Hernandez v. O'Malley

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 NORMA H., Case No.: 24-cv-121-LL-DDL

12 Plaintiff,

REPORT AND

13 v. RECOMMENDATION FOR

ORDER AFFIRMING

14 CAROLYN COLVIN, Acting COMMISSIONER’S DECISION

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Commissioner of Social Security1,

AND ENTERING JUDGMENT IN

Defendant. COMMISSIONER’S FAVOR

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19 The undersigned respectfully submits this Report and Recommendation to United

20 States District Judge Linda Lopez pursuant to 28 U.S.C. § 636(b). Plaintiff Norma H. seeks

21 judicial review of the Social Security Commissioner’s denial of her application for

22 disability benefits. See Dkt. No. 1. For the reasons stated below, the Court finds the

23 Commissioner’s determination that Plaintiff is not disabled is free of legal error and

24 supported by substantial evidence, and therefore RECOMMENDS the Commissioner’s

25 decision be AFFIRMED.

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1 Commissioner Colvin is automatically substituted pursuant to Federal Rule of Civil

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1 I.

2 BACKGROUND

3 A. Plaintiff’s Application for Disability Benefits

4 Plaintiff was previously granted disability insurance benefits for a closed period

5 from March 28, 2018 to February 4, 2020. Certified Administrative Record (“AR”) [Dkt.

6 No. 8] at 110-121. She applied for disability insurance benefits under Title II of the Social

7 Security Act (the “Act”) on July 2, 2021. Id. at 304-05. She alleges she has been unable

8 to work since March 11, 2021 due to cervical degenerative disc disease, syrinx in the

9 cervical spine, lumbar degenerative disc disease, left shoulder impingement/tendinitis, left

10 carpal tunnel syndrome, ulnar entrapment, and severe obesity. Id. at 16. After her

11 application was denied at the initial stage and upon reconsideration, Plaintiff requested a

12 hearing before an administrative law judge (“ALJ”), which was attempted on July 28, 2022

13 but postponed because poor phone connection prevented Plaintiff from testifying.

14 Id. at 49-62. The continued hearing took place on August 4, 2022 before ALJ Michael

15 Richardson. Id. at 917-55. Plaintiff appeared with counsel and gave testimony. Id.

16 Vocational expert Linda Tolley also testified at the August 4 hearing. Id. at 941-52. A

17 medical expert was scheduled to testify as well, but he did not receive proper notice of the

18 hearing because of a clerical error and was thus unable to testify. Id. at 920-21. As such,

19 the ALJ obtained medical interrogatory responses after the August 4 hearing and proffered

20 them to Plaintiff, who asked for a supplemental hearing in response to the proffer.

21 Id. at 434, 849-57. That hearing was held on February 23, 2023. Id. at 27-48. Plaintiff

22 and medical expert John F. Kwock, M.D., testified at that hearing. The ALJ issued an

23 unfavorable decision on March 20, 2023, having concluded Plaintiff “has not been under a

24 disability, as defined in [the Act], from March 11, 2021, through the date of [the] decision.”

25 Id. at 21. On January 11, 2024, the Appeals Council denied review, and the ALJ’s decision

26 became final. See id. at 1-3.

27 B. Summary of the ALJ’s Findings

28 A person is considered “disabled” within the meaning of the Act if they suffer from

1 a medically determinable physical or mental impairment which is expected to last at least

2 a year and is of such severity that they cannot work, considering their age, education, and

3 work experience. See 42 U.S.C. § 423(d). The Administration employs a sequential five-

4 step evaluation to make this determination.2

5 The ALJ followed this five-step process in adjudicating Plaintiff’s disability claim.

6 See generally AR at 10-21. At step one, the ALJ found Plaintiff had not engaged in

7 substantial gainful activity since March 11, 2021, the alleged onset date of her disability.

8 Id. at 13. At step two, the ALJ found Plaintiff had the following severe impairments:

9 “cervical degenerative disc disease/degenerative joint disease with syrinx in the cervical

10 spine; lumbar degenerative disc disease/degenerative joint disease, status post lumbar

11 fusion in July 2022; left shoulder impingement/tendinitis; left carpal tunnel syndrome

12 (hereinafter CTS) and left ulnar entrapment; and severe obesity.” Id.3 At step three, the

13 ALJ found Plaintiff’s impairments did not meet or medically equal a listed impairment.

14 Id. at 14.

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2 The ALJ must determine the following: at step one, whether the claimant is engaged

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in substantial gainful activity; at step two, whether the claimant suffers from a severe

18 impairment within the meaning of the regulations; at step three (if the claimant suffers from

a severe impairment), whether the impairment meets or is medically equal to one of the

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impairments identified in the Listing of Impairments; at step four, the claimant’s residual

20 functional capacity (“RFC”) based on all impairments and whether, given the RFC, the

claimant can perform his or her past relevant work; at step five, whether the claimant can

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make an adjustment to other work based on his or her RFC. If the claimant is found not

22 disabled at any step, the analysis does not proceed to the next step.

See 20 C.F.R. § 404.1520.

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3 Although the record mentions the additional impairments of “tinnitus, closed head

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injury with concussion, diabetes mellitus II . . . and hepatitis C,” it “does not show any

25 examination finding which would support any significant functional limitations arising

therefrom” nor “evidence of any complications as a result of these alleged impairments.”

