Allen v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 6, 2024
• Docket: 2:22-cv-02154
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Susan E. Allen, No. CV-22-2154-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Susan E. Allen (“Plaintiff”) challenges the denial of her application for 16 disability insurance benefits by Defendant Social Security Administration under the Title II 17 of the Social Security Act. Plaintiff filed a Complaint (Doc. 1) with the Court seeking 18 review of her claim. The Court has reviewed the briefs (Docs. 23, 27, 28) and the 19 Administrative Record (Doc. 18, “A.R.”), and now affirms the Administrative Law Judge’s 20 (“ALJ”) decision. 21 I. BACKGROUND 22 Plaintiff filed an application for disability insurance benefits under Title II on March 23 28, 2015, for a period of disability beginning on October 5, 2014. (A.R. at 160-61.) 24 Plaintiff’s claim was initially denied on September 1, 2015 (id. at 171-72), and upon 25 reconsideration on January 15, 2016 (id. at 190). Thereafter, Plaintiff filed a request for a 26 hearing, which was held before the ALJ on December 21, 2017. (Id. at 74-98.) During this 27 hearing, Plaintiff amended her period of disability to beginning March 28, 2015. (Id. at 82.) 28 A supplemental hearing followed on July 23, 2018. (Id. at 129-158.) On September 24, 1 2018, the ALJ dismissed the Plaintiff’s disability insurance benefits application. (Id. at 2 194-206.) On January 28, 2020, the Appeals Council remanded with directions to further 3 evaluate Plaintiff’s mental impairment, further consider Plaintiff’s maximum residual 4 functional capacity, further consider whether Plaintiff has past relevant work and, if so, can 5 perform it, and obtain evidence from a vocational expert to clarify the effect of the assessed 6 limitations on Plaintiff’s occupational base. (Id. at 215-16.) Plaintiff appeared before the 7 ALJ on September 29, 2021, for rehearing. (Id. at 99-128.) The ALJ denied Plaintiff’s 8 disability insurance benefits on November 1, 2021. (Id. at 23-39.) Plaintiff subsequently 9 filed a request for review, which was denied on August 31, 2022. (Id. at 2-5.) Plaintiff now 10 seeks judicial review with this Court pursuant to 42 U.S.C. § 405(g). 11 The Court has reviewed the record and will discuss the pertinent evidence in 12 addressing the issues raised by the parties. Upon considering the medical evidence and 13 opinions, the ALJ evaluated Plaintiff’s disability claim based on the following severe 14 impairments: degenerative disc disease of the cervical spine, fibromyalgia, obesity, 15 craniopharyngioma, sleep apnea, hypertension, chronic kidney disease, depressive 16 disorder, and opioid dependence. (Id. at 26.) 17 The ALJ found that Plaintiff did not have an impairment or combination of 18 impairments that met or medically equaled the severity of one of the listed impairments of 19 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 27.) Next, the ALJ determined Plaintiff’s 20 residual functional capacity (“RFC”).1 The ALJ found: 21 [T]hrough the date last insured, the claimant had the [RFC] to 22 perform light work as defined in 20 CFR [§] 404.1567(b) except the claimant should never climb ladders, ropes or 23 scaffolds. She can occasionally climb ramps or stairs, stoop, 24 crouch, crawl, kneel, and balance (as defined in the DOT and SCO). The claimant can occasionally reach overhead 25 bilaterally. She can have occasional exposure to pulmonary 26 irritant, such as fumes/odors/dusts/gases. She can work with occasional exposure to non-weather related extreme cold, 27 non[-]weather related wetness, non[-]weather related

28 1 Residual functional capacity refers to the most a claimant can still do in a work setting despite his or her limitations. 20 C.F.R. § 404.1545(a)(1). 1 humidity, and poorly ventilated areas. She can have occasional exposure to dangerous moving machinery and unprotected 2 heights. She is able to perform work involving understanding, 3 remembering, and carrying out simple instructions, consistent with an SVP of 2 or below. She is able to perform work 4 requiring occasional routine changes in the work setting. 5 6 (Id. at 29.) Based on this RFC, the ALJ found Plaintiff could not perform past relevant 7 work but could perform other jobs existing in significant numbers in the economy, such as 8 marker, office helper, photocopy machine operator, and routing clerk. (Id. at 37-38.) 