Johnson v. Commissioner of Social Security

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 TERRENCE J.,

8 Plaintiff, CASE NO. C19-5700-MAT

9 v. ORDER RE: SOCIAL SECURITY 10 ANDREW M. SAUL, DISABILITY APPEAL Commissioner of Social Security, 11 Defendant. 12

13 Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of 14 the Social Security Administration (Commissioner). The Commissioner denied plaintiff’s 15 applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after 16 a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the 17 administrative record (AR), and all memoranda of record, this matter is AFFIRMED. 18 FACTS AND PROCEDURAL HISTORY 19 Plaintiff was born on XXXX, 1971.1 He completed high school and some college and 20 previously worked as an operating engineer/heavy equipment, warehouse worker, stock clerk, 21 construction laborer, window shade cutter, shipping and receiving supervisor, and hand packager. 22 (AR 178, 180-91.) 23

1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 Plaintiff protectively filed DIB and SSI applications on April 21, 2016, alleging disability 2 beginning April 21, 2016. (AR 383, 389.) The applications were denied at the initial level and on 3 reconsideration. ALJ Allen Erickson held a hearing on March 29, 2018, taking testimony from

4 plaintiff and a vocational expert (VE). (AR 171-226.) On July 26, 2018, the ALJ issued a decision 5 finding plaintiff not disabled. (AR 57-69.) 6 Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on 7 June 26, 2019 (AR 1-6), making the ALJ’s decision the final decision of the Commissioner. 8 Plaintiff appealed this final decision of the Commissioner to this Court. 9 JURISDICTION 10 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 11 DISCUSSION 12 The Commissioner follows a five-step sequential evaluation process for determining 13 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

14 be determined whether the claimant is gainfully employed. The ALJ found plaintiff had no 15 substantial gainful activity since the alleged onset date. 16 At step two, it must be determined whether a claimant suffers from a severe impairment. 17 The ALJ found severe plaintiff’s degenerative disc disease of the lumbar spine with herniated 18 nucleus pulposus; bipolar disorder with psychotic features; and post-traumatic stress disorder 19 (PTSD). He found other impairments non-severe, including thoracic spine scoliosis; right rib 20 deformity; right wrist tendonitis, status-post surgery; status-post meningitis; alcohol use; 21 methamphetamine use; opiate use; and Hepatitis C. (AR 59-60.) He also found diagnoses of 22 obsessive compulsive disorder and schizoaffective disorder better addressed by the bipolar and 23 PTSD diagnoses, and plaintiff’s alleged hearing loss not a medically determinable impairment. 1 Step three asks whether a claimant’s impairments meet or equal a listed impairment. The ALJ 2 found plaintiff’s impairments did not meet or equal the criteria of a listed impairment. 3 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

4 residual functional capacity (RFC) and determine at step four whether the claimant has 5 demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform 6 light work, with the following limitations: can occasionally climb ladders, ropes, and scaffolds, 7 crawl, and have exposure to vibrations and extreme cold; can understand, remember, and apply 8 short, simple instructions; able to perform routine tasks, but not in a fast-paced, production type 9 environment; able to make simple decisions; and can have occasional interaction with the general 10 public and co-workers. With that assessment, the ALJ found plaintiff unable to perform his past 11 relevant work. 12 If a claimant demonstrates an inability to perform past relevant work, or has no past 13 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant

14 retains the capacity to make an adjustment to work that exists in significant levels in the national 15 economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs, 16 such as a housekeeper, small products assembler, and marker. 17 This Court’s review of the ALJ’s decision is limited to whether the decision is in 18 accordance with the law and the findings supported by substantial evidence in the record as a 19 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 20 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported 21 by substantial evidence in the administrative record or is based on legal error.”) Substantial 22 evidence means more than a scintilla, but less than a preponderance; it means such relevant 23 evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. 1 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of 2 which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 3 F.3d 947, 954 (9th Cir. 2002).

