1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Michelle Lee Anthony, No. CV-21-02183-PHX-MTL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Michelle Lee Anthony’s (“Plaintiff”) Application 16 for Disability Insurance Benefits under the Social Security Act by the Commissioner of the 17 Social Security Administration (“Commissioner”). Plaintiff filed a Complaint with this 18 Court on December 21, 2021, seeking judicial review of the denial of benefits. (Doc. 1 at 19 1.) Defendant Commissioner filed an Answer on June 1, 2022. (Doc. 15.) The Court has 20 reviewed the briefs and Administrative Record (Doc. 16) and now affirms the 21 Administrative Law Judge’s (“ALJ”) decision. 22 I. Background 23 Plaintiff filed an application for Social Security Disability Insurance Benefits on 24 March 19, 2019, based on disability beginning November 19, 2018. (R. at 13.) Plaintiff 25 later amended her alleged disability onset date to September 5, 2019. (Doc. 1 at 2.) 26 Plaintiff’s claim was denied initially on July 16, 2019, and upon reconsideration on 27 September 24, 2019. (R. at 13.) Subsequently, Plaintiff filed a written request for a hearing. 28 (Id.) A telephonic hearing was held on March 9, 2021, and the ALJ denied Plaintiff’s 1 application on April 7, 2021. (Id.) The Appeals Council upheld the ALJ’s decision on 2 October 25, 2021. (R. at 1–3.) Following the unfavorable decision of the Appeals Council, 3 Plaintiff timely sought judicial review with this Court pursuant to 42 U.S.C. § 405(g). (Doc. 4 1 at 1.) 5 The Court has reviewed the medical evidence and administrative record and will 6 discuss pertinent evidence in addressing the issues raised by the parties. The ALJ evaluated 7 the medical evidence and testimony and concluded that Plaintiff is not under a disability 8 within the meaning of the Social Security Act from the alleged disability onset date through 9 the date of the ALJ’s most recent decision. (R. at 23.) In making this determination, the 10 ALJ assessed Plaintiff’s disability after finding Plaintiff had the following severe 11 impairments: fibromyalgia, chronic fatigue, inflammatory arthritis in the left wrist, and 12 peripheral edema of hands and feet. (R. at 16.) The ALJ first determined that Plaintiff has 13 not engaged in substantial gainful activity from September 5, 2019, to April 7, 2021. (R. at 14 15–16.) While noting that Plaintiff has multiple severe impairments, the ALJ also found 15 that Plaintiff did not have an impairment or combination of impairments that met or 16 equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 16–17.) 17 In assessing Plaintiff’s residual functional capacity (“RFC”), the ALJ found that 18 Plaintiff’s symptom testimony was inconsistent with the objective medical evidence and 19 other evidence in the record. (R. at 18.) With respect to the medical opinions, the ALJ 20 found the opinions of the Disability Determination Services (“DDS”) medical consultants 21 and Dr. Diana Bejerano partially persuasive. (R. at 19–20.) The ALJ also determined the 22 medical opinions of Dr. Brian Briggs and Plaintiff’s treating physician, Dr. Joy 23 Schechtman, were unpersuasive. (Id.) The ALJ ultimately concluded that the Plaintiff “has 24 the residual functional capacity to perform light work” with certain limitations. (R. at 22.) 25 Considering the Plaintiff’s age, education, work experience, and RFC, the ALJ reasoned 26 that Plaintiff is not disabled and is capable of performing past relevant work or another job 27 “that exist[s] in significant numbers in the national economy.” (Id.) 28 1 II. Legal Standard 2 In determining whether to reverse an ALJ’s decision, the district court reviews only 3 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 4 517 n.13 (9th Cir. 2001). The Court may set aside the ALJ’s disability determination only 5 if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 6 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a reasonable 7 person might accept as adequate to support a conclusion considering the record as a whole. 8 Id. To determine whether substantial evidence supports a decision, the Court must consider 9 the record as a whole and may not affirm simply by isolating a “specific quantum of 10 supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one 11 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 12 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 13 omitted). 14 The ALJ follows a five-step process to determine whether a claimant is disabled. 