citation

1 omitted). The appellant generally bears the burden of establishing harm. Shinseki

2 v. Sanders, 556 U.S. 396, 409-10 (2009).

3 FIVE-STEP SEQUENTIAL EVALUATION PROCESS

4 A claimant must satisfy two conditions to be considered “disabled” within

5 the meaning of the Social Security Act. First, the claimant must be “unable to

6 engage in any substantial gainful activity by reason of any medically determinable

7 physical or mental impairment which can be expected to result in death or which

8 has lasted or can be expected to last for a continuous period of not less than twelve

9 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be

10 “of such severity that he is not only unable to do his previous work[,] but cannot,

11 considering his age, education, and work experience, engage in any other kind of

12 substantial gainful work which exists in the national economy.” 42 U.S.C.

13 § 423(d)(2)(A).

14 The Commissioner has established a five-step sequential analysis to

15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §

16 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s

17 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in

18 “substantial gainful activity,” the Commissioner will find that the claimant is not

19 disabled. 20 C.F.R. § 404.1520(b).

20

1 If the claimant is not engaged in substantial gainful activities, the analysis

2 proceeds to step two. At this step, the Commissioner considers the severity of the

3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers

4 from “any impairment or combination of impairments which significantly limits

5 [his or her] physical or mental ability to do basic work activities,” the analysis

6 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment

7 does not satisfy this severity threshold, however, the Commissioner must find that

8 the claimant is not disabled. Id.

9 At step three, the Commissioner compares the claimant’s impairment to

10 several impairments recognized by the Commissioner to be so severe as to

11 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §

12 404.1520(a)(4)(iii). If the impairment is as severe, or more severe than one of the

13 enumerated impairments, the Commissioner must find the claimant disabled and

14 award benefits. 20 C.F.R. § 404.1520(d).

15 If the severity of the claimant’s impairment does meet or exceed the severity

16 of the enumerated impairments, the Commissioner must pause to assess the

17 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”),

18 generally defined as the claimant’s ability to perform physical and mental work

19 activities on a sustained basis despite his or her limitations (20 C.F.R. §

20 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis.

1 At step four, the Commissioner considers whether, in view of the claimant’s

2 RFC, the claimant is capable of performing work that he or she has performed in

3 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is

4 capable of performing past relevant work, the Commissioner must find that the

5 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of

6 performing such work, the analysis proceeds to step five.

7 At step five, the Commissioner considers whether, in view of the claimant’s

8 RFC, the claimant is capable of performing other work in the national economy.

9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner

10 must also consider vocational factors such as the claimant’s age, education and

11 work experience. Id. If the claimant is capable of adjusting to other work, the

12 Commissioner must find that the claimant is not disabled. 20 C.F.R. §

13 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the

14 analysis concludes with a finding that the claimant is disabled and is therefore

15 entitled to benefits. Id.

16 The claimant bears the burden of proof at steps one through four above.

17 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the

18 analysis proceeds to step five, the burden shifts to the Commissioner to establish

19 that (1) the claimant is capable of performing other work and (2) that such work

20 “exists in significant numbers in the national economy.” 20 C.F.R. § 416.1560(c).

1 ALJ’S FINDINGS

2 On January 21, 2021, Plaintiff applied for Title II disability benefits,

3 alleging a disability onset date of September 8, 2020, which was later amended to

4 December 1, 2020. Tr. 22, 210. Plaintiff’s application was denied both initially

5 and upon reconsideration. Tr. 94, 100. On March 8, 2022, a telephonic hearing

6 was held before an administrative law judge (ALJ). Tr. 41. On March 28, 2022,

7 the ALJ denied Plaintiff’s claim. Tr. 22.

8 As a threshold matter, the ALJ found that Plaintiff met the insured status

9 requirements of the Social Security Act through December 31, 2026. Tr. 24. At

10 step one of the sequential evaluation analysis, the ALJ found Plaintiff had not

11 engaged in substantial gainful activity since the amended onset date of December

12 1, 2020. Id. At step two, the ALJ found Plaintiff had the following severe

13 impairments: moderate multilevel spondylosis, diabetes mellitus, rheumatoid

14 arthritis, status post rotator cuff injury, meniscal knee tear, and obesity. Id. At

15 step three, the ALJ determined that Plaintiff did not have an impairment or

16 combination of impairments that met or medically equaled the severity of a listed

17 impairment. Id. The ALJ then found Plaintiff had the RFC to perform light work

18 as defined in 20 C.F.R. § 404.1567(b), but stipulated:

19 The claimant can perform occasional postural activities but never climb

ladders, ropes or scaffolds. The claimant should avoid more than

20 moderate exposure to hazards (such as unprotected heights and

dangerous moving machinery).

