# Melynda Gionnette v. Kilolo Kijakazi

> District Court, C.D. California · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/9979464

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case 5:20-cv-00890-JC Document 18 Filed 03/29/22 Page 1 of 24 Page ID #:959

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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MELYNDA G.,1 Case No. 5:20-cv-00890-JC
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Plaintiff,
12 MEMORANDUM OPINION
v.
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[DOCKET NOS. 14, 15]
14 KILOLO KIJAKAZI, Acting
Commissioner of Social Security
15 Administration,
16 Defendant.
17
18 I. SUMMARY
19 On April 27, 2020, plaintiff filed a Complaint seeking review of the
20 Commissioner of Social Security’s denial of her application for benefits. The
21 parties have consented to proceed before the undersigned United States Magistrate
22 Judge.
23 This matter is before the Court on the parties’ cross-motions for summary
24 judgment (respectively, “Plaintiff’s Motion” and “Defendant’s Motion”). The
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27 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
28 Administration and Case Management of the Judicial Conference of the United States.
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1 Court has taken the parties’ arguments under submission without oral argument.
2 See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 3.
3 Based on the record as a whole and the applicable law, the decision of the
4 Commissioner is AFFIRMED. The findings of the Administrative Law Judge
5 (“ALJ”) are supported by substantial evidence and are free from material error.
6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
7 DECISION
8 On January 8, 2017, plaintiff protectively filed an application for Disability
9 Insurance Benefits, alleging disability beginning on January 28, 2016, due to
10 multiple sclerosis (or “MS”), broken left hip, and osteoporosis. (See
11 Administrative Record (“AR”) 21, 186-87, 221). An ALJ subsequently examined
12 the medical record and, on May 16, 2019, heard testimony from plaintiff (who was
13 represented by counsel), as well as plaintiff’s husband and a vocational expert.
14 (AR 34-85). On June 5, 2019, the ALJ determined that plaintiff was not disabled
15 between the alleged onset date of January 8, 2016, and the date last insured, June
16 30, 2016. (AR 21-29). Specifically, the ALJ found: (1) plaintiff’s multiple
17 sclerosis qualified as a severe impairment (AR 23); (2) plaintiff’s impairments,
18 considered individually or in combination, did not meet or medically equal a listed
19 impairment (AR 24); (3) plaintiff retained the residual functional capacity (or
20 “RFC”)2 to perform a reduced range of light work (20 C.F.R. § 404.1567(b))3 (AR
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2Residual functional capacity is what a claimant can still do despite existing exertional
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and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1).
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3The ALJ found that plaintiff (i) could lift and/or carry twenty pounds occasionally and
25 ten pounds frequently; (ii) could sit for six hours out of an eight-hour workday; (iii) could stand
or walk for two hours out of an eight-hour workday; (iv) could not climb ladders, ropes or
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scaffolds; (v) could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, or crawl;
27 (vi) could occasionally reach overhead with the non-dominant left upper extremity; and
(vii) needed to avoid concentrated exposure to extreme cold and heat, vibration, and hazards.
28 (AR 24).
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1 24); (4) plaintiff was capable of performing her past relevant work as an
2 accounting clerk (AR 28); and (5) plaintiff’s statements regarding the intensity,
3 persistence, and limiting effects of subjective symptoms were inconsistent with the
4 medical evidence and other evidence in the record (AR 25).
5 On April 6, 2020, the Appeals Council denied plaintiff’s application for
6 review of the ALJ’s decision. (AR 1-3).
7 III. APPLICABLE LEGAL STANDARDS
8 A. Administrative Evaluation of Disability Claims
9 To qualify for disability benefits, a claimant must show that she is unable
10 “to engage in any substantial gainful activity by reason of any medically
11 determinable physical or mental impairment which can be expected to result in
12 death or which has lasted or can be expected to last for a continuous period of not
13 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
14 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded
15 by regulation on other grounds; 20 C.F.R. § 404.1505(a). To be considered
16 disabled, a claimant must have an impairment of such severity that she is
17 incapable of performing work the claimant previously performed (“past relevant
18 work”) as well as any other “work which exists in the national economy.” Tackett
19 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
20 To assess whether a claimant is disabled, an ALJ is required to use the five-
21 step sequential evaluation process set forth in Social Security regulations. See
22 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
23 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
24 416.920). The claimant has the burden of proof at steps one through four – i.e.,
25 determination of whether the claimant was engaging in substantial gainful activity
26 (step 1), has a sufficiently severe impairment (step 2), has an impairment or
27 combination of impairments that meets or medically equals one of the conditions
28 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and
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1 || retains the residual functional capacity to perform past relevant work (step 4).
2 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
3 || Commissioner has the burden of proof at step five — 7.e., establishing that the
4 || claimant could perform other work in the national economy. Id.
5 B. ‘Federal Court Review of Social Security Disability Decisions
6 A federal court may set aside a denial of benefits only when the
7 || Commissioner’s “final decision” was “based on legal error or not supported by
8 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
9 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
10 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r
11 | of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation
12 | marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could
13 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at
14 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must
15 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec.
16 || Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if
17 || (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path
18 || may reasonably be discerned despite the error) (citation and quotation marks
19 || omitted).
20 Substantial evidence is “such relevant evidence as a reasonable mind might
21 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
22 || “substantial evidence” as “more than a mere scintilla, but less than a
23 || preponderance’”’) (citation and quotation marks omitted). When determining
24 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
25 || entire record as a whole, weighing both the evidence that supports and the
26 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.
