Garcia v. Commissioner of Social Security Administration

D. Arizona

Garcia v. Commissioner of Social Security Administration

District Court, D. Arizona·Decided July 26, 2022·No. 2:21-cv-01547·Unknown

Opinion

1 WO 2 3 4 5

9 Beatriz Lopez Garcia, No. CV-21-01547-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Beatriz Lopez Garcia’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) denial of her application 17 for Supplemental Security Income (“SSI”) benefits. (Doc. 1.) The appeal is fully briefed 18 (Docs. 15, 19, 21), and the Court now rules. 20 A. Factual Overview 21 Plaintiff initially alleged that she had been disabled since January 1, 2002, when she 22 was only nine years old. (Doc. 12-3 at 13.) This was later amended to an onset date of May 23 3, 2013, when she was 20 years old. (Id. at 34.) She has one year of college, a veterinary 24 assistance certificate, and no past relevant work experience. (Doc. 12-3 at 23; Doc. 12-8 at 25 270.) Plaintiff filed her SSI claim on November 16, 2018, alleging disabilities beginning 26 on May 3, 2013, including bilateral hand and wrist impairments, diagnosed to include 27 carpal tunnel syndrome and DeQuervain’s syndrome; obesity; and mental health 28 impairments diagnosed to include anxiety, depression, and obsessive compulsive disorder. 1 (Doc. 12-3 at 13, 16.) Her claim was initially denied on April 18, 2019, and upon 2 reconsideration on August 8, 2019. (Id. at 13.) Plaintiff subsequently requested a hearing 3 that was held telephonically on November 19, 2020. (Id.) On March 3, 2021, the ALJ issued 4 a decision finding Plaintiff not disabled under the Act. (Id. at 15–25.) The SSA Appeals 5 Council denied Plaintiff’s request for review on July 14, 2021, and adopted the ALJ’s 6 decision as the SSA’s final decision. (Id. at 1–6.) Following this unfavorable decision, 7 Plaintiff filed the present appeal. (Doc. 1.) 8 B. The SSA’s Five-Step Evaluation Process 9 To qualify for social security benefits, a claimant must show she “is under a 10 disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she suffers from a medically 11 determinable physical or mental impairment that prevents her from engaging “in any 12 substantial gainful activity.” Id. § 423(d)(1)–(2). The SSA has created a five-step process 13 for an ALJ to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(1). 14 Each step is potentially dispositive. See id. § 404.1520(a)(4). 15 At the first step, the ALJ determines whether the claimant is “doing substantial 16 gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial 17 gainful activity is work activity that is both “substantial,” involving “significant physical 18 or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b). 19 At the second step, the ALJ considers the medical severity of the claimant’s 20 impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically 21 determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe 22 impairment” is one which “significantly limits [the claimant’s] physical or mental ability 23 to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and 24 aptitudes necessary to do most jobs.” Id. § 404.1522(b). 25 At the third step, the ALJ determines whether the claimant’s impairment or 26 combination of impairments “meets or equals” an impairment listed in Appendix 1 to 27 Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. 28 Id. If not, before proceeding to step four, the ALJ must assess the claimant’s “residual 1 functional capacity” (“RFC”). Id. § 404.1520(a)(4). The RFC represents the most a 2 claimant “can still do despite [her] limitations.” Id. § 404.1545(a)(1). In assessing the 3 claimant’s RFC, the ALJ will consider the claimant’s “impairment(s), and any related 4 symptoms, such as pain, [that] may cause physical and mental limitations that affect what 5 [the claimant] can do in a work setting.” Id. 6 At the fourth step, the ALJ uses the RFC to determine whether the claimant can still 7 perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares the 8 claimant’s RFC with the physical and mental demands of the claimant’s past relevant work. 9 Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find 10 that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 11 At the fifth and final step, the ALJ determines whether—considering the claimant’s 12 RFC, age, education, and work experience—she “can make an adjustment to other work.” 13 Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment to other 14 work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot make 15 an adjustment to other work, then the claimant is disabled. Id. 16 C. The ALJ’s Application of the Factors 17 At the first step, the ALJ concluded that Plaintiff had not engaged in substantial 18 gainful activity since the alleged onset date of her disability. (Doc. 12-3 at 15–16.) 19 At the second step, the ALJ determined that Plaintiff’s bilateral hand and wrist 20 impairments, diagnosed to include carpal tunnel syndrome and DeQuervain’s syndrome; 21 obesity; and mental health impairments diagnosed to include anxiety, depression, and 22 obsessive compulsive disorder constituted severe impairments under 20 C.F.R. § 23 404.1520(c) and § 416.920(c). (Id. at 16.) The ALJ also determined that the rest of 24 Plaintiff’s alleged impairments were non-severe. (Id.) 25 At the third step, the ALJ determined that none of Plaintiff’s impairments nor a 26 combination of Plaintiff’s impairments met or equaled the severity of one of the 27 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 16–18.) After 28 evaluating the record, the ALJ determined Plaintiff’s RFC: 1 [Plaintiff] has the residual functional capacity to perform light 2 work as defined in 20 CFR 404.1567(b) and 416.967(b) except: 3 [Plaintiff] is able to frequently perform bilateral handling and fingering. She is able to maintain concentration, pace, and 4 persistence for simple, routine, and repetitive tasks. She should 5 not work in a setting that requires high time pressured work. She is able to maintain incidental social contact with only 6 occasional interaction with public and coworkers. 7 8 (Id. at 19.) 9 At the fourth step, the ALJ determined that Plaintiff had no past relevant work. (Id. 10 at 23.) 11 At the fifth and final step, the ALJ concluded that given Plaintiff’s age, education, 12 work experience, and RFC, a significant number of jobs exist in the national economy that 13 she can perform. (Id. at 23–24.) The ALJ reached this conclusion based on the testimony 14 of a vocational expert (“VE”) who testified that Plaintiff could perform the requirements 15 of sorter and inspector, which are described in the Dictionary of Occupational Titles 16 (“DOT”). (Id. at 24.) The VE’s testimony was based on hypotheticals provided by the ALJ 17 based on Plaintiff’s RFC. (Id.) Accordingly, the ALJ determined that Plaintiff was not 18 disabled for purposes of SSI from the alleged onset date through March 3, 2021. (Id. at 24– 19 25.) 21 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 22 or a lack of substantial evidence. Luther v.

