Kirker v. Saul

• Court: District Court, S.D. California
• Decided: January 14, 2022
• Docket: 3:20-cv-00673
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 . SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} OSCAR K., Case No.: 3:20-cv-00673-LAB-RBM 12 Plaintiff, REPORT AND □ 13 || V- RECOMMENDATION OF UNITED 14 || KILOLO KIAKAZI, COMMISSIONER | STATES MAGISTRATE RE: OF SOCIAL SECURITY PLAINTIFF’S MOTION FOR 15 | ’ SUMMARY JUDGMENT & 16 Defendant.|_ DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 17 18 . [Docs. 19, 20] 19 20 □ 21 . I. INTRODUCTION 22 On September 12, 2020, Plaintiff Oscar K. (“Plaintiff”) filed an amended complaint 23 under 42 U.S.C §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of 24 ||the Commissioner of the Social Security Administration (“SSA”) (“Defendant” or 25 ||“Commissioner”) denying Plaintiff’ s application for disability insurance benefits and 26 27 28

1 supplemental security income under Titles I and XVI of the Social Security Act (“the 2 || Act”).! (Doc. 8.) 3 Before the Court are: (1) Plaintiffs motion for summary judgment, seeking remand 4 ||to the SSA for further proceedings (Doc. 19); Defendant’s cross-motion for summary 5 judgment (Doc. 20); and Plaintiff's reply (Doc. 21).? 6 The matter was referred to the undersigned for Report and Recommendation

_ 7 pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c). Considering the papers, 8 ||the Administrative Record (“AR”), the facts, and the applicable law, it is respectfully 9 ||recommended that Plaintiff's motion for summary judgment be DENIED, Defendant’s 10 || cross-motion for summary judgment be GRANTED, and the Administrative Law Judge’s 11 (“ALJ”) decision be AFFIRMED. 12 Il. BACKGROUND & PROCEDURAL HISTORY □ 13 | In August of 2010, Plaintiff developed cervical dystonia, also known as spasmodic 14 || torticollis, a rare neurological disorder that originates in the brain. (Doc. 19-1 at 4.) The 15 }|neurological disorder causes Plaintiff's neck to lean to the right resulting in involuntary 16 ||muscle spasms. (/d.) 17 On September 13, 2017, Plaintiff filed an application for disability insurance 18 || benefits and supplemental security income under Titles IT and XVI of the Act wherein 19 || Plaintiff alleged his disability began on August 1, 2010.2 (AR, 18.) The SSA denied 20 ||---______ 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021, and 22 || is therefore substituted for Andrew M. Saul as Defendant. See 42 U.S.C. § 405(g); FED. R. 23 || Civ. P. 25(d). 4 As set forth in the briefing schedule (Doc. 18), the undersigned ordered Plaintiff to file a 24 || merits brief pursuant to Civil Local Rule 7.1(e)(6)(e). Plaintiff, however, titled the brief 25. || “Plaintiff's Motion for Summary Judgment.” (Doc. 19.) Hereafter, Plaintiffs brief will be referred to as a merits brief. The undersigned ordered Defendant to file an opposition 26 brief; however, Defendant titled the brief “Cross-Motion for Summary Judgment.” (Doc. 27 ||20.) Hereafter, Defendant’s brief will be referred to as Defendant’s Opposition. 3 All AR citations refer to the number on the bottom right-hand corner of the page, rather 28 || than page numbers assigned by CM/ECF.

1 || Plaintiff’ s claims initially on February 6, 2018, and upon reconsideration on April 26, 2018. 2 ||Ud.) On May 14, 2018, Plaintiff requested a hearing before an ALJ, which was held on 3 || April 8, 2019. Ud.) At the April 8, 2019 video hearing, Plaintiff appeared from National 4 || City, California, with counsel. (Id.) The ALJ presided over the hearing from Albuquerque, 5 || New Mexico, and elicited testimony from Plaintiff and Katie T. Macy-Powers, a vocational 6 || expert (“Vocational Expert”), who appeared by telephone. (/d.) 7 On May 16, 2019, the ALJ issued a written decision finding Plaintiff was not 8 || disabled as defined in the Act from August 1, 2010 through the date of the decision. (AR, 9 || 18-19.) On July 3, 2019, the Appeals Council denied review of the ALJ’s ruling, and the 10 |) ALJ’s decision became the final decision of the Commissioner pursuant to 42 U.S.C. § 11 ||405(h). (Doc. 19-1 at 4-5.) Plaintiff filed a complaint in this Court on April 7, 2020, 12 || which was dismissed with leave to amend. (Docs. 1, 7.) Plaintiff filed an amended 13 complaint on September 12, 2020. (Doc. 8.) □ . 14 IW. THE ALJ’S FINDINGS | 15 In the decision, the ALJ determined Plaintiff met the insured status requirements of 16 || the Act through June 30, 2014. (AR, at 20.) The ALJ then followed the five-step sequential 17 evaluation process to determine whether Plaintiff is disabled. See 20 C.F.R. 3§ 18 || 404.1520(a), 416.920(a). 19 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 20 || since August 1, 2010. (AR, at 20.) 21 At step two, the ALJ found Plaintiff suffered from the following severe impairments: 22 cervical degeneration and torticollis. Ud.) As to Plaintiff's mental impairments, the ALJ 23 || found Plaintiff's medically determinable mental impairment of depression and anxiety did 24 ||not cause more than minimal limitation in Plaintiffs ability to perform basic mental work 25 || activities and therefore, considered the impairments as non-severe. (/d., at 18.) In making 26 ||this finding, the ALJ considered the four broad areas of mental functioning set out in the 27 || disability regulations for evaluating mental disorders known as the “paragraph B” criteria 28 found no limitations in understanding, remembering, or applying information; no

