1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 DONNA R. STEVENS, Case No. EDCV 19-0809-AS 12 Plaintiff, MEMORANDUM OPINION 13 v. 14 ANDREW M. SAUL, Commissioner of Social Security,1 15 Defendant. 16
17 PROCEEDINGS 18 19 On April 30, 2019, Plaintiff filed a Complaint seeking review 20 of the Commissioner’s denial of Plaintiff’s applications for a 21 period of disability and disability insurance benefits (“DIB”) and 22 Supplemental Security Income (“SSI”) under Titles II and XVI, 23 respectively, of the Social Security Act. (Dkt. No. 1). On October 24 16, 2019, Defendant filed an Answer and the Administrative Record 25 26 1 Andrew M. Saul, Commissioner of Social Security, is 27 substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 28 1 (“AR”). (Dkt. Nos. 15-16). The parties have consented to proceed 2 before a United States Magistrate Judge. (Dkt. Nos. 11-12). On 3 January 7, 2020, the parties filed a Joint Stipulation (“Joint 4 Stip.”) setting forth their respective positions regarding 5 Plaintiff’s claim.2 (Dkt. No. 17). The Court has taken this matter 6 under submission without oral argument. See C.D. Cal. C. R. 7-15. 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 On August 3, 2010, Plaintiff, previously employed as a 11 receptionist and customer service representative (see AR 177, 953), 12 filed an application for DIB alleging a disability onset date of 13 October 1, 2009, which Plaintiff eventually amended to May 1, 2012. 14 (AR 116-22, 966). Plaintiff’s application was denied on February 15 24, 2011. (AR 97-102). Plaintiff then requested a hearing before 16 an Administrative Law Judge (“ALJ”) on April 5, 2011. (AR 105; 17 see AR 20). On November 15, 2011, ALJ Milan M. Dostal heard 18 testimony from Plaintiff, who was represented by counsel, and 19 vocational expert (“VE”) Alan L. Ey. (AR 62-96). On March 14, 20 2012, ALJ Dostal issued a decision denying Plaintiff’s application. 21 (See AR 20-28). 22 23 The Appeals Council then denied a request for review (AR 1- 24 3), and Plaintiff filed a complaint in this Court seeking review 25
26 2 The case was reassigned to the undersigned on April 2, 2020. (Dkt. No. 18). 27
28 1 of the Commissioner’s decision. (See Stevens v. Colvin, C.D. Cal. 2 Case No. SACV 13-1531-FFM). On November 13, 2014, the Court 3 remanded the matter for further proceedings. (Id., Dkt. No. 18; 4 AR 1202-09). 5 6 Following this Court’s remand order, on January 21, 2015, the 7 Appeals Council observe that Plaintiff had also filed new DIB and 8 SSI applications in 2013, pursuant to Titles II and XVI, 9 respectively, which were then pending at the hearing level. (AR 10 1212-13; see AR 1543-45). The Appeals Council directed that these 11 subsequent claims be consolidated with the 2010 DIB application, 12 and that the ALJ issue a new decision on the consolidated claims. 13 (AR 1212). 14 15 On May 18, 2016, ALJ Sharilyn Hopson held a hearing and 16 received testimony from Plaintiff, who was represented by counsel, 17 and from VE Susan Allison. (AR 963-92). During this hearing, 18 Plaintiff amended her alleged disability onset date to May 1, 2012. 19 (AR 966). On July 21, 2016, ALJ Hopson issued a decision finding 20 Plaintiff not disabled and denying her applications. (AR 1274- 21 97). Plaintiff requested review by the Appeals Council, which 22 granted review and remanded for further proceedings on January 6, 23 2017. (AR 1298-1304). On remand from the Appeals Council, ALJ 24 Hopson conducted another hearing on January 31, 2018, receiving 25 testimony from Plaintiff and VE Jeanine Metildi. (AR 993-1011). 26 On February 26, 2018, ALJ Hopson issued another unfavorable 27 decision. (AR 935-62. 28 1 On March 2, 2019, the Appeals Council denied Plaintiff’s 2 request to review the ALJ’s decision. (AR 923-26). Plaintiff now 3 seeks judicial review of the ALJ’s February 26, 2018 decision, 4 which stands as the final decision of the Commissioner. See 42 5 U.S.C. § 405(g). 6 7 SUMMARY OF ADMINISTATIVE DECISION 8 9 The ALJ applied the requisite five-step process to evaluate 10 Plaintiff’s case. (AR 942-53). At step one, the ALJ found that 11 Plaintiff met the insured status requirements of the Social 12 Security Act through December 31, 2014, and had not engaged in 13 substantial gainful activity since May 1, 2012, her amended alleged 14 onset date. (AR 942). At step two, the ALJ found that Plaintiff 15 had the following severe impairments: irritable bowel syndrome; 16 fibromyalgia; lumbar discogenic disease with radiculopathy; status 17 post laparoscopic cholecystectomy; reflex sympathetic dystrophy 18 (“RSD”); osteoarthritis/bursitis of the hips; osteoarthritis of 19 the knees; status post pacemaker; asthma; and obesity. (AR 942).3 20 At step three, the ALJ determined that Plaintiff’s impairments did 21 not meet or equal a listing found in 20 C.F.R Part 404, Subpart P, 22 Appendix 1.4 (AR 943). 23
