(SS) Baldwin v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JONATHAN T. BALDWIN, ) Case No.: 1:23-cv-1719 JLT EPG

)

12 Plaintiff, ) ORDER DECLINING THE FINDINGS AND

) RECOMMENDATIONS, DENYING

13 ) PLAINTIFF’S APPEAL, AND GRANTING THE

) COMMISSIONER’S REQUEST TO AFFIRM

14 v. ) THE ADMINISTRATIVE DECISION

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15 COMMISSIONER OF SOCIAL SECURITY, ) ORDER DIRECTING ENTRY OF JUDGMENT

) IN FAVOR OF THE COMMISSIONER OF

16 Defendant. ) SOCIAL SECURITY AND AGAINST

) PLAINTIFF JONATHAN BALDWIN

17 )

) (Docs. 9, 11, and 19)

18 )

19 Jonathan Baldwin seeks review of the final decision denying his application for supplemental

20 security income under Title XVI of the Social Security Act. (Docs. 1, 9.) Plaintiff asserts the

21 administrative law judge failed to properly evaluate Plaintiff’s subjective statements concerning his

22 impairments, particularly by relying upon the medical evidence and Plaintiff’s activities of daily living.

23 (Doc. 9-1 at 3-7.) The Commissioner asserts the ALJ’s decision is supported by substantial evidence.

24 (Doc. 11.) For the reasons set forth below, Plaintiff’s appeal from the administrative decision is denied

25 and the administrative decision is affirmed.

26 I. Decision of the ALJ

27 The ALJ evaluated Plaintiff’s application using the five-step sequential evaluation set forth in

28 20 C.F.R. § 416.920(g). (Doc. 8-1 at 32-41.) First the ALJ determined Plaintiff did not engage in

1 substantial gainful activity after the application date of April 15, 2020. (Id. at 32.) Second, the ALJ

2 found Plaintiff’s severe impairments included: “schizoaffective disorder, bilateral flatfoot and skew

3 foot deformity.” (Id.) At step three, the ALJ determined Plaintiff’s impairments did not meet or

4 medically equal a Listing. (Id. at 33.) Next, the ALJ found:

5 [T]he claimant has the residual functional capacity to perform medium

work as defined in 20 CFR 416.967(c) except he can occasionally climb,

6 stoop, kneel, crouch, and crawl; is limited to simple, routine tasks,

occasional interaction with supervisors, coworkers, and the public; and

7 can maintain attention and concentration for two-hour increments with

normal breaks.

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9 (Id. at 33.) In so finding, the ALJ indicated that she considered “the entire record,” which included

10 medical evidence, Plaintiff’s statements, and third-party statements. (Id.; see also id. at 33-39.) At step

11 four, the ALJ noted Plaintiff did not have any past relevant work. (Id. at 39.) However, the ALJ found

12 “there are jobs that exist in significant numbers in the national economy that the claimant can perform.”

13 (Id. at 40.) Thus, the ALJ concluded at step five that Plaintiff was not disabled as defined by the Social

14 Security Act. (Id. at 41.)

15 II. Issues Raised by Plaintiff

16 First, Plaintiff asserts the ALJ “failed to properly analyze [his] subjective symptom testimony.”

17 (Doc. 9-1 at 3 [emphasis omitted].) Plaintiff contends “the ALJ simply summarized the medical

18 evidence at issue in the case and make (sic) a generalized statement that that record undermines the

19 claimant’s testimony.” (Id. at 5, citing AR 29-31 [Doc. 8-1 at 35-37].) According to Plaintiff, “the

20 ALJ did not in any way give any reasoning why he thought any of the medical evidence supported or

21 cut against the credibility of any subjective symptom testimony.” (Id.) Rather, Plaintiff asserts the

22 ALJ “used almost the exact same conclusory boilerplate as … the Ninth Circuit found insufficient” in

23 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 20200). He also contends the ALJ did not “explain why

24 the evidence is contradictory,” such as how the evidence “undermine[d] Plaintiff’s testimony that he

25 has pain affecting his work abilities, e.g., standing, speaking, or walking,” as required under Brown-

26 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). (Id. at 5-6.)

27 Second, Plaintiff argues the ALJ “improperly used activities of daily living to attack [his]

28 credibility in the subjective symptom analysis.” (Doc. 9-1 at 6 [emphasis omitted].) He contends, that

1 the ALJ did not find “any activity of daily living directly contradicts any specific testimony.” (Id.)