1 Tr. 27.

2 At step four, the ALJ found Plaintiff was incapable of performing past

3 relevant work as a corrections officer. Tr. 33. At step five, the ALJ found that,

4 considering Plaintiff’s age, education, past work experience, and RFC, as well as

5 testimony from a vocational expert (VE), there were jobs existing in significant

6 numbers in the national economy which Plaintiff could perform, such as a small

7 products assembler and a routing clerk. Tr. 33-34.

8 Based on the foregoing analysis, the ALJ concluded Plaintiff was not

9 disabled as defined in the Social Security Act from the date of amended onset

10 through the date of her decision. Tr. 34. On April 20, 2023, the Appeals Council

11 denied review, making the decision of the ALJ the final decision of the

12 Commissioner for purposes of judicial review. Tr. 6; see also 20 C.F.R. §§

13 404.981, 422.210.

14 ISSUES

15 Plaintiff seeks judicial review of the Commissioner’s decision denying him

16 disability insurance benefits under Title II of the Social Security Act. Plaintiff

17 submits the following issues for this Court’s review:

18 1. Whether the ALJ’s decision to discredit Plaintiff’s physical symptom

19 testimony was supported by specific, clear, and convincing evidence; and

20

1 2. Whether the ALJ applied the correct legal standard in evaluating certified

2 Physician Assistant (PA) Cameron Ritchie’s report.

3 ECF No. 7 at 1-2.

4 DISCUSSION

5 I. Physical Symptom Testimony

6 Plaintiff contends that the ALJ’s decision to discredit his physical symptom

7 testimony was unsupported by specific, clear, and convincing evidence. ECF No.

8 7 at 4-13. Broadly, Plaintiff advances three arguments related to this contention:

9 first, that the ALJ merely summarized the medical evidence without explaining

10 why it undermined Plaintiff’s allegations; second, that the ALJ failed to

11 contextualize reports showing improvement of Plaintiff’s symptoms with physical

12 therapy; and third, that the ALJ’s focus on Plaintiff’s recreational activities was

13 misplaced. Id. The Court finds that none of these contentions support reversal.

14 A. Legal Standard for Evaluating Symptom Testimony

15 An ALJ engages in a two-step analysis in deciding whether to credit a

16 claimant’s subjective symptom testimony. SSR 16-3p, 2016 WL 1119029, at *2.

17 “First, the ALJ must determine whether there is ‘objective medical evidence of an

18 underlying impairment which could reasonably be expected to produce the pain or

19 other symptoms alleged.’” Molina, 674 F.3d at 1112 (quoting Vasquez v. Astrue,

20 572 F.3d 586, 591 (9th Cir. 2009)). “The claimant is not required to show that [the

1 claimant’s] impairment ‘could reasonably be expected to cause the severity of the

2 symptom [the claimant] has alleged; [the claimant] need only show that it could

3 reasonably have caused some degree of the symptom.’” Vasquez, 572 F.3d at 591

4 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).

5 Second, “[i]f the claimant meets the first test and there is no evidence of

6 malingering, the ALJ can only reject the claimant’s testimony about the severity of

7 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations

9 omitted). General findings are insufficient; rather, the ALJ must identify what

10 symptom claims are being discounted and what evidence undermines these claims.

11 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). “The clear and

12 convincing [evidence] standard is the most demanding required in Social Security

13 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.

14 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

15 Factors to be considered in evaluating the intensity, persistence, and limiting

16 effects of a claimant’s symptoms include: (1) daily activities; (2) the location,

17 duration, frequency, and intensity of pain or other symptoms; (3) factors that

18 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and

19 side effects of any medication an individual takes or has taken to alleviate pain or

20 other symptoms; (5) treatment, other than medication, an individual receives or has

1 received for relief of pain or other symptoms; (6) any measures other than

2 treatment an individual uses or has used to relieve pain or other symptoms; and (7)

3 any other factors concerning an individual’s functional limitations and restrictions

4 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20

5 C.F.R. § 404.1529(c). The ALJ must “consider all of the evidence in an

6 individual’s record” in determining “how symptoms limit ability to perform work-

7 related activities.” SSR 16-3p, 2016 WL 1119029, at *2.

