Tonyette N. Devito Ortiz v. Martin J. O Malley

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9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

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12 TONYETTE O.,1

Case No. 2:24-cv-00333-AJR

13 Plaintiff,

MEMORANDUM DECISION

v.

14 AND ORDER

FRANK BISIGNANO,2

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Commissioner of Social Security,

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Defendant.

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I.

19

INTRODUCTION

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Tonyette O. (“Plaintiff”) brings this action seeking to overturn the decision of

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the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying

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her application for Disability Insurance Benefits (“DIB”). (Dkt. 12 at 5.) For the

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1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil

25 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

Administration and Case Management of the Judicial Conference of the United

26 States.

27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,

Commissioner Frank Bisignano has been substituted in as the Defendant in this

28 action.

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3 II.

4 PROCEDURAL HISTORY

5 Plaintiff filed an application for DIB on March 22, 2019, alleging disability

6 commencing in August 2008. (Dkt. 6-4 at 17; Dkt. 6-6 at 2-5.) Plaintiff’s date last

7 insured for benefits was December 31, 2013. (Dkt. 6-5 at 2.) The Commissioner

8 denied the claims by initial determination on May 6, 2019, (Dkt. 6-4 at 9), and upon

9 reconsideration on July 20, 2019. (Id. at 17.) Plaintiff filed a written request for a

10 hearing in October of 2019. (Dkt. 6-5 at 19.) On October 5, 2022, Administrative

11 Law Judge Robin Rosenbluth (the “ALJ”) conducted a hearing3 and subsequently

12 published an unfavorable decision on December 21, 2022. (Dkt. 6-3 at 37-76; id. at

13 23-33.) Plaintiff requested review of the ALJ’s decision by the Appeals Council on

14 February 13, 2023. (Dkt. 6-5 at 100-02.) The Appeals Council denied Plaintiff’s

15 request for review on November 14, 2023. (Dkt. 6-3 at 2-4.) On that date, the

16 ALJ’s decision became the final decision of the Commissioner. See 42 U.S.C. §

17 405(h). Plaintiff now seeks review of the ALJ’s final decision.

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19 III.

20 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

21 To qualify for disability benefits, a claimant must demonstrate a medically

22 determinable physical or mental impairment that prevents the claimant from

23 engaging in substantial gainful activity and that is expected to result in death or to

24 last for a continuous period of at least twelve months. See Reddick v. Chater, 157

25 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment

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3 The hearing was conducted telephonically and Plaintiff was represented by an

28 attorney at the hearing. (Dkt. 6-3 at 39-40.)

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2 other substantial gainful employment that exists in the national economy. See

3 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.

4 § 423(d)(2)(A)).

5 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step

6 inquiry. See 20 C.F.R. §§ 404.1520, 416.920. The steps are:

7 (1) Is the claimant presently engaged in substantial gainful activity? If so,

8 the claimant is found not disabled. If not, proceed to step two.

9 (2) Is the claimant’s impairment severe? If not, the claimant is found not

10 disabled. If so, proceed to step three.

11 (3) Does the claimant’s impairment meet or equal one of the specific

12 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If

13 so, the claimant is found disabled. If not, proceed to step four.

14 (4) Is the claimant capable of performing his past work? If so, the claimant

15 is found not disabled. If not, proceed to step five.

16 (5) Is the claimant able to do any other work? If not, the claimant is found

17 disabled. If so, the claimant is found not disabled.

18 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949,

19 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).

20 The claimant has the burden of proof at steps one through four and the

21 Commissioner has the burden of proof at step five. See Bustamante, 262 F.3d at

22 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in

23 developing the record at every step of the inquiry. See id. at 954. If, at step four,

24 the claimant meets their burden of establishing an inability to perform past work, the

25 Commissioner must show that the claimant can perform some other work that exists

26 in “significant numbers” in the national economy, taking into account the claimant’s

27 residual functional capacity (“RFC”), age, education, and work experience. Tackett,

28 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1),

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2 expert (“VE”) or by reference to the Medical-Vocational Guidelines appearing in 20

3 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the Grids”).

4 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has

5 both exertional (strength-related) and non-exertional limitations, the Grids are

6 inapplicable and the ALJ must take the testimony of a VE. See Moore v. Apfel, 216

7 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th

8 Cir. 1988)).

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10 IV.

11 THE ALJ’S DECISION

12 The ALJ employed the five-step sequential evaluation process and concluded

13 that Plaintiff was not disabled within the meaning of the Social Security Act through

14 Plaintiff’s date last insured. (Dkt. 6-3 at 23-33.) At step one, the ALJ found that

15 Plaintiff had not engaged in substantial gainful activity from her alleged onset date

16 of August 1, 2008 through her date last insured of December 31, 2013. (Id. at 26.)

