# Angelo Davon Buckner v. Martin O Malley

> District Court, C.D. California · January 30, 2025

URL: https://www.frixlaw.com/law-library/cases/10792522

## Case

- **Court:** District Court, C.D. California
- **Decided:** January 30, 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 CENTRAL DISTRICT OF CALIFORNIA

10

11 ANGELO D. B., Case No. 5:24-cv-01096-KES

12 Plaintiff,

13 v. MEMOR ANDUM OPINION

14 MICHELLE KING, Acting AND ORDER

15 Commissioner of Social Security1,

16 Defendant.

17

18

19 On May 22, 2024, Plaintiff Angelo D. B. (“Plaintiff”) filed a Complaint for

20 review of denial of social security disability benefits. (Dkt. 1.) Plaintiff filed a
21 corrected Plaintiff’s Brief under Rule 6 of the Supplemental Rules for Social
22 Security Actions under 42 U.S.C. § 405(g). (“PB” at Dkt. 17.) Defendant filed a
23 responding Commissioner’s Brief under Rule 7. (“CB” at Dkt. 23.) Plaintiff filed
24 a Reply Brief on December 27, 2024. (“PRB” at Dkt. 24.)
25

26 1 Michelle King became Acting Commissioner of Social Security on January
20, 2025. Under Federal Rule of Civil Procedure 25(d), she is automatically
27
substituted as Defendant in this suit. The Clerk is directed to update the electronic
28 docket accordingly.
1 This Court has jurisdiction under 42 U.S.C. § 405(g). For the reasons stated
2 below, the Commissioner’s decision denying benefits is AFFIRMED.
3 I.
4 BACKGROUND
5 Plaintiff initially applied for child’s insurance benefits based on disability
6 and supplemental security income in 2014, alleging a disability onset date of
7 January 1, 2000, at age thirteen. Administrative Record (“AR”) 83, 112. After
8 both applications were denied, Plaintiff attended a hearing and testified before an
9 administrative law judge (“ALJ”) on February 2, 2017. AR 83. On August 2,
10 2017, ALJ Andrew Verne issued an unfavorable decision. AR 80-104. ALJ Verne
11 found that Plaintiff had some limitations, but overall was not disabled. AR 88, 99.
12 In November 2021, Plaintiff submitted an application for adult Supplemental
13 Security Income (“SSI”) and any federally administered State supplementation
14 under Title XVI of the Social Security Act alleging disability as of June 15, 2005.
15 AR 235. On April 18, 2023, ALJ Josephine Arno conducted a hearing at which
16 Plaintiff, who was represented by counsel, testified, as did a vocational expert
17 (“VE”). AR 64-79. On August 16, 2023, the ALJ issued another unfavorable
18 decision. AR 19-39.
19 First, ALJ Arno noted that Plaintiff’s prior application for disability
20 insurance benefits and SSI had been denied in August 2017 by ALJ Verne. AR 22,
21 citing AR 80-104. The ALJ found that Plaintiff had rebutted the presumption of
22 continuing non-disability under 20 C.F.R. § 416.936 and Chavez v. Bowen, 844
23 F.2d 691 (9th Cir. 1988) by presenting new evidence of changed circumstances.
24 AR 22.
25 Next, ALJ Arno found that Plaintiff suffered from the following severe,
26 medically determinable impairments (“MDIs”): “non-epileptic seizures,
27 degenerative disc disease of the lumbar spine, bipolar II disorder, generalized
28 anxiety disorder, and posttraumatic stress disorder [(“PTSD”)] ….” AR 25.
1 Despite these MDIs, the ALJ found that Plaintiff had the residual functional
2 capacity (“RFC”) to perform medium work with the following additional
3 restrictions:
4 [Plaintiff] may have no exposure to unprotected heights and moving
5 or heavy machinery; may have no exposure to open bodies of water;
6 may never climb ladders, ropes, or scaffolds; is able to understand,
7 remember and carry out simple, routine work tasks but not at a
8 production rate pace, for example, no assembly line jobs; may
9 tolerate occasional workplace changes; and may have occasional
10 interaction with coworkers, supervisors, and the public.
11 AR 28.
12 Based on these RFC findings, the VE’s testimony, and other evidence, the
13 ALJ found that Plaintiff could work as an industrial cleaner (Dictionary of
14 Occupational Titles (“DOT”) 381.687-018), kitchen helper (DOT 318.687-010),
15 and laundry worker (DOT 361.685-018) (the “Alternative Jobs”). AR 34. The
16 ALJ concluded that Plaintiff was not disabled. AR 35.
17 II.
18 ISSUES PRESENTED
19 Issue One: Whether the ALJ erred in crafting Plaintiff’s RFC by (1) failing
20 to “comply with the directives of Chavez v. Brown” or (2) making factual findings
21 that lack substantial evidentiary support. (PB at 1.2)
22 Issue Two: Whether the ALJ erred by failing to adopt certain opinions by
23 psychiatric consultative examiner Sohini Parikh, M.D., or give reasons for
24 rejecting them. (Id.)
25 Issue Three: Whether the ALJ erred by failing to provide clear and
26 convincing reasons to discount Plaintiff’s subjective symptom testimony. (Id.)
27