2 Plaintiff also contends, “The ALJ … nowhere argues, finds, or even discusses whether that that the

3 activities meet the threshold for transferable work skills.” (Id. at 6-7.) As a result, Plaintiff contends

4 the ALJ “failed to follow clear Ninth Circuit requirements to even attempt to use activities of daily

5 living.” (Id. at 7.) Plaintiff contends these errors of the ALJ “were outcome determinative and the

6 case should be remanded.” (Id. [emphasis omitted].)

7 III. Findings and Recommendations

8 The magistrate judge indicated: “The ALJ discounted the severity of Plaintiff’s subjective

9 complaints for two main reasons: (1) Plaintiff’s ability to engage in certain activities of daily living and

10 (2) the lack of supporting objective medical evidence for Plaintiff’s complaints.” (Doc. 19 at 5.) The

11 magistrate judge considered the identified reasons and found the ALJ failed to identify “clear and

12 convincing reasons to reject Plaintiff’s subjective complaints.” (Id. at 10.)

13 The magistrate judge observed that Plaintiff asserted the ALJ did not properly consider his

14 activities of daily living, because the ALJ did not make findings of direct contradictions or determine

15 his activities resulted in transferable work skills. (Doc. 19 at 6, citing Doc. 9-1 at 6-7.) The

16 Commissioner argued that “[t]he ALJ adequately and reasonably explained how Plaintiff’s wide range

17 of activities undermined his subjective complaints.” (Id., quoting Doc. 11 at 9.) Upon review of the

18 ALJ’s decision, the magistrate judge found “Plaintiff has the better argument.” (Id.) The magistrate

19 judge observed: “For the most part, the ALJ failed to explain how Plaintiff’s daily activities were

20 inconsistent with his testimony.” (Id.) In addition, the magistrate judge noted “the ALJ never

21 explained how Plaintiff’s daily activities—which mostly consisted of household chores—transferred to

22 the work setting.” (Id. at 7.) Therefore, the magistrate judge concluded that “Plaintiff’s ability to

23 perform some daily activities does not provide a clear and convincing reason to discount his subjective

24 complaints. (Id.)

25 The magistrate judge noted that lack of supporting evidence can be a factor considered by the

26 ALJ, but it may not be the sole reason to discount testimony. (Doc. 19 at 8.) The magistrate judge

27 found: “Most of the ALJ’s summary of the record fails to identify the specific testimony that is

28 purportedly undermined by the medical evidence.” (Id. at 8-9.) For example, the magistrate judge

1 noted: “while the ALJ notes that ‘there is little objective evidence of hospitalizations since the

2 application filing date’ the ALJ does not explain why this is material in terms of discounting any of

3 Plaintiff’s subjective complaints.” (Id. at 9.) Thus, the magistrate judge again found that “Plaintiff

4 [had] the better argument” regarding the ALJ’s analysis of the objective medical record. (Id. at 8.)

5 The magistrate judge acknowledged, “the ALJ’s opinion indicates that Plaintiff’s lack of more

6 substantial treatment, normal findings on examination, and reports of doing well were also inconsistent

7 (not just unsupported) with his subjective complaints.” (Doc. 19 at 9.) However, the magistrate judge

8 found the ALJ did not properly consider the treatment Plaintiff received for his flatfoot impairment, as

9 “the custom orthotics (the “conservative treatment”) appear to have been recommended only because

10 Plaintiff had “a very difficult foot to surgically correct.” (Id.) Furthermore, the magistrate judge

11 determined: “while the ALJ correctly pointed out that Plaintiff had normal clinical findings and

12 reported doing well, the record likewise reveals that Plaintiff otherwise had abnormal findings and he

13 reported symptoms.” (Id.) Therefore, the magistrate judge concluded “the ALJ failed to sufficiently

14 undermine Plaintiff’s subjective complaints.” (Id.)

15 The magistrate judge recommended “the decision of the Commissioner of the Social Security

16 Administration be reversed” and the action “be remanded for further proceedings so that the ALJ may

17 sufficiently address Plaintiff’s subjective complaints.” (Doc. 19 at 10.)

