# (SS) Vanderhoff v. Commissioner of Social Security

> District Court, E.D. California · January 6, 2025

URL: https://www.frixlaw.com/law-library/cases/10774816

## Case

- **Court:** District Court, E.D. California
- **Decided:** January 6, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JORDAN RAY VANDERHOFF, Case No. 1:23-cv-01175-HBK
12 Plaintiff, ORDER AFFIRMING THE DECISION OF
THE COMMISSIONER OF SOCIAL
13 v. SECURITY1
14 COMMISSIONER OF SOCIAL (Doc. Nos. 15, 17)
SECURITY,
15
Defendant.
16
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20 Jordan Ray Vanderhoff (“Plaintiff”) seeks judicial review of a final decision of the
21 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for
22 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is
23 currently before the undersigned on the parties’ briefs, which were submitted without oral
24 argument. (Doc. Nos. 15, 17). For the reasons stated, the Court denies Plaintiff’s motion for
25 summary judgment, grants Defendant’s motion for summary judgment, and affirms the
26 Commissioner’s decision.
27
1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C.
28 §636(c)(1). (Doc. No. 10).
1 I. JURISDICTION
2 Plaintiff protectively filed for supplemental security income on January 1, 2020, alleging a
3 disability onset date of November 19, 1999. (AR 253-59). At the hearing, the alleged onset date
4 was amended to January 1, 2020. (AR 22). Benefits were denied initially (AR 43-63, 104-09)
5 and upon reconsideration (AR 64-82, 111-16). Plaintiff appeared for a telephonic hearing before
6 an administrative law judge (“ALJ”) on June 28, 2022. (AR 14-42). Plaintiff testified at the
7 hearing and was represented by counsel. (Id.). The ALJ denied benefits (AR 83-101) and the
8 Appeals Council denied review (AR 8-13). The matter is before the Court under 42 U.S.C. §
9 1383(c)(3).
10 II. BACKGROUND
11 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s
12 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are
13 summarized here.
14 Plaintiff was 22 years old at the time of the hearing. (AR 36). She completed eleventh
15 grade and was in special education classes. (AR 270). She lives with her mother. (See AR 281).
16 She has no past relevant work. (AR 37). Plaintiff testified she has trouble talking to people in
17 cars, making phone calls, and “going out in general.” (AR 24). She avoids aisles at the grocery
18 store that have more than two people because she starts shaking and has trouble breathing, and
19 she has difficulty waiting in line and a “couple of time” has become so overwhelmed she had to
20 leave the store. (AR 25-27). Plaintiff reported she stays in her house “most of the time” because
21 of anxiety and stress at public events. (AR 28-29). Plaintiff testified she has irritable bowel
22 syndrome (IBS) but she is not “100 percent sure” why her weight is “less than most people”; and
23 reports she feels sick lots of days, has anxiety, and sometimes forgets to eat for unknown reasons.
24 (AR 40-41).
25 III. STANDARD OF REVIEW
26 A district court’s review of a final decision of the Commissioner of Social Security is
27 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the
28 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or
1 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial
2 evidence e” means “relevant evidence that a reasonable mind might accept as adequate to support
3 a conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial
4 evidence equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation
5 and citation omitted). In determining whether the standard has been satisfied, a reviewing court
6 must consider the entire record as a whole rather than searching for supporting evidence in
7 isolation. Id.
8 In reviewing a denial of benefits, a district court may not substitute its judgment for that of
9 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible
10 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
11 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is
12 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate
13 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s
14 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556
15 U.S. 396, 409-10 (2009).
16 IV. SEQUENTIAL EVALUATION PROCESS
17 A claimant must satisfy two conditions to be considered “disabled” within the meaning of
18 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful
19 activity by reason of any medically determinable physical or mental impairment which can be
20 expected to result in death or which has lasted or can be expected to last for a continuous period
21 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment
22 must be “of such severity that he is not only unable to do his previous work[,] but cannot,
23 considering his age, education, and work experience, engage in any other kind of substantial
24 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
25 The Commissioner has established a five-step sequential analysis to determine whether a
26 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the
27 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the
28 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the
1 claimant is not disabled. 20 C.F.R. § 416.920(b).
