Mcmillan v. O'Malley

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 FIONA M., Case No.: 3:24-cv-00568-AHG

12 Plaintiff,

ORDER RESOLVING JOINT

13 v. MOTION FOR JUDICIAL REVIEW

AND AFFIRMING THE

14 LELAND DUDEK, Acting Commissioner

COMMISSIONER’S FINAL

of Social Security,1

15 DECISION

Defendant.

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[ECF No. 10]

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20 Plaintiff Fiona M. (“Plaintiff”) filed this action on March 25, 2024, seeking review

21 of the Commissioner of Social Security’s (“Commissioner”) denial of her application for

22 disability insurance benefits. ECF No. 1. Pursuant to the Court’s Scheduling Order, the

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1 Leland Dudek became the Acting Commissioner of the Social Security Administration

27 on January 20, 2025. Although Plaintiff originally brought this action against Former

Commissioner Martin O'Malley, this case may properly proceed against Leland Dudek

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1 parties filed a Joint Motion for Judicial Review on October 21, 2024, stating their positions

2 on the disputed issues in the case. ECF No. 10.

3 After a thorough review of the parties’ submissions, the administrative record, and

4 applicable law, the Court AFFIRMS the Commissioner’s denial of disability insurance

5 benefits.

6 I. PROCEDURAL BACKGROUND

7 Plaintiff filed an application for disability insurance benefits pursuant to Title II of

8 the Social Security Act on November 22, 2021, alleging a disability onset date of

9 September 14, 2021. Certified Administrative Record (“AR”) 15, 63. The Commissioner

10 denied Plaintiff’s claims for benefits upon initial review on March 18, 2022, and again

11 upon reconsideration on September 7, 2022. AR 100, 106. Plaintiff requested a hearing

12 before an Administrative Law Judge (“ALJ”), which took place telephonically on

13 September 14, 2023. AR 32-61.

14 On October 24, 2023, the ALJ issued an unfavorable decision denying Plaintiff’s

15 application, finding that Plaintiff had engaged in substantial gainful activity since

16 September 14, 2021, and, in the alternative, that she could perform her past relevant work,

17 and thus Plaintiff had not been disabled from her alleged disability onset date through the

18 date of the ALJ’s decision. AR 17, 26-27.

19 Plaintiff requested review of the ALJ’s decision by the Appeals Council. AR 1. The

20 Appeals Council denied Plaintiff’s request for review on January 25, 2024, making the

21 ALJ’s decision the final decision of the Commissioner. AR 1-6. Plaintiff timely appealed

22 the denial to this Court for federal judicial review on March 25, 2024. ECF No. 1; 42 U.S.C.

23 § 405(g).

24 II. STANDARD OF REVIEW

25 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the

26 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed

27 only if it is not supported by substantial evidence or if it is based upon the application of

28 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).

1 Substantial evidence means “such relevant evidence as a reasonable mind might

2 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154

3 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The

4 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.”

5 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is

6 “highly deferential.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.

7 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’

8 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)

9 (quoting Burch v. Barnhart, 400 F.3d at 676, 679 (9th Cir. 2005)). However, the Court

10 “must consider the entire record as a whole, weighing both the evidence that supports and

11 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply

12 by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995,

13 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for

14 determining credibility and resolving conflicts in medical testimony and is also responsible

15 for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th

16 Cir. 1989). The Court will “review only the reasons provided by the ALJ in the disability

17 determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.;

18 see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an

19 administrative order must be judged are those upon which the record discloses that its

20 action was based.”).

21 The Court may also overturn the Commissioner’s denial of benefits if the denial is

22 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014).

23 However, even if the Court finds the decision was based on legal error, a court may not

24 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the

25 record that the ALJ’s error was inconsequential to the ultimate nondisability

26 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch, 400

27 F.3d at 679 (citation omitted).

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1 III. SUMMARY OF ALJ’S FINDINGS

2 A. The Five-Step Evaluation Process

3 The ALJ follows a five-step sequential evaluation process in assessing whether a

4 claimant is disabled. 20 C.F.R. § 404.1520;2 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th

5 Cir. 1999). In the first step, the Commissioner must determine whether the claimant is

6 currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the

7 claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).

8 If the claimant is not currently engaged in substantial gainful activity, the second

9 step requires the ALJ to determine whether the claimant has a “severe” impairment or

10 combination of impairments significantly limiting her ability to do basic work activities,

11 and which has lasted or is expected to last for a continuous period of at least 12 months; if

12 not, a finding of nondisability is made and the claim is denied. Id. See also 20 C.F.R.

13 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a

14 “severe” impairment or combination of impairments, the third step requires the ALJ to

15 determine whether the impairment or combination of impairments meets or equals an

16 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart

17 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded.

18 Lounsburry, 468 F.3d at 1114.

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2 Unless otherwise noted, all references to the agency regulations herein are to the

23 regulations in effect at the time of the ALJ’s decision. See, e.g., SSR 16-3, 2016 SSR

LEXIS 4 n.27 (S.S.A. 2016) (“When a Federal court reviews our final decision in a claim,

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we expect the court will review the final decision using the rules that were in effect at the

25 time we issued the decision under review.”); Anne B. v. Comm’r, Soc. Sec. Admin., No.