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AR at 14. The ALJ thus deemed these impairments non-severe because they caused no

27 “significant limitation in [Plaintiff’s] ability to do basic work activities.” Id; 20 C.F.R.

§ 404.1522(a) (“An impairment or combination of impairments is not severe if it does not

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1 At step four, the ALJ determined that despite her impairments, Plaintiff could:

2 perform light work4 as defined in 20 CFR [§] 404.1567(b) except: She is

unable to climb ladders, ropes, or scaffolds, but can occasionally climb ramps

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and stairs, balance, stoop, kneel, crouch, and crawl. She is able to frequently

4 push/pull, reach overhead, and handle, finger, and feel with the non-dominant

left upper extremity. She is able to occasionally operate foot pedals with her

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left lower extremity. She must avoid concentrated exposure to extreme

6 temperatures and hazards such as unprotected heights and dangerous moving

machinery. She also requires a sit/stand option allowing her to sit for five

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minutes for any standing and/or walking of 30 minutes, while remaining on

8 task.

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AR at 14.

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The ALJ found that although Plaintiff’s medically determinable impairments could

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reasonably be expected to cause her alleged symptoms, the “longitudinal record does not

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support a finding that the claimant’s impairments are so severe as to be disabling.”

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Id. at 15. The ALJ cited evidence in the record in support of his finding that “the record

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reveals stable findings” as to Plaintiff’s spinal impairments. Id. at 15-16. For example,

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treatment notes and X-rays from Kaiser Permanente between January 2021 and

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March 2021 reveal that Plaintiff had normal gait, that there was “no evidence of instability”

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in Plaintiff’s lumbar spine, and that the treating physician was hesitant to recommend

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surgical intervention. Id. at 16 (citing id. at 707-18, 736-39, 752-73). Treatment notes

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from Dr. Ronald Brizzie between June and September 2021 reveal that, although Plaintiff

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had mild to moderate tenderness during her cervical and lumbar spine exams, she had 5/5

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strength and intact sensation throughout, intact deep tendon reflexes, and an “overall

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24 4 “Light work” is defined as work that “involves lifting no more than 20 pounds at a

25 time with frequent lifting or carrying of objects weighing up to 10 pounds,” and may

require “a good deal of walking or standing, or . . . sitting most of the time with some

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pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). A person who is

27 capable of light work is also considered capable of sedentary work, “unless there are

additional limiting factors such as loss of fine dexterity or inability to sit for long periods

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1 prognosis” of “fair with the appropriate treatment.” Id. at 16 (citing id. at 530-34, 556-59).

2 Records from Palomar Medical Center reveal Plaintiff underwent L5-S1 diskectomy in

3 July 2022. Id. at 16 (citing id. at 806-10). The ALJ noted the record as a whole reveals no

4 evidence of further treatment for Plaintiff’s degenerative disc disease. Id. at 16. The ALJ

5 found this evidence supported the residual functional capacity described above. Id.

6 As to Plaintiff’s left shoulder impingement/tendinitis, left CTS, and left ulnar

7 entrapment, the ALJ found Plaintiff’s “statements about the intensity, persistence, and

8 limiting effects of her left upper extremity impairments . . . inconsistent with the record.”

9 Id. at 16-17. Treatment notes from Dr. Brizzie between June 2021 and June 2022 reveal

10 Plaintiff had normal sensation and strength throughout her bilateral upper extremities.

11 Id. at 17 (citing id. at 530-34). Notes from Vascular Associates of San Diego in June 2022

12 reveal 5/5 motor and intact sensation in both the upper and lower extremities. Id. at 17

13 (citing id. at 807-08).

14 The ALJ also considered medical opinion evidence, Plaintiff’s subjective testimony

15 regarding her limitations, and prior administrative medical findings in the record. Id. at 15-

16 21. The ALJ found partially persuasive the findings of medical expert Dr. Kwock, whose

17 testimony at the February 23, 2023 hearing indicated a residual functional capacity that

18 was “somewhat less restricting than the record supports.” Id. at 18 (citing id. at 33-42).

19 The ALJ found the findings of state agency medical consultant Dr. M. Gleason similarly

20 “somewhat less restricting than the record supports” and, thus, also only partially

21 persuasive. Id. at 18. Testimony by Dr. Brizzie that Plaintiff can sit for two hours in an

22 eight-hour workday, needs to take unscheduled breaks every 10-15 minutes for 10 to 15

23 minutes, would be off-task more than 25 percent during an eight-hour workday, and would

24 be likely to miss more than four days of work a month was unpersuasive given other

25 evidence in the record, including, as discussed above, Dr. Brizzie’s own treatment notes.

26 Id. at 18. The ALJ considered responses to a medical interrogatory completed by Dr. Alek

27 Emami and found them partially persuasive. Id. “Dr. Emami’s opinion that the claimant’s

28 impairments do not meet or equal any listing is consistent with . . . the record,” but the

1 remainder of the interrogatory responses are “inadequate to truly determine the claimant’s

2 limitations regarding basic work activities.” Id. Finally, the ALJ considered the non-

3 medical opinions of Plaintiff’s daughter-in-law. Id. at 19. Some aspects of those

4 opinions—that Plaintiff can perform certain activities of daily living, such as taking care

5 of children, taking care of finances, and spending time with others—were consistent with

6 the record and thus persuasive. Id. (discussing id. at 347-58, 371-79). Other aspects,

7 though, such as those opining Plaintiff is unable to perform any basic work activity, were

8 inconsistent with the record and unpersuasive. Id.