2 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step
3 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20
4 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of
5 impairments which significantly limits [his or her] physical or mental ability to do basic work
6 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s
7 impairment does not satisfy this severity threshold, however, the Commissioner must find that the
8 claimant is not disabled. 20 C.F.R. § 416.920(c).
9 At step three, the Commissioner compares the claimant’s impairment to severe
10 impairments recognized by the Commissioner to be so severe as to preclude a person from
11 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as
12 severe or more severe than one of the enumerated impairments, the Commissioner must find the
13 claimant disabled and award benefits. 20 C.F.R. § 416.920(d).
14 If the severity of the claimant’s impairment does not meet or exceed the severity of the
15 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual
16 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s
17 ability to perform physical and mental work activities on a sustained basis despite his or her
18 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis.
19 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the
20 claimant is capable of performing work that he or she has performed in the past (past relevant
21 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant
22 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If
23 the claimant is incapable of performing such work, the analysis proceeds to step five.
24 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the
25 claimant is capable of performing other work in the national economy. 20 C.F.R. §
26 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational
27 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. §
28 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must
1 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of
2 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is
3 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1).
4 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel,
5 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the
6 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such
7 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran
8 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
9 V. ALJ’S FINDINGS
10 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity
11 since January 1, 2020, the amended alleged onset date. (AR 88). At step two, the ALJ found that
12 Plaintiff has the following severe impairments: autism disorder, depressive disorder, and panic
13 disorder. (AR 88). At step three, the ALJ found that Plaintiff does not have an impairment or
14 combination of impairments that meets or medically equals the severity of a listed impairment.
15 (AR 89). The ALJ then found that Plaintiff has the RFC to
16 perform a full range of work at all exertional levels but with the
following nonexertional limitations: can perform detailed and
17 complex tasks with no interaction with the public, can interact with
co-employees within groups of no more than 1 or 2, can participate
18 in teamwork with 1 or 2 individual employees, and no more than
infrequent changes in work routine.
19
20 (AR 90). At step four, the ALJ found that Plaintiff has no past relevant work. (AR 94). At step
21 five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there
22 are jobs that exist in significant numbers in the national economy that Plaintiff can perform,
23 including hand packer, cleaner II, and cleaner, industrial. (AR 95). On that basis, the ALJ
24 concluded that Plaintiff has not been under a disability, as defined in the Social Security Act,
25 since January 1, 2020, the amended alleged onset date. (AR 95).
26 VI. ISSUES
27 Plaintiff seeks judicial review of the Commissioner’s final decision denying her
28 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1).
1 Plaintiff raises the following issues for this Court’s review:
2 1. Whether the ALJ failed to fully evaluate whether Plaintiff’s impairments equal a
3 listing at step three; and
4 2. Whether the ALJ properly considered Plaintiff’s symptom claims.
5 (Doc. No. 15 at 7-16).
6 VII. DISCUSSION
7 A. Step Three
8 At step three of the evaluation process, the ALJ must determine whether a claimant has an
9 impairment or combination of impairments that meets or equals an impairment contained in the
10 listings. See 20 C.F.R. § 416.920(d). The listings describe “each of the major body systems
11 impairments [considered] to be severe enough to prevent an individual from doing any gainful
12 activity, regardless of his or her age, education, or work experience.” 20 C.F.R. § 416.925. An
13 impairment “meets” a listing if it meets all of the specified medical criteria. Sullivan v. Zebley,
14 493 U.S. 521, 530 (1990); Tackett, 180 F.3d at 1098. An impairment that manifests only some of
15 the criteria, no matter how severely, does not qualify. Sullivan, 493 U.S. at 530; Tackett, 180