24 3 The ALJ found Plaintiff’s gastroesphageal reflux 25 disease, hypothyroidism, tremors controlled with medications, depression, and anxiety disorder to be non-severe impairments. (AR 26 942). 27 4 The ALJ specifically considered Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 5.05 28 1 Next, the ALJ found that Plaintiff had the Residual Functional 2 Capacity (“RFC”)5 to perform sedentary work, as defined in 20 C.F.R. 3 §§ 404.1567(a), 416.967(a), with the following limitations: 4 5 [Plaintiff] can lift and/or carry 20 pounds occasionally 6 and ten pounds frequently; can stand for 15 minutes at 7 one time and for a total of one hour during an eight- 8 hour workday; can walk for 15 minutes at one time and 9 for a total of one hour during an eight-hour workday; 10 can sit for six hours during an eight hour workday with 11 normal breaks, such as every two hours; must be allowed 12 to use a cane for standing and walking; can frequently 13 reach in all direction bilaterally; can frequently 14 handle, finger, and feel bilaterally; can frequently push 15 and pull with the upper extremities bilaterally; can 16 occasionally use foot pedals bilaterally; cannot climb 17 ramps, stairs, ladders, ropes or scaffolds; can 18 occasionally kneel, stoop, climb, and crouch; cannot 19 crawl; cannot work at unprotected heights or with moving 20 mechanical parts; can occasionally operate a motor 21 vehicle; can have occasional exposure to humidity and 22 wetness; can have frequent exposure to dust, odors, 23 fumes, and other pulmonary irritants; can have occasional 24
25 (chronic liver disease), and 5.06 (inflammatory bowel disease). (AR 944). 26 5 A Residual Functional Capacity is what a claimant can 27 still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 28 1 exposure to extreme cold; can have frequent exposure to 2 extreme heat; can have occasional exposure to commercial 3 vibration; is limited to a loud environment such as heavy 4 traffic; and must have close proximity to a restroom. 5 6 (AR 944). At step four, the ALJ found that Plaintiff was capable 7 of performing her past relevant work as a receptionist and customer 8 service representative. (AR 953). The ALJ thus concluded that 9 Plaintiff was not disabled. (AR 953-54). 10 11 STANDARD OF REVIEW 12 13 This Court reviews the Administration’s decision to determine 14 if it is free of legal error and supported by substantial evidence. 15 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 16 “Substantial evidence” is more than a mere scintilla, but less than 17 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 18 2014). To determine whether substantial evidence supports a 19 finding, “a court must consider the record as a whole, weighing 20 both evidence that supports and evidence that detracts from the 21 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 22 1035 (9th Cir. 2001) (internal quotation omitted). As a result, 23 “[i]f the evidence can support either affirming or reversing the 24 ALJ’s conclusion, [a court] may not substitute [its] judgment for 25 that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 26 (9th Cir. 2006). 27 28 1 DISCUSSION 2 3 Plaintiff claims that the ALJ’s RFC assessment is not 4 supported by substantial evidence. (See Joint Stip. at 5-9, 16- 5 18). While Plaintiff does not dispute the limitation to sedentary 6 exertion, she contends that she “lacks the ability to sustain such 7 level of activity on a full-time, consistent basis,” particularly 8 due to her severe impairments of fibromyalgia and RSD (also known 9 as Complex Regional Pain Syndrome (“CRPS”). (Id. at 5). Plaintiff 10 also contends that the ALJ erred by failing to properly assess her 11 subjective complaints and to consider whether she can adequately 12 sustain the exertion level. (Id. at 5-9, 16-18). 13 14 After consideration of the record as a whole, the Court finds 15 that the Commissioner’s findings are supported by substantial 16 evidence and are free from material legal error.6 17 18 A. Legal Standard for Assessing Claimant’s RFC and Evaluating 19 Subjective Statements 20 21 “A claimant’s residual functional capacity is what he can 22 still do despite his physical, mental, nonexertional, and other 23 limitations.” Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 24 Cir. 1989) (citing 20 C.F.R. § 404.1545). An RFC assessment 25 6 The harmless error rule applies to the review of 26 administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 27 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 28 1 requires the ALJ to consider a claimant’s impairments and any 2 related symptoms that may “cause physical and mental limitations 3 that affect what [he] can do in a work setting.” 20 C.F.R. 4 §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC, 5 the ALJ considers all relevant evidence, including a claimant’s 6 statements and residual functional capacity assessments made by 7 consultative examiners, State Agency physicians, and medical 8 experts. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also id. 9 §§ 404.1513(c), 416.913(c). 10 11 When assessing a claimant’s credibility regarding subjective 12 pain or intensity of symptoms, the ALJ must engage in a two-step 13 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 14 First, the ALJ must determine if there is medical evidence of an 15 impairment that could reasonably produce the symptoms alleged. 