1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 NICHOLE LEE JOHNSON, Case No. 2:21-cv-01993-EJY
5 Plaintiff,
6 v. ORDER
7 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 8 Defendant. 9 10 Plaintiff Nichole Lee Johnson (“Plaintiff”) seeks judicial review of the final decision of the 11 Commissioner of the Social Security Administration (“Commissioner” or the “Agency”) denying 12 her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security 13 Act (the “Act”). ECF No. 19. For the reasons stated below, the Commissioner’s decision is 14 affirmed. 15 I. BACKGROUND 16 On August 23, 2019, Plaintiff filed an application for SSI alleging a disability onset date of 17 August 15, 2016. Administrative Record (“AR”) 193-203. The Commissioner denied Plaintiff’s 18 claims by initial determination on May 14, 2020 (AR 125-130), and upon reconsideration on April 19 17, 2019. AR 98-103. On January 11, 2021, Administrative Law Judge (“ALJ”) Barry H. Jenkins 20 held a hearing at which Plaintiff testified. AR 46-74. The ALJ issued his decision finding Plaintiff 21 was not disabled on February 17, 2021. AR 24-45. When the Appeals Counsel denied Plaintiff’s 22 request for review on September 9, 2021, the ALJ’s decision became the final order of the 23 Commissioner. AR 1-6, 42 U.S.C. § 405(g). This civil action followed. 24 II. STANDARD OF REVIEW 25 A reviewing court must affirm the Commissioner’s decision if the decision is based on 26 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 27 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 1 mind might accept as adequate to support a conclusion.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 2 Cir. 2020) (quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)). In reviewing the 3 Commissioner’s alleged errors, the Court must weigh “both the evidence that supports and detracts 4 from the [Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986) 5 (internal citations omitted). 6 “When the evidence before the ALJ is subject to more than one rational interpretation, … 7 [the Court] must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. 8 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, a reviewing court “cannot affirm the decision 9 of an agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r 10 Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). And, the Court 11 may not reverse an ALJ’s decision based on a harmless error. Burch v. Barnhart, 400 F.3d 676, 679 12 (9th Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful 13 normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 14 396, 409 (2009). 15 III. DISCUSSION 16 A. Establishing Disability Under the Act. 17 To establish whether a claimant is disabled under the Social Security Act, there must be 18 substantial evidence that:
19 1. the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be 20 expected to last for a continuous period of not less than twelve months; and
21 2. the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial 22 gainful employment that exists in the national economy. 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant 24 meets both requirements, he or she is disabled.” Id. 25 The ALJ uses a five-step sequential evaluation process to determine whether a claimant is 26 disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 27 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled’ or ‘not- 1 F.3d at 1098 (internal citation omitted); 20 C.F.R. § 404.1520. The claimant carries the burden of 2 proof at steps one through four, and the Commissioner carries the burden of proof at step five. 3 Tackett, 180 F.3d at 1098.
4 The five steps include:
5 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act and is 6 not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step 7 one and the evaluation proceeds to step two. 20 C.F.R. § 404.1520(b).
8 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s impairment is 9 severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. 20 C.F.R. § 404.1520(c). 10 3. Does the impairment “meet or equal” one of a list of specific impairments 11 described in the regulations? If so, the claimant is “disabled” and entitled to disability insurance benefits. If the claimant’s impairment neither meets nor equals 12 one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. 20 C.F.R. § 13 404.1520(d).
14 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance 15 benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the 16 fifth and final step. 20 C.F.R. § 404.1520(e).