17 At step two, the ALJ found that, through the date last insured, Plaintiff had the

18 following severe impairments: degenerative disc disease of the lumbar spine and

19 obesity. (Id.) At step three, the ALJ determined that, through the date last insured,

20 Plaintiff did not have an impairment or combination of impairments that met or

21 medically equaled the severity of any of the listings in the regulations. (Id.)

22 The ALJ assessed Plaintiff’s RFC through the date last insured and concluded

23 that she could perform “light work as defined in 20 CFR 404.1567(b) except

24 [Plaintiff] can stand and/or walk 6 hours in an 8 hour workday; sit 6 hours in an 8

25 hour workday; never climb ladder/rope/scaffolds; only frequently perform other

26 postural activity; and can never work around unprotected heights, dangerous

27 machinery, or similar workplace hazards.” (Id. at 28 (bold omitted).) The ALJ

28 found that Plaintiff’s “medically determinable impairments could reasonably be

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2 concerning the intensity, persistence and limiting effects of these symptoms [were]

3 not entirely consistent with the medical evidence and other evidence in the record

4 for the reasons explained” in the ALJ’s decision. (Id. at 29.)

5 At step four, the ALJ found that Plaintiff could perform her past relevant

6 work of as an office manager. (Id. at 33 (bold omitted ).) Accordingly, the ALJ

7 found that Plaintiff had not been under a disability as defined by the Act from

8 August 1, 2008, the alleged onset date, through December 31, 2013, the date last

9 insured. (Id. at 33.)

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11 V.

12 STANDARD OF REVIEW

13 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

14 decision to deny benefits. The court may set aside the Commissioner’s decision

15 when the ALJ’s findings are based on legal error or are not supported by substantial

16 evidence in the record as a whole. See Garrison v. Colvin, 759 F.3d 995 (9th Cir.

17 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir.

18 2006)); Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett,

19 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair

20 v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

21 “Substantial evidence is more than a scintilla, but less than a preponderance.”

22 Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.

23 1997)). It is “relevant evidence which a reasonable person might accept as adequate

24 to support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at

25 1279). To determine whether substantial evidence supports a finding, the court must

26 “consider the record as a whole, weighing both evidence that supports and evidence

27 that detracts from the [Commissioner’s] conclusion.” Aukland, 257 F.3d at 1035

28 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can

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2 substitute its judgment for that of the Commissioner. See Reddick, 157 F.3d at 720-

3 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

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5 VI.

6 DISCUSSION

7 Plaintiff raises four issues for review: (1) whether the ALJ properly evaluated

8 the medical opinion evidence; (2) whether the ALJ’s decision was supported by

9 substantial evidence in light of new and material evidence submitted to the Appeals

10 Council; (3) whether the ALJ properly evaluated Plaintiff’s subjective symptom

11 testimony; and (4) whether the ALJ erred in formulating the RFC. (Dkt. 12 at 13.)

12 For the reasons set forth below, the Court AFFIRMS the decision of the

13 Commissioner.

14 A. The Court Finds No Basis For Remand In The ALJ’s Evaluation Of The

15 Medical Opinion Evidence.

16 In her first ground for relief, Plaintiff contends that the ALJ erred in the

17 evaluation of the medical opinion evidence. (Dkt. 12 at 14.) Specifically, Plaintiff

18 argues that the ALJ failed to properly evaluate the opinions of chiropractors Spunt

19 and Manfre using the standards applicable to medical opinion evidence. (Id. at 14-

20 15.) Further, Plaintiff argues that the ALJ erred in evaluating a 2019 letter from

21 Plaintiff’s rheumatologist Dr. Singh, and erred in evaluating the opinion of medical

22 advisor Dr. Nickerson Geneve. (Id. at 17-18.)

23 1. Legal Standard.

24 “When determining whether a claimant is eligible for benefits, an ALJ need

25 not take every medical opinion at face value.” Cross v. O’Malley, 89 F.4th 1211,

26 1213 (9th Cir. 2024) (internal quotation marks omitted). Instead, “the ALJ must

27 scrutinize the various—often conflicting—medical opinions to determine how much

28 weight to afford each opinion.” Id. For applications filed on or after March 27,

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2 opinions,” but instead “must explain how persuasive they find the medical opinion

3 by expressly considering the two most important factors for evaluating such

4 opinions: supportability and consistency.” Id. (internal quotation marks omitted,

5 emphasis added).

6 An ALJ cannot reject a medical source’s opinion without providing an

7 explanation supported by substantial evidence. See Woods v. Kijakazi, 32 F.4th

8 785, 792 (9th Cir. 2022). Supportability means the extent to which a medical source

9 supports the medical opinion by explaining the “relevant . . . objective medical

10 evidence.” Id. at 791-92 (citing 20 C.F.R. § 404.1520c(c)(1)). Consistency means

11 the extent to which a medical opinion is “consistent . . . with the evidence from

12 other medical sources and nonmedical sources in the claim.” Id. at 792 (citing 20

13 C.F.R. § 404.1520c(c)(2)). The ALJ’s articulation of persuasiveness must show the

14 grounds actually relied upon for the final decision. See Lambert v. Saul, 980 F.3d

15 1266, 1277 (9th Cir. 2020).