16 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “In this 17 analysis, the claimant is not required to show that her impairment 18 could reasonably be expected to cause the severity of the symptom 19 she has alleged; she need only show that it could reasonably have 20 caused some degree of the symptom.” Id. (emphasis in original) 21 (citation omitted). “Nor must a claimant produce objective medical 22 evidence of the pain or fatigue itself, or the severity thereof.” 23 Id. (citation omitted). 24 25 If the claimant satisfies this first step, and there is no 26 evidence of malingering, the ALJ must provide specific, clear and 27 convincing reasons for rejecting the claimant’s testimony about 28 the symptom severity. Id., at 1014-15. see also Robbins, 466 F.3d 1 at 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of 2 malingering based on affirmative evidence thereof, he or she may 3 only find an applicant not credible by making specific findings as 4 to credibility and stating clear and convincing reasons for 5 each.”). “This is not an easy requirement to meet: The clear and 6 convincing standard is the most demanding required in Social 7 Security cases.” Garrison, 759 F.3d at 1015 (citation omitted). 8 9 Where, as here, the ALJ finds that a claimant suffers from a 10 medically determinable physical or mental impairment that could 11 reasonably be expected to produce her alleged symptoms, the ALJ 12 must evaluate “the intensity and persistence of those symptoms to 13 determine the extent to which the symptoms limit an individual’s 14 ability to perform work-related activities for an adult.” Soc. 15 Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3.7 SSR 16–3p 16 superseded SSR 96–7p and eliminated the term “credibility” from 17 the Agency’s sub-regulatory policy. However, the Ninth Circuit 18 has noted that SSR 16–3p “makes clear what [the Ninth Circuit’s] 19 precedent already required”: 20 21 that assessments of an individual’s testimony by an ALJ 22 are designed to “evaluate the intensity and persistence 23 of symptoms after the ALJ finds that the individual has 24
25 7 SSR 16-3p, which superseded SSR 96-7p, is applicable to this case, because SSR 16-3p, which became effective on March 28, 26 2016, was in effect at the time of the Appeal Council’s March 2, 2019 denial of Plaintiff’s request for review. Nevertheless, the 27 regulations on evaluating a claimant’s symptoms, including pain, see 20 C.F.R. §§ 404.1529 and 416.929, have not changed. 28 1 a medically determinable impairment(s) that could 2 reasonably be expected to produce those symptoms, and 3 not to delve into wide-ranging scrutiny of the 4 claimant’s character and apparent truthfulness. 5 6 Trevizo, 871 F.3d at 679 n.5 (quoting SSR 16–3p) (alterations 7 omitted). 8 9 In discrediting the claimant’s subjective symptom testimony, 10 the ALJ may consider: “ordinary techniques of credibility 11 evaluation, such as . . . prior inconsistent statements concerning 12 the symptoms, and other testimony by the claimant that appears less 13 than candid; unexplained or inadequately explained failure to seek 14 treatment or to follow a prescribed course of treatment; and the 15 claimant’s daily activities.” Ghanim v. Colvin, 763 F.3d 1154, 16 1163 (9th Cir. 2014) (citation omitted). Inconsistencies between 17 a claimant’s testimony and conduct, or internal contradictions in 18 the claimant’s testimony, also may be relevant. Burrell v. Colvin, 19 775 F.3d 1133, 1137 (9th Cir. 2014). In addition, the ALJ may 20 consider the observations of treating and examining physicians 21 regarding, among other matters, the functional restrictions caused 22 by the claimant’s symptoms. Smolen, 80 F.3d at 1284; accord 23 Burrell, 775 F.3d at 1137. However, it is improper for an ALJ to 24 reject subjective testimony based “solely on a lack of objective 25 medical evidence to fully corroborate the claimant’s allegations.” 26 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 27 2009) (citation omitted). 28 1 The ALJ must make a credibility determination with findings 2 that are “sufficiently specific to permit the court to conclude 3 that the ALJ did not arbitrarily discredit claimant’s testimony.” 4 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation 5 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 6 2015) (“A finding that a claimant’s testimony is not credible must 7 be sufficiently specific to allow a reviewing court to conclude 8 the adjudicator rejected the claimant’s testimony on permissible 9 grounds and did not arbitrarily discredit a claimant’s testimony 10 regarding pain.”) (citation omitted). Although an ALJ’s 11 interpretation of a claimant’s testimony may not be the only 12 reasonable one, if it is supported by substantial evidence, “it is 13 not [the court’s] role to second-guess it.” Rollins v. Massanari, 14 261 F.3d 853, 857 (9th Cir. 2001). 