4 Plaintiff argues the ALJ erred in failing to provide sufficient reasons for rejecting a medical 5 opinion, in failing to find his right wrist impairment severe, and in rejecting his subjective claims. 6 He requests remand for further proceedings. The Commissioner argues the ALJ’s decision has the 7 support of substantial evidence and should be affirmed. 8 Medical Opinions 9 In general, more weight should be given to the opinion of a treating doctor than to a non- 10 treating doctor, and more weight to the opinion of an examining doctor than to a non-examining 11 doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another 12 doctor, a treating or examining doctor’s opinion may be rejected only for “‘clear and convincing’” 13 reasons. Id. (quoted source omitted). Where contradicted, the ALJ must provide “‘specific and

14 legitimate reasons’ supported by substantial evidence in the record for so doing.” Id. at 830-31 15 (quoted source omitted). 16 Plaintiff argues the ALJ failed to provide the necessary specific and legitimate reasons for 17 rejecting the August 6, 2016 opinion of examining physician Rebecca Speckman, M.D. (AR 660- 18 64.) Dr. Speckman reviewed 2015 lumbar and thoracic spine x-rays, a May 18, 2016 record from 19 Mary Biggerstaff, ARNP, and an April 2016 x-ray of the right wrist. (AR 660.) Plaintiff reported 20 right wrist pain and swelling with an onset in fall 2015: “He was previously working in shipping 21 and his job would require him to repeatedly roll items, and this was exacerbating and was the 22 reason that he had to stop work.” (Id.) He reported longstanding back pain and right leg numbness 23 of more than a year. (AR 661.) 1 On examination, Dr. Speckman found 4/5 grip strength on the right and 5/5 on the left, 2 normal gait, the ability to heel and toe walk, more difficult on the right, intact tandem walking, the 3 ability to perform a full squat, and straight leg raise test positive on the right. (AR 662.) Plaintiff

4 had full strength bilaterally symmetrical in the upper and lower extremities, with the exception of 5 4/5 in the right wrist and right great toe extension. His range of motion (ROM) was normal except 6 for slight scoliosis of thoracic spine, wrist with right passive ROM of ten degrees extension and 7 flexion and five degrees of ulnar and radial deviation. Neurologically, he had decreased sensation 8 on a right S1 distribution. (AR 663.) His right wrist was “visibly swollen and with a palpable 9 effusion.” (Id.) There was no erythema or warmth, but right wrist ROM was decreased with 10 passive and active movement and he reported deep wrist pain with movement in any direction. 11 Dr. Speckman diagnosed right wrist swelling and objectively reduced ROM “severely so 12 on examination.” (Id.) While the etiology was not fully known, there was obvious reduced ROM 13 and swelling, as had been similarly reported by a nurse practitioner in 2016. Differential diagnosis

14 included inflammatory arthropathy, soft tissue injury, “[h]owever, even without a final diagnosis 15 there are clear limitations at this time.” (Id.) Dr. Speckman recommended an MRI of the right 16 wrist, aspiration with analysis of joint fluid, and blood tests. She also diagnosed thoracic scoliosis, 17 mild, confirmed by x-ray, with corresponding mid back pain and the problem not likely to resolve,2 18 and a history and examination consistent with objective finding of decreased Achilles reflex on 19 the right and corresponding weakness and sensory impairment. Dr. Speckman assessed plaintiff 20 as limited to maximum standing/walking with normal breaks for at least a two hour period; 21 maximum sitting of at least six hours; maximum lifting and carrying twenty pounds occasionally 22

23 2 The July 24, 2015 x-rays were negative for the lumbar spine, and, for the thoracic spine, showed ten degree scoliosis at T3-T4, no fracture, dislocation, or paraspinal soft tissue abnormality, and normal alignment. (AR 642, 644.) 1 and ten pounds frequently; able to occasionally climb, balance, kneel, crouch and crawl, only 2 occasionally reach, handle, finger and feel with the right hand, and limited in working at heights 3 and extremes of temperature. (AR 663-64.)

