An ALJ’s decision will not be 25 reversed for errors that are harmless
How later courts described this case
- An ALJ’s decision will not be 25 reversed for errors that are harmless
- “court will defer 25 to the ALJ’s credibility determinations when they are appropriately 26 supported in the record by ‘specific findings justifying the 27 decision’”
- finding fault with ALJ’s conclusion 16 that the claimant’s limitations were less than alleged where the 17 ALJ merely summarized the medical record without explaining why it 18 undermined the claimant’s allegations
- “[U]nless an ALJ makes a finding of 9 malingering based on affirmative evidence thereof, he or she may 10 only find an applicant not credible by making specific findings as 11 to credibility and stating clear and convincing reasons for 12 each.”
Written by the judges who cited it.
The opinion
1
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UNITED STATES DISTRICT COURT
7
CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
8
9
CYNTHIA L. A.,1 Case No. EDCV 24-00290-AS
10
Plaintiff,
MEMORANDUM OPINION
11
v.
12
CAROLYN COLVIN,2 Acting
Commissioner of Social
13
Security,
14
Defendant.
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For the reasons discussed below, the decision of the
18
Commissioner is affirmed.
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23
1 Plaintiff’s name is partly redacted in accordance with
24 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation
of the Committee on Court Administration and Case Management of
25 the Judicial Conference of the United States.
26 2 On November 30, 2024, Carolyn Colvin became the Acting
Commissioner of Social Security, and pursuant to Rule 25(d) of the
27 Federal Rules of Civil Procedure, she is substituted for Martin
O’Malley as the defendant in this case.
28
1 PROCEEDINGS
2
3 On February 6, 2024, Plaintiff filed a Complaint seeking
4 review of the Commissioner’s denial of Plaintiff’s applications
5 for disability insurance benefits and supplemental security income
6 under Titles II and XVI, respectively, of the Social Security Act.
7 (Dkt. No. 1). On April 8, 2024, Defendant filed an Answer consisting
8 of the Administrative Record (“AR”). (Dkt. No. 12). The parties
9 subsequently filed opposing briefs setting forth their respective
10 positions regarding Plaintiff’s claims (“Pl. Brief” and “Def.
11 Brief”). (Dkt Nos. 15, 17-18). The parties have consented to
12 proceed before a United States Magistrate Judge. (Dkt. Nos. 7-8).
13
14 The Court has taken this matter under submission without oral
15 argument. See C.D. Cal. C. R. 7-15.
16
17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
18
19 On October 28, 2016, Plaintiff filed applications for
20 supplemental security income and disability insurance benefits,
21 alleging disability since April 1, 2016. (AR 165-75). Plaintiff’s
22 applications were denied, initially on February 6, 2017, and on
23 reconsideration on December 13, 2017. (AR 60-86). On September 13,
24 2019, Plaintiff, who was represented by counsel, testified at a
25 hearing before Administrative Law Judge (“ALJ”) Thomas D. Businger.
26 (AR 29-59). ALJ Businger also heard testimony from vocational
27 expert (“VE”) Sandra Trost. (AR 47-55). On October 22, 2019, ALJ
28 Businger denied Plaintiff’s applications. (AR 15-23).
1 The Appeals Council denied Plaintiff’s request for review on
2 June 29, 2020 (AR 1-5), and Plaintiff filed a complaint in this
3 Court seeking review of the Commissioner’s decision. See Cynthia
4 L. A. v. Saul, C.D. Cal. Case No. EDCV 20-01557-AS. On December
5 16, 2021, the Court remanded the matter for further proceedings
6 upon the parties’ stipulation that an ALJ take further action to
7 develop the record and issue a new decision. (Id., Dkt. Nos. 31-
8 33; AR 588-94).
9
10 Following this Court’s remand order, on June 22, 2022,
11 the Appeals Council vacated ALJ Businger’s decision and remanded
12 the matter to an ALJ to receive additional evidence and issue a
13 new decision further considering Plaintiff’s subjective testimony
14 and statements because the prior decision had provided inadequate
15 rationale for discounting Plaintiff’s testimony and statements.
