Krider v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 26, 2023
• Docket: 2:22-cv-00864
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Dawn Marie Krider, No. CV-22-00864-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 12), the 18 Commissioner’s answering brief (Doc. 14), and Plaintiff’s reply (Doc. 17), as well as the 19 Administrative Record (Doc. 9, “AR”), and now affirms the Administrative Law Judge’s 20 (“ALJ”) decision. 21 I. Procedural History 22 On August 19, 2020, Plaintiff filed an application for disability and disability 23 insurance benefits, alleging disability beginning on May 25, 2019. (AR at 13.) The Social 24 Security Administration (“SSA”) denied Plaintiff’s applications at the initial and 25 reconsideration levels of administrative review and Plaintiff requested a hearing before an 26 ALJ. (Id.) On December 29, 2021, following a telephonic hearing, the ALJ issued an 27 unfavorable decision. (Id. at 13-28.) The Appeals Council later denied review. (Id. at 1- 28 4.) 1 II. The Sequential Evaluation Process And Judicial Review 2 To determine whether a claimant is disabled for purposes of the Act, the ALJ 3 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 4 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 5 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 6 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 7 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 8 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 9 step three, the ALJ considers whether the claimant’s impairment or combination of 10 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 11 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 12 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 13 capacity (“RFC”) and determines whether the claimant is capable of performing past 14 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and 15 final step, where she determines whether the claimant can perform any other work in the 16 national economy based on the claimant’s RFC, age, education, and work experience. 20 17 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 18 An ALJ’s factual findings “shall be conclusive if supported by substantial 19 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 20 the Commissioner’s disability determination only if it is not supported by substantial 21 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 22 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 23 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 24 evidence is susceptible to more than one rational interpretation, one of which supports the 25 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 26 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 27 decision, the district court reviews only those issues raised by the party challenging the 28 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 1 III. The ALJ’s Decision 2 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 3 since the alleged onset date and that Plaintiff had the following severe impairments: 4 “osteoarthritis of the right hip, trochanteric bursitis of the right hip, lumbar degenerative 5 disc disease, status-post excision of Morton’s neuroma of the right foot, and a bipolar 6 disorder.” (AR at 16.) Next, the ALJ concluded that Plaintiff’s impairments did not meet 7 or medically equal a listing. (Id. at 16-19.) Next, the ALJ calculated Plaintiff’s RFC as 8 follows: 9 [T]he claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can frequently 10 operate foot controls with her right lower extremity. She can occasionally 11 stoop, crouch, crawl, kneel, balance as defined in the DOT, and climb ramps and stairs, but never climb ladders, ropes, or scaffolds. She can perform work 12 involving understanding, remembering, and carrying out simple instructions, 13 consistent with an SVP of 2 or below. The claimant can perform work involving occasional routine changes in the work setting. She can work with 14 no production rate work, such as that found on an assembly line. 15 (Id. at 19-20.) 16 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 17 testimony, concluding that Plaintiff’s “medically determinable impairments could 18 reasonably be expected to cause the alleged symptoms; however, the claimant’s statements 19 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 20 consistent with the medical evidence and other evidence in the record for the reasons 21 explained in this decision.” (Id. at 21.) The ALJ also evaluated opinion evidence from 22 various medical sources, concluding as follows: (1) State agency medical consultants 23 (“generally persuasive”); (2) Keith Cunningham, M.D., consultative examiner (“more 24 persuasive”); (3) Charles Clark, M.D. (“not persuasive”); (4) State agency psychological 25 consultants (“only somewhat persuasive”); and (5) Elizabeth Munshi, M.D., treating 26 provider (“not persuasive”). (Id. at 24-26.) Additionally, the ALJ evaluated a third-party 27 statement from Plaintiff’s spouse (“not persuasive”) and acknowledged Plaintiff’s service 28 connection and disability ratings by the Department of Veterans Affairs (“neither valuable 1 nor persuasive”). (Id. at 21, 26.) 2 Based on the testimony of a vocational expert, the ALJ concluded that although 3 Plaintiff could not perform her past relevant work as a telephone solicitor, teacher, or 4 landscape drafter, Plaintiff was able to perform other jobs that exist in significant numbers 5 in the national economy, including office clerk, ticket taker, and routing clerk. (Id. at 26- 6 28.) Thus, the ALJ concluded that Plaintiff is not disabled. (Id. at 28.) 7 IV. Discussion 8 Plaintiff presents three issues on appeal: (1) whether the ALJ improperly discredited 9 the medical opinions of Charles Clark, M.D.; (2) whether the ALJ improperly discredited 10 the medical opinions of Elizabeth Munshi, M.D.; and (3) whether the ALJ improperly 11 discredited Plaintiff’s symptom testimony. (Doc. 12 at 1-2.) Plaintiff further argues that 12 “[r]emand for calculation of benefits would be an appropriate remedy in this case. Only in 13 the alternative should this Court remand for further administrative proceedings.” (Id. at 14 25.) 15 A. Dr. Clark 16 1. Standard of Review 17 In January 2017, the SSA amended the regulations concerning the evaluation of 18 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 19 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 20 applications filed on or after March 27, 2017, they are applicable here. 21 The new regulations, which eliminate the previous hierarchy of medical opinions, 22 provide in relevant part as follows: 23 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical 24 finding(s), including those from your medical sources . . . . The most 25 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability 26 . . . and consistency . . . . 