1:18-CV-02146-HZ, 2019 WL 6976034, at *8 (D. Or. Dec. 20, 2019) (collecting cases for

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the proposition that “[t]he applicable regulations are those in effect at the time the ALJ

27 issued his decision”). The regulations governing Title II disability insurance benefits

(“DIB”) are located in 20 C.F.R. § § 404.1 et seq.

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1 If the claimant’s impairment or combination of impairments does not meet or equal

2 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation

3 process. The fourth step requires the ALJ to determine whether the claimant has sufficient

4 residual functional capacity (“RFC”) to perform her past work. Id. Therefore, the ALJ must

5 determine the claimant’s RFC before moving to step four.

6 An RFC is “an assessment of an individual’s ability to do sustained work-related

7 physical and mental activities in a work setting on a regular and continuing basis.” SSR

8 96-9p, 1996 WL 374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite

9 her limitations. 20 C.F.R. § 404.1545(a)(1). An RFC assessment must include an

10 individual’s functional limitations or restrictions as a result of all of her impairments – even

11 those that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess her

12 “work-related abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at

13 *1; see also Valentine, 574 F.3d at 690 (“an RFC that fails to take into account a claimant’s

14 limitations is defective”). An ALJ errs when he provides an incomplete RFC that ignores

15 or discounts “significant and probative evidence” favorable to a claimant’s position. Hill

16 v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 2012).

17 An RFC assessment is ultimately an administrative finding reserved to the ALJ.

18 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the

19 relevant evidence, including the diagnoses, treatment, observations, and opinions of

20 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court

21 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal

22 standards and substantial evidence in the record as a whole supports the decision. See

23 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). At step four of the disability

24 analysis, if the ALJ determines a claimant has sufficient RFC to perform past relevant

25 work, the claimant is not disabled, and the claim is denied. Drouin v. Sullivan, 966 F.2d

26 1255, 1257 (9th Cir. 1992). The claimant has the burden of proving that she is unable to

27 perform past relevant work at step four. Id. If the claimant meets this burden, a prima facie

28 case of disability is established. Id.

1 At step five, the burden then shifts to the ALJ to establish that the claimant is not

2 disabled because there is other work existing in “significant numbers” in the national or

3 regional economy the claimant can do, taking into account the claimant’s RFC, age,

4 education, and work experience. 20 C.F.R. § 404.1560(c)(1), (c)(2); see also 20 C.F.R.

5 § 404.1520(g)(1). The determination of this issue comprises the fifth and final step in the

6 sequential analysis. 20 C.F.R. § 404.1520; Tackett, 180 F.3d at 1099.

7 B. The ALJ’s Application of the Five-Step Process in This Case

8 At step one, the ALJ determined that Plaintiff had engaged in substantial gainful

9 activity since her alleged disability onset date of September 14, 2021. AR 17. Specifically,

10 the ALJ found that Plaintiff’s earnings in the fourth quarter of 2021 and from

11 December 7, 2022, onward “exceed the level of presumptive substantial gainful activity

12 and that the claimant therefore was not disabled during such periods.” AR 17. Though the

13 ALJ made this conclusion, which would ordinarily stop the analysis and compel a finding

14 of non-disability at step one, the ALJ proceeded through the subsequent steps of the five-

15 step process. AR 17. Accordingly, at step two, the ALJ determined that Plaintiff had the

16 severe impairments of cervical degenerative disc disease, lumbar degenerative disc disease

17 with lumbar spondylosis, and breast cancer. AR 18.

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

19 combination of impairments that met or medically equaled the severity of one of the

20 impairments in the Listing, noting in particular that he had considered Listings 1.15, 1.16,

21 and 13.10. AR 19-20. The ALJ determined that Plaintiff has mild limitations in

22 understanding, remembering, or applying information; and mild limitations in interacting

23 with others, concentrating, persisting, and maintaining pace. AR 18-19. The ALJ also

24 determined that Plaintiff has mild limitations in adapting or managing oneself. AR 18-19.

25 Between steps three and four, the ALJ determined that Plaintiff had the residual

26 functional capacity (“RFC”) to perform light work, as defined by 20 C.F.R. § 404.1567(b)

27 with certain exertional and postural limitations. AR 20. Specifically, the ALJ determined

28 that Plaintiff:

1 . . . can lift, carry, push, and pull twenty pounds occasionally and ten pounds

frequently, and she can stand and/or walk six hours and sit six hours in an

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eight-hour workday with normal breaks. She can occasionally climb ramps or

3 stairs, but she can never climb ladders, ropes, or scaffolds. In addition, she

can occasionally balance, stoop, kneel, crouch, and crawl. She can

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occasionally reach overhead bilaterally, and she can frequently handle, finger,

5 and feel.

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AR 20.