16 F.3d at 1099.
17 An unlisted impairment or combination of impairments “equals” a listed impairment if
18 medical findings equal in severity to all of the criteria for the one most similar listed impairment
19 are present. Sullivan, 493 U.S. at 531; see 20 C.F.R. § 416.926(b). “Medical equivalence must
20 be based on medical findings,” and “[a] generalized assertion of functional problems is not
21 enough to establish disability at step three.” Tackett, 180 F.3d at 1099. An unlisted impairment or
22 combination of impairments is equivalent to a listed impairment if medical findings are present
23 equal in severity to all of the criteria for the one most similar listed impairment. Sullivan, 493
24 U.S. at 531; see 20 C.F.R. § 416.926(b). “But a claimant cannot base a claim of equivalence on
25 symptoms alone. Even if the claimant alleges pain or other symptoms that makes the impairment
26 more severe, the claimant’s impairment does not medically equal a listed impairment unless the
27 claimant has signs and laboratory findings that are equal in severity to those set forth in a listing.”
28 Ford v. Saul, 950 F.3d 1141, 1148-49 (9th Cir. 2020). The claimant bears the burden of
1 establishing an impairment (or combination of impairments) meets or equals the criteria of a
2 listed impairment. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
3 Here, at step three, the ALJ considered the severity of Plaintiff’s claimed mental
4 impairments, singly and in combination, and found they do not meet or medically equal the
5 criteria of listings 12.04, 12.06, and 12.10. (AR 89-90). Plaintiff argues the ALJ “failed to fully
6 evaluate whether the Plaintiff’s impairments equaled a listing at Step Three of the sequential
7 evaluation process.” (Doc. No. 15 at 7). More specifically, Plaintiff contends the ALJ’s step
8 three finding was not supported by substantial evidence because the ALJ failed to properly
9 consider whether Plaintiff’s medically determinable impairment of irritable bowel syndrome
10 (IBS) medically equaled the criteria of listing 5.08, or in the alternative, that her mental
11 limitations medically equaled a “mental listing in combination with her weight loss.” (Id. at 9-
12 11). Defendant argues the ALJ “had no duty to consider listing equivalency with Plaintiff’s
13 physical impairment,” and “even were the Court to consider Plaintiff’s equivalency argument, it
14 is meritless because it does not establish the criteria for Listing 5.08.” (Doc. No. 17 at 4-6). The
15 Court agrees.
16 Plaintiff is correct that in determining whether an impairment equals a listing at step three,
17 the ALJ “must explain adequately his evaluation of alternative tests and the combined effects of
18 the impairments.” (Doc. No. 15 at 8 (citing Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir.
19 2013). However, the ALJ “is not required to discuss the combined effects of a claimant’s
20 impairments or compare them to any listing in an equivalency determination, unless the claimant
21 presents evidence in an effort to establish equivalence.” Kennedy, 738 F.3d at 1178 (quoting
22 Burch, 400 F.3d at 683); see also Ford, 950 F.3d at 1157. As noted by Defendant, Plaintiff did
23 not argue at the administrative level that she had any severe physical impairments, nor did she
24 argue that a combination of physical and mental impairments equaled a listed impairment; to wit,
25 no physical impairment was listed in her function report nor is any listed in her disability report,
26 her attorney did not include any argument as such in the pre-hearing brief to the ALJ, she did not
27 allege physical limitations at the hearing, and her request to review the decision to the Appeals
28 Council did not make any argument regarding any physical impairment or any error at step three.
1 (Doc. No. 17 at 4 (citing AR 22-30, 40-42, 300, 307-13, 369-72). Plaintiff concedes that she did
2 not present information regarding her IBS in a pre-hearing brief but argues that she “properly
3 presented evidence to the ALJ that would establish medical equivalence regarding her IBS and
4 mental impairments” because she “did inform the ALJ during the hearing and submitted medical
5 evidence into the record that documents her IBS and her weight issues.” (Doc. No. 18 at 4).