1 limitations in interacting with others; mild limitations in Plaintiff's ability to concentrate, 2 || persist, or maintain pace; and no limitations in Plaintiff's ability to adapt or manage 3 ||himself, (Jd, at 21.) 4 In analyzing the mental impairment, the ALJ gave significant weight to non- 5 |}examining state agency psychological evaluators, Phaedra Caruso-Radin, Psy.D. (“Dr. 6 || Caruso-Radin”) and Eugene Campbell, Ph.D. (“Dr. Campbell”), who classified □□□□□□□□□□ 7 || depression as non-severe and found no significant psychological impairments. (d., at 22.) 8 || The ALJ gave significant weight to psychological consultative examiner, Dan Whitehead, 9 || Ph.D. “Dr. Whitehead”), who found Plaintiff was alert, fully oriented, well groomed, and 10 || functioning at a higher level. (Id) lL At step three, the ALJ found Plaintiff did not have an impairment or combination of 12 impairments that met or medically equaled the severity of one of the impairments listed in 13 ||20 C.F.R. Part 404, Subpart P, Appendix 1. (AR, at 19.) 14 Next, the ALJ determined Plaintiff had the residual functional capacity (“RFC”) to 15 || perform medium work as defined in 20 C.F.R. § 404.1567(c), with certain exceptions set 16 || forth below: 17 Climbing of ramps and stairs, balancing, stooping (bending at the waist), ig crouching (bending at the knees) and kneeling must be limited to frequently, while the climbing of ladders, ropes, and scaffolds and crawling must be 19 further limited to occasionally. Within the assigned work area, there must be 20 less than occasional, seldom to rare, exposure to hazards, such as machinery and heights. 21 . 22 ||(AR, at 23.) 23 At step four, the ALJ found Plaintiff could perform past relevant work as a storage 24 || facility clerk (a light exertion job) and customer order clerk (a sedentary exertion job). Ud, 25 25-26.) 26 For purposes of the step four analysis, the ALJ gave significant weight to a medical 27 ||opinion from orthopedic consultative examiner, David Payne, M.D. (“Dr. Payne’) who 28 || diagnosed Plaintiff with chronic torticollis and opined Plaintiff was capable of medium

1 |}exertion work with frequent postural movements. (/d., at 24.) The ALJ summarized Dr. 2 Payne’s findings stating, “[Plaintiff] has an obvious rightward tilt of the head along with 3 ||tendemess and a decreased range of motion; [h]owever, neurologically, the [Plaintiff] has 4 || full motor strength, intact sensation and normal reflexes.” (Ud, at 25.) The ALJ noted 5 ||“these findings remained unchanged even with the new diagnosis of cervical 6 ||radiculopathy.” (/d.) . 7 The ALJ reviewed Plaintiff's treatment record, which included notes from treating 8 || provider, Clarissa Castillo, P.A. (“Castillo”). (d., at 24.) Castillo reported Plaintiff had a 9 ||history of neck pain from torticollis with ongoing pain, muscle spasms, and referred 10 || Plaintiff to pain management. (/d.) 11 The ALJ gave significant weight to Plaintiff's pain specialist, Jeffery Chen, M.D. 12 ||(“Dr. Chen”), who reported Plaintiff was generally healthy, “alert, fully oriented and in no 13 distress” despite Plaintiff reporting extreme pain and difficulties with activities. (/d.) 14 || Additionally, Dr. Chen reported an obvious rightward tilt of Plaintiff's head, but no 15 {neurological deficits in strength or sensation. (/d.) Lastly, Dr. Chen assessed cervical 16 dystonia and radiculopathy but noted that Plaintiff reported extended relief at levels of 17 || greater than 50% after repeat Botox injections. (/d.) 18 As for opinion evidence, the ALJ gave substantial weight to non-examining state 19 agency physical evaluators, Albert Lizarraras, M.D. (“Dr. Lizarraras”), and James Wright, 20 ||M.D. (“Dr. Wright”), who found Plaintiff's condition to be severe; however, they both 21 ||opined Plaintiff was capable of medium exertion with frequent to occasional postural 22 ||movements. (/d.) 23 At step five, the ALJ then compared Plaintiff's RFC with the physical demands of 24 Plaintiff's past relevant work as a storage facility clerk and customer order clerk. (/d., at 25 |/26.) The ALJ found Plaintiff able to return to this type of past work at a gainful level as it 26 |/is generally performed in the national economy. (/d.)