27 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
28 | ///

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1 Federal courts review only the reasoning the ALJ provided, and may not
2 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
3 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
4 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
5 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
6 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
7 A reviewing court may not conclude that an error was harmless based on
8 || independent findings gleaned from the administrative record. Brown-Hunter, 806
9 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently
10 || conclude that an error was harmless, a remand for additional investigation or
11 |) explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
12 || (9th Cir. 2015) (citations omitted).
13 |} IV. DISCUSSION
14 Plaintiff claims that remand is warranted because (1) the ALJ improperly
15 | considered plaintiff's past relevant work; (2) the ALJ improperly rejected the
16 || medical opinion of treating neurologist Dr. Jeffrey Ries, D.O.; (3) the ALJ failed
17 || to give legally sufficient reasons to reject the testimony of plaintiff and her
18 || husband; (4) the ALJ improperly determined that plaintiff's condition worsened
19 || after her date last injured; and (5) the medical opinion of Dr. Pamela J. Harford
20 || submitted to the Appeals Council demonstrates a reasonable possibility of
21 || changing the outcome.* (See Plaintiff's Motion at 1-16). For the reasons stated
22 || below, the Court concludes that a reversal or remand is not warranted.
23 □ ///
24 |} —____
25 “This Court reviews Dr. Harford’s opinion as part of the administrative record on review
%6 because the Appeals Council considered it in deciding whether to review the ALJ’s decision.
See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]hen the
27 || Appeals Council considers new evidence in deciding whether to review a decision of the ALJ,
that evidence becomes part of the administrative record, which the district court must consider
28 || when reviewing the Commissioner’s final decision for substantial evidence.”).

Case 5:20-cv-00890-JC Document 18 Filed 03/29/22 Page 6 of 24 Page ID #:964

1 A. The ALJ Properly Found That Plaintiff Can Perform Past
2 Relevant Work
3 At step four, the ALJ must determine whether the claimant has the residual
4 functional capacity to perform the requirements of her past relevant work.
5 20 C.F.R. § 404.1520(f). Past relevant work is work that a claimant has “done
6 within the past 15 years, that was substantial gainful activity, and that lasted long
7 enough for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b). “Substantial
8 gainful activity” is defined as work activity that (1) involves doing significant
9 physical or mental activities (i.e., “substantial”) and (2) is usually done for pay or
10 profit, whether or not a profit is realized (i.e., “gainful”). 20 C.F.R.
11 § 404.1572(a)-(b). Generally, if an individual has earnings from employment or
12 self-employment above a specific level set out in the regulations,5 it is presumed
13 that she has demonstrated the ability to engage in substantial gainful activity.
14 20 C.F.R. § 404.1574. The regulations provide that a claimant’s past relevant
15 work will be considered substantial gainful activity when her earnings exceed
16 those listed in the guidelines. Id. Evidence of low earnings, on the other hand,
17 creates a presumption that the claimant has not engaged in substantial gainful
18 activity. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). This presumption
19 “shifts the step-four burden of proof from the claimant to the Commissioner.”6 Id.
20 ///
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5The current guidelines can be found at https://www.ssa.gov/oact/cola/sga.html. The
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applicable regulation, 20 C.F.R. § 404.1574, sets out substantial gainful activity law and
24 guidelines.
25 6When this latter presumption applies, the ALJ must “point[] to substantial evidence,
aside from earnings, that the claimant has engaged in substantial gainful activity.” Lewis, 236
26
F.3d at 515. Factors that may demonstrate substantial gainful activity despite low earnings
27 include “the nature of the claimant’s work, how well the claimant does the work, if the work is
done under special conditions, if the claimant is self-employed, and the amount of time the
28 claimant spends at work.” Id. at 515-16 (citing 20 C.F.R. §§ 404.1573, 416.973).
6
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1 Here, the ALJ ended the sequential inquiry at step four by finding that
2 plaintiff was not disabled because she could engage in her past relevant work as an
3 accounting clerk. (AR 28-29). The ALJ expressly found, “[b]ased on the
4 evidence of record,” that plaintiff’s accounting clerk position qualified as past
5 relevant work “because [plaintiff] performed it within 15 years of the date of th[e]
6 decision, for a sufficient length of time to learn and provide average performance,
7 and at the level of substantial gainful activity.” (AR 28).
8 As plaintiff points out, fifteen years prior to the date of the ALJ’s decision
9 was June 5, 2004, and plaintiff’s highest earnings during that period was in 2007,
10 when she worked as a data entry clerk at M&M Printed Bag, Inc., and earned a
11 total of $10,618, at an average of $884.83 per month. (AR 207; see AR 74, 195,
12 239, 277). In that year, according to the applicable guidelines, the minimum
13 earnings for substantial gainful activity was $900 per month. Plaintiff, therefore,
14 did not meet the minimum earnings within fifteen years of the date of the decision.
15 However, it is clear from the record that the ALJ’s finding at step four was
16 based on plaintiff’s work as an accounting clerk, which she performed within
17 fifteen years of her date last insured – i.e., the period from June 30, 2001 to June
18 30, 2016 – which was the relevant period for plaintiff’s disability insurance
19 benefits application, under title II of the Social Security Act, notwithstanding the
20 ALJ’s erroneous reference to “the date of th[e] decision.” (See AR 28 & n.3, 72-
21 74, 239, 243); SSR 82-62, 1982 WL 31386 (“In those title II cases in which the
22 claimant’s disability insured status was last met prior to adjudication, the work
23 performed for the 15-year period preceding the date the title II disability insured
24 status requirement was last met would generally be considered relevant, since the
25 claimant's capacity for SGA as of that date represents a critical disability issue.”)