9 Having considered the record as described above, ALJ concluded “that the claimant

10 has a greater sustained capacity than the claimant alleges” and that “the claimant retains

11 the capacity to perform work activities with the limitations” set forth in the RFC. Id. at 19.

12 Based on the RFC and the testimony of the vocational expert, the ALJ further found at step

13 four Plaintiff could not perform her past relevant work as a nurse. Id.

14 At step five, the ALJ found Plaintiff “capable of making a successful adjustment to

15 other work that exists in significant numbers in the national economy” based on the

16 vocational expert’s testimony regarding jobs which could be performed by someone with

17 Plaintiff’s RFC. Id. at 20-21. In so finding, the ALJ noted that although the vocational

18 expert’s testimony is “an accurate depiction of the exertional and environmental limitations

19 outlined, the limitations related to the assessed sit/stand option, the directional reaching

20 limits, and the erosion factors for the job numbers caused by the sit/stand option are not

21 items that are contained” in the Dictionary of Occupational Titles (“DOT”). Id. at 20. The

22 vocational expert testified as to those limits and erosion factors based on “an examination

23 of the information contained in the [DOT], paired with her years of experience in the field

24 of job placement.” Id. at 20-21 (citing id. at 43-45).

25 Based on the foregoing five-step analysis, the ALJ concluded Plaintiff had not been

26 under a disability within the meaning of the Act during the relevant period. Id. at 21.

27 / / /

28 / / /

1 II.

2 DISPUTED ISSUES

3 Plaintiff identifies four disputed issues on appeal, as follows:

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1) Whether the ALJ was required to address the 2020 decision;

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2) Whether the ALJ properly considered Dr. Brizzie’s opinion;

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3) Whether the Commissioner met his burden of proof at Step Five; and

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4) Whether the ALJ gave clear and convincing reasons to “disregard” Plaintiff’s

8 subjective symptom testimony.

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Dkt. No. 14 at 5. Plaintiff also asserts as a fifth disputed issue “whether the ALJ addressed

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the combination of impairments in the RFC with a sit stand option requiring the ability to

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stay on task.” Id. at 10. But this section of Plaintiff’s brief makes the same argument as

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the section asserting the Commissioner did not meet his burden of proof at Step Five.

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See id. at 11-12 (alleging “the ALJ’s findings are not supported by substantial evidence”

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because “the ALJ has not resolved the conflict between sit stand options and unskilled light

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work”); id. at 12-13 (alleging “the ALJ’s position is not supported by substantial evidence”

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because the ALJ “has not resolved the conflict between light work with a sit and stand

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option”). Because these two sections identify the same issue, and because resolution of

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both turns on the same alleged conflict, the Court addresses them together.

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III.

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STANDARD OF REVIEW

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The Court’s review of the Commissioner’s final decision is “highly deferential.”

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Kitchen v. Kijakazi, 82 F. 4th 732, 738 (9th Cir. 2023).5 The Court “will disturb the denial

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of benefits only if the decision contains legal error or is not supported by substantial

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evidence.” Id. “Substantial evidence is such relevant evidence that a reasonable mind

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5 All citations, internal quotation marks, and subsequent history are omitted, and

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1 might accept as adequate to support a conclusion, and must be more than a mere scintilla,

2 but may be less than a preponderance.” Id. The Court must review the entire record and

3 consider adverse as well as supporting evidence. See Ahearn v. Saul, 988 F.3d 1111, 1115

4 (9th Cir. 2021). The Court “may not reweigh the evidence or substitute [its] judgment for

5 that of the ALJ.” Id. Moreover, “[t]he ALJ is responsible for determining credibility,

6 resolving conflicts in medical testimony, and for resolving ambiguities.” Id. If the

7 evidence is susceptible of more than one rational interpretation, the ALJ’s decision must

8 be upheld. See id. at 1115-16. However, the Court cannot affirm “on a ground upon which

9 [the ALJ] did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Where

10 the ALJ commits legal error, the Court may affirm the decision if the error is harmless,

11 meaning “it is inconsequential to the ultimate nondisability determination, or that, despite

12 the legal error, the agency’s path may reasonably be discerned, even if the agency explains

13 its decision with less than ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492

14 (9th Cir. 2015). “[T]he burden of showing that an error is harmful normally falls upon the

15 party attacking the agency's determination.” Molina v. Astrue, 674 F.3d 1104, 1111

16 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a).

17 IV.

18 DISCUSSION

19 A. Plaintiff Has Not Demonstrated Harmful Error

20 With the foregoing legal standards in mind, the Court addresses each of the disputed

21 issues above.

22 1. The 2020 Decision for a Closed Period of Benefits

23 As a first charge of error, Plaintiff relies upon Lambert v. Saul to assert that the

24 favorable decision in 2020 “gave rise to [a] presumption of disability” that can only be

25 rebutted by medical evidence that shows improvement of Plaintiff’s condition. Dkt. No. 14

26 at 6-7 (citing 980 F.3d 1266, 1270 (9th Cir. 2020)). Plaintiff asserts that, because the ALJ

27 did not explicitly consider the 2020 decision and did not cite evidence to show

28 improvement, his findings are not supported by substantial evidence. The Court disagrees.