27 Although the ALJ found Plaintiff capable of performing past relevant work, she 28 || made alternative findings as to Plaintiff’s ability to perform other jobs. (/d., at 27.)

1 Considering Plaintiff's age,* education, work experience, and RFC, the ALJ found that 2 || Plaintiff could perform a significant number of other jobs in the national economy. (/d.) 3 ||The ALJ gave significant weight to the Vocational Expert’s testimony during which she 4 ||asked whether other work was available to a hypothetical individual with Plaintiff's same 5 || age, vocational and educational background, and RFC. (/d., at 53.) The Vocational Expert 6 || provided three examples of medium unskilled exertion jobs, which consisted of industrial 7 {|cleaner, linen room attendant, and salvage labor. (U/d., at 53-54.) Then, reducing the 8 || exertion level to light, the Vocational Expert provided three examples of light unskilled 9 which consisted of housekeeping cleaner, cashier, and mail clerk. (/d., at 54.) Based 10 || on this testimony, the ALJ found Plaintiff capable of making a successful adjustment to 11 || other work in the national economy. (/d., at 28.) In sum, the ALJ found Plaintiff was not 12 disabled, as defined in the Act, from August 1, 2010, through the date of the ALJ’s 13 ||dectsion. (/d.) 14 ISSUES IN DISPUTE 15 |] As set forth in the parties’ briefing, the disputed issues are as follows: 16 1. Whether the ALJ addressed the combined physical and mental limitations of 17 cervical dystonia characterized by involuntary muscle contractions, with anxiety, fatigue? 18 (Doc. 19-1 at 14; Doc. 20 at 5.) 19 2, Whether the ALJ properly evaluated Plaintiff's RFC and subjective claims of 20 || impairment? (Doc. 19—1 at 19-21; Doc. 20 at 10-12.) 21 3. Whether the ALJ met her burden of proof at step five where she incorrectly 22 || cites Plaintiff's age in her written decision? (Doc. 19-1 at 14; Doc. 20 at 12.) 23 24 25 ||4 The ALJ’s decision states Plaintiff “was born on April 1, 1966, and 44 years old” at the time of the decision. (AR, at 27.) The April 8, 2019 hearing transcript indicates the ALJ 26 || asked Plaintiff, “[h]ow old are you?” and Plaintiff responded, “fifty-three [53].” (qd. at 27 ||38.) Plaintiff clarifies that he was 53 years old at the time of the decision, and the ALJ 38 calculated his age as of the date of the onset of his alleged disability. (Doc. 19-1 at 22- 25.) Plaintiff contends this error warrants remand. (/d.)

. V. STANDARD OF REVIEW 2 The Act provides for judicial review of a final agency decision denying a claim for 3 || disability benefits in federal district court. 42 U.S.C. § 405(g). “As with other agency 4 || decisions, federal court review of social security determinations is limited.” Treichler v. 5 || Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A federal court will uphold 6 ||the Commissioner’s disability determination “unless it contains legal error or is not 7 || supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 8 ||(citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). 9 || Substantial evidence means “more than a mere scintilla, but less than a preponderance; it 10 |/is such relevant evidence as a reasonable person might accept as adequate to support a 11 ||conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); Morgan v. 12 ||Comm’r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). In reviewing whether the 13 || ALJ’s decision is supported by substantial evidence, the court must consider the record as 14 ||a whole, “weighing both the evidence that supports and the evidence that detracts from the 15 || Commissioner’s conclusion.” Lingenfelter, 504 F.3d at 1035 (quoting Reddick v. Chater, 16 || 157 F.3d 715, 720 (9th Cir. 1998)). 17 “The ALJ is responsible for determining credibility, resolving conflicts in medical 18 || testimony, and for resolving ambiguities.” Garrison, 759 F.3d at 1010 (quoting Andrews 19 || v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); see also Magallanes v. Bowen, 881 F.2d 20 || 747, 750 (9th Cir. 1989) (citations omitted). When the evidence is susceptible to more than 21 || one rational interpretation, the ALJ’s conclusion must be upheld. Batson v. Comm’r Soc. 22 Admin. , 359 F.3d 1190; 1193 (9th Cir. 2004); see also Ryan v. Comm’r Soc. Sec., 528 23 1194, 1 198 (9th Cir. 2008). Stated differently, when the evidence “can reasonably 24 ||/support either affirming or reversing a decision, [the court] may not substitute [its] 25 ||judgment for that of the [ALJ]”; rather, the court only reviews “the reasons provided by 26 ALJ in the disability determination and may not affirm the ALJ on a ground upon which 27 ||he did not rely.” Garrison, 759 F.3d at 1010. 28