16 (AR 598-601). Plaintiff underwent an internal medicine consultative
17 examination on October 31, 2022 and submitted additional medical
18 records.3 (AR 745-853). On July 26, 2023, ALJ Josephine Arno held
19 a hearing and received testimony from Plaintiff, who was
20 represented by counsel, and VE Stephen Davis. (AR 531-59). On
21 November 30, 2023, ALJ Arno issued a partially favorable decision
22 finding that Plaintiff became disabled on March 19, 2022, but was
23
24
25 3 (1) Internal Medicine Consultative Examination, dated
October 31, 2022 to November 17, 2022, by Dr. Greene; (2) Office
26 treatment records dated June 17, 2019 to November 21, 2019 from
Loma Linda; (3) Office treatment records, dated March 19, 2022 from
27 Arrowhead Orthopaedics, and Office treatment records, dated October
16, 2019 to March 24, 2023, from Dr. Thomas. (AR 745-853).
28
1 not disabled prior to that date. (AR 511-23).
2
3 ALJ Arno applied the requisite five-step process to evaluate
4 Plaintiff’s case. (AR 512-23). At step one, ALJ Arno found that
5 Plaintiff had not engaged in substantial gainful activity since
6 the October 18, 2016 application date. (AR 514). At step two, ALJ
7 Arno found that Plaintiff has the following severe impairments:
8 obesity, diabetes, and bilateral knee osteoarthritis. (AR 514). At
9 step three, the ALJ determined that Plaintiff’s impairments did
10 not meet or equal a listing found in 20 C.F.R. Part 404, Subpart
11 P, Appendix 1. (AR 515).
12
13 Next ALJ Arno found that (1) prior to March 19, 2022, Plaintiff
14 had a residual functional capacity (“RFC”)4 for medium worki as
15 defined in 20 C.F.R. §§ 404.1567(c), 416.967(c), except that she
16 was able to stand and walk for six hours a day and sit for six
17 hours a day. (AR 515-20 (adopting limitations consistent with the
18 medical opinion evidence predating March 19, 2022, and rejecting
19 Plaintiff’s subjective statements and testimony suggesting greater
20 limitations)); and (2) since March 19, 2022, Plaintiff had a RFC
21 for a full range of light work5 as defined in 20 C.F.R. §§
22 404.1567(b), 416.967(b), based on the updated medical record,
23 including a treatment note from Arrowhead Orthopedics dated March
24
4 Medium work involves lifting no more than 50 pounds at a
25 time with frequent lifting or carrying of objects weighing up to
25 pounds. 20 C.F.R. § 404.1567(c).
26
5 Light work involves lifting no more than 20 pounds at a
27 time with frequent lifting or carrying of objects weighing up to
10 pounds. 20 C.F.R. § 404.1567(b).
28
1 19, 2022 (see AR 808-10), and Plaintiff’s subjective statements
2 and testimony. (AR 520-21).
3
4 At step four, ALJ Arno found that Plaintiff did not have past
5 relevant work. (AR 521). At step five, based on Plaintiff’s age,
6 education, work experience, RFC, and the VE’s testimony, ALJ Arno
7 determined that prior to March 19, 2022, Plaintiff could perform
8 certain medium, unskilled jobs. (AR 521-22 (relying on VE testimony
9 at AR 549-57)), and that beginning March 19, 2022, Plaintiff would
10 be disabled under the Medical-Vocational Guidelines, 20 C.F.R. Pt.
11 404, Subpt. P, App. 2 (“the Grids”) Rule 202.04, given her age,
12 education, work experience, and RFC. (AR 523).
13
14 Plaintiff now seeks judicial review of ALJ Arno’s decision,
15 which stands as the final decision of the Commissioner. See 42
16 U.S.C. § 405(g).
17
18 STANDARD OF REVIEW
19
20 This Court reviews the Commissioner’s decision to determine
21 if it is free of legal error and supported by substantial evidence.
22 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).
23 “Substantial evidence” is more than a mere scintilla, but less than
24 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
25 2014). “It means such relevant evidence as a reasonable mind might
26 accept as adequate to support a conclusion.” Revels v. Berryhill,
27 874 F.3d 648, 654 (9th Cir. 2017) (citation and internal quotation
28 omitted).
1 To determine whether substantial evidence supports a finding,
2 “a court must consider the record as a whole, weighing both evidence
3 that supports and evidence that detracts from the [Commissioner’s]
4 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
5 2001) (internal quotation omitted). As a result, “[i]f the evidence
6 can support either affirming or reversing the ALJ’s conclusion, [a
7 court] may not substitute [its] judgment for that of the ALJ.”