15 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof as to the first four steps, 16 but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 17 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently 18 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant 19 is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the 20 claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. 21 § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. At step 22 three, the ALJ considers whether the claimant’s impairment or combination of impairments 23 meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. 24 Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be 25 disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the 26 claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). 27 If so, the claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the 28 fifth and final step, where the ALJ determines whether the claimant can perform any other 1 work in the national economy based on the claimant’s RFC, age, education, and work 2 experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 3 III. Discussion 4 Plaintiff raises two arguments for the Court’s consideration: (1) the ALJ erred in 5 rejecting the opinion of Plaintiff’s treating physician, Dr. Joy Schechtman; and (2) the ALJ 6 erred in rejecting Plaintiff’s symptom testimony. (Doc. 19 at 1–2.) 7 A. Treating Physician Opinion 8 Plaintiff first argues that remand is necessary because the ALJ committed materially 9 harmful error in rejecting the opinion of her treating physician, Dr. Schechtman. (Doc. 19 10 at 11.) Specifically, Plaintiff asserts the ALJ did not provide a sufficient explanation 11 supported by substantial evidence which rationally interpreted the record. (Id.) Plaintiff 12 also asserts the ALJ failed to consider the required “consistency” and “supportability” 13 factors. (Id.) In response, the Commissioner maintains that substantial evidence supports 14 the ALJ’s finding that Dr. Schechtman’s opinion is unpersuasive. (Doc. 21 at 11.) 15 In 2017, the Commissioner revised the regulations for evaluating medical evidence 16 for all claims filed on or after March 27, 2017. See Revisions to Rules Regarding the 17 Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017). Here, Plaintiff’s 18 claim was filed on March 19, 2019; therefore, the revised rules apply. (R. at 20.) Unlike 19 the old regulations, the revised rules do not require an ALJ to defer to the opinions of a 20 treating physician nor assign every medical opinion a specific evidentiary weight. 21 20 C.F.R. §§ 404.1520c(a), 416.920c(a); see also Lester v. Charter, 81 F.3d 821, 830–31 22 (9th Cir. 1995) (requiring an ALJ provide “specific and legitimate reasons that are 23 supported by substantial evidence in the record” when rejecting a treating physician’s 24 opinion). 25 The revised rules instead require the ALJ to consider all opinion evidence and 26 determine the persuasiveness of each medical opinion’s findings based on factors outlined 27 in the regulations. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). The most important 28 factors considered by an ALJ are “consistency” and “supportability.” 20 C.F.R. 1 § 404.1520c(b)(2). Supportability is defined as how “relevant the objective medical 2 evidence and supporting explanations presented by a medical source are to support his or 3 her medical opinion(s) or prior administrative medical findings.” Id. § 404.1520c(c)(1). 4 Consistency means “the extent to which a medical opinion is ‘consistent . . . with the 5 evidence from other medical sources and nonmedical sources in the claim.’” Woods v. 6 Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(2)). The ALJ 7 should also treat opinions as more persuasive if they are more consistent with “other 8 medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). 9 Lastly, the ALJ can also consider, to a lesser degree, other factors, such as the length and 10 purpose of the treatment relationship, the kinds of examinations performed, and whether 11 the medical source actually examined the claimant. See Woods, 32 F.4th at 792. 