4 Non-examining State agency physician Donna LaVallie, D.O. offered an opinion on 5 February 7, 2017. She opined plaintiff could lift and/or carry twenty pounds occasionally and ten 6 pounds frequently, and occasionally push/pull the same amounts with the right upper extremity; 7 stand and/or walk and sit about six hours in an eight-hour workday; could never climb ladders/ 8 ropes/scaffolds, occasionally stoop and crawl, and frequently kneel and crouch; could frequently 9 handle on the right; and should avoid concentrated exposure to extreme cold, vibration, and 10 hazards. (AR 268-70, 284-86.) 11 The ALJ accorded Dr. Speckman’s opinion some weight as generally consistent with her 12 findings, but found the evidence did not support the limitations in standing/walking or in relation 13 to the right wrist. (AR 65.) “At the time of the examination, the claimant was experiencing right

14 wrist tendonitis, but imaging was normal and the physical examination findings from May 2016 15 were unremarkable.” (Id. (citing AR 633 (April 9, 2016 x-ray with indication of moderate pain 16 and swelling and findings of no fracture or dislocations, joint spaces maintained, and carpal 17 alignment normal); AR 648 (May 18, 2016 wrist examination by ARNP Biggerstaff showed 18 normal skin, soft tissue and bony appearance, no gross edema or evidence of acute injury, mild 19 tenderness on lateral wrist to palpation, and full active and passive ROM of wrist flexors, 20 extensors).) While he had diminished grip strength on the right, Dr. Speckman noted plaintiff was 21 able to make a full fist, pick up a coin, and manipulate clothing. (AR 662.) He was also able to 22 walk thirty feet and get on and off the examination table without assistance, had normal gait and 23 station, performed a full squat, and heal toe walked with some difficulty. (Id.) He had full strength 1 in the lower extremities, full ROM in the back, intact deep tendon reflexes, and slightly diminished 2 sensation in the right lower extremities. (AR 663.) The ALJ found these findings to suggest some 3 limitations, but not to the extent proposed by Dr. Speckman.

4 The ALJ accorded Dr. LaVallie’s opinion great weight to the extent consistent with the 5 assessed RFC. (AR 66.) He found the opinion generally consistent with the objective medical 6 evidence of record, “including the imaging of the lumbar spine which revealed no more than 7 moderate bilateral recess stenosis at the L4-S1 levels.” (Id. (citing AR 734 (reflecting Brian 8 Luliano, M.D.’s September 8, 2017 review of thoracic and lumbar x-rays; Dr. Luliano favored 9 conservative treatment and requested an epidural steroid injection)).) Plaintiff subsequently 10 reported epidural steroid injections provided some relief. (AR 763 (dated January 29, 2018).) He 11 also reported his ability to complete activities of daily living. (AR 465-72 (September 29, 2016 12 function report).) The ALJ had earlier, and as discussed below, found plaintiff’s right wrist 13 tendonitis was not a severe impairment. (AR 59-60.)

14 Plaintiff notes Drs. Speckman and LaVallie agreed he had limitations in his right wrist. He 15 argues that giving greater weight to the examining doctor’s opinion was the only reasonable way 16 to resolve the contradiction. He notes the ALJ rejected Dr. Speckman’s two-hour standing/walking 17 limitation based on some this physician’s own findings, such as his ability to walk thirty feet and 18 perform a full squat, while leaving out her other findings, such as his positive straight leg raise and 19 decreased Achilles reflex. He argues the ALJ unreasonably relied on his own lay understanding 20 of clinical findings, rather than the physician’s expertise. 21 Plaintiff also rejects the ALJ’s depiction of his right wrist limitations as temporary. (See 22 AR 65 (“At the time of the examination [by Dr. Speckman], the claimant was experiencing right 23 wrist tendonitis, . . . .”) (emphasis added).) He contends the record reflects right wrist findings 1 lasting several years and imposing limitations for more than the required twelve-month duration. 2 20 C.F.R. §§ 404.1505, 416.905 (to meet definition of disability, claimant must have a severe 3 impairment preventing work; impairment must have lasted or be expected to last at least twelve

4 months). He points to three 2016 treatment notes from ARNP Biggerstaff documenting his 5 ongoing condition and including the diagnosis of likely tendonitis, possible carpal tunnel (AR 650- 6 51 (April 15, 2016: reporting pain and swelling “for about six weeks”); AR 647-48 (May, 18, 7 2016: continued “wrist pain for several months”); and AR 697 (December 7, 2016: “His wrist has 8 been hurting about a year.”)), and contends ARNP Anneliese Kraiger found right wrist tendonitis 9 on numerous occasions between June 2017 and February 2018 (AR 845, 988, 992, 997, 1001, 10 1003, 1007). He states that, while ARNP Biggerstaff was not authorized to diagnose as an 11 “unacceptable medical source,” see 20 C.F.R. §§ 404.1502, 416.902, Dr. Speckman, in August 12 2016, offered a differential diagnosis and assessed clear limitations even without a final diagnosis 13 (AR 663). He asserts the error relating to his right wrist, back, and leg impairments necessarily