6 In support of this argument, Plaintiff cites a handful of medical records from 2020-2021
7 noting a history of IBS with constipation diagnosis, a single reported “flare-up” of IBS and
8 vomiting, a single instance of “unintentional overdose” along with reported “nausea every
9 morning,” and a single report that she has been more constipated after having “issues with IBS for
10 some time” and requesting a referral to a gastroenterologist. (Doc. No. 15 at 4-5 (citing AR 517-
11 18 (noting Plaintiff report that she does not eat healthy and drinks one cup of water a day, and
12 provider treatment recommendations to take prescription as directed, take fiber, maintain
13 adequate fluids, and avoid triggers), 650 (noting history of IBS and daily nausea, but assessing
14 treatment at this visit as accidental drug overdose with non-intractable vomiting with nausea), 700
15 (treatment recommendations include taking Zofran “as needed”, 705 (referred to gastroenterology
16 upon Plaintiff’s request, advised to take fiber supplement and maintain adequate fluids without
17 mention of IBS medication)). Plaintiff also listed Plaintiff’s height, weight, and BMI across the
18 relevant period as generally recorded during the “vitals and measurements” portion of physical
19 exams. (Id. at 5-6). And finally, Plaintiff cites her own testimony that she has “issues with
20 irritable bowel syndrome.”2 (AR 40).
21 However, the entirety of Plaintiff’s testimony as to IBS was as follows:
22 ALJ: … I do note that your weight is less than most people. Do you
have any explanation of why you’re so light weight?
23
24
2 To the extent discernable, Plaintiff also appears to argue that “the ALJ’s cursory discussion of Plaintiff’s
25 weight and IBS at step two,” and lack of discussion of symptoms from IBS or weight at step four, were
insufficient to support the step three findings. (Doc. No. 15 at 10). However, Plaintiff does not
26 specifically challenge the ALJ’s findings at step two or step four in her opening brief. Carmickle, 533
F.3d at 1161 n.2 (court may decline to consider issues not raised with specificity in plaintiff’s opening
27 brief). Moreover, as discussed in detail supra, Plaintiff did not carry her burden to present evidence in an
effort to establish that IBS equaled a listing, either singly or in combination with claimed mental
28 impairments.
1 PLAINTIFF: I’m not 100 percent sure. It could be a combination of
things.
2
ALJ: All right.
3
PLAINTIFF: I know that my IBS makes it so that way it’s like I end
4 up feeling sick a lot of days. My anxiety definitely doesn’t help my
stomach feel any – like feel better on that front in and of itself. And
5 I, myself, forget to eat sometimes just because of, I don’t know, my
neurology or something.
6
ALJ: All right then. Anything else, [Plaintiff’s counsel]?
7
ATTY: No. Thank you, Your Honor.
8
ALJ: Well, [Plaintiff’s counsel], I did see there is a diagnosis, you
9 are correct, of IBS, but I didn’t see that any of the doctors clearly
established the limitations that arise from it. Is there any exhibit that
10 I should be looking at that describes that?
11 ATTY: No.
12 ALJ: All right. All right, then, but I will look at that one more time.
I’ll review the entries concerning the irritable bowel syndrome.
13
14 (AR 41). Based on the foregoing, Plaintiff did not fulfill her burden to present evidence or make
15 any argument that her IBS and weight issues, either singly or in combination with her mental
16 limitations, was equivalent to a listing at step three, and in fact, Plaintiff’s attorney conceded that
17 there is no evidence in the record establishing limitations arising from IBS. (Doc. No. 17 at 5-6).
18 “Because the ALJ did not have an obligation to discuss medical equivalency sua sponte, the ALJ
19 did not err in failing to do so.” Ford, 950 F.3d at 1148-49 (also noting that while plaintiff’s
20 attorney made “passing reference” to a “combination of impairments” at the administrative
21 hearing, he did not argue or explain how any combination was medically equal to a listing); see
22 also Burch, 400 F.3d at 683.
23 Further, as argued by Defendant, even were the Court to consider Plaintiff’s argument that
24 weight loss due to IBS, or a combination of IBS and alleged mental limitations, medically
25 equaled listing 5.08, it is meritless because she does not establish the criteria for listing 5.08.