26 (emphasis added). Plaintiff worked as an accounting clerk at Chino Valley
27 Medical Center (also referred to as “Veritas Health Services” or “CHC Payroll
28 Agent”), from 1993 to 2002. (See AR 72-74, 239, 243). In 2002 – within the
7
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| | relevant fifteen-year period — plaintiff earned $12,547.92, or an average of
2 || $1,045.66 per month (AR 194, 202), which is above the threshold earnings in the
3 | guidelines for that year ($780 per month).
4 Accordingly, the ALJ properly concluded that plaintiff's accounting clerk
5 || position qualified as past relevant work because she performed it within fifteen
6 || years of her date last insured, “for a sufficient length of time to learn and provide
7 || average performance, and at the level of substantial gainful activity.” (AR 28).
8 || Any misstatement by the ALJ on this issue is therefore harmless. See Treichler,
9 || 775 F.3d at 1099.
10 B. The ALJ Did Not Err in Considering Dr. Ries’s Medical Opinion
11 1. Pertinent Law
12 In Social Security cases, the amount of weight given to medical opinions
13 || generally varies depending on the type of medical professional who provided the
14 || opinions, namely “treating physicians,” “examining physicians,” and
15 | “nonexamining physicians.”” 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502,
16 || 404.1513(a); Garrison, 759 F.3d at 1012 (citation and quotation marks omitted).
17 || A treating physician’s opinion is generally given the most weight, and may be
18 || “controlling” if it is “well-supported by medically acceptable clinical and
19 || laboratory diagnostic techniques and is not inconsistent with the other substantial
20 || evidence in [the claimant’s] case record[.]” 20 C.F.R. §§ 404.1527(c)(2); Revels
21 || v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). In turn, an
22 || examining, but non-treating physician’s opinion is generally entitled to less weight
23
24 "Since plaintiff filed her application before March 27, 2017, 20 C.F.R. § 404.1527
25 || applies. For an application filed on or after March 27, 2017, 20 C.F.R. § 404.1520c would apply.
%6 20 CFR. § 404. 1520c changed how the Social Security Administration considers medical
opinions and prior administrative medical findings, eliminated the use of the term “treating
27 || source,” and eliminated deference to treating source medical opinions. See 20 C.F.R.
§ 404.1520c(a); Danny L.R. v. Saul, 2020 WL 264583, at *3 n. 5 (C.D. Cal. Jan. 17, 2020); see
28 || also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016).

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| || than a treating physician’s, but more weight than a nonexamining physician’s
2 || opinion. Garrison, 759 F.3d at 1012 (citation omitted).
3 An ALJ may provide “substantial evidence” for reyecting a medical opinion
4 || by “setting out a detailed and thorough summary of the facts and conflicting
5 | clinical evidence, stating his interpretation thereof, and making findings.”
6 || Garrison, 759 F.3d at 1012 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.
7 || 1998)) (quotation marks omitted). An ALJ must provide more than mere
8 || “conclusions” or “broad and vague” reasons for rejecting a treating or examining
9 || doctor’s opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)
10 |] (citation omitted). “[The ALJ] must set forth his own interpretations and explain
11 || why they, rather than the [doctor’s], are correct.” Embrey v. Bowen, 849 F.2d
12 | 418, 421-22 (9th Cir. 1988).
13 2. Analysis
14 Plaintiff contends that the ALJ improperly considered the opinion of Dr.
15 || Ries, who treated plaintiff at various intervals from 1996 to 2018. (Plaintiffs
16 || Motion at 3-6; see AR 514). Dr. Ries provided an assessment of plaintiff's
17 || limitations dated July 27, 2018. (AR 514-16). At that time, Dr. Ries’s last
18 || examination of plaintiff had occurred on March 5, 2018. (AR 514; see AR 524-
19 | 27). In his assessment, Dr. Ries diagnosed Plaintiff with multiple sclerosis,
20 || nicotine dependency, back pain, and gait disturbance, and he noted that she suffers
21 || from fatigue. (AR 514). He opined that plaintiff required unscheduled breaks to
22 || rest; could not sit or stand for six hours in an eight-hour period; could not lift
23 || frequently; could not use the hands or arms for grasping, pulling, pushing or fine
24 || manipulation for eight hours on a sustained basis; could not use her legs to pull or
25 || push frequently for eight hours on a sustained basis; required ready access to a
26 || restroom; and would be absent from work about twice a month. (AR 515-16).
27 The ALJ gave little weight to Dr. Ries’s opinion because it was “dated more
28 || than two years after [plaintiff's] date last insured,” and plaintiffs treatment

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1 records from around the date last insured did “not support such extreme functional
2 limitations.” (AR 28).
3 Plaintiff contends that the lateness of the opinion was not a valid basis to
4 reject it. (Plaintiff’s Motion at 3-4). However, opinions provided after the date
5 last insured may indeed be given less weight on this basis, particularly where such
6 opinions do not appear to concern the earlier period at issue. See Watkins v.