14 impacted the conclusions at steps four and five. 15 “The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v. 16 Comm’r of SSA, 533 F.3d 1155, 1164 (9th Cir. 2008). When evidence reasonably supports either 17 confirming or reversing the ALJ’s decision, the Court may not substitute its judgment for that of 18 the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). “Where the evidence is susceptible 19 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Morgan 20 v. Commissioner of the SSA, 169 F.3d 595, 599 (9th Cir. 1999). 21 The record indicates plaintiff developed right wrist pain while still working and not long 22 before the April 21, 2016 alleged onset date. (See, e.g., AR 650 (April 15, 2016 report of pain and 23 swelling “for about six weeks” and no known injury “but he does work in a seafood processing 1 plant and does a lot of repetitive motion.”); AR 647, 711 (May 18, 2016: “Here to establish care; 2 he continues with R wrist pain for several months, thought to be tendonitis from repetitive motion 3 at work.”); see also AR 190-94 (plaintiff testified he left his job in April 2016 due to problems that

4 included his wrist; job required putting shrimp in bags and lifting twenty-five pound bags into a 5 machine to be sealed).) However, even then, examinations and imaging were largely 6 unremarkable. (AR 650-51 (April 15, 2016: no erythema or ecchymosis, radial edema, no point 7 tenderness to palpation, normal neurovascular light touch and sensory exam, full active and passive 8 ROM of wrist flexors, extensors, including ulnar and radial deviation; prescribed wrist brace and 9 ibuprofen, and avoid exacerbating work for 2 weeks); AR 631-33 (April 29, 2016, Dr. Normand 10 LeComte: seen for “moderate” right wrist pain, with observations of tenderness, swelling, and 11 limiting ROM; x-ray by Joseph Stengel, D.O., indicated moderate pain and swelling, no fracture 12 or dislocations, joint spaces maintained, carpal alignment normal); AR 648, 712 (May 18, 2016: 13 normal skin, soft tissue and bony appearance, no gross edema or evidence of acute injury, mild

14 tenderness on lateral wrist to palpation, and full active and passive ROM of wrist flexors, 15 extensors).) In May 2016, ARNP Biggerstaff noted plaintiff’s report he had not had primary care 16 in many years, was uninsured, and intended to sign up for healthcare. (AR 647-48, 711-12.) 17 Dr. Speckman conducted her examination in August 2016, finding “clear limitations at this 18 time.” (AR 663.) However, by October 10, 2016, when plaintiff sought renewal of State general 19 assistance benefits, ARNP Biggerstaff stated: “He initially made it for wrist pain but he says now 20 that his bipolar disorder is a larger problem.” (AR 1014.) While plaintiff complained of wrist 21 pain, ARNP Biggerstaff included no physical findings other than normal gait. (AR 1014-15.) On 22 December 7, 2016, plaintiff reported intermittent, severe wrist pain alleviated by a brace and 23 swelling at times, as well as longstanding, constant, moderate, grinding back pain. (AR 697.) On 1 examination, ARNP Biggerstaff found normal gait, decreased ROM and pain with back flexion, 2 and pain over the radial side of wrist, no warmth, crepitus, loose bodies or masses, limited active 3 and passive ROM. (AR 699.) She assessed plaintiff as having a chronic back issue and likely

4 tendonitis, and recommended heat, NSAIDs, at least six weeks of physical therapy before any 5 imaging, and use of a brace during the day. (Id.) 6 Physical therapy records dated in February and March 2017 reflect improvement in 7 plaintiff’s wrist. (AR 780-801.) Contrary to plaintiff’s contention, ARNP Kraiger did not 8 subsequently make any findings of right wrist tendonitis. Kraiger provided psychiatric care and 9 merely included plaintiff’s report of this and many other physical impairments in a summary 10 review of diagnoses repeated throughout the treatment notes. (AR 845, 988, 992, 997, 1001, 1003, 11 1007 (also including plaintiff’s report of “near sighted vision issues, lymphomas, asthma as a child, 12 occasional headaches, chronic back and neck pain related to sciatic issues and herniated disks, 13 history of GERD, seasonal allergies, teeth in disrepair, . . . and exposure to a plant called ‘devil’s