28 2 Brief citations refer to the pagination imposed by the Court’s e-filing system.
1 III.
2 DISCUSSION
3 A. ISSUE ONE: Compliance With Chavez.
4 1. Summary of the Chavez Standard.
5 In Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), the Ninth Circuit held,
6 “The principles of res judicata apply to administrative decisions, although the
7 doctrine is applied less rigidly to administrative proceedings than to judicial
8 proceedings.” Id. at 693. “Normally, an ALJ’s findings that a claimant is not
9 disabled ‘creates a presumption that the claimant continued to be able to work after
10 that date.’” Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (citation
11 omitted). “The presumption does not apply, however, if there are ‘changed
12 circumstances.’” Lester .v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (citation
13 omitted).
14 Guidelines from the Social Security Administration provide a blueprint for
15 the application of the Chavez decision:
16 In order to rebut the presumption of continuing nondisability, a
17 claimant must prove “changed circumstances” indicating a greater
18 disability. In addition, the court [in Chavez] indicated that where the
19 claimant rebuts the presumption by proving a changed circumstance,
20 principles of res judicata require that certain findings contained in the
21 final decision by the ALJ on the prior claim must be given some res
22 judicata consideration in determining whether the claimant is disabled
23 … The court concluded that where the final decision on the prior
24 claim, which found the claimant not disabled, contained findings of
25 the claimant’s residual functional capacity, education, and work
26 experience, [the agency] may not make different findings in
27 adjudicating the subsequent disability unless there is new and material
28 evidence ....
1 Social Security Acquiescence Ruling (“SS AR”) 97-4(9).
2 Similarly, once a claimant has been found disabled, the ALJ must presume
3 that the disability still exists in subsequent proceedings. Patti v. Schweiker, 669
4 F.2d 582, 587 (9th Cir. 1982). If the ALJ finds that the claimant’s condition has
5 improved, then he or she must identify evidence of such improvement. Murray v.
6 Heckler, 722 F.2d 499, 500 (9th Cir. 1983). An evidentiary finding of
7 improvement is “essential to rebut the presumption of continuing disability.” Id. at
8 501. The evidence must actually be substantial, and a “mere scintilla” of evidence
9 suggesting a medical improvement is insufficient. Young v. Kijakazi, No. 1:21-cv-
10 00654, 2023 U.S. Dist. LEXIS 4284, 2023 WL 144222, at *7 (E.D. Cal. Jan. 9,
11 2023) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
12 2008)).
13 This principle may also apply to RFC findings, not just ultimate findings
14 that a claimant is or is not disabled. At least one district court has found that ALJs
15 are required to give “some res judicata consideration” to a previous ALJ’s more
16 restrictive RFC findings. Guerrero v. Kijakazi, No. 1:20-cv-01766, 2022 U.S.
17 Dist. LEXIS 98624, 2022 WL 1811219 at *8 (E.D. Cal. Jun. 1, 2024) (quoting
18 Chavez, 844 F.2d at 694) (holding that the second ALJ’s assertion that “new and
19 material” medical evidence justified his finding that plaintiff was now capable of
20 light work, even though the previous ALJ found that plaintiff was only capable of
21 sedentary work, was not supported by substantial evidence). It is the
22 Commissioner who “bears the burden of establishing that a claimant has
23 experienced medical ‘improvement’ that would allow him to engage in substantial
24 gainful activity.” Id. at *7 (citation omitted). A finding that a claimant is capable
25 of more intensive work must be “supported by substantial evidence,” or else the
26 conclusion is erroneous. Id. at *9. If the record shows that the claimant’s position
27 has not changed or has worsened over time, then the ALJ has failed to meet this
28 standard. Id.
1 2. Relevant Administrative Proceedings.
2 ALJ Arno’s decision acknowledges that there is a “rebuttable presumption
3 of continuing nondisability” under the standard set forth in SS AR 97-4(9). AR 22.
4 ALJ Arno also acknowledged that “even when the presumption of continuing
5 nondisability has been rebutted, unless there is new and material evidence relating
6 to the findings under the sequential evaluation process for determining disability
7 with respect to the unadjudicated period or there has been a change in the law,