15 16 B. Plaintiff’s Subjective Statements and Testimony 17 18 In a function report dated October 25, 2010, Plaintiff 19 reported that she suffered from fibromyalgia, as well as irritable 20 bowel syndrome (IBS), acid reflux, hypothyroidism, and 21 diverticulitis. (AR 160). Plaintiff wrote that she went grocery 22 shopping one to three times a week, but could not “be out for more 23 than 2 hours without feeling dizzy, weak, joint pain and sometimes 24 nausea.” (AR 153). Plaintiff reported that she bathed and dressed 25 herself, fed and bathed the dog, and prepared meals and cleaned 26 with help from her elderly mother. (AR 153-54). On Fridays, she 27 would spend the day “slowly work[ing] on the house cleaning with 28 [her] mother.” (AR 154). Plaintiff did laundry, “light vacuuming” 1 and mopping, and pulled small weeds. (AR 154). Plaintiff reported, 2 however, that “stress of any physical activity like cleaning” could 3 result in “flu like symptoms,” numbness in her arms and hands and 4 pain in her feet, knees, thighs, and back. (AR 160). Plaintiff 5 drove herself for short distance, but her limbs and hands would 6 “go numb after using them for more than 15 minutes at a time.” (AR 7 154). She watched television “off and on all day.” (AR 157). She 8 reported that she could lift about ten pounds, could not stand or 9 walk for more than an hour without feeling sick, and could walk 10 for less than a block. (AR 158). She stated that sitting for 11 “to[o] long hurt[] her bottom and legs.” (AR 158). She also had 12 difficulty concentrating, and would lose her train of thought, but 13 she could pay attention for a couple of hours if “not feeling 14 dizzy.” (AR 158). 15 16 At the hearing in 2011, Plaintiff testified that she 17 experienced pain “[e]verywhere,” but mostly in her back, as well 18 as her thighs and arms, and that the pain was brought on by “stress” 19 or “anything,” and her arms sometimes went “completely numb.” (AR 20 70). Plaintiff testified that she also suffered from nausea. (AR 21 72). She stated that “all the jobs that [she] lost [were] due to 22 sickness.” (AR 72). She explained that there were “flu like 23 symptoms accompanying pain,” which was “kind of like stabbings in 24 the muscle.” (AR 72). Plaintiff stated that she experienced 25 fibromyalgia symptoms every day. (AR 72-73). She took pain 26 medications, such as Gabapentin, which helped, but she still felt 27 pain; it was “not killing the pain totally.” (AR 73). She also 28 rested. (AR 72). 1 Plaintiff testified that on a typical day, she would “get 2 [her] son off to school,” and then generally sleep for a couple 3 hours in the “early afternoon.” (AR 73-74). Otherwise, on many 4 days, she said she lay in bed watching television, but felt “pretty 5 excruciating” pain when she got up after lying or sitting too long. 6 (AR 75-76). She stated that she could sit for an hour but not two. 7 (AR 76). 8 9 She said she bathed and dressed herself, and did light cooking 10 and cleaning, including vacuuming with “one of those little tiny 11 vacuums that’s real light.” (AR 78). She shopped for groceries, 12 and was able to load the groceries one item at a time. (AR 78- 13 79). She could lift a gallon of milk at most. (AR 77). She 14 testified that she would go shopping with her mother, and would 15 “have to move” or else she would “feel woozy and nauseas” and 16 “start going into pain.” (AR 76). She stated that she could stand 17 and walk for an hour and a half at a time, if she kept moving. (AR 18 76). Afterward, she needed to sit or lie down. (AR 77). Plaintiff 19 testified that if she did anything “remotely physical for any 20 length of time,” such as gardening for over an hour, she became 21 “sick” for “usually the next three days, sometimes a week.” (AR 22 78). Plaintiff stated that she had “basically” been in bed for 23 the past two months. (AR 78). 24 25 On a function report from 2013 (see AR 1649-58), Plaintiff 26 reported that she could dress herself and take showers, but could 27 not get up from a bath and found it difficult to put on shoes. (AR 28 1650). She did light dusting and vacuuming, “a little at a time 1 so it [took] all day.” (AR 1651). She prepared food but did not 2 “have enough energy to make complex dishes.” (AR 1651). She 3 shopped twice a week, for thirty to sixty minutes. (AR 1652). She 4 reported that her only activity was watching television. (AR 5 1653). She could lift about ten pounds, could not stand in one 6 place without getting nauseous, weak, and dizzy, could walk or sit 7 for only ten minutes before feeling pain, and could pay attention 8 for about twenty minutes. (AR 1654). 9 10 In 2016, Plaintiff testified that she suffered pain 11 “everywhere,” but it was worse in her legs and back. (AR 975-76). 12 She stated that the pain was in her arms “occasionally” but “not 13 every day.” (AR 976). She described it as a “[t]ingling, kind of 14 numbing kind of a pain” that was “in [her] body almost all the 15 time.” (AR 976). Plaintiff stated that she had four bad days a 16 week, when the pain was an eight or nine on a scale of ten. (AR 17 976-77). When the pain became that severe, “the only thing that 18 really help[ed]” was lying down, which “resolve[d] it.” (AR 977). 19 Plaintiff stated that she would lie down for “[a]t least a couple 20 of hours.” (AR 977). Plaintiff also stated that she had “constant 21 fatigue,” which made her “just want to sleep.” (AR 981). There 22 were also periods when she had “a real hard time concentrating and 23 focusing,” but “not all the time.” (AR 981). 