16 2. The ALJ Was Not Required To Evaluate The Opinions of

17 Chiropractors Spunt And Manfre Under The Standard Applicable

18 To Medical Opinion Evidence.

19 Plaintiff argues that the ALJ failed to properly evaluate the opinions of

20 chiropractors Spunt and Manfre using the supportability and consistency standards

21 in 20 C.F.R. § 404.1520c for the evaluation of medical opinion evidence, and failed

22 to discuss these factors in rejecting the chiropractors’ opinions. (Dkt. 12 at 14-15.)

23 Plaintiff argues that the ALJ failed to acknowledge the consistency between the

24 opinion of Chiropractor Manfre and the opinion of Chiropractor Spunt. (Id.)

25 Further, Plaintiff argues that the ALJ failed to discuss the consistency of these

26 providers’ opinions with the overall record. (Id. at 15-16.) Finally, Plaintiff

27 contends that the ALJ failed to discuss the consistency between the opinions of

28 Spunt and Manfre with Plaintiff’s testimony at the hearing. (Id. at 16.)

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2 qualified specialists are considered acceptable medical sources. See 20 C.F.R. §

3 404.1502. Chiropractors are not acceptable medical sources. Id. In her Reply,

4 Plaintiff argues that chiropractors are “other medical sources” under 20 C.F.R. §

5 404.1513. However, this language is only present in the version of the regulation

6 effective until March 27, 2017. Compare 20 C.F.R. § 404.1513 (effective

7 September 3, 2013 to March 26, 2017), with 20 C.F.R. § 404.1513 (effective March

8 27, 2017).4 Regardless, the Court notes that under the prior version of regulation, an

9 ALJ was only required to give germane reasons to discredit a chiropractor’s opinion.

10 See, e.g., Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (discussing the

11 prior version of the regulation).

12 In March of this year, the Ninth Circuit issued an opinion overruling the line

13 of cases requiring “germane reasons” for rejecting this type of evidence. See

14 Hudnall v. Dudek, 130 F.4th 668, 669 (9th Cir. 2025). That opinion was

15 subsequently vacated and withdrawn. See Hudnall v. Dudek, 133 F.4th 968 (9th

16 Cir. 2025). On May 13, 2025, the Ninth Circuit issued a new opinion explicitly

17 declining to address the issue of whether the germane reasons standard has been

18 overruled by the revised regulations. Hudnall v. Dudek, No. 23-3727, 2025 WL

19 1379101, at *2 (9th Cir. May 13, 2025) (“In light of those revised regulations, the

20 Government argues, our court’s precedent requiring that an ALJ give a ‘germane

21 reason[]’ for rejecting lay testimony should be overruled . . . We need not decide

22 whether those regulations constitute ‘intervening higher authority’ that is ‘clearly

23 irreconcilable’ with our precedent.”).

24 Regardless, the Court notes that even assuming the “germane reasons”

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4 The comments to the revised regulations show that the Social Security

27 Administration specifically declined to include chiropractors as other medical

sources. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

28 FR 5844-01, 2017 WL 168819, at *5846-47 (Jan. 18, 2017).

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2 chiropractors’ opinions. “The ‘germane reasons’ requirement is not onerous” and in

3 rejecting the chiropractors’ opinions, the ALJ did not need to “follow the same rules

4 that apply to medical sources.” Id. at *3 (Graber, concurring). Rather, in rejecting

5 the chiropractors’ opinions, it was “sufficient for the ALJ to state, for example, that

6 ‘the [chiropractors] were not credible,’” or that the ALJ found “medical testimony

7 more persuasive.” Id. Here, the ALJ found that the chiropractors’ notes “provide[d]

8 little probative value,” because they failed to “note any objective exam findings or

9 articulate function-by-function assessment of the claimant’s workplace limitations.”

10 (Dkt. 6-3 at 30-31 (“Manfre still failed to provide a scintilla of clinical evidence in

11 support of his opinion. He merely claimed [that Plaintiff] had restricted ranges of

12 motion before articulating [Plaintiff’s] treatment plan and her more recent

13 diagnosis.”).) Accordingly, the ALJ’s treatment of the chiropractors’ opinions does

14 not merit remand.