17 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and entitled to disability insurance benefits. 20 C.F.R. § 404.1520(f)(1). If the 18 claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. 19 There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national economy that claimant can 20 do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the 21 Commissioner meets this burden, the claimant is “not disabled” and not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the 22 Commissioner cannot meet this burden, then the claimant is “disabled” and entitled to disability benefits. See id. 23 24 B. Summary of ALJ Findings. 25 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity from the 26 application date of August 23, 2019. AR 29. At step two, the ALJ found that Plaintiff suffered from 27 inflammatory bowel disease, Crohn’s disease, and obesity, all of which he found to be severe 1 impairments. Id. At step three, the ALJ found that Plaintiff had no impairment or combination of 2 impairments that meet or equal any “listed” impairment in 20 C.F.R. Part 404, Subpart P, Appendix 3 1. AR 31. 4 In preparation for step four, the ALJ determined Plaintiff had the Residual Functional 5 Capacity (“RFC”) to “[p]erform light work as defined in 20 CFR 416.967(b) except that she must 6 have ready access to a bathroom during regularly scheduled breaks.” AR 32.1 At step four, the ALJ 7 found Plaintiff was unable to perform past relevant work as a cook. AR 38. After testimony from 8 the VE, the ALJ found at step five that there are other jobs that exist in significant numbers in the 9 national economy Plaintiff could perform given her age, education, work experience, and RFC. Id. 10 For example, the ALJ found Plaintiff was capable of performing the jobs of cafeteria attendant, 11 routing clerk, and office helper. Id. Thus, the ALJ concluded Plaintiff was not disabled. AR 40. 12 C. The Parties’ Arguments. 13 Plaintiff argues (1) the ALJ’s finding that Plaintiff did not need bathroom access beyond 14 regularly scheduled work breaks was erroneous because it lacked the support of an underlying 15 medical opinion, and (2) the ALJ failed to articulate clear and convincing evidence for discounting 16 Plaintiff’s symptom testimony. ECF No. 19 at 5-6. 17 First, Plaintiff claims the ALJ made an unqualified RFC determination because he “rejected 18 or found unpersuasive all medical opinions that addressed or could be read to reasonably address 19 limitations relating to Johnson’s Crohn’s disease.” Id. at 6. Plaintiff also challenges the ALJ’s 20 finding that statements by the state agency doctors regarding Plaintiff’s restroom use were not 21 wholly persuasive. Id. at 5. Plaintiff stipulates to the ALJ’s summary of the medical evidence, asks 22 the court to “take notice of that summary;” but then argues “it is not clear how the ALJ translated 23 that evidence into an RFC that ready access to a bathroom could be accommodated within the 24 regularly scheduled work breaks.” Id. at 6. Plaintiff concludes the ALJ interpreted raw medical data 25 based only on his lay opinion in violation of Ninth Circuit law. Id. at 7, citing Day v. Weinberger, 26 522 F.2d 1154, 1156 (9th Cir. 1975). 27 1 Plaintiff cites several cases for the proposition that “[t]he ALJ must have a medical opinion 2 to support his RFC.” ECF No. 19 at 6-7, citing Aliza W. v. Saul, Case No. CV 20-09189-JEM, 2021 3 WL 3190902, at *4 (C.D. Cal. July 28, 2021), citing de Gutierrez v. Saul, Case No. 1:19-cv-00463- 4 BAM, 2020 WL 5701019, at *6 (E.D. Cal. Sept. 24, 2020); Goolsby v. Berryhill, Case No. 1:15-cv- 5 00615-JLT, 2017 WL 1090162, at *8 (E.D. Cal. Mar. 22, 2017); Perez v. Sec’y of Health & Human 6 Servs., 958 F.2d 445, 446 (1st Cir. 1991). Plaintiff argues the ALJ “should have reconciled the 7 discrepancy” between medical evidence and opinions of record, presumably in reference to the 8 ALJ’s finding that Plaintiff failed to articulate how her condition would require increased restroom 9 access. ECF No. 19 at 8. Plaintiff suggests the ALJ “could have recontacted the state agency 10 physicians and sought clarification of their opinions” or “arranged for a consultative examination to 11 address this issue.” Id. 12 Plaintiff’s second argument asserts the ALJ failed to articulate clear and convincing reasons 13 for discounting Plaintiff’s testimony of her symptoms. Id. Plaintiff argues the ALJ’s reference to 14 Plaintiff’s improvement was considered “in a vacuum” rather than in light of the record as a whole, 15 which the law requires. Id. at 9, citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Plaintiff 16 also takes issue with the ALJ discounting Plaintiff’s testimony based on her daily activities. Id. at 17 10. Plaintiff claims “[t]he ALJ did not explain the nexus between [Plaintiff’s] ability to engage in 18 these routine activities with the rigors of full-time employment.” Id., citing Garrison v. Colvin, 759 19 F.3d 995, 1016 (9th Cir. 2014). Plaintiff asserts that when the ALJ failed to credit Plaintiff’s 20 symptom testimony because it was uncorroborated by medical evidence, he did so applying the 21 wrong standard. Id. at 11. That is, Plaintiff contends the ALJ should have applied the standard 22 established in Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) requiring “consideration of 23 ‘excess pain’ not simply the degree of pain limitation established by the objective medical evidence.” 