14 club’, which he believes has left thorns in his body which migrate throughout his body and protrude 15 through the skin in various places causing him to pick at his skin and causes occasional rash[,]” as 16 well as “history of meningitis, previous head injury after an assault, no known allergies, hepatitis 17 C - referred for treatment.”)) The records dated after plaintiff’s physical therapy relate to other 18 issues, such as his back and leg, and contain fairly minimal associated findings. (See, e.g., AR 19 802-05 (February 9, 2017: sciatic leg pain); AR 756-60 (February 13, 2017: back pain, radiating 20 down leg; normal findings on examination except sacroiliac joints on right tender to palpation); 21 AR 775-77 (April 17, 2017: denied stronger medication/narcotics for back pain “as this is a chronic 22 condition and he is already on benzodiazepine.”); AR 806-09 (June 13, 2017: back pain); AR 767- 23 69 (July 27, 2017: back pain follow up, MRI denied, completed six weeks physical therapy; muscle 1 relaxants helping; normal on examination, but positive straight leg raise); AR 748-49, 810-11 2 (August 3, 2017: lumbar spine MRI impression of small broad-based dorsal disc protrusion L5- 3 S1, contacts the transiting S1 nerve roots and slightly displaces the left S1 nerve root; mild

4 narrowing spinal canal at that level, accompanying sub annular fissure observed, uncertain 5 significance; mild facet arthropathy at L4-L5, with very mild narrowing of left neural foramen); 6 AR 732-34 (September 8, 2017: neurological consultation for back pain; reporting back pain, right 7 leg numbness; found normal bulk, muscle tone, gait, full strength; recommended conservative 8 treatment, including epidural steroid injections); AR 763-66 (January 29, 2018: back pain follow 9 up; injections provided some relief, chronic pain, with numbness and loss of sensation in lower 10 right extremity).) This evidence is further consistent with plaintiff’s testimony at hearing that his 11 right wrist issues had largely resolved with treatment. (AR 201-02 (see supra at 13-14); see also 12 AR 176 (counsel argued plaintiff’s claim related primarily to his psychiatric impairments and 13 mentioned only the physical impairment of degenerative disc disease of the lumbar spine).)

14 An ALJ may reject a doctor’s opinion upon finding it inconsistent with the medical record. 15 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). An ALJ may likewise consider 16 discrepancies or contradictions between the opinion and the doctor’s own notes or observations. 17 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may also consider evidence of 18 improvement with treatment. Thomas, 278 F.3d at 957. 19 As reflected above, the record contains substantial evidence support for the ALJ’s rational 20 interpretation of the evidence, including inconsistencies with the medical record, inconsistencies 21 between the opined degree of limitation and Dr. Speckman’s own observations and findings, and 22 evidence of improvement following the opinions of both Dr. Speckman and Dr. LaVallie. Plaintiff 23 does not demonstrate error in the ALJ’s consideration of the medical opinion evidence. 1 Step Two 2 At step two, a claimant must make a threshold showing that his medically determinable 3 impairments significantly limit his ability to perform basic work activities. See Bowen v. Yuckert,

4 482 U.S. 137, 145 (1987); 20 C.F.R. §§ 404.1520(c), 416.920(c). “Basic work activities” refers 5 to “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1522(b), 416.922(b). 6 “An impairment or combination of impairments can be found ‘not severe’ only if the evidence 7 establishes a slight abnormality that has ‘no more than a minimal effect on an individual’s ability 8 to work.’” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling 9 (SSR) 85-28). “[T]he step two inquiry is a de minimis screening device to dispose of groundless 10 claims.” Id. (citing Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the 11 “combined effect” of an individual’s impairments in considering severity. Id. A diagnosis alone 12 is not sufficient to establish a severe impairment. Instead, a claimant must show his medically 13 determinable impairments are severe. 20 C.F.R. §§ 404.1521, 416.921.