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1 WO 2 3 4 5

9 Beatriz Lopez Garcia, No. CV-21-01547-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Beatriz Lopez Garcia’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) denial of her application 17 for Supplemental Security Income (“SSI”) benefits. (Doc. 1.) The appeal is fully briefed 18 (Docs. 15, 19, 21), and the Court now rules. 20 A. Factual Overview 21 Plaintiff initially alleged that she had been disabled since January 1, 2002, when she 22 was only nine years old. (Doc. 12-3 at 13.) This was later amended to an onset date of May 23 3, 2013, when she was 20 years old. (Id. at 34.) She has one year of college, a veterinary 24 assistance certificate, and no past relevant work experience. (Doc. 12-3 at 23; Doc. 12-8 at 25 270.) Plaintiff filed her SSI claim on November 16, 2018, alleging disabilities beginning 26 on May 3, 2013, including bilateral hand and wrist impairments, diagnosed to include 27 carpal tunnel syndrome and DeQuervain’s syndrome; obesity; and mental health 28 impairments diagnosed to include anxiety, depression, and obsessive compulsive disorder. 1 (Doc. 12-3 at 13, 16.) Her claim was initially denied on April 18, 2019, and upon 2 reconsideration on August 8, 2019. (Id. at 13.) Plaintiff subsequently requested a hearing 3 that was held telephonically on November 19, 2020. (Id.) On March 3, 2021, the ALJ issued 4 a decision finding Plaintiff not disabled under the Act. (Id. at 15–25.) The SSA Appeals 5 Council denied Plaintiff’s request for review on July 14, 2021, and adopted the ALJ’s 6 decision as the SSA’s final decision. (Id. at 1–6.) Following this unfavorable decision, 7 Plaintiff filed the present appeal. (Doc. 1.) 8 B. The SSA’s Five-Step Evaluation Process 9 To qualify for social security benefits, a claimant must show she “is under a 10 disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she suffers from a medically 11 determinable physical or mental impairment that prevents her from engaging “in any 12 substantial gainful activity.” Id. § 423(d)(1)–(2). The SSA has created a five-step process 13 for an ALJ to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(1). 14 Each step is potentially dispositive. See id. § 404.1520(a)(4). 15 At the first step, the ALJ determines whether the claimant is “doing substantial 16 gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial 17 gainful activity is work activity that is both “substantial,” involving “significant physical 18 or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b). 19 At the second step, the ALJ considers the medical severity of the claimant’s 20 impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically 21 determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe 22 impairment” is one which “significantly limits [the claimant’s] physical or mental ability 23 to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and 24 aptitudes necessary to do most jobs.” Id. § 404.1522(b). 25 At the third step, the ALJ determines whether the claimant’s impairment or 26 combination of impairments “meets or equals” an impairment listed in Appendix 1 to 27 Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. 28 Id. If not, before proceeding to step four, the ALJ must assess the claimant’s “residual 1 functional capacity” (“RFC”). Id. § 404.1520(a)(4). The RFC represents the most a 2 claimant “can still do despite [her] limitations.” Id. § 404.1545(a)(1). In assessing the 3 claimant’s RFC, the ALJ will consider the claimant’s “impairment(s), and any related 4 symptoms, such as pain, [that] may cause physical and mental limitations that affect what 5 [the claimant] can do in a work setting.” Id. 6 At the fourth step, the ALJ uses the RFC to determine whether the claimant can still 7 perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares the 8 claimant’s RFC with the physical and mental demands of the claimant’s past relevant work. 9 Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find 10 that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 11 At the fifth and final step, the ALJ determines whether—considering the claimant’s 12 RFC, age, education, and work experience—she “can make an adjustment to other work.” 13 Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment to other 14 work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot make 15 an adjustment to other work, then the claimant is disabled. Id. 16 C. The ALJ’s Application of the Factors 17 At the first step, the ALJ concluded that Plaintiff had not engaged in substantial 18 gainful activity since the alleged onset date of her disability. (Doc. 12-3 at 15–16.) 19 At the second step, the ALJ determined that Plaintiff’s bilateral hand and wrist 20 impairments, diagnosed to include carpal tunnel syndrome and DeQuervain’s syndrome; 21 obesity; and mental health impairments diagnosed to include anxiety, depression, and 22 obsessive compulsive disorder constituted severe impairments under 20 C.F.R. § 23 404.1520(c) and § 416.920(c). (Id. at 16.) The ALJ also determined that the rest of 24 Plaintiff’s alleged impairments were non-severe. (Id.) 25 At the third step, the ALJ determined that none of Plaintiff’s impairments nor a 26 combination of Plaintiff’s impairments met or equaled the severity of one of the 27 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 16–18.) After 28 evaluating the record, the ALJ determined Plaintiff’s RFC: 1 [Plaintiff] has the residual functional capacity to perform light 2 work as defined in 20 CFR 404.1567(b) and 416.967(b) except: 3 [Plaintiff] is able to frequently perform bilateral handling and fingering. She is able to maintain concentration, pace, and 4 persistence for simple, routine, and repetitive tasks. She should 5 not work in a setting that requires high time pressured work. She is able to maintain incidental social contact with only 6 occasional interaction with public and coworkers. 