27 20 C.F.R. § 416.920c(a).1 Regarding the “supportability” factor, the new regulations 28 1 Other factors that may be considered by the ALJ in addition to supportability and 1 explain that the “more relevant the objective medical evidence and supporting explanations 2 presented by a medical source are to support his or her medical opinion(s), . . . the more 3 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 4 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 5 from other medical sources and nonmedical sources in the claim, the more persuasive the 6 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2) 7 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 8 Administration’s regulations displace our longstanding case law requiring an ALJ to 9 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 10 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 11 medical opinions—in which we assign presumptive weight based on the extent of the 12 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 13 including the decision to discredit any medical opinion, must simply be supported by 14 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 15 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 16 providing an explanation supported by substantial evidence. The agency must articulate 17 how persuasive it finds all of the medical opinions from each doctor or other source and 18 explain how it considered the supportability and consistency factors in reaching these 19 findings.” Id. at 792 (cleaned up). Although an “ALJ can still consider the length and 20 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 21 of examinations that the medical source has performed or ordered from specialists, and 22 whether the medical source has examined the claimant or merely reviewed the claimant’s 23 records . . . the ALJ no longer needs to make specific findings regarding these relationship 24 factors . . . .” Id. 25 … 26 … 27 consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, the frequency of examinations, the purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c(c). 1 2. Dr. Clark’s Opinions 2 On July 1, 2021, Dr. Clark filled out a form entitled “Medical Assessment Of Ability 3 To Do Work-Related Physical Activities.” (AR at 1054-55.) In the form, Dr. Clark 4 checked boxes indicating that, during an 8-hour workday, Plaintiff would be able to sit for 5 less than 2 hours, stand/walk for less than 2 hours, lift less than 10 pounds, and carry less 6 than 10 pounds. (Id.) Dr. Clark also checked boxes indicating that Plaintiff would need to 7 alternate between sitting, standing, or walking every 1-20 minutes; would need a 15+ 8 minute rest period after every change in position; and would be limited to “Less than 9 occasional” (which was defined as 0-20%) bending, reaching, and stooping. (Id.) Dr. 10 Clark also checked boxes indicating that Plaintiff had “cognitive or pace limitations” that 11 would inhibit the completion of more than one- and two-step job duties and cause “severe” 12 interruptions of Plaintiff’s work pace and that Plaintiff suffered from headaches or mental 13 fatigue more than four times a month and, as a result, would need to rest for more than two 14 hours on each day present. (Id.) Finally, Dr. Clark checked a box indicating that Plaintiff 15 would need to miss 6+ days of work each month due to her conditions. (Id.) 16 3. The ALJ’s Evaluation Of Dr. Clark’s Opinions 17 The ALJ found Dr. Clark’s opinions “not persuasive.” (Id. at 24-25.) After 18 summarizing Dr. Clark’s opinions, the ALJ provided the following rationale for 19 discrediting them: 20 [Dr. Clark’s opined-to] limits are excessive in light of his own examinations. Of note, he recorded that the claimant’s bursitis was responding well to 21 conservative treatment and Lyrica was managing her pain. Significantly, he regularly noted that she was in no acute distress. He often did not perform 22 detailed musculoskeletal or neurological examinations, suggesting that this report relies more on the claimant’s subjective reports than objective findings 23 on examination. When he did record detailed examination findings, mild abnormalities were record[ed]. For example, gait was mildly antalgic with 24 no mention of an assistive device. Strength was grossly intact, although dorsiflexion was 5- out of 5 in her right foot. Sensation and reflexes were 25 grossly intact as well. He did, however, generally indicate that lumbar range of motion restricted and painful with tenderness to palpation over the lumbar 26 paraspinal musculature. He also noted that she had increased pain with resisted hip flexion and a positive FABER test in the hip. Nevertheless, he 27 completed no cognitive assessments to substantiate his opinion regarding cognitive or pace limitations. Indeed, none of these abnormalities are 28 indicative of the degree of limitation that he opines. Nor are they consistent with the mild findings on imaging or the frequency with which normal 1 examination findings were otherwise noted. For these reasons, this opinion is not persuasive. 2 3 (Id. at 25, record citations omitted.) 4 4. The Parties’ Arguments 5 Plaintiff argues that “[t]he ALJ’s reasons to find Dr. Clark’s . . . assessments not 6 persuasive were insufficient.” (Doc. 12 at 12.) As for the ALJ’s observation that “at one 7 treatment visit . . . Dr. Clark thought [Plaintiff’s] bursitis was responding to conservative 8 treatment and Lyrica was ‘managing’ her pain,” Plaintiff contends that “this reasoning 9 ignores that at that visit [Plaintiff] was reporting bilateral hip pain, consistent with Dr. 10 Clark’s assessment findings. The ALJ did not explain how this one comment cancelled 11 out findings at other visits both before and after, where [Plaintiff] continued to report 12 ongoing pain in her foot and hip and low back pain, and Dr. Clark continued to manage 13 [Plaintiff’s] medications and refer her to specialists.” (Id.) Plaintiff further argues that 14 “the ALJ’s belief that Dr. Clark’s assessment was inconsistent with or unsupported by the 15 records is incongruent with the ALJ’s statement that Dr. Clark ‘did however, generally 16 indicate that lumbar range of motion restricted and painful with tenderness to palpation 17 over the lumbar paraspinal musculature. He also noted that she had increased pain with 18 resisted hip flexion and a positive FABER test in the hip.’ The ALJ’s acknowledgement 19 that Dr. Clark observed signs and symptoms consistent with and supportive of Dr. Clark’s 20 assessed limitations should have resulted in a finding that Dr. Clark’s assessment was 21 persuasive.” (Id. at 12-13.) Next, as for the ALJ’s assertion that “Dr. Clark ‘often did not 22 perform detailed musculoskeletal or neurological examinations, suggesting that this report 23 relies more on the claimant’s subjective reports than objective findings on examination,’” 24 Plaintiff responds that the mere fact “that Dr. Clark did not perform a physical examination 25 at every visit does not render his assessment invalid. All of [Plaintiff’s] medical treatment 26 was within the VA medical system, so Dr. Clark had access to all of [Plaintiff’s] treatment 27 records from other providers, supervised her treatment, and was aware of all of her 28 conditions. That Dr. Clark did not personally examine her at every visit does not invalidate 1 his assessed limitations.” (Id. at 13-14.) Additionally, Plaintiff contends that many of the 2 relevant examinations occurred during the COVID-19 pandemic, when telehealth 3 appointments were prevalent, and more broadly argues that “a doctor’s reliance on the 4 subjective symptom reports of their patient is not a reasonable basis on which to base 5 rejection of a medical opinion, when there is no evidence that the doctor relied only on 6 subjective reports, and when the patient’s subjective symptoms are otherwise corroborated 7 throughout the medical evidence.” (Id. at 14-15.) As for the ALJ’s observation that Dr. 8 Clark “completed no cognitive assessments to substantiate his opinion regarding cognitive 9 or pace limitations,” Plaintiff argues that “Dr. Clark did not have to complete a cognitive 10 assessment to substantiate his own opinion on how his own patient would likely function 11 in a workplace in the context of her chronic physical pain. The ALJ’s requirement of extra 12 testing to substantiate a treating doctor’s opinion about their own patient is baseless and 13 fails to invalidate Dr. Clark’s assessment.” (Id. at 15.) Finally, as for the ALJ’s observation 14 that “Dr. Clark wrote in treatment notes that [Plaintiff] was in no acute distress,” Plaintiff 15 responds: “[T]hat [Plaintiff] was not in acute distress at appointments is not relevant, when 16 [Plaintiff] suffered from chronic pain.” (Id. at 15-16.) 