14 The ALJ found plaintiff’s right wrist tendonitis not severe. (AR 59.) He reasoned: 15 In April 2016, the claimant sought acute treatment for right wrist pain. Imaging at that time did not reveal any evidence of fractures 16 or dislocation. ([AR 633.]) The following month, a physical examination revealed no edema, only mild tenderness, and full 17 range of motion [(ROM)]. ([AR 648].) In December 2016, the claimant had pain in the right wrist with palpitation and limited 18 [ROM]. ([AR 699].) He was counseled that his wrist pain was likely tendonitis. ([Id.]) He was prescribed a brace for his wrist, 19 and he was treated with conservative measures. ([Id.])

20 The ALJ concluded this and other impairments did not cause more than minimal effects on 21 plaintiff’s functioning and therefore found them non-severe. 22 Plaintiff notes the ALJ’s failure to include Dr. Speckman’s findings in this step-two 23 analysis of his wrist impairment. He argues that, whether characterized as tendonitis, 1 inflammatory arthropathy, carpal tunnel syndrome, or a rheumatological impairment, his wrist 2 impairment did not resolve, limited his basic work activities for more than twelve months, and was 3 therefore severe. He asserts the necessary impact on the determination of his RFC and decision at

4 step five. He also contends the ALJ improperly posed a leading question at hearing about whether 5 or not his wrist impairment was “severe” (Dkt. 20 at 14), stating he would not know the technical 6 meaning of that term as a lay person, and that he, as well as his lay witness, nonetheless noted his 7 wrist pain and need to wear a brace (AR 465, 447). 8 Plaintiff does not establish error at step two. The ALJ addressed plaintiff’s wrist at step 9 two and step four. As discussed above, the ALJ’s consideration of the medical evidence associated 10 with plaintiff’s wrist impairment is both rational and supported by substantial evidence. The ALJ 11 did not improperly question plaintiff regarding his wrist, as is reflected with consideration of the 12 entirety of the relevant exchange at hearing: 13 [Q.] Right wrist, has that been treated?

14 [A.] Yes.

15 [Q.] Tell me about it.

16 [A.] I apparently had very bad tendinitis, and I wasn’t sure what I had, and I went through physical therapy for both my wrists and my 17 back. It helped my wrist, but it didn't help my back.

18 [Q.] Okay. So the wrist is not a severe problem.

19 [A.] Correct.

20 [Q.] It has been cleared up in fact, or is it still bothering you a little bit? 21 [A.] It bothers me a little bit. 22 [Q.] Are you right-handed? 23 [A.] No. I'm left-handed. 1 [Q.] So your left hand is good to go.

2 [A.] Yes.

3 (AR 201-02.) (See also AR 697 (in December 2016 plaintiff described his wrist pain as “severe”).) 4 Nor do the assertions of plaintiff and the lay witness in function reports completed, respectively, 5 in September and May 2016 undermine the substantial evidence support for the ALJ’s conclusions 6 at step two or in the assessment of his RFC at step four. 7 Symptom Testimony 8 The rejection of a claimant’s subjective symptom testimony3 requires the provision of 9 specific, clear, and convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014) 10 See also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). “General findings are 11 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 12 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. The ALJ in this case found 13 plaintiff’s statements concerning the intensity, persistence, and limiting effects of his symptoms 14 not entirely consistent with the medical and other evidence in the record. 15 The ALJ stated that, while containing evidence of ongoing limitations related to his mental 16 health symptoms, the record also established plaintiff’s symptoms improved with regular treatment 17 and medication, as well as sobriety. (AR 63.) In addition, observations of plaintiff throughout the 18 record suggested his ability to function much better than alleged. The ALJ acknowledged 19 plaintiff’s endorsement of a variety of symptoms, such as mania and rapid thoughts, his report of 20 a history of traumatic experiences resulting in continued intrusive thoughts, documentation of a 21 history of psychiatric hospitalization, and the fact plaintiff sought treatment, including medication 22

3 Effective March 28, 2016, the Social Security Administration eliminated the term “credibility” 23 from its policy and clarified the evaluation of a claimant’s subjective symptoms is not an examination of character. SSR 16-3p. The Court continues to cite to relevant case law utilizing the term credibility. 1 and counseling. He outlined the evidence set forth below as supporting his interpretation of the 2 record as nonetheless showing improvement and greater functioning than alleged. (AR 64-65.) 3 In May and August 2016, plaintiff presented with appropriate affect and demeanor, normal