7 8 (Id. at 19.) 9 At the fourth step, the ALJ determined that Plaintiff had no past relevant work. (Id. 10 at 23.) 11 At the fifth and final step, the ALJ concluded that given Plaintiff’s age, education, 12 work experience, and RFC, a significant number of jobs exist in the national economy that 13 she can perform. (Id. at 23–24.) The ALJ reached this conclusion based on the testimony 14 of a vocational expert (“VE”) who testified that Plaintiff could perform the requirements 15 of sorter and inspector, which are described in the Dictionary of Occupational Titles 16 (“DOT”). (Id. at 24.) The VE’s testimony was based on hypotheticals provided by the ALJ 17 based on Plaintiff’s RFC. (Id.) Accordingly, the ALJ determined that Plaintiff was not 18 disabled for purposes of SSI from the alleged onset date through March 3, 2021. (Id. at 24– 19 25.) 21 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 22 or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 23 “Substantial evidence means . . . such relevant evidence as a reasonable mind might accept 24 as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 25 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). 26 On review, the Court “must consider the entire record as a whole, weighing both the 27 evidence that supports and the evidence that detracts from the [ALJ’s] conclusion, and may 28 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting 1 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). The ALJ, not this Court, draws 2 inferences, resolves conflicts in medical testimony, and determines credibility. See 3 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450, 4 1453 (9th Cir. 1984). Thus, the Court must affirm even when “the evidence admits of more 5 than one rational interpretation.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 6 Court “review[s] only the reasons provided by the ALJ in the disability determination and 7 may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 8 1010. 10 Plaintiff raises three issues on appeal: (1) the ALJ improperly determined that 11 licensed professional counsel (“LPC”) Robin DiRoberts’ assessment was unpersuasive, (2) 12 the ALJ improperly discredited Lopez Garcia’s subjective symptom testimony, and (3) the 13 Court should remand for an award of benefits or a new hearing. (Doc. 15 at 15–25.) 14 A. LPC DiRoberts’ Assessment 15 Plaintiff argues that the ALJ erred by rejecting LPC DiRobert’s assessment in the 16 absence of germane reasons. (Doc. 15 at 15–17.) Plaintiff also argues that the ALJ erred 17 by failing to explain her consideration of the supportability and consistency factors. (Id. at 18 15, 17–19.) Thus, Plaintiff asserts, the ALJ’s decision was not supported by substantial 19 evidence. (Id. at 15–19; see also Doc. 21 at 4–8.) The Commissioner argues that the ALJ’s 20 finding was supported by substantial evidence. (Doc. 19 at 16–20.) Plaintiff counters that 21 the Commissioner improperly relied on evidence that does not transfer to the workplace, 22 relied on out-of-context evidence, and failed to address key parts of Plaintiff’s arguments 23 in the Opening Brief (Doc. 15) when defending the ALJ’s decision. (Doc. 21 at 6–8.) 24 LPC DiRoberts completed a “Medical Assessment of the Patient’s Ability to 25 Perform Work Related Activity” form on October 20, 2020. (Doc. 12-15 at 1119–23.) On 26 the form, she evaluated Plaintiff’s limitations in several areas on a scale of “none” to 27 “severe.” (Id. at 1119–21.) In every subcategory (3/3) under “Understanding and Memory,” 28 1 DiRoberts found that Plaintiff experienced moderate limitations.1 (Id. at 1119.) In 2 “Sustained Concentration and Persistence,” DiRoberts found that Plaintiff experienced 3 severe limitations in 6/8 subcategories.2 (Id. at 1120.) DiRoberts found that Plaintiff 4 experienced no limitation in her ability to “carry out simple one or two-step instructions,” 5 and experienced a moderately severe limitation in her ability to “make simple work-related 6 decisions.” (Id.) In every subcategory (5/5) under “Social Interactions,” DiRoberts found 7 that Plaintiff experienced severe limitations. (Id. at 1121.) In 3/4 subcategories under 8 “Adaptation,” DiRoberts found that Plaintiff experienced severe limitations. (Id.) In “be 9 aware of normal hazards and take appropriate precautions,” DiRoberts found that Plaintiff 10 experienced a moderate limitation. (Id.) DiRoberts also found that Plaintiff’s limitations 11 were expected to last for 12 months or longer and that Plaintiff was likely to miss work and 12 to be absent from work more than three times a month as a result of her impairment(s). (Id. 13 at 1122.) DiRoberts also left comments to flesh out her analysis of Plaintiff’s mental state: 14 I have worked individually with [Plaintiff] since 2016 and, for 15 the most part, on a weekly basis. I also had the opportunity to 16 work with her in a group setting with other individuals who suffer from anxiety disorders. She was eventually removed 17 from this group due to more harm being done to her mental and 18 emotional health. Throughout the course of her treatment, efforts have been made on her behalf to improve interpersonal 19 effectiveness and become socially functional; however, 20 [Plaintiff] continues to struggle significantly in social settings and in the therapy environment. Communication from 21 [Plaintiff] is minimal and usually the result of being prompted 22 by open-ended questions.