8 regulations or rulings affecting those findings or the method for arriving at those
9 findings, [the ALJ] must adopt the specific findings of the prior ALJ under the
10 sequential evaluation process for determining disability.” AR 22. ALJ Arno then
11 found that there was “new and material evidence” in this case “related to findings
12 concerning … [Plaintiff’s] residual functional capacity.” AR 23. For this reason,
13 ALJ Arno declined to “adopt all such findings from the final decision on the prior
14 claim in determining whether the claimant is disabled with respect to the
15 unadjudicated period.” AR 23. Instead, ALJ Arno adopted an RFC less restrictive
16 than the RFC adopted by ALJ Verne.
17 In the initial 2017 decision, ALJ Verne found that Plaintiff could “remember
18 and understand simple one to two-step procedures” and “make simple work-related
19 decisions.” AR 88. ALJ Verne also found that Plaintiff “would work best in
20 structured environments with predictable work tasks.” AR 88. These RFC
21 findings are consistent with Level 1 Reasoning Development according to the
22 DOT. See DOT Appendix C (4th ed. 1991) (defining Level 1 Reasoning as
23 “Apply commonsense understanding to carry out simple one- or two-step
24 instructions. Deal with standardized situations with occasional or no variables in
25 or from these situations encountered on the job.”). ALJ Verne found that Plaintiff
26 could perform the jobs of garment folder (DOT 789.687-066), textile assembler
27 (DOT 780.687-046), or small parts assembler (DOT 929.587-010) (AR 98-99), all
28 of which require only Level 1 Reasoning.
1 By contrast, ALJ Arno found that Plaintiff had the RFC to “understand,
2 remember, and carry out simple routine work tasks but not at a production rate
3 pace” and “may tolerate occasional workplace changes.” AR 28. This reflects
4 medical improvement from the 2017 decision. ALJ Arno’s RFC findings are more
5 consistent with Level 2 Reasoning Development. See DOT Appendix C (defining
6 Level 2 Reasoning as “Apply commonsense understanding to carry out detailed but
7 uninvolved written or oral instructions. Deal with problems involving a few
8 concrete variables in or from standardized situations.”). The Alternative Jobs
9 identified by ALJ Arno all require Level 2 Reasoning.
10 3. Analysis of Claimed Error.
11 First, Plaintiff contends that ALJ Arno erred by adopting mental RFC
12 findings different from those of ALJ Verne without discussing Chavez. (PB at 8.)
13 ALJ Arno did discuss the Chavez standard and explain why the prior finding that
14 Plaintiff was not disabled would not be given res judicata effect. AR 22-23.
15 Plaintiff has not cited any authority that ALJs must discuss Chavez in connection
16 with every factual finding from a prior administrative decision. But even if ALJs
17 were required to apply Chavez in this manner, the ALJ satisfied Chavez’s
18 requirement by explaining how medical improvement justified a less restrictive
19 mental RFC, as discussed below.
20 Next, Plaintiff contends that ALJ Arno’s findings that Plaintiff could do
21 simple, routine tasks and tolerate occasional changes in the workplace lack
22 substantial evidentiary support because there is no evidence of medical
23 improvement. (PB at 8-11.) To the contrary, the ALJ expressly found evidence of
24 medical improvement, stating that the “evidence of record … is replete with
25 examples of [Plaintiff’s] improved condition.” AR 30. For example, the record
26 shows that in January 2021, psychotropic medications had helped Plaintiff improve
27 his mental condition. AR 30, citing AR 798. On November 18, 2021, Visit
28 Chatsuthiphan, M.D., noted that Plaintiff was “feeling better” and “improving;” he
1 had a “more stable mood,” and most, if not all, of his symptoms had improved.
2 AR 798.
3 Plaintiff also confirmed that, as of February 4, 2022, his seizures had become
4 less frequent due to his medications. AR 30, citing AR 283. The evidence also
5 shows that Plaintiff’s seizure disorder improved due to psychiatric treatment. AR
6 30, citing AR 364. Plaintiff repeatedly stated in 2021 and 2022 that medication
7 helped control his pain, such that pain was less likely to distract him. AR 30,
8 citing AR 583, 586, 603, 755. The ALJ found that, because the record contains
9 multiple statements showing that Plaintiff’s symptoms were either stabilized or
10 improving, “evidence about the duration and frequency of the claimant’s