4 speech, good insight and judgment, cooperative behavior, and/or good grooming. (AR 648, 668.) 5 In September 2016, he sought acute treatment for suicidal ideation (AR 721-27), he was started on 6 medications for his symptoms the following month, and, by November 2016, he reported 7 medication compliance and improvement (AR 700). In December 2016, he continued to report 8 some improvement with his symptoms and medication and presented as well groomed, with good 9 eye contact, cooperative, with a euthymic mood and effect, normal speech, and intact memory. 10 (AR 694-95.) He performed some serial seven subtractions and had full recall of objects after a 11 brief delay, average math skills, and average ability to pay attention. (AR 695.) Similar findings 12 were noted in February through June 2017. (AR 777, 803, 808, 965, 978-79.) 13 Plaintiff thereafter participated in both individual and group counseling. (AR 811-1010.)

14 He presented on time for appointments, was attentive, and able to support others in the group. In 15 July 2017, he was noted to be stable and mental status findings were unremarkable. (AR 938.) 16 Similar findings were noted the following month. (AR 931-32.) In October 2017, plaintiff 17 indicated his current medication plan was working well to manage his mood and psychosis. (AR 18 999.) Objective observations at the time indicated euthymic affect, normal speech, intact thoughts, 19 good hygiene, appropriate behavior, and cooperative, with good eye contact. (AR 98-99.) In 20 December 2017, plaintiff continued to indicate he was doing well. (AR 992.) In January 2018, he 21 was described as having normal mental status, cooperative, alert and oriented, in no acute distress, 22 with normal speech and good judgment. (AR 765.) Later that month, he reported he was manic, 23 but he had not presented as such; he was, in fact, described as having appropriate appearance, 1 normal behavior, as cooperative, anxious, with normal speech, and appropriate thoughts, and as 2 stable. (AR 857.) In February 2018, he noted a stable mood and managed psychosis. (AR 990.) 3 The ALJ found these records established that plaintiff’s symptoms improved with treatment, but

4 accounted for any ongoing cognitive, adaptive, and social limitations resulting from his severe 5 mental impairments in the RFC. (AR 64.) 6 The ALJ also considered the evidence associated with plaintiff’s lower back pain and right 7 lower leg numbness. (Id.) A July 2015 x-ray of the lumbar spine did not reveal any abnormalities. 8 (AR 642.) In the August 2016 examination, he was able to walk thirty feet, get on and off the 9 examination table, had normal gait and station, performed a full squat, and heal toe walked with 10 some difficulty. (AR 662.) He had full strength in the lower extremities, full ROM in the back, 11 intact deep tendon reflexes, and slightly diminished sensation in the right lower extremity. (AR 12 663.) In December 2016, he had decreased ROM in the back and intact sensation, limited ROM, 13 intact reflexes, and decreased sensation in the right lower extremity. (AR 699.) He engaged in

14 physical therapy (AR 756-811) and, while he reported ongoing pain, was denied narcotic 15 medication (AR 777). In February 2017, he had normal ROM, negative straight leg raising, normal 16 muscle tone, intact sensation, and normal gait. (AR 759.) In September 2017, plaintiff underwent 17 a neurosurgical consultation with Dr. Brian Iuliano, who recommended conservative treatment, 18 and found full strength, normal bulk and tone, intact gait, and slightly decreased reflexes on the 19 right. (AR 733-34.) An MRI from that time showed normal alignment of the lumbar spine, but 20 moderate bilateral lateral recess stenosis at the L4-S1 levels. (AR 734.) He received epidural 21 steroid injections in October 2017 and January 2018 and reported they provided him some relief. 22 (AR 740-41, 763.) The ALJ found these findings and reported improvement suggested plaintiff’s 23 symptoms are not as limiting as alleged, but included his ongoing complaints of pain and numbness 1 by limiting him to light work, with additional postural and environmental limitations. 2 Plaintiff posits that the ALJ should have relied on the interpretative medical opinions in 3 considering the medical evidence, such as the opinion of Dr. Speckman, rather than the ALJ’s own