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At step four, the ALJ concluded that Plaintiff is capable of performing past relevant

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work as a Case Worker, Child Welfare (light exertion), Social Service Worker (sedentary

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exertion) or Social Worker for Health Services (sedentary exertion). AR 26. The ALJ

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reached this conclusion based on the testimony of the vocational expert, who opined during

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the hearing that the demands of Plaintiff’s past relevant work would not be precluded by

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the RFC assigned by the ALJ. AR 26. Therefore, the ALJ—finding that Plaintiff was not

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disabled—did not proceed to step five. AR 27.

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IV. DISCUSSION

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Plaintiff brings two claims of error in the Joint Motion: 1) the ALJ failed to properly

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evaluate the medical opinion evidence of Dr. Joseph Hong; and 2) the ALJ failed to

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specifically identify how Plaintiff’s activities of daily living contradicted her testimony.

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ECF No. 10. As discussed below, the Court AFFIRMS the Commissioner’s denial of

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disability insurance benefits.

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A. The ALJ Properly Assessed Dr. Hong’s Opinion

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As the first charge of reversible error, Plaintiff asserts that the ALJ mischaracterized

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the record and “conveniently ignored [] numerous abnormal findings” supporting

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limitations put forth by Dr. Hong. ECF No. 10 at 11-12. Plaintiff maintains the ALJ’s

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assessment of Dr. Hong’s medical opinion was not only conclusory but also incorrect in

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that it discredited Dr. Hong’s opinion based on Plaintiff’s activities of daily living. ECF

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No. 10 at 11-12. The Court disagrees.

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1 1. Legal Standard

2 With respect to the ALJ’s consideration of medical opinion evidence, the Social

3 Security Administration’s revised regulations for considering medical opinions and prior

4 administrative findings, found at 20 C.F.R. § 404.1520c(c)(1)–(c)(5), apply because

5 Plaintiff applied for disability after March 27, 2017. AR 15, 181-82 (filed in

6 November 2021). The Ninth Circuit has recognized that these new regulations upend the

7 longstanding treating physician rule. Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022).

8 Rather than attributing deference to a medical opinion based on the nature of the

9 relationship between the physician and the claimant, an ALJ must evaluate the

10 “persuasiveness” of any medical opinions. Id. at 792.

11 In evaluating persuasiveness, an ALJ must consider the medical source opinion’s

12 supportability, its consistency, the relationship between the source and the claimant, the

13 source’s specialization, and other factors such as the source’s knowledge of other evidence,

14 social security requirements, and whether there was subsequently submitted evidence. Id.;

15 20 C.F.R. § 404.1520c(c)(1)–(c)(5). Though an ALJ may discuss each of the factors to be

16 considered in his opinion, the regulations only require the ALJ to explain how he

17 considered the most important factors – supportability and consistency.

18 20 C.F.R. § 404.1520c(a). Supportability examines the relevant objective medical

19 evidence and supporting explanations presented by the source. 20 C.F.R. §

20 404.1520c(c)(1). Consistency examines the evidence from other medical and nonmedical

21 sources. 20 C.F.R. § 404.1520c(c)(2).

22 Under the revised regulations, “an ALJ’s decision, including the decision to discredit

23 any medical opinion, must simply be supported by substantial evidence.” Woods, 32 F. 4th

24 at 787; see also Kitchen v. Kijakazi, 82 F.4th 732, 739 (9th Cir. 2023) (explaining how an

25 ALJ weighing a medical opinion must provide an explanation supported by substantial

26 evidence, which articulates how they considered supportability and consistency); Sloane

27 S. v. Kijakazi, No. 21cv1043-MMA-MSB, 2023 WL 2017284, at *4 (S.D. Cal. Feb. 15,

28 2023). ALJs must address how they considered the consistency and supportability factors

1 in sufficient detail to allow a reviewing court to determine whether that reasoning is

2 supported by substantial evidence. Titus L.S. v. Saul, No. 20cv04825-AFM, 2021 WL

3 275927, at *7 (C.D. Cal. Jan. 26, 2021) (citing Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.

4 2020)).

5 Ultimately, “an ALJ errs when he rejects a medical opinion or assigns it little weight

6 while doing nothing more than ignoring it, asserting without explanation that another

7 medical opinion is more persuasive, or criticizing it with boilerplate language that fails to

8 offer a substantive basis for his conclusion.” Massey v. Kijakazi, No. 21-35986, 2022 WL

9 16916366, at *1 (9th Cir. Nov. 14, 2022) (quoting Garrison v. Colvin, 759 F.3d 995, 1012–

10 13 (9th Cir. 2014)); see also Labryssa v. Kijakazi, No. 21cv04233-BLF, 2022 WL

11 2833981, at *7 (N.D. Cal. July 20, 2022) (finding a lack of substantial evidence where the

12 ALJ failed to engage with the medical opinion “in any meaningful sense” and “made only

13 a passing assessment” of the supportability and consistency factors).