23 [Plaintiff] also engaged in an art therapy program, in which she 24 inconsistently attended an art studio two times a week for a few hours each day with other participants. While there, she spent 25 her time to herself drawing and painting. Although she spent over two years in this program, she was not successful in 26

27 1 Moderate limitations are defined as an “impairment [that] precludes [one’s] ability to perform work-related functions 6-10% of an 8-hour workday.” (Id. at 1119.) 28 2 Severe limitations are defined as an “impairment [that] precludes [one’s] ability to perform work-related functions 21% or more of an 8-hour workday.” (Id. at 1119.) 1 engaging with others and did not graduate from the first phase of the program. Leaders at this facility reached out to this 2 therapist expressing their concerns about the level of her 3 anxiety.

4 It is difficult to describe the seriousness of [Plaintiff’s] anxiety 5 levels, as they permeate every facet of her life. She secludes from not only the general public but also from her family. She 6 has been in therapy working on coping strategies with this 7 writer since 2016, but she has not progressed to the point whereby she can engage in viable relationships or employment. 8 Furthermore, it should be noted that these symptoms with 9 which she suffers have been evident to her family members, teachers, school counselors, and therapists throughout her life. 10 11 [Plaintiff] is assessed each time she attends counseling sessions for her depression levels. On a scale of 0-10, with 10 being the 12 worse, she consistently states that her depression is at a 7-9. 13 She consistently receives medicinal therapy from a psychiatric nurse practitioner, but as of this writing, she has not been 14 successful in finding medications that adequately help her symptoms. She has also learned coping strategies, [] which she 15 has implemented but has not been, for the most part, successful 16 in alleviating her symptoms. Her high depression levels, like her anxiety levels, keep her isolated and lacking the ability to 17 venture out of her home unless it is for an appointment. 18 [Plaintiff’s] symptoms were evident by her elementary school 19 teachers, who informed her parents; thus, it is evident that she 20 has struggled with them even though she has received therapeutic interventions since the age 10 years old. 21 Furthermore, [Plaintiff] remembers her symptoms being 22 present as early as when she first began Kindergarten. Consequently, she was given an autism screening, on which 23 she tested high possibility for Autism Spectrum Disorder. This 24 writer continues to assess for the same.

