1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARGARITA S., ) Case No. ED CV 19-906-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) 18 19 I. 20 INTRODUCTION 21 On May 14, 2019, plaintiff Margarita S. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of a period of disability, disability insurance benefits 24 (“DIB”), and Supplemental Security Income (“SSI”). 25 Plaintiff presents what amount to three issues for decision: (1) whether the 26 Administrative Law Judge (“ALJ”) properly considered the opinion of an 27 examining physician in his residual functional capacity (“RFC”) determination; 28 1 (2) whether the ALJ properly discounted plaintiff’s subjective symptom testimony; 2 and (3) whether the ALJ properly considered lay witness testimony. Memorandum 3 in Support of Plaintiff’s Complaint (“P. Mem.”) at 6-17; see Defendant’s 4 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 3-13. 5 Having carefully studied the parties’ papers, the Administrative Record 6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 7 the ALJ properly considered the opinion of the examining physician in his RFC 8 determination, properly discounted plaintiff’s subjective testimony, and properly 9 considered the lay witness testimony. Consequently, the court affirms the decision 10 of the Commissioner denying benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff was 61 years old on her alleged disability onset date. AR at 64. 14 She graduated from high school in Mexico, and has past relevant work as a cleaner 15 and children’s attendant. Id. at 34, 59. 16 On December 17, 2014, plaintiff filed applications for disability, DIB, and 17 SSI. Id. at 64, 80. Plaintiff alleged disability primarily due to complaints of 18 depression, diabetes, high blood pressure, carpal tunnel, arthritis in knees and 19 fingers, anxiety, paranoia, and high cholesterol. Id. at 64-65, 80-81. The 20 Commissioner denied plaintiff’s applications initially and upon reconsideration, 21 after which she filed a request for a hearing. Id. at 172-76, 177-81. 22 On March 12, 2018, plaintiff, represented by counsel, appeared and testified 23 at a hearing before the ALJ. Id. at 32-41, 44-57. The ALJ also heard testimony 24 from Jeff Beeman, a vocational expert. Id. at 57-62. On April 26, 2018, the ALJ 25 denied plaintiff’s claim for benefits. Id. at 10-19. 26 Applying the well-known five-step sequential evaluation process, the ALJ 27 found, at step one, that plaintiff had not engaged in substantial gainful activity 28 1 since August 18, 2013, the alleged onset date. Id. at 13. 2 At step two, the ALJ found plaintiff suffered from the following severe 3 impairments: affective disorder, personality disorder, and diabetes with neuropathy 4 and mild non-proliferative retinopathy. Id. 5 At step three, the ALJ found that plaintiff’s impairments, whether 6 individually or in combination, did not meet or medically equal one of the listed 7 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 13-14. 8 The ALJ then assessed plaintiff’s RFC,1 and determined plaintiff had the 9 RFC to perform light work, except that she is limited to: frequently balancing; no 10 climbing of ropes, ladders, or scaffolds; no exposure to hazardous heights or 11 moving machinery parts; frequent use of foot controls with right lower extremity; 12 simple and routine instructions; occasional contact with the public; occasional 13 changes in workplace setting; being off-task 5% of the workday; and being absent 14 one day per month. Id. at 15. 15 The ALJ found, at step four, that plaintiff could perform her past relevant 16 work as a cleaner and children attendant. Id. at 18. Consequently, the ALJ 17 concluded plaintiff did not suffer from a disability as defined in the Social Security 18 Act. Id. at 19. 19 Plaintiff filed a timely request for review of the ALJ’s decision, which was 20 denied by the Appeals Council. Id. at 1-3. The ALJ’s decision stands as the final 21 decision of the Commissioner. 22 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 7 (as amended). But if the court determines the ALJ’s findings are based on legal 8 error or are not supported by substantial evidence in the record, the court may 9 reject the findings and set aside the decision to deny benefits. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 11 1144, 1147 (9th Cir. 2001). 12 “Substantial evidence is more than a mere scintilla, but less than a 13 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 14 “relevant evidence which a reasonable person might accept as adequate to support 15 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 17 finding, the reviewing court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that detracts from the 19 ALJ’s conclusion.” Id. The ALJ’s decision “‘cannot be affirmed simply by 20 isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d at 1035 21 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence 22 can reasonably support either affirming or reversing the ALJ’s decision, the 23 reviewing court “‘may not substitute its judgment for that of the ALJ.’” Id. 24 (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 ((9th Cir. 1992)). 