7 Astrue, 357 Fed. App’x 784, 786 (9th Cir. 2009) (affirming rejection of treating
8 physician’s opinion offered after claimant’s insured status expired where the
9 “questionnaire [was] written in the present tense” and “made no indication” it was
10 retroactive); Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996) (“The opinion of a
11 psychiatrist who examines the claimant after the expiration of his disability
12 insured status, however, is entitled to less weight than the opinion of a psychiatrist
13 who completed a contemporaneous exam.”). That is true here. There is nothing in
14 Dr. Ries’s opinion to suggest that it referred to the relevant period in 2016.
15 Moreover, the ALJ reasonably found that the medical evidence from around the
16 date last insured did not support the assessed limitations. (AR 28). As an
17 example, the ALJ pointed to Dr. Ries’s physical examinations in August 2016
18 which revealed reduced sensation in the feet and otherwise normal findings. (AR
19 28; see AR 402). At that time, Dr. Ries observed that plaintiff had a normal gait
20 and was able to stand without difficulty. (AR 26, 402). The ALJ also noted that
21 an October 2016 MRI of the brain revealed a clinical history of multiple sclerosis
22 with no abnormal enhancement or acute abnormality noted. (AR 25; see AR 366).
23 In addition, as the ALJ found, ample evidence in the record suggests that
24 plaintiff’s condition was stable until after the date last insured, when it began to
25 worsen significantly. (AR 26, 27). This includes plaintiff’s own reports to
26 treating providers that she “was stable for years” until October 2016 (AR 438),
27 which is also when she began using a cane (AR 436, 557). When Dr. Ries later
28 examined plaintiff on March 5, 2018, he noted that plaintiff arrived in a
10
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1 wheelchair, which was “the first time this has occurred.” (AR 524). Given this
2 evidence of significant worsening after the relevant period, it was especially
3 reasonable for the ALJ to reject opinions that appeared to be based on plaintiff’s
4 later, worsened condition.
5 Plaintiff argues that if the ALJ doubted whether Dr. Ries’s opinion referred
6 to the period at issue rather than when it was dated, the ALJ should have
7 developed the record by contacting Dr. Ries. (Plaintiff’s Motion at 4). However,
8 the record was sufficiently clear and developed for the ALJ to reasonably conclude
9 that Dr. Ries’s opinion did not describe plaintiff’s limitations during the relevant
10 period at issue. See Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir.
11 2008) (“The ALJ is the final arbiter with respect to resolving ambiguities in the
12 medical evidence”); see also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir.
13 2017) (“Where evidence is susceptible to more than one rational interpretation, it
14 is the ALJ’s conclusion that must be upheld.”). In these circumstances, the ALJ
15 was not obligated to develop the record further. See Mayes v. Massanarai, 276
16 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ’s duty to develop the record further is
17 triggered only when there is ambiguous evidence or when the record is inadequate
18 to allow for proper evaluation of the evidence.”).
19 Plaintiff also contends that the ALJ erred by rejecting Dr. Ries’s opinion as
20 “extreme.” (Plaintiff’s Motion at 4). Plaintiff submits that the ALJ could not
21 properly characterize the opinion as “extreme” when, in some respects, it did not
22 significantly differ from the ALJ’s own RFC assessment. (Plaintiff’s Motion at 4;
23 see AR 24, 515-16). However, even if the ALJ may have misused the term
24 “extreme” in this context, substantial evidence nonetheless supports the ALJ’s
25 finding that the limitations assessed by Dr. Ries overall are at least more severe
26 than those supported by the evidence in the record.
27 Finally, plaintiff argues that the ALJ’s rejection of Dr. Ries’s opinion was
28 inappropriate because “there is no reliable opinion to the contrary sufficient to
11
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1 refute” the opinion. (Plaintiff’s Motion at 5). That is incorrect. While the ALJ
2 gave little weight to Dr. Ries’s opinion, as well as the other opinions by treating
3 doctors – specifically, Dr. Allen Nielsen, M.D., and Dr. Randolph Kado, Ph.D.8 –
4 the ALJ gave some weight to the opinions of the state agency non-examining
5 medical consultants, who indicated plaintiff could lift and/or carry twenty pounds
6 occasionally and ten pounds frequently; could sit, stand, or walk for six hours; and
7 could occasionally reach overhead bilaterally, among other limitations. (AR 27,
8 93-95, 104-06). Although non-examining physicians’ opinions alone do not
9 constitute substantial evidence, they may “serve as substantial evidence when the
10 opinions are consistent with independent clinical findings or other evidence in the
11 record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citations
12 omitted). Here, the ALJ reasonably determined that the state agency assessments
13 were entitled to some weight because they were partly consistent with the medical
14 evidence in the record. To the extent that the ALJ rejected portions of these
15 opinions, substantial evidence supports these departures. For example, unlike the
16 state agency physicians, the ALJ limited plaintiff to only occasional overhead
17 reaching with the left upper extremity but found no limitation on the right because
18 plaintiff’s upper extremity fractures had no more than a minimal effect on her
19
20 8Dr. Nielsen submitted a letter on August 15, 2017, stating that plaintiff could not drive or
work on a computer due to visual impairments and could not leave her home due to fatigue. (AR
21
511). Dr. Kado, in a mental assessment dated January 3, 2019, opined that plaintiff was
22 moderately limited in understanding and carrying short and simple instructions; markedly limited
in remembering and carrying out detailed instructions; and markedly limited in maintaining
23 concentration, sustaining an ordinary routine without special supervision, performing activities
24 within a schedule, and maintaining regular attendance, among other limitations. (AR 518-22).