24 ECF No. 19 at 11. 25 In response to Plaintiff’s arguments, Defendant contends Plaintiff fails to explain how the 26 cases she cites or the medical evidence specifically undermines the RFC. ECF No. 20 at 6. 27 Defendant points out that Plaintiff does not contest the ALJ’s evaluations of medical opinions 1 wholly or partially unpersuasive. Id. Defendant argues “[t]here is simply no requirement that a 2 claimant’s RFC be based on a medical opinion or a prior administrative finding” and that binding 3 precedent explicitly holds that an ALJ, not medical sources, has the responsibility for calculating a 4 plaintiff’s RFC. Id at 7; Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Defendant 5 emphasizes the regulations assign the ALJ the precise task of reviewing “x-rays … treatment history, 6 and clinical findings” so as to determine a plaintiff’s RFC. Id. 7 Defendant cites Moore v. Kijakazi, Case No. 2:20-cv-01988-BNW, 2022 WL 716811, at *6 8 (D. Nev. Mar. 10, 2022), in which the court held the plaintiff failed to establish the ALJ’s decision 9 lacked the support of substantial evidence because she did “not provide any analysis as to how the 10 ALJ’s RFC assessment is a lay opinion, how the ALJ interpreted raw medical data, and how this 11 supports the notion that the RFC determination lacks the support of substantial evidence.” ECF No. 12 20 at 8, quoting Moore, 2022 WL 716811, at *6. Defendant further argues that District of Nevada 13 case law rejects the “assertion that [the] ALJ improperly disregarded [the] treating physicians’ 14 opinions, in part, where claimant ‘identified no additional medically necessary limitation that should 15 have been included in the [RFC].’” Id., citing Vavoukakis v. Saul, Case No. 2:20-cv-01469-CLB, 16 2021 WL 2853644, at *6 (D. Nev. June 8, 2021). Defendant argues Plaintiff’s failure to identify an 17 additional RFC limitation to which she is entitled requires denial of her Motion to Remand. ECF 18 No. 20 at 8. 19 Defendant also distinguishes the Ninth Circuit decision in Day v. Weinberger, supra, 20 emphasizing the ALJ in that case exceeded the scope of his authority “insofar as he ’should not have 21 gone outside the record to medical textbooks for the purpose of making his own exploration and 22 assessment as to claimant’s physical condition.’” Id. at 9 (quoting Day, 522 F.2d at 1156) (emphasis 23 removed). Here, Defendant correctly points out that the ALJ did not go outside the record to make 24 his determination, but instead summarized the medical opinions available and translated that 25 evidence into the RFC. Id. 26 Defendant points out the ALJ’s extensive reasoning supporting his determination that 27 Plaintiff can perform light work with bathroom access as established through regularly scheduled 1 medical opinions, while specifically addressing “the issue of bathroom access in evaluating the prior 2 administrative medical findings” of the two state agency consultants and Joan Rueter Carapucci, 3 PA-C (“Carapucci”). Id. Defendant maintains the ALJ provided several reasons for his findings 4 with respect to these opinions, and argues Plaintiff’s brief fails to challenge this reasoning or 5 otherwise acknowledge the ALJ’s explanation. Id. at 10-11. Defendant reiterates Plaintiff “does 6 not identify any medical evidence showing she is more functionally limited than the RFC.” Id. at 7 12. 8 Defendant also responds to Plaintiff’s claim that the ALJ improperly discounted her 9 symptom testimony. Id. at 13. Defendant again points out that Plaintiff stipulated to the accuracy 10 of the ALJ’s summary of Plaintiff’s symptom testimony and that she “accepted” her “impairments 11 caused significant limitations” resulting in the ALJ’s RFC assessment of light work—a restrictive 12 RFC. Id. at 14. Defendant argues the ALJ did not reject Plaintiff’s symptom testimony, but instead 13 “accepted that Plaintiff’s functional abilities were significantly limited by her impairments” while 14 concluding Plaintiff was not altogether disabled. Id. Defendant points to the ALJ’s three reasons 15 for failing to entirely credit Plaintiff’s testimony and argues they are sufficient to support the ALJ’s 16 finding. These include that: “(1) objective medical findings did not support the extent of [Plaintiff’s] 17 allegations; (2) the medical record showed her physical condition improved; and (3) Plaintiff made 18 inconsistent statements concerning her daily activities, which indicated she had greater abilities than 19 alleged.” Id. at 14-15. 