9 Ultimately, the ALJ concluded that Plaintiff was not disabled under §§ 261(i) and 223(d) 10 of the Social Security Act. (Id. at 39.) 11 II. LEGAL STANDARD 12 In determining whether to reverse an ALJ’s decision, the district court reviews only 13 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 14 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s determination only 15 if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 16 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a reasonable 17 person might accept as adequate to support a conclusion considering the entire record. Id. 18 To determine whether substantial evidence supports a decision, the Court must consider 19 the entire record and may not affirm simply by isolating a “specific quantum of supporting 20 evidence.” Id. (citation omitted). Generally, “[w]here the evidence is susceptible to more 21 than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 22 conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 23 (citation omitted). The substantial evidence threshold “defers to the presiding ALJ, who 24 has seen the hearing up close.” Biestek v. Berryhill, 587 U.S. —, 139 S. Ct. 1148, 1157 25 (2019); see also Thomas v. CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (noting 26 substantial evidence “is an extremely deferential standard”). 27 To determine whether a claimant is disabled, the ALJ follows a five-step process. 28 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but 1 the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 2 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently 3 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i), (b). If so, the 4 claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether 5 the claimant has a “severe” medically determinable physical or mental impairment. Id. 6 § 404.1520 (a)(4)(ii), (c). If not, the claimant is not disabled, and the inquiry ends. Id. At 7 step three, the ALJ considers whether the claimant’s impairment or combination of 8 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 9 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii), (d). If so, the claimant is 10 automatically found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC 11 and determines whether the claimant is still capable of performing past relevant work. Id. 12 § 404.1520(a)(4)(iv), (e). If so, the claimant is not disabled, and the inquiry ends. Id. If not, 13 the ALJ proceeds to the fifth and final step, where the ALJ determines whether the claimant 14 can perform any other work in the national economy based on the claimant’s RFC, age, 15 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v), (f). If not, the claimant is 16 disabled. Id. 17 III. DISCUSSION 18 Plaintiff raises three issues before the Court. Plaintiff argues that the ALJ 19 improperly evaluated her symptom testimony. Plaintiff also argues that the ALJ improperly 20 discredited the opinions of treating pain management specialist, Dr. Lisa Sparks. (Id. at 21 13.) Lastly, Plaintiff argues that the ALJ’s RFC determination was not supported by 22 substantial evidence. (Id. at 11.) 23 A. Symptom Evaluation 24 An ALJ performs a two-step analysis to evaluate the credibility of a claimant’s 25 testimony regarding subjective pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 26 (9th Cir. 2014). First, the ALJ evaluates whether the claimant has presented objective 27 medical evidence of an impairment “which could reasonably be expected to produce the 28 pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) 1 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal 2 quotation marks omitted)). Second, if the claimant presents such evidence and if there is 3 no evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity 4 of her symptoms only by offering specific, clear and convincing reasons for doing so.” 5 Garrison, 759 F.3d at 1014-15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 6 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. An ALJ’s 7 “vague allegation” that a claimant’s symptom testimony is inconsistent with the medical 8 record does not meet the clear and convincing standard. Treichler v. Comm’r of Soc. Sec. 9 Admin., 775 F.3d 1090, 1102-03 (9th Cir. 2014). Similarly, an ALJ cannot satisfy the clear 10 and convincing standard based solely upon “a lack of medical evidence to fully corroborate 11 the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 12 Plaintiff contends that the ALJ’s assessment of her symptom testimony was based 13 upon distortions of: (1) the effectiveness of medical treatment, (2) ability to perform 14 activities of daily living, and (3) the circumstances surrounding the end of Plaintiff’s 15 employment. (Doc. 23 at 18-24.) 