14 2. Analysis

15 The medical opinion at dispute in this matter is an essential job functions report in

16 the form of a check-the-box questionnaire that provides Dr. Hong’s assessment as to

17 whether Plaintiff can complete—without assistance or accommodation—essential

18 functions of a protective services worker position. AR 1304-08. In the February 2023

19 report, Dr. Hong assessed Plaintiff’s temporary limitations as no lifting of greater than

20 15 pounds, no high impact exertional physical activity or contact, no more than eight hours

21 of overtime per pay period as tolerated, extra time to complete tasks, and mobility breaks

22 every 30-45 minutes. AR 1307. Dr. Hong also noted accommodations that would enable

23 Plaintiff to safely perform the essential functions, including hybrid work with a 90 percent

24 work-from-home schedule, unpaid time for medical appointments, warm work conditions,

25 an ergonomic seat and desk, the ability to alternate between sitting, standing, and stretching

26 every 30-45 minutes, and the ability to lay down as needed. AR 1307. Dr. Hong also noted

27 Plaintiff should limit driving to two 20-minute trips per day. AR 1307. Dr. Hong specified

28 the limitations were temporary with an end date of July 31, 2023. AR 1307.

1 The ALJ found Dr. Hong’s opinion unpersuasive. AR 25. First, the ALJ found Dr.

2 Hong’s opinion unsupported by explanation. AR 25. Dr. Hong’s assessment in the

3 February 2023 report is void of explanation as to why Plaintiff requires such

4 accommodations despite Plaintiff’s “normal gait and largely intact strength” and despite

5 “no evidence that she reported the need for frequent mobility breaks.” See, e.g., AR 25,

6 376-77, 565-67; Kitchen, 82 F.4th at 740-41 (“we have accepted the discounting of a

7 medical opinion set forth in a checkbox form with little to no explanation”). Though an

8 opinion put forth in a check-the-box questionnaire cannot be the sole basis for an ALJ

9 finding a medical opinion unpersuasive, Dr. Hong failed to cite to objective medical

10 evidence to support his conclusions, such as including references to his impressions from

11 other observations of Plaintiff. Indeed, a review of Dr. Hong’s treatment records shows

12 that they are at odds with some aspects of his assessment. See, e.g., AR 1229, 1233 (where

13 despite Dr. Hong noting Plaintiff exhibited “strength 5/5,” “gait normal” and a normal

14 range of motion, Dr. Hong concludes Plaintiff’s limitations are severe enough to where she

15 cannot lift more than 15 pounds); see Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017);

16 see also Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (“the regulations give

17 more weight to opinions that are explained than to those that are not, see 20 C.F.R. §

18 404.1527(d)(3)”); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.

19 2004) (“[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief,

20 and unsupported by the record as a whole, id., or by objective medical findings.”).

21 Second, the ALJ found Dr. Hong’s medical opinion inconsistent with other evidence

22 in the record. AR 25. The ALJ accurately cited multiple records in this regard. For example,

23 the ALJ pointed to progress notes from the period following Dr. Hong’s February 2023

24 assessment indicating Plaintiff’s steady gait and largely intact strength; as the ALJ

25 highlighted, the progress notes are absent of indication that Plaintiff requested mobility

26 breaks or that her providers instructed her to take such breaks. AR 912, 1543-44, 1578-79.

27 The ALJ’s conclusion is also consistent with records from the period preceding Dr. Hong’s

28 February 2023 assessment. The ALJ pointed to records reflecting Plaintiff’s “normal gait,”

1 “normal motor strength,” ability to “move[] all four extremities with normal strength and

2 sensation,” and ability to “ambulate[] without difficulty.” AR 376-67, 565-67, 800-801,

3 811, 1177, 1218. Also in these records, Plaintiff did not request mobility breaks nor did her

4 medical providers instruct her to take such breaks. Therefore, the ALJ adequately provided

5 a reasonable explanation supported by substantial evidence in the record for rejecting

6 Dr. Hong’s opinion, which is all that is required. Sara M. v. Kijakazi, No. 5:21-CV-01554-

7 JC, 2022 WL 17968073, at *7 (C.D. Cal. Dec. 23, 2022) (“the Court cannot second-guess

8 the ALJ’s reasonable consideration of the record evidence as a whole. Here, the ALJ

9 appropriately assessed [the physician’s] opinion by considering its “supportability” and

10 “consistency.”).

11 Though Plaintiff offers her visit with neurosurgeon Dr. Osorio as support for her

12 contention that the ALJ mischaracterized the record, the ALJ’s reasoning stands.

13 Dr. Osorio did not recommend Plaintiff alternate positions or take mobility breaks every

14 30-45 minutes. AR 24-25. Adding to this, during Plaintiff’s visit with Dr. Osorio on

15 July 25, 2023, Dr. Osorio specifically noted Plaintiff had the option to wait before pursuing

16 aggressive treatment vis-à-vis surgical intervention: “If she does have worsening

17 neurological disease we may need to pursue the surgery sooner but at this time I described

18 that progression of neurological disease with her underlying stenosis is commonly slow in

19 progression and we do have the luxury of waiting.” AR 24, 1540-41. Plaintiff references a

20 mischaracterization but does not adequately explain which specific part of the record is

21 mischaracterized, which stands in contrast to the laundry list of exhibits accurately cited

22 by the ALJ. “Where the evidence is susceptible to more than one rational interpretation,

23 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas

24 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

25 Plaintiff argues the ALJ erred by providing “conclusory reasons” lacking specificity

26 for his rejection of Dr. Hong’s opinion, citing to Embrey v. Bowen for the proposition that

27 conclusory opinions do “not achieve the level of specificity” required by the regulations.