26 (Doc. No. 17 at 6-7). At the relevant time, to meet or equal listing 5.08, Plaintiff must establish
27 “[w]eight loss due to any digestive disorder despite continuing treatment as prescribed, with a
28 body mass index (BMI) of less than 17.50 calculated on at least two evaluations at least 60 days
1 apart within a consecutive 6-month period.” 3 20 C.F.R. § 404, Subpt. P, App. 1 § 5.08. Plaintiff
2 argues she equals the listing because “the medical record documents that [she] has a long history
3 of treatment for IBS, has been chronically underweight at listing level, and has eating issues as a
4 result of [her] anxiety or autism.” (Doc. No. 15 at 9-10 (citing AR 512 (in March 2019 Plaintiff
5 requested refill on prescription for stool softener), 518 (in March 2020 she reported a history of
6 IBS), 700 (in October 2021 she was prescribed Zofran as she had received “in the past” for
7 nausea to take as needed), 706 (in August 2021 treating provider recommended only over the
8 counter fiber supplement and high fiber diet), 749 (Plaintiff’s mother’s report in 2018 that she
9 was a “picky eater” due to texture issues and “in the past” she would “swallow metal things” and
10 “like various items”)). In reply, Plaintiff further argued that “she did inform the ALJ during the
11 hearing and submitted medical evidence into the record that documents her IBS and her weight
12 issues,” thereby making this case “analogous to Nunes v. Berryhill where the court found that the
13 plaintiff presented an abundance of evidence in an effort to establish equivalence.” (Doc. No. 18
14 at 4-5).
15 In Nunes, the Court found plaintiff’s challenge to the ALJ’s step three finding was not
16 waived for failure to present the ALJ with evidence in an effort to establish equivalence to listing
17 5.08 because Plaintiff presented an “abundance of such evidence” including notations in her pre-
18 hearing brief that she had difficulty eating and gaining weight because of IBS, she “clearly
19 presented her Listing 5.08 theory in her own words” at the hearing, and the record was “teeming
20 with medical evidence supporting a Listing 5.08 equivalency.” Nunes v. Berryhill, 2018 WL
21 1399852, at *5 (N.D. Cal. Mar. 20, 2018). The ALJ further determined that the ALJ’s failure to
22 consider and apply listing 5.08 at step three was not supported by substantial evidence. Id.
23 However, this case is distinguishable from Nunes because, as discussed in detail supra, there was
24 no notation in the pre-hearing brief regarding difficulty with weight (AR 369-72), Plaintiff did
25 not clearly present a theory at the hearing that her weight loss was due to IBS (AR 41 (counsel
26 replying “no” to ALJ question whether any exhibit in the record describes limitations arising from
27
3 The parties appear to agree that this is version of Listing 5.08 applies in this case. Listing 5.08 was later
28 revised to require the BMI calculations appear “within a consecutive 12-month period.”
1 IBS)), and while the record contains several notations of diagnosis and treatment for IBS, as
2 discussed above, it is not “teeming with” medical evidence to support a waiver of Plaintiff’s
3 burden at step three. See Sperry v. Comm’r of Soc. Sec. Admin., 2019 WL 1513203, at *5 (D.
4 Ariz. Apr. 8, 2019) (considering plaintiff’s reliance on Nunes, and finding “the ALJ did not err by
5 not explicitly considering whether Plaintiff met or medically equaled Listing 5.08 at step three” in
6 part because plaintiff’s hearing testimony “did not suggest that she was intending to present a
7 Listing 5.08 theory”)
8 Moreover, regardless of the whether Plaintiff has sufficiently identified instances of BMI
9 due to IBS within the requisite time period, she has not established that she was receiving
10 “continuous treatment” for IBS across the longitudinal record based on the treatment notes cited
11 above; nor, as argued by Defendant, has Plaintiff described how she adhered to a continuing
12 treatment plan “as prescribed.” (Doc. No. 17 at 6-7); see Perez v. O’Malley, 2024 WL 3618440,
13 at *6 (E.D. Cal. Aug. 1, 2024) (“Because Plaintiff did not show that her weight loss was due to a
14 digestive disorder, Plaintiff did not sufficiently establish a listing equivalence”); Standifer v.