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1 VI. DISCUSSION 2 A. Combined Impairments . 3 Plaintiff contends the ALJ’s decision should be reversed and remanded, arguing 4 ||“[t]he ALJ’s decision is not supported by substantial evidence as it did not review the 5 combination of impairments and include those limitations in the residual functional 6 capacity finding... .” (Doc. 19-1 at 4.) It is unclear whether Plaintiff contests the step- 7 three analysis, wherein the ALJ must consider the combination of impairments, or whether 8 || Plaintiff contests the step-four RFC analysis. Therefore, the undersigned will address both 9 |/arguments. Defendant counters that the ALJ discussed the pertinent evidence conceming 10 ||Plaintiffs mental and physical functioning and explained why she concluded. that 1] Plaintiff s RFC best reflected the weight of the evidence. (Doc. 20 at 10.) Defendant 12 ||argues the ALJ’s findings were proper, supported by substantial evidence, and warrant 13 || affirmance. (/d. at 6.) 14 As outlined below, the ALJ did not err as a matter of law, because she properly 15 |)considered Plaintiff's impairments in combination at step three of the sequential 16 evaluation. Moreover, the RFC determination is supported by substantial evidence. 17 i. Considering Impairments in Combination is Limited to Step Three of 18 the Five-Step Sequential Analysis 19 The requirement to consider impairments in combination is limited to step three. See 20 || Lester v. Chater, 81 F.3d 821, 828-29 (9th Cir. 1995) (citing 20 C.F.R. § 404.1526(a)); see 21 also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). It does not extend to the RFC 22 || analysis. See Lester, 81 F.3d at 828; see also 20 CFR. § 404.1526(a). In evaluating || plaintiffs with multiple impairments, the ALI “must consider ‘whether the combination of 24 ||... impairments is medically equal to a listed impairment.’” Lester, 81 F.3d at 829. But 25 ||the ALJ “is not required to discuss the combined effects of a [plaintiff]’s impairments or 26 || compare them to any listing in an equivalency determination, unless the [plaintiff] presents 27 ||evidence in an effort to establish equivalence.” Burch, 400 F.3d at 683 (citing Lewis v. 28 || Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (holding ALJ’s failure to consider equivalence

1 || was not reversible error, because the plaintiff did not offer any theory, plausible or 2 || otherwise, as to how his impairments combined to equal a listing impairment)); Aguilar v. 3 || Colvin, 19-CV-891-BEN-NLS, 2014 WL 1653109, at *6 (S.D. Cal. Apr. 22, 2014). 4 Plaintiff does not offer any caselaw to support extending the requirement to consider 5 |/impairments in combination to the RFC analysis. Instead, Plaintiff cites Lester, which 6 || reiterates the requirement to consider impairments in combination at the step-three-listings 7 ||stage. (Doc. 19-1 at 15, fn. 1 (citing Lester, 81 F.3d at 821).). In Lester, the Court held 8 || that “physical and mental impairments are so inextricably linked, the [ALJ] must consider 9 || whether these impairments taken together result in limitations equal in severity to .. . the 10 listings.” Lester, 81 F.3d at 829-30 (emphasis added). Pursuant to Lester, the ALJ was 11 required to consider Plaintiff's impairments in combination in her RFC analysis. Id., 12 821. Plaintiff also cites Social Security Ruling 85-16, which states, “[w]here there is 13 || anxiety caused by pain both need to be addressed in the RFC.” (Doc. 19-1 at 18 (citing 14 ||SSR 85-16).). Additionally, Plaintiff cites Beecher v. Heckler; however, this case is 15 || inapplicable as the ALJ in Beecher entirely failed to consider the claimant’s psychological 16 ||impairments. (Doc. 19-1 at 15, fn. 1 (citing Beecher, 756 F.2d 693, 694-95 (9th Cir. 17 || 1985).). As outlined below, the ALJ did address Plaintiff's anxiety caused by pain and 18 || found no psychological disturbances despite Plaintiffs complaints of extreme pain. See 19 || infra pp. 9-16, section VI.B. As such, the ALJ did not err as a matter of law in this regard. 20 Even assuming arguendo Plaintiff contends the ALJ erred at step three, he failed to 21 ||present evidence in an effort to establish equivalence to a listing. See Burch, 400 F.3d at 22 ||683. Therefore, there is no error in the ALJ’s decision as to the step-three analysis. 23 B. ALJ’s RFC Analysis & Evaluation of Plaintiffs Subjective Claim of Pain 24 Plaintiff generally challenges the RFC determination because it did not address the 25 || combined effect of Plaintiff's anxiety, pain, fatigue, and Plaintiff's ability to sustain work. 26 ||(Doc. 19-1 at 17.) Plaintiff also contends the ALJ’s decision should be reversed and 27 \|remanded for discrediting Plaintiffs testimony on the severity of symptoms without setting 28 || forth specific, clear and convincing reasons for doing so. (Doc. 19-1 at 19-25 (citing 9 .