15 3. The ALJ Was Not Required To Evaluate Dr. Singh’s Letter As A

16 Medical Opinion.

17 Under a 20 C.F.R. § 404.1513(a)(2), a “medical opinion” is a “statement from

18 a medical source about what [the claimant] can still do despite [her] impairment(s)

19 and whether [she has] one or more impairment-related limitations or restrictions” in

20 various work-related functional areas. 20 C.F.R. § 404.1513(a)(2). Plaintiff points

21 to a letter from August of 2019 in which Plaintiff argues that Dr. Singh opined that a

22 2010 CT exam proved that Plaintiff’s ankylosing spondylitis diagnosis went back to

23 2010. (Dkt. 12 at 17 (citing Dkt. 6-8 at 361).) The entirety of Dr. Singh’s “opinion”

24 in that letter is excerpted below:

25 “Ms. Ortiz has evidence of sacroiliitis noted initially on a CT scan of the

26 abdomen and pelvis in 2015. This finding would be consistent with the

27 diagnosis of ankylosing spondylitis, however the official diagnosis was not

28 made until 2019 at the time she became my patient. The finding on the CT

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2 to 2010. Ankylosing spondylitis is an inflammatory arthritis of the spine

3 which typically presents his chronic back pain before the age of 45. He [sic]

4 can be associated with one or more articular and periarticular extraspinal

5 features including synovitis, enthesitis, dactylitis. Multiple joints can be

6 involved. Patients can also have uveitis, psoriasis or inflammatory bowel

7 disease (ulcerative colitis or Crohn’s disease).”

8 (Dkt. 6-8 at 361.)

9 The ALJ did not find Dr. Singh’s “opinion” persuasive because: (1) Dr. Singh

10 did not treat Plaintiff in 2010 or prior to the date last insured; (2) Dr. Singh did not

11 have firsthand knowledge of Plaintiff’s condition prior to December 31, 2013; and

12 (3) Dr. Singh based this opinion entirely on one imaging scan, without sufficient,

13 objective, or longitudinal treatment evidence. (Dkt. 6-3 at 31.)

14 Defendant is correct in arguing that this letter does not amount to a medical

15 opinion under 20 C.F.R. § 404.1513(a)(2). The letter does not contain a statement

16 regarding what Plaintiff can still do despite her impairment. (Dkt. 6-8 at 361.) The

17 letter also does not address whether Plaintiff had one or more impairment-related

18 limitations or restrictions during the relevant period through December 13, 2013, the

19 date last insured. (Id.) Rather, the letter appears to speculate that “[t]he finding on

20 the CT scan in 2010 suggests that the diagnosis of ankylosing spondylitis goes back

21 to 2010.” (Dkt. 6-3 at 31) (emphasis added). Dr. Singh then provides what appears

22 to be general information regarding the course of illness for ankylosing spondylitis,

23 rather than as to Plaintiff specifically. (See Dkt. 6-8 at 361.) Accordingly, the one

24 paragraph letter cited by Plaintiff does not amount to a medical opinion under the

25 applicable regulations, and therefore the ALJ’s consideration of the letter was not

26 improper.

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2 Geneve’s Opinion.

3 In cases where the “medical evidence is not definite concerning the onset date

4 and medical inferences need to be made, SSR 83–20 requires the administrative law

5 judge to call upon the services of a medical advisor and to obtain all evidence which

6 is available to make the determination.” Armstrong v. Comm’r of Soc. Sec. Admin.,

7 160 F.3d 587, 590 (9th Cir. 1998); DeClements v. Astrue, 365 F. App’x 842, 843

8 (9th Cir. 2010) (“We cannot determine from this record the date DeClements

9 became disabled . . .Under similar circumstances, we have interpreted Social

10 Security Regulation 83–20 to require that the ALJ may not draw medical inferences

11 alone but must call upon the services of a medical advisor to review the medical

12 record and determine the correct onset date.”).

13 Here, the date of Plaintiff’s ankylosing spondylitis was uncertain and

14 therefore, the ALJ called medical advisor Dr. Nickerson Geneve as a witness to

15 review Plaintiff’s objective medical evidence. (See Dkt 6-3 at 43-56.) Plaintiff

16 contends that the ALJ “failed to acknowledge the consistencies between Dr. Singh’s

17 opinion and the testimony of Dr. Geneve,” “failed to acknowledge that Dr. Geneve

18 testified that he did not have any specific experience with rheumatology,” and failed

19 to acknowledge that Dr. Geneve did not have the opportunity to review Dr. Singh’s

20 opinion letter. (Dkt. 12 at 17-18.)

21 The Court concludes that the ALJ sufficiently evaluated Dr. Geneve’s opinion

22 using the most important factors, supportability and consistency. See Cross, 89

23 F.4th at 1213. First, the ALJ found Dr. Geneve’s opinion “supported by the

24 minimal treatment record during the insured period, which established few clinical

25 findings, normal motor strength, intact sensation, negative straight leg raises, and

26 mild degenerative lumbar changes.” (Dkt. 6-3 at 32.) Further, the ALJ found Dr.

27 Geneve’s opinion consistent “with the absence of follow-up treatment or any

28 consistent medical treatment for many years following the insured period,”

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2 Plaintiff’s testimony that she was able to care for a young child. (Id.)