24 25 Plaintiff testified that she could sit for about twenty 26 minutes before feeling pain, but could manage for about forty-five 27 minutes if she “pushed it.” (AR 978). When she got up, she paced 28 around because it felt better when she moved. (AR 978). She said 1 she could stand in place for only about twenty minutes before her 2 back started hurting. (AR 978). Plaintiff stated that she needed 3 a cane to walk, and had needed it since she had a fall in September 4 2012. (AR 979). She could walk about half a block before needing 5 to rest for about fifteen minutes. (AR 980). Plaintiff also 6 testified that she had arthritis in her knees, for which she had a 7 brace that she wore “[e]very once in a while.” (AR 982-83). 8 9 Plaintiff stated that she showered and dressed herself and 10 did some cooking and light cleaning, such as vacuuming and dusting. 11 (AR 983-84). She could lift a ten-pound bag of flour, but could 12 not lift twenty pounds. (AR 980). She drove herself for short 13 distances, about three times a week, to the grocery store and 14 doctor’s appointments. (AR 973-74). Her treatment included “aqua 15 therapy,” which she said was helping. (AR 974). 16 17 In 2018, Plaintiff testified that her symptoms had worsened. 18 (AR 996). She currently had flu-like symptoms and fatigue, and 19 had been bedridden for three days. (AR 996-97). She had “a lot of 20 pain” in her legs, hips, arms, neck, and back, and her hands would 21 go numb if she “use[d] them for more than 15 minutes.” (AR 997). 22 She described the pain as being “like somebody’s stabbing you with 23 a knife in the bone in a rhythmic kind of way.” (AR 1002). She 24 stated that she “want[ed] to work” but “every time [she] tr[ied],” 25 she got “sick.” (AR 997-98). She explained that in 2016 she 26 briefly took a job in customer service but felt “flu coming on 27 again” about two weeks in. (AR 998, 1001). She then “ended up 28 with a heart problem” and “ultimately had to have a pacemaker put 1 in.” (AR 998, 1001). After a week back at work, they told her 2 “it just wasn’t working out” because she “wasn’t catching on.” (AR 3 998). She then took a job as a cashier at Target but “got pneumonia 4 for two weeks” after her second week of work, and ended up “one of 5 the seasonal people they didn’t keep.” (AR 998). Plaintiff’s 6 mother then passed away, making it difficult to function at times. 7 (AR 997, 998). She had maybe two good days a week, when she could 8 “go grocery shopping and do the things [she] need[s] to do,” but 9 she spent the rest of the week mostly lying in bed or on the couch. 10 (AR 1000). In the eight hours from 9:00 to 5:00, she spent about 11 five or six hours lying down. (AR 1000-01). 12 13 C. The ALJ’s Credibility Findings 14 15 The ALJ found that Plaintiff’s medically determinable 16 impairments could reasonably be expected to cause the alleged 17 symptoms, but her statements concerning the intensity, persistence 18 and limiting effects of these symptoms were “not entirely 19 consistent with the medical evidence and other evidence in the 20 record for the reasons explained in th[e] decision.” (AR 946). 21 22 The ALJ observed that Plaintiff’s physical examinations had 23 “largely been unremarkable, with [Plaintiff] noted as being in no 24 acute distress, with a normal gait, and no significant neurological 25 deficits.” (AR 946). The ALJ found that Plaintiff’s diagnostic 26 tests, including x-rays and MRI exams, generally showed “nothing 27 beyond some mild abnormalities.” (AR 947). The ALJ noted that 28 Plaintiff’s treatment “consisted primarily of conservative 1 measures which have been reported as helpful,” (AR 946) and that 2 the records generally indicate that Plaintiff’s conditions were 3 “stable” and “reflect [Plaintiff’s] report that medications allow 4 her to be functional and ‘able to perform typical house maintenance 5 duties, cooking, cleaning, [and] laundry’ without adverse effects.” 6 (AR 947) (citing AR 3137; quoting AR 3161). 7 8 The ALJ also found that Plaintiff had made inconsistent 9 statements and had admitted engaging in activities that suggested 10 she was not as limited as she alleged. (AR 948). As examples, 11 the ALJ noted that Plaintiff alleged that she spent most of her 12 time lying down, yet reported helping her son get ready for school 13 in the mornings, grocery shopping twice a week, preparing meals, 14 mopping, feeding and bathing the dog, swimming, pulling small 15 weeds, and other activities that did not involve simply lying down. 16 (AR 946, 948, 952). The ALJ observed, based on the statements in 17 the treatment notes, that Plaintiff seemed to have stopped working 18 “simply because she was understandably busy helping her mother, 19 who was undergoing treatment for breast cancer.” (AR 947). After 20 Plaintiff’s mother passed away, Plaintiff “reported she was looking 21 for work”, and she “also reported she was keeping busy cleaning 22 and organizing her mother’s house to prepare it for sale and did 23 not indicate having any difficulties with these activities.” (AR 24 947) (citing AR 3088, 3106). 