11 symptoms does not support the level of symptomology that the claimant alleged.”
12 AR 30. Therefore, Plaintiff has not shown that the ALJ erred under Chavez.
13 B. ISSUE TWO: Dr. Parikh.
14 1. Legal Standard.
15 In January 2017, the Social Security Administration (“SSA”) issued revised
16 regulations for evaluating medical opinions for claims filed on or after March 27,
17 2017. The regulations provide that ALJs will no longer “defer or give any specific
18 evidentiary weight” to any medical opinions. 20 C.F.R. § 416.920c(a). Instead,
19 ALJs must explain how persuasive they find each medical opinion upon
20 considering a list of factors. Id. § 416.920c(c). Of these factors, the two most
21 important are “supportability” and “consistency.” Id. § 416.920c(b)(2). The more
22 a medical source presents support from the available, objective medical evidence
23 and the more consistent a medical opinion is “with the evidence from other
24 medical sources and nonmedical sources,” the more weight an ALJ will give that
25 opinion. Id. § 416.920c(c)(1)-(2). ALJs must explain how they considered
26 supportability and consistency. Id. § 416.920c(b)(2).
27 2. Relevant Administrative Proceedings.
28 On April 16, 2022, Dr. Parikh, the psychiatric consultative examiner,
1 conducted a complete psychiatric evaluation of Plaintiff. AR 736-49. She
2 reviewed the history of Plaintiff’s present illness, including his use of marijuana,
3 his anxiety and depression, and his non-epileptic, psychogenic seizures. AR 737-
4 38. She noted that Plaintiff worked at the Department of Parks and Recreation for
5 the County of Los Angeles for about a year and a half, but he stopped working at
6 age sixteen because of his seizure disorder. AR 740.
7 Dr. Parikh reviewed Plaintiff’s current level of functioning as well as his
8 mental status. AR 741. She found that he was “able to manage funds and pay
9 bills” and could cook, shop, and do household chores, though “most of the
10 household work and cooking is done by his wife.” AR 741. She found that he
11 would “focus attention,” did “not have cognitive problems completing household
12 tasks,” could “follow simple oral and written instructions,” and had “no difficulty
13 making decisions.” AR 741. As for Plaintiff’s mental status, Dr. Parikh found that
14 Plaintiff’s “gestures were normal” and that he made good eye contact. AR 741.
15 He was alert, cooperative, and attentive during the evaluation, though his “speech
16 was significant for stuttering.” AR 742. Plaintiff “was oriented to person, place,
17 time, and the purpose of the visit” and his “thoughts were logical,” although his
18 mood was “depressed and anxious” and he “admitted to hearing voices … [and] to
19 having paranoid ideation.” AR 742.
20 At the end of her evaluation, Dr. Parikh diagnosed Plaintiff with bipolar
21 disorder, PTSD, and marijuana use. AR 744. She determined that Plaintiff had no
22 restrictions in his daily activities. AR 745. She also found no impairment in his
23 “concentration, persistence, and pace” or his “ability to understand, carryout, and
24 remember simple instructions ….” AR 745. She did find “moderate mental
25 difficulties in maintaining social functioning” and the possibility of “moderate
26 episodes of emotional deterioration in work-like situations.” AR 745. She also
27 found moderate impairments in his ability to “understand, carryout, and remember
28 complex instructions,” to respond “to coworkers, supervisors, and the general
1 public,” to “respond appropriately to usual work situations,” to “deal with changes
2 in a routine work setting,” to “maintain regular attendance,” and to “complete a
3 normal workday or work week without interruptions resulting from [his]
4 psychiatric condition.” AR 745-46.
5 ALJ Arno found Dr. Parikh’s medical opinion “persuasive.” AR 32, citing
6 AR 736-49. She found that Dr. Parikh’s opinion “is supported by the examination
7 of [Plaintiff], references to specific findings, and well-supported explanations.”
8 AR 32. The opinion was also persuasive because it “is consistent with evidence
9 from other medical or nonmedical sources.” AR 32. For example, the ALJ found
10 that Dr. Parikh’s opinion was consistent with other findings that Plaintiff “had
11 normal appearance, cooperation, dress, speech, thoughts, alertness, orientation,
12 concentration, memory, and intellectual functioning.” AR 32, citing AR 799
13 (summary of appointment with Dr. Chatsuthiphan on January 22, 2021, during