1 || Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Reddick v. Chater, 157 F.3d at 715; 2 ||Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).). Defendant argues the ALJ 3 specifically cited to the record when discounting Plaintiff's allegations of pain. (Doc. 20 4 |/ at 10.) 5 If a plaintiff's impairments do not meet or equal a listed impairment, then the ALJ 6 || will assess the RFC. 20 C.F.R. § 404.1520(e). In analyzing the RFC, “an ALJ must 7 ||consider all relevant evidence in the record, including, inter alia, medical records, lay 8 ||evidence, and ‘the effects of symptoms ... that are reasonably attributed to a medically 9 || determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 10 2006); see SSR 96-8p; see also 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Careful 11 ||consideration must be given to “any evidence about symptoms, ‘because subjective 12 descriptions may indicate more severe limitations or restrictions than can be shown by 13 ||medical evidence alone.’” Robbins, 466 F.3d at 883 (citing SSR 96-8p). The RFC is used 14 | to determine if the plaintiff can perform past relevant work or adjust to other work. 20 15 ||CER. § 404.1520(c). 16 In assessing the credibility of a claimant’s testimony regarding subjective pain or the 17 intensity of symptoms, the ALJ engages in a two-step analysis. Molina v. Astrue, 674 F.3d 18 |} 1104, 1112 (9th Cir. 2012) (internal citation omitted). First, the ALJ determines “whether 19 ||there is objective medical evidence of an underlying impairment which could reasonably 20 || be expected to produce the pain or other symptoms alleged.” Jd. Ifthe claimant presents 21 ||such evidence to satisfy the first step, an ALJ can reject the claimant’s subjective 22 allegations of impairment only upon (1) finding evidence of malingering, or (2) expressing 23 ||“specific, clear and convincing reasons” for doing so. Burrell v. Colvin, 775 F.3d 1133, 24 || 1136 (9th Cir. 2014) (quoting Molina, 674 F.3d at 1112); see Benton v. Barnhart, 331 F.3d 25 || 1030, 1040 (9th Cir. 2003). In addition to objective medical evidence, an ALJ must 26 consider each of the factors set forth in 20 C.F.R. § 404.1529 to assess the credibility of 27 ||pain symptoms. Willyard v. Colvin, 633 F. App’x 369, 370 (9th Cir. 2015). In assessing 28 credibility, the ALJ may consider the consistency between claimant’s allegations of 10

1 || disabling impairments with the objective medical evidence, claimant’s daily activities, and 2 ||claimant’s ability to treat symptoms with medication. E.g., Lingenfelter, 504 F.3d at 1040. 3 As outlined below, in assessing Plaintiff's RFC and rejecting Plaintiffs subjective 4 || allegations of pain, the ALJ relied upon four categories of evidence: (1) objective medical 5 || evidence; (2) medical opinions; (3) Plaintiff's conservative treatment; and (4) □□□□□□□□□□□ 6 || activities. 7 i. Objective Medical Evidence 8 At the outset of the ALJ’s RFC determination, the ALJ analyzed the objective 9 medical evidence and compared it with Plaintiffs subjective allegations of pain. (AR, at 10 || 23-24.) The ALJ cited physical examination notes, magnetic resonance imaging (“MRI”), 11 |/and treatment notes and opined the foregoing generally did not support Plaintiffs 12 || allegations of disabling pain. (Id., at 24.) 13 The ALJ cited orthopedic consultative examination notes by Dr. Payne, which 14 || revealed Plaintiff “was well developed and nourished and in no apparent distress” and had 15 “full motor strength, intact sensation and normal reflexes.” (/d.) Dr. Payne found no 16 tenderness and other abnormalities in the thoracolumbar spine. Ud.) The ALJ noted Dr. 17 ||Payne diagnosed Plaintiff with chronic torticollis and opined Plaintiff was capable of 18 || medium exertion, such as lifting and carrying fifty pounds occasionally and walking six 19 || hours out of an eight-hour workday. (/d., at 25, 529.) 20 The ALJ also cited to Plaintiff's pain specialist Dr. Chen’s physical examination 21 ||notes, which revealed Plaintiff was generally healthy despite reporting a “pain score of ||9/10” and appeared “alert, fully oriented and in no distress.” (d., at 24, 618.) Although 23 MRI revealed “multiple levels of degenerative changes with moderate to severe 24 foraminal and central stenosis at C3-4, C4—5 and C5-6,” there were no neurological 25 || deficits in strength or sensation. (/d., at 24, 616.) Dr. Chen’s records also revealed Plaintiff 26 reported extended relief at levels of greater than 50% after receiving Botox injections in 27 2019. (Ud., at 24, 637.) 28 11