25 26 The ALJ thus concluded that “while [Plaintiff] may be somewhat 27 limited and clearly not capable of functioning at the level of 28 which she was previously capable,” she was still “quite active and 1 competent and routinely perform[ed] activities which suggest[ed] 2 she remain[ed] physically capable of meeting the demands of 3 sedentary work,” as set forth in the RFC. (AR 948-49). The ALJ 4 further explained that she “found some of [Plaintiff’s] allegations 5 sufficiently supported by the medical evidence to warrant the 6 establishment of some limitations beyond those set forth by medical 7 sources,” but found “some of her allegations (i.e., that she lies 8 down most of the day) to be insufficiently supported to warrant 9 adoption.” (AR 952). The ALJ determined overall that “a limited 10 range of sedentary work is consistent with the objective medical 11 evidence and clinical findings and reflects those aspects of 12 [Plaintiff’s] allegations that are reasonably consistent with the 13 record as a whole.” (AR 952). 14 15 D. Analysis 16 17 As set forth below, the ALJ’s evaluation of Plaintiff’s 18 subjective statements and testimony regarding her functional 19 limitations was supported by specific, clear and convincing reasons 20 backed by substantial evidence in the record. Plaintiff has failed 21 to identify any material error in the ALJ’s assessment. 22 23 First, the ALJ appropriately found that Plaintiff’s reported 24 activities eroded her credibility because Plaintiff made 25 inconsistent statements and had admitted engaging in activities 26 that suggested she was not as limited as alleged. (See AR 948). 27 As the ALJ noted, Plaintiff’s reported activities included helping 28 her son get ready for school in the mornings, grocery shopping 1 twice a week, preparing meals, mopping, feeding and bathing the 2 dog, swimming, and pulling small weeds. (See AR 73, 78-78, 153- 3 54, 973-74, 983-84, 1650-52) (Plaintiff’s statements about dressing 4 herself, showering, “get[ing] [her] son off to school” in the 5 mornings, mopping, dusting and vacuuming, feeding and bathing dog, 6 pulling weeds, preparing meals, shopping two or three days a week, 7 driving to grocery store and appointments); AR 1836 (2014 treatment 8 record noting Plaintiff’s report that she “was swimming most days 9 of the week” and was “doing well with pain and [weight] loss”); AR 10 3088: (2017 treatment record noting Plaintiff “[h]as been busy with 11 cleaning and organizing the house, getting ready to sale”); AR 3161 12 (2016 treatment record stating that “[a]lthough [Plaintiff] reports 13 high pain scores, current medication regimen allows her to be 14 functional, able to perform typical house maintenance duties, 15 cooking, cleaning, laundry”); AR 3195 (2016 treatment record noting 16 Plaintiff could “walk 4-5 blocks with no symptoms”). The ALJ 17 reasonably found that these activities conflicted with Plaintiff’s 18 claims of spending her days lying down due to debilitating pain. 19 (See AR 78) (“I basically have been in bed for going on two months 20 now, you know.”); AR 1000-01) (testifying that she spends most of 21 her days lying down)). 22 23 Plaintiff contends that the ALJ “failed to adequately explain 24 how these routine activities translate into the ability to perform 25 sedentary work on a full-time, competitive and sustained basis.” 26 (Joint Stip. at 9). However, Plaintiff’s activities adequately 27 support the ALJ’s determination that Plaintiff’s conditions were 28 not as limiting as alleged. See Burrell, 775 F.3d at 1137 1 (“Inconsistencies between a claimant's testimony and the claimant's 2 reported activities provide a valid reason for an adverse 3 credibility determination.”); Ghanim, 763 F.3d at 1165 (“Engaging 4 in daily activities that are incompatible with the severity of 5 symptoms alleged can support an adverse credibility 6 determination.”); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 7 2012) (“Even where [a claimant’s] activities suggest some 8 difficulty functioning, they may be grounds for discrediting the 9 claimant’s testimony to the extent that they contradict claims of 10 a totally debilitating impairment.”); Burch v. Barnhart, 400 F.3d 11 676, 680-81 (9th Cir. 2005) (claimant’s allegations of disability 12 properly discredited where claimant was able to care for her own 13 personal needs, cook, clean, shop, interact with her nephew and 14 boyfriend, and manage finances). 15 16 The ALJ also appropriately relied on the fact that 17 Plaintiff’s treatment “consisted primarily of conservative 18 measures which have been reported as helpful.” (AR 946). 19 Substantial evidence supports this finding. (See AR 2344 (“Overall 20 course = gradually improving with start of prednisone for RSD and 21 Naltrexone”; “pain has improved”); AR 2346 (“Patient responded well 22 to exercises.”); AR 2363 (“Overall course = gradually improving 23 with start of prednisone for RSD and Naltrexone”; “pain has 24 improved”); AR 2705 (same); AR 2717 (same); AR 3137 (“Although she 25 reports high pain scores, current medication regimen allows her to 26 be functional, able to perform typical house maintenance duties, 27 cooking, cleaning and laundry, improved function and improved pain 28 interference.”); AR 3148 (“pain in joints all over is improved when 1 she takes her nucyunta. . . . Doing well in aquatic therapy. 2 [Plaintiff] states her lower back pain improves with swimming.”)). 