8 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
9
10 DISCUSSION
11
12 Plaintiff contends that substantial evidence does not support
13 ALJ Arno’s determination that Plaintiff’s condition substantially
14 changed only as of March 19, 2022. Plaintiff asserts that the
15 medical evidence is not consistent with the ALJ’s finding that
16 Plaintiff’s RFC “suddenly” changed. (Pl. Brief at 4-12). Plaintiff
17 also contends that ALJ Arno failed properly to consider Plaintiff’s
18 testimony and statements suggesting that she had greater
19 limitations than ALJ Arno found to exist prior to March 19, 2022.
20 (Id. at 12-19).
21
22 After consideration of the record as a whole, the Court finds
23 no reason to remand this matter. The ALJ’s decision is supported
24 by substantial evidence and free from material error.6
25
26
6 The harmless error rule applies to the review of
27 administrative decisions regarding disability. See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
28
1 A. Summary of the Relevant Medical Record7
2
3 Plaintiff reported that she started having left knee pain when
4 she was 16 years old from a “birth defect” for which she had
5 arthroscopic surgery. (AR 246, 302, 320, 322, 748). She denied any
6 residual issues after her surgery despite having a leg length
7 discrepancy (AR 246, 302), and there are no records for treatment
8 until 2016.
9
10 In October 2016, eight months after Plaintiff’s alleged onset
11 date, Plaintiff went to the emergency room complaining of right
12 knee pain for the past eight months. (AR 309). She had mild pain,
13 minimal tenderness, and normal strength in her right knee. (AR
14 411). Plaintiff was diagnosed with chronic right knee pain (likely
15 “OA” (osteoarthritis)), and prescribed Norco. (AR 310).
16
17 In November 2016, Plaintiff followed up with a provider at
18 the Riverside University Health System, requesting Norco for her
19 pain due to it causing “significant stress” in her life (e.g., she
20 had closed two of her antique shops due to pain and swelling with
21 walking). (AR 413). She had mild edema and mildly decreased range
22 of motion in her right knee. (Id.; see also AR 446 (October, 2016
23 right knee x-ray showing mild degenerative joint disease)).
24
400 F.3d 676, 679 (9th Cir. 2005) (An ALJ’s decision will not be
25 reversed for errors that are harmless).
26 7 Since the issues in this case arise from ALJ Arno’s
consideration of Plaintiff’s asserted knee pain and related
27 limitations, the Court has focused on the medical record addressing
these concerns.
28
1 Plaintiff was diagnosed with chronic right knee pain, referred to
2 an orthopedic surgeon, and ordered to continue with Naproxen and
3 “RICE” (rest, ice, compression and elevation). (AR 414). In
4 December 2016, Plaintiff saw an orthopedist, who noted mild right
5 knee pain and minimal tenderness but normal strength on
6 examination, diagnosed right knee osteoarthritis, and referred
7 Plaintiff for physical therapy. (AR 416; see also AR 447-48
8 (December, 2016 right knee x-ray similar to the prior study showing
9 mild degenerative disease)). Plaintiff returned four days later
10 requesting that her providers complete disability forms for her
11 right knee pain, asserting worsened pain with prolonged standing,
12 limited range of motion, and weakness that caused her to fall. (AR
13 418). An examination revealed some right knee pain and tenderness,
14 full range of motion with pain, and no edema. (AR 419). Her provider
15 declined to complete disability paperwork because Plaintiff had
16 “not gone through any sessions of [physical therapy] or tried any
17 other alternative treatments.” Id.
18
19 On January 10, 2017, Plaintiff attended a physical therapy
20 session, reporting intermittent and worsening right knee pain with
21 walking. (AR 421). Three days later, she returned to her doctor
22 and requested disability paperwork which was again denied because
23 she “has only had one session of [physical therapy].” And was
24 advised to continue conservative measures with muscle
25 strengthening, physical therapy, NSAIDs, and warm compresses. (AR
26 425-26). Plaintiff did not show up for her next physical therapy
27 appointment on January 13, 2017, but attended physical therapy
28 sessions on January 31, and February 2, 2017. (AR 427-35).