28 849 F.2d 418, 421–22 (9th Cir. 1988); ECF No. 10 at 12. However, while in Embrey the

1 ALJ offered a conclusion without explanation (concluding that the “medical opinions are

2 not supported by sufficient objective findings”), the ALJ in this matter properly “set forth

3 his own interpretations” by listing specific examples of how the record is inconsistent with

4 Dr. Hong’s opinion, which is all that is required. Id. at 421; AR 25; see also Walker v.

5 Comm’r of Soc. Sec. Admin., No. 22cv1871-EJY, 2024 WL 64784, at *4 (D. Nev. Jan. 4,

6 2024) (to ‘build an accurate and logical bridge’ from the evidence to his conclusions, an

7 ALJ must include record citations to support his conclusion regarding supportability and

8 consistency); Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require the ALJ

9 to build an accurate and logical bridge from the evidence to [his] conclusions so that we

10 may afford the claimant meaningful review of the SSA’s ultimate findings”).

11 Additionally, Plaintiff argues the ALJ erred by discrediting Dr. Hong’s opinion

12 when he referred to Plaintiff’s engagement in yoga, gardening, and walking for self-care.

13 AR 25. Plaintiff cites to Smolen v. Chater for the proposition that an ALJ must be cautious

14 in determining that daily living activities are inconsistent with a claimant’s testimony about

15 pain given “many home activities may not be easily transferrable to a work environment

16 where it might be impossible to rest periodically or take medication.” 80 F.32 1273, 1287

17 n. 7 (9th Cir. 1996); ECF No. 10 at 10. Plaintiff takes this proposition out of context. The

18 section of Smolen that Plaintiff cites mainly concerns the evaluation of a claimant’s

19 testimony and presents a two-step process for evaluating such testimony. In the present

20 case, the ALJ—when assessing the degree of persuasiveness of Dr. Hong’s opinion—cited

21 to Plaintiff’s independence in activities of daily living and her ability to yoga, garden, and

22 walk for self-care as evidence supporting the ALJ’s conclusion that Dr. Hong’s opinion is

23 inconsistent with the overall record. AR 25. The same is true of Plaintiff’s citation to

24 Reddick v. Chater. From the Reddick court, Plaintiff highlights the following: “Only if [her]

25 level of activity were inconsistent with [a claimant’s] claimed limitations would these

26 activities have any bearing on [her] credibility.” 157 F.3d at 722 (citations omitted); ECF

27 10 at 10. Plaintiff’s application of Reddick deals with the rejection of subjective testimony

28 about a plaintiff’s pain.

1 Further, the ALJ relied on more than Plaintiff’s daily activities to support his

2 conclusion regarding Dr. Hong’s opinion (see AR 25, 376-77, 565-67, 800-01, 811, 912,

3 1177, 1218, 1229, 1233, 1543-44, 1578-79). As Defendant highlighted, error in the ALJ’s

4 reference to Plaintiff’s daily activities specific to the assessment of Dr. Hong’s opinion

5 would be harmless, because the ALJ provided other cogent reasons supported by

6 substantial evidence to discount the opinion. See De Guzman v. Astrue, 343 F. App’x 201,

7 206 (9th Cir. 2009) (citing Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162

8 (9th Cir. 2008) (“While the ALJ’s reliance on this one episode is not a clear and convincing

9 reason [], it was harmless error in light of the other specific and cogent reasons the ALJ

10 cited in support of his adverse credibility determination.”).

11 Notably, even assuming for the sake of argument that the ALJ erred in rejecting Dr.

12 Hong’s opinion, Dr. Hong’s recommendation was temporary (spanning the five-month

13 period of February 2023 to July 2023) and thus fails to meet the 12-month requirement

14 under the pertinent regulation. See 42 U.S.C. § 423(d)(1)(a) (where a claimant must show

15 an “inability to engage in any substantial gainful activity by reason of any medically

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

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

18 12 months”).

19 In sum, the ALJ’s analysis of and reliance on the record to explain his reasons for

20 finding Dr. Hong’s opinion unpersuasive are sufficient to meet the supportability and

21 consistency standard. The ALJ’s assessment of Dr. Hong’s opinion is supported by

22 substantial evidence. Therefore, the Court finds the ALJ did not err in finding Dr. Hong’s

23 opinion unpersuasive.