3 In addition, as the ALJ noted, these records typically describe 4 Plaintiff’s fibromyalgia as “mild.” (See AR 2344, 2363, 2694, 5 2705, 2717). Plaintiff’s favorable response to conservative 6 treatment was an appropriate basis to discount the severity of her 7 allegations.8 See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 8 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 9 effectively with medication are not disabling for the purpose of 10 determining eligibility for SSI benefits.”); Tommasetti, 533 F.3d 11 at 1040 (“The record reflects that Tommasetti responded favorably 12 to conservative treatment . . . . Such a response to conservative 13 treatment undermines Tommasetti’s reports regarding the disabling 14 nature of his pain.”); Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 15 1996) (“evidence suggesting that [the claimant] responded well to 16 treatment” supports an adverse credibility finding). 17 18 The record supports the ALJ’s finding that Plaintiff’s 19 physical examinations had “largely been unremarkable, with 20 [Plaintiff] noted as being in no acute distress, with a normal 21 gait, and no significant neurological deficits.” (AR 946; see AR 22 1712-14 (June 2015 exam, no acute distress, normal strength and
23 8 Plaintiff also claims that the ALJ failed to “cite to any evidence that there exists more aggressive treatment options 24 or that the medical professionals have recommended them.” (Joint 25 Stip. at 8). However, the ALJ did not discount Plaintiff’s statements based merely on her lack of more aggressive treatment, 26 but because her conservative treatment had “been reported as helpful,” (AR 946), improved her condition and enabled her to 27 perform household tasks, such as cooking and cleaning, “without adverse effects.” (AR 947). 28 1 sensory/neurological); AR 2322 (October 2013 exam, “No distress”); 2 AR 2742 (February 2013 exam, “in no acute distress,” “alert and 3 oriented,” negative straight leg raise, moderately decreased 4 cervical and lumbar range of motion); AR 3128 (October 2016, “No 5 apparent distress,” full strength and full range of motion without 6 pain in most areas, intact sensory, normal gait); AR 3141 (August 7 2016, “Pleasant,” normal posture, ambulatory, grossly intact 8 sensation, grossly normal strength); AR 3150 (July 2016, “No 9 apparent distress,” normal gait, full strength, intact sensory); 10 AR 3160 (May 2016, no acute distress, grossly normal strength and 11 sensory); AR 3092 (July 2017, “GENERAL: Pleasant”). 12 13 The record also supports the ALJ’s finding that Plaintiff’s 14 diagnostic tests generally showed “nothing beyond some mild 15 abnormalities.” (AR 947; see, e.g., AR 2277-78, 2996 (2012 16 myocardial perfusion rest and stress test, results normal); AR 2944 17 (2011 right shoulder x-ray, normal); AR 2168, 2651, 2947 (2012 18 right hip x-rays, normal); AR 2167, 2648, 2950 (2012 right knee x- 19 rays, mild osteoarthritis and small joint effusion)); AR 2139, 20 2643, 2955 (2012 left knee x-rays, mild osteoarthritis); AR 2120, 21 2637, 2960 (2012 lumbar spine x-rays, normal); AR 1884 (2014 lumbar 22 spine x-rays, mild degenerative disc disease and mild degenerative 23 joint disease); AR 1763, 1827, 3023, 3037, 3170 (2015 and 2016 hip 24 x-rays, mild osteoarthritis); AR 1756-57, 3021-22, 3035, 3143, 25 3157, 3174-75, 3185 (2016 lumbar spine MRI, mild scoliosis and 26 degenerative disc disease); AR 3008 (2016 chest and ribs x-rays, 27 normal). 28 1 The Court acknowledges that diagnostic tests and other 2 objective measures may be of little value in assessing Plaintiff’s 3 impairments of fibromyalgia and RSD/CRPS. As Plaintiff points 4 out, fibromyalgia “is a disease that eludes objective evidence.”9 5 (Joint Stip. at 6) (citing Benecke v. Barnhart, 379 F.3d 587, 594 6 (9th Cir. 2004)). As for RSD, “conflicting evidence in the medical 7 record is not unusual . . . due to the transitory nature of its 8 objective findings and the complicated diagnostic process 9 involved.”10 SSR 03-2p. Indeed, an important characteristic of 10 RSD is “that the degree of pain reported is out of proportion to
11 9 Fibromyalgia is “a rheumatic disease that causes 12 inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue.” Benecke, 379 F.3d 13 at 589. Typical symptoms include “chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of 14 sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease.” Id. at 590. Those suffering from 15 fibromyalgia have normal muscle strength, sensory functions, and 16 reflexes. Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017). Because “there are no laboratory tests to confirm the diagnosis,” 17 fibromyalgia is assessed “entirely on the basis of patients’ reports of pain and other symptoms.” Benecke, 379 F.3d at 590; 18 see Revels, 874 F.3d at 657 (a “diagnosis of fibromyalgia does not rely on X-rays or MRIs”). The Agency’s regulations urge ALJs to 19 consider “a longitudinal record whenever possible” because “the symptoms of fibromyalgia ‘wax and wane,’ and . . . a person may 20 have ‘bad days and good days.’” Revels, 874 F.3d at 657 (quoting 21 SSR 12-2p)). 22 10 “RSDS/CRPS is a chronic pain syndrome most often resulting from trauma to a single extremity. It also can result from 23 diseases, surgery, or injury affecting other parts of the body. . . . The most common acute clinical manifestations include 24 complaints of intense pain and findings indicative of autonomic 25 dysfunction at the site of precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities 26 in the affected region involving the skin, subcutaneous tissue, and bone.” SSR 03-2p. SSR 03-02p requires ALJs to adjudicate CRP 27 claims using the sequential evaluation process, “just as for any other impairment.” 