8 In Plaintiff’s case, the ALJ found that while some of his physical

9 impairments could be reasonably expected to produce his alleged symptoms, other

10 allegations regarding the intensity, persistence, and limiting effects of those

11 symptoms were inconsistent with the objective medical evidence and related

12 record evidence. Tr. 28.

13 B. Consideration of the Medical Evidence

14 Plaintiff first argues that the ALJ did not properly consider the objective

15 medical evidence supporting his claims. ECF No. 7 at 6. He claims that the ALJ

16 appropriately noted his allegations, but failed to distinguish between findings that

17 were supportive of his claims and those which were inconsistent with his

18 allegations. Id. at 7. He presses that this approach is inconsistent with the Ninth

19 Circuit’s decision in Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).

20 In Lambert, the Ninth Circuit determined that the ALJ erred in rejecting a

1 claimant’s subjective symptom testimony because the ALJ failed to specifically

2 identify what portions of the claimant’s testimony he found not credible and failed

3 to explain what evidence specifically undercut that testimony. Id. The ALJ in

4 Lambert summarized the claimant’s medical evidence, and then offered big picture

5 four reasons for rejecting her claims: (1) her treatment was not of the kind one

6 would expect for a completely disabled individual; (2) the record reflected

7 significant gaps in her treatment history; (3) claimant’s use of medications did not

8 suggest more limiting impairments than those identified by the ALJ; and (4) that

9 medications had been relatively effective in controlling her symptoms. Id. at 1270.

10 The court held that these four “high-level” reasons were insufficient to support

11 discrediting the claimant’s subjective pain complaints, stating, “‘providing a

12 summary of medical evidence . . . is not the same as providing clear and

13 convincing reasons for finding the claimant’s symptom testimony not credible.’”

14 Id. at 1278 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)).

15 As Defendant correctly argues, the ALJ’s decision here does not suffer from

16 the same defects as those in Lambert. Unlike the Lambert ALJ, who failed to

17 differentiate between supportive and non-supportive medical evidence, the ALJ

18 here explained why the objective medical and other record evidence did not fully

19 corroborate Plaintiff’s allegations of right shoulder pain, back pain, knee pain, and

20 arthritis.

1 As to the objective medical evidence of Plaintiff’s shoulder pain, the ALJ

2 reported:

3 The claimant continued to seek treatment for right shoulder pain after

his alleged onset . . . However, the objective medical evidence is not

4 consistent with any manipulative limitations . . . [Plaintiff] rated his

pain as a two to three out of ten. He denied numbness or tingling. On

5 exam, he had no edema, no tenderness to palpation, and he had 5/5

strength with pain on external rotation against resistance . . . His

6 sensation was intact to light touch. Dr. Miller found the claimant did

not have any significant rotator cuff injury or structural injuries which

7 would require surgery. He recommended continued progression with

physical therapy and home exercises on the shoulder.

8

9 Tr. 29 (emphasis added).

10 The foregoing is not just a summary, but an explanation for why the ALJ

11 found Plaintiff’s pain reports inconsistent with the medical record, which showed a

12 normal range of motion with pain against resistance, normal sensation, and no need

13 for surgery. Id. Whether or not Plaintiff agreed with these stated reasons, they

14 were specific, objective medical findings that the ALJ believed to undercut his

15 claims, not a mere synopsis of the medical records. Compare Smith v. Kijakazi, 14

16 F.4th 1108, 1111 (9th Cir. 2021) (holding an ALJ must not simply recite the

17 medical evidence).

18 The ALJ identified similar medical record evidence which contradicted

19 Plaintiff’s reports of back pain, leg pain, and diabetes mellitus with neuropathy.

20 The ALJ explained that after Plaintiff’s completion of physical therapy, his

1 medical records noted that his lower back pain and knee discomfort “were all

2 limited in nature and he was able to resolve them without assistance,” and that he

3 did not require the use of a wheelchair or walker for a year. Tr. 29. The ALJ also

4 wrote:

5 On February 21, 2022, the claimant saw Cameron Ritchie, P.A.-C., an

orthopedics specialist. On exam, the claimant walked with a normal,

6 non-antalgic heel to toe gait. On the right, he had 4/5 strength in hip

flexors, quadriceps, knee extensor, and knee flexion. He had 5/5

7 strength in all other muscles tested . . . [T]he objective findings of the

evaluation, such as normal gait, and intact sensation, are not consistent

8 with the claimant’s alleged severity of his limitations.