14 which the doctor found that Plaintiff’s thoughts were logical, his mood was
15 “appropriate [and] anxious,” he was “alert [and] oriented,” his concentration was
16 good, his memory was intact, his intellectual functioning was average, and his
17 insight and judgment were adequate). Dr. Parikh’s opinion was also consistent
18 with medical records confirming that Plaintiff’s seizures were “under improved
19 control with psychiatric treatment.” AR 32, citing AR 364. Finally, ALJ Arno
20 found Dr. Parikh’s opinion persuasive because “the consultative examiner actually
21 examined” Plaintiff. AR 32.
22 3. Analysis of Claimed Error.
23 Plaintiff contends that the ALJ found Dr. Parikh’s opinions persuasive but
24 failed to adopt her “opined limitations,” including her opinions of Plaintiff’s
25 moderate impairments and potential “moderate episodes of emotional deterioration
26 in work-life situations.” (PB at 12, citing AR 745-46.) According to Plaintiff, the
27 RFC failed to include “limitations corresponding to Plaintiff’s difficult[ies]
28 responding to usual work situations, maintaining attendance, and dealing with
1 interruptions from psychiatric symptoms.” (Id.) Plaintiff contends that the ALJ
2 was required to either adopt these opinions or explain why they lacked
3 supportability and consistency, and her failure to do so constitutes legal error. (Id.
4 at 11-12.)
5 Defendant argues that Dr. Parikh “opined Plaintiff had no more than
6 moderate limitations in his functioning,” and the ALJ properly translated Dr.
7 Parikh’s opinion into concrete limitations. (CB at 15.) Defendant contends that
8 the ALJ properly accounted for the moderate limitations described in Dr. Parikh’s
9 opinion “by limiting Plaintiff to simple routine work without a production rate
10 pace; only occasional workplace changes; and limited social interaction.” (Id. at
11 16, citing AR 28.) Finally, Defendant contends that, even if the ALJ did fail to
12 address Dr. Parikh’s moderate limitations, the error “would not have affected the
13 ultimate nondisability determination because the limitation[s are] not quantified.”
14 (Id. at 17 (citation omitted).)
15 ALJ Arno reviewed Dr. Parikh’s opinion and determined that it was both
16 supported by and consistent with the evidence in the record. The ALJ articulated
17 her findings of supportability, stating that Dr. Parikh’s “medical opinion is
18 supported by the examination of the claimant, references to specific findings, and
19 well-supported explanations.” AR 32. She also found that the opinion was
20 consistent with multiple pieces of evidence from the record, including Plaintiff’s
21 appearance, concentration, intellectual functioning, and improvement with
22 treatment. AR 32.
23 The ALJ addressed the “moderate mental limitations” in her RFC findings.
24 AR 32. The ALJ found Plaintiff “may tolerate occasional workplace changes” and
25 “may have occasional interaction with coworkers, supervisors, and the public.”
26 AR 28. These limitations account for the “difficult[ies] responding to usual work
27 situations, maintaining attendance, and dealing with interruptions from psychiatric
28 symptoms” opined by Dr. Parikh that Plaintiff alleges were omitted from the ALJ’s
1 decision. (PB at 12, citing AR 745-46.) Likewise, ALJ Arno determined that
2 Plaintiff “is able to understand, remember and carry out simple, routine work tasks
3 but not at a production rate pace.” AR 28. This is consistent with Dr. Parikh’s
4 opinion that “[t]here are no mental restrictions in [Plaintiff’s] daily activities.” AR
5 745. Ultimately, by reducing the stressors that Plaintiff would face at work, the
6 ALJ also addressed Dr. Parikh’s opinion that Plaintiff would have moderate
7 difficulties with attendance. AR 28, 746.
8 Therefore, ALJ Arno did not err in her treatment of Dr. Parikh’s opinion.
9 C. ISSUE THREE: Plaintiff’s Symptom Testimony.
10 1. Legal Standard.
11 The ALJ engages in a two-step analysis to evaluate a claimant’s subjective
12 symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.
13 2007). “First, the ALJ must determine whether the claimant has presented
14 objective medical evidence of an underlying impairment [that] could reasonably be
15 expected to produce the pain or other symptoms alleged.” Id. at 1036. If so, the
16 ALJ may not reject a claimant’s testimony “simply because there is no showing
17 that the impairment can reasonably produce the degree of symptom alleged.”