1 On February 7, 2017, Plaintiff went to the emergency room
2 complaining of chest pain onset during her third physical therapy
3 appointment. (AR 327-28). On examination, she reportedly had normal
4 range of motion and no joint tenderness or edema, and walked without
5 difficulty. (AR 327-28, 342, 350). Earlier that day, Plaintiff had
6 seen her orthopedist who discontinued Plaintiff’s physical therapy
7 until cleared by her primary doctor. (AR 436-37). On February 22,
8 2017, Plaintiff reported that she could not tolerate physical
9 therapy because it makes her “feel sick,” and refused an injection
10 for pain. (AR 439-41).
11
12 On January 24, 2017, orthopedic consultative examiner, Dr.
13 Herman Schoene, evaluated Plaintiff. AR 319-23). Plaintiff
14 complained of sudden-onset right knee pain from “considerable
15 arthritis” since April 2016, which had gradually progressed, and
16 back pain for which she was taking Advil. (AR 319-20). Dr. Schoene’s
17 examination revealed that Plaintiff had normal posture, gait and
18 station, normal range of motion, no crepitus, no tenderness, no
19 laxity, and normal motor strength. (AR 321-22). Bilateral knee x-
20 rays showed “moderate” osteoarthritis, left worse than right. (AR
21 322). Dr. Schoene diagnosed right knee arthralgia and opined that
22 Plaintiff would be capable of medium work consistent with ALJ
23 Arno’s RFC determination for the period prior to March 19, 2022.
24 (AR 322-23; see also AR 60-86 (state agency reviewers’ findings,
25 in February and December, 2017, that Plaintiff would be capable of
26 medium work consistent with ALJ Arno’s RFC determination).
27
28
1 In March 2017, a right knee x-ray showed degenerative changes
2 with a small joint effusion, and deformity in the lateral tibial
3 plateau which “may be” from an old fracture injury. (AR 365). In
4 April 2017, Plaintiff was referred to an orthopedist. (AR 361,
5 363).
6
7 In July 2017, Dr. Paul Burton at Arrowhead Orthopedics
8 evaluated Plaintiff. (AR 378-79, 389). Plaintiff reported
9 intermittent, moderate groin, low back, and knee pain only with
10 activity (overuse, walking) for the past two years, with mild
11 swelling, catching, and giving way without pain with pivoting. (AR
12 389). Plaintiff was not taking any medications at that time. (AR
13 383, 389). Plaintiff was observed to have normal gait and station
14 and could transfer with “relative ease,” but also had demonstrated
15 discomfort, tenderness in her knees but no soft tissue swelling,
16 full range of motion with crepitus, and positive McMurray test on
17 her right knee. (AR 390-91). Knee x-rays showed bilateral joint
18 space narrowing, and a small osteophytic spur in the right knee.
19 (AR 391).
20
21 Dr. Burton diagnosed right knee pain with “probable”
22 patellofemoral arthritis in both knees, but requested an MRI to
23 rule out a medial meniscus tear or other process. (AR 391).
24 Plaintiff followed up in October 2017, reporting continued right
25 knee pain. (AR 384). Examination findings were unchanged from the
26 prior visit. (AR 384-85). In August 2017, an MRI showed
27 degenerative arthrosis and Dr. Burton diagnosed bilateral knee
28 osteoarthritis with degenerative lateral meniscus tear in the right
1 knee for which he recommended “conservative” management starting
2 with an injection. (AR 385; see also AR 452-53 (MRI report)).
3
4 The next available treatment notes for Plaintiff’s knee pain
5 are from October 2019, and August 2021, when Plaintiff requested,
6 and was granted, a referral to Arrowhead Orthopedics for her
7 worsening knee pain. (AR 812-15). However, Plaintiff did not
8 return to Arrowhead Orthopedics until March 19, 2022 – the date on
9 which ALJ Arno found that Plaintiff’s RFC changed from medium to
10 light work. (AR 808-10). Plaintiff reported that her worsening knee
11 pain had been present for more than two years and came on slowly.
12 (AR 808). She also believed that her pain was not serious enough
13 to consider having surgery. (Id.). Plaintiff was not taking any
14 medication besides Advil for her pain at that time and had not had
15 any diagnostic tests for about two years. (Id.). On examination,
16 she had an antalgic gait, moderate difficulty transferring from
17 chair to standing and standing to the examination table, but full
18 range of motion. (Id.). X-rays showed “early osteoarthritis.”