The ALJ gave little weight to these opinions because, as with Dr. Ries’s opinion, they were dated
25 more than two years after the date last insured. (AR 28). Moreover, the ALJ found that
plaintiff’s treatment records from around the date last insured did not support the extent of the
26
limitations assessed by Dr. Nielsen, and Dr. Kado did not appear familiar with plaintiff’s
27 condition prior to the date last insured, when plaintiff had not received any mental health
treatment. (AR 28). Plaintiff does not specifically challenge the ALJ’s assessment of these
28 opinions.
12
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1 ability to work and were generally resolved in less than twelve months. (AR 23,
2 27). The ALJ also found that a greater standing and walking limitation was
3 warranted due to plaintiff’s “subjective complaints of balance issues and the
4 objective findings of reduced sensation in the bilateral feet.” (AR 27; see AR 400-
5 02).
6 Accordingly, the ALJ’s assessment of Dr. Ries’s opinion was supported by
7 legally sufficient reasons and substantial evidence in the record.9
8 C. The ALJ Did Not Err in Discounting Plaintiff’s Statements and
9 the Third Party Testimony
10 1. Pertinent Law
11 a. ALJ Assessment of Claimant Statements
12 When determining disability, an ALJ is required to consider a claimant’s
13 impairment-related pain and other subjective symptoms at each step of the
14 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when
15 a claimant presents “objective medical evidence of an underlying impairment
16 which might reasonably produce the pain or other symptoms [the claimant]
17 alleged,” the ALJ is required to determine the extent to which the claimant’s
18 statements regarding the intensity, persistence, and limiting effects of his or her
19 subjective symptoms (“subjective statements” or “subjective complaints”) are
20 consistent with the record evidence as a whole and, consequently, whether any of
21 the individual’s symptom-related functional limitations and restrictions are likely
22 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R.
23
24
25 9In reaching the conclusion, the Court has also considered the assessment of Dr. Harford,
dated July 29, 2019, that was not before the ALJ but was submitted to the Appeals Council. (See
26
AR 7-10). Although Dr. Harford’s opinion, unlike that of Dr. Ries, does purport to apply to the
27 period beginning on January 15, 2016 (see AR 7), it does not warrant a different conclusion here
because, similar to Dr. Ries’s opinion, it is not supported by the medical evidence from around
28 the relevant period, as discussed further below.
13
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1 || §§ 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304, at *4-10.'° When an
2 || individual’s subjective statements are inconsistent with other evidence in the
3 || record, an ALJ may give less weight to such statements and, in turn, find that the
4 || individual’s symptoms are less likely to reduce the claimant’s capacity to perform
5 || work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases,
6 || when there is no affirmative finding of malingering, an ALJ may “reject” or give
7 || less weight to the individual’s subjective statements “only by providing specific,
8 || clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89.
9 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The
10 || clear and convincing standard is the most demanding required in Social Security
11 || cases.’’) (citation and quotation marks omitted).
12 An ALJ’s decision “must contain specific reasons” supported by substantial
13 || evidence in the record for giving less weight to a claimant’s statements. SSR 16-
14 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
15 || statement being rejected and the particular evidence in the record which
16 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation
17 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s
18 || reasons for rejecting a claimant’s testimony must be “clear and convincing.”
19 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks
20 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]”
21 | Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
22 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
23 || supported by substantial evidence, it is not the court’s role to second-guess it. See
24
25
%6 “Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the
term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective
27 || symptom evaluation is not an examination of an individual’s [overall character or truthfulness]
... [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See
28 || SSR 16-3p, 2017 WL 5180304, at *1-2, *10-11.
14

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1 || Thomas, 278 F.3d at 959 (9th Cir. 2002) (citation omitted). When an ALJ fails
2 || properly to discuss a claimant’s subjective complaints, however, the error may not
3 || be considered harmless “unless [the Court] can confidently conclude that no
4 || reasonable ALJ, when fully crediting the testimony, could have reached a different
5 || disability determination.” Stout, 454 F.3d at 1056; see also Brown-Hunter, 806
6 | F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting claimant
7 || testimony “will usually not be harmless’”’).
8 b. ALJ Assessment of Lay Witness Statements
9 In assessing disability, an ALJ must account for testimony and written
10 || statements from lay witnesses concerning a claimant’s symptoms or how an
11 || impairment affects the claimant’s ability to work (collectively “lay evidence’).
12 || Stout, 454 F.3d at 1053 (citing, in part, Dodrill v. Shalala, 12 F.3d 915, 919 (9th
13 || Cir. 1993)); see also 20 C.F.R. §§ 404.1513(d)(4) & (e). Such competent lay
14 || evidence “cannot be disregarded without comment.” Tobeler v. Colvin, 749 F.3d
15 | 830, 834 (9th Cir. 2014) (citing, in part, Nguyen v. Chater, 100 F.3d 1462, 1467
16 || (9th Cir. 1996)) (quotation marks omitted; emphasis in original). To reject such
17 || lay witness evidence, an ALJ must provide “germane reasons” for doing so.
18 || Tobeler, 749 F,3d at 833; see also Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir.
19 | 2009) (“[ T]he reasons ‘germane to each witness’ must be specific.’’) (citation
20 || omitted); Stout, 454 F.3d at 1054 (“[T]he ALJ, not the district court, is required to
21 || provide specific reasons for rejecting lay testimony’’) (citation omitted).