12 Recently, the Ninth Circuit held that the revised rules clearly intended to abrogate 13 its precedent requiring ALJs to provide “specific and legitimate reasons” for rejecting a 14 treating physician’s opinion. Woods, 32 F.4th at 792. Nevertheless, “[e]ven under the new 15 regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported 16 or inconsistent without providing an explanation supported by substantial evidence.” Id. 17 Therefore, an ALJ, “must ‘articulate . . . how persuasive’ it finds ‘all of the medical 18 opinions’ from each doctor or other source, and ‘explain how it considered the 19 supportability and consistency factors’ in reaching these findings.” Id. (citing 20 C.F.R. 20 § 404.1520c(b), (b)(2)) (internal citation omitted) (alteration in original). 21 Dr. Schechtman has treated Plaintiff “for joint pain, fatigue, swelling, and 22 fibromyalgia,” since May 2018. (Doc. 19 at 4.) She “opined the [Plaintiff] could perform 23 sedentary exertion activities intermittently with restricted postural abilities and occasional 24 to no manipulative and reaching activities.” (R. at 20.) Dr. Schechtman completed two 25 check-box assessments, one on February 14, 2020, and the other on February 10, 2021. 26 (Doc. 19 at 8.) In each, she concluded that Plaintiff “could only sit, stand, or walk for one 27 hour at a time, could occasionally perform fine and gross manipulation and reach” for up 28 to 2.5 hours, “could never reach above the head, and could occasionally reach below the 1 shoulder.” (Id.) Dr. Schechtman also treated Plaintiff on January 26, 2021, between these 2 two assessments. (R. at 733.) While the January 26, 2021 treatment notes detailed 3 Plaintiff’s history of chronic fatigue, fibromyalgia, and other symptoms, it also 4 documented “normal strength, normal sensation, normal range of motion, negative straight 5 leg raise, normal muscle tone, and normal gait.” (R. at 18, 735–38.) 6 The ALJ ultimately found “the opinions of the [Plaintiff’s] treating provider, Joy 7 Schechtman, M.D., to be not persuasive.” The ALJ reasoned: 8 This check-box form provides little or no explanation for 9 severe limitations. Opinions that the claimant can never climb stairs, can never reach overhead with the right arm, and can 10 only lift ten pounds occasionally may be consistent with the 11 claimant’s self-report, but have no support in the objective medical record. The opinions of the DDS consultants and Dr. 12 Bejerano are better supported and more consistent with the 13 record for the reasons discussed above and are therefore more persuative. Accordingly, Dr. Schechtman’s opinion is not 14 persuasive.
15 (R. at 20.) 16 The ALJ adequately addressed the supportability and consistency factors in 17 rejecting Dr. Schechtman’s opinion. As Commissioner points out, Dr. Schechtman’s 18 check-box assessments only list “Plaintiff’s diagnoses, medications, and treatment plan to 19 explain her extreme limitations,” but do “not explain why Plaintiff would be unable to 20 stand, walk, and sit for more than a combined three hours in a day.” (Doc. 21 at 12.) With 21 respect to supportability, more weight is generally accorded to medical opinions with 22 explanations that are supported by objective medical evidence in the record. 20 C.F.R. 23 § 404.1527(c)(3). Although a medical opinion generally cannot be rejected solely because 24 it is a check-box form, it can be rejected if opinions are conclusory, brief, and unsupported 25 by the record as a whole or by objective medical findings. See Burrell v. Colvin, 775 F.3d 26 1133, 1140 (9th Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) 27 (recognizing that a check-box form is not entitled the same weight as other credible 28 1 evidence in the record if it is otherwise unsupported or unexplained). Here, the ALJ 2 determined that Dr. Schechtman’s check-box assessments did not adequately explain any 3 of Plaintiff’s alleged severe limitations and were unsupported and inconsistent with the 4 objective medical record.1 5 The ALJ also noted that Dr. Schechtman’s opinion “may be consistent with the 6 claimant’s self-report[;]” however, it had “no support in the objective medical record” and 7 was comparatively less consistent and less supported than the opinions of the DDS 8 consultants and Dr. Bejerano. (R. at 20.) A plaintiff’s self-report alone is insufficient to 9 substantiate a medical opinion, especially when the plaintiff has been deemed not credible 10 and the opinion is inconsistent with the objective medical record.2 See Cancanon v. 11 Comm’r of Soc. Sec. Admin., No. CV-17-04319-PHX-GMS, 2019 WL 1099088, at *3 (D. 12 Ariz. Mar. 8, 2019) (recognizing that “[i]f a treating provider’s opinions are based ‘to a 13 large extent’ on an applicant’s self-reports and not on clinical evidence, and the ALJ finds 14 the applicant not credible, the ALJ may discount the treating provider’s opinion”) (quoting 15 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). 