1 Plaintiff misstates the holding of Lambert. The Ninth Circuit did not hold that a

2 previous favorable decision gives rise to a presumption of continued disability. To the

3 contrary, “there is no presumption of continuing disability under the Social Security Act.”

4 Lambert, 980 F.3d at 1268. The language Plaintiff quotes in her brief is from

5 Patti v. Schweiker, 669 F.2d 582, 586-87 (9th Cir. 1982); the Ninth Circuit only included

6 that language in Lambert to disavow it. The ALJ did not err in not applying a presumption

7 of continuing disability because of Plaintiff’s earlier disability determination.

8 Plaintiff also asserts, in one sentence and a footnote in this section of her brief, that

9 she is entitled “to a trial work period of nine months and 36 months of [re]entitlement”

10 under 20 CFR § 404.1592(a). Dkt. No. 14 at 6. Plaintiff argues “[t]he ALJ in 2020

11 awarded disability for a closed period based on [Plaintiff’s] statement she was going to

12 return to work as she found a job with accommodations. That work attempt did not

13 eliminate her disability, but gave rise to a trial work period.” Id.

14 Trial work and reentitlement periods are not at issue here because Plaintiff was

15 awarded a closed period of benefits, and because the ALJ determined at step one that

16 Plaintiff had not engaged in any substantial gainful activity from the alleged onset date

17 onward. They come into play when an ALJ must determine whether a claimant who is

18 receiving disability benefits has terminated his entitlement to those benefits by engaging

19 in work. See A.S. v. Saul, No. 20-CV-00281-JCS, 2021 WL 1087473, at *16

20 (N.D. Cal. Mar. 22, 2021) (“Before the Commissioner determines that an individual is no

21 longer disabled because he or she is engaged in substantial gainful activity, the

22 Commissioner first considers whether the individual is entitled to a trial work period” or

23 to a reentitlement period.); Roam v. Astrue, No. C07-5662KLS, 2008 WL 4181680, at *4

24 (W.D. Wash. Sept. 4, 2008) (noting that trial work and reentitlement periods are relevant

25 “to substantial gainful activity determinations made at step one”); Willis v. Berryhill, No.

26 CV 16-5898 JC, 2017 WL 4119054, at *2 (C.D. Cal. Sept. 15, 2017) (noting that

27 reentitlement periods are meant for “beneficiaries who complete a full nine-month trial

28 work period and still have a disabling impairment”). Plaintiff has not cited any authority

1 allowing claimants to enter a trial work or reentitlement period after their closed period of

2 benefits has ended but before they are again entitled to benefits. Based on the Court’s

3 research, the rule is the opposite. See 20 C.F.R. § 404.1592(d)(1) (“You are generally

4 entitled to a trial work period if you are entitled to disability insurance benefits.”);

5 Newton v. Charter, 92 F.3d 668, 693 (8th Cir. 1996) (“[T]o be entitled to a trial work

6 period, a claimant must be entitled to disability insurance benefits.”); Mullis v. Bowen,

7 861 F.2d 991, 993 (6th Cir. 1988) (“[A] trial work period only applies after a person has

8 been adjudged disabled.”); Cieutat v. Bowen, 824 F.2d 348, 358 (5th Cir. 1987) (noting

9 that 42 U.S.C. § 422(c), which defines trial work, provides that “a period of trial work . . .

10 shall begin with the month in which he becomes entitled to disability insurance benefits”).

11 Accordingly, the Court finds that Plaintiff is not entitled to a trial work period6 or a

12 reentitlement period because she is not entitled to disability insurance benefits.

13 2. Dr. Brizzie’s Medical Opinion

14 As a second charge of error, Plaintiff states the ALJ’s “rejection of treating physician

15 Dr. Brizzle’s [sic] opinion is not by the record.” Dkt. No. 14 at 9. As an initial matter, the

16 Court notes that Plaintiff fails to plead how this alleged error is harmful; she asserts only

17 that “the record does not support the ALJ” and connects that to Plaintiff’s inability to

18 perform the jobs that the ALJ determined she could perform. Id. at 9-10. The Court

19 discusses this argument in Section Three below and concludes this argument is unavailing.

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6 The Court also notes that even if Plaintiff was entitled to a trial work period, it would

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have expired by now. A trial work period is “a period during which you may test your

23 ability to work and still be considered disabled.” 20 C.F.R. § 404.1592(a). It begins “with

the month in which you become entitled to disability insurance benefits” and ends with

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(1) the “9th month . . . in which you have performed services within a period of 60

25 consecutive months . . . or (2) [t]he month in which new evidence, other than evidence

relating to any work you did during the trial work period, shows that you are not disabled.”