1 The ALJ also examined Plaintiffs treatment records with Castillo. Castillo reported 2 || Plaintiff had a history of neck pain from torticollis with ongoing pain and muscle spasms 3 || and noted Plaintiff's physical conditions were causing him anxiety. (/d., at 24.) However, 4 ||the ALJ also noted Castillo’s report of an unremarkable physical examination and 5 || Plaintiff's report that Botox injections were very helpful in the past. (/d., at 24, 361.) 6 The ALJ properly relied upon the above evidence—lack of tenderness, lack of 7 ||abnormalities in the thoracolumbar spine, lack of neurological deficits in strength or 8 ||sensation, and lack of psychological disturbances—in concluding it did not support 9 || Plaintiffs allegations of disabling pain. (AR, at 24, 526, 529, 616); Burch, 400 F.3d at 681 10 (upholding ALJ’s rejection of claimant’s allegations of severe low back pain when imaging 11 ||showed only mild degenerative disc disease and dextroscoliosis with no apparent disc 12 herniation or nerve impingement). A lack of objective medical findings to support a claim 13 || of disability is a factor the ALJ may consider in discrediting Plaintiff's allegations. Burch, 14 F.3d at 681 (stating, “[a]lthough lack of medical evidence cannot form the sole basis 15 || for discounting pain testimony, it is a factor that the ALJ can consider in his credibility 16 analysis.”). But the ALJ cannot rely entirely on a lack of objective medical evidence to 17 reject subjective allegations of pain: she must consider other evidence as well. Burch, 400 18 || F.3d at 681; see also Willyard, 633 F. App’x at 370. Thus, the Court must examine the 19 || other evidence relied upon by the ALJ. | ii. Medical Opinions 21 || The ALJ properly cited medical opinion evidence as a specific, clear and convincing 22 ||reason to reject Plaintiff's subjective allegations. Specifically, the ALJ examined opinions 23 ||of examining and non-examining state agency evaluators, Dr. Lizarraras, Dr. Wright, and 24 orthopedic consultative examiner, Dr. Payne, all of whom opined Plaintiff was able to 25 perform work at the medium exertion level. (AR, at 25.) Additionally, the ALJ relied on 26 || the opinions of examining and non-examining psychological evaluators, Dr. Caruso-Radin, 27 || Dr. Campbell, and Dr. Whitehead, all of whom opined Plaintiff only suffered from “mild 28 || limitations in concentration, persistence and pace.” (/d., at 22.)

1 To determine disability status, the ALJ considers medical opinions with the rest of 2 ||the relevant evidence. 20 C.F.R. § 416.920. The ALJ may cite medical opinions as 3 || specific, clear and convincing reasons to reject Plaintiffs subjective allegations of pain. 4 || See Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (ALJ’s reliance on medical 5 || opinion as to plaintiff's ability to perform sedentary work is a specific reason to discredit 6 plaintiff 5 subjective allegation of pain); see also Skuja v. Colvin, 671 F. App’x 463, 464— 7 65 (9th Cir. 2016) (ALJ’s finding of inconsistencies between plaintiff's symptom 8 testimony and opinions of several medical examiners is a clear and convincing reason to 9 || discredit plaintiff's subjective allegations). □ 10 The ALJ found the opinion of Dr. Lizarraras persuasive, who opined as to □□□□□□□□□□□ 11 || exertional limitations (e.g., occasionally carry 50 pounds, frequently carry 25 pounds, stand 12 || and/or walk for about six (6) hours in an eight (8)-hour day), and noted “[n]o functionally 13 || significant neurological deficits.” (AR, at 25, 68-69.) The ALJ also-assigned substantial 14 || weight to the opinion of Dr. Wright, who opined Plaintiff was capable of medium exertion 15 |)and found Plaintiffs treatment with Botox effective. (Ud. at 25.) As to the orthopedic 16 || consultative examiner’s opinion finding Plaintiff capable of medium exertion with frequent 17 || postural movements, the ALJ assigned substantial weight to the opinion. (d.) 18 As to Plaintiff's mental functioning, the ALJ stated the opinions of non-examining 19 || state agency evaluators supported his residual functional capacity findings. (Ud. at 25.) 20 || Non-examining state agency psychological evaluators Dr. Caruso-Radin and Dr. Campbell 21 || found Plaintiff's depression.to be non-severe and opined Plaintiff's anxiety did not cause 22 significant difficulties with functioning. (/d., at 22.) In reviewing the record as a 23 ||whole, the ALJ also assigned substantial weight to the opinion of Dr. Whitehead, who 24 || diagnosed Plaintiff with depression and borderline intellectual functioning but also opined 25 diagnosis resulted in no significant impairment in mental functioning. (AR, at 22, 520); 26 || see Andrews, 53 F.3d at 1039 (“[t]o determine whether substantial evidence supports the 27 || ALJ’s decision, we review the administrative record as a whole.”). This opinion was 28 ||consistent with the opinions of the non-examining state agency psychologists finding no 13