19 (Id.). Plaintiff’s orthopedist found that Plaintiff was “not a
20 candidate for knee replacement surgery and will do her very best
21 to accept and live with” her pain and use Advil. (Id.).
22
23 On October 31, 2022, Internal medicine consultative examiner,
24 Dr. Robert Greene, reviewed some medical records and examined
25 Plaintiff. (AR 747-53). Plaintiff complained of bilateral knee
26
27
28
1 osteoarthritis, low back pain, diabetes, and fatty liver. (AR 747).8
2 An examination revealed normal gait and balance, decreased lumbar
3 spine range of motion, and normal range of motion in Plaintiff’s
4 knees with no instability or tenderness (AR 749-51). Dr. Green
5 diagnosed bilateral knee osteoarthritis, low back pain, diabetes,
6 and fatty liver, and opined that Plaintiff would be capable of a
7 range of medium work with walking and standing limited to four
8 hours a workday, and occasional postural activities. (AR 751-53;
9 see also AR 754-59 (Dr. Green’s Medical Statement of Ability to Do
10 Work-Related Activities (Physical) form)).
11
12 B. Substantial Evidence Supports ALJ Arno’s RFC Assessments.
13
14 Plaintiff contends that substantial evidence does not support
15 ALJ Arno’s decision regarding Plaintiff’s RFC assessment for the
16 period before March 19, 2022. See Pl. Brief at 4-12. The Court
17 disagrees. As summarized above, all of the medical opinions in the
18 record found limitations consistent with (or lesser than) ALJ
19 Arno’s RFC determinations. Compare AR 515, 521 (ALJ Arno’s RFC
20 determinations) with AR 60-86, 322-23, 751-59 (medical opinions
21 finding Plaintiff capable of a range of medium work). ALJ Arno
22 appropriately relied on the medical opinions in the record, see 20
23
24
25
26 8 In 2001, Plaintiff’s doctor had noted that Plaintiff had
liver and kidney problems with excessive fluid retention secondary
27 to Motrin. (AR 267). She was diagnosed with fatty liver in February
2019. (AR 471-98).
28
1 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3), and Plaintiff does not
2 argue to the contrary.
3
4 Plaintiff claims that the record does not support a finding
5 that Plaintiff’s condition materially changed as of March 19, 2022,
6 and argues that ALJ Arno arbitrarily chose this date. (Pl. Brief
7 at 12). In finding a material change in Plaintiff’s RFC, ALJ Arno
8 reasoned that, unlike the Arrowhead Orthopedics treatment note
9 dated March 19, 2022, examinations of Plaintiff’s knees prior to
10 March 19, 2022, did not show difficulty with changing positions or
11 with ambulation. As set forth above, the record supports ALJ
12 Arno’s reasoning.
13
14 It is Plaintiff’s burden to produce evidence to support her
15 disability claim. See Mayes v. Massanari, 276 F.3d 453, 459 (9th
16 Cir. 2001)(as amended). Here, Plaintiff did not seek treatment for,
17 or evaluation of, her knee pain after August 2017 until she returned
18 to Arrowhead Orthopedics on March 19, 2022 (after this Court’s
19 prior remand). Thus, there simply was nothing in the record for
20 ALJ Arno to review to support the degree to which Plaintiff’s
21 assertedly “worsening” knee pain worsened between August 2017 and
22 March 2022.
23
24 ALJ Arno’s reliance on the March 19, 2022 treatment note (and
25 Plaintiff’s latest testimony and statements about her limitations)
26 to support her finding of a material change in Plaintiff’s
27 deteriorating condition as of that date is supported by substantial
28 evidence in the record. See AR 518-21 (ALJ Arno’s discussion of
1 the updated medical record and Plaintiff’s statements). Accordingly
2 the Court finds no basis for a remand on this basis.
3
4 C. The ALJ Gave Legally Sufficient Reasons Supported by
5 Substantial Evidence for Discounting Plaintiff’s Testimony
6 and Statements.