15 Colvin, 2015 WL 3723967, at *5 (D. Nev. June 12, 2015) (finding no error in considering listing
16 5.08 at step three because plaintiff failed to show continued treatment as prescribed). Finally,
17 while not specifically challenged by Plaintiff in her opening brief, the ALJ considered Plaintiff’s
18 IBS at step two and found it was not a severe impairment. See Daron L.H. v. Comm’r Soc. Sec.
19 Admin., 2022 WL 4299138, at *3 (D. Or. Sept. 19, 2022) (“Finally, the ALJ did not identify any
20 digestive disorder as a severe impairment in the step two findings. The court’s review of the
21 record shows no evidence supporting a finding that [plaintiff’s] weight loss is because of a
22 digestive disorder that was actively being treated that satisfies all the criteria of Listing 5.08.”).
23 For all of these reasons, Plaintiff has not met her burden in demonstrating her weight loss
24 and IBS, either singly or in combination with mental impairments, equals listing 5.08. The Court
25 finds no error at step three.
26 B. Symptom Claims
27 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding
28 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
1 The ALJ first must determine whether there is “objective medical evidence of an underlying
2 impairment which could reasonably be expected to produce the pain or other symptoms alleged.”
3 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment
4 could reasonably be expected to cause the severity of the symptom he has alleged; he need only
5 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572
6 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted).
7 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the
8 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ]
9 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d
10 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are
11 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence
12 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
13 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a
14 credibility determination with findings sufficiently specific to permit the court to conclude that
15 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing
16 [evidence] standard is the most demanding required in Social Security cases.” Garrison v.
17 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278
18 F.3d 920, 924 (9th Cir. 2002)).
19 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably
20 be expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning
21 the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with
22 the medical evidence and other evidence in the record.” (AR 91). Plaintiff argues the ALJ failed
23 to provide clear and convincing reasons for discounting her subjective complaints. (Doc. No. 15
24 at 11-16). First, the ALJ discounted Plaintiff’s symptom claims because “[t]he medical evidence
25 indicates the claimant received routine conservative treatment for complaints of autism disorder,
26 depressive disorder, and panic disorder (agoraphobia).” (AR 92). Evidence of “conservative
27 treatment” may be sufficient to discount a claimant's testimony regarding the severity of an
28 impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); Johnson v. Shalala, 60 F.3d
1 1428, 1434 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment
2 has been prescribed). Plaintiff argues treatment for mental impairments with medication and
3 therapy is not conservative treatment, and generally argues that Plaintiff has “undergone
4 significant and consistent treatment” for her impairments in addition to independent living
5 services that help with cooking, cleaning, personal shopping, and assisting with medical
6 appointments. (Doc. No. 15 at 13-14 (citing AR 634, 755, 757-58, 764-65 (noting Plaintiff
7 refused to attend several psychiatrist appointments), 767 (noting Plaintiff declined speaking to
8 counselor)). Plaintiff is correct that district courts in the Ninth Circuit have found the ALJ erred
9 when discounting mental health symptom testimony based on conservative treatment with therapy
10 and medication. See, e.g., Scott H. v. Comm’r, Soc. Sec. Admin., 2023 WL 4249276, *4 (D. Or.
11 June 29, 2023) (noting “this does not fit the Ninth Circuit’s mold of ‘conservative treatment’ as a
12 matter of law.”) (collecting cases).