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Id. § 404.1592(e). The last day Plaintiff was entitled to disability insurance benefits was

27 February 4, 2020. AR at 121. Plaintiff worked from February 5, 2020 until March 11,

2021, the alleged onset date. Id. at 13; 304-05. That is more than the nine months of

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1 Nevertheless, the Court now turns to Plaintiff’s criticism of the ALJ’s assessment of

2 Dr. Brizzie. The Court finds no error with the ALJ’s assessment.

3 Plaintiff specifically takes issue with the ALJ’s finding that the “residual functional

4 capacity opined by Dr. Brizzie is more restricting than the record supports.” Id. at 9 (citing

5 AR at 18). Dr. Brizzie set forth the following RFC for Plaintiff:

6 “[T]he claimant is able to lift and/or carry up to 10 pounds occasionally. She

is able to sit 15 min at one time and sit for about two hours in an 8-hour

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workday. She is able to stand 10 to 15 min at one time and stand and/or walk

8 for less than two hours in an 8-hour workday. She is able to walk two to three

blocks without pain. She needs to change positions at will. He needs periods

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of walking around during an 8-hour workday. She needs to take unscheduled

10 breaks 10 to 15 min for 10 to 15 min. She is unable to climb ladders or

crouch/squat. She is able to rarely twist, stoop/bend, and climb stairs. She

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would be off-task more than 25 percent during an 8-hour workday. She is

12 likely to miss more than 4 days of work per month.

13 AR at 18 (citing AR at 791-95).

14 The ALJ must “not defer or give any specific evidentiary weight, including

15 controlling weight, to any medical opinion(s) . . . , including those from [the claimant’s]

16 medical sources.” 20 C.F.R. § 404.1520c(a). Said differently, the ALJ “need not take

17 every medical opinion at face value.” Cross v. O’Malley, 89 F.4th 1211, 1213

18 (9th Cir. 2024). “Rather, the ALJ must scrutinize the various—often conflicting—medical

19 opinions to determine how much weight to afford each opinion.” Id. at 1213-14. The

20 “most important factors” the ALJ must consider in doing so are “supportability” (whether

21 the provider supported their opinion with citations to objective findings) and “consistency”

22 (whether the opinion is consistent with other evidence in the record). 20 C.F.R.

23 § 404.1520c(a); id. § 404.1520c(c)(1) (defining “supportability” and “consistency”).

24 The ALJ rationally found Dr. Brizzie’s opinion unpersuasive based on his

25 determination that it was neither supported by, nor consistent with, the medical evidence

26 in the record. AR at 18. The ALJ found that the limitations opined by Dr. Brizzie were

27 more restrictive than what Dr. Brizzie’s own progress notes and findings supported.

28 Id. at 18. Plaintiff had normal sensation and strength in her bilateral upper extremities. Id.

1 (citing id. at 530-34). She had decreased range of motion of the cervical and lumbar spine,

2 but 5/5 strength and intact sensation throughout, intact deep tendon reflexes, and an

3 “overall prognosis” of “fair with the appropriate treatment.” Id. at 18 (citing id. at 530-34,

4 556-59). She had negative straight leg raise bilaterally and normal gait. Id. at 18

5 (citing id. at 530-34, 767-76). The ALJ also noted that, although Plaintiff underwent

6 surgery in July 2022, “the record reveals no evidence of any further treatment for her neck

7 and back pain after the successful surgery.” Id. at 18 (citing id. at 806-08). The ALJ

8 identified specific, objective evidence in the record—including Dr. Brizzie’s own

9 treatment notes—undermining the severity of restrictions found in Dr. Brizzie’s

10 assessment. See Stiffler v. O’Malley, 102 F.4th 1102, 1107 (9th Cir. 2024) (A medical

11 opinion is properly found unpersuasive where the provider assesses limitations that are

12 “contradicted [by] his own treatment records.”); Jeanette R. v. Kijakazi, 620 F. Supp. 3d

13 1127, 1143 (E.D. Wash. 2022) (noting the ALJ “is not obliged to credit medical opinions

14 that are unsupported by the medical source’s own data”). Thus, the ALJ did not err in

15 discounting Dr. Brizzie’s opinion for lack of consistency and supportability.

16 3. Step Five Determination

17 As a third charge of error, Plaintiff asserts the Commissioner did not meet his burden

18 at step five of the sequential analysis to demonstrate that other jobs exist in the national

19 economy that Plaintiff could perform, given her RFC as determined by the ALJ.

20 Dkt. No. 14 at 10-13. The Court disagrees.

21 Plaintiff asserts the vocational expert’s testimony is inaccurate because it fails to

22 consider that the RFC requires “a sit/stand option allowing [Plaintiff] to sit for five minutes

23 for any standing and/or walking of 30 minutes, while remaining on task.” Id. at 11.

24 Specifically, Plaintiff contends it would be impossible for her to perform the jobs the ALJ

25 found existed in the national economy that someone with Plaintiff’s RFC could perform.

26 See id. at 10 (“It is difficult to see how an assembler of small parts would be able to stand

27 and remain on task if the set up was for standing or vice versa”.); id. at 11 (“It is difficult

28 to understand how this sit stand option requiring [Plaintiff] to stay on task is practical.”).

1 Plaintiff also invokes De Oses v. Kijakazi for the idea that “[u]nskilled types of jobs are

2 particularly structured so that a person cannot ordinarily sit or stand at will.” Id. at 11

3 (quoting No. 22-CV-01201-VCF, 2023 WL 2682351, at *6-7 (D. Nev. Mar. 29, 2023)

4 (discussing SSR 83-12)). Finally, Plaintiff appears to allege a conflict between the

5 vocational expert’s testimony and the DOT because “the DOT does not include information

6 as to sit stand options.” Dkt. No. 14 at 10.