3 Plaintiff cites no caselaw to support the argument that the ALJ committed

4 legal error by failing “to acknowledge that Dr. Geneve testified that he did not have

5 any specific experience with rheumatology.” (Dkt. 12 at 18.) To the contrary, the

6 Court notes that once an ALJ has addressed the supportability and consistency

7 factors, the ALJ “may discuss other factors, such as the medical source’s

8 ‘relationship with the claimant’ or ‘specialization,’ but generally has no obligation

9 to do so.” Cross, 89 F.4th at 1214 (citing 20 C.F.R. § 416.920c(b)(2)); see also 20

10 C.F.R. § 404.1520c(b)(2) (“We may, but are not required to, explain how we

11 considered the factors in paragraphs (c)(3) through (c)(5) of this section, as

12 appropriate.” (emphasis added)). Thus, the Court finds no basis for remand with

13 respect to the ALJ’s evaluation of Dr. Geneve’s testimony.5

14 B. The New Evidence Submitted To The Appeals Council Does Not Render

15 The ALJ’s Decision Unsupported By Substantial Evidence.

16 In her second ground for relief, Plaintiff argues that new and material

17 evidence, considered and rejected by the Appeals Council, renders the ALJ decision

18 unsupported by substantial evidence. (Dkt. 12 at 19-20.) Specifically, Plaintiff

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5 Plaintiff also makes cursory mention of the fact that the ALJ found the

21 opinions of state agency physicians Ross and Sin partially persuasive, but “did not

address the factors of consistency or supportability in making this finding as

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required by 20 CFR § 404.1520c.” (Dkt. 12 at 18.) However, Plaintiff does not

23 argue that this finding was harmful. In the absence of any such argument, the Court

declines to supply one. Further, the Court finds that any error in evaluating the

24 opinions of the state agency physicians was harmless because Plaintiff failed to

supply “sufficient, objective evidence to support the existence, let alone the severity,

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of [an ankylosing spondylosis diagnosis] prior to the date last insured.” (Dkt. 6-3 at

26 26.) Accordingly, any error in evaluating the state agency physicians’ opinions was

harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“[T]he

27 court will not reverse an ALJ’s decision for harmless error, which exists when it is

clear from the record that the ALJ’s error was inconsequential to the ultimate

28 nondisability determination.”).

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2 opinion unsupported by substantial evidence. (Id.)

3 1. Legal Standard.

4 A party seeking a remand for consideration of additional evidence under 42

5 U.S.C. § 405(g) must demonstrate that (1) the evidence is material, and (2) there

6 was good cause for the failure to incorporate the evidence into the record during the

7 prior proceeding. See 42 U.S.C. § 405(g); Bruton v. Massanari, 268 F.3d 824, 827

8 (9th Cir. 2001). However, the “new and material evidence” standard in section

9 405(g) “applies only to new evidence that is not part of the administrative record

10 and is presented in the first instance to the district court.” Brewes v. Comm’r of

11 Social Sec. Admin., 682 F.3d 1157, 1164 (9th Cir. 2012) (emphasis added).

12 “[E]vidence submitted to and considered by the Appeals Council is not new but

13 rather is part of the administrative record properly before the district court.” Id.

14 The district court must therefore consider such evidence “in determining whether

15 the Commissioner’s decision is supported by substantial evidence.” Id. at 1160.

16 2. Dr. Singh’s Retrospective Opinion.

17 After the ALJ’s unfavorable decision, Plaintiff submitted a “retrospective”

18 medical opinion from Dr. Singh to the Appeals Council. (Dkt. 6-3 at 16-19.) The

19 Appeals Council considered this evidence and made it a part of the Administrative

20 Record. (Id. at 2-5). However, the Appeals Council determined that the

21 retrospective opinion would not change the outcome of the ALJ’s decision. (Id. at

22 2-5). In his “retrospective” opinion, Dr. Singh opined that Plaintiff had ankylosing

23 spondylitis, and that Plaintiff had a demonstrated history of back, hip, or neck pain

24 consistent with ankylosing spondylitis as of December 31, 2013. (Id. at 17.) When

25 asked if Plaintiff’s early signs of ankylosing spondylitis were present prior to

26 December 31, 2013, Dr. Singh checked the box stating “Yes,” but then wrote

27 “unknown to me for sure because I didn’t meet [Plaintiff] until 2019 . . . patient

28 states yes.” (Id.) When asked if Plaintiff had ankylosing spondylitis bowel

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2 wrote “unknown to me for sure since I didn’t meet her until 2019 . . . patient states

3 yes.” (Id.) When asked about ankylosing spondylitis symptoms including eye pain,

4 blurred, vision, sensitivity to light, and rib pain and whether these symptoms were

5 present prior to December 31, 2023, Dr. Singh declined to answer yes or no but

6 wrote “per PCP notes 2010.” (Id.)