18 IV. Objections and Response

19 The Commissioner filed objections to the Findings and Recommendations, asserting the

20 magistrate judge erred in reviewing the ALJ’s analysis. (See generally Doc. 20 at 1-4.) The

21 Commissioner asserts that, as the magistrate judge acknowledged, “the ALJ found that Plaintiff’s

22 denial of mowing the lawn due to foot pain was directly inconsistent of his prior acknowledgement that

23 he did mow the lawn.” (Doc. 20 at 2.) According to the Commissioner, the magistrate judge “then

24 concluded that the ALJ should have gone further to explore any potential reasons for Plaintiff’s

25 inconsistent statements, such as a change in circumstances, but did not identify any legal authority or

26 record evidence for why the ALJ needed to seek such an explanation.” (Id.) In addition, the

27 Commissioner asserts the magistrate judge “overlooked the ALJ’s additional reasoning that despite

28 Plaintiff’s allegations of disabling foot pain, he was able to go to the gym twice a week and play golf.”

1 (Id. citing AR 31, 569, 589, 901, 924 [Doc. 8-1 at 37, 575, 595, 907, 930].) The Commissioner

2 contends that “[a] claimant’s activities, such as exercise, can undermine his subjective complaints even

3 if they do not prove his ability to return to work.” (Id., citing Valentine v. Comm’r, 574 F.3d 685, 693

4 (9th Cir. 2009).)

5 The Commissioner asserts the magistrate judge also erred in addressing the treatment Plaintiff

6 received, including the custom introvert orthotics. (Doc. 20 at 3.) The Commissioner observed, “the

7 magistrate judge found that the full context of the treatment record indicated that Plaintiff’s doctor

8 stated surgical correction would be very difficult but, if the custom orthotics failed, ‘he would have to

9 consider significant reconstructive foot surgery.’” (Id., quoting Doc. 19 at 9, AR 827 [Doc. 8-1 at

10 833].) The Commissioner notes that neither Plaintiff nor the magistrate judge “cited evidence that

11 Plaintiff ever pursued such surgery, that his doctor further recommended it, or that Plaintiff’s foot

12 orthotics proved unsuccessful.” (Id.) The Commissioner contends the magistrate judge “overlooked

13 the ALJ’s additional reasoning that Plaintiff managed his pain with over-the-counter medication

14 (Aleve) ([AR] 28, 55), which is a valid reason for discounting a Plaintiff’s physical complaints.” (Id.,

15 citing Parra v. Astrue, 418 F.3d 742, 751 (9th Cir. 2007).)

16 Finally, the Commissioner asserts the “findings regarding the objective evidence conflicted with

17 the Court’s standard of review.” (Doc. 20 at 3-4.) The Commissioner observes, “Even when objective

18 evidence shows some variability, the Court should uphold an ALJ’s conclusions when the objective

19 evidence is susceptible to more than one rational interpretation.” (Id. at 4, citing Ford v. Saul, 950 F.3d

20 1141, 1155 (9th Cir. 2020).) According to the Commissioner, “the ALJ noted the mixed objective

21 evidence, such as a finding of ‘slightly distracted’ concentration ([AR] 30, 621), which the ALJ

22 reasonably considered alongside other findings of linear thought process, alert mental status, and good

23 judgment.” (Id.) The Commissioner maintains, “The ALJ identified substantial evidence to support

24 her finding that the overall objective evidence contradicted Plaintiff’s subjective complaints.” (Id.)

25 Plaintiff filed a response to the objections, asserting the Commissioner’s “argument essentially

26 boils down to an argument that the record supports the ALJ Decision due to substantial evidence.

27 (Doc. 21 at 2.) However, Plaintiff contends the Commissioner ignores the issue in this action. (Id.)

28 Plaintiff contends: “[T]he entire Report and Recommendation is that the ALJ Decision failed to meet

1 the standard of Brown-Hunter and its related precedent. Yet the Defendant does not provide discussion

2 a single discussion in the objection

3 as to how the Report and Recommendation errored in its application of the Brown-Hunter precedent

4 case law.” (Id.) Therefore, Plaintiff contends the Court should adopt the recommendation of the

5 magistrate judge and remand the matter for additional proceedings. (Id.)

6 V. Discussion

7 A district judge may “accept, reject or modify, in whole or in part, the findings and

8 recommendations...” 28 U.S.C. § 636(b)(1). If a party files objections, “the court shall make a de novo

9 determination of those portions of the report or specified proposed finding or recommendations to

10 which objection is made.” Id. A de novo review requires the Court to “consider[] the matter anew, as

11 if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009).