7 A vocational expert’s “expert testimony as to the number of jobs existing in the

8 national economy that a claimant can perform is ordinarily sufficient by itself to support

9 an ALJ’s step-five finding.” Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020); see also

10 Dewey v. Colvin, 650 Fed. App’x 512, 514 (9th Cir. 2016) (holding ALJ did not err by

11 relying on vocational expert’s testimony that there were jobs the plaintiff could perform

12 even though he required a sit/stand option and use of other mobility aids);

13 Lyman M. v. Comm’r of Soc. Sec., No. C20-5375-MLP, 2021 WL 1611341, at *2

14 (W.D. Wash. Apr. 26, 2021) (Although “many light, unskilled jobs do not ordinarily permit

15 an employee to sit or stand at will,” the ALJ’s assessment was proper because “the VE

16 identified three jobs that do accommodate such a limitation.”).

17 As in Dewey and Lyman M., so too here did the ALJ properly rely on vocational

18 expert testimony that considered all the limitations identified in an RFC. See AR at 946

19 (“[S]he would need a sit/stand option, allowing her to sit for 5 minutes of any standing or

20 walking of 30 minutes, while remaining on task. . . . Would any of those jobs still work,

21 then?”); id. at 948 (“[B]ut what if we restricted her overhead reaching with her left, upper

22 extremity to only occasional? Would that make a difference?”); id. (“If we were to reduce

23 the standing or walking to only two hours, as opposed to the six hours, would any of those

24 jobs still remain?”); id. at 949 (“[I]f I were to . . . change the lifting and carrying to only

25 ten pounds . . . none of those light jobs would remain, correct?”). Considering these

26 limitations, the vocational expert testified that Plaintiff would be able to perform the jobs

27 of price marker; assembler, small products, II; and cashier II. Id. at 947. The vocational

28 expert testified further that these jobs existed in significant numbers in the national

1 economy, even after erosion due to the sit/stand option. Id. at 947-49 (testifying there

2 would be 30,000 positions available as a price marker, 7,000 positions available as a small

3 products assembler, and 100,000 positions available as a cashier).

4 The Court next turns to Plaintiff’s arguments that (1) the Court should find similarly

5 to De Oses, (2) SSR 83-12 requires a finding of harmful error, and (3) the Commissioner

6 has not resolved a conflict between vocational expert testimony and the DOT. First,

7 De Oses is inapposite. There, not only was the claimant’s motion to remand unopposed,

8 but the ALJ’s determination that there were jobs the claimant could perform was

9 contradicted by vocational expert testimony. De Oses, 2023 WL 2682351 at *2-3. Indeed,

10 the court concluded that the ALJ “erred either in transcribing the RFC or interpreting the

11 vocational expert’s testimony,” as the “VE testified that someone limited to the sit/stand

12 option detailed in the ALJ’s finding of residual functional capacity could not perform the

13 three light occupations relied upon by the ALJ to find [the claimant] not disabled.” Id. at 3.

14 Second, SSR 83-12 states that, in cases where there are sit/stand limitations on the ability

15 to perform light work, the vocational expert “should be consulted to clarify the implications

16 for the occupational base.” SSR 83-12 at *4. As discussed above, the ALJ did just that.

17 And third, although the DOT does not include information as to sit/stand options, the ALJ

18 resolved any such conflict by relying on the vocational expert’s testimony. The ALJ asked

19 “for all of those types of items that I have given you in the hypothetical that are not

20 specifically addressed by the DOT, you are relying upon what?” and “the erosion factors

21 that you employed . . . for the sit/stand, or the standing or walking only two hours, needing

22 a chair, what are you basing that on?” AR at 951-52. The vocational expert testified she

23 was relying on her “experience in the rehab field of over 25 years plus, primarily with

24 placing individuals in jobs, doing job analyses, job descriptions . . . observing jobs, asking

25 employers a lot of questions . . . [and] basing it on labor market research, meaning labor

26 market survey phone calls, primarily.” This is sufficient to resolve any alleged conflict.

27 See Buckner-Larkin v. Astrue, 450 Fed. App’x 626, 628 (9th Cir. 2011) (finding alleged

28 conflict between DOT and sit/stand option resolved because vocational expert based his

1 determination on “his own labor market surveys, experience, and research”).

2 For these reasons, the Court finds no error in the ALJ’s determination of Plaintiff’s

3 RFC and concludes the Commissioner has met his burden at step five.

4 4. The ALJ’s Rejection of Plaintiff’s Subjective Symptom Testimony

5 As a fourth charge of error, Plaintiff asserts the ALJ failed to provide clear and

6 convincing reasons to reject her subjective testimony. Plaintiff asserts the “ALJ has not

7 provided clear citations to conflicts between [Plaintiff’s] statements and the medical

8 evidence,” instead asking “this court to go through his decision and pick sentences that

9 might support his negation of [Plaintiff’s] statements.” Dkt. No. 14 at 14-15. The Court

10 disagrees.