7
8 Plaintiff contends that ALJ Arno did not provide legally
9 sufficient reasons for discounting Plaintiff’s testimony and
10 statements suggesting greater limitations than what ALJ Arno found
11 for the period prior to March 22, 2022. Plaintiff suggests that
12 the ALJ relied only on the asserted lack of supporting medical
13 evidence to reject Plaintiff’s testimony and statements. See Pl.
14 Brief at 13-19. The record belies Plaintiff’s claim.
15
16 1. Applicable Law
17
18 When assessing a claimant’s credibility regarding subjective
19 pain or intensity of symptoms, the ALJ must engage in a two-step
20 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
21 First, the ALJ must determine if there is medical evidence of an
22 impairment that could reasonably produce the symptoms alleged.
23 Garrison, 759 F.3d at 1014. “In this analysis, the claimant is not
24 required to show that her impairment could reasonably be expected
25 to cause the severity of the symptom she has alleged; she need only
26 show that it could reasonably have caused some degree of the
27 symptom.” Id. (emphasis in original) (citation omitted). “Nor must
28
1 a claimant produce objective medical evidence of the pain or
2 fatigue itself, or the severity thereof.” Id. (citation omitted).
3
4 If the claimant satisfies this first step, and there is no
5 evidence of malingering, the ALJ must provide specific, clear and
6 convincing reasons for rejecting the claimant’s testimony about
7 the symptom severity. Id. at 1014-15; see also Robbins, 466 F.3d
8 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of
9 malingering based on affirmative evidence thereof, he or she may
10 only find an applicant not credible by making specific findings as
11 to credibility and stating clear and convincing reasons for
12 each.”). “This is not an easy requirement to meet: The clear and
13 convincing standard is the most demanding required in Social
14 Security cases.” Garrison, 759 F.3d 995, 1015 (9th 2014)(citation
15 omitted). The ALJ must evaluate “the intensity and persistence of
16 those symptoms to determine the extent to which the symptoms limit
17 [the claimant’s] ability to perform work-related activities for an
18 adult.” SSR 16-3p, 2017 WL 5180304, at *3.
19
20 While the ALJ cannot “delve into wide-ranging scrutiny of the
21 claimant’s character and apparent truthfulness,” Trevizo, 871 F.3d
22 664, 678 n.5 (9th 2017), the ALJ may consider “prior inconsistent
23 statements concerning the symptoms, and other testimony by the
24 claimant that appears less than candid; unexplained or inadequately
25 explained failure to seek treatment or to follow a prescribed
26 course of treatment; and the claimant’s daily activities.” Ghanim
27 v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted).
28 Inconsistencies between a claimant’s testimony and conduct, or
1 internal contradictions in the claimant’s testimony, also may be
2 relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014).
3 In addition, the ALJ may consider the observations of treating and
4 examining physicians regarding, among other matters, the functional
5 restrictions caused by the claimant’s symptoms. Smolen v. Chater,
6 80 F.3d 1273, 1284 (9th Cir. 1996); accord Burrell, 775 F.3d at
7 1137. However, it is improper for an ALJ to reject subjective
8 testimony based “solely on a lack of objective medical evidence to
9 fully corroborate the claimant’s allegations.” Bray v. Comm’r of
10 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation
11 omitted); see also Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir.
12 2022) (reaffirming same but observing that inconsistency with the
13 medical evidence is a factor that can be considered); SSR 16-3p,
14 2017 WL 5180304, at *5 (“Objective medical evidence is a useful
15 indicator to help make reasonable conclusions about the intensity
16 and persistence of symptoms, including the effects those symptoms
17 may have on the ability to perform work-related activities. . .”).
18
19 The ALJ must make a credibility determination with findings
20 that are “sufficiently specific to permit the court to conclude
21 that the ALJ did not arbitrarily discredit claimant’s testimony.”
22 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation
23 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
24 2015) (“A finding that a claimant’s testimony is not credible must
25 be sufficiently specific to allow a reviewing court to conclude
26 the adjudicator rejected the claimant’s testimony on permissible
27 grounds and did not arbitrarily discredit a claimant’s testimony
28 regarding pain.” (citation omitted)). Although an ALJ’s
1 interpretation of a claimant’s testimony may not be the only
2 reasonable one, if it is supported by substantial evidence, “it is
3 not [the court’s] role to second-guess it.” Rollins v. Massanari,
4 261 F.3d 853, 857 (9th Cir. 2001).