12 A. Evaluating subjective statements

13 To evaluate a claimant’s statements regarding the severity of his symptoms, an ALJ must

14 determine first whether objective medical evidence shows an underlying impairment “which could

15 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504

16 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)).

17 Second, if there is no evidence of malingering, the ALJ must set forth clear and convincing reasons for

18 rejecting subjective complaints. Id. at 1036. An ALJ may consider many factors to assess a claimant’s

19 statements, including, for example: (1) the objective medical evidence, (2) the claimant’s reputation for

20 truthfulness, (3) inconsistencies in testimony or between testimony and conduct, (4) the claimant’s

21 daily activities, (5) an unexplained, or inadequately explained, failure to seek treatment or follow a

22 prescribed course of treatment, and (6) testimony from physicians about the nature, severity, and effect

23 of the symptoms of reported by a claimant. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also

24 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

25 B. Use of boilerplate language

26 As an initial matter, the ALJ found that Plaintiff’s “statements concerning the intensity,

27 persistence and limiting effects of these symptoms are not entirely consistent with the medical

28 evidence and other evidence in the record for the reasons explained in this decision.” (Doc. 8-1 at 35.)

1 Plaintiff asserts the proffered language does not satisfy the “clear and convincing” standard, and the

2 Ninth Circuit criticized such language. (Id., citing Lambert, 980 F.3d at 1277.) As Plaintiff argues,

3 the Ninth Circuit criticized the use of similar language as a “‘boilerplate statement’ by way of

4 ‘introductory remark,’ which is ‘routinely included’ in ALJ decisions denying benefits.” Lambert, 890

5 F.3d at 1277 (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014)

6 [modifications adopted]). When an ALJ employs boilerplate language, as here, such language “does

7 not ... add anything to the ALJ’s determination.” See Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th

8 Cir. 2017). Thus, where an ALJ includes only boilerplate language, the analysis is insufficient to

9 support the ALJ’s conclusions, because “the ‘clear and convincing’ standard requires an ALJ to show

10 his work.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022); see also Laborin, 867 F.3d at 1155.

11 As discussed below, the ALJ did not include only the language identified as boilerplate by the

12 Ninth Circuit but proceeded to address several factors discussed below. Consequently, the Court finds

13 the ALJ did not commit fatal error by reciting boilerplate language in the credibility determination.

14 See Smartt, 53 F.4th at 499; see also Elliott v. Astrue, 2012 WL 3818288, at *5 (D. Or. Sept. 4, 2012)

15 (“even if the use of this boilerplate language were error, in the context of the ALJ's more specific

16 discussion that followed, it is harmless”).

17 C. Plaintiff’s activities

18 A claimant’s level of activity may be sufficient to support an ALJ’s determination to give less

19 weight to his subjective statements. See, e.g., Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,

20 693 (9th Cir. 2009); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). For example,

21 the Ninth Circuit determined the ability to cook, clean, do laundry and manage finances may be

22 sufficient to support an adverse finding of credibility. See Stubbs-Danielson, 539 F.3d at 1175. An

23 ALJ may also conclude “the severity of … limitations were exaggerated” when a claimant exercises,

24 gardens, and participates in community activities. Valentine, 574 F.3d at 693. Similarly, a claimant’s

25 ability to care for personal needs, “prepare easy meals, do light housework, and shop for some

26 groceries,” may be viewed as “inconsistent with the presence of a condition which would preclude all

27 work activity.” Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990). The Ninth Circuit explained,

28 “Even where ... activities suggest some difficulty functioning, they may be grounds for discrediting the

1 claimant’s testimony to the extent that they contradict claims of a totally debilitating impairment.”

2 Stubbs-Danielson, 539 F.3d at 1175; see also Valentine, 574 F.3d at 693 (finding the ALJ identified “a

3 clear and convincing reason to reject [the claimant’s] subjective testimony” where the level of activity

4 “contradicted [his] contentions about how debilitating his fatigue was”).

5 Here, the ALJ observed that Plaintiff “able to perform independent basic activities of daily

6 living, including maintaining independent personal care with no problems, preparing simple meals

7 daily, and carrying out some household chores such as cleaning his room, and toilet.” (Doc. 8-1 at 37.)