16 An ALJ may properly reject a medical opinion if it lacks support from record 17 evidence and is instead based only on a claimant’s subjective testimony or from testing 18 within their control. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). As 19 discussed below, the ALJ properly rejected Plaintiff’s symptom testimony based on its 20 inconsistency with the medical record and Plaintiff’s daily activities. In rejecting Dr. 21 Schechtman’s opinion, the ALJ did not find any medical evidence corroborating the extent 22 of Dr. Schechtman’s findings, other than the Plaintiff’s own symptom reports. (R. at 20.) 23 In fact, the ALJ appropriately assigned more weight to the opinions of the DDS consultants 24 and Dr. Bejerano which were consistent with and supported by the objective medical 25 1 Plaintiff also argues that the February check-box forms are supported by Dr. 26 Schechtman’s own medical records detailing multiple visits with Plaintiff. (Doc. 19 at 13.) As discussed below, the Court disagrees. Dr. Schechtman’s treatment records are largely 27 inconsistent with her opinions. 2 As discussed in Part III.B, infra, the ALJ properly determined that Plaintiff’s symptom 28 testimony was not credible because it was inconsistent with the objective medical evidence and Plaintiff’s reported daily activities. 1 record. See Tonapetyan, 242 F.3d at 1149 (“When confronted with conflicting medical 2 opinions, an ALJ need not accept a treating physician’s opinion that is conclusory and brief 3 and unsupported by clinical findings.”). 4 Moreover, Dr. Schechtman’s check-box assessments are somewhat inconsistent 5 with her own treatment records. The ALJ considered Dr. Schechtman’s records at length, 6 noting that her records “mention various abnormalities” yet also document findings 7 inconsistent with Plaintiff’s severe limitations. For example, Dr. Schechtman’s check-box 8 assessments claim Plaintiff can only lift ten pounds occasionally; yet the ALJ noted her 9 treatment records document Plaintiff’s normal muscle tone and normal range of motion. 10 (R. at 18, 20.) As another example, Dr. Schechtman’s opinion indicated that Plaintiff can 11 perform “occasional to no manipulative and reaching activities” (R. at 20); yet, the ALJ 12 found inconsistencies, citing to her January 26, 2021 treatment notes which state that 13 Plaintiff can “dress [herself],” “get in and out of bed,” “lift a full cup or glass to [her] 14 mouth,” “walk outdoors on flat ground,” “bend down and pick up clothing from the floor,” 15 “turn faucets on and off,” and “get in and out of car” “without any difficulty.” (R. at 739– 16 40.) Plaintiff claims Dr. Schechtman’s opinion was internally consistent because “Dr. 17 Schechtman observed at every treatment visit that [Plaintiff] had some combination” of 18 symptoms consistent with her diagnosis. (Doc. 22 at 5.) The Court disagrees. The 19 incongruities between Dr. Schechtman’s treating records and check-box assessments 20 provide additional evidence supporting the ALJ’s conclusion that Dr. Schechtman’s 21 opinion was unpersuasive. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 22 (upholding the ALJ’s decision rejecting plaintiff’s treating physician testimony given the 23 “incongruity” between [the physician’s] Questionnaire responses and her medical 24 records”). 25 Accordingly, the ALJ’s finding that Dr. Schechtman’s opinion was unpersuasive is 26 supported by substantial evidence and free from legal error. 27 B. Plaintiff’s Symptom Testimony 28 Plaintiff argues that the ALJ committed materially harmful error by rejecting 1 Plaintiff’s symptom testimony without “specific, clear and convincing reasons supported 2 by substantial evidence” in the record. (Doc. 19 at 18.) The Commissioner counters, 3 claiming the ALJ reasonably rejected Plaintiff’s symptom testimony with clear and 4 convincing reasons. (Doc. 21 at 5.) 5 In evaluating a claimant’s symptom testimony, the ALJ employs a two-step process. 