1 || significant issues with concentration, memory, or comprehension. (AR, at 22.) Therefore, 2 ||the consistent medical opinion evidence supports the ALJ’s conclusion of no severe 3 || psychological impairments. (Id.) 4 In sum, the ALJ gave specific, clear and convincing reasons for rejecting □□□□□□□□□□□ 5 || subjective allegations as inconsistent with medical opinions. Moncada, 60 F.3d at 524; 6 || Skuja, 671 F. App’x at 464-65 . □ 7 iii. Plaintiff's Conservative Nature of Treatment 8 The ALJ properly cited Plaintiff's conservative treatment as a specific, clear and 9 ||convincing reason to reject his subjective allegations of impairment. Evidence of 10 conservative treatment is sufficient to discount a claimant’s testimony regarding the 11 || severity of an impairment. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 12 (citing Parra v. Astrue, 481 F.3d 742, 750-51); see also Lingenfelter, 504 F.3d at 1040. 13 || Impairments that can be controlled effectively with medication are not disabling. Warre 14 ||v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see 20 C.F.R. § 15 || 404.1529(c)(3)(iv) (medications may be considered in assessing claimant’s subjective 16 symptoms). 17 Here, Plaintiff indicated his level of pain was 10/10.0n a pain scale. (AR, at 24.) 18 During the April 8, 2019 hearing, the ALJ asked Plaintiff if he received any relief from 19 || Botox treatments and Plaintiff testified the “Botox treatments are limited to three-month 20 || intervals by the insurance” and he received “approximately ten to fifteen percent” relief. 21 ||Ud., at 48.) Despite Plaintiffs report, the ALJ noted records where Dr. Payne and Castillo 22 indicate Botox injections offered “extended relief at levels of greater than 50% and for 23 || greater than three months” and “were very helpful in the past.” (/d., at 24, 361.) In addition 24 || to Botox, the ALJ noted other conservative treatment “consisting of ... muscle relaxants 25 pain medication.” (Id., at 24, 648.) 26 Although the ALJ did not address whether Botox injections are of conservative 27 ||nature, Botox injections have been considered a conservative form of treatment. See 28 || Marshall v. Berryhill, No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *14 (S.D. Cal. 14

1 12, 2017) (finding that taking prescribed medications, receiving trigger steroid 2 ||}injections for plaintiffs fibromyalgia, and receiving Botox injections for □□□□□□□□□□□ 3 ||migraines were conservative in nature). The ALJ’s citation to various records which 4 || indicated Plaintiff managed symptoms with conservative treatment supports her adverse 5 || credibility finding. 6 iv. Plaintiff's Activities 7 Daily activities may.be grounds for an adverse credibility finding “if a claimant is 8 to spend a substantial part of his day engaged in pursuits involving the performance 9 || of physical functions that are transferable to a work setting.” Fair v. Bowen, 885 F.2d 597, 10 || 603 (9th Cir.1989) (emphasis omitted). But the Ninth Circuit has “repeatedly warned that 11 || ALJs must be especially cautious in concluding that daily activities are inconsistent with 12 ||testimony about pain, because impairments that would unquestionably preclude work and _ 13 the pressures of a workplace environment will often be consistent with doing more than 14 || merely resting in bed all day.” Garrison, 759 F.3d at 1016: see also Smolen, 80 F.3d at 15 || 1284, n.7 (“The Social Security Act does not require that claimants be utterly incapacitated 16 be eligible for benefits, and many home activities may not be easily transferable to a 17 |} work environment where it might be impossible to rest periodically or take medication.”). 18 ||“The ALJ must make specific findings relating to the daily activities and their 19 transferability to conclude that a claimant’s daily activities warrant an adverse credibility 20 || determination.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (internal quotation marks 21 alterations omitted). “Only if the level of activity were inconsistent with [the 22 || claimant’s] claimed limitations would these activities have any bearing on his credibility.” 23 || Reddick, 157 F.3d at 722.

24 In considering Plaintiff's daily activities, the ALJ found they were not as limiting 25 ||“as one would expect given the extreme allegations.” (AR, at 24.) The ALJ cited 26 Plaintiff's hearing testimony, Plaintiff's function report, and Plaintiff's daughter’s third- 27 || party function report, which were all consistent with each other. (/d. at 23, 36-50, 265- 28 ||273, 294-301.) All three reports mentioned Plaintiffs chronic torticollis and muscle 15