16 1. Effectiveness of Medical Treatment 17 Plaintiff claims the ALJ “cherry pick[ed]” from the medical evidence to paint an 18 unfair portrait of her symptoms. (Id. at 20.) Plaintiff also argues that the ALJ neglected to 19 consider instances of elevated pain levels when concluding that medication alleviated pain 20 symptoms. (Id.) 21 Here, the ALJ found “inconsistency between the [Plaintiff’s] allegations and the 22 objective medical evidence” where the record demonstrates that Plaintiff’s treatment has 23 been effective in mitigating her impairments. (A.R. at 31.) The ALJ noted that Plaintiff 24 underwent successful surgery for craniopharyngioma and had been taking medications that 25 had been “relatively effective in controlling the [Plaintiff’s] symptoms.” (Id.). In support 26 of this assertion, the ALJ cited several medical reports spanning from March 16, 2014, 27 through July 14, 2016. (Id. (citing A.R. at 647, 681, 726, 758, 768, 1042, 1071, 1189).) 28 The ALJ found that Plaintiff’s allegations were “not entirely consistent with the 1 evidence.” (Id.) (emphasis added). The ALJ then explained where she found 2 inconsistencies. The ALJ referenced several medical reports documenting the effectiveness 3 of medication. The ALJ did not rely on a “single notation” showing a “good-day,” (Doc. 4 23 at 20 (citing Garrison, 759 F.3d. at 1017)), but rather relied on a broad swath of 5 Plaintiff’s medical history showing that medications brought Plaintiff significant relief. In 6 highlighting the inconsistencies between the Plaintiff’s reported symptoms and the medical 7 evidence, the ALJ was not required to discuss every other potentially relevant piece of 8 evidence. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“in 9 interpreting the evidence and developing the record, the ALJ does not need to ‘discuss 10 every piece of evidence.’” (citation omitted)). 11 The ALJ’s ultimate determination recognizes that medications “have been relatively 12 effective in controlling the [Plaintiff’s] symptoms.” (A.R. at 31) (emphasis added). That is 13 not to say that Plaintiff is not in pain or that the record is otherwise free of evidence showing 14 as much. Rather, “[i]mpairments that can be controlled effectively with medication are not 15 disabling.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 16 (emphasis added). The ALJ made an appropriate inquiry into a relevant matter and 17 demonstrated substantial support for her conclusion. The Court will not second guess the 18 ALJ’s determination. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (“If 19 the ALJ’s finding is supported by substantial evidence, the court may not engage in second- 20 guessing.” (citation omitted)). 21 2. Activities of Daily Living 22 Plaintiff contends that the ALJ misrepresented her activities of daily living to “make 23 her seem more functional.” (Doc. 23 at 21.) Plaintiff again claims the ALJ cherry-picked 24 from the record. (Id.) 25 Here, the ALJ considered reports of Plaintiff’s daily activities, such as going to the 26 grocery store, cooking, performing self-care activities, doing laundry, washing dishes, 27 driving her daughter to and from school, going to church, and using her phone for various 28 purposes. (A.R. at 31). See 20 C.F.R. §404.1529(c)(3)(i) (listing daily activities as a factor 1 relevant for consideration when assessing symptoms). The ALJ then properly concluded 2 that the severity of Plaintiff’s allegations was not fully supported by her daily activities. 3 See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (holding ALJ 4 properly supported rejecting claimant’s complaints when relying on the record showing 5 “normal activities of daily living, including cooking, house cleaning, doing laundry, and 6 helping manage finances”). 