22 2. Relevant Statements
23 a. Plaintiff
24 At the hearing on May 16, 2019, plaintiff testified to the following:
25 During the period at issue, between January and June 2016, plaintiff could
26 || not work because of her fatigue, which would come and go and was not consistent.
27 || (AR 46-47). She spent a significant part of her day resting. (AR 57). Getting a
28 || good night’s sleep did not help. (AR 58).
15

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1 Plaintiff could walk during that time, but she was losing her footing and
2 falling, due to a loss of muscle control, and she soon began to use an assistive
3 device (first a cane, followed by a walker). (AR 47-48). Her problems worsened
4 over time. (AR 48).
5 She lived with her husband, who was at work during the day, but plaintiff’s
6 mother lived two doors over if she needed something. (AR 50). During a typical
7 day, she did not do much because she was recuperating from her falls (which
8 occurred in December 2015 and January 2016, causing injuries to her right hand
9 and shoulder and a fractured left humerus that underwent surgery in January
10 2016). (AR 50; see AR 41, 305-18). She did not do chores or cooking. (AR 51).
11 She had issues with using her hands and reaching because she was in a cast and
12 using a sling. (AR 52-53). Her right shoulder and hand healed in about six weeks.
13 (AR 53). The cast on her left arm was removed about eight weeks after the
14 surgery, but she continued to have pain and difficulty reaching overhead on her
15 left. (AR 53-55). Plaintiff also began having vision problems, such as double
16 vision, in early 2016 (AR 59), and she has not driven since 2016 (AR 50).
17 She has had good days and bad days depending on her level of fatigue, and
18 at her prior job she would call in sick often. (AR 61, 63).
19 b. Plaintiff’s Husband
20 Plaintiff’s husband, David, testified at the hearing to the following:
21 He has been his wife’s caregiver as far back as January 2016. (AR 68). He
22 worked during that period but was able to leave work to check on her. (AR 69-
23 70). In 2016, plaintiff mostly sat on the couch and did not do much. (AR 69).
24 She spent half the day resting. (AR 69). Plaintiff has had difficulties with her left
25 hand since the fall in January 2016. (AR 68-69). In addition, plaintiff needs to
26 have ready access to a restroom because of muscle control since 2016, and she has
27 been wearing a diaper for a long time. (AR 82).
28 ///
16
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1 3. Analysis
2 The ALJ found that plaintiff’s medically determinable impairments could
3 reasonably be expected to cause the alleged symptoms, but plaintiff’s statements
4 about the intensity, persistence, and limiting effects of the symptoms were not
5 entirely consistent with the medical evidence and other evidence in the record.
6 (AR 25). The ALJ supported this finding with specific, clear and convincing
7 reasons, based on references to specific evidence in the record, including
8 plaintiff’s treatment history, medical evidence, and conflicts with plaintiff’s own
9 reports regarding when her condition began to worsen. (See AR 25-27). The ALJ
10 also gave specific and germane reasons to discount the third-party statements of
11 plaintiff’s husband based on the evidence of plaintiff’s minimal treatment for
12 multiple sclerosis during the relevant period and the “relatively mild clinical
13 findings.” (AR 26).
14 First, the ALJ remarked that plaintiff “has not generally received the type of
15 medical treatment one would expect for a totally disabled individual from the
16 alleged onset date through the date last insured.” (AR 25). The ALJ supported
17 this by noting that plaintiff did not seek any treatment with Dr. Ries between
18 January 2015 and August 2016. (AR 25; see AR 532). Plaintiff contends that this
19 is an inappropriate basis for rejecting her statements because the ALJ did not find
20 that more aggressive treatments were available for plaintiff to pursue. (Plaintiff’s
21 Motion at 8-9). However, the fact that plaintiff had not sought treatment during
22 the relevant period with Dr. Ries, who treated her multiple sclerosis, reasonably
23 supports the ALJ’s finding that plaintiff’s symptoms from multiple sclerosis had
24 not significantly worsened during or immediately before the relevant period and
25 were not as severe as alleged. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th
26 Cir. 2014) (citation omitted) (in discrediting the claimant’s subjective symptom
27 testimony, ALJ may consider “unexplained or inadequately explained failure to
28 seek treatment”); see also Burch, 400 F.3d at 681 (“That [the claimant’s] pain was
17
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1 not severe enough to motivate [her] to seek [these forms of] treatment, even if she
2 sought some treatment, is powerful evidence regarding the extent to which she
3 was in pain.”) (internal citation omitted).
4 In addition, the ALJ found that plaintiff’s “alleged level of impairment
5 before her date last insured is inconsistent with her statements to doctors . . . that
6 her symptoms were stable until October 2016.” (AR 24-25). This is supported by
7 the record. According to a treatment note on February 10, 2017, plaintiff
8 “report[ed] [she] was stable for years . . . until Oct[ober] 2016,” and she felt she
9 had been “worsening since Oct[ober] 2016” (AR 438), which is also when
10 plaintiff began using a cane (AR 436, 557). Plaintiff’s brain and cervical spine
11 MRI examinations in October 2016 were also “noted to be stable without active
12 lesion and no significant change.” (AR 438; see AR 366, 528, 531).
13 Plaintiff contends that “[t]he fact a condition is stable does not mean that it
14 is not disabling.” (Plaintiff’s Motion at 10). Yet, the ALJ did not find that
15 plaintiff lacked any functional limitations. Rather, the ALJ reasonably determined
16 that these reports of plaintiff’s “stable” condition conflicted with her testimony
17 regarding a worsening of symptoms during the relevant period, and – in
18 conjunction with the medical evidence and other evidence in the record – it
19 supported a finding that plaintiff’s limitations were not as severe as alleged during
20 that period.