20 With respect to the objective medical findings, Defendant notes Plaintiff does not “directly 21 challenge” the ALJ’s reasoning, arguing instead that the ALJ may not discredit Plaintiff’s testimony 22 on this basis alone. Id. at 15. Defendant counters this argument saying the ALJ based his finding 23 on additional evidence including that Plaintiff’s condition improved significantly with treatment, 24 thus “contradict[ing] her allegations regarding her functional abilities” in accord with Ninth Circuit 25 precedent. Id., citing 20 C.F.R. §§ 404.1529(c)(3)(iv)-(v), Warre v. Comm’r of Soc. Sec. Admin., 26 439 F.3d 1001, 1006 (9th Cir. 2006) (“[i]mpairments that can be controlled effectively with 27 medication are not disabling), and Bailey v. Colvin, 669 Fed. Appx. 839, 840 (9th Cir. 2016) 1 that many of [her] impairments had improved … or responded favorably to treatment.”). Next, 2 Defendant identifies the ALJ’s evaluation of record evidence demonstrating Plaintiff’s abdominal 3 pain and diarrhea in late 2010 improved after an adjustment of medications, as well as image reports 4 from March 2020 revealing her Crohn’s disease was in remission. ECF No. 20 at 15-16, citing AR 5 33-35. Defendant addresses Plaintiff’s challenge to the ALJ’s review of the evidence arguing “[i]t 6 makes no sense that Plaintiff asks this Court to ‘take notice’ of the ALJ’s summary of the evidence 7 … but then argue[s] the ALJ did not consider the full context of the record as a whole without 8 identifying any evidence that was not considered.” Id. at 16 (emphasis in original). Defendant 9 highlights that among the evidence reviewed by the ALJ was the June 2019 second opinion of Dr. 10 Syed Abdul Basit questioning whether Plaintiff displayed any signs of inflammatory bowel disease 11 in light of the biopsy he considered. Id. Defendant argues Plaintiff fails to contradict this opinion 12 or any of the evidence of her improvement. Id. at 17. 13 Finally, Defendant emphasizes the ALJ’s detailed and repeated explanation that he found 14 Plaintiff’s symptom testimony not fully credible in light of her daily living activities. Id. In 15 particular, Defendant notes the discrepancy between Plaintiff’s function report “in April 2020 that 16 she took her boyfriend’s mother to the store or to doctor’s appointments … [as contradicting] her 17 testimony at the hearing in January 2021 that she stopped taking care of her boyfriend’s mother 18 around two years prior (AR 35; see AR 58-59).” Id. at 18 (emphasis in original). In addition, 19 Defendant notes the ALJ found inconsistencies in Plaintiff’s testimony that she must walk very 20 slowly to avoid exacerbating her abdominal pain, but runs to the bathroom quickly. Id. Defendant 21 argues these findings are reasonable, and Plaintiff does not address or offer an explanation for the 22 inconsistencies. Id. Defendant argues the Ninth Circuit allows “consideration of activities that 23 illustrate abilities beyond what a claimant alleges, and inconsistent statements serve as an 24 independent permissible reason for discounting a claimant’s testimony.” Id., citing Molina v. Astrue, 25 674 F.3d 1104, 1113 (9th Cir. 2012); Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009); 26 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); 20 C.F.R. § 416.1529(c)(4).
27 1 D. The RFC Calculation Was Supported by Substantial Evidence. 2 The RFC assessment must “[c]ontain a thorough discussion and analysis of the objective 3 medical and other evidence, including the individual’s complaints of pain and other symptoms and 4 the adjudicator’s personal observations, if appropriate.” SSR 96-8p, 61 Fed. Reg. at 34478. To the 5 extent the evidence could be interpreted differently, it is the role of the ALJ to resolve conflicts and 6 ambiguity in the evidence. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 7 1999). This said, an ALJ, not a doctor, is responsible for determining a plaintiff’s RFC. 20 C.F.R. 8 § 404.1546(c); Rounds v. Comm’r Soc. Sec Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ is 9 responsible for translating and incorporating clinical findings into a succinct RFC”). 10 The ALJ’s findings of fact, as embodied in the RFC, are conclusive if supported by 11 substantial evidence. 42 U.S.C. § 405(g); Uklov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). When 12 the evidence will support more than one rational interpretation, the Court must defer to the 13 Commissioner’s interpretation. See Burch, 400 F.3d at 679. Consequently, the issue before the 14 Court is not whether the Commissioner could reasonably have reached a different conclusion, but 15 whether the final decision is supported by substantial evidence. Sartor v. Colvin, Case No. 2:14-cv- 16 00570-APG-NJK, 2015 WL 5980617, at *1 (D. Nev. Aug. 10, 2015). 17 1. The ALJ’s assessment of Plaintiff’s impairments. 18 a. The ALJ’s summary of the evidence. 19 In calculating Plaintiff’ RFC, the ALJ reviewed Plaintiff’s symptom and medical history 20 testimony. AR 32. Summarizing that testimony, the ALJ noted:
21 • Plaintiff’s reports of substantial limitations in her day-to-day activities arising from her inflammatory bowel and Crohn’s disease exemplified by extreme and 22 immobilizing pain that makes her want to “curl up and not move.” Id.;