7 When asked to indicate, based on her best medical opinion, “the beginning of

8 [Plaintiff’s] ankylosing spondylitis,” Dr. Singh wrote “2015 is when CT scan shows

9 concrete evidence . . . so prior to 2015.” (Id.) Further, Dr. Singh wrote “I see

10 changes in 2015 – unclear how long prior it began.” (Id.) When asked whether, in

11 her medical opinion, whether the pain of Plaintiff’s ankylosing spondylitis would

12 cause Plaintiff to miss work some days per month prior to December 31, 2023, Dr.

13 Singh wrote “unknown to me.” (Id. at 18.) When asked how long, based on

14 Plaintiff’s history and medical records, did Plaintiff experience periods of intense

15 pain prior to December 31, 2013, Dr. Singh wrote “unknown to me as I began

16 seeing her in 2019.” (Id.) When asked how long, based on Plaintiff’s history and

17 medical records, would Plaintiff have needed to shift positions from sitting to

18 standing and or walking prior to December 31, 2023, Dr. Singh stated “unknown to

19 me.” (Id. at 19.) When asked to indicate, based on Plaintiff’s history and review of

20 Plaintiff’s medical records, what Plaintiff’s capacity to sit at one time, stand at one

21 time, walk at one time, sit cumulatively in an 8-hour day, stand cumulatively in an

22 8-hour day, and walk cumulatively in an 8-hour day, Dr. Singh wrote that she

23 “[could not] answer these questions.” (Id.) When asked when she believed

24 Plaintiff’s ankylosing spondylitis was present, Dr. Singh wrote “back pain reported

25 to PCP Dr. Alam 12/30/2010.”

26 3. Analysis.

27 The Ninth Circuit has explained that medical evidence “submitted to the

28 Appeals Council does not affect the ALJ’s disability determination and does not

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2 retroactive to that period, and therefore would not reasonably affect the ALJ’s

3 decision.” Petersen v. Berryhill, 737 F. App’x 329, 332 (9th Cir. 2018). Here, Dr.

4 Singh seemed distinctly unwilling to opine about Plaintiff’s condition prior to

5 December 31, 2013 in her “retrospective” opinion. (See, e.g., Dkt 6-3 at 17

6 (“unknown to me for sure because I didn’t meet [Plaintiff] until 2019 . . . patient

7 states yes”); id. (“I see changes in 2015 – unclear how long prior it began”); id. at 18

8 (“unknown to me as I began seeing her in 2019”).) When Dr. Singh did opine about

9 the date Plaintiff’s ankylosing spondylosis began, she refused to definitively state

10 that it began prior to Plaintiff’s date last insured. (Id.)

11 Accordingly, the Court concludes that remand is not warranted based on Dr.

12 Sign’s retrospective opinion because the new evidence post-dates the period under

13 review, the evidence is distinctly non-retroactive in nature, and nothing in the new

14 evidence would reasonably affect the ALJ’s decision.

15 C. The ALJ Properly Evaluated Plaintiff’s Subjective Symptom Testimony.

16 In Plaintiff’s third ground for relief, Plaintiff asserts that the ALJ “failed to

17 identify any specific inconsistencies between Plaintiff’s testimony and the medical

18 evidence.” (Dkt. 12 at 24.) Further, Plaintiff argues that the ALJ failed to provide

19 analysis to explain the rejection of Plaintiff’s testimony. (Id.) Finally, Plaintiff

20 contends that the ALJ failed to identify the specific testimony which the ALJ found

21 not credible or explain what evidence undermined that testimony. (Id.)

22 1. Legal Standard.

23 When assessing a claimant’s credibility regarding subjective pain or intensity

24 of symptoms, the ALJ must engage in a two-step analysis. See Trevizo v. Berryhill,

25 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine if there is medical

26 evidence of an impairment that could reasonably produce the symptoms alleged.

27 See Garrison, 759 F.3d at 1014. “In this analysis, the claimant is not required to

28 show that her impairment could reasonably be expected to cause the severity of the

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2 some degree of the symptom.” Id. “Nor must a claimant produce objective medical

3 evidence of the pain or fatigue itself, or the severity thereof.” Id. (internal quotation

4 marks omitted).

5 If the claimant satisfies this first step, and there is no evidence of malingering,

6 the ALJ must provide specific, clear and convincing reasons for rejecting the

7 claimant’s testimony about the symptom severity. See Trevizo, 871 F.3d at 678; see

8 also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the claimant’s testimony

9 regarding the severity of her symptoms only if he makes specific findings stating

10 clear and convincing reasons for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d

11 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on

12 affirmative evidence thereof, he or she may only find an applicant not credible by

13 making specific findings as to credibility and stating clear and convincing reasons

14 for each.”).

15 In discrediting the claimant’s subjective symptom testimony, the ALJ may

16 consider the following:

17 (1) ordinary techniques of credibility evaluation, such as

the claimant’s reputation for lying, prior inconsistent

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statements concerning the symptoms, and other

19 testimony by the claimant that appears less than candid;

(2) unexplained or inadequately explained failure to seek

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treatment or to follow a prescribed course of treatment;

21 and (3) the claimant’s daily activities.