6 Garrison, 759 F.3d at 1014. First, the ALJ considers whether the claimant has presented 7 objective medical evidence of an impairment “which could reasonably be expected to 8 produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 9 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) 10 (internal quotation marks omitted)). Second, if the claimant presents such evidence, “the 11 ALJ can reject the claimant’s testimony about the severity of her symptoms only by 12 offering specific, clear and convincing reasons for doing so.” Garrison, 759 F.3d at 13 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The Ninth Circuit 14 has expressly held that a claimant “need not show that her impairment could reasonably be 15 expected to cause the severity of the symptom she has alleged; she need only show that it 16 could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 17 (internal citation omitted). The clear and convincing standard is the most demanding in 18 Social Security cases. Garrison, 759 F.3d at 1015. An ALJ’s “vague allegation” that a 19 claimant’s symptom testimony is inconsistent with the medical record does not meet the 20 clear and convincing standard. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 21 1102–03 (9th Cir. 2014). Similarly, an ALJ cannot satisfy the clear and convincing 22 standard based solely upon “a lack of medical evidence to fully corroborate the alleged 23 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 24 Here, Plaintiff testified that her impairments “cause inflammation and swelling in 25 her hands and feet” which limits “her ability to lift and stand, walk, and sit for extended 26 periods.” (R. at 17–18.) According to Plaintiff, her pain and fatigue levels varied each day, 27 but “at least a couple times a week” she would need to lie down and rest. (R. at 56.) In 28 evaluating this testimony, the ALJ determined that step one was satisfied as “the claimant’s 1 medically determinable impairments could reasonably be expected to cause some of the 2 alleged symptoms.” (R. at 18.) Nonetheless, the ALJ rejected Plaintiff’s symptom 3 testimony, offering three reasons. First, the ALJ found that Plaintiff’s “statements 4 concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely 5 consistent with the medical evidence and other evidence in the record.” (R. at 18.) Second, 6 the ALJ determined that Plaintiff’s course of treatment “has been essentially routine and 7 conservative in nature.” (R. at 19.) Lastly, the ALJ reasoned Plaintiff’s daily activities were 8 inconsistent and “not limited to the extent one would expect, given [her] complaints of 9 disabling symptoms and limitations.” (Id.) 10 1. Inconsistency with Objective Medical Record 11 The ALJ’s first stated reason for discounting Plaintiff’s testimony was because the 12 testimony was “not entirely consistent with the medical evidence.” (R. at 18.) The ALJ 13 found that Plaintiff has 18/18 tender points and muscle tension consistent with her 14 fibromyalgia and chronic fatigue. (Id.) However, while Plaintiff “complained of achy 15 wrists and swelling,” the ALJ noted that a “bilateral wrist imaging [from July 2019] showed 16 no acute osseous abnormality.” (Id.) An imaging report from July 2020 “noted arthritic 17 changes suggestive of inflammatory arthritis component,” yet, the ALJ found that “[i]n 18 January 2021, the claimant had a normal joint exam of her wrists.” (Id.) The ALJ also 19 evaluated physical examination reports detailing various abnormalities such as “joint 20 crepitus, shoulder weakness, abnormal wrist motion . . .” amongst other symptoms 21 consistent with Plaintiff’s impairments. (Id.) The ALJ determined that the reports, 22 however, also document normal strength, gait, range of motion, reflexes, and motor task 23 ability from different medical examiners. (Id.) In all, the ALJ considered multiple medical 24 examination reports from at least five sources in determining that Plaintiff’s symptom 25 testimony was inconsistent with the objective medical record. 26 Plaintiff asserts that the ALJ failed to sufficiently explain which of her symptoms 27 where consistent or inconsistent with the evidence and how the ALJ’s conclusions were 28 supported. (Doc. 19 at 19.) The Court finds, however, that the ALJ provided a detailed 1 review of Plaintiff’s symptom testimony and identified specific examples of medical 2 evidence that did not support the alleged severity of Plaintiff’s limitations. During her 3 symptom testimony, Plaintiff stressed her severe inflammation and swelling in her hands 4 and feet, her limited physical abilities for extended periods, her need to take regular breaks, 5 as well as her treatment plan and pool exercise. (R. at 18.) In turn, the ALJ determined 6 from the record evidence that Plaintiff exhibited normal strength, normal range of motion, 7 no discomfort sitting during an evaluation, and no difficulty with physical abilities like 8 attending to personal care. (Id.) This substantial evidence in the record supports the ALJ’s 9 decision to reject Plaintiff’s symptom testimony. See Thomas, 278 F.3d at 959 (“If the 10 ALJ’s credibility finding is supported by substantial evidence in the record,” courts “may 11 not engage in second-guessing.”).3 For these reasons, the ALJ properly relied on the 12 objective medical record in rejecting Plaintiff’s symptom testimony. 