13 Defendant argues the ALJ reasonably found Plaintiff’s symptom claims improved with
14 routine conservative treatment. (Doc. No. 17 at 9). In support of this argument, Defendant cites
15 the ALJ’s summary of the medical evidence including Plaintiff’s reports that her mental health
16 “eased” after obtaining an appointment for hormones, her mood was better, she was feeling
17 “pretty good,” and improvement with medication. (AR 92 (citing AR 528, 546, 767, 814, 845
18 (noting Plaintiff refused antidepressants), 856)). The effectiveness of treatment is a relevant
19 factor in determining the severity of a claimant’s symptoms. See Warre v. Comm'r of Soc. Sec.
20 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively controlled with medication
21 are not disabling for purposes of determining eligibility for benefits); see also Tommasetti, 533
22 F.3d at 1040 (a favorable response to treatment can undermine a claimant’s complaints).
23 Moreover, even assuming, arguendo, that the ALJ failed to properly consider the nature of
24 Plaintiff’s treatment for mental health impairments, any error is harmless because the ALJ offers
25 additional reasoning, supported by substantial evidence, to discount Plaintiff’s symptoms claims.
26 See Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (error in
27 considering one of several reasons given in support of ALJ’s finding was harmless because the
28 remaining reasons and ultimate determination were supported by substantial evidence).
1 Second, the ALJ found “there is no medical source statement from an examining or
2 treating physician that endorses the extent of the claimant’s alleged functional limitations.” (AR
3 92). Plaintiff argues this “assertion is belied by the record” because during one evaluation to
4 determine if she was eligible for services, Plaintiff was noted to show poor eye contact, possess
5 “substantial deficits in social interests and relationship skills,” “nonverbal communication was
6 impoverished,” and “showed limited facial expressions and social gestures”; and Plaintiff
7 received independent living services through Be the Light, an organization that provided
8 assistance with cooking, cleaning, personal shopping, attending medical appointments, applying
9 for benefits, and attempting to obtain housing. (Doc. No. 15 at 14-15 (citing AR 717, 738-41,
10 755, 758-62)). Plaintiff also noted that state agency medical consultants opined that Plaintiff
11 “might miss 1-2 days per month” of work. (Doc. No. 15 at 15 (citing AR 58, 77, 94)). However,
12 the state agency medical consultants found Plaintiff was not disabled, and their opined limitations
13 did not, as noted by the ALJ, endorse the extent of limitations claimed by Plaintiff. (AR 62, 80).
14 Moreover, as noted by Defendant, the records regarding Plaintiff’s approval for independent
15 living services are based on her subjective complaints and general diagnoses and do not include a
16 medical source statement, and the examining psychologist opinion cited by Plaintiff “did not
17 opine or otherwise endorse functional limitations reflective of Plaintiff’s testimony.” (Doc. No.
18 17 at 11-12 (“[i]n total, Plaintiff’s presented evidence does not contradict the ALJ’s finding that
19 Plaintiff lacked endorsement of her subjective complaints by treating or examining sources”); AR
20 708-22, 741-42, 755).
21 Thus, the ALJ reasonably relied on the lack of any corroborating medical source statement
22 in discounting the severity of Plaintiff’s subjective claims. See Johnson v. Shalala, 60 F.3d 1428,
23 1434 (9th Cir. 1995) (contradiction with the relevant medical record was a sufficient basis for the
24 ALJ to reject Plaintiff’s subjective testimony); Carmickle, 533 F.3d at 1161; see also Edna v.
25 Saul, 2020 WL 1853312, at *8 (S.D. Cal. Apr. 13, 2020) (lack of medical opinion finding
26 Plaintiff disabled was a clear and convincing reason to reject Plaintiff’s subjective allegations);
27 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (ALJ reasonably considered that no
28 treating or examining physician found the claimant disabled). This was a clear and convincing
1 reason for the ALJ to discount Plaintiff’s symptom claims.
