Javier Duran v. Andrew Saul

• Court: District Court, C.D. California
• Decided: May 27, 2021
• Docket: 5:20-cv-00508
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

11 JAVIER D., an Individual, Case No.: 5:20-00508 ADS

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Javier D.1 (“Plaintiff”) challenges Defendant Andrew M. Saul, 19 Commissioner of Social Security’s (hereinafter “Commissioner” or “Defendant”) denial 20 of his application for a period of disability and disability insurance benefits (“DIB”). 21 Plaintiff contends that the Administrative Law Judge (“ALJ”) improperly assessed the 22

23 1 Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 24 Administration and Case Management of the Judicial Conference of the United States. 1 relevant medical evidence and his subjective statements of record and testimony 2 regarding his symptoms and limitations. For the reasons stated below, the decision of 3 the Commissioner is affirmed, and this matter is dismissed with prejudice. 4 II. FACTS RELEVANT TO THE APPEAL 5 Plaintiff protectively filed for DIB on August 22, 2016, stating that the following

6 conditions limited his ability to work: “arthritis chronic pain; gout; and uric acid.” 7 (Administrative Record “AR” 62-63). When asked at the Administrative hearing what 8 prevents him from working, Plaintiff testified of the following conditions: swelling of his 9 knees and pain, problems with his toes, problems in his hands with his fingers, and 10 problems with his neck, elbows and back. (AR 50). Plaintiff appeared to indicate at the 11 hearing that his main problem for the past few years has been with his left knee. (AR 12 36-37, 54-55). It was also noted at the hearing that, while there are not a lot of 13 treatment records with regard to his upper extremities, Plaintiff indicated that he was 14 recently experiencing problems with his arms and shoulders. (AR 38, 41, 50). 15 Plaintiff’s more recent work history is not significant and includes several 16 different jobs, including as a welder from 1999 thru 2006 and again from 2007 thru

17 2009; in the maintenance field in 2011; and as a kitchen helper from 2012 thru 2014. 18 (AR 70-71). Plaintiff last worked in 2014, earning $2,411.33 for the Clark County School 19 District as a kitchen helper. (AR 197-201). Plaintiff testified at the Administrative 20 hearing that he could not go back to his job as a welder due to his vision, hands, knees 21 and feet and that he would have trouble standing for very long. (AR 51-52). Plaintiff 22 stated that he now stays at home most of the day, does no chores, and can walk for only 23 ten to fifteen minutes. He testified that he is limited from doing more due to pain in his 24 knee, elbows and shoulders. (AR 53). Plaintiff further testified that he spends most 1 days sitting around the house watching television or sometimes reading magazines. (AR 2 54). Plaintiff stated he wears a brace for his knee that he bought at a pharmacy and his 3 attorney acknowledged that no one prescribed a brace in the medical records. (AR 55). 4 Plaintiff further testified that no one has told him that he needs to have knee surgery. 5 (Id.).

6 III. PROCEEDINGS BELOW 7 A. Procedural History 8 Plaintiff protectively filed an application for DIB on August 22, 2016, alleging a 9 disability onset date of April 30, 2014.2 (AR 188). Plaintiff’s claims were denied initially 10 on October 19, 2016 (AR 62-72) and upon reconsideration on January 26, 2017 (AR 74- 11 84). Thereafter, on February 28, 2017, Plaintiff filed a request for an administrative 12 hearing. (AR 99). A hearing was held before ALJ Troy Silva on December 19, 2018. 13 (AR 31-61). Plaintiff, represented by counsel, appeared and testified at the hearing. 14 Also appearing and testifying at the hearing was vocational expert David A. Rinehart. 15 (Id.). 16 On January 29, 2019, the ALJ found that Plaintiff was “not disabled” within the

17 meaning of the Social Security Act.3 (AR 15-24). The ALJ’s decision became the 18 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for 19 review on February 3, 2020. (AR 1-8). Plaintiff then filed this action in District Court 20 on March 12, 2020, challenging the ALJ’s decision. [Docket “Dkt.” No. 1]. 21

2 At the Administrative hearing, Plaintiff’s counsel amended the alleged onset date to 22 July 23, 2015, the date of Plaintiff’s 55th birthday. (AR 36). 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are 23 unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a 24 continuous period of at least 12 months. 42 U.S.C. §423(d)(1)(A). 1 On September 8, 2020, Defendant filed an Answer, as well as a copy of the 2 Certified Administrative Record. [Dkt. Nos. 15, 16]. The parties filed a Joint 3 Submission on November 18, 2020. [Dkt. No. 17]. The case is ready for decision.4 4 B. Summary of ALJ Decision After Hearing 5 In the decision (AR 15-24), the ALJ followed the required five-step sequential