1 spasms, but also acknowledged Plaintiff’s ability to perform personal care and household 2 ||chores. (/d.) After reviewing the testimony and statements, the ALJ noted □□□□□□□□□□□ 3 || ability to perform personal care without assistance and household chores such as dusting, 4 ||mopping, sweeping, vacuuming, laundry, and preparing simple meals. (/d., at 23.) The 5 || ALJ also noted Plaintiff can occasionally drive to the grocery store and visit the park three 6 |/times per month, and care for animals. (Id.) Although the ALJ cannot solely rely on 7 || Plaintiff's daily activities to discredit Plaintiff's subjective claims, the ALJ may support 8 |/ her analysis with evidence of daily activities to refute Plaintiff's claims of pain. Garrison, 9 || 759 F.3d at 1016. 10 As a whole, the ALJ properly offered specific, clear and convincing reasons to reject 11 || Plaintiff's subjective allegations of impairment. Burrell, 775 F.3d at 1136; see Benton, 12 331 F.3d at 1040. As such, the undersigned finds the ALJ properly assessed □□□□□□□□□□□ 13 ||subjective claims of pain by assessing Plaintiff's objective medical evidence, medical 14 || opinions, treatment record, and daily activities. Supra p. 11-16. Accordingly, it is 15 || unnecessary to analyze the “credit-as-true” rule as to awarding benefits. (Doc. 19-1 at 23; 16 20 at 13, fn. 7; Doc. 21 at 8.) 17 C. Incorrect Age Harmless Error 18 Plaintiff alleges “[t]he ALJ failed to meet [her] burden of proof at Step Five using 19 || the wrong age category.” (Doc. 19-1 at 21.) Defendant claims the error is harmless. (Doc. 20 at 12.) Defendant states, “this was not a step-five case—the ALJ decided □□□□□□□□□□□ 21 |) claim at step four, when [s]he found that Plaintiff was capable of performing past relevant 22 ||work...” (Id.) 23 In the ALJ’s decision, she states Plaintiff “was born on April 1, 1966 and was 44 24 years old, which is defined as an individual closely approaching advanced age, on the 25 alleged disability onset date.” (AR, at 27 (emphasis added).) Plaintiff argues “the ALJ’s 26 || decision was based in error in evaluating [Plaintiff] as 42 when he in fact was 53 and would 27 28 16

1 presumptively disabled under medical vocational profiles.”> (Doc 19-1 at 22.). It is 2 || Plaintiffs position that, “[b]y using the wrong age category, the ALJ did not use the proper 3 || matrix” and that such error is not harmless. (Doc. 21 at 7.) □ 4 The Code of Federal Regulations categorizes an individual between the ages of 50- 5 ||54 as an individual “closely approaching advanced age.” 20 C.F.R. § 404.1563(d); 20 6 ||C.F.R. §.416.963(d). An individual under the age of 50 is categorized as a “younger 7 || person,” and in this category, age is not considered to seriously affect an individual’s ability 8 adjust to other work. 20 C.F.R. § 404.1563(c). Here, the ALJ correctly provided 9 || Plaintiff's date of birth of April 1, 1966, and applied the correct age category to a 53-year- 10 || old by defining Plaintiff as an individual “closely approaching advanced age.” (AR, at 27.) 11 || Additionally, Plaintiff informed the ALJ he was 53 years old during the April 8, 2019 12 || hearing during which the ALJ asked for Plaintiff's age. (/d., at 38.) The Vocational Expert, 13 || who offered opinions as to Plaintiffs ability to perform certain occupations, based her 14 opinions on Plaintiff's stated age of 53. (AR, at 53-54.) Because the ALJ’s decision || provided Plaintiffs correct date of birth and age category and relied upon the testimony of 16 ||a Vocational Expert who also made opinions considering Plaintiff s correct age, the ALJ’s 17 error was harmless. See Dattilo v. Berryhill, 773 F. App’x 878, 882 (9th Cir. 2019) (finding 18 ||harmless error where the claimant still fell into the “approaching advanced age” category 19 ||regardless of age used); see also Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990) 20 || (finding harmless error where the claimant, whether 50 or 53 years old, nonetheless fell 21 || within the same category of “closely approaching advanced age.”). Therefore, the ALJ’s 22 decision is free from error. 23 ‘VII. CONCLUSION 24 For the reasons given, the undersigned respectfully recommends: (1) Plaintiff s 25 26 plaintiff's merits brief states the ALJ evaluated Plaintiff as being 42 years old; however, 27 || Plaintiffs reply brief states the ALJ determined Plaintiff to be 43 years old. (Doc 19-1 at 22; Doc. 21 at 7.) Both statements are incorrect as the ALJ listed Plaintiff as 44 years old 28 || in her alternative step-five findings. (AR, at 27.) 17

1 ||motion for summary judgment be DENIED; (2) Defendant’s cross-motion for summary 2 ||judgment be GRANTED; and (3) the ALJ’s decision be AFFIRMED. 3 This Report and Recommendation is submitted to the United States District Judge 4 || Assigned to this case, under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 5 || 72(b). Any party may file written objections with the court and serve a copy on all parties 6 or before January 28, 2022. Any reply to the objections shall be served and filed on 7 || or before February 11, 2022. The parties are advised that failure to file objections within 8 || the specific-time may waive the right to appeal the District Court’s Order. Martinez v. □□□□□ 9 ||951 F.2d 1153 (9th Cir. 1991). 10 IT IS SO ORDERED. 11 DATE: January 14, 2022 12 13 C Enis Unk npr 14 IN. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 15 16 ||. 17 18 19 .

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