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B. The ALJ Did Not Commit Harmful Error by Discounting Plaintiff’s

25 Testimony Regarding Her Daily Living Activities

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As another charge of reversible error, Plaintiff asserts that the ALJ failed to

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specifically identify any part of Plaintiff’s testimony he believed was not credibly related

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1 highlighted specific records showing Plaintiff engaged in activities of daily living

2 contradicting her allegations but also provided additional, sound grounds for discounting

3 Plaintiff’s testimony. ECF No. 10 at 19-22.

4 1. Legal Standard

5 An ALJ evaluating a claimant’s testimony regarding the extent of her symptoms and

6 impairments must follow a two-step inquiry. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th

7 Cir. 2014). First, an ALJ must assess whether there is objective medical evidence to support

8 the testimony. Id. If that is the case, and there is no evidence of malingering, “the ALJ can

9 only reject the claimant’s testimony about the severity of the symptoms if he gives

10 ‘specific, clear and convincing reasons’ for the rejection.” Id. (quoting Vasquez v. Astrue,

11 572 F.3d 586, 591 (9th Cir. 2009)). An ALJ must “specifically identify the testimony [he]

12 finds not to be credible ... and explain what evidence undermines that testimony.” Lambert

13 v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r of Soc. Sec.

14 Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An ALJ’s decision must be “sufficiently

15 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s

16 testimony on permissible grounds and did not ‘arbitrarily discredit a claimant’s

17 testimony.’” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991).3 “[A]n ALJ may

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3 On March 28, 2016, the Social Security Administration issued new guidance regarding

21 how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL

1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p).

22

Additionally, effective March 27, 2017, the Social Security Administration updated the

23 relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20

C.F.R. § 416.929. Although the ALJ’s opinion was issued after these changes, the

24

jurisprudence governing the applicable two-step inquiry remains good law. See, e.g.,

25 Campbell v. Saul, 848 F. App’x 718, 721 (9th Cir. 2021) (applying the two-step inquiry in

a recent case appealing an ALJ’s decision from 2018, in which the newer regulations were

26

applied); Vooge v. Saul, 840 F. App’x 253, 254 (9th Cir. 2021) (same, in case involving an

27 ALJ’s opinion issued in January 2019). See also Trevizo v. Berryhill, 871 F.3d 664, 678

n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent

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1 not reject a claimant’s subjective complaints based solely on a lack of medical evidence to

2 fully corroborate the alleged severity of pain.” Burch, 400 F.3d at 680.

3 If the ALJ fails to meet these requirements for specificity, the Court is not free to fill

4 in the gaps. Lambert, 980 F.3d at 1278. It is solely within the ALJ’s province to assess the

5 credibility of the claimant’s testimony. Id. A court is therefore “constrained to review the

6 reasons the ALJ asserts.” Id. (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir.

7 2015)); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).

8 2. Plaintiff’s Testimony

9 In a Function Report, Plaintiff stated she suffers from cervical stenosis, experiences

10 limited range of motion, and feels her head is “too heavy” for her neck. AR 245. She

11 described difficulty sitting or standing at the computer; after sitting or standing for more

12 than 20 minutes, she has to lay down and use a heating pad. AR 245. Plaintiff has trouble

13 walking—at times due to her legs shaking—and she occasionally uses a walking stick.

14 AR 245. Plaintiff further described difficulty holding a pen or using a computer mouse.

15 AR 245.

16 Plaintiff stated that prior to her illness, she was able to exercise, drive, and garden,

17 but that she is no longer able to engage in these activities. AR 246. She reported difficulty

18 raising her arms to put on clothes and difficulty standing after bathing. AR 246. When her

19 neck and back are exceedingly stiff, she skips showering. AR 246.

20 Plaintiff reported she is able to prepare simple meals for breakfast and lunch.

21 AR 247. She orders groceries online and semi-prepared meals from an outside provider.

22 AR 247. With respect to household chores, Plaintiff is able to do laundry, wipe counters,

23 feed her pets, and pay bills online. AR 247. She requires help or encouragement to do some

24 activities and elicits the help of a housekeeper. AR 247. Further, Plaintiff is able to go

25 outside daily (except when it is wet or cold) and drive short distances during the day. AR

26 247. Plaintiff also stated that her current hobbies include watching television, listening to

27 podcasts, and yoga. AR 248. She described not being able to lift things to garden, cook, or

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1 drive. AR 248. Further, Plaintiff reported that due to her medications, she can no longer

2 tolerate wine tasting. AR 248.

3 Plaintiff described spending time with others through gentle yoga, acupuncture, and

4 massage. AR 248. On October 1, 2021, and November 5, 2021, during meetings with her

5 psychotherapist, Plaintiff reported taking yoga classes, and on December 3, 2021, Plaintiff

6 stated she is able to complete her activities of daily living. AR 721, 731, 738. On

7 May 20, 2022, Plaintiff’s psychotherapist noted Plaintiff was “engaging in self-care by

8 walking, talking to others, and ‘trying to take it easy.’” AR 770. At a subsequent session

9 on July 27, 2022, Plaintiff’s psychotherapist noted Plaintiff’s self-care regimen included

10 yoga and gardening. AR 781.

11 At a telephonic hearing on September 14, 2023, Plaintiff provided further testimony

12 about her physical conditions specific to her activities of daily living. Plaintiff testified she

13 cannot drive. AR 49. Plaintiff also reported that over the weekend she was unable to do

14 housework, cooking, cleaning, or yardwork. AR 53. When asked whether she uses a

15 medical assistive device to aid in her conditions, Plaintiff testified she uses a cane “maybe

16 once a month.” AR 45.