17 The Commissioner disagrees and defends the sufficiency of the ALJ’s rationale for 18 discrediting Dr. Clark’s opinions. (Doc. 14 at 5-10.) As for the supportability factor, the 19 Commissioner argues that the ALJ permissibly found that “Dr. Clark’s opinion was at odds 20 with his treatment notes” because the notes reflected that (1) Plaintiff’s bursitis responded 21 well to treatment, (2) Plaintiff’s pain was controlled with medication, (3) Plaintiff was not 22 in acute pain, (4) Dr. Clark did not perform many detailed musculoskeletal or neurological 23 examinations, and (5) the few such examinations that Dr. Clark did perform revealed “only 24 mild abnormalities.” (Id. at 6-7.) As for the consistency factor, the Commissioner argues 25 that it was permissible for the ALJ to discount Dr. Clark’s opinions in light of their 26 inconsistency with “[i]maging findings [that] were mild” and “other examination findings 27 [that] were also frequently normal.” (Id. at 7.) The Commissioner also contends that most 28 of the cases cited by Plaintiff are distinguishable because they applied the old regulations. 1 (Id. at 7-8.) As for Plaintiff’s observation that in-person visits were limited during the 2 pandemic, the Commissioner responds that “[t]his may be true, but it does not make Dr. 3 Clark’s opinion more persuasive. The regulations require objective medical evidence; 4 without such evidence to support Dr. Clark’s opinion, it was less persuasive.” (Id. at 8.) 5 As for Plaintiff’s contention that the ALJ’s rationale was internally contradictory because 6 the ALJ acknowledged that some of Dr. Clark’s treatment notes reflected abnormal (albeit 7 still “mild”) findings, the Commissioner argues that “the Court should not punish the ALJ 8 for acknowledging contradictory evidence in the record,” that it was the ALJ’s role to 9 resolve ambiguities, and that the ALJ was therefore “entitled to rely on the normal 10 findings.” (Id.) As for Plaintiff’s contention that “because Dr. Clark had access to her 11 treatment records, supervised her treatment, and was aware of all her conditions, that meant 12 he did not need to personally examine her,” the Commissioner responds that “[e]ven if Dr. 13 Clark reviewed other providers’ findings, Dr. Clark’s opinion remained unpersuasive. 14 Indeed, Plaintiff does not identify any supportive examination results from other providers, 15 despite her obligation to provide evidence to support her claim.” (Id. at 9.) Finally, as for 16 Plaintiff’s contention that Dr. Clark “did not have to complete a cognitive assessment to 17 substantiate his own opinion,” the Commissioner responds that this argument is based on 18 “abrogated caselaw” and overlooks that the new regulations “require an opinion to be 19 supported by objective medical evidence (or a supporting explanation).” (Id. at 9-10.) 20 In reply, Plaintiff argues as follows: “[Plaintiff] will not reiterate each of her 21 arguments for each reason the ALJ found to reject Dr. Clark’s assessment of [Plaintiff’s] 22 limitations. The Commissioner responds to each of these arguments about the reasons to 23 reject Dr. Clark’s assessments by repeating the ALJ’s rationale, stating the ALJ’s reasoning 24 was ‘reasonable’ or simply supported by substantial evidence, or dismissing [Plaintiff’s] 25 arguments with the misguided notion that [Plaintiff] relied on bad law. This is not a 26 meaningful response.” (Doc. 17 at 6-7.) 27 … 28 … 1 5. Analysis 2 The ALJ’s evaluation of Dr. Clark’s opinions is free of harmful error. “The agency 3 must articulate how persuasive it finds all of the medical opinions from each doctor or other 4 source and explain how it considered the supportability and consistency factors in reaching 5 these findings.” Woods, 32 F.4th at 792 (cleaned up). Here, the ALJ expressly considered 6 both of the required factors in relation to Dr. Clark. (AR at 25 [“These limits are excessive 7 in light of his own examinations. . . . Nor are they consistent with the mild findings on 8 imaging or the frequency with which normal examination findings were otherwise 9 noted.”].) 10 The ALJ’s determination as to each factor was also supported by substantial 11 evidence. As for the supportability factor, the ALJ identified a variety of reasons why Dr. 12 Clark’s opinions were inconsistent with Dr. Clark’s treatment notes. The Court will focus 13 on one of those areas of perceived inconsistency because it is dispositive. The ALJ 14 explained that “[w]hen [Dr. Clark] did record detailed examination findings, mild 15 abnormalities were record[ed]. For example, gait was mildly antalgic with no mention of 16 an assistive device. Strength was grossly intact, although dorsiflexion was 5- out of 5 in 17 her right foot. Sensation and reflexes were grossly intact as well. He did, however, 18 generally indicate that lumbar range of motion restricted and painful with tenderness to 19 palpation over the lumbar paraspinal musculature. He also noted that she had increased 20 pain with resisted hip flexion and a positive FABER test in the hip. Nevertheless, . . . none 21 of these abnormalities are indicative of the degree of limitation that he opines.” (Id. at 25.) 22 In the Court’s view, it was rational for the ALJ to conclude that these largely normal (albeit 23 not fully normal) clinical observations were inconsistent with Dr. Clark’s extreme opinions 24 regarding Plaintiff’s physical limitations, including that Plaintiff would need to rest for 25 more than 15 minutes each time she alternated between sitting, walking, and standing and 26 that Plaintiff could lift less than 10 pounds. (AR at 1054.) Although Plaintiff attempts to 27 explain how such observations could be construed as consistent with Dr. Clark’s opinions, 28 it was rational for the ALJ to conclude otherwise. Ghanim v. Colvin, 763 F.3d 1154, 1163 1 (9th Cir. 2014) (“When evidence reasonably supports either confirming or reversing the 2 ALJ’s decision, we may not substitute our judgment for that of the ALJ.”) (citing Batson 3 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004)). 