8 The ALJ noted that Plaintiff “reported that he can sweep, vacuum, wash dishes, and fold clothes.” (Id.)

9 Further, the ALJ noted that Plaintiff “admitted he was able to pick up dog toys and push furniture

10 around, including medium-size chairs, and the record notes he was able to exercise twice a week by

11 going to the gym and attending water aerobics classes with his brother.” (Id.) The ALJ found these

12 were “relatively intact daily activities,” and were consistent with the ability to perform medium-

13 exertion work. (Id.) Notably, the identified activities are like those found sufficient in Stubbs-

14 Danielson and Valentine to support the ALJ’s rejections of the claimants’ subjective statements. See

15 id., 539 F.3d at 1175; Valentine, 574 F.3d at 693.

16 As the Ninth Circuit explained, “Although the evidence of [the plaintiff’s] daily activities may

17 also admit of an interpretation more favorable to [him], the ALJ’s interpretation was rational, and [the

18 court] ‘must uphold the ALJ’s decision where the evidence is susceptible to more than one rational

19 interpretation.’” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (quoting Magallanes v. Bowen,

20 881 F.2d 747, 750 (9th Cir. 1989)). Thus, the activities identified by the ALJ support the decision to

21 give less weight to Plaintiff’s testimony concerning the severity of his symptoms.

22 D. Objective medical evidence

23 In general, “conflicts between a [claimant’s] testimony of subjective complaints and the

24 objective medical evidence in the record” can be “specific and substantial reasons that undermine …

25 credibility.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The

26 Ninth Circuit explained, “[w]hile subjective pain testimony cannot be rejected on the sole ground that

27 it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant

28 factor in determining the severity of the claimant’s pain and its disabling effects.” Rollins v.

1 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Burch, 400 F.3d at 681 (“although lack of

2 medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ

3 can consider in his credibility analysis”). Because the ALJ did not base the decision solely on the fact

4 that the medical record did not support the degree of symptoms alleged by Plaintiff, the objective

5 medical evidence was a relevant factor in evaluating his subjective complaints.

6 If an ALJ cites the medical evidence, it is not sufficient for the ALJ to simply state that the

7 record contradicts the testimony. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)

8 (“general findings are an insufficient basis to support an adverse credibility determination”). An ALJ

9 must identify “specifically identify what testimony is credible and what evidence undermines the

10 claimant’s complaints.” Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); see also Dodrill v.

11 Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (ALJ must identify “what evidence suggests the complaints

12 are not credible”). Unless the ALJ links the claimant’s testimony to “the observations an ALJ makes as

13 part of the summary of the medical record,” the summary is not sufficient to reject a claimant’s

14 subjective statements. Argueta v. Colvin, 2016 WL 4138577, at *13 (E.D. Cal. Aug. 3, 2016) (citing

15 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)). In addition, district court may not review

16 an ALJ’s summary of the record to itself establish a link between a claimant’s testimony and the

17 record. In Brown-Hunter, the claimant argued the ALJ failed to provide clear and convincing reasons

18 for rejecting her symptom testimony. Id., 806 F.3d at 491. The district court identified inconsistencies

19 in the ALJ’s summary of the medical record that it opined gave rise to reasonable inferences about the

20 plaintiff’s credibility. Id. On appeal, the Ninth Circuit determined the ALJ failed to identify the

21 specific testimony she found lacked credibility and did not link that testimony to support the adverse

22 credibility determination. Id. at 493. The Court explained that even if the district court’s analysis was

23 sound, the analysis could not cure the ALJ’s failure. Id. at 494.

24 The Ninth Circuit also determined an ALJ erred when discrediting symptom testimony as “not

25 entirely consistent with the medical evidence,” without linking testimony and medical evidence in

26 Holcomb v. Saul, 832 Fed. App’x. 505 (9th Cir. Dec. 28, 2020). In Holcomb, the ALJ summarized the

27 claimant’s testimony and “determined that his symptom testimony was not ‘entirely consistent with the

28 medical evidence and other evidence in the record.’” Id. at 506. The Court found that “the ALJ

1 discussed relevant medical evidence but failed to link Holcomb’s symptom testimony to specific

2 medical records and explain why those medical records contradicted his symptom testimony.” Id.

3 Because the Court is constrained to the reviewing reasons identified by the ALJ for discounting

4 testimony, the “failure to specific the reasons for discrediting Holcomb’s symptom testimony was

5 reversible error.” Id. (citing Brown-Hunter, 806 F.3d at 494).