7 While Plaintiff takes issue with the ALJ citing to evidence showing ability to 8 perform activities of daily living and not to other evidence suggesting a lesser degree of 9 functioning (Doc. 23 at 21), the ALJ highlights inconsistencies with Plaintiff’s specific 10 claims. Activities of daily living “may be grounds for discrediting the claimant’s testimony 11 to the extent that they contradict claims of a totally debilitating impairment.” Molina v. 12 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). Here, the ALJ contrasts Plaintiff’s allegation 13 that “depression affects her ability to interact with others” with evidence indicating that the 14 Plaintiff is able to go to the grocery store, church, and family gatherings. (A.R. at 28.) 15 Similarly, where Plaintiff asserts that “she is unable to work due to chronic, daily pain” 16 and has significant physical limitations, it is appropriate to consider evidence of driving, 17 cooking, and self-care to the extent that these activities conflict with Plaintiff’s assertions. 18 (Id. at 30, 31.) Plaintiff insists that the ability to perform modest activities of daily living 19 should not be conflated with ability to perform in a competitive work environment. (Doc. 20 23 at 22.) That may be the case, but it does not follow that an ALJ may not weigh 21 discrepancies against a claimant’s self-reported symptoms for the purposes of evaluating 22 credibility, as was the case here. 23 3. End of Employment 24 Plaintiff raises a factual dispute as to what precipitated her departure from work. 25 (Doc. 23 at 23.) The ALJ found that Plaintiff “stopped working because she was laid off 26 on or about the alleged onset date, rather than due to her pain complaints and maladies.” 27 (A.R. at 31.) Inter alia, Plaintiff cites to testimony from the September 29, 2021 hearing 28 during which Plaintiff explained that her symptoms made it difficult to work. (Doc. 23 at 1 23 (citing A.R. at 105-06).) During this portion of the testimony, the ALJ restated 2 Plaintiff’s testimony before moving on to the next line of questioning: “[a]nd so, you 3 indicated part of the reason you stopped working was -- was due to pain.” (A.R. at 107) 4 (emphasis added). In response to Plaintiff, Defendant cites to testimony from the December 5 21, 2017 hearing. (Doc. 27 at 12 (citing A.R. at 84).) There, the following exchange 6 occurred: 7 Q: And why’d you stop [working]? 8 A: I was not doing a very good job. I was in a lot of pain. 9 Q: So -- so, did you quit, or they terminate you or what happened? 10 A: They laid -- they laid me off and -- 11 Q: Okay. 12 A: -- brought -- they also wanted to bring in someone for a lower pay. So, they 13 didn’t actually terminate me. They laid me off. 14 (A.R. at 84.) 15 Thus, Plaintiff did testify that her employer laid her off and explained that the 16 decision was motivated at least in part by economic considerations. (Id.) To the extent that 17 the ALJ omitting the possibility that Plaintiff’s pain contributed to her losing her job 18 constitutes error, it is harmless in light of the other articulated reasons for discrediting 19 Plaintiff’s symptom testimony. “[A]n error is harmless so long as there remains substantial 20 evidence supporting the ALJ’s decision and the error “does not negate the validity of the 21 ALJ's ultimate conclusion” Molina, 674 F.3d at 1115 (quoting Batson v. Comm’r of Soc. 22 Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). 23 Here, the ALJ identified reasons to discount Plaintiff’s subjective complaints, 24 including the lack of supporting objective medical evidence, evidence of effective 25 treatment, and ability to perform activities of daily living. The Court therefore finds that 26 the ALJ conclusion is supported by substantial evidence. See Tommasetti, 533 F.3d 1035, 27 1039. 28 1 B. Treating Physician’s Opinion 2 While “[t]he ALJ must consider all medical opinion evidence,” for claims filed 3 before March 27, 2017, such as this one, the ALJ must consider those opinions within the 4 hierarchy among the sources of medical opinions. Tommasetti, 533 F.3d at 1041; see also 5 Garrison, 759 F.3d at 1012. Those who have treated a claimant are treating physicians, 6 those who examined but did not treat the claimant are examining physicians, and those who 7 neither examined nor treated the claimant are nonexamining physicians. Lester v. Chater, 8 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the 9 opinion of a treating source than to the opinion of doctors who did not treat the claimant.” 