9 Tr. 30.

10 Later, the ALJ added that the Plaintiff “had no limp” during his diabetes

11 exam, id., and again emphasized his wife’s claims of his knee pain were

12 inconsistent with the overall objective medical evidence, noting that PA Ritchie’s

13 exam showing a normal gait. Tr. 32. Contrary to Plaintiff’s assertions, these

14 specific findings do not leave the Court guessing as to what medical evidence the

15 ALJ believed to contradict his symptom testimony.

16 Finally, the ALJ offered supportive medical evidence for why she was

17 rejecting Plaintiff’s symptom reports related to his rheumatoid arthritis.

18 Specifically, she explained that Plaintiff had no joint pain, swelling, edema,

19 clubbing, sensation loss, or weakness on exam in both February and September

20 2021; that his Sulfasalazine monotherapy appeared to be working; and that he “was

1 in clinical remission.” Tr. 31. The position of these findings within the ALJ’s

2 broader analysis—after the ALJ’s summary of Plaintiff’s self-reports and her

3 notation that his statements were inconsistent with the record evidence—

4 establishes that they were not offered as a mere summary of Plaintiff’s medical

5 record, but instead as undercutting his claims. As such, the Court finds that

6 Plaintiff’s case does not suffer from a Lambert style defect.

7 C. Physical Therapy Reports

8 Plaintiff also challenges the ALJ’s discussion of his improvement of back

9 and knee pain with physical therapy. ECF No. 7 at 9-12. According to Plaintiff,

10 his discharge from in-home therapy was not the end of his subjective back pain,

11 and he still could not walk or stand on a sustained basis. Id. at 11. He alleges that

12 the ALJ did not sufficiently explain why she was rejecting these symptom reports

13 on the basis of his physical therapy discharge or account for the fact that his

14 reported limitations were incompatible with light work. Id. at 11-12.

15 The Court disagrees with Plaintiff’s claim that the ALJ did not figure his

16 reports of being unable to stand or walk for continuous periods of time into her

17 report or that she rejected them without explanation. The ALJ accounted for

18 Plaintiff’s claim that his sciatica made “moving, walking, bending, stooping and

19 standing painful and sometimes forced him to use a wheelchair or walker,” Tr. 28,

20

1 and noted that his wife had endorsed the same limitations, Tr. 31. She also

2 recounted his testimony that:

3 [H]e had neuropathy in his feet and could not feel his feet, and this

resulted in him falling sometimes. The claimant testified that he could

4 walk for a half of a city block and stand for 15 to 20 minutes before he

needed to sit down. He stated that he used a scooter when available,

5 and otherwise, walking around the store would cause an exacerbation

of back pain for two to three days. The claimant testified he shifted

6 positions frequently. He stated he spent 30 to 40 percent of his day

sitting, 30 to 40 percent of his days on his feet, and the rest of the time,

7 he was moving around, stretching.

8 Tr. 28.

9 Despite noting these claims, the ALJ determined that Plaintiff’s

10 improvements with physical therapy had mitigated some of these symptoms,

11 writing:

12 The claimant was discharged from home health physical therapy on

April 26, 2021. It was found the claimant had met all of his goals, and

13 he was noted to be independent with his home exercise program. He

was able to safely negotiate the stairs that led from his home. He . . .

14 did not feel that he required additional outpatient care. At this time, it

was noted the [claimant] continued to get some low[er] back pain . . .

15 [but] indicated that [this] [was] limited in nature, and he was able to

resolve [it] without assistance . . . While the [claimant] was noted to be

16 using a wheelchair and walker in January 2021, the claimant did not

require their use for 12 months.

17

18 Tr. 29.

19 The foregoing shows that the ALJ considered Plaintiff’s continued

20 subjective pain complaints, but discounted them based on his improvement with

1 in-home patient therapy, self-reports of improvement, and desire not to pursue

2 outpatient care. Tr. 29. Plaintiff argues that the physical therapy evidence only

3 demonstrated that “he was no longer housebound by his pain.” ECF No. 7 at 11.

4 However, as the ALJ discussed, Plaintiff’s reports of improvement and choice not

5 to seek further outpatient treatment indicated that his symptoms were mitigated.

6 See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (an ALJ may reject

7 a claimant’s symptom reports when the claimant responded favorably to

8 conservative treatment, including physical therapy). Additionally, as discussed

9 above, the ALJ did not discount Plaintiff’s self-reports merely on his improvement

10 with physical therapy; she also appropriately found that some of his symptom

11 testimony was inconsistent with the objective medical record evidence.