23 • Plaintiff reported this pain occurs approximately four times a week and primarily while walking fast. Id.; 24 • As of the hearing date, Plaintiff stated she could not shop at the store for more than 25 30 minutes because of pain from walking and that “she used to care for her boyfriend’s mother, such as by taking her to the store or medical appointments, but 26 has stopped for the past year and a half or two years because she began experiencing pain when she was walking in the store.” Id.; 27 1 • Plaintiff’s testimony that she needs to use the restroom three to five times a day, and that “she rushes to the bathroom at such times.” AR 33; and, 2 • The ALJ noted Plaintiff’s function report, in which Plaintiff reports needing to 3 occasionally use a walker due to feelings of weakness. Id. 4 Evaluating the record as a whole, the ALJ found Plaintiff’s medically determinable impairments 5 could reasonably be expected to produce some of Plaintiff’s alleged symptoms, but her statements 6 “concerning the intensity, persistence and limiting effects of these symptoms … [were] not 7 sufficiently supported by the record as a whole in light of the objective medical findings, the medical 8 history[,] … degree of medical treatment required, and the claimant’s description of her activities of 9 daily living ….” AR 33. The ALJ also questioned the extent of symptoms Plaintiff alleges in light 10 of the laboratory and clinical findings in the medical record. Id. The ALJ noted an urgent care visit 11 in July 2019 for generalized abdominal pain, nausea, vomiting, and diarrhea. Id. The 12 gastroenterology department treated Plaintiff with steroids and antibiotics, which caused Plaintiff’s 13 condition to improve. Id. One month later, in August 2019, Plaintiff returned complaining of 14 abdominal pain and ultimately underwent surgery for a perforated duodenal ulcer. Id. The ALJ 15 commented that Plaintiff “tolerated the procedure well with postoperative pain that eventually 16 improved. She also tolerated advancement of diet with good return of bowel function. She was 17 discharged in stable condition.” Id. 18 The ALJ considered a third hospital visit in September of 2019 in which Plaintiff was 19 admitted for diarrhea and abdominal pain. Id. The ALJ noted that “[d]uring this time, her 20 inflammatory markers were low, leading away from an acute flare [up] of her inflammatory bowel 21 disease.” Id. Plaintiff’s condition improved throughout the stay. Id. In addition, the ALJ found 22 “the [Plaintiff] was also counseled on diet and exercise for weight loss” and “tobacco use cessation.” 23 AR 34. In October 2019, Plaintiff consulted her primary care provider for “increased nausea and 24 vomiting, inability to keep anything down, and continued abdominal pain.” Id. The ALJ 25 commented, however, that “post-surgical complications were ruled out, … [h]er physical exam was 26 normal, including observations of soft[] bowel sounds present in all quadrants, no tenderness, no 27 mass, and no organomegaly in her abdomen.” Id. Plaintiff was again encouraged to treat her 1 The ALJ next reviewed an emergency room visit in November 2019 when Plaintiff reported 2 dark, loose stools, but no constipation, abdominal distention, nausea, or vomiting. Id. Her 3 abdominal functioning was normal, and “she had a soft, non-tender, non-distended abdomen without 4 guarding, rebound, or mass.” Id. The ALJ discussed a CT scan demonstrating “mucosal hyperemia 5 in the proximal ascending colon which could be secondary to early colitis or consistent with her 6 Crohn’s.” Id. At a follow up appointment in January 2020, Plaintiff’s physician noted EGD and 7 colonoscopy results revealing gastritis, a hiatal hernia, bile reflux, duodenal diverticulum, pancolitis, 8 and collagenous colitis. Id. However, the ALJ noted “[h]er physical exam still was normal” with 9 “no apparent tenderness to palpation and no palpable masses.” Id. The ALJ also stated Plaintiff’s 10 treatment with Dicyclomine was “somewhat helpful.” Id. 11 A March 2020 CT scan revealed “no evidence of active inflammatory change of the bowel 12 and no penetrating disease.” Id. In June 2020 Plaintiff told her providers that since beginning 13 Budesonide and Questran her diarrhea had improved. Id. Plaintiff’s “exam was unchanged since 14 her last visit in January 2020, with largely normal respiratory, cardiovascular, abdominal, 15 musculoskeletal, and neurological functioning despite an elevated BMI level of 40.25 kg/m2.” Id. 16 In August 2020, Plaintiff was referred to Dr. Basit, for a second opinion. Id. After reviewing 17 Plaintiff’s EGD and colonoscopy report from June 2019, the ALJ noted Dr. Basit’s conclusion that 18 “based on the available data, he was not sure that the claimant had any inflammatory bowel disease.” 19 AR 34-35. Dr. Basit “did not believe that [Plaintiff’s] abdominal pain was gastrointestinal in 20 nature.” AR 35. 21 In December 2020, Plaintiff reported to the Digestive Care Wellness Institute with pain and 22 nausea, stating she had extreme pain with walking (7 out of 10). Id. However, the ALJ’s review of 23 the record showed “[h]er physical exam was normal, including … a soft, non-tender abdomen with 24 no masses and normal bowel sounds. She also exhibited full range of motion in her extremities.” 