6 evaluation process to assess whether Plaintiff was disabled under the Social Security 7 Act.5 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff had not been 8 engaged in substantial gainful activity during the period from the alleged onset date of 9 April 30, 2014 through his date last insured of September 30, 2017. (AR 17). At step 10 two, the ALJ found that Plaintiff had the following severe impairments: (a) cervical and 11 lumbar degenerative disc disease; (b) degenerative joint disease, bilateral knees; and (c) 12 osteoarthritis, right ankle. (AR 17). At step three, the ALJ found that Plaintiff “did not 13 have an impairment or combination of impairments that met or medically equaled the 14 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 15 CFR 404.1520(d), 404.1525 and 404.1526).” (AR 19). 16

4 The parties filed consents to proceed before the undersigned United States Magistrate 18 Judge, pursuant to 28 U.S.C. § 636(c), including for entry of final Judgment. [Dkt. Nos. 11, 12]. 19 5 The ALJ follows a five-step sequential evaluation process to assess whether a claimant is disabled: Step one: Is the claimant engaging in substantial gainful activity? If so, the 20 claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not 21 disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? 22 If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not 23 disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If 24 not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 1 The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”)6 2 to perform a range of medium work as defined in 20 C.F.R. §§ 404.1567(c)7, as follows: 3 Specifically, the claimant can lift, carry, push, and/or pull 50 pounds occasionally and 25 pounds frequently; stand and/or walk for six hours 4 out of an eight hour workday; sit for six hours out of an eight hour workday; occasionally push/pull with the lower left extremity; 5 occasionally climb ramps and stairs; frequently stoop; and occasionally balance, kneel, crouch, and crawl. The claimant is precluded from 6 climbing ladders, ropes, and scaffolds.

7 (AR 19).

8 At step four, the ALJ found that Plaintiff was unable to perform his past 9 relevant work as a welder, as this work is classified as skilled and heavy exertional work, 10 as actually and generally performed. This work was therefore found to exceed Plaintiff’s 11 medium exertional RFC assessed by the ALJ. (AR 22). At step five, considering 12 Plaintiff’s age, education, work experience, RFC and the vocational expert’s testimony, 13 the ALJ found that there are “jobs that existed in significant numbers in the national 14 economy that [Plaintiff] could have performed” such as: hand packager; laundry worker; 15 and packager, machine. (AR 23). Accordingly, the ALJ determined that Plaintiff had 16 not been under a disability, as defined in the Social Security Act, from April 30, 2014, 17 the original alleged onset date, through September 30, 2017, the date last insured. (AR 18 24). 19 20 6 An RFC is what a claimant can still do despite existing exertional and nonexertional 21 limitations. See 20 C.F.R. §416.945(a)(1). 7 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting 22 or carrying of objects weighing up to 25 pounds. If someone can do medium work . . . he or she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(c), 416.967(c); see 23 also Manzo v. Berryhill, 2018 WL 5099264, at *4 (C.D. Cal. Oct. 17, 2018).

24 1 IV. ANALYSIS 2 A. Issues on Appeal 3 Plaintiff raises two issues for review: (1) whether the ALJ properly assessed the 4 medical evidence; and (2) whether the ALJ properly assessed Plaintiff’s testimony and 5 statements concerning his subjective limitations. [Dkt. No. 17 (Joint Submission), 4].

6 B. Standard of Review 7 A United States District Court may review the Commissioner’s decision to deny 8 benefits pursuant to 42 U.S.C. § 405(g). The District Court is not a trier of the facts but 9 is confined to ascertaining by the record before it if the Commissioner’s decision is 10 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 11 (District Court’s review is limited to only grounds relied upon by ALJ) (citing Connett v. 12 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). A court must affirm an ALJ’s findings of 13 fact if they are supported by substantial evidence and if the proper legal standards were 14 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). An ALJ can satisfy 15 the substantial evidence requirement “by setting out a detailed and thorough summary 16 of the facts and conflicting clinical evidence, stating his interpretation thereof, and

17 making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 18 omitted). 19 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a specific 20 quantum of supporting evidence. Rather, a court must consider the record as a whole, 21 weighing both evidence that supports and evidence that detracts from the Secretary’s 22 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and 23 internal quotation marks omitted). “‘Where evidence is susceptible to more than one 24 rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. 1 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 2 (9th Cir. 2005)); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“If 3 the evidence can support either affirming or reversing the ALJ’s conclusion, we may not 4 substitute our judgment for that of the ALJ.”). However, the Court may review only “the 5 reasons provided by the ALJ in the disability determination and may not affirm the ALJ