25 [Plaintiff] has been consistent with her therapy and has been 26 engaged in sessions. She has made efforts to become involved in programs that promote her ability to learn social skills and 27 regulation in the same environments, but has only been minimally successful, if that. She continues to struggle with 28 social interactions and high levels of depression and anxiety. 1 (Id. at 1122–23.) 2 Having reviewed all of this information the ALJ rejected DiRobert’s assessment: 3 I have reviewed and considered the persuasiveness of the 4 opinions of [Plaintiff’s] treatment provider, Robin DiRoberts, 5 LPC. Ms. DiRoberts stated, “She has been in therapy working on coping strategies with this writer since 2016, but she has not 6 progressed to the point whereby she can engage in viable 7 relationships or employment . . . She continues to struggle with social interactions and high levels of depression and 8 anxiety.” Ms. DiRoberts listed a variety of extreme opinions 9 regarding [Plaintiff’s] limitations. For example, she opined that [Plaintiff] experienced severe limitations in nearly every 10 assessed category listed in the form. She also opined that 11 [Plaintiff] would miss more than three workdays a month. These extreme opinions are generally without substantial 12 support, which obviously renders these opinions less 13 persuasive. Additionally, the course of treatment pursued by the doctor has not been consistent with what one would expect 14 if the truly experienced these extreme limitations. [Plaintiff] has not required psychiatric hospitalizations. [Plaintiff’s] 15 activities of daily living are not consistent with these extreme 16 opinions. For example, while [Plaintiff] experiences mental health symptoms, she is able to perform daily tasks as 17 discussed above. 18 19 (Doc. 12-3 at 22–23 (internal citation omitted).) 20 The law previously distinguished between the opinions of treating physicians, 21 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 22 830 (9th Cir. 1995). This distinction was known as the “treating physician rule.” See 23 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001), as amended on reh’g (Aug. 9, 24 2001). “In March of 2017, [t]he Social Security Administration amended their regulations 25 to abrogate the treating physician rule, among other changes.” Alonzo v. Comm’r of Soc. 26 Sec. Admin., No. CV-18-08317-PCT-JZB, 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020) 27 (citing Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 28 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017)). The new regulations apply to 1 claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c, 416.920c. The new 2 regulations provide that the ALJ “will not defer or give any specific evidentiary weight, 3 including controlling weight, to any medical opinion(s) or prior administrative medical 4 finding(s), including those from your medical sources.” Id. 5 Furthermore, the ALJ will consider all medical opinions according to several 6 enumerated factors, including whether the opinion is supported by objective medical 7 evidence and whether the opinion is consistent with the evidence from other sources. 8 Alonzo, 2020 WL 1000024, at *3. Contrary to Plaintiff’s assertions that the ALJ must 9 explain how she weighed factors under § 404.1520c(c)(3)–(5) (Doc. 20 at 23), under the 10 new regulations, the ALJ must consider and explain how well the medical evidence 11 supports the medical opinion and how consistent the medical opinion is with the record, 12 and may, but is not required to, explain how the other factors under § 404.1520c(c)(3)–(5) 13 are considered. 20 C.F.R. § 404.1520c(b)(3). 14 “When the evidence before the ALJ is subject to more than one rational 15 interpretation, [the Court] must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. 16 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not 17 the reviewing court must resolve conflicts in evidence, and if the evidence can support 18 either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 19 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 20 Although it was debated for years, recently, the Ninth Circuit definitively ruled that 21 the “specific and legitimate” standard is not the law in Social Security cases where the 22 revised regulations apply. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 23 Specifically, the Ninth Circuit in Woods determined that 24 [t]he revised social security regulations are clearly 25 irreconcilable with our caselaw according special deference to 26 the opinions of treating and examining physicians on account of their relationship with [Plaintiff]. Our requirement that ALJs 27 provide ‘specific and legitimate reasons’ for rejecting a 28 treating or examining doctor’s opinion, which stems from the special weight given to such opinions is likewise incompatible 1 with the revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain 2 sources necessarily favors the evidence from those sources— 3 contrary to the revised regulations. 4 5 Id.(quotations and internal citations omitted). Thus, an ALJ need not give specific and 6 legitimate reasons for not crediting the medical opinion of a treating physician. Id. at 791. 7 Substantial evidence supports the ALJ’s determination that LPC DiRobert’s 8 medical opinion was inconsistent with the record. (Doc. 12-3 at 22–23); see Trevizo v. 9 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (“The ALJ can meet this burden by setting out 10 a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 11 interpretation thereof, and making findings.” (quoting Magallanes v. Bowen, 881 F.2d 747, 12 751 (9th Cir. 1989))). Using the standard set forth in 20 C.F.R. § 404.1520c, the ALJ 13 determined that Plaintiff’s daily living activities—including cleaning the house; doing 14 laundry; preparing simple meals; playing with and caring for pets; watching her nephews; 15 accompanying family on shopping trips; driving; engaging on social networking sites; 16 regularly attending therapy and doctors’ appointments; completing technical school; going 17 to the movies; going to stores; hanging out with friends; living and interacting with family 18 members at home; creating art up to five hours a day, four times a week; and marketing 19 and selling that art—conflict with the proposed restrictions in DiRobert’s assessment. (See, 20 e.g., Doc. 12-3 at 40, 44; Doc. 12-8 at 280–96, Doc. 12-9 at 344, 349–50, 500–01; Doc. 21 12-12 at 692; Doc. 12-13 at 936; Doc. 12-16 at 1152.) The ALJ also determined that 22 DiRobert’s assessment did not comport with Plaintiff’s conservative treatment regimen. 23 (Doc. 12-3 at 23.) For example, Plaintiff’s condition has not required any psychiatric 24 hospitalizations; she has also reported spending up to five hours a day, four times a week, 25 at an art studio producing art and spending additional time marketing and selling her art.3 26 (Doc. 12-3 at 21, 23; Doc. 12-9 at 500–01; Doc. 12-12 at 692; Doc. 12-13 at 936.) 27 The Court finds that a reasonable person examining the evidence could come to the