4 interpretation. He asserts he had extreme pain prescriptions causing side effects of drowsiness 5 which the ALJ did not address, and that the prescriptions for Tramadol and Robaxin indicate his 6 treating providers believed his claims. He concedes he did not opt for surgery, but states it is 7 unclear what benefit surgery would provide. Plaintiff further concedes his testimony as to “fairly 8 robust abilities” (Dkt. 20 at 16), including the ability to stand for forty-five minutes, walk for an 9 hour-and-a-half, and sit two hours before having to get up and move (AR 218), and observes that 10 both he and his lay witness noted his wrist pain and need to wear a brace in function reports (AR 11 465, 447.) Plaintiff contends these limitations are consistent with sedentary work, including the 12 ability to stand/walk for two hours and to use his right hand up to a third of the day, as opined by 13 Dr. Speckman. He asserts the need for further VE testimony given the conflict with the RFC and

14 hypothetical question proffered to the VE. 15 “While subjective pain testimony cannot be rejected on the sole ground that it is not fully 16 corroborated by objective medical evidence, the medical evidence is still a relevant factor in 17 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 18 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p. An ALJ therefore properly considers whether the 19 medical evidence supports or is consistent with a claimant’s allegations. Id.; 20 C.F.R. §§ 20 404.1529(c)(4), 416.929(c)(4) (symptoms are determined to diminish capacity for basic work 21 activities only to the extent the alleged functional limitations and restrictions “can reasonably be 22 accepted as consistent with the objective medical evidence and other evidence.”) An ALJ may 23 reject symptom testimony upon finding it contradicted by or inconsistent with the medical record. 1 Carmickle, 533 F.3d at 1161; Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). An ALJ 2 also properly considers evidence associated with treatment, §§ 404.1529(c)(3), 416.929(c)(4); SSR 3 16-3p, including evidence of effective treatment and conservative treatment, see Wellington v.

4 Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical treatment successfully 5 relieving symptoms can undermine a claim of disability.”); Tommasetti, 533 F.3d at 1039-40 6 (favorable response to conservative treatment undermined allegation of disabling nature of pain); 7 and Morgan, 169 F.3d at 599-600 (contrary to plaintiff’s claimed lack of improvement, physician 8 reported symptoms improved with use of medication). 9 The ALJ here rationally interpreted the evidence as contradicting plaintiff’s alleged degree 10 of limitation, and as reflecting both effective and conservative treatment of his symptoms. Plaintiff 11 offers a different interpretation, such as that opined by Dr. Speckman. However, the ALJ is 12 responsible for assessing plaintiff’s symptom testimony, resolving any conflicts in the testimony, 13 and resolving any ambiguities in the record. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

14 1090, 1098 (9th Cir. 2014). See also Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) 15 (“questions of credibility and resolution of conflicts in the testimony are functions solely of the 16 Secretary”) (internal quotation marks and citation omitted). The ALJ’s interpretation is both 17 rational and supported by substantial evidence. 18 Also, while medication side-effects should be considered in assessing symptom testimony, 19 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv), plaintiff does not establish reversible error in 20 this case. Plaintiff points solely to his report of medication side-effects in the function report he 21 completed in September 2016. (See Dkt. 20 at 16 and Dkt. 26 at 7 (citing AR 472).) This report 22 does not alone suffice to establish error where the ALJ provided the necessary specific, clear, and 23 convincing reasons for discounting plaintiff’s symptom testimony. See Thomas, 278 F.3d at 960 1 (finding no error in the ALJ’s failure to exclude alleged medication side effects where the only 2 evidence of the side effects alleged came from the claimant’s own statements to her doctor and her 3 testimony at hearing, no supportive objective evidence was offered, and the ALJ provided the

4 necessary reasons for rejecting the claimant’s symptom testimony). Cf. McCawley v. Astrue, No. 5 10–35056, 2011 WL 977823 at *1 (9th Cir. Mar. 21, 2011) (affirming an ALJ’s adverse credibility 6 determination based in part on the rejection of the claimant’s “serious side effects from her 7 medications because she failed to complain to her treating psychiatrists of such side effects”). 8 CONCLUSION 9 For the reasons set forth above, this matter is AFFIRMED. 10 DATED this 10th day of March, 2020.

11 s/ Mary Alice Theiler United States Magistrate Judge 12

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