12 Relatedly, the Court also disagrees with Plaintiff’s assertion that the ALJ

13 failed to account for his alleged back and leg pain limitations in finding him to be

14 capable of light work. Because the ALJ found Plaintiff’s symptom testimony

15 lacked credibility, she was not required to account for those symptoms in assessing

16 his RFC. See Marilyn P. v. Comm’r of Soc. Sec., C19-5703-MLP, 2021 WL

17 977713, at *4 (W.D. Wash. March 16, 2021) (“[T]he RFC is based only on

18 medically determinable impairments.”); see also Tr. 27 (noting that the RFC was

19 based on symptoms consistent with the objective medical evidence). Further,

20 although the ALJ found Plaintiff was capable of light work, she nevertheless

1 accommodated for Plaintiff’s claimed limitations in questioning the VE, who

2 testified that the jobs of small products assembler, marker, and routing clerk still

3 existed in sufficient numbers in the national economy for employees who needed

4 the option to alternate between sitting and standing every 30 to 60 minutes. Tr. 34,

5 62. Accordingly, the ALJ did not err in her discussion of how physical therapy

6 mitigated Plaintiff’s symptoms or her determination of the RFC.

7 D. Recreational Activities

8 Next, Plaintiff argues that the ALJ improperly focused on his engagement in

9 certain recreational activities as a basis for finding his symptom testimony

10 unreliable. In her opinion, the ALJ stated that in May 2021, Plaintiff deep-water

11 snorkeled in the Bahamas while on vacation. Tr. 25, 31. She also stated that

12 Plaintiff reported that he enjoyed woodworking and made wooden flags weighing

13 less than ten pounds with assistance from his family and reported no hand

14 problems from that activity. Tr. 31. Additionally, the ALJ observed that Plaintiff

15 helped take care of his wheelchair-bound father-in-law and that he participated in

16 other household tasks including preparing quick meals, doing light chores like the

17 dishes and laundry, and shopping for groceries online. Id.

18 Plaintiff asserts that the ALJ should not have discussed these activities in

19 discrediting his symptom testimony because his self-reports were not inconsistent

20

1 with his chosen recreational outlets and the ALJ failed to explain how these

2 activities were inconsistent with his symptoms. ECF No. 7 at 13-14.

3 The Court agrees with Plaintiff that the ALJ’s discussion of his snorkeling

4 and caretaking activities was inadequate. “[T]he ALJ must identify what

5 testimony is not credible and what evidence undermines the claimant’s complaint.”

6 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater,

7 81 F.3d 821, 834 (9th Cir. 1995)). It is insufficient for the ALJ to find that a

8 claimant’s activities are “inconsistent in some unspecified way” with his symptom

9 testimony. Id. Understandably, the ALJ might have believed it self-evident that

10 the activities of deep-water snorkeling and caretaking were inconsistent with

11 Plaintiff’s alleged symptoms. After all, it would not be an untoward inference to

12 find that one’s shoulder, leg, and knee pain would be exacerbated by those kinds of

13 physically intensive and demanding activities. But the ALJ did not explain why

14 she believed that those activities were inconsistent with Plaintiff’s reports, and the

15 Court cannot substitute its own judgment for the ALJ’s. Batson v. Comm’r of Soc.

16 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). It also appears that these

17 activities had a temporal limitation; for instance, the evidence suggests that the

18 snorkeling was not a regular hobby of Plaintiff’s, but a one-time vacation activity

19 which likely did not last for a considerable period of time. See Ghanim, 763 F.3d

20 1165 (daily activities may support an adverse credibility finding “if a claimant is

1 able to spend a substantial part of his day engaged in pursuits involving the

2 performance of physical functions that are transferable to a work setting.”)

3 (quoting Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (emphasis added)).

4 However, such error was harmless, because, as discussed above, substantial

5 evidence—namely, objective medical evidence and reports of improvement with

6 conservative treatment, such as physical therapy—exists in support of the ALJ’s

7 credibility determination.

8 Differently, the Court finds that the ALJ’s discussion of Plaintiff’s

9 woodworking hobby was supported by clear and convincing evidence. As the ALJ

10 explained, woodworking requires the use of one’s hands, which was inconsistent

11 with Plaintiff’s reported fine motor limitations and symptoms. Tr. 31. Because the

12 ALJ sufficiently explained why this hobby was inconsistent with Plaintiff’s alleged

13 symptom reports and the medical evidence suggested his arthritis was in clinical

14 remission at this stage, the Court finds the ALJ’s decision on this point was

15 supported by clear and convincing evidence.