10 Id. Treating physicians have the advantage of in-person interaction and typically a longer 11 history of treatment than a claimant’s other doctors, and their “subjective judgments . . . are 12 important, and properly play a part in their medical evaluations.” Embrey v. Bowen, 849 13 F.2d 418, 422 (9th Cir. 1988); see also Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). 14 An ALJ “may only reject a treating or examining physician’s uncontradicted 15 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 16 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). 17 “Where such an opinion is contradicted, however, it may be rejected for specific and 18 legitimate reasons that are supported by substantial evidence in the record.” Id. An ALJ 19 meets this standard by “setting out a detailed and thorough summary of the facts and 20 conflicting medical evidence, stating his interpretation thereof, and making findings.” 21 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (cleaned up). 22 Plaintiff has been seen by Lisa Sparks, M.D., for pain management treatment since 23 at least 2006. (A.R. at 1451.) On June 15, 2015, Dr. Sparks provided an assessment of 24 Plaintiff’s physical limitations. (Id. at 675-80.) Dr. Sparks opined that Plaintiff could sit 25 for two hours, stand for one hour, and walk for thirty to forty-five minutes at one time 26 without interruption. (Id. at 676.) Further, Dr. Sparks opined that Plaintiff could sit for one 27 hour, stand for fifteen minutes, and walk for one hour over the course of an eight-hour 28 workday. (Id.) On June 22, 2018, Dr. Sparks again addressed Plaintiff’s physical 1 limitations. (Id. at 1452-53.) At that time, Dr. Sparks found that Plaintiff could sit for up to 2 forty-five minutes and stand for thirty minutes at a time. (Id. at 1452.) Additionally, Dr. 3 Sparks indicated that Plaintiff was not capable of sitting, standing, or walking for more 4 than two hours over the course of an eight-hour workday. (Id.) Dr. Sparks further opined 5 that Plaintiff was “unable to work due to pain.” (Id. at 1453.) 6 The ALJ gave “no weight” to Dr. Sparks’ opinion for many reasons. (Id. at 36.) The 7 ALJ found Dr. Sparks’ opinion “too limiting” and “inconsistent with the evidence showing 8 that the claimant’s pain medication helped relieve pain.” (Id.) Moreover, the ALJ found 9 Dr. Sparks’ opinion inconsistent with other evidence documenting the Plaintiff’s “normal 10 gait, sensation, and reflexes.” (Id.) The ALJ further noted that Dr. Sparks’ opinion was 11 based on the Plaintiff’s “subjective reports of pain.” (Id.) Finally, the ALJ found that Dr. 12 Sparks’ conclusion that Plaintiff could not work “is on an issue reserved for the 13 Commissioner.” (Id.) 14 Plaintiff argues the ALJ erroneously discredited Dr. Sparks’ opinion because the 15 ALJ did not “address the majority of regulatory factors, focusing instead primarily on her 16 own interpretation of the evidence and substituting it for the opinion of a treating medical 17 expert.” (Doc. 23 at 14.) A treating physician’s opinion is given controlling weight when 18 such opinion “is not inconsistent with other substantial evidence in the case record.” 20 19 C.F.R. § 404.1527(c)(2). When a treating physician’s opinion is inconsistent with other 20 substantial evidence an ALJ must nevertheless abide by 20 C.F.R. § 404.1527(c)(2) and 21 “consider factors such as the length of the treating relationship, the frequency of 22 examination, the nature and extent of the treatment relationship, or the supportability of the 23 opinion.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017). Yet, “[a]n ALJ need not 24 expressly state she considered all factors when her decision clearly indicates that she did.” 25 Chisholm v. Comm’r of Soc. Sec. Admin., No. CV-19-08010-PCT-JAT, 2019 WL 5587004, 26 at *3 (D. Ariz. Oct. 30, 2019) (citing Kelly v. Berryhill, 732 F. App’x 558, 562 n.4 (9th Cir. 27 2018)). 