6 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 7 2007) (citation omitted). 8 Lastly, even if an ALJ errs, the decision will be affirmed where such error is 9 harmless, that is, if it is “inconsequential to the ultimate nondisability determination,” 10 or if “the agency’s path may reasonably be discerned, even if the agency explains its 11 decision with less than ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th 12 Cir. 2015) (citation omitted); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). 13 C. The ALJ Properly Evaluated the Medical Evidence 14 Plaintiff contends that the ALJ failed to give appropriate weight to significant 15 medical evidence of record supporting Plaintiff’s claim of disability. Defendant argues 16 that the ALJ properly considered and weighed all relevant medical evidence of record.

17 1. Standard for Weighing Medical Opinions 18 The ALJ must consider all medical opinion evidence. 20 C.F. R. § 404.1527(b). 19 “As a general rule, more weight should be given to the opinion of a treating source than 20 to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 21 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where 22 the treating doctor’s opinion is not contradicted by another doctor, it may only be 23 rejected for “clear and convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 24 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 1 by another doctor’s opinion, an ALJ may only reject it by providing specific and 2 legitimate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 3 F.3d 664, 675 (9th Cir. 2017) (quoting Bayliss, 427 F.3d at 1216). 4 “Substantial evidence” means more than a mere scintilla, but less than a 5 preponderance; it is such relevant evidence as a reasonable person might accept as

6 adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 7 2007) (citing Robbins, 466 F.3d at 882). “The ALJ can meet this burden by setting out a 8 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 9 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 10 (9th Cir. 1989) (citation omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 11 (9th Cir. 2008) (finding ALJ had properly disregarded a treating physician’s opinion by 12 setting forth specific and legitimate reasons for rejecting the physician’s opinion that 13 were supported by the entire record). 14 As noted above, an RFC is what a claimant can still do despite existing exertional 15 and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1). Only the ALJ is 16 responsible for assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c). “It is clear that

17 it is the responsibility of the ALJ, not the claimant’s physician, to determine residual 18 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (citing 20 19 C.F.R. § 404.1545). 20 2. All Medical Evidence of Record Was Properly Considered 21 Plaintiff contends that the ALJ improperly gave greater weight to the opinions of 22 the State agency medical consultants, K. Vu. D.O., and B. Harris, M.D., in assessing him 23 with a medium RFC, then to consultative examining physician, Easley, M.D., who had 24 given Plaintiff functional limitations of a light RFC. Plaintiff argues that the medical 1 records fail to support a medium RFC and that the ALJ improperly relied too heavily on 2 Plaintiff’s statements in the record that he walked two to three times a week at the swap 3 meet. Plaintiff contends that the only support in the medical records for the medium 4 RFC are the opinions of the two State agency consultants and that the ALJ disregarded 5 the medical evidence of gouty arthritis that supports Dr. Easley’s functional limitations

6 of a light RFC. 7 Plaintiff’s arguments are unpersuasive. The ALJ properly found that the opinion 8 of Dr. Easley was inconsistent with the medical records. See 20 C.F.R. § 404.1527(c)(4); 9 Burrell v. Colvin, 775 F.3d 1133, 11140 (9th Cir. 2014) (“An ALJ may discredit [even] 10 treating physicians’ opinions that are conclusory, brief and unsupported by the record as 11 a whole or by objective medical findings.”) The ALJ merely pointed to Plaintiff’s 12 statements of walking two to three times at the swap meet as an example of the medical 13 records being inconsistent with the functional limitations assessed by Dr. Easley. 14 Indeed, the ALJ did a thorough and lengthy discussion of Plaintiff’s medical records (AR 15 20-22) in providing explanation for his RFC assessment of Plaintiff as capable of 16 performing medium work with the specified exceptions. Moreover, the ALJ did not

17 “reject” Dr. Easley’s opinion as Plaintiff contends. Rather, the ALJ did accord the 18 opinion “some weight” in the RFC assessment, with finding Plaintiff to have several 19 severe impairments and providing exceptions to the medium RFC, as outlined above. 20 Plaintiff appears to argue that in and of itself it was improper for the ALJ to give 21 more weight to non-examining medical consultants, than to a consulting examining 22 physician. This is simply incorrect. See Bray v. Barnhart, 554 F.3d 1219, 1227 (9th Cir. 23 2009) (an ALJ properly relied “in large part on the [reviewing] physician’s assessment” 24 in assessing the claimant’s RFC and rejecting a treating doctor’s testimony regarding the 1 claimant’s functional limitations); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2 2002) (“The opinions of non-treating or non-examining physicians may also serve as 3 substantial evidence when the opinions are consistent with independent clinical 4 findings or other evidence in the record.”). The ALJ simply found that the opinions of 5 the two State agency medical consultants were more consistent with the record as a