16 II. Evaluation of PA Cameron Ritchie’s Report

17 Finally, Plaintiff challenges the ALJ’s discussion of PA Ritchie’s medical

18 report. PA Ritchie physically examined Plaintiff for his back pain on February 21,

19 2022. Tr. 1512. He recommended Plaintiff use a lumbar brace to help increase his

20 stamina and reduce pain and discussed with Plaintiff the importance of losing

1 weight and gaining core strength. Id. PA Ritchie also added:

2 [Plaintiff] is deciding if he should apply for Social Security [benefits]

at this time because he cannot return to work as a correctional officer.

3 He may benefit from a vocational counselor to help find [if] a suitable

job is available. We will look into this and see what options he may

4 have at this time.

5 Id.

6 In summarizing PA Ritchie’s report during her discussion of the medical

7 evidence, the ALJ wrote:

8 The undersigned finds his opinion to be somewhat persuasive, in that

this opinion clearly establishes that the provider does not think the

9 claimant is totally disabled but rather there is other work he can do, just

not that of a correction officer. The undersigned also notes that the

10 objective findings of the evaluation, such as a normal gait, and intact

sensation, are not consistent with the claimant’s alleged severity of his

11 limitations.

12 Tr. 30.

13 Plaintiff presses that the ALJ’s analysis was erroneous for two reasons. ECF

14 No. 7 at 15-16. First, he claims that the ALJ improperly found it relevant that PA

15 Ritchie thought Plaintiff was not totally disabled, but capable of some work, even

16 though eligibility for Title II benefits does not require “total disability.” Id. at 15.

17 Second, he argues that PA Ritchie did not offer a functional assessment, so his

18 statement that Plaintiff was capable of some work “may have been based on a

19 belief that Plaintiff would be able to perform sedentary-type jobs,” which would

20 support a finding of disability under the Medical Vocational Guidelines. Id.

1 Defendant responds that it was reasonable for the ALJ to infer PA Ritchie’s

2 statement was consistent with a finding of non-disability because it indicated

3 Plaintiff was capable of performing other work in the national economy. ECF No.

4 9 at 11. Alternatively, Defendant argues that PA Ritchie’s statement was not a

5 medical opinion under the relevant regulations, but instead “other medical

6 evidence” which the ALJ was not required to evaluate the persuasiveness of, and

7 that therefore any error in doing so was harmless. Id. at 11-12.

8 The Court finds Defendant’s interpretation of the ALJ’s discussion of PA

9 Ritchie more persuasive. The Court does not take the ALJ’s mention of “total

10 disability” to mean that she believed Plaintiff needed to be completely

11 incapacitated in order to qualify for Social Security benefits. Tr. 30. In context, it

12 is clear that the ALJ was instead only making a finding that Plaintiff was capable

13 of some other work. Plaintiff somewhat concedes this point, but argues in the next

14 breath that the ALJ’s reliance on this analysis was misplaced because PA Ritchie

15 could have meant that Plaintiff was only capable of sedentary work, which would

16 have required a finding of disability. This argument is untenable. Even if PA

17 Ritchie’s examination notes were consistent with a finding that Plaintiff could only

18 perform sedentary work—and that argument is wholly speculative—the ALJ’s

19 recitation of that fact was, at bottom, harmless error. As discussed above, other

20 objective medical evidence supported Plaintiff’s ability to perform light work,

including the unchallenged opinions of other medical providers. See, e.g., Tr. 32-

2|| 33 (finding the opinion of medical consultant Dr. Howard Platter persuasive, which

3 || determined that Plaintiff was capable of light level work). Accordingly, the ALJ’s

4|| error in mentioning that PA Ritchie noted Plaintiff could return to work, if it

5|| existed at all, was harmless because it was otherwise supported by clear and

6|| convincing evidence.

7 CONCLUSION

8 Having reviewed the record andthe ALJ’s findings, the Court concludes that

9|| the ALJ’s decision is supported by substantial evidence and free from harmful

10]| legal error.

ACCORDINGLY, IT IS HEREBY ORDERED:

12 1. Plaintiff’s motion seeking a reversal of the order of the Social Security

13 Commissioner (ECF No. 7) is denied. The final decision of the Social

14 Security Commissioner is AFFIRMED.

15 The District Court Executive is directed to enter judgment in favor of

16|| Defendant, furnish copies to counsel, and CLOSE the file.

17 DATED November 13, 2023.

19 WawiKz THOMAS O. RICE

<= United States District Judge