4 In a related vein, the Court disagrees with Plaintiff’s contention that, because the 5 ALJ acknowledged that some of Dr. Clark’s notes reflected abnormal examination 6 findings, it was “inconsistent” for the ALJ to find a conflict between Dr. Clark’s notes and 7 Dr. Clark’s opinions. (Doc. 12 at 13.) There was no inconsistency here—the ALJ 8 rationally concluded that the mildly abnormal findings reflected in the examination notes 9 were inconsistent with the extreme limitations to which Dr. Clark opined. Cf. Deacon v. 10 Kijakazi, 2022 WL 17363228, *10 (E.D. Cal. 2022) (“The Court finds that the ALJ 11 properly evaluated the persuasiveness of Dr. Santaniello’s 2016 opinion by considering the 12 factors of supportability and consistency. First, the ALJ determined that Dr. Santaniello’s 13 opinion was supported by the examination findings, including positive Tinel’s test 14 bilaterally and tenderness to palpitation, but normal ROM (range of motion) in the bilateral 15 hands, and normal ROM and stability in the bilateral shoulders. This reasoning invokes 16 the supportability factor, which means the extent to which a medical source supports the 17 medical opinion by explaining the ‘relevant . . . objective medical evidence.’”) (citation 18 omitted). Given this conclusion, it is unnecessary to resolve Plaintiff’s challenges to the 19 ALJ’s other proffered reasons for concluding that Dr. Clark’s opinions lacked support in 20 Dr. Clark’s treatment records. See, e.g., Reed v. Saul, 834 F. App’x 326, 329 (9th Cir. 21 2020) (“To the extent the ALJ erred in discounting the opinions of Dr. Cochran because 22 her opinions were based in part on Reed’s self-reports of his symptoms, that error is 23 harmless because the ALJ offered multiple other specific and legitimate reasons for 24 discounting Dr. Cochran’s opinions.”); Baker v. Berryhill, 720 F. App’x 352, 355 (9th Cir. 25 2017) (“Two of the reasons the ALJ provided for discounting examining psychologist Dr. 26 Wheeler's opinion were not legally valid . . . [but] the ALJ provided other specific and 27 legitimate reasons for discounting Dr. Wheeler’s opinion. . . . As a result, any error was 28 harmless.”); Presley-Carrillo v. Berryhill, 692 F. App’x 941, 944-45 (9th Cir. 2017) (“The 1 ALJ also criticized Dr. Van Eerd’s opinion in part because Dr. Van Eerd did not define the 2 terms ‘mild,’ ‘moderate,’ or ‘severe’ in his assessment. This criticism was improper . . . 3 [but] this error was harmless because the ALJ gave a reason supported by the record for 4 not giving much weight to Dr. Van Eerd’s opinion—specifically, that it conflicted with 5 more recent treatment notes from Dr. Mateus.”). 6 The ALJ’s analysis of the consistency factor is free of harmful error for the same 7 reasons as the ALJ’s analysis of the supportability factor. The ALJ correctly noted (AR at 8 22-23) that the examination notes from other medical providers reflected either normal or 9 slightly abnormal findings with respect to Plaintiff’s ability to sit, stand, walk, and lift. 10 (See, e.g., id. at 879-81 [December 2020 consultative examination note, reflecting ability 11 to stand, walk, mount the examination table, stand on either foot, and squat independently 12 and with minimal difficulty]; id. at 1050 [April 2021 consultative examination note, 13 reflecting same observations]; id. at 1079 [June 2021 note: “Ambulating without assistive 14 device. Mildly antalgic.”]; id. at 1081 [June 2021 study, showing “no acute osseous 15 abnormalities or advanced arthrosis” and “unremarkable” lower lumbar spine].) It was 16 rational for the ALJ to construe those records as inconsistent with Dr. Clark’s extreme 17 opined-to limitations. 18 B. Dr. Munshi 19 1. Standard of Review 20 Plaintiff’s challenge to the ALJ’s evaluation of Dr. Munshi’s opinions is governed 21 by the same standard of review as Plaintiff’s challenge to the ALJ’s evaluation of Dr. 22 Clark’s opinions. 23 2. Dr. Munshi’s Opinions 24 On February 4, 2021, Dr. Munshi filled out a form entitled “Medical Assessment 25 Of Claimant’s Ability To Perform Work Related Activities (Mental).” (AR at 886-87.) In 26 the form, Dr. Munshi circled boxes indicating that, as a result of Plaintiff’s mental status, 27 Plaintiff would have “moderately severe” limitations in her ability to understand, carry out, 28 and remember instructions and to respond to customary work pressures; would have 1 “moderate” limitations in her ability to respond appropriately to supervision and respond 2 appropriately to co-workers; and would have “mild” limitations in her ability to perform 3 simple tasks. (Id. at 886.)2 Dr. Munshi also circled a box indicating that Plaintiff would 4 have “moderately severe” limitations in her sustainability of work pace. (Id. at 887.) 5 Nowhere in the form did Dr. Munshi provide any narrative explanation for these opined- 6 to limitations. (Id.) 7 On November 2, 2021, Dr. Munshi filled out the same form in an identical fashion. 8 (Id. at 1171-72.) As before, Dr. Munshi did not provide any narrative explanation for the 9 opined-to limitations. (Id.) 10 3. The ALJ’s Evaluation Of Dr. Munshi’s Opinions 11 The ALJ found Dr. Munshi’s opinions “not persuasive.” (Id. at 25-26.) After 12 summarizing Dr. Munshi’s opinions, the ALJ provided the following rationale for 13 discrediting them: 14 At the outset, the undersigned observed that this opinion is vague, as it focuses on degree of limitation rather than residual function and the degree 15 of limitation is expressed in a manner not wholly congruent with the descriptors used by the Social Security Administration for assessing mental 16 limitations. Further, her statements that the claimant is totally unemployable are decisions of disability reserved to the Commissioner and are therefore 17 inherently neither valuable nor persuasive. Significantly, the degree of limitation expressed by Dr. Munshi is contrary to her own statements in 18 treatment records declaring the claimant competent to manage her own finances and capable of weighing the risks and benefits of giving or 19 withholding information regarding psychiatric and suicidal status. Indeed, it is contrary to the statements of the claimant’s counselor, who saw the 20 claimant more frequently than Dr. Munshi, and reported that the claimant was a “coherent, intelligent, problem-solver who is fully capable of handling 21 own finances.” Dr. Munshi’s own treatment notes document some frustrated or down mood, but with polite, pleasant, and cooperative demeanor and 22 linear thoughts, no suicidal ideations, improved insight, and intact judgment. Treatment notes from other providers were substantially similar, indicating 23 greater mental function than was expressed in this opinion. Because this opinion is vague, contrary to notations in Dr. Munshi’s treatment and 24 examination notes, and inconsistent with the record, it is not persuasive. 25 (Id. at 26, record citations omitted.) 26 27 2 The form identified “mild” as “Off task 1—10% of an 8-hour work day,” 28 “moderate” as “Off task 11—15% of an 8-hour work day,” and “moderately severe” as “Off task 16—20% of an 8-hour work day.” (Id. at 887.) 1 4. The Parties’ Arguments 2 Plaintiff argues that “[t]he ALJ’s reasons to find . . . Dr. Munshi’s assessments not 3 persuasive were insufficient.” (Doc. 12 at 12.) As for the ALJ’s observation that “Dr. 4 Munshi’s assessments were vague,” Plaintiff responds that “the terms used on the 5 assessment forms Dr. Munshi completed were defined, and those definitions were not so 6 vague that the agency’s own vocational expert could not understand them.” (Id. at 16.) As 7 for the ALJ’s contention that Dr. Munshi improperly opined on matters reserved for the 8 Commissioner, Plaintiff responds that “Dr. Munshi did not just state that [Plaintiff] was 9 unemployable, Dr. Munshi provided specific work-related limitations in multiple areas.” 