5
6 2. Plaintiff’s Testimony and Statements
7
8 At the September 2019 hearing before ALJ Businger, Plaintiff
9 testified that she could not work due to problems with both of her
10 knees which she said needed to be replaced. (AR 39). She stated
11 that her knees swell and she had to elevate her feet or use ice
12 packs a couple times a day. (AR 41-42). She said she spent her days
13 taking care of herself, sometimes watching her grandchildren, and
14 helping a “little bit” with housework like laundry which she can
15 do sitting down. (AR 43-44). She could drive no more than 30 to 40
16 minutes before needing to place ice packs on her knees. (AR 46).
17
18 In an Exertion Questionnaire dated November 9, 2016, Plaintiff
19 had reported that her knees swell and she has arthritis pain
20 preventing her from standing too long or walking too much. (AR 200-
21 02). She sometimes wore a knee brace. (AR 202). She noted that
22 walking at Costco for 30 minutes causes her knee to swell and hurt.
23 (AR 200). She could go to the grocery store twice a week, make her
24 bed, dust, and do laundry, and drive a car depending on her pain.
25 (AR 200-01). She required rest once a day for 30 minutes to 1.5
26 hours. (AR 202). Plaintiff also reported in a Work History form
27 dated May 23, 2017, that her back hurts and her knees swell and
28 the pain prevents her from working. (AR 208).
1 At the July, 2023 hearing before ALJ Arno, Plaintiff testified
2 that her knees had gotten “way worse” and “swell very easily.” (AR
3 540). She said that her knees worsened in part due to gaining 40
4 pounds in the last couple of years. (AR 548-49). She would ice them
5 or take Advil or elevate her legs. (AR 541). She did not think she
6 could stand for half a day as Dr. Greene had opined; she could only
7 stand or walk for 15 minutes before her knees would swell and start
8 to hurt. (AR 541). She said it had been “years” since she could go
9 all day without elevating her legs. (AR 542). She said she could
10 lift up to 15 pounds. (AR 543). She could clean her house as long
11 as she could sit down and not do it “straight through.” (AR 544).
12 She was taking Advil and had been offered Norco but she was “not
13 much of a pill taker.” (AR 544).
14
15 3. Analysis
16
17 ALJ Arno found that Plaintiff’s “medically determinable
18 impairments could reasonably be expected to cause some of the
19 alleged symptoms,” but her “statements concerning the intensity,
20 persistence and limiting effects of these symptoms” were
21 inconsistent with ALJ Arno’s RFC assessments and with the medical
22 record. (AR 516). ALJ Arno reasoned that, for the period before
23 March 19, 2022, the medical record revealed: (1) very limited
24 evidence of any swelling in Plaintiff’s knees at the severity or
25 frequency Plaintiff alleged, and “very little to no evidence” of
26 deficits in range of motion, antalgic gait, or knee effusion and
27 swelling (AR 516-19 (citing AR 320-22, 361, 384-85, 389-91, 411,
28 413, 419, 421-42, 480, 502)); (2) Plaintiff had “generally
1 conservative treatment” for her knee pain from October 2016 through
2 October 2017, and no treatment from 2018 through 2021 (AR 516-18
3 (citing AR 411, 813)); (3) diagnostic findings prior to March 22,
4 2022, generally indicated only mild degenerative changes (AR 516-
5 18 (citing AR 365, 446, 448)); and (4) no medical source statements
6 endorsing the extent of Plaintiff’s alleged functional limitations
7 (AR 517; see also AR 60-86, 322-23, 751-59 (medical opinions)).
8 ALJ Arno also noted that, in June 2019, Plaintiff reported that
9 she was exercising by walking four or five times a day for eight
10 minutes each time if her knee did not bother her, which contradicted
11 Plaintiff’s testimony that she experienced knee swelling if she
12 was on her feet for even short periods of time. See AR 517 (citing
13 AR 761). The record supports these findings.
14
15 ALJ Arno provided clear and convincing reasons, supported by
16 substantial evidence in the record, to support her RFC
17 determination for the period prior to March 19, 2022.9 As set
18 forth above, a lack of corroborating objective medical evidence is
19 relevant to an ALJ’s evaluation of a claimant’s statements, so long
20 as the ALJ does not reject statements solely on that basis. See
21 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc)
22 (where “the claimant produces objective medical evidence of an
23 underlying impairment, an adjudicator may not reject a claimant’s
24 subjective complaints based solely on a lack of objective medical
25 evidence to fully corroborate the alleged severity of pain”)
26
9 ALJ Arno accounted for Plaintiff’s claimed limitations
27 for the period after March 19, 2022, by limiting her to light work
which rendered her disabled after that date. (AR 521).