25 Id. Results of a second EGD and colonoscopy that month revealed “no significant abnormalities, 26 including small bowel mucosa, large[] intestine mucosa, mild chronic inactive gastritis, and negative 27 H. pylori.” Id. 1 b. The ALJ’s findings. 2 After reviewing Plaintiff’s testimony and the corresponding record evidence, the ALJ found 3 Plaintiff’s testimony “not fully consistent with the medical record.” Id. The ALJ explained that 4 “although the claimant experienced increased abdominal pain and diarrhea with a few 5 hospitalizations within a short four-month period in late 2019, once her medications were adjusted, 6 she experienced an improvement in her symptoms.” Id. The ALJ cites Plaintiff’s June 2020 report 7 showing she obtained relief for her diarrhea from Budesonide and Questran, and her “largely benign” 8 imaging from March 2020 that revealed her Crohn’s disease was in remission. Id. The ALJ further 9 cited, albeit non-specifically, Plaintiff’s normal abdominal imaging and testing, symptom alleviation 10 with diet and medication, and normal physical exams subsequent to March 2020. Id. 11 The ALJ found Plaintiff’s allegations of total disability inconsistent with her description of 12 daily activities including driving to the grocery store and medical appointments, dusting, doing 13 laundry, feeding and cleaning up after her dog, vacuuming, sweeping, and mopping. Id. The ALJ 14 cited function reports from January and April of 2020, in which Plaintiff reported she could “prepare 15 simple meals, maintain her self-care, and take her boyfriend’s mother to her doctor appointments or 16 the store.” Id. The ALJ concluded that these April 2020 statements contradicted Plaintiff’s January 17 11, 2021 testimony in which Plaintiff said she stopped taking care of her boyfriend’s mother almost 18 two years ago. Id. The ALJ also found contradiction between Plaintiff’s statement that “she tries to 19 walk slowly to avoid being in significant pain” and her ability “to quickly rush to the bathroom if 20 needed.” Id. 21 The ALJ stated that although Plaintiff testified she uses the restroom three to five times a day 22 is consistent throughout the record, Plaintiff “did not specify at what times of the day she has to use 23 the bathroom nor for how long she needs to use the bathroom each time.” For this reason, and 24 because Plaintiff “could not explain how walking exacerbates her abdominal pain[,] and [because] 25 she testified that her physicians could not explain this either[,]” the ALJ found Plaintiff could be 26 accommodated with restroom access within regularly scheduled work breaks. Id. The ALJ found 27 additional contradiction between Plaintiff’s testimony and her reports of occasionally needing a 1 motion and gait were noted to be within normal limits, and she was able to perform activities of daily 2 living without an assistive device such as walking in stores, driving, and performing household 3 chores.” AR 36. 4 The ALJ considered medical findings from state-agency consultants that Plaintiff “could 5 perform light work with … environmental limitations” partially unpersuasive in light of Plaintiff’s 6 consistently normal physical exams throughout the record. Id. In addition, due to Plaintiff’s failure 7 to specify the exact nature of her need for restroom access, the ALJ found this need “can be 8 accommodated within the regularly scheduled work breaks.” Id. Nonetheless, the ALJ found the 9 limitation to light work persuasive based on record evidence demonstrating “that while the claimant 10 reported experiencing abdominal pain and diarrhea that required a few hospitalizations early on in 11 the relevant period, she then was able to experience improved symptoms with medications as well 12 as” perform activities of daily living. Id. The ALJ stated light work limitation is “consistent with 13 the post-evaluation treatment record, which included clinical examinations showing largely normal 14 … functioning despite elevated BMI levels, laboratory imaging showing her Crohn’s to be in 15 remission, a recent endoscopy showing largely benign results with mild inactive gastritis, as well as 16 the claimant’s testimony of her ability to perform activities of daily living.” Id. 17 The ALJ discounted the November 2020 opinion offered by Carapucci that Plaintiff “would 18 be off task 5% of the day and be absent from work two days a month” because Carapucci also opined 19 that Plaintiff has no mental limitations, and because Carapucci lacked expertise in or treatment of 20 Crohn’s and inflammatory bowel disease. AR 37. The ALJ found Carapucci’s opinion similarly 21 inconsistent with the record showing Plaintiff’s Crohn’s disease was in remission by March 2020, 22 Plaintiff’s “improved abdominal pain and diarrhea on medications, and her reported activities of 23 daily living.” Id. Specifically addressing the alleged inflammatory bowel disease and Plaintiff’s 24 activities of daily living, the ALJ explained:
25 [d]riving to the store and medical appointments, as well as shopping in the store for at least 30 minutes, show that the claimant is able to complete activities fully 26 without interruption from needing to go to the restroom. Further, her ability to perform the aforementioned household chores require some walking, as well as 27 bending and stooping, demonstrating that … she is able to carry out basic daily 1 AR 37-38. Thus, the ALJ found a light exertional requirement with accommodations for bathroom 2 breaks throughout the regularly scheduled workday appropriate. Id. 3 2. There is sufficient evidence to support the RFC. 4 Plaintiff fails to identify any error the ALJ committed in incorporating the medical evidence 5 into his RFC. The Ninth Circuit holds that under the social security regulations “the ALJ is 6 responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v. 7 Comm’r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs–Danielson v. Astrue, 539 8 F.3d 1169, 1174 (9th Cir. 2008)); see also Bufkin v. Saul, 836 Fed. Appx. 578, 579 (9th Cir. 2021) 9 (unpublished) (“the ALJ properly considered all of the various types of evidence in the medical 10 record, including objective evidence such as x-rays, [claimant’s] treatment history, and clinical 11 findings, and properly translated and incorporated this evidence into an RFC finding”). In Bufkin, 12 the court found the ALJ “did not rely on her ‘lay interpretation’ of medical evidence” but “simply 13 summarized the medical evidence from [treating doctors].” 836 Fed. Appx. at 579. 14 Here, Plaintiff accuses the ALJ of interpreting raw medical data because his decision that 15 Plaintiff did not need increased bathroom access outside the regular work schedule lacks a specific 16 supporting opinion. However, Plaintiff points to no interpretation of the medical documentation in 17 the ALJ’s decision, which the Court finds summarizes objective medical evidence in question 18 translating that evidence into an RFC. All conclusions the ALJ reached on Plaintiff’s condition were 19 based on clinical findings and testimony from medical sources and Plaintiff herself. 20 In contrast to the ALJ in Day v. Weinberger, who committed error when he consulted medical 21 textbooks outside the record (522 F.2d at 1156), here the ALJ’s review of the MRIs Plaintiff 22 identifies never goes beyond a summary of the objective findings, which he considered in 23 combination with the various types of evidence in the record, ultimately leading to the RFC. AR 24 32-37. The ALJ based his finding, in large part, on the fact that Plaintiff did not need a particular 25 bathroom break schedule based on the lack of medical professionals evidence identifying such a 26 specific or proposed schedule. AR 36. Plaintiff’s argument that the ALJ provided his “lay 27 interpretation” of raw medical data is simply unsupported and, therefore, unpersuasive given the 1 ALJ’s thorough discussion of the medical evidence and that the ALJ’s finding are based on what 2 evidence was presented. Id. 3 Requiring the ALJ to follow up with an examiner after the hearing because the examiners 4 did not testify that Plaintiff must be accommodated by means of a particular bathroom schedule (see 5 ECF No. 19 at 8) is contrary to the proposition that Plaintiff always bears the burden of establishing 6 disability. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001), citing 42 U.S.C. § 423(d)(5) 7 (Supp.2001) (“An individual shall not be considered to be under a disability unless he furnishes such 8 medical and other evidence of the existence thereof as the Secretary may require”). The ALJ had 9 no duty to unilaterally offer a bathroom schedule; nor did he have to seek additional information on 10 this issue given the record was sufficient to allow for a proper evaluation. Id. at 459-60 (internal 11 citation omitted). 12 Nothing in the record is inconsistent with the RFC, the calculation of which is the exclusive 13 domain of the ALJ, and must be respected under the deferential substantial evidence standard. See 14 Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1156 (2019). As the court found in Bufkin, “ALJs 15 need not seek the opinion of a medical expert every time they review new medical evidence and 16 make a RFC determination.” 836 Fed. Appx. at 579. Further, the fact that Plaintiff’s Motion, like 17 the opinions of the various medical professionals, does not make any attempt to identify particular 18 bathroom access requirements supported by medical evidence undermines Plaintiff’s argument that 19 greater limitations are medically necessary. Plaintiff’s lack of analysis on this point and the 20 conclusory assertion that the RFC was unsupported fails to warrant a finding of error under the 21 substantial evidence standard. Champagne v. Colvin, 582 Fed. Appx. 696, 697 (9th Cir. 2014) 22 (unpublished) (finding the ALJ did not err in rejecting the medical opinions available to him in part 23 where Plaintiff “identified no additional medically necessary limitation that should have been 24 included in the residual functional capacity.”).