6 whole, than that of Dr. Easley. 7 The Court therefore finds the ALJ properly assessed the medical evidence of 8 record. Plaintiff would simply prefer the ALJ to have a different interpretation of the 9 medical evidence than that assessed. However, it is the role of the ALJ to resolve any 10 conflicts or ambiguities in the medical record. See Tommasetti, 533 F.3d at 1041-42 11 (“The ALJ is the final arbiter with respect to resolving ambiguities in the medical 12 evidence.”): Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (holding that it is the 13 ALJ’s job to resolve any conflicts). See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 14 (9th Cir. 2008) (“’Where evidence is susceptible to more than one rational 15 interpretation,’ the ALJ’s decision should be upheld.”) (citation omitted); Robbins, 466 16 F.3d at 882 (“If the evidence can support either affirming or reversing the ALJ’s

17 conclusion, we may not substitute our judgment for that of the ALJ.”). Indeed, an ALJ 18 is not obligated to discuss “every piece of evidence” when interpreting the evidence and 19 developing the record. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th 20 Cir. 2003) (citation omitted). Similarly, an ALJ is also not obligated to discuss every 21 word of a doctor’s opinion or include limitations not actually assessed by the doctor. See 22 Fox v. Berryhill, 2017 WL 3197215, *5 (C.D. Cal. July 27, 2017); Howard, 341 F.3d at 23 1012. The Court finds no error by the ALJ in considering the medical record in 24 assessing Plaintiff’s RFC. 1 D. The ALJ Properly Evaluated Plaintiff’s Testimony 2 Plaintiff asserts that the ALJ did not properly evaluate his testimony regarding 3 his symptoms and limitations. Defendant, on the other hand, contends the ALJ 4 properly evaluated Plaintiff’s subjective statements, finding them inconsistent with the 5 record.

6 1. Legal Standard for Evaluating Claimant’s Testimony 7 A claimant carries the burden of producing objective medical evidence of his or 8 her impairments and showing that the impairments could reasonably be expected to 9 produce some degree of the alleged symptoms. Benton ex rel. Benton v. Barnhart, 331 10 F.3d 1030, 1040 (9th Cir. 2003). Once the claimant meets that burden, medical 11 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 12 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Admin., 119 F.3d 13 789, 792 (9th Cir. 1997) (“claimant need not present clinical or diagnostic evidence to 14 support the severity of his pain”) (citation omitted)). Defendants does not contest, and 15 thus appears to concede, that Plaintiff carried his burden of producing objective medical 16 evidence of his impairments and showing that the impairments could reasonably be

17 expected to produce some degree of the alleged symptoms. 18 Once a claimant has met the burden of producing objective medical evidence, an 19 ALJ can reject the claimant’s subjective complaint “only upon (1) finding evidence of 20 malingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331 21 F.3d at 1040. To discredit a claimant's symptom testimony when the claimant has 22 provided objective medical evidence of the impairments which might reasonably 23 produce the symptoms or pain alleged and there is no evidence of malingering, the ALJ 24 “may reject the claimant’s testimony about the severity of those symptoms only by 1 providing specific, clear and convincing reasons for doing so.” Brown-Hunter, 806 F.3d 2 at 489 (“we require the ALJ to specify which testimony she finds not credible, and then 3 provide clear and convincing reasons, supported by evidence in the record, to support 4 that credibility determination”); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017). 5 The ALJ may consider at least the following factors when weighing the claimant’s

6 credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the 7 claimant’s testimony or between the claimant’s testimony and his or her conduct; (3) his 8 or her daily activities; (4) his or her work record; and (5) testimony from physicians and 9 third parties concerning the nature, severity, and effect of the symptoms of which she 10 complains. Thomas, 278 F.3d at 958-59 (citing Light, 119 F.3d at 792). “If the ALJ’s 11 credibility finding is supported by substantial evidence in the record, [the court] may 12 not engage in second-guessing.” Id. at 959 (citing Morgan v. Apfel, 169 F.3d 595, 600 13 (9th Cir. 1999)). 14 2. The ALJ provided Clear and Convincing Reasons Supported by 15 Substantial Evidence 16 Having carefully reviewed the record, the Court finds that the ALJ provided