28 Here, the ALJ found conflicting evidence such that Dr. Sparks’ opinion was not 1 entitled to controlling weight. In so doing, the ALJ cited specific medical reports which 2 show that Plaintiff’s pain was controlled to some degree by medication and further that 3 Plaintiff had greater mobility than what was reflected in Dr. Sparks’ assessments. (A.R. at 4 35-36.) For example, the ALJ cited a June 3, 2015 report, which documented that the 5 Plaintiff’s pain fluctuates from a “2/10” minimum to a “9/10” maximum and that Plaintiff’s 6 “pain is relieved by lying down, medication, and relaxation.” (Id. at 36 (citing A.R. at 7 681).) Another report the ALJ cited from August 2, 2016, was authored by Dr. Sparks 8 herself and documented the following: “normal gait, moves easily about the office today, 9 no assistive devices used today.” (Id. (citing A.R. at 731).) Thus, the ALJ’s finding of 10 inconsistency, even within Dr. Sparks’ own treatment records, was supported by 11 substantial evidence. 12 Having found inconsistencies with Dr. Sparks’ opinion such that it would not be 13 controlling, the ALJ was free to assign the opinion weight under 20 C.F.R. § 404.1527. 14 That the ALJ did not perform a complete recitation of all the regulatory factors, one after 15 the next, was not an error. The ALJ explicitly stated that she “considered opinion evidence 16 in accordance with 20 CFR 404.1527.” (A.R. at 30.) See Chisholm, 2019 WL 5587004, at 17 *3. Furthermore, the ALJ provided a detailed overview of the Plaintiff’s medical history, 18 which incorporated references to treatment Plaintiff received from Dr. Sparks and 19 appropriately cited to corresponding reports. (Id. at 31-36.) Additionally, the ALJ identified 20 Dr. Sparks as the “claimant’s physician” when deciding to assign Dr. Sparks’ opinion no 21 weight. (Id. at 35-36.) In totality, the ALJ’s decision reveals a holistic consideration 22 required by 20 C.F.R. § 404.1527. 23 C. Residual Functional Capacity Determination 24 Plaintiff argues that the ALJ’s RFC determination was “conclusory and arbitrary,” 25 as it relates to Plaintiff’s fibromyalgia and associated pain and fatigue. (Doc. 23 at 11-13.) 26 Plaintiff alleges that the ALJ improperly concluded that examining physician Dr. Gordon’s 27 finding of fibromyalgia tender points “are supportive of the decision residual functional 28 capacity rather than the claimant’s reports of debilitating nerve pain.” (Id. at 12 (citing A.R. 1 at 33).) Additionally, Plaintiff asserts that the ALJ made only brief reference to fatigue 2 symptoms when rejecting the opinions of agency psychological examiners. (Id. (citing A.R. 3 at 35).) Plaintiff then asserts that the “medical record is replete with reports of fatigue” and 4 cites several examples. (Id.) 5 Plaintiff mischaracterizes the ALJ’s statements. First, the ALJ found Dr. Gordon’s 6 examination revealed fibromyalgia tender points but also equal strength in upper and lower 7 extremities with full range of motion, normal reflexes and sensation, and normal grip 8 strength. (A.R. at 33.) Taken as a whole, these findings are fairly characterized as 9 inconsistent with the Plaintiff’s allegation of debilitating nerve pain, notwithstanding the 10 documentation of fibromyalgia tender points. Second, the ALJ did refer to Plaintiff’s 11 fatigue when assigning no weight to the psychological examiners. The ALJ assigned no 12 weight because “the opinions are not consistent with the evidence showing that the 13 claimant experienced increased depression, fatigue, and memory trouble.” (Id. at 35) 14 (emphasis added). Similarly, the ALJ ultimately rejected a 2018 report from Dr. Gordon, 15 finding it “not limiting enough given the claimant’s reduced range of motion and 16 fibromyalgia symptoms.” (Id.) Far from showing a conclusory and arbitrary assessment of 17 the Plaintiff’s fatigue symptoms, the decision demonstrates the ALJ considered and took 18 seriously evidence that fatigue impacted the Plaintiff’s functioning, even going so far as to 19 reject these contrary opinions. Thus, the RFC is supported by substantial evidence. 20 IV. CONCLUSION 21 Accordingly, 22 IT IS ORDERED affirming the November 1, 2021 decision by the Administrative 23 Law Judge and the Commissioner of the Social Security Administration (A.R. at 23-39). 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 2 || consistent with this Order and close this case. 3 Dated this 6th day of March, 2024. 4 5 ' ° = James A. CO 7 Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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