17 3. The ALJ’s Reasons for Rejecting Plaintiff’s Testimony

18 Plaintiff has the following severe impairments: cervical degenerative disc disease,

19 lumbar degenerative disc disease with lumbar spondylosis, and breast cancer. AR 18. The

20 ALJ found that Plaintiff’s medically determinable impairments could reasonably be

21 expected to cause the alleged symptoms, satisfying the first step of the inquiry. AR 18.

22 The ALJ also found no evidence of malingering. Therefore, in order to reject

23 Plaintiff’s testimony, the ALJ was required to state “specific, clear and convincing reasons,

24 supported by substantial evidence from the administrative record” for rejecting Plaintiff’s

25 testimony concerning the intensity, persistence, and limiting effects of her symptoms.

26 Austin v. Saul, 840 F. App’x 899, 901-02 (9th Cir. 2020) (quoting Marsh v. Colvin, 792

27 F.3d 1170, 1173 n.2 (9th Cir. 2015) (punctuation omitted)). Even if [a] claimant

28 experiences some difficulty or pain, her daily activities “may be grounds for discrediting

1 the claimant's testimony to the extent that they contradict claims of a totally debilitating

2 impairment.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). Further, when objective

3 medical evidence in the record is inconsistent with the claimant’s subjective testimony, the

4 ALJ may indeed weigh it as undercutting such testimony. Id. at 498. Notwithstanding this

5 latitude, an ALJ is required to “specifically identify the testimony ... he finds not to be

6 credible and ... explain what evidence undermines the testimony.” Holohan, 246 F.3d at

7 1208.

8 As Plaintiff correctly points out, the ALJ made a boilerplate statement regarding

9 Plaintiff’s testimony that is commonly found in ALJ decisions:

10 After careful consideration of the evidence, the undersigned finds that the

claimant’s medically determinable impairments could reasonably be expected

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to cause the alleged symptoms; however, the claimant’s statements

12 concerning the intensity, persistence and limiting effects of these symptoms

are not entirely consistent with the medical evidence and other evidence in the

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record for the reasons explained in this decision.

14

15 AR 21.

16 The ALJ then continued his analysis—pointing to various records indicating a lack

17 of congruity between Plaintiff’s statements about her activities of daily living and

18 Plaintiff’s statements about her condition. For example, the ALJ pointed to record evidence

19 that Plaintiff engaged in gardening for self-care. AR 22, 25, 781. This evidence contradicts

20 Plaintiff’s testimony that she was unable to do yardwork due to her symptoms. AR 53. See

21 Batson, 359 F.3d at 1196 (“Because the ALJ considered the claimant’s testimony to be

22 contradictory and unsupported by either the objective medical evidence or any persuasive

23 reports of his doctors, the district court did not err in affirming the ALJ’s determinations

24 about [Plaintiff’s] credibility.”). The ALJ also cited to records indicating Plaintiff engaged

25 in walking for self-care. AR 22, 770. This contrasts with Plaintiff’s testimony that she

26 experienced such difficulty walking that she could not walk more than a block. AR 245,

27 249. Similarly, the ALJ highlighted Plaintiff participating in yoga for self-care. AR 22,

28 781. That Plaintiff participated in yoga is inconsistent with Plaintiff’s statements that she

1 has “no interest in activities,” and that her pain made it difficult “to move at all.” AR 245.

2 Further, the ALJ noted that despite Plaintiff’s symptoms, she “remained independent in

3 activities of daily living.” AR 23, 738.

4 Though the Court agrees Plaintiff’s statements about her activities of daily living

5 were not wholly consistent with Plaintiff’s statements about her condition, the ALJ should

6 have more clearly connected purported inconsistencies to specific statements made by

7 Plaintiff. An ALJ’s decision must be “sufficiently specific to allow a reviewing court to

8 conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did

9 not ‘arbitrarily discredit a claimant’s testimony.’” Bunnell, 947 F.2d at 345–46. An ALJ

10 must point to specific testimony by the plaintiff or explain how the ability to perform a

11 certain activity is inconsistent with the plaintiff’s testimony. See Ferguson v. O’Malley, 95

12 F.4th 1194, 1203 (9th Cir. 2024) (reversing and remanding the lower court’s denial of

13 benefits where “[t]he ALJ did not explain how, in his view, [Plaintiff’s] testimony about

14 those daily activities is inconsistent with his testimony about the severity and frequency of

15 his [impairments].”). This Court provided the above examples of Plaintiff’s specific

16 testimony; but where the ALJ fails to meet these requirements for specificity, the Court is

17 not free to fill in the gaps. Lambert, 980 F.3d at 1278.

18 However, even if the Court fully credits Plaintiff’s testimony regarding her activities

19 of daily living, the ALJ provided two additional reasons to discount Plaintiff’s testimony

20 that this Court finds are clear and convincing.4 See Carmickle, 533 F.3d at 1162-63

21 (upholding an ALJ’s decision even where two of the ALJ’s reasons supporting his adverse

22 credibility finding were invalid, because “[s]o long as there remains substantial evidence

23 supporting the ALJ’s conclusions on credibility and the error does not negate the validity

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4 In the Joint Motion for Judicial Review, Plaintiff does not challenge either of the ALJ’s

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two additional findings for discounting Plaintiff’s testimony. ECF No. 10 at 20-23.