10 (Id. at 16-17.) As for the ALJ’s contention that Dr. Munshi’s opinions were inconsistent 11 with observations in Dr. Munshi’s and RN Compton’s treatment notes regarding finance 12 management, Plaintiff responds that the mere fact she “was intellectually competent and 13 could manage her own VA benefits does not mean that overall, [she] was not suffering 14 from a degree of depression and anxiety congruent with Dr. Munshi’s assessed limitations. 15 . . . [W]ant[ing] her VA ratings decision to state that she could oversee her own VA 16 benefits does not invalidate Dr. Munshi’s assessment of [her] work-related limitations 17 because of her depression and anxiety.” (Id. at 17-18.) Similarly, as for the ALJ’s 18 contention that Dr. Munshi’s opinions were inconsistent with observations in Dr. Munshi’s 19 and other providers’ treatment notes reflecting intact judgment and insight, Plaintiff argues 20 that “the ALJ did not explain how the ALJ’s noted findings cancelled out the other findings 21 of depression and anxiety throughout the record that were consistent with and supported 22 Dr. Munshi’s assessed limitations.” (Id. at 18.) Finally, Plaintiff argues that the ALJ also 23 provided insufficient reasons for crediting the opinions of other medical sources. (Id. at 24 18-20.) 25 The Commissioner disagrees and defends the sufficiency of the ALJ’s rationale for 26 discrediting Dr. Munshi’s opinions. (Doc. 14 at 10-14.) As for the ALJ’s vagueness 27 rationale, the Commissioner argues that because Dr. Munshi “focused on Plaintiff’s degree 28 of limitation, rather than her residual function, and those degrees of limitation were not 1 congruent with the agency’s descriptors for assessing mental limitation,” it was permissible 2 for the ALJ “to consider ‘other factors’ like this when evaluating the persuasiveness of this 3 opinion.” (Id. at 10-11.) Elsewhere, the Commissioner adds: “[T]he definition the form 4 supplied—amount of time she would be off task—had no relevance to almost any of the 5 areas assessed: It made no sense to say that Plaintiff’s degree of impairment in her ability 6 to relate to other people was ‘Off task 16-20% of an 8-hour work day’ or that her estimated 7 degree of deterioration in personal habits was ‘Off task 11-15% of the work day.’ The 8 Court should defer to the ALJ’s reasonable interpretation that this opinion was vague.” (Id. 9 at 12-13.) The Commissioner further argues that the ALJ permissibly concluded that Dr. 10 Munshi’s opinions were “not supported by her treatment records” in light of Dr. Munshi’s 11 “own statements that Plaintiff could manage her finances and weigh the risks and benefits 12 of sharing—or not—information regarding her psychiatric and suicidal status” and other 13 notations that “generally showed Plaintiff was polite, pleasant, and cooperative, had linear 14 thoughts, no suicidal ideation, improved insight, and intact judgment.” (Id. at 11.) As for 15 the consistency factor, the Commissioner argues that the ALJ permissibly concluded that 16 Dr. Munshi’s opinions were “inconsistent with other evidence in the record,” pointing 17 specifically to a note from Plaintiff’s counselor in which Plaintiff was described as a 18 “coherent, intelligent, problem-solver who is fully capable of handling [her] own finances.” 19 (Id. at 11-12.) As for Plaintiff’ argument that “the ALJ needed to explain how 20 unremarkable findings canceled out evidence of depression and anxiety that allegedly 21 supported Dr. Munshi’s opinion,” the Commissioner responds that “[n]o such requirement 22 exists in the regulations. Moreover, the ALJ’s evaluation only needs to be supported by 23 substantial evidence; no balancing of the evidence is required.” (Id. at 13-14.) Finally, the 24 Commissioner argues that Plaintiff’s “under-developed complaints about the ALJ’s 25 evaluation of the prior administrative medical findings and Dr. Cunningham’s opinion” do 26 not, for various reasons, support reversal. (Id. at 14-15.) 27 In reply, Plaintiff takes issue with “[t]he Commissioner’s belief that an ALJ need 28 not explain why they relied on evidence that supports only the ALJ’s conclusions and 1 ignored or rejected evidence that is supportive of a claimant’s disability,” arguing that this 2 belief is “incorrect” and “contrary to” Woods. (Doc. 17 at 7.) Plaintiff also broadly 3 reiterates her contention that “[t]he ALJ failed to explain and articulate, with reasons 4 supported by substantial evidence, the supportability and consistency of . . . Dr. Munshi’s 5 assessments, and therefore failed to meet the agency’s and this Court’s standards for 6 rejection of a medical source’s assessment.” (Id. at 7-8.) 7 5. Analysis 8 The ALJ’s evaluation of Dr. Munshi’s opinions is free of harmful error. As noted, 9 “[t]he agency must articulate how persuasive it finds all of the medical opinions from each 10 doctor or other source and explain how it considered the supportability and consistency 11 factors in reaching these findings.” Woods, 32 F.4th at 792 (cleaned up). Here, the ALJ 12 expressly considered both of the required factors in relation to Dr. Munshi. (AR at 26 13 [“Significantly, the degree of limitation expressed by Dr. Munshi is contrary to her own 14 statements in treatment records . . . [and] contrary to the statements of the claimant’s 15 counselor, who saw the claimant more frequently than Dr. Munshi . . . . Because this 16 opinion is vague, contrary to notations in Dr. Munshi’s treatment and examination notes, 17 and inconsistent with the record, it is not persuasive.”].) 18 The ALJ’s determination as to each factor was also supported by substantial 19 evidence. Even assuming that the ALJ’s “vagueness” rationale for discrediting Dr. 20 Munshi’s opinions was erroneous,3 this was not the ALJ’s only reason for discrediting Dr. 21 Munshi’s opinions pursuant to the supportability factor. The ALJ also concluded that Dr. 22 3 Cf. Desrosiers v. Sec. of HHS, 846 F.2d 573, 576 (9th Cir.1988) (faulting the ALJ 23 for “not adequately consider[ing] th[e] distinction” when a medical source’s opinions were expressed in terms that did not directly correspond with the SSA’s disability rating 24 scheme); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (“[T]he ALJ may not disregard a physician’s medical opinion simply because it was initially elicited in 25 a state workers’ compensation proceeding, or because it is couched in the terminology used in such proceedings. Instead, the ALJ must evaluate medical opinions couched in state 26 workers’ compensation terminology just as he or she would evaluate any other medical opinion. Proper evaluation of such medical opinions, however, does present an extra 27 challenge. The ALJ must ‘translate’ terms of art contained in such medical opinions into the corresponding Social Security terminology in order to accurately assess the 28 implications of those opinions for the Social Security disability determination.”) (citations omitted). 