11 The ALJ “is not required to believe every allegation of disabling pain.” Molina,

12 674 F.3d at 1112. However, in the absence of evidence of malingering, an ALJ must offer

13 “specific, clear and convincing reasons” for rejecting a claimant’s subjective testimony

14 regarding the limitations caused by his impairment. See Ferguson v. O’Malley, 95 F.4th

15 1194, 1199 (9th Cir. 2024); see also Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022)

16 (“an adverse credibility finding must be based on clear and convincing reasons”).

17 After reviewing the evidence in the record, the ALJ concluded Plaintiff’s medically

18 determinable impairments could reasonably be expected to cause many of her alleged

19 physical symptoms. AR at 15. Based on his review of the record, however, the ALJ found

20 Plaintiff’s “statements about the intensity, persistence, and limiting effects of her”

21 impairments “are inconsistent with the record because, as discussed in detail below, the

22 record reveals stable findings which show that the claimant’s subjective complaints are

23 disproportionate to objective findings.” Id. at 16-17.

24 The ALJ found Plaintiff’s allegations of disabling pain caused by degenerative disc

25 disease of the cervical and lumbar spine undermined by the objective medical evidence.

26 See id. at 16 (discussing id. at 147-158, 175-202) (treatment notes from Kaiser Permanente

27 indicating that Plaintiff denied numbness or weakness and had normal gait and that X-rays

28 of Plaintiff’s lumbar spine revealed no evidence of instability); id. at 16 (discussing id. at

1 763-76) (treatment notes from Dr. Brizzie indicating that Plaintiff had 5/5 sensation and

2 intact sensation throughout the cervical and lumbar spine, with “fair prognosis with

3 appropriate treatment”); id. at 16 (discussing id. at 796-808) (treatment notes indicating

4 Plaintiff had full lumbar spine extension with no pain, 4+/5 strength in left lower extremity

5 but intact strength and sensation otherwise, and no evidence of further treatment after July

6 2022 surgery). The Court finds these are sufficiently clear and convincing reasons for

7 discounting Plaintiff’s subjective testimony under prevailing Ninth Circuit standards.7 The

8 ALJ similarly found Plaintiff’s allegations of disabling pain caused by left shoulder

9 impingement/tendinitis, left CTS, and left ulnar entrapment undermined by medical

10 evidence in the record. See id. at 17 (discussing id. at 525-34, 551-60, 763-76) (June 2021

11 treatment notes indicating Plaintiff had normal strength and sensation in the bilateral upper

12 extremities and June 2022 treatment notes indicating Plaintiff had 5/5 motor strength and

13 intact sensation in the bilateral upper extremities).

14 Based on the foregoing, the Court finds the ALJ provided “specific, clear and

15 convincing” reasons for his credibility determination, by “enumerat[ing] the objective

16 evidence that undermine[d] [Plaintiff’s] testimony,” Kitchen, 82 F.4th at 739, and

17 “explain[ing] why the medical evidence is inconsistent with the claimant’s subjective

18 testimony.” Ferguson, 95 F.4th at 1200 (emphasis in original). The Court is therefore

19 persuaded that the ALJ did not “arbitrarily discredit [the] claimant’s testimony.”

20 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In other words, the ALJ “show[ed]

21 his work.” Smartt, 53 F.4th at 499 (holding that “the clear and convincing standard

22

23

24 7 See, e.g., Smartt, 53 F.4th at 498 (noting that “[w]hen objective medical evidence

25 in the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed

weigh it as undercutting such testimony”) (collecting cases) (emphasis in original); Molina,

26

674 F.3d at 1114 (finding the ALJ may reasonably conclude that “the level or frequency

27 of treatment” is “inconsistent with the level of complaints”); Parra v. Astrue, 481 F.3d 742,

751 (9th Cir. 2007) (upholding ALJ’s finding that subjective complaints of pain were

28

1 . . . requires an ALJ to show his work”). The Court finds the ALJ’s credibility

2 determination is adequately supported, and declines to “engage in second-guessing” that

3 determination. See Thomas, 278 F.3d at 959; see also Brown-Hunter, 806 F.3d at 494

4 (“[T]he credibility determination is exclusively the ALJ’s to make, and [the Court’s] only

5 to review.”).

6 Plaintiff also appears to be asserting that the “credit-as-true” doctrine requires the

7 Court to direct the Commissioner to find Plaintiff disabled. Dkt. No. 14 at 16-17.

8 Plaintiff’s argument is as follows:

9 “The Credit-As-True doctrine warrants that where the ALJ fails to provide

specific, clear and convincing reasons for disregarding relevant evidence of

10

disability, and there exists no serious doubt that the Plaintiff is disabled. As

11 the case be remanded due to the absence of legally sufficient reasons, lack of

substantial evidence, and failure to provide clear and convincing reasons for

12

his findings [sic].”

13

Id. at 16.

14

The credit-as-true rule “permits, but does not require, a direct award of benefits on

15

review but only where . . . the record, taken as a whole, leaves not the slightest uncertainty

16

as to the outcome of the proceeding.” Leon v. Berryhill, 880 F.3d 1041, 1044

17

(9th Cir. 2017). Three elements must be met for the credit-as-true rule to apply: “(1) the

18

record has been fully developed and further administrative proceedings would serve no

19

useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting

20

evidence . . . and (3) if the improperly discredited evidence were credited as true, the ALJ

21

would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020.