28 1 the severity of the injury sustained by the individual.” SSR 03- 2 2p. 3 4 However, these were not Plaintiff’s only severe impairments. 5 The objective evidence, among other evidence, was relevant to 6 assess the severity of Plaintiff’s limitations at least with 7 respect to her other impairments, such as osteoarthritis of the 8 knees and hips and lumbar discogenic disease with radiculopathy. 9 (AR 942); see Rollins, 261 F.3d at 857 (“While subjective pain 10 testimony cannot be rejected on the sole ground that it is not 11 fully corroborated by objective medical evidence, the medical 12 evidence is still a relevant factor in determining the severity of 13 the claimant’s pain and its disabling effects.”); SSR 16-3p, *5 14 (“objective medical evidence is a useful indicator to help make 15 reasonable conclusions about the intensity and persistence of 16 symptoms, including the effects those symptoms may have on the 17 ability to perform work-related activities”). Here, the ALJ 18 appropriately considered other longitudinal evidence contained in 19 the treatment records, as discussed above, that is relevant to 20 evaluating Plaintiff’s credibility and the severity of her symptoms 21 from fibromyalgia and RSD/CRPS. This included doctors’ 22 observations that Plaintiff’s conservative treatment was helping 23 her, Plaintiff remained able to perform household chores and other 24 activities, she was in no apparent distress, and her fibromyalgia 25 was mild. 26 27 Aside from her own statements, Plaintiff supports her 28 contention that she cannot perform full-time work by pointing to 1 the opinion of Lisa Gause, a nurse practitioner, who opined that 2 Plaintiff would be absent from work three days per month due to 3 fibromyalgia and RSD.11 (Joint Stip. at 7-8; see AR 1742). As the 4 ALJ noted, Nurse Gause’s opinion could not be given controlling 5 weight because nurse practitioners are not considered acceptable 6 medical source under Social Security regulations.12 (AR 949). The 7 ALJ gave Nurse Gause’s opinion little weight because she found it 8 was “not supported by [Gause’s] own treating notes or the other 9 evidence of record.” (AR 949). Among other things, the ALJ 10 reasoned that “if Ms. Gause’s assessment were accurate, one would 11 conclude [Plaintiff] spends a majority of her day lying down, but 12 that situation is simply not borne out by the record, which 13 indicates that while [Plaintiff] may take a nap during the day, 14 she is otherwise either seated, standing or walking and performing 15 her daily activities.” (AR 949). These are appropriate and 16 sufficient grounds to support the ALJ’s decision not to credit the 17 limitations opined by Nurse Gause. See 20 C.F.R. § 404.1527(c). 18
19 11 Nurse Gause also opined, among other things, that Plaintiff could only sit and stand for 20 minutes at one time and 20 for less than two hours total during an eight-hour workday, and 21 could rarely lift even ten pounds. (See AR 217-20, 917-20, 1739- 42). 22 12 Although a nurse practitioner is not deemed an 23 “acceptable medical source” under the Regulations, and thus cannot be given controlling weight, the opinions of such sources may be 24 relevant to assessing a claimant’s credibility and functional 25 limitations. See Revels, 874 F.3d at 665 (ALJ erred in failing to credit nurse practitioner’s opinion); SSR 03-2p (“In cases 26 involving RSDS/CRPS, third-party information, including evidence from medical practitioners who have provided services to the 27 individual, and who may or may not be ‘acceptable medical sources,’ is often critical in deciding the individual's credibility.”). 28 1 In sum, Plaintiff has failed to identify any material error 2 in the ALJ’s assessment of Plaintiff’s subjective testimony and 3 her functional limitations. The ALJ’s findings and conclusions 4 must be upheld, as they are based on adequate reasons, under all 5 applicable standards, and supported by substantial evidence in the 6 record. See Brown-Hunter, 806 F.3d at 492 (ALJ determines 7 credibility, resolves conflicts in the testimony, and resolves 8 ambiguities in the record); Lewis v. Astrue, 498 F.3d 909, 911 (9th 9 Cir. 2007) (“[I]f evidence is susceptible of more than one rational 10 interpretation, the decision of the ALJ must be upheld”). 11 Moreover, to the extent Plaintiff suggests that the ALJ erred by 12 failing to expressly cite or discuss the standards applicable to 13 her conditions, any error is harmless because the ALJ applied the 14 correct standards, based on a thorough evaluation of the evidence, 15 appropriately taking into account the longitudinal record and the 16 particular nature of these conditions. (See 945-52). 17 18 CONCLUSION 19 20 For the foregoing reasons, the decision of the Commissioner 21 is AFFIRMED. 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23
25 Dated: April 30, 2020 26
27 ______________/s/_____________ ALKA SAGAR 28 UNITED STATES MAGISTRATE JUDGE