1 Munshi’s opined-to limitations were inconsistent with the observations set forth in Dr. 2 Munshi’s treatment notes. This is, in general, a permissible basis for discounting a medical 3 source’s opinions pursuant to the supportability factor. See, e.g., Emsley v. Kijakazi, 2022 4 WL 17039000, *1 (9th Cir. 2022) (“The ALJ properly addressed the supportability . . . of 5 medical opinions by analyzing whether each opinion was supported by the doctor’s clinical 6 findings . . . . For example, the ALJ found that . . . Dr. Wang’s opinion was not supported 7 by clinical notes . . . .”); Reynolds v. Kijakazi, 2022 WL 4095381, *1 (9th Cir. 2022) 8 (“Substantial evidence supports the ALJ’s determination that Dr. Johnson’s early March 9 2018 opinions . . . were partially inconsistent with his own treatment notes . . . .”). 10 The ALJ’s finding of inconsistency is supported by substantial evidence. In a 11 February 2020 treatment note, Dr. Munshi described Plaintiff’s behavior as “polite and 12 cooperative, good eye contact, pleasant,” described Plaintiff’s thought process as “linear 13 in stream with tight associations,” described Plaintiff’s insight as “improved,” described 14 Plaintiff’s judgment as “intact,” noted that Plaintiff was “frustrated” by the fact that the 15 Veterans Administration was questioning “her competency to handle finances,” and opined 16 that Plaintiff was “capable of weighing the risks and benefits of giving or withholding 17 information regarding psychiatric and suicidal status.” (AR at 602.) Dr. Munshi made 18 similar observations in August 2019 and January 2021 treatment notes. (Id. at 629-30, 19 931-32.) It was rational for the ALJ to conclude that these observations were inconsistent 20 with some of Dr. Munshi’s opinions, including the opinions that Plaintiff had limitations 21 in her ability to perform even simple tasks and moderately severe limitations in her ability 22 to understand, carry out, and remember instructions. (Id. at 886, 1172.) As with Dr. Clark, 23 although Plaintiff attempts to explain how Dr. Munshi’s observations could be construed 24 as consistent with Dr. Munshi’s opinions, it was rational for the ALJ to conclude otherwise. 25 Ghanim, 763 F.3d at 1163.4

26 4 The Court notes that it disagrees with the Commissioner’s seeming contention (Doc. 14 at 13-14) that an ALJ may cherry-pick only those pieces of evidence in the record that 27 contradict a medical opinion and disregard other pieces of evidence that are consistent with the opinion. “An ALJ may not cherry-pick a doctor’s characterization of claimant’s issues; 28 she must consider these factors in the context of the doctor’s diagnoses and observations of impairment.” Fleenor v. Berryhill, 752 F. App’x 451, 453 (9th Cir. 2018). With that 1 For similar reasons, the Court finds no harmful error in the ALJ’s evaluation of the 2 consistency factor. The ALJ correctly noted that other providers’ treatment notes contained 3 notations similar to the above-referenced notations in Dr. Munshi’s notes. (See, e.g., AR 4 at 595 [February 2020 note from RN Compton: “Frustrated with inappropriate assessment 5 this veteran unable to manage finances requiring a fiduciary; the assessment is inaccurate 6 because veteran is coherent, intelligent, problem-solver who is fully capable of handing 7 finances”]; id. at 582 [September 2020 note from RN Compton, describing Plaintiff as 8 cooperative, pleasant, calm, logical, coherent, reality-based, and goal-directed]; id. at 586 9 [August 2020 note from RN Compton, containing same descriptors]; id.at 589 [May 2020 10 note from RN Compton, containing same descriptors]; id. at 939 [December 2020 note 11 from RN Compton, containing same descriptors].) The Court has little trouble concluding 12 that it was rational for the ALJ to find a conflict between Dr. Munshi’s description of 13 Plaintiff as a person who would experience limitation even when it came to performing 14 simple tasks (id. at 886) and RN Compton’s description of Plaintiff as a “coherent, 15 intelligent, problem-solver” (id. at 595). Given this conclusion, it is unnecessary to resolve 16 Plaintiff’s other challenges to the ALJ’s assessment of Dr. Munshi’s opinions. See, e.g., 17 Reed, 834 F. App’x at 329; Baker, 720 F. App’x at 355; Presley-Carrillo, 692 F. App’x at 18 944-45. 19 C. Symptom Testimony 20 1. Standard Of Review 21 An ALJ must evaluate whether the claimant has presented objective medical 22 evidence of an impairment that “could reasonably be expected to produce the pain or 23 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) 24 said, the ALJ did not engaged in impermissible cherry-picking here—the ALJ identified 25 multiple instances, spanning a period of years, in which Dr. Munshi made notations in treatment records that can be rationally construed as inconsistent with Dr. Munshi’s 26 opinions. Cf. Smith v. Berryhill, 752 F. App’x 473, 475-76 (9th Cir. 2019) (“Viewed as a whole, Smith’s medical record includes numerous instances in which she described 27 engaging in activities, on a regular basis, that contradict Dr. Sabahi’s opinion regarding Smith’s degree of impairment. Smith correctly notes that fibromyalgia symptoms can wax 28 and wane, but the ALJ did not cherry-pick the medical record and it contradicts several of her symptom complaints.”). 1 (citations omitted). If so, “an ALJ may not reject a claimant’s subjective complaints based 2 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” 3 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Instead, the ALJ may “reject the 4 claimant’s testimony about the severity of [the] symptoms” only by “providing specific, 5 clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488- 6 89 (9th Cir. 2015). In this analysis, the ALJ may look to “(1) ordinary techniques of 7 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 8 statements concerning the symptoms, and other testimony by the claimant that appears less 9 than candid; (2) unexplained or inadequately explained failure to seek treatment or to 10 follow a prescribed course of treatment; and (3) the claimant’s daily activities.” 11 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citing Smolen v. Chater, 80 12 F.3d 1273, 1284 (9th Cir. 1996)). 13 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 14 The ALJ began by providing the following summary of Plaintiff’s testimony 15 regarding her physical symptoms (as well as some of her mental symptoms):

16 The claimant alleges disability due to a depressive disorder, chronic pain, 17 degenerative joint disease in the lumbar spine, and Morton’s toe in the right foot. She described worsening symptoms over the course of her claim. She 18 has pain in her low back, right foot, and right hip on a daily basis. She 19 reported pain with most movement. She described occasional suicidal ideations, particularly when her pain is increased. The claimant alleges that 20 her impairments cause difficulty lifting, squatting, bending, standing, 21 walking, sitting, climbing stairs, remembering, completing tasks, concentrating, understanding, following instructions, and getting along with 22 others. Her testimony indicated that she could stand or walk for about 10 23 minutes before experiencing increasing pain. She felt that she is able to sit for about an hour at a time despite discomfort. Her statements indicated that 24 she could lift about 10 pounds. She does not manage the family finances 25 because she cannot keep track of bills. She described anger and agitation due to her condition, as well as social isolation. Her reports indicated minimal 26 activities of daily living; she prepares only simple, microwavable meals and is limited in her performance of household chores. The claimant has had 27 physical therapy, used medications, and had injections in attempts to manage 28 her pain. She described using a cane. 1 (AR at 20, record citations omitted.) 2 After providing this summary, the ALJ identified what the Court perceives to be 3 three reasons for deeming that testimony less than fully credible. (Id. at 21-23.) First, the 4 ALJ concluded that although Plaintiff’s claims regarding her “right foot injury,” “lumbar 5 degenerative disc disease,” and “osteoarthritis and trochanteric bursitis of the right hip” 6 were supported in part by the objective medical evidence, “the record does not support the 7 intensity, persistence, or limiting effects that the claimant’s attributes to these 8 impairments.” (Id. at 21-22.) The ALJ then elaborated on this finding of inconsistency 9 with the objective medical evidence as follows:

10 Significantly, the degenerative changes noted on imaging of her hip and back 11 were relatively mild. Indeed, the most recent study, obtained in June of 2021 showed “no acute osseous abnormalities or advanced arthrosis.” The 12 interpreting radiologist even noted that the lower lumbar spine was 13 unremarkable. . . . Normal mobility was otherwise noted. Indeed, at her consultative examinations, she was able to stand, walk, mount the 14 examination table, stand on either foot, and squat independently and without 15 difficulty despite endorsing low back pain. She exhibited normal gait while doing so. Examinations typically revealed grossly normal strength, 16 sensation, and reflexes in her lower extremities. There were even notations 17 of normal range of motion. Provocative tests, including straight leg raising . . . tests, were often negative. Significantly despite endorsing constant pain, 18 she was typically observed to be in no acute distress. One provider even 19 noted that her foot pain was disproportionate to the clinical findings. (Id. at 22-23, record citations omitted.) 20 The ALJ’s second proffered reason for discounting Plaintiff’s testimony regarding 21 her physical symptoms was that she had made false claims about cane usage. (Id. at 22 22 [“Contrary to reports that the claimant has used a cane for ambulation outside of the home 23 for the past 8 to 10 years, there is no documentation of assistive device use by providers, 24 even when there were gait disturbances.”].) 25 The ALJ’s third proffered reason for discounting Plaintiff’s testimony regarding her 26 physical symptoms was that Plaintiff experienced improvement from treatment. (Id. at 23 27 [“[I]t appears that treatment efforts improved her symptoms. When she was discharged 28 1 from physical therapy in early 2020 after 12 sessions . . . [s]he had achieved her goals, 2 progressed to all goals, and was independent in her home exercise program. She also 3 endorsed sustained relief from radiofrequency nerve ablation in the past when requesting 4 a subsequent procedure. Further, she reported that she received relief from bursa injections 5 lasting for about five months.”].) 6 Next, the ALJ summarized Plaintiff’s testimony regarding her mental symptoms: 7 The record demonstrates that the claimant was diagnosed with a bipolar 8 disorder via psychological testing. Symptoms included low mood, insomnia, fatigue, low self-esteem, excessive worry, difficulty controlling worry, 9 irritability, muscle tension, sleep disturbance, and impairment in functioning. 10 There were also reports of memory problems and concentrating difficulty. She reported being overwhelmed with family and personal tasks. There were 11 also notations of dysphoric, depressed, or anxious mood or affect with some 12 incidences of tearfulness. She also endorsed passive suicidal ideations, worsened by increased pain. 13 14 (Id. at 23, record citations omitted.) 15 After providing this summary, the ALJ identified what the Court perceives to be 16 two reasons for deeming that testimony less than fully credible. The first was a lack of 17 support in the objective medical evidence. (Id. [“[T]he medical evidence of record does 18 not support the intensity, persistence or limiting effects that the claimant endorses.”].) On 19 this point, the ALJ emphasized that Plaintiff “reported that her problems remembering and 20 concentrating were mild,” that “[e]ven when presenting with mood abnormalities, 21 [Plaintiff] was cooperative, pleasant, and calm with normal speech, judgment, and insight, 22 as well as logical and coherent thoughts,” and that “[r]ecent therapy notes indicate that 23 [Plaintiff] was alert, oriented, and cooperative with a self-reported okay mood and 24 congruent affect.” (Id. at 23-24, record citations omitted.) 25 The ALJ’s second proffered reason for discounting Plaintiff’s testimony regarding 26 her mental symptoms was that Plaintiff experienced improvement from treatment: 27 “[D]espite the incidences of low and/or tearful mood, her mood swings were controlled 28 with medication. Indeed, providers noted that her bipolar disorder was stable.” (Id. at 23.) 1 3. The Parties’ Arguments 2 Plaintiff argues that “[t]he ALJ committed materially harmful error by rejecting 3 [her] symptom testimony in the absence of specific, clear, and convincing reasons 4 supported by substantial evidence in this record as a whole, when the limitations in [her] 5 symptom testimony would make it impossible to perform any sustained work.” (Doc. 12 6 at 20.) Plaintiff’s overarching contention is that the ALJ merely “summarized portions of 7 the medical evidence” and “failed to connect anything specific in the medical record to a 8 specific inconsistency with any particular portion of [her] symptom testimony.” (Id. at 22.) 9 Plaintiff further contends that, “[w]ithin the ALJ’s summary, the ALJ provided a litany of 10 medical conclusions that . . . the ALJ was not qualified to render.” (Id. at 22-23.) Next, 11 Plaintiff accuses the ALJ of cherry-picking only certain pieces of evidence while failing to 12 “explain why other symptoms and signs that corroborated [her] symptom testimony about 13 chronic physical pain, depression, and anxiety were ignored.” (Id. at 23-24.) 14 The Commissioner defends the sufficiency of the ALJ’s reasoning, arguing that the 15 ALJ properly discredited Plaintiff’s symptom testimony based on (1) “objective evidence 16 that contradicted Plaintiff’s claims,” including records in which “treatment providers 17 characterized the objective findings [regarding Plaintiff’s hip and back] as no worse than 18 mild,” records in which Plaintiff “could stand, walk, get onto the examination table, stand 19 on either foot, and squat independently and without difficulty,” and records that 20 “documented normal strength, sensation, and reflexes in Plaintiff’s legs, and some 21 notations of normal range of motion”; (2) Plaintiff’s false testimony regarding cane use; 22 (3) evidence that Plaintiff’s physical symptoms “improved with treatment”; and (4) 23 evidence that Plaintiff’s mental symptoms were mild and improved with treatment. (Doc. 24 14 at 15-18.) 