25 E. The ALJ Supplied Clear and Convincing Reasons for Partially Discrediting Plaintiff’s Testimony. 26 27 The ALJ provided a thorough discussion of and reasons for partially discounting Plaintiff’s 1 persistence, and limiting effects of her symptoms as “not sufficiently supported by the record as a 2 whole in light of the objective medical findings, the medical history and degree of medical treatment 3 required, and the claimant’s descriptions of her daily living” constitute clear and convincing 4 reasoning. Id. at 33-38. 5 To the extent that the limitations in the RFC are inconsistent with Plaintiff’s pain and 6 symptom testimony, the ALJ gave specific, clear and convincing reasons for the difference. Id. at 7 33-35. The ALJ reviewed Plaintiff’s testimony and provided what Plaintiff agrees is an accurate 8 summary of that testimony in comparison to medical evidence. Id. at 35. The ALJ specified that 9 the RFC, which limits Plaintiff to performing “light work,” included limitations in light of Plaintiff’s 10 hearing testimony. AR 37. The administrative record shows that the ALJ carefully considered and 11 incorporated Plaintiff’s testimony in the RFC while doubting the degree to which Plaintiff’s 12 symptoms actually prevented her from performing all work functions in light of the record as a 13 whole. AR 35. 14 The ALJ explained that Plaintiff’s testimony concerning the nature and degree of her 15 abdominal pain and gastrointestinal distress was “not fully consistent” with the objective medical 16 and overall record evidence. Id. The ALJ discussed that despite Plaintiff’s repeated hospitalizations 17 “within a short four-month period in 2019,” the record revealed improvement over time—that is, “as 18 recently as June 2020, the claimant reported that her diarrhea has subsided with Budesonide and 19 Questran, and that she was having two to three soft stools a day.” Id. The ALJ’s discussion 20 emphasizes corresponding imaging from June 2020 revealed “largely benign” findings and that 21 imaging from March 2020 revealed her Crohn’s disease was in full remission. Id. The ALJ cited 22 record evidence that following the Spring of 2020, Plaintiff’s “abdominal symptoms were controlled 23 on medications and adherence to a healthier diet” and that physical exams generally revealed normal 24 findings. Id. 25 The ALJ further explained how Plaintiff’s representations undermine her testimony. Id. The 26 ALJ reviewed over ten different household chores and errands Plaintiff testified to regularly 27 performing as of April 2020, including driving, dusting, laundry, feeding and cleaning up after her 1 care of her boyfriend’s mother. Id. Plaintiff’s argument that the ALJ failed to explain the nexus 2 between objective findings and Plaintiff’s testimony fails. Not only did the ALJ describe the 3 inferences he made arising from the evidence, but, the record on its face provides evidence that 4 contradicts Plaintiff’s allegations of total disability. See Molina, 674 F.3d at 113 (even if a 5 claimant’s activities, at most, “suggest some difficulty functioning, [those activities] may be grounds 6 for discrediting [the plaintiff’s] testimony to the extent that they contradict claims of a totally 7 debilitating impairment.”). This conclusion is further supported by the apparent inconsistencies the 8 ALJ noted between Plaintiff’s hearing testimony that she ceased taking care of her boyfriend’s 9 mother almost two years from the February 2021 hearing and her January and April 2020 function 10 reports listing caring for her boyfriend’s mother among Plaintiff’s current daily activities. AR 35. 11 The ALJ was entitled to question Plaintiff’s credibility in light of these discrepancies. Tommasetti, 12 533 F.3d at 1039. 13 The Court finds Plaintiff’s arguments insufficient to support remand of this case for further 14 proceedings. Plaintiff does not address the evidence of improvement or argue Plaintiff’s statements 15 were not inconsistent. Instead, Plaintiff makes sweeping statements without specifics asserting that 16 the ALJ did not review the record “in context of the overall diagnostic picture” but rather in a 17 “vacuum.” ECF No. 19 at 10. However, under the deferential substantial evidence standard, if the 18 record reasonably “support[s] either affirming or reversing, the reviewing court may not substitute 19 its judgment for that of the Commissioner.” Lizer v. Berryhill, 363 F. Supp. 3d 1097, 1099 (N.D. 20 Cal. 2019). As discussed fully above, the Court finds the ALJ’s RFC was supported by substantial 21 evidence. As such, the Court upholds the Commissioner’s decision and denies Plaintiff’s Motion 22 for Reversal and Remand. 23 IV. ORDER 24 IT IS HEREBY ORDERED that Plaintiff’s Motion for Reversal and Remand (ECF No. 19) 25 is DENIED. 26 IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Affirm (ECF No. 20) is 27 GRANTED. ] IT IS FURTHER ORDERED that the Clerk of Court must enter judgment in favor | 2 || Defendant and close this case. 3 Dated this 22nd day of August, 2022.
5 Cana) |. Acs ak 6 ONNLUATATES ACSA ATE JUDGE 8 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28