27 Therefore, the Court deems any challenge to those reasons waived. See Bray v. Comm’r of

Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (an argument not made in

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1 of the ALJ’s ultimate credibility conclusion, such is deemed harmless and does not warrant

2 reversal. . . . Here, the ALJ’s decision finding [the plaintiff] less than fully credible is valid,

3 despite the errors identified above.”) (internal alterations, quotations, and citation omitted);

4 Wells v. Comm’r of Soc. Sec., No. 1:17-CV-00078-SKO, 2017 WL 3620054, at *10 (E.D.

5 Cal. Aug. 23, 2017) (“While the ALJ erred in providing one invalid reason for the

6 credibility finding[,] that error was harmless, as substantial evidence still supports the

7 ALJ’s credibility determination notwithstanding the single errant rationale.”); Mukhtar Sou

8 v. Berryhill, No. C18-5165-RSM, 2018 WL 4205064, at *2 (W.D. Wash. Sept. 4, 2018)

9 (explaining that even though one of the three reasons given by the ALJ for rejecting

10 plaintiff’s testimony as not credible was an impermissible abuse of discretion, the error

11 was harmless because one of the reasons given was permissible, and “the court does not

12 need to uphold every reason provided for discrediting a claimant as long as the remaining

13 reasons are valid.”).

14 First, the ALJ cited to objective medical evidence contradicting Plaintiff’s

15 testimony. The ALJ’s conclusion that Plaintiff’s statements were inconsistent with the

16 objective medical evidence in the record is supported by substantial evidence. See, e.g.,

17 AR 290-91, 297, 376-77, 386-87, 401, 797, 811, 817, 1177, 1218, 1540-41 (noting

18 Plaintiff’s ability to move her extremities well, stand without assistance, walk on her heels

19 and toes without difficulty, and walk without the use of an assistive device; Plaintiff’s

20 providers noted full range of motion of her lumbar spine, no obvious muscle weakness

21 independent of her pain, full strength in her extremities, an absence of neurological deficits

22 and an unremarkable neurological exam, normal gait, and that surgery was either not

23 warranted or could wait). Here, there is substantial evidence in the record to support the

24 ALJ’s ultimate credibility determination, notwithstanding the fact that Plaintiff has not

25 challenged the ALJ’s finding on this ground.

26 Second, the ALJ cited multiple medical records showing Plaintiff’s improvement

27 through treatment despite her symptom allegations. The ALJ determines whether to credit

28 a claimant’s statements about pain and limitations by referring to the factors set forth in 20

1 C.F.R. § 404.1529(c)(3), which include the frequency and intensity of the claimant’s

2 symptoms and the effectiveness of medication. The ALJ discredited Plaintiff’s testimony

3 because her conditions improved with treatment and medication. As the ALJ noted,

4 Plaintiff received Toradol injections, steroids, and medications (e.g., tramadol and

5 lidocaine patches) during a March 2022 urgent care visit. AR 565. The following month,

6 Dr. Kureshi, Plaintiff’s neurosurgeon, recommended facet joint injections. AR 800-01. The

7 day of the injection, Plaintiff reported 100% relief; subsequently she experienced 50%

8 relief of back pain. AR 1314. The ALJ also noted that in June 2022, Plaintiff reported 30%

9 relief from cervical facet joint injections and 100% relief the day of a massage. AR 1314.

10 The ALJ also highlighted that Plaintiff’s pain levels became manageable to where she

11 avoided Percocet, relied on occasional doses of Advil, exhibited a stable gait, and was able

12 to walk without the use of an assistive device. AR 811, 817, 1425. The ALJ also pointed

13 to records showing Plaintiff experienced 60% relief and “resolution of radicular

14 symptoms” following a December 2022 epidural injection. AR 1314-15. The ALJ relied

15 on records showing that as of May 2023, Plaintiff relied on Tylenol to where she only

16 occasionally used Percocet (and she had not used it within the last three weeks). AR 1543.

17 See also Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (upholding ALJ’s discounting

18 of claimant’s credibility where claimant treated pain with over-the-counter pain

19 medication) and Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

20 (where an ALJ also may take into consideration that “[i]mpairments that can be controlled

21 effectively with medication are not disabling for the purpose of determining eligibility for

22 SSI benefits.”). Accordingly, the Court finds that the ALJ adequately articulated reasons

23 to undermine Plaintiff’s allegations regarding the degree of limitation she alleged.

24 //

25 //

26 //

27 //

28 //

1 Vv. CONCLUSION

2 For the reasons set forth above, pursuant to sentence four of 42 U.S.C. § 405(g), IT

3 || IS HEREBY ORDERED that the Commissioner’s decision is AFFIRMED. The Clerk

4 || shall enter judgment accordingly and terminate the case.

5 IT IS SO ORDERED.

6 || Dated: March 6, 2025

’ /pWiowH. Xovolarve

8 Honorable Allison H. Goddard

9 United States Magistrate Judge

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