18 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
19 Second, if the claimant meets the first step, the ALJ may discredit the
20 claimant’s subjective symptom testimony only by making specific findings that
21 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010);
22 Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). Unless an ALJ finds that a
23 claimant is malingering or has failed to provide objective medical evidence in
24 support of his or her testimony, an ALJ must provide clear and convincing reasons
25 for rejecting a claimant’s subjective testimony about the severity of experienced
26 symptoms. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). While
27 an ALJ’s findings must be properly supported and sufficiently specific to assure a
28 reviewing court that the ALJ did not “arbitrarily discredit” a claimant’s subjective
1 statements, an ALJ is not “required to believe every allegation” of disability. Fair
2 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Lavon S. v. Kijakazi, No. 23-00981-
3 KES, 2023 U.S. Dist. LEXIS 214528 at *5-6 (C.D. Cal. Nov. 29, 2023).
4 2. Relevant Administrative Proceedings.
5 The ALJ summarized Plaintiff’s testimony from the hearing, a Disability
6 Report, a Function Report, and a Seizure Questionnaire. AR 29, citing AR 261-69,
7 273-81, 282-85, 64-79. Plaintiff “reported [that] symptoms arising from
8 posttraumatic stress disorder, bipolar disorder, depression, seizures, chronic back
9 pain, and kidney stones primarily limited [his] ability to work.” AR 29, citing AR
10 262, 282-85, 70-75. The ALJ found that Plaintiff’s MDIs “could reasonably be
11 expected to cause the alleged symptoms,” but his “statements concerning the
12 intensity, persistence and limiting effects of these symptoms are not entirely
13 consistent with the medical evidence and other evidence in the record ….” AR 29.
14 As reasons, the ALJ cited (1) lack of support from objective medical
15 records; (2) improvement with treatment; (3) inconsistent statements regarding the
16 side effects of medications; (4) inconsistent statements regarding the effectiveness
17 of medications to improve his mental health; and (5) inconsistences between
18 Plaintiff’s symptom reporting and “other evidence and the observations of others,”
19 specifically between Plaintiff’s claims that he “had difficulty walking because of
20 pain” and findings that he had a normal, steady gait. AR 30-31.
21 3. Analysis of Claimed Error.
22 a. Improvement with Treatment: Seizure Disorder and Pain
23 Testimony.
24 The ALJ cited evidence that Plaintiff’s seizures became less frequent and he
25 experienced less pain due to treatment and medication, and she determined that
26 these findings are inconsistent with his subjective symptom testimony. AR 30,
27 citing AR 283, 583, 586, 755. Plaintiff contends that, while he did experience
28 some improvement in his seizures and the pain he experienced, his seizures
1 “nonetheless persisted to a degree that interferes with functioning.” (PB at 14-15,
2 citing AR 71, 75.) He testified that he still experiences seizures “monthly or
3 weekly,” despite being on medications. AR 71. Plaintiff also argues that the ALJ
4 “cherry-picks quotations” from the documents cited in her decision that suggest
5 Plaintiff’s back pain has improved, when the records actually show that Plaintiff
6 continued to experience intense pain. (PB at 15, citing AR 28, 580.) Plaintiff
7 contends that the records cited by the ALJ “show only partial improvement,” and
8 “experiencing ‘improvement’ does not necessarily indicate that pain resolved.”
9 (Id., citing Jana D. R. v. Saul, 2021 WL 2826436, at *4 (C.D. Cal. Jul. 7, 2021).)
10 Therefore, Plaintiff argues, the ALJ did not provide “a clear and convincing reason
11 for discounting his testimony regarding ongoing symptoms and flares of increased
12 symptoms.” (Id.)
13 ALJ Arno cited numerous specific examples in her decision to demonstrate
14 that Plaintiff’s condition had significantly improved and he experienced fewer
15 seizures. In fact, she said that the evidence of record “is replete with examples of
16 [his] improved condition.” AR 30. The ALJ cited to specific medical records that
17 provided evidence of improvements in Plaintiff’s epilepsy and reduced pain due to
18 medication. AR 30, citing AR 364 (October 8, 2021: progress note by Varinder
19 Kaur, LVN, reporting that Plaintiff’s psychogenic nonepileptic spells “are ongoing