21 The ALJ’s consideration of the medical evidence in the record further
22 supports this determination. “Although lack of medical evidence cannot form the
23 sole basis for discounting pain testimony, it is a factor that the ALJ can consider
24 . . . .” Burch, 400 F.3d at 681. Here, the ALJ noted, in particular, that an August
25 2016 physical examination revealed reduced sensation to light touch and pin prick
26 in the feet and otherwise normal findings, and an October 2016 brain MRI
27 revealed a clinical history of multiple sclerosis with no abnormal enhancement or
28 acute abnormality. (AR 25; see AR 366, 400-03).
18
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1 Furthermore, the ALJ noted that many of the plaintiff’s alleged limitations
2 regarding the relevant period were caused by her upper extremity fractures, which
3 the ALJ found had no more than a minimal effect on her ability to work and were
4 resolved in less than twelve months. (AR 23-24, 26). Plaintiff has not specifically
5 challenged this finding. As stated above, plaintiff testified that her right shoulder
6 and hand healed in about six weeks, though she continued to experience pain and
7 difficulty reaching overhead on the left. (See AR 52-55). The ALJ thus limited
8 plaintiff to only occasionally reaching overheard with her left extremity. (AR 24).
9 Plaintiff asserts that the ALJ erred by failing to discuss her daily activities.
10 (Plaintiff’s Motion at 11). However, while a claimant’s daily activities are
11 considered when assessing a claimant’s alleged limitations, the ALJ is not required
12 to specifically discuss the activities when assessing the claimant’s statements in
13 the decision. See Powell v. Massanari, 2001 WL 1563712, at *3 (N.D. Cal. Dec.
14 3, 2001) (ALJ did not err by neglecting to discuss daily activities in the decision
15 because “although the ALJ was required to consider [plaintiff’s] daily activities as
16 part of the credibility analysis, there is no specific requirement that he set forth in
17 the decision his analysis as to each factor identified in SSR 96-7p”) (citing SSR
18 96-7p);11 see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.
19 2003) (“[I]n interpreting the evidence and developing the record, the ALJ does not
20 need to discuss every piece of evidence.”) (internal quotation and citations
21 omitted). Moreover, the ALJ did acknowledge the relevant testimony on this
22 issue, which was essentially that plaintiff spent most of the day resting and sitting
23 on the couch, and was unable to perform any household chores. (See AR 25-26,
24 51, 57, 69). Notwithstanding this testimony, the ALJ reasonably found plaintiff
25 had greater functional ability during the relevant period than alleged.
26
27 11Although SSR 96-7p was superseded by SSR 16-3p, the latter similarly provides that a
claimant’s daily activities will be considered but does not require that they be discussed in the
28 decision.
19
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1 Accordingly, plaintiff has failed to identify any material error in the ALJ’s
2 assessment of plaintiff’s and her husband’s statements regarding the limiting
3 effects of plaintiff’s symptoms. The ALJ provided legally sufficient reasons to
4 discount these statements, and those reasons are supported by substantial evidence
5 in the record.
6 D. The ALJ Did Not Err in Finding Worsening After the Date Last
7 Insured
8 As indicated above, the ALJ found that plaintiff’s condition worsened in
9 October 2016, after the date last insured. (AR 27). This was particularly
10 supported by a February 2017 treatment note indicating that plaintiff’s multiple
11 sclerosis was stable until around October 2017, when it started to worsen, and she
12 began using a cane. (AR 27; see AR 436-38).
13 Plaintiff contends that the ALJ erred on this issue because some of the
14 evidence in the record instead suggests that her worsening symptoms arose earlier
15 and during the relevant period. (Plaintiff’s Motion at 13-14). Specifically,
16 plaintiff points to the evidence of her falls in late 2015 and early 2016, as well as
17 Dr. Ries’s August 2016 examination showing abnormal sensation. (Plaintiff’s
18 Motion at 13-14). In light of such evidence, plaintiff argues that the record is
19 ambiguous on this issue, and the ALJ failed to develop the record further to
20 appropriately resolve the matter.
21 However, the ALJ’s finding on this issue is reasonable and supported by
22 substantial evidence in the record, including the February 2017 treatment note
23 referenced above. (See AR 438). Although plaintiff had several falls prior to
24 October 2016, as the ALJ noted, plaintiff’s husband had reported that some of
25 these falls “may not have been due to balance problems.”12 (AR 27, 438).
26
27 12The treatment note reports that one of these falls apparently occurred when plaintiff
28 “[h]ad a cast on right hand from unrelated accident and fell down stairs when [she] didn’t grab
(continued...)
20
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1 Morever, despite these falls, plaintiff did not begin using a cane until several
2 months after the date last insured. (AR 436, 557). In addition, while plaintiff
3 demonstrated abnormal sensation in the feet in August 2016, as the ALJ noted, the
4 other examination findings were generally normal (AR 25; see AR 400-03), and
5 her MRIs in October 2016 were “stable without active lesion and no significant
6 change” (AR 438; see AR 366, 528, 531).
7 Accordingly, the record provided substantial evidence to support the ALJ’s
8 finding that plaintiff’s condition worsened after the date last insured and was not
9 disabling prior to that date. Because the record was sufficiently clear and
10 developed on this issue, the ALJ had no obligation to develop the record further.