28 3 Plaintiff agrees that she has never been psychiatrically hospitalized. (Doc. 15 at 17–18, 24.) 1 ALJ’s conclusions. The fact that Plaintiff’s daily activities and course of treatment could 2 be interpreted differently has no effect on this Court’s ruling. See Andrews, 53 F.3d at 3 1039–40 (“The ALJ is responsible for determining credibility, resolving conflicts in 4 medical testimony, and for resolving ambiguities. We must uphold the ALJ’s decision 5 where the evidence is susceptible to more than one rational interpretation.”) (citations 6 omitted). Thus, the ALJ did not err by rejecting LPC DiRobert’s medical opinion. 7 B. Subjective Symptom Testimony 8 Plaintiff argues that the ALJ erred by discrediting her symptom testimony “in the 9 absence of specific, clear, and convincing reasons supported by substantial evidence.” 10 (Doc. 15 at 19–24.) Plaintiff asserts that this error was harmful because the ALJ 11 discrediting her symptom testimony tainted the VE testimony. (Id. at 19, 24–25.) The 12 Commissioner argues that the ALJ discrediting Plaintiff’s symptom testimony was 13 reasonable. (Doc. 19 at 9–16.) Plaintiff counters that the Commissioner’s argument takes 14 evidence out of context, fails to show a conflict between the record and Plaintiff’s symptom 15 testimony, and fails to identify relevant evidence on which the ALJ relied when 16 discrediting Plaintiff’s testimony. (Doc. 21 at 8–10.) 17 The Ninth Circuit has established a two-step analysis for an ALJ to determine 18 whether to credit a claimant’s subjective symptom testimony. “First, the ALJ must 19 determine whether the claimant has presented objective medical evidence of an underlying 20 impairment which could reasonably be expected to produce the pain or other symptoms 21 alleged.” Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). If the claimant 22 presents such evidence, the ALJ then evaluates the claimant’s subjective complaints. See 23 id. “In evaluating the credibility of pain testimony after a claimant produces objective 24 medical evidence of an underlying impairment, an ALJ may not reject a claimant’s 25 subjective complaints based solely on a lack of medical evidence to fully corroborate the 26 alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Instead, 27 an ALJ must provide “specific, clear, and convincing reasons” for doing so. Burrell v. 28 Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 1 “Although an ALJ ‘cannot be required to believe every allegation of disabling pain,’ 2 the ALJ cannot reject testimony of pain without making findings sufficiently specific to 3 permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the 4 claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (quoting Bunnell 5 v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc) and Fair v. Bowen, 885 F.2d 6 597, 603 (9th Cir. 1989)). An ALJ’s credibility determination “must rely either on reasons 7 unrelated to the subjective testimony (e.g., reputation for dishonesty), on conflicts between 8 her testimony and her own conduct, or on internal contradictions in that testimony.” Light 9 v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In analyzing whether to discount a 10 claimant’s testimony, “[t]he ALJ must identify the testimony that was not credible and 11 specify ‘what evidence undermines the claimant’s complaints.’” Treichler v. Comm’r Soc. 12 Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 13 715, 722 (9th Cir. 1998)). The ALJ’s findings “must contain specific reasons for the weight 14 given to the individual’s symptoms, be consistent with and supported by the evidence, and 15 be clearly articulated so the individual and any subsequent reviewer can assess how the 16 adjudicator evaluated the individual’s symptoms.” SSR 16-3p, 82 Fed. Reg. 49462, 49467 17 (Oct. 25, 2017). If the ALJ’s path cannot “reasonably be discerned,” the ALJ’s decision 18 must be reversed. Treichler, 775 F.3d at 1103. 19 While an ALJ may not reject a claimant’s subjective complaints based solely on 20 lack of objective medical evidence to fully corroborate the alleged symptoms, see Rollins 21 v. Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001); Fair, 885 F.2d at 602, the lack of 22 objective medical evidence supporting the claimant’s claims may support the ALJ’s finding 23 that the claimant is not credible. See Batson, 359 F.3d at 1197. Factors that the adjudicator 24 may consider when making such credibility determinations include the nature, location, 25 onset, duration, frequency, radiation, and intensity of any pain, precipitating and 26 aggravating factors (e.g., movement, activity, environmental conditions), type, dosage, 27 effectiveness, and adverse side-effects of any pain medication, treatment, other than 28 medication, for relief of pain, functional restrictions, and the claimant’s daily activities. 1 Bunnell, 947 F.2d at 346 (citing SSR 88–13, 1988 WL 236011 (July 20, 1988)). 2 At the first step, “after careful consideration of the evidence,” the ALJ determined 3 that “[Plaintiff’s] medically determinable impairments could reasonably be expected to 4 cause the alleged symptoms.” (Doc. 12-3 at 20.) But, at the second step, the ALJ 5 determined that “[Plaintiff’s] statements concerning the intensity, persistence and limiting 6 effects of these symptoms are not entirely consistent with the medical evidence and other 7 evidence in the record.” (Id.) 8 Regarding Plaintiff’s physical impairments, the ALJ found: 9 [Plaintiff] was diagnosed with bilateral hand and wrist 10 impairments, diagnosed to include carpal tunnel syndrome and 11 DeQuervain’s syndrome. [Plaintiff] reported chronic bilateral hand and wrist pain as well as numbness and tingling. 12 [Plaintiff] was diagnosed and underwent carpal tunnel 13 syndrome release in approximately 2014, well before her filing date. [Plaintiff] reported that injections and bracing did not 14 help. However physical findings and EMG findings were 15 relatively benign other than physiologic bilateral wrist laxity. For example, and EMG from 2017 was “completely normal”. 16 A physical examination showed negative Tinnel sign. I have 17 considered this impairment and associated limitations on [Plaintiff’s] residual functional capacity as discussed herein. 18 [Plaintiff’s] bilateral hand and wrist impairments and 19 associated pain limit her to performing light exertional work. Additionally, she able to only frequently perform bilateral 20 handling and fingering.