20 but under improved control with psychiatric treatment, on lamotrigine and
21 levetiracetam”); AR 583, 586, 603, 755 (Progress notes by Pamela Moore, PA,
22 between May 2021 and July 2022, stating that Plaintiff reported that Naloxone
23 adequately controlled his pain and that he took the medication daily without side
24 effects). The ALJ also cited to evidence in the record which states that
25 “medications reduced the frequency of Plaintiff’s seizures.” AR 30, citing AR
26 283.
27 While Plaintiff claims the ALJ “cherry-picks” evidence to show that
28 Plaintiff’s condition improved (PB at 15.), the Court reviews the decision for
1 whether the ALJ provided clear and convincing reasons for rejecting Plaintiff’s
2 testimony. Brown-Hunter, 806 F.3d at 488-89. Plaintiff testified at the oral
3 hearing that, despite taking medications for his seizure disorder, he still has
4 seizures about once per week. AR 71. However, as the ALJ pointed out, even if
5 Plaintiff continues to experience some symptoms from his seizure disorder, his
6 condition has still improved because “medications reduced the frequency of his
7 seizures.” AR 30, citing AR 283. He also testified that, despite his pain
8 medications, he still struggles to lift, carry, and stand due to his pain. AR 72.
9 However, the ALJ correctly determined that examples in the record clearly
10 demonstrated that medications helped control Plaintiff’s pain, contradicting his
11 hearing testimony. AR 30, citing AR 583, 586, 603, 755. This evidence shows
12 that the ALJ did not arbitrarily discredit Plaintiff’s testimony, but instead pointed
13 to contradictory notes from the record as a whole. Fair, 885 F.2d at 603.
14 Plaintiff also argues that, even if his condition did improve, the improvement
15 was not enough for the ALJ to determine that he is not disabled. (PB at 15.)
16 However, as Defendant states, the regulations require the ALJ to “evaluate[] the
17 intensity and persistence of the claimant’s symptoms and determine[] the extent to
18 which those symptoms limit the claimant’s capacity to work.” (CB at 11, citing 20
19 C.F.R. § 416.929.) As discussed above, the ALJ found numerous inconsistencies
20 with the Plaintiff’s hearing testimony and his statements to physicians, which are
21 noted throughout the medical record. See AR 30. The ALJ was not required to
22 determine that Plaintiff had improved completely in order to find that he was not
23 disabled; she merely needed to determine whether he had improved more than he
24 claimed and enough work at the Alternative Jobs. AR 34. The examples in the
25 medical record cited to by the ALJ sufficiently support her determination that
26 Plaintiff’s condition had improved enough so that he could perform jobs requiring
27 Level 2 reasoning. AR 30, 34. The ALJ also noted that Plaintiff had some
28 physical limitations and incorporated these into his RFC. AR 28. She determined
1 that he “may have no exposure to unprotected heights and moving or heavy
2 machinery” and “may never climb ladders, ropes, or scaffolds.” AR 28. These
3 limitations account for any pain and seizure symptoms Plaintiff continues to
4 experience.
5 b. Medication Side Effects
6 At the hearing, Plaintiff testified that he experienced side effects from his
7 medications, including dizziness and “feeling tired.” (AR 75.) The ALJ properly
8 found that Plaintiff’s testimony was inconsistent with multiple statements in the
9 record that his medications did not cause side effects. AR 30, citing AR 583
10 (11/19/21 Progress Notes: Plaintiff denied any side effects resulting from his
11 medication regimen), AR 586 (10/15/21 Progress Notes: Plaintiff denied any side
12 effects resulting from his medication regimen); AR 593 (10/17/21 Progress Notes:
13 Plaintiff denied any side effects resulting from his medication regimen); AR 603
14 (5/21/21 Progress Notes: Plaintiff denied any side effects resulting from his
15 medication); AR 755 (7/15/22 Progress Notes: Plaintiff denied any side effects
16 resulting from his medication).
17 c. Improvement with Treatment: Mental Health.
18 The ALJ reviewed Plaintiff’s testimony regarding his mental health
19 symptoms and found “that the effectiveness of medications does not support the
20 level of symptomology that [Plaintiff] alleged.” AR 30. For example, the ALJ
21 noted that when Plaintiff “was compliant with psychotropic medications, he had
22 improvement in his condition, felt better, was calmer, was less impulsive, was less