17 specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints.8 18 The ALJ found that Plaintiff’s subjective complaints were not entirely consistent with 19 the medical evidence of record, Plaintiff’s conservative treatment of his impairments, 20 and Plaintiff’s daily activities. (AR 20-22). The ALJ noted that the assessed RFC took 21 into account Plaintiff’s complaints of limitation. Plaintiff, however, contends that the 22 ALJ failed to take Plaintiff’s complaints into consideration when assessing the RFC. 23

24 8 The ALJ did not make a finding of malingering in her opinion. (AR 15-24). 1 A review of the decision reflects that the ALJ did not “dismiss” Plaintiff’s 2 testimony and medical records concerning his pain, symptoms, and level of limitation. 3 Rather, the ALJ considered Plaintiff’s testimony in assessing him with an RFC for 4 medium work, with certain exceptions. (AR 19-20). 5 The ALJ performed a thorough review of Plaintiff’s medical record and found

6 that it did not fully support Plaintiff’s allegations of disabling conditions. (AR 20-22). 7 The ALJ properly considered how consistent Plaintiff’s subjective symptom statements 8 were with this objective medical evidence. 20 C.F.R. § 404.1529(c)(2). This could not 9 be the ALJ’s sole reason for rejecting Plaintiff’s statements about his symptoms, but it 10 was a factor that the ALJ was permitted to consider. Id.; see also Burch, 400 F.3d at 681 11 (“Although lack of medical evidence cannot form the sole basis for discounting pain 12 testimony, it is a factor that the ALJ can consider in his credibility analysis.”); Rollins v. 13 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (while a claimant’s subjective statements 14 about symptomology “cannot be rejected on the sole ground that it is not fully 15 corroborated by objective medical evidence, the medical evidence is still a relevant 16 factor”). Thus, the lack of consistency between Plaintiff’s medical records and his

17 testimony was a proper basis for the ALJ’s discounting Plaintiff’s testimony. 18 Plaintiff contends that the ALJ improperly pointed to his level of daily activity, 19 such as walking at the swap meet two to three times a week, as a basis for dismissing his 20 testimony. This is not correct. The ALJ cited to Plaintiff’s statements in the record of 21 his daily activities to show the inconsistency with his testimony at the Administrative 22 hearing. See Thomas, 278 F.3d at 958-59 (holding that an ALJ may consider 23 inconsistencies either in the claimant’s testimony or between the claimant’s testimony 24 and his or her conduct when weighing the claimant’s credibility). 1 An ALJ is permitted to consider daily living activities in his credibility analysis. 2 See 20 C.F.R. § 404.1529(c)(3) (daily activities are a relevant factor which will be 3 considered in evaluating symptoms); see also Bray, 554 F.3d at 1227 (“In reaching a 4 credibility determination, an ALJ may weigh inconsistencies between the claimant’s 5 testimony and his or her conduct, daily activities, and work record, among other

6 factors”). Daily activities may be considered to show that Plaintiff exaggerated his 7 symptoms. See Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (ALJ properly 8 recognized that daily activities “did not suggest [claimant] could return to his old job” 9 but “did suggest that [claimant’s] later claims about the severity of his limitations were 10 exaggerated.”). Although Plaintiff takes issue with this, it was proper for the ALJ to 11 have considered daily living activities in his credibility analysis. See Burch, 400 F.3d at 12 681. 13 Finally, the ALJ also noted that the medical records showed conservative 14 treatment for Plaintiff’s impairments. (AR 20). Conservative treatment is a proper 15 basis for discrediting a claimant’s subjective pain testimony. See 20 C.F.R. § 16 404.1529(c)(3)(iv)-(v) (the type, dosage, effectiveness, and side effects of medication

17 and the treatment other than medication that a claimant is receiving or has received are 18 relevant to assessing his subjective complaints); Parra v. Astrue, 481 F.3d 742, 750-51 19 (9th Cir. 2007) (“The ALJ also noted that [the claimant’s] physical ailments were treated 20 with an over-the-counter pain medication. We have previously indicated that evidence 21 of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding 22 severity of an impairment.”). Here, it was proper for the ALJ to consider that Plaintiff’s 23 treatment for his impairments was conservative. Indeed, Plaintiff testified at the 24 1 Administrative hearing that no doctor had told him he needed surgery on his knees or 2 prescribed a knee brace. (AR 55). 3 V. CONCLUSION 4 For the reasons stated above, the decision of the Social Security Commissioner is 5 AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered

6 accordingly. 7 8 DATE: May 27, 2021

9 /s/ Autumn D. Spaeth 10 THE HONORABLE AUTUMN D. SPAETH United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24