13 2. Plaintiff’s Daily Activities 14 While a claimant is not required to be completely incapacitated to be found disabled, 15 an ALJ may consider the Plaintiff’s daily activities to determine whether they are 16 “inconsistent with the alleged symptoms.” See Brown-Hunter v. Colvin, 806 F.3d 487, 17 488–89 (9th Cir. 2015); see also 20 C.F.R. § 404.1529(c)(3)(i) (permitting consideration 18 of a claimant’s daily activities when weighing symptoms). A district court “must uphold 19 the ALJ’s decision where the evidence is susceptible to more than one rational 20 interpretation.” Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 21 Here, the ALJ emphasizes Plaintiff’s self-reporting that “she was providing ‘24/7’ 22 care for her mother . . . [and] going to the gym three days a week and [wanting] to increase 23 it.” (R. at 19.) While Plaintiff stated her “limitations make it difficult to complete household 24 chores,” Plaintiff also indicated that she exercised in a pool and had “no difficulty with 25 3 Plaintiff contends that the ALJ emphasized other evidence in the record which supports 26 Plaintiff’s symptom testimony; however, this is inapposite. The ALJ concluded the objective medical record, including Plaintiff’s statements to her providers, is inconsistent 27 with Plaintiff’s testimony regarding the severity of her limitations. The Court declines Plaintiff’s request to second-guess the ALJ’s reasonable interpretation of the evidence, 28 even if such interpretation could give rise to inferences more favorable to Plaintiff. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 1 physical abilities like attending to her personal care and walking on flat ground.” (R. at 2 18.) The ALJ also found that Plaintiff was working as a companion during her alleged 3 disability period. (R. at 19, 604.) Where the “record reflects that the claimant has normal 4 activities of daily living including cooking [and] house cleaning . . . [this] suggest[s] that 5 the claimant may still be capable of performing the basic demands of competitive, 6 remunerative, unskilled work on a sustained basis.” Stubbs-Danielson v. Astrue, 539 F.3d 7 1169, 1175 (9th Cir. 2008). Because the record states that Plaintiff was both working as a 8 companion and giving 24/7 care to her mother during the disability period, the ALJ’s 9 decision is supported by a rational interpretation of the record. 10 A claimant’s daily activities serve as proper context to an ALJ’s credibility 11 determinations, and the ALJ did not err in considering them here. Burch, 400 F.3d at 681 12 (recognizing that an ALJ is “permitted to consider daily living activities” in assessing the 13 credibility of a claimant’s testimony, especially “if a claimant engages in numerous daily 14 activities involving skills that could be transferred to the workplace”). Therefore, the Court 15 finds the ALJ properly relied on “specific, clear and convincing reasons” supported by 16 substantial evidence in rejecting Plaintiff’s symptom testimony. Garrison, 759 F.3d at 17 1014–15 (citing Smolen, 80 F.3d at 1281). 18 3. Conservative Treatment 19 As to her treatment, Plaintiff was first prescribed cyclobenzaprine and diclofenac 20 for her fibromyalgia and hand pain at the time she was working as a companion. (R. at 18; 21 Doc. 21 at 6.) Plaintiff also started treatment with Plaquenil in October 2019. (R. at 18.) 22 The record reflects that Plaintiff’s symptoms were managed as her self-reported levels of 23 pain were reduced from 9/10 or 11/10 pain to 7/10 or 6/10. (See R. at 319, 419, 530, 562, 24 664, 724.) In October of 2020, Plaintiff was prescribed methotrexate “with the goal of 25 being more aggressive” as compared to her current regimen. (R. at 722–23.) By January 26 2021, Plaintiff denied experiencing adverse effects to methotrexate but “was slightly 27 frustrated as she had not had much benefit since starting it.” (R. at 19.) During Plaintiff’s 28 most recent treatment in January 2021, her treating physician did not recommend changing 1 any doses. (R. at 742; Doc. 21 at 6.) The ALJ ultimately found that Plaintiff’s “symptoms 2 have been managed with medication” and her “treatment has been essentially routine and 3 conservative in nature with medication.” (R. at 18–19.) 