21 In terms of [Plaintiff’s] obesity, treatment records reflect that 22 [Plaintiff] has a body mass index ranging around approximately 34. I considered the effects of [Plaintiff’s] 23 obesity on her residual functional capacity. Social Security 24 Ruling 19-2p provides that obesity can cause limitation of function. An individual may have limitations in any of the 25 exertional functions such as sitting, standing, walking, lifting, 26 carrying, pushing, and pulling. The combined effects of obesity with other impairments may be greater than might be expected 27 without obesity. It can exacerbate mental health conditions. In 28 [Plaintiff’s] case, I find that [her] obesity limits her to the physical residual functional capacity as discussed herein. 1 2 (Id. at 20–21 (internal citations omitted).) 3 Regarding Plaintiff’s mental impairments, the ALJ found: 4 The mental health impairments diagnosed to include anxiety, 5 depression, and obsessive compulsive disorder. She has 6 reported a lengthy history of mental health conditions, anxiety specifically, dating back to before her 22nd birthday. [Plaintiff] 7 was also diagnosed with insomnia, which is likely related to 8 her mental health conditions. [Plaintiff] reported anxiety symptoms including apprehensive expectation, autonomic 9 hyperactivity, motor tension, and recurrent and intrusive 10 recollections. She reported depressive symptoms including anhedonia, decreased energy, difficulty concentrating, and 11 feelings of guilt or worthlessness. [Plaintiff] also reported 12 recurrent panic attacks. However, at appointments, [Plaintiff] generally presented as well oriented and stable. Her providers 13 also noted that although her mood was anxious, her memory 14 was intact; her attention, concentration, judgment was good; and her motor activity, thought content, insight, judgement, 15 and speech was within normal range. [Plaintiff] has sought and received appropriate treatment for her mental health 16 impairments. This treatment has consisted primarily of therapy 17 and medication management. She was trialed on a variety of mood stabilizing medications and anti-anxiety medications, 18 including a combination of Lamictal, Geodon, Xanax, 19 Wellbutrin, and Depakote. The medical evidence of record shows that [Plaintiff’s] providers have frequently changed her 20 mood stabilizing medications to attempt better control. 21 [Plaintiff] has also been prescribed a combination of medications for sleep difficulties. Her medical provider 22 recommended that [Plaintiff] exercise and or do yoga. 23 [Plaintiff] reported that she tried to treat with a single therapist for a lengthy period. It appears that this combination of 24 treatment has managed [Plaintiff’s] mental health impairments. 25 She testified and the medical evidence of record shows that although she has experienced occasional acute episodes, she 26 has not actually required any psychiatric hospitalizations. I 27 have considered this combination of mental health impairments and associated limitations on [Plaintiff’s] residual 28 functional capacity as discussed herein. In an abundance of 1 caution, I find that [Plaintiff] experiences moderate limitations in her ability to interact with others and adapt and manage 2 herself. I find that she is able to maintain concentration, pace, 3 and persistence for simple, routine, and repetitive tasks. She should not work in a setting that requires high time pressure 4 work. She is able to maintain incidental social contact with 5 only occasional interaction with public and coworkers. 6 7 (Id. at 21 (internal citations omitted).) 8 The ALJ also highlighted Plaintiff’s daily activities: 9 [D]espite [Plaintiff’s] impairments, [Plaintiff] has engaged in 10 a level of daily activity and interaction more consistent with 11 the residual functional capacity than with a finding of a complete inability to work. For example, she performs 12 household chores like cleaning, laundry, and preparing simple 13 meals. She cares for pets. Although she testified that she tries not the leave her home because of her anxiety, she testified that 14 she will go out with her family. While she reported that she 15 does not shop, but she “accompanies family when they go” shopping. She reported that she enjoyed watching television 16 and movies, painting, and reading. She is able to drive. She 17 reported issues with financial tasks, but attributed these problems to a lack of income and accounts rather than any type 18 of mental health related symptom. She was able to complete technical school. She engages on social networking sites. She 19 lives with her parents. The physical and mental capabilities 20 requisite to performing many of the tasks described above as well as the social interactions replicate those necessary for 21 obtaining and maintaining employment. These every day 22 activities are more consistent with my determination that [Plaintiff] is capable of the residual functional capacity 23 discussed herein and less consistent with her allegations of 24 completely disabling symptoms. 