25 In reply, Plaintiff accuses the Commissioner of misstating the applicable standard 26 of review, reiterates her position that “the ALJ erred by failing to connect anything specific 27 in the medical record to a specific inconsistency with any particular portion of [her] 28 symptom testimony,” accuses the Commissioner of relying on post hoc rationales, and 1 reiterates her position that the ALJ improperly cherry-picked certain pieces of evidence 2 while ignoring others. (Doc. 17 at 8-10.) 3 4. Analysis 4 The Court finds no harmful error in the ALJ’s evaluation of Plaintiff’s symptom 5 testimony. One of the ALJ’s proffered reasons for discounting Plaintiff’s testimony 6 regarding her physical symptoms was that it was inconsistent with the objective medical 7 evidence in the record. Although this may not serve as an ALJ’s sole reason for discounting 8 a claimant’s symptom testimony, it is a permissible consideration when (as here) it is 9 coupled with other grounds for an adverse credibility finding. Smartt v. Kijakazi, 53 F.4th 10 489, 498 (9th Cir. 2022) (“Claimants like Smartt sometimes mischaracterize [Ninth Circuit 11 law] as completely forbidding an ALJ from using inconsistent objective medical evidence 12 in the record to discount subjective symptom testimony. That is a misreading of [Ninth 13 Circuit law]. When objective medical evidence in the record is inconsistent with the 14 claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such 15 testimony. We have upheld ALJ decisions that do just that in many cases.”); Rollins v. 16 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“While subjective pain testimony cannot be 17 rejected on the sole ground that it is not fully corroborated by objective medical evidence, 18 the medical evidence is still a relevant factor in determining the severity of the claimant’s 19 pain and its disabling effects.”). 20 The ALJ’s finding of inconsistency with the objective medical evidence is supported 21 by substantial evidence. Medical providers repeatedly noted either normal or slightly 22 abnormal findings with respect to Plaintiff’s physical condition and ability to sit, stand, 23 walk, and lift. (See, e.g., AR at 879-81 [December 2020 consultative examination note, 24 reflecting ability to stand, walk, mount the examination table, stand on either foot, and 25 squat independently and with minimal difficulty]; id. at 1050 [April 2021 consultative 26 examination note, reflecting same observations]; id. at 1081 [June 2021 study, showing 27 “no acute osseous abnormalities or advanced arthrosis” and “unremarkable” lower lumbar 28 spine]; id. at 1079 [June 2021 note: “Ambulating without assistive device. Mildly 1 antalgic.”].) However, Plaintiff asserted in her function report that “all physical activity 2 has become impossible” and that “even the smallest task causes prolonged pain and 3 requires hours or days of rest.” (Id. at 273, 276.) Similarly, when asked during the hearing 4 to describe her “ability to walk, stand, sit,” Plaintiff testified that she has “difficulty doing 5 any of those things for any amount of time.” (Id. at 45.) It was rational for the ALJ to 6 view the cited records as inconsistent with Plaintiff’s testimony. 7 Another of the ALJ’s reasons for discrediting Plaintiff’s symptom testimony was 8 that she had made false or exaggerated claims about cane usage. (Id. at 22 [“Contrary to 9 reports that the claimant has used a cane for ambulation outside of the home for the past 8 10 to 10 years, there is no documentation of assistive device use by providers, even when there 11 were gait disturbances.”].) This, too, qualifies as a specific, clear and convincing reason 12 under Ninth Circuit law for discrediting a claimant’s symptom testimony. See, e.g., 13 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (concluding that “the ALJ did offer 14 clear and convincing reasons for rejecting Verduzco’s testimony” where “the ALJ noted 15 that the appellant had walked slowly and used a cane at the hearing, although none of his 16 doctors had ever indicated that he used or needed to use an assistive device in order to 17 walk” and “two doctors had specifically noted that the appellant did not need such a 18 device”); Donathan v. Astrue, 264 F. App’x 556, 558 (9th Cir. 2008) (concluding that “the 19 ALJ provided clear and convincing reasons for rejecting Donathan’s subjective 20 allegations” where the ALJ “offered several reasons supporting the adverse credibility 21 determination, including . . . inconsistencies regarding Donathan’s need for use of a cane 22 or scooter”); Doyle v. Comm’r of Soc. Sec. Admin., 2022 WL 4354608, *6 (D. Ariz. 2022). 23 The ALJ’s conclusions on this point—which Plaintiff does not acknowledge in her 24 opening or reply brief, let alone attempt to dispute—are supported by substantial evidence. 25 In her function report, Plaintiff checked a box indicating that she used a cane. (AR at 275.) 26 Likewise, Plaintiff told the consultative examiner that “she does occasionally use a cane to 27 assist with ambulation that she obtained on her own.” (Id. at 1048.) However, the 28 consultative examiner noted that Plaintiff “presented to the appointment with no cane.” 1 (Id.) The ALJ also identified multiple other records in which there was “no documentation 2 of assistive device use by providers.” (Id. at 22, citing id. at 386, 589, 686, 1079 3 [“Ambulating without assistive device.”].) On this record, it was rational for the ALJ to 4 conclude that Plaintiff had made inaccurate or exaggerated statements regarding her cane 5 use and to discount Plaintiff’s credibility on that basis. See also Tommasetti, 533 F.3d at 6 1039 (“The ALJ may consider . . . ordinary techniques of credibility evaluation, such as 7 . . . other testimony by the claimant that appears less than candid . . . .”) (citation omitted); 8 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (identifying a “tendency to 9 exaggerate” as a “specific and convincing reason[] . . . for discrediting [a claimant’s] 10 testimony”). 11 Because the ALJ identified multiple clear and convincing reasons, supported by 12 substantial evidence, for discrediting Plaintiff’s symptom testimony, it is unnecessary to 13 resolve Plaintiff’s objections to the additional rationales the ALJ offered for discrediting 14 her testimony. Any error as to those additional rationales was harmless. See, e.g., Molina 15 v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (“[S]everal of our cases have held that 16 an ALJ’s error was harmless where the ALJ provided one or more invalid reasons for 17 disbelieving a claimant’s testimony, but also provided valid reasons that were supported 18 by the record.”); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th 19 Cir. 2008) (“Because we conclude that two of the ALJ’s reasons supporting his adverse 20 credibility finding are invalid, we must determine whether the ALJ’s reliance on such 21 reasons was harmless error. . . . [T]he relevant inquiry in this context is not whether the 22 ALJ would have made a different decision absent any error, it is whether the ALJ’s decision 23 remains legally valid, despite such error. . . . Here, the ALJ’s decision finding Carmickle 24 less than fully credible is valid, despite the errors identified above.”). 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk shall enter 3 || judgment accordingly and terminate this action. 4 Dated this 25th day of September, 2023. 5 FLL "Dominic W. Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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