22

But “[a]n automatic award of benefits in a disability benefits case is a rare and prophylactic

23

exception to the well-established ordinary remand rule.” Leon, 880 F.3d at 1044

24

(9th Cir. 2017); accord Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099

25

(9th Cir. 2014) (noting that “the proper course, except in rare circumstances, is to remand

26

to the agency for additional investigation or explanation”).

27

/ / /

28

1 The credit-as-true rule does not apply here. Although Plaintiff asserts that she “has

2 provided testimony which has not been contradicted,” this is not the case. As discussed

3 above, the ALJ has provided legally sufficient reasons to reject Plaintiff’s subjective

4 testimony, which prohibits application of the rule.

5 B. Substantial Evidence Supports the ALJ’s Decision

6 Having found no legal error in the ALJ’s treatment of the record or formulation of

7 Plaintiff’s RFC, the Court turns to the question of whether the RFC, and the ALJ’s

8 conclusion based on the RFC that Plaintiff was not disabled, is supported by substantial

9 evidence. The Court has independently assessed the entire record, “weighing the evidence

10 both supporting and detracting from the [ALJ’s] conclusion.” Ahearn, 988 F.3d at 1115.

11 Based on this review, the Court finds substantial evidence supports the ALJ’s decision.

12 The Court summarizes that evidence below.

13 The record confirms Plaintiff suffers from cervical degenerative disc disease/

14 degenerative joint disease with syrinx in the cervical spine; lumbar degenerative disc

15 disease/degenerative joint disease; left shoulder impingement/tendinitis; left carpal tunnel

16 syndrome; left ulnar entrapment; and severe obesity. See, e.g., AR at 521-23, 555-58, 679-

17 82, 767-76, 796-804. MRIs and X-rays throughout the record revealed degenerative disc

18 disease in both the cervical and lumbar spine, and a syrinx within the cord at C7-T10 of

19 the cervical spine. Id. at 147-58, 175-202, 525-34. The record reflects frequent complaints

20 of pain associated with these conditions. Id. at 304-05, 327-346, 791-95. Plaintiff

21 underwent L5-S1 diskectomy in July 2022 with “no complications,” and the record reveals

22 no evidence of any further treatment for her degenerative disc disease. Id. at 806-09.

23 Plaintiff reported in her Adult Function Report that her daily activities included

24 tending to her personal hygiene (although doing so causes some discomfort, such as when

25 she puts on clothes or bathes), preparing simple meals, running errands around the house

26 (washing dishes, cleaning countertops, doing the laundry, grocery shopping), and feeding

27 her pets. Id. at 339-40. She reports that she cares for her granddaughter when her

28 granddaughter’s mom has appointments or goes out. Id. at 339. Plaintiff’s daughter-in-

1 law completed a third-party Adult Function Report. Id. at 350-60. The daughter-in-law

2 reports observing or helping Plaintiff with many of the activities Plaintiff described above.

3 Id. At both the July 28 and August 8, 2022 hearings, Plaintiff testified that she lived with

4 her son’s family and that she was still capable of driving. Id. at 55, 925.

5 Medical records show that Plaintiff had normal gait and “no evidence of instability”

6 in her lumbar spine. Id. at 707-18, 736-39. Although she had mild to moderate tenderness

7 in her cervical and lumbar spine, she had 5/5 strength and intact sensation throughout,

8 intact deep tendon reflexes, and an “overall prognosis” of “fair with appropriate treatment.”

9 Id. at 530-34, 556-59. Plaintiff had normal strength and sensation throughout her bilateral

10 upper and lower extremities, except for one record evidencing 4+/5 strength in her left

11 lower extremity in July 2022. Id. at 796-808.

12 The Court finds the foregoing is relevant and substantial evidence adequate to

13 support the ALJ’s RFC, and the subsequent determination based on Plaintiff’s RFC that

14 she was not disabled. Accordingly, the ALJ’s decision will not be disturbed. See Ahearn,

15 988 F.3d at 1115 (“If substantial evidence in the record supports the ALJ’s decision we

16 must defer to the ALJ.”); see also 42 U.S.C.A. § 405(g) (“The findings of the

17 Commissioner of Social Security as to any fact, if supported by substantial evidence, shall

18 be conclusive”).

19 V.

20 CONCLUSION

21 For the foregoing reasons, the Court concludes the ALJ’s decision is free of legal

22 error and that his determination that Plaintiff is not disabled is supported by substantial

23 evidence in the record. The undersigned accordingly RECOMMENDS that the District

24 Court issue an order: (1) approving and adopting this Report and Recommendation in its

25 entirety; (2) denying Plaintiff’s request for remand for an award of benefits; (3) affirming

26 the decision of the Commissioner; and (4) directing that judgment be entered in the

27 Commissioner’s favor.

28

1 IT IS HEREBY ORDERED that any objections to this Report and

2 ||Recommendation must be filed by not later than January 20, 2025. Any response to a

3 || party’s objections must be filed by not later than January 27, 2025. Failure to timely file

4 || objections may waive the right to raise those objections on appeal. See Turner v. Duncan,

5 || 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991).

6 IS SO ORDERED.

7 || Dated: December 30, 2024 it

8 Tb Lh wt

10 United States Magistrate Judge

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