25 (Id. at 20 (internal citations omitted).) 26 The Court finds that the ALJ’s conclusion is adequately supported by the record. 27 (Id. at 19–21.) For example, as the ALJ noted, the record contains a deluge of evidence 28 indicating that Plaintiff is able to work: she participates in normal daily activities, she has 1 received only conservative treatment, and her mental and physical impairments are well 2 managed. (Id.); supra Section III.A. 3 The Court also finds that the evidence that the ALJ highlighted provides specific, 4 clear, and convincing reasons for discounting Plaintiff’s testimony. Plaintiff offered 5 statements generally claiming that she was disabled and unable to work due to her 6 disabilities. (Doc. 12-8 at 280–96.) But the ALJ observed, and the Court agrees, that much 7 of the evidence in the record contradicts Plaintiff’s assertions. The ALJ properly 8 highlighted that much of the evidence in the record regarding Plaintiff’s hand impairments, 9 wrist impairments, and obesity point to limitations no less severe than those articulated in 10 the RFC. (Doc. 21-3 at 20–21 (citing Doc. 12-10 at 513–89; Doc. 12-13 at 958–68; Doc. 11 12-14 at 1090–1109).) Similarly, the ALJ noted a plethora of evidence regarding Plaintiff’s 12 mental impairments that support her RFC determination. (Doc. 12-3 at 21 (citing Doc. 12- 13 9 at 341–85, 482–505; Doc. 12-11 at 590–674; Doc. 12-14 at 969–1053; Doc. 12-16 at 14 1124–1176).) The ALJ also listed many activities in which Plaintiff participates that 15 conflict with her symptom testimony and reinforce the RFC determination. Supra Section 16 III.A. Additionally, the ALJ properly highlighted Plaintiff’s conservative treatment 17 regimen. For example, Plaintiff has not required any psychiatric hospitalizations. Supra 18 Section III.A. Plaintiff has also reported spending up to five hours a day, four times a week, 19 at an art studio producing art, and spending additional time marketing and selling her art. 20 Id. The Ninth Circuit has noted that “evidence of ‘conservative treatment’ is sufficient to 21 discount a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 22 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 23 1995)). Finally, the ALJ relied on the medical opinions of three different medical 24 professionals who opined that Plaintiff was capable of the level of work consistent with the 25 ALJ’s ultimate RFC determination. (Doc. 12-3 at 22–23.) 26 Because a substantial portion of the record conflicts with Plaintiff’s symptom 27 testimony, the Court finds that the ALJ did not err in determining that the record evidence 28 was generally not consistent with Plaintiff’s subjective symptom testimony. Moreover, 1 || these findings are factual determinations solely within the ALJ’s responsibility and not for || this Court to second guess. Andrews, 53 F.3d at 1039. Based on the foregoing, the Court finds that the ALJ provided specific, clear, and convincing reasons to discount Plaintiff’s 4|| symptom testimony that were supported by substantial evidence in the record. 5 C. Further Proceedings 6 Finally, Plaintiff requests a remand for further proceedings or a calculation of 7\|| benefits pursuant to the credit-as-true rule. (Doc. 15 at 25; Doc. 21 at 10-11.) But the Court 8 || is affirming the ALJ’s decision; therefore, the Court denies Plaintiff's request for a remand || without considering the credit-as-true doctrine. See Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017), as amended (Jan. 25, 2018) (A direct award of benefits is proper “only 11 || when the record clearly contradicted an ALJ’s conclusory findings and no substantial 12 || evidence within the record supported the reasons provided by the ALJ for denial of 13 || benefits.”’). 14] IV. CONCLUSION 15 Accordingly, 16 IT IS ORDERED that the ALJ’s decision is AFFIRMED. 17 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 18 || accordingly. 19 Dated this 26th day of July, 2022. 20 21 a 3 22 James A. Teilborg 23 Senior United States District Judge 24 25 26 27 28

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Garcia v. Commissioner of Social Security Administration, (D. Ariz. 2022).

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Garcia v. Commissioner of Social Security Administration (Garcia v. Commissioner of Social Security Administration) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.