23 depressed, was less anxious, was more stable, had better concentration, slept
24 adequately, and had normal thought content.” AR 30, citing AR 798. This
25 contradicts Plaintiff’s testimony that, when taking medications, he still has
26 disabling “symptoms related to” his mental health conditions, including PTSD,
27 bipolar disorder, depression, and anxiety. AR 75. Plaintiff argues that the ALJ’s
28 findings of improvement in Plaintiff’s mental conditions are vague, and this
1 finding “again fails to state a basis for discounting the symptoms that remained
2 despite medications.” (PB at 16.) Defendant argues that the record shows
3 improvement in Plaintiff’s mental state, and “Plaintiff said that he felt better and
4 was calmer, less impulsive, less depressed, less anxious, more stable, had better
5 concentration, slept adequately, and had normal thought content when compliant
6 with his medications.” (Id., citing AR 30.)
7 The ALJ properly found that Plaintiff’s subjective symptom testimony was
8 inconsistent with evidence in the record and supported this finding with sufficient
9 evidence. She noted in her decision that, although Plaintiff “made subjective
10 complaints about mental health symptoms,” his mental health condition improved
11 when he “was compliant with psychotropic medications.” AR 30. The ALJ cited
12 to records from Plaintiff’s psychiatrist, who noted significant improvement in his
13 mental condition, along with a lack of side effects from his medications. AR 798.
14 At that mental status exam on November 18, 2022, Plaintiff appeared “[c]alm,
15 cooperative, adequately dressed[,] groomed and clean” and “felt better, was
16 calmer, was less impulsive, was less depressed, was less anxious, was more stable,
17 had better concentration, slept adequately, and had normal thought content.” AR
18 30, citing AR 798. The ALJ cited to other mental status examinations at which
19 Plaintiff displayed few or mild mental health symptoms. AR 31-32, citing AR
20 356, 363, 681, 682, 799, 802, 805, 808, 743. This evidence is sufficient to
21 demonstrate inconsistencies with Plaintiff’s subjective symptom testimony.
22 d. Lack of Objective Support: Pain Testimony and Gait.
23 Plaintiff alleges that the ALJ similarly discounted his pain testimony “based
24 on objective findings of regular gait.” (Id., citing AR 30-31.) Defendant argues
25 that “much of [Plaintiff’s] treatment record indicated that [his] treatment
26 significantly reduced his symptoms,” including his seizures and pain. (CB at 14,
27 citing AR 365, 583, 586, 590, 593, 755.) Defendant claims that the ALJ’s
28 determination “that Plaintiff’s allegations were not consistent with the overall
1 | record” was reasonable. (Id.)
2 The ALJ properly found that Plaintiffs claims that he “had pain with
3 | ambulation and struggled walking for extended periods” were “inconsistent with
4 | other evidence and the observations of others” that Plaintiff had a “normal gait”
5 | and “denied gait problems.” AR 30-31, citing AR 360 (10/8/2021: Emergency
6 | Department notes by Krystyna Harkey, RN, reporting that Plaintiff ambulated with
7 | anormal gait), AR 364 (10/8/2021: progress note by Dr. Varinder noting that
8 | Plaintiff had a normal gait), AR 402 (June 25, 2021: progress note by Philip Han-
9 | Yuan Tseng, MD, rating Plaintiff's hip flexion as “5” on both sides), AR 423
10 | (October 19, 2020: general surgery clinic note by Christopher Nguyen, MD,
11 | reporting that Plaintiff's gait was normal), AR 736 (April 16, 2022: complete
12 || psychiatric evaluation by Dr. Parikh, observing that Plaintiff's “posture and gait
13 | were normal), AR 912 (December 14, 2021: progress note by Krystle Sharna
14 | Bocanto Bekalo-Quinlan, NP, noting that Plaintiff had a “steady regular gait’).
15 | Therefore, the ALJ did not err in finding that Plaintiff's subjective symptom
16 | testimony regarding how his pain symptoms affected his ability to walk were
17 | inconsistent with the evidence presented in the medical record, and the ALJ
18 | provided ample evidence to support this position.
19 IV.
20 CONCLUSION
21 Based on the foregoing, IT IS ORDERED that judgment shall be entered
22 | AFFIRMING the decision of the Commissioner denying benefits.
23
24
| DATED: January 30, 2025 OV ams E □
26 KAREN E. SCOTT
United States Magistrate Judge
28
18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10792522. Public record. Not legal advice.