4 An ALJ may reject a plaintiff’s symptom testimony when the treatment is 5 conservative in nature and inconsistent with the extent of the plaintiff’s symptom 6 complaints. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). The extent of a claimant’s 7 treatment is “an important indicator of the intensity and persistence of [a claimant’s] 8 symptoms.” 20 C.F.R. § 416.929(c)(3). However, if the claimant “has a good reason for 9 not seeking more aggressive treatment,” a conservative course of treatment is not a proper 10 justification for rejecting a plaintiff’s testimony. Carmickle v. Comm’r, Soc. Sec. Admin., 11 533 F.3d 1155, 1162 (9th Cir. 2008). 12 While the Plaintiff’s treatment was relatively conservative and routine for most of 13 the disability period, the October 2020 change to methotrexate is a “more aggressive” form 14 of treatment that weighs against the ALJ’s conclusion. The ALJ failed to note which more 15 aggressive treatment options were available to Plaintiff that she failed to pursue. Moreover, 16 the record shows that the methotrexate was not alleviating Plaintiff’s pain, suggesting that 17 her pain is not managed with medication as the ALJ determined. (R. at 19.) Fibromyalgia 18 has no cure, and its cause is unknown, making it “poorly understood within much of the 19 medical community.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). In Cindy F. 20 v. Berryhill, the Ninth Circuit disagreed with the ALJ’s “characterization of Plaintiff’s 21 fibromyalgia care as ‘conservative’” because it was not supported by substantial evidence. 22 367 F. Supp.3d 1195, 1220 (9th Cir. 2019). As is the case here, if “the ALJ [does] not 23 specify what ‘more aggressive treatment options [are] appropriate or available’ it [is] 24 illogical to discredit Plaintiff ‘for failing to pursue non-conservative treatment options 25 where none exist.” Id. (quoting Lapeirre-Gutt v. Astrue, 381 Fed. App’x 662, 664 (9th Cir. 26 2010). Without more, the ALJ’s finding that Plaintiff’s treatment is “essentially routine 27 and conservative in nature” is not supported by substantial evidence. (R. at 19.) 28 Nonetheless, “[e]ven when the ALJ commits legal error, [the Court will] uphold the 1 || decision where that error is harmless.” Treichler, 775 F.3d at 1099. “An error is harmless 2|| if it is inconsequential to the ultimate nondisability determination, or if the agency’s path 3 || may reasonably be discerned, even if the agency explains its decision with less than ideal 4|| clarity.” /d. (internal citations and quotations omitted). The Court has found at least two 5 || clear and convincing reasons supported by substantial evidence for the ALJ’s decision to || reject Plaintiff's symptom testimony—that Plaintiff's testimony was inconsistent with both 7 || the objective medical record and Plaintiff's daily activities. While the ALJ erred in relying 8 || on conservative treatment, this error is harmless because it is “inconsequential to the 9|| ultimate nondisability determination” and would not change the validity of the ALJ’s decision to reject Plaintiff's testimony. Treichler, 775 F.3d at 1099; see also Bray v. 11 || Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding the ALJ’s 12 || reliance on an invalid reason to discount claimant’s allegations was “harmless error” where || the ALJ has also relied on other valid reasons).* IV. Conclusion 15 Accordingly, 16 IT IS ORDERED affirming the April 7, 2021 decision by the Administrative Law || Judge (R. at 14), as upheld by the Appeals Council on October 25, 2021. (R. at 1.) 18 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment 19 || consistent with this Order and close this case. 20 Dated this 12th day of January, 2023. 21 Michal T. Hbhurdle Michael T. Liburdi 24 United States District Judge 25 26 4 Plaintiff also asks this Court to apply the “credit-as-true” rule, which would result in a remand of Plaintiffs case for payment of benefits rather than for further proceedings. (Doc. 19 at 25.) Because the Court has affirmed the ALJ’s decision, the Court need not address the parties’ remand arguments. -14-