22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal quotation marks

23 omitted). Inconsistencies between a claimant’s testimony and conduct, or internal

24 contradictions in the claimant’s testimony, also may be relevant. See Burrell v.

25 Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d

26 789, 792 (9th Cir. 1997). In addition, the ALJ may consider the observations of

27 treating and examining physicians regarding, among other matters, the functional

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2 accord Burrell, 775 F.3d at 1137. However, it is improper for an ALJ to reject

3 subjective testimony based “solely” on its inconsistencies with the objective medical

4 evidence presented. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th

5 Cir. 2009) (internal quotation marks omitted).

6 Further, the ALJ must make a credibility determination with findings that are

7 “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily

8 discredit claimant’s testimony.” Tommasetti, 533 F.3d at 1039; see Brown-Hunter

9 v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding that a claimant’s testimony

10 is not credible must be sufficiently specific to allow a reviewing court to conclude

11 the adjudicator rejected the claimant’s testimony on permissible grounds and did not

12 arbitrarily discredit a claimant’s testimony regarding pain.” (internal quotation

13 marks omitted)).” The ALJ must identify “what testimony is not credible and what

14 evidence undermines the claimant’s complaints.” Brown-Hunter, 806 F.3d at 493.

15 Although an ALJ’s interpretation of a claimant’s testimony may not be the only

16 reasonable one, if it is supported by substantial evidence, “it is not [the court’s] role

17 to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

18 2. Plaintiff’s Subjective Symptom Testimony.

19 Plaintiff testified that prior to giving birth in December of 2013, she

20 experienced back pain and struggled to complete daily activities. (Dkt. 6-3 at 59-

21 60.) Plaintiff testified that she was unable to kneel to bathe her child or play with

22 her child on the floor, and could not bend to put her child in a crib. (Id.) Plaintiff

23 also testified that her pain prevented her from shopping, and that therefore she

24 would give her older children money to make purchases while she waited in the car.

25 (Id. at 60.) Plaintiff testified that she was able to drive locally. (Id. at 63.) Plaintiff

26 was able to lift her child, but had trouble bending over. (Id.) Plaintiff testified that

27 she was unable to sit all day due to orthopedic pain. (Id. at 63-63.) Plaintiff treated

28 her pain with Epson salt baths, ice packs, and Ibuprofen. (Id. at 69.)

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2 After considering the evidence, the ALJ found that Plaintiff’s “medically

3 determinable impairments could reasonably be expected to cause the alleged

4 symptoms; however, the [Plaintiff’s] statements concerning the intensity,

5 persistence and limiting effects of these symptoms [were] not entirely consistent

6 with the medical evidence and other evidence in the record for the reasons explained

7 in [the ALJ’s] decision.” (Id. at 29.) Thus, because the ALJ determined that there

8 was medical evidence of an impairment that could reasonably produce the

9 symptoms Plaintiff alleged, and because the ALJ did not make a finding of

10 malingering, the ALJ was required to provide specific, clear and convincing reasons

11 for rejecting Plaintiff’s subjective symptom testimony. See Trevizo, 871 F.3d at

12 678.

13 The ALJ considered Plaintiff’s testimony regarding disabling pain, but

14 discounted this testimony based on inconsistencies with the objective medical

15 evidence, Plaintiff’s inadequately explained failure to seek treatment, and Plaintiff’s

16 history of conservative treatment, when treatment was obtained. (Id. at 29-31.)

17 Specifically, the ALJ cited objective medical evidence that undermined Plaintiff’s

18 allegations of disabling pain including an October 2009 x-ray revealing

19 straightening of the normal cervical lordosis but otherwise unremarkable soft tissues

20 of the neck, (id. at 29 (citing Dkt. 6-8 at 216)); an August 2010 abdominal and

21 pelvic CT scan showing mild asymmetric soft tissue attenuation in the posterior

22 aspect of the left ischiorectal fossa suggesting infectious or inflammatory process

23 but otherwise unremarkable findings, (Dkt. 6-3 at 29-30 (citing Dkt. 6-8 at 5-6));

24 and an office note from chiropractor Robert Sprunt stating Plaintiff could return to

25 work in November 2010, (Dkt. 6-3 at 30 (citing Dkt. 6-8 at 2)). The ALJ also cited

26 records from Facey Medical Group in December 2010 which stated that Plaintiff

27 experienced “on and off” back pain; that her neurological exam was within normal

28 limits; that she had no spinal tenderness or paraspinal muscle spasms; that her

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2 30 (citing Dkt. 6-8 at 352).) Additionally, the ALJ cited a January 2011 MRI of the

3 lumbar spine which found a minimal diffuse posterior disk bulge at the L4-5 and

4 L5-S1 levels with minimal facet hypertrophy in the lower lumbosacral spine, and

5 otherwise normal findings. (Dkt. 6-3 at 30 (citing Dkt. 6-8 at 3-4).)