25 26 27 28 1 IV. 2 DISCUSSION 3 A. The ALJ Properly Considered Examining Physician Belen’s Opinion 4 Plaintiff argues the ALJ erred by rejecting the opinion of her examining 5 physician Dr. Nenita Belen as to plaintiff’s moderate mental limitations. P. Mem. 6 at 6-10. Specifically, plaintiff argues the ALJ ignored Dr. Belen’s opinion 7 regarding plaintiff’s moderate mental limitations when formulating plaintiff’s RFC 8 determination despite giving Dr. Belen’s opinion great weight. Id. 9 In determining whether a claimant has a medically determinable impairment, 10 among the evidence the ALJ considers is medical evidence. See 20 C.F.R. 11 § 404.1545(a)(1).2 In evaluating medical opinions, the regulations distinguish 12 among three types of physicians: (1) treating physicians; (2) examining physicians; 13 and (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 14 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 15 opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari, 16 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927(c)(1)-(2). The opinion 17 of the treating physician is generally given the greatest weight because the treating 18 physician is employed to cure and has a greater opportunity to understand and 19 observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); 20 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 21 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 22 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 23 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 24 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 25 opinions, the ALJ must provide specific and legitimate reasons supported by 26 27 2 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 1 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 2 and legitimate reasons supported by substantial evidence in rejecting the 3 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 4 non-examining physician, standing alone, cannot constitute substantial evidence. 5 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. Comm’r 6 of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. 7 Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993). 8 1. The Medical Opinions and Records 9 a. Examining Physician Dr. Nenita Belen 10 In May 2015, Dr. Nenita Belen, a consultative examiner, conducted a 11 complete psychiatric evaluation of plaintiff. See AR at 472-76. Dr. Belen 12 evaluated plaintiff’s medical history, reviewed her medical records, and conducted 13 plaintiff’s mental status examination. Id. On examination, Dr. Belen observed that 14 plaintiff was “well kept, well nourished, and in no apparent distress.” Id. at 474. 15 Dr. Belen also noted that plaintiff’s speech was fluent and coherent, but “full of sad 16 case scenarios,” and she described her mood as “depressed, tearful, anxious, 17 irritable, and angry with lots of regrets.” Id. Dr. Belen diagnosed plaintiff with 18 recurrent severe major depression and post traumatic stress disorder (PTSD). Id. at 19 475. Plaintiff was also assigned a Global Assessment Functioning (GAF) score of 20 55. Id. 21 Based on Dr. Belen’s examination of plaintiff, she opined that plaintiff 22 would have mild limitations performing simple and repetitive tasks as well as 23 performing detailed and complex tasks. Id. Dr. Belen also opined that plaintiff 24 would have moderate limitations in: performing work activities on a consistent 25 basis without special or additional supervision; completing a normal workday or 26 work week due to her mental condition; accepting instructions from supervisors 27 and interacting with coworkers and the public; and handling the usual stresses, 28 1 changes, and demands of gainful employment. Id. 2 Dr. Belen stated that plaintiff was “responding poorly” to her current 3 treatment by her family doctor, who prescribed plaintiff with Prozac. Id. at 473, 4 475. Dr. Belen recommended that plaintiff be seen by a psychiatrist, increase her 5 antidepressant treatment, and receive counseling on a one-on-one basis more 6 frequently than twice a month. Id. at 475. Dr. Belen also indicated that plaintiff’s 7 prognosis was good if provided with adequate treatment. Id. 8 b. Other Opinions Regarding Plaintiff’s Mental RFC 9 Dr. Marvin Lee, a psychiatrist, treated plaintiff for her depression, anxiety, 10 and PTSD. See id. at 738-39, 750, 753, 757, 781, 799, 809. On October 10, 2017, 11 Dr. Lee provided a medical opinion regarding plaintiff’s ability to do work-related 12 activities, in which he described plaintiff as unable to meet competitive standards 13 in the following areas of mental functioning: completing a normal workday or 14 workweek; maintaining attention for two-hour segments and regular attendance; 15 performing at a consistent pace without an unreasonable number and length of rest 16 periods; accepting instructions and responding appropriately to criticism from 17 supervisors; getting along with coworkers or peers; responding appropriately to 18 changes in routine work settings; and dealing with normal work stress. Id. at 223- 19 24. 