11 See Mayes, 276 F.3d at 459-60.
12 E. Remand Is Not Warranted Based on New Evidence Submitted to
13 the Appeals Council
14 Plaintiff additionally argues that remand is required for the ALJ to consider
15 Dr. Harford’s medical source statement, dated July 29, 2019, that plaintiff
16 submitted to the Appeals Council after the ALJ issued her decision. (Plaintiff’s
17 Motion at 14-16; see AR 7-10).
18 Dr. Harford opined that plaintiff had symptoms from multiple sclerosis and
19 was limited to sitting for one hour at a time for a total of four hours in an eight-
20 hour day, but could not stand or walk for any period. (AR 7-8). Dr. Harford
21 further opined that plaintiff could rarely lift less than ten pounds, could never lift
22 more than ten pounds, and would be absent from work about four days per month.
23 (AR 9-10). Dr. Harford served as plaintiff’s physician for many years, in part
24 during the relevant period. (See AR 224). Her medical source statement indicates
25 that she had treated plaintiff twice a year on average, including in 2016. (AR 7),
26
27 12(...continued)
28 railing, but didn’t feel unsteady.” (AR 436). Then, “[a]bout 1 week later, [she] fell down stairs
and broke upper left arm, may have misstepped. Balance was okay.” (AR 436).
21
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1 || and that the limitations set forth in her statement have been applicable since
2 || January 15, 2016 (AR 10). The Appeals Council considered this new evidence in
3 || denying plaintiff's request for review of the ALJ’s decision, and found that it
4 || “does not show a reasonable probability that 1t would change the outcome of the
5 || decision.” (AR 2).
6 As indicated above, “when the Appeals Council considers new evidence in
7 || deciding whether to review a decision of the ALJ, that evidence becomes part of
8 || the administrative record, which the district court must consider when reviewing
9 || the Commissioner’s final decision for substantial evidence.” Brewes, 682 F.3d at
10 | 1163. To justify a remand on this basis, plaintiff must “demonstrate that there is a
11 || ‘reasonable possibility’ that the new evidence would have changed the outcome of
12 || the administrative hearing.” Mayes, 276 F.3d at 462; see also Mengistu v. Colvin,
13 | 537 F. App’x 724, 725 (9th Cir. 2013); Hermiz v. Berryhill, 2019 WL 3780271, at
14 || *15 (S.D. Cal. Aug. 9, 2019), report and recommendation adopted, 2019 WL
15 | 4016451 (S.D. Cal. Aug. 26, 2019).
16 Here, plaintiff fails to show a reasonable possibility that Dr. Harford’s
17 || opinion would have changed the outcome of the decision. In particular, although
18 || Dr. Harford’s assessment purports to apply beginning on January 15, 2016 (AR
19 || 10), which is near the alleged onset date of January 8, 2016, the opinion does not
20 || appear to be supported by examinations or other evidence from that period. For
21 || example, the record before the ALJ included two treatment notes from Dr.
22 || Harford’s office during the relevant period which provide no significant findings,
23 || aside from arm pain and related constraint just before and after plaintiff's January
24 || 2016 surgery on her left arm.’ (See AR 328-32). Another treatment note from
///
26 | ——_—_——____—_
27 One treatment note, dated January 5, 2016, concerns a pre-operation exam by a certified
physician assistant to clear plaintiff for her left humerus surgery. (AR 330-31). The other, dated
28 February 10, 2016, is to remove plaintiff's sutures from the procedure. (AR 328-29).
22

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1 September 29, 2016, a few months after the date last insured, is unrelated to the
2 symptoms or impairments at issue here.14 (AR 325-26).
3 Dr. Harford’s opinion does not undermine the conclusion that the
4 Commissioner’s final decision is supported by substantial evidence in the record.
5 Among other evidence, as discussed above, the ALJ’s decision is supported by
6 the August 2016 physical examination showing plaintiff had a normal gait, was
7 able to stand without difficulty, and had generally normal findings aside from
8 some reduced sensation in the feet (AR 26, 28; see AR 402); the October 2016
9 MRIs of the brain and cervical spine showing no significant new pathology or
10 acute abnormality (AR 25; see AR 366, 528); plaintiff’s failure to seek any
11 treatment from Dr. Ries from January 2015 to August 2016 (AR 25; see AR 532);
12 plaintiff’s reports to treating providers that she was stable for years until October
13 2016 (AR 27, 438); and the state agency medical consultants’ opinions that
14 plaintiff was capable of a reduced range of light work (AR 27, 93-95, 104-06).
15 See also Thomas, 278 F.3d at 957 (non-examining physicians’ opinions may
16 “serve as substantial evidence when the opinions are consistent with independent
17 clinical findings or other evidence in the record”).
18 Because plaintiff has failed to demonstrate a reasonable probability that Dr.
19 Harford’s opinion would change the outcome of the decision, remand is not
20 warranted on this ground.
21 ///
22 ///
23 ///
24 ///
25 ///
26
27
14Plaintiff sought treatment on that date for blood in her stool, and Dr. Harford noted
28
plaintiff was also “drinking a bottle of wine daily at least.” (AR 325-26).
23
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1 V. CONCLUSION
2 For the foregoing reasons, the decision of the Commissioner of Social
3 Security is AFFIRMED.
4 LET JUDGMENT BE ENTERED ACCORDINGLY.
5 DATED: March 29, 2022
6 _____________/s/____________________
Honorable Jacqueline Chooljian
7
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9979464. Public record. Not legal advice.