2 Third, the ALJ found the consistency of Plaintiff’s allegations as to the severity of her
3 symptoms “was diminished because those allegations are greater than expected in light of the
4 objective evidence of record.” (AR 92). In her opening brief, Plaintiff argues only that the lack
5 of medical evidence cannot be the sole basis for discounting testimony, without specifically
6 challenging the ALJ’s findings or identifying objective evidence in the record in support of this
7 argument. (Doc. No. 15 at 13); Carmickle, 533 F.3d at 1161 n.2 (court may decline to consider
8 issues not raised with specificity in plaintiff’s opening brief); see also Kim v. Kang, 154 F.3d 996,
9 1000 (9th Cir. 1998) (the Court may not consider on appeal issues not “specifically and distinctly
10 argued” in the party’s opening brief). On reply, Plaintiff cited several mental status examinations
11 from the overall medical record that observed poor eye contact and unproductive speech, anxious
12 and depressed mood, entitled and manipulative attitude, poor judgment and insight, and flat and
13 exaggerated affect. (Doc. No. 18 at 6-8 (citing AR 426, 592, 601, 632)).
14 Plaintiff is correct that an ALJ may not discredit a claimant’s testimony and deny benefits
15 solely because the degree of impairment alleged is not supported by objective medical evidence.
16 (Doc. No. 15 at 13 (citing Burch, 400 F.3d at 681)). However, medical evidence is a relevant
17 factor in determining the severity of a claimant's pain and its disabling effects. Rollins v.
18 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 20 C.F.R. § 404.1529(c)(2). Here, as discussed
19 above, the ALJ gave at least one additional reason, supported by substantial evidence, for
20 discounting Plaintiff’s symptom claims. Moreover, the ALJ set out medical evidence
21 documenting normal mental status examination findings across the relevant adjudicatory period in
22 contradiction of Plaintiff’s claims of disabling impairments, including only slightly restricted
23 affect, no lability, better mood, calm and coherent, able to provide background information
24 without observed limitations, good insight, good eye contact, normal thought process and thought
25 content, and good judgment. (AR 92, 528, 532-33, 546, 592-95, 813-14, 840-41, 856). Plaintiff
26 argues the ALJ improperly “cherry picked” evidence from the record to support his conclusion
27 without accounting for the context of the entire record. (Doc. No. 18 at 6); see Ghanim v. Colvin,
28 763 F.3d 1154, 1164 (9th Cir. 2014). However, as part of the summary of medical evidence the
1 | ALJ explicitly recognized evidence in the record that could be considered more favorable to
2 | Plaintiff, including evidence from the precise treatment records cited by Plaintiff in support of her
3 | argument, and nonetheless found “the weight of the objective evidence does not support the
4 | claimant’s claims of disabling limitations to the degree alleged.” (AR 92). “[W]here evidence is
5 || susceptible to more than one rational interpretation, it is the [Commissioner’s] conclusion that
6 | must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Thus, when viewing the
7 | record as a whole, this was a clear and convincing reason, supported by substantial evidence, for
8 | the ALJ to discount Plaintiff's symptom claims.
9 The Court concludes that the ALJ provided clear and convincing reasons, supported by
10 | substantial evidence, for rejecting Plaintiff's symptom claims.
11 VIII. CONCLUSION
12 A reviewing court should not substitute its assessment of the evidence for the ALJ’s.
13 | Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment
14 | as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail
15 | above, the ALJ properly considered Plaintiff's symptom claims and did not err at step three.
16 | After review, the Court finds the ALJ’s decision is supported by substantial evidence and free of
17 | harmful legal error.
18 Accordingly, it is ORDERED:
19 1. Plaintiff's Motion for Summary Judgment (Doc. No. 15) is DENIED.
20 2. Defendant’s Cross-Motion for Summary Judgment (Doc. No. 17) is GRANTED and
21 the decision of the Commissioner of Social Security is AFFIRMED for the reasons set
22 forth above.
23 3. The Clerk is directed to enter judgment in favor of the Commissioner of Social
24 Security, terminate any pending motions/deadlines, and close this case.
25
26 Dated: _ January 6, 2025 law ZA. foareh Back
27 HELENA M. BARCH-KUCHTA
38 UNITED STATES MAGISTRATE JUDGE
16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10774816. Public record. Not legal advice.