6 The ALJ sufficiently carried the burden to link Plaintiff’s subjective statements to the record.

7 For example, the ALJ stated Plaintiff made “allegations of difficulty focusing, even when he is on

8 medication, [but] the treating records generally reflect effective treatment, with good mood, better

9 sleep, stable appetite, and stable concentration, when he complied with prescribed medication.” (Doc.

10 8-1 at 37.) Though this link between Plaintiff’s statements and the record is minimal, it is sufficient to

11 show the ALJ considered Plaintiff’s testimony while discussing the medical record, and identified

12 evidence that contradicted the testimony. Compare with Holcomb, 832 Fed. App’x at 506 (finding no

13 link where “the ALJ never mentioned [the claimant’s] symptom testimony while discussing the

14 relevant medical evidence”). Consequently, Plaintiff’s assertion of error on this ground is unavailing.

15 E. Lack of hospitalization

16 The magistrate judge observed that the ALJ found “little objective evidence of hospitalizations

17 since the application date.” (Doc. 19 at 9.) The magistrate judge determined that “the ALJ does not

18 explain why this is material in terms of discounting any of Plaintiff’s subjective complaints,” and

19 suggested the lack of hospitalization was an improper consideration. (Id.) Significantly, however, the

20 ALJ found: “there is little objective evidence of hospitalizations since the application filing date which

21 is consistent with the claimant’s testimony.” (Doc. 8-1 at 36, emphasis added.) Thus, the ALJ did not

22 consider the lack of hospitalizations as a factor to discredit Plaintiff, but rather acknowledged the

23 consistency of this portion of his testimony with the record that showed “no hospitalizations since age

24 18.” (Id. at 35-36.) Toward this end, the ALJ did not improperly address this factor.

25 F. Unchallenged factors considered by the ALJ

26 In the opening brief, Plaintiff seems to suggest the ALJ considered only the objective medical

27 evidence and activities in evaluating his subjective statements. However, review of the administrative

28 decision reveals the ALJ considered several other factors in her analysis of Plaintiff’s subjective

1 statements that Plaintiff neither acknowledged nor challenged in his appeal.

2 1. Treatment received

3 The treatment Plaintiff received, especially when conservative, is a legitimate consideration in

4 a credibility finding. 20 C.F.R. §§ 404.1529(c), 416.929(c); see also Meanel v. Apfel, 172 F.3d 1111,

5 1114 (9th Cir. 1999) (the ALJ properly considered the physician’s failure to prescribe, and the

6 claimant’s failure to request, medical treatment commensurate with the “supposedly excruciating

7 pain” alleged). The Ninth Circuit “indicated that evidence of ‘conservative treatment’ is sufficient to

8 discount a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742,

9 750 (9th Cir. 2007).

10 The ALJ found that for Plaintiff’s congenital flatfoot deformity/skew foot deformity, Plaintiff’s

11 podiatrist, Dr. John Etcheverry, “recommended conservative treatment with custom invert orthotics.”

12 (Doc. 8-1 at 36.) Specifically, Dr. Etcheverry indicated in January 2021:

13 The patient has a very complicated flatfoot deformity. Not only does he

have a significant and very severe flatfoot deformity pale who also has a

14 skew foot deformity component to this. The skew foot deformity is what

makes this so complicated. The skew foot deformity is what I call the

15 confused foot. The front of the foot is high arched for the back of the foot

has severe flatfoot. This is a very difficult foot to surgically correct. At

16 this time I would highly recommend custom inverted orthotics to attempt

to decrease his pain and increase his function. If the orthotics fail he

17 would have to consider significant reconstructive foot surgery.

18 (Doc. 8-1 at 833.) Although the magistrate judge indicated the conservative care appeared to be

19 recommended only due to the anticipated difficulty of surgery, the record does not show that the

20 prescribed conservative care failed during the adjudicated period. Rather, the record supports the

21 conclusion that Plaintiff received only conservative treatment, and the Court declines to speculate as to

22 any potential, future need for more aggressive treatment. See, e.g., Loretta G. v. O’Malley, 2024 WL

23 3074798, at *2 (N.D. Ill. June 11, 2024) (rejecting the plaintiff’s argument that “the ALJ should not

24 have characterized her treatment as routine and conservative” where her doctor indicate surgery was

25 the probable next step, because “the ALJ was not required to speculate as to possible future treatment

26 Plaintiff might receive”). Consequently, the conservative treatment supports the ALJ’s decision to

27 discount Plaintiff’s testimony concerning the severity of his symptoms. Parra, 481 F.3d at 750.