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1 (citing Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)); see
2 also Smartt v. Kijakazi, 53 F.4th 489, 498 (9th 2022) (“When
3 objective medical evidence in the record is inconsistent with the
4 claimant’s subjective testimony, the ALJ may indeed weigh it as
5 undercutting such testimony.”) (emphasis original); Bray v. Comm’r
6 of Soc. Sec. Admin., 554 F.3d 1209, 1227 (9th 2009). Here, ALJ
7 Arno’s reliance on the lack of supporting medical evidence was not
8 the sole basis for rejecting Plaintiff’s testimony.
9
10 As set forth above, ALJ Arno cited the observations of medical
11 examiners that were inconsistent with Plaintiff’s claimed
12 limitations. (AR 516-19). Plaintiff claimed to suffer from daily
13 knee pain and swelling when she stood and walked (AR 41-42, 541),
14 yet her doctors observed little-to-no swelling on repeated
15 examinations (AR 342, 350, 390-91, 413, 419).
16
17 ALJ Arno also relied on Plaintiff’s inconsistent statements
18 about her ability to walk to discount Plaintiff’s claim regarding
19 her functional limitations. An ALJ may rely on inconsistencies in
20 a claimant’s statements or between a claimant’s testimony and the
21 conduct to discount symptom testimony. See Molina v. Astrue, 674
22 F.3d 1104, 1112 (9th Cir. 2012) (“the ALJ may consider
23 inconsistencies in the claimant's testimony or between the
24 testimony and the claimant's conduct”), superseded on other grounds
25 by 20 C.F.R. § 404.1502(a); Papa v. Berryhill, 872 F.3d 901, 906-
26 07 (9th Cir. 2017) (“An ALJ may consider inconsistent statements
27 by a claimant in assessing her credibility.”). Here, ALJ Arno
28 noted, (at AR 517), that in June 2019, Plaintiff reported that she
1 could walk for exercise four to five times a day when her knee does
2 not bother her which suggested that Plaintiff was more functional
3 than she alleged for the period before March 19, 2022. Compare AR
4 200, 202 (Plaintiff reporting in November 2016 that she could not
5 walk too much or her knee would swell, and she could not mop or
6 vacuum due to back and knee pain) and AR 541 (Plaintiff testifying,
7 in July 2023, that she has trouble when she stands or walks for
8 long periods of time or for more than 15 minutes) with AR 761
9 (Plaintiff reporting, in June 2019, her walking exercise).
10
11 ALJ Arno’s reasoning is sufficiently specific for the Court to
12 conclude that ALJ Arno did not arbitrarily discount Plaintiff’s
13 testimony. ALJ Arno adequately explained why the record did not
14 support Plaintiff’s claimed limitations. See AR 516-20; compare
15 Brown-Hunter, 806 F.3d at 493 (finding fault with ALJ’s conclusion
16 that the claimant’s limitations were less than alleged where the
17 ALJ merely summarized the medical record without explaining why it
18 undermined the claimant’s allegations).
19
20 Because ALJ Arno discounted Plaintiff’s testimony on legally
21 permissible grounds and ALJ Arno’s reasoning is supported by
22 substantial evidence, the Court will defer to ALJ Arno’s
23 interpretation of the evidence. See Flaten v. Sec’y of Health &
24 Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995) (“court will defer
25 to the ALJ’s credibility determinations when they are appropriately
26 supported in the record by ‘specific findings justifying the
27 decision’”).
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1 ORDER
2
3 For the foregoing reasons, the decision of the Commissioner
4 is affirmed.
5
LET JUDGMENT BE ENTERED ACCORDINGLY.
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7 Dated: January 3, 2025
8
9 ____________/s/_______________
ALKA SAGAR
10
UNITED STATES MAGISTRATE JUDGE
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