6 In addition to the inconsistencies between Plaintiff’s subjective complaints of

7 disabling pain and the objective medical evidence, the ALJ cited to Plaintiff’s

8 unexplained lack of treatment. (Dkt. 6-3 at 30.) In particular, the ALJ noted that

9 “[t]here were no records of follow-up treatment in 2011, 2012, or 2013,” nor did

10 Plaintiff supply records of “any supporting, objective clinical evidence through the

11 date last insured.” (Id.) Further, the ALJ noted that when Plaintiff did seek

12 treatment for her allegedly disabling pain, it was conservative treatment, including

13 chiropractic care and Advil PM. (Id. (citing Dkt. 6-8 at 352 “Patient is not

14 interested in any medications.”).) Finally, the ALJ noted that prior to December 31,

15 2013, Plaintiff testified that her daily activities included caring for a young child.

16 (Id. at 31.)

17 Plaintiff argues that the ALJ “failed to provide analysis to explain [her]

18 rejection of [Plaintiff’s] testimony.” (Dkt. 12 at 24.) Specifically, Plaintiff contends

19 that the ALJ “failed to identify the specific testimony which the ALJ found not

20 credible or explain what evidence undermined the testimony.” (Id. at 24-25 (citing

21 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)).)

22 Plaintiff argues that the ALJ committed legal error because the ALJ’s reasoning for

23 rejecting Plaintiff’s subjective symptom testimony must be “inferred.” (Dkt. 12 at

24 25.) The Court has reviewed the ALJ’s reasoning for rejecting Plaintiff’s subjective

25 symptom complaints and finds no such error.

26 In evaluating subjective symptom testimony, the ALJ was permitted to

27 consider inconsistencies between Plaintiff’s testimony and the objective medical

28 evidence, Plaintiff’s unexplained or inadequately explained failure to seek

1

2 F.3d at 1163; Burrell, 775 F.3d at 1137. The ALJ considered those factors here.

3 Further, the Court finds that the ALJ provided a detailed analysis of how

4 inconsistencies with the objective medical evidence, long gaps in Plaintiff’s

5 treatment history, a conservative course of treatment, and Plaintiff’s daily activities

6 prior to the date last insured, all undermined Plaintiff’s subjective complaints of

7 disabling pain, particularly disabling back pain. (Dkt. 6-3 at 29-30.) These amount

8 to specific, clear and convincing reasons for rejecting Plaintiff’s subjective

9 complaints. See Trevizo, 871 F.3d at 678. Thus, the Court finds no basis for

10 remand in the ALJ’s rejection of Plaintiff’s subjective symptom testimony.

11 D. The ALJ Did Not Err In Formulating The RFC.

12 In Plaintiff’s fourth and final ground for relief, Plaintiff contends that the ALJ

13 erred in formulating the RFC because the ALJ’s RFC assessment is inconsistent

14 with the opinion of chiropractor Manfre. (Dkt. 12 at 25.) Further, Plaintiff argues

15 that the ALJ erred by failing to account for Plaintiff’s chronic pain “documented in

16 Dr. Singh’s records which Dr. Singh opined existed prior to 2013.” (Id. at 25-26

17 (citing Dkt. 6-8 at 334, 361).) As explained above, chiropractor Manfre’s opinion is

18 not a medical opinion and therefore the ALJ did not err in formulating an RFC

19 which is purportedly inconsistent with chiropractor Manfre’s non-medical opinion.

20 The Court has examined the two pages of the record cited by Plaintiff in support of

21 her argument that the ALJ erred by failing to account for Plaintiff’s chronic pain as

22 “documented in Dr. Singh’s records which Dr. Singh opined existed prior to 2013.”

23 (Id.)

24 One of the records cited by Plaintiff in support of this contention is Dr.

25 Singh’s “retrospective” opinion which the Court has already found speculative, and

26 hardly shows that Plaintiff suffered from chronic pain prior to 2013. (See Dkt. 6-8

27 at 361.) The Court has reviewed the one other page cited by Plaintiff in support of

28 this argument, which is a progress note from April 24, 2019. (Dkt. 6-8 at 334.) The

1 || Court finds no evidence in this progress note to support the existence of Plaintiffs

2 || chronic pain existing prior to 2013. Accordingly, Plaintiff's arguments regarding

3 || the ALJ’s formulation of the RFC are without merit and the ALJ’s RFC formulation

4 || does not warrant remand.

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6 Vil.

7 ORDER

8 Consistent with the foregoing, IT IS ORDERED that Judgment be entered

9 || AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve

10 || copies of this Order and the Judgment on counsel for both parties.

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13 || DATED: May 21, 2025 Nok Pill

14 HONK\A. JOEL RICHLIN

UNITED STATES MAGISTRATE JUDGE

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