28 ///

1 2. Intent to work

2 The ALJ observed Plaintiff testified at his first hearing in 2021 that he was unable to find a job

3 because of his disability but acknowledged “that he worked with Pathpoint to try and find

4 employment.” (Doc. 8-1 at 34.) In addition, the ALJ noted that in May 2022, Plaintiff “was working

5 for Habitat for Humanity sorting donated clothing.” (Id. at 36.) Significantly, the Ninth Circuit

6 determined an ALJ may discount a claimant’s credibility where he searched for work, as it “cast[s]

7 doubt on a claim of disability” and indicates the claimant believes he is able to work. Ghanim v.

8 Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014); see also Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d

9 1219, 1227 (9th Cir. 2009) (finding the ALJ properly considered that the clamant “sought out other

10 employment” in discounting the claimant’s testimony). The record supports the ALJ’s finding that

11 Plaintiff expressed an intent to work, which was properly considered in the analysis of Plaintiff’s

12 allegations regarding the severity of his symptoms.

13 3 ALJ’s observations from the hearing

14 The ALJ observed Plaintiff “was able to focus sufficiently” at the administrative hearings,

15 despite his “allegations of difficulty focusing.” (Doc. 8-1 at 37.) Plaintiff does not address the

16 observation, which is a proper factor for the ALJ to consider. See Nyman v. Heckler, 779 F.2d 528,

17 531 (9th Cir. 1986) (when an ALJ includes personal observations of a claimant during the hearing, the

18 decision is not improper if other evidence supports the determination); see also Drouin v. Sullivan,

19 966 F.2d 1255, 1258-59 (9th Cir. 1992) (observations of ALJ during the hearing, along with other

20 evidence, is substantial evidence for rejecting testimony). Because the ALJ set forth other clear and

21 convincing reasons for finding Plaintiff’s subjective complaints lacked credibility, the ALJ properly

22 incorporated her personal observations into the decision to reject Plaintiff’s statements. See Nyman,

23 779 F.2d at 531; Drouin, 966 F.2d at 1258-59.

24 G. Harmless error

25 Even if the Court agreed the analysis of the inconsistency between Plaintiff’s testimony and the

26 objective findings was not sufficiently specific, such an error is harmless because the ALJ provided

27 several additional clear and convincing reasons for rejecting Plaintiff’s subjective complaints. As the

28 Ninth Circuit explained, “[a]n ALJ’s error was harmless where the ALJ provided one or more invalid

1 reasons for disbelieving a claimant’s testimony, but also provided valid reasons that were supported t

2 || the record.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); see also Glendenning v. Kijakaz

3 || No. 22-35391, 2023 WL 3479564, at *1 (9th Cir. May 16, 2023) (“even assuming the ALJs reasonin;

4 || regarding the objective medical evidence was insufficiently specific, any error was harmless, because

5 the ALJ relied on other valid reasons to discredit [the plaintiff’s] testimony including ... the

6 || conservative nature of her treatment and her daily activities’).

7 In light of the number of factors considered to assess Plaintiff's subjective complaints—

8 || including several unchallenged by Plaintiff in his appeal— the ALJ carried the burden to set forth

9 || findings “sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant’s

10 || testimony on permissible grounds.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).

11 VI. Conclusion and Order

12 Pursuant to 28 U.S.C. § 636 (b)(1), this Court conducted a de novo review of the case. Havin.

13 || carefully reviewed the entire matter, the Court finds the ALJ applied proper legal standards and

14 || substantial evidence supports the administrative decision. Thus, the Court ORDERS:

15 1. The Court declines to adopt the Findings and Recommendations (Doc. 19).

16 2. Plaintiff's motion for summary judgment (Doc. 9) is DENIED.

17 3. Defendant’s request to affirm the administrative decision (Doc. 11) is GRANTED.

18 4. The Clerk of Court is directed to terminate pending motions; enter judgment in favor ¢

19 Defendant, the Commissioner of Social Security, and against Plaintiff Jonathan T.

20 Baldwin; and to close this case.

21

22 IT IS SO ORDERED.

23 || Dated: _March 10, 2025 ( LAW ph L. wan

24 TED STATES DISTRICT JUDGE

25

26

27

28

13