20 On July 8, 2015 and January 4, 2016, the State Agency Psychologists, Dr. 21 Jay S. Flocks and Dr. D. Funkestein, assessed plaintiff’s mental RFC and found 22 that plaintiff was moderately limited in the following functional abilities: 23 understanding, remembering, and carrying out detailed instructions; maintaining 24 attention and concentration for extended periods; performing activities within a 25 schedule, maintaining regular attendance, and being punctual within customary 26 tolerances; completing a normal workday and workweek without interruptions 27 from psychologically based symptoms and performing at a consistent pace without 28 1 an unreasonable number and length of rest periods; interacting appropriately with 2 the general public; accepting instructions and responding appropriately to criticism 3 from supervisors; getting along with coworkers or peers without distracting them 4 or exhibiting behavioral extremes; maintaining socially appropriate behavior and 5 adhering to basic standards of neatness and cleanliness; and responding 6 appropriately to changes in the work setting. Id. at 75-76, 145-46. Additionally, 7 both Dr. Flocks and Dr. Funkenstein found that plaintiff could perform simple, 8 repetitive tasks with limited public contact. Id. 9 2. The ALJ’s Findings 10 In determining plaintiff’s RFC, the ALJ found plaintiff had the following 11 mental limitations: simple and routine instructions; occasional contact with the 12 public; occasional changes in the workplace setting; being off-task 5% of the 13 workday; and being absent one day per month. Id. at 15. 14 In reaching his mental RFC determination, the ALJ gave great weight to Dr. 15 Belen’s opinion that plaintiff had various mild to moderate mental limitations, 16 except that the ALJ gave her opinion that plaintiff had PTSD less weight on the 17 ground that it was inconsistent with the treatment notes. Id. at 16-17. In addition, 18 the ALJ gave little weight to Dr. Lee’s opinion regarding plaintiff’s mental 19 functioning limitations on the grounds that his opinion that plaintiff was unable to 20 meet competitive standards was inconsistent with plaintiff’s treatment notes and 21 contradicted by Dr. Belen’s expert examination and opinion. Id. Further, the ALJ 22 assigned limited weight to the opinions of Dr. Flocks and Dr. Funkenstein, because 23 they were provided by non-examining sources who did not access the developed 24 record at the hearing level, but the ALJ nonetheless found their opinions consistent 25 with the overall record. Id. at 17-18. 26 Plaintiff only challenges the ALJ’s consideration and alleged rejection of Dr. 27 Belen’s opinion regarding plaintiff’s moderate mental limitations in reaching 28 1 plaintiff’s RFC. See P. Mem. at 6-10. 2 3. The ALJ Properly Considered the Moderate Limitations 3 Identified by Dr. Belen in Formulating Plaintiff’s RFC 4 Plaintiff argues the ALJ improperly excluded Dr. Belen’s opinion that 5 plaintiff would have moderate limitations in performing work activities on a 6 consistent basis without special or additional supervision, completing a normal 7 workday or work week, and handling the usual stresses, changes, and demands of 8 gainful employment in formulating plaintiff’s RFC. See P. Mem. at 6. The ALJ 9 specifically discussed and acknowledged the moderate mental limitations identified 10 by Dr. Belen, and stated he ultimately gave her opinion “great weight” (AR at 14, 11 16-17), but plaintiff contends the ALJ’s RFC determination does not reflect these 12 limitations. The court disagrees. 13 The ALJ adequately accounted for these moderate mental limitations in 14 formulating plaintiff’s RFC by limiting plaintiff to “simple and routine 15 instructions, occasional contact with the public, occasional changes in the 16 workplace setting, being off-task 5% of the workday, and being absent one day per 17 month.” See id. at 15. Ninth Circuit authority supports the conclusion that the 18 ALJ’s RFC assessment reasonably accommodated Dr. Belen’s moderate limitation 19 findings. See Shaibi v. Berryhill, 883 F.3d 1102, 1107 (9th Cir. 2017) (finding “no 20 obvious inconsistency” between the two physicians’ opinions that plaintiff was 21 “moderately limited” in his interactions with coworkers and the ALJ’s RFC finding 22 that limited plaintiff to “simple routine tasks in a non-public setting, with 23 occasional interactions with coworkers”); Stubbs-Danielson v. Astrue, 539 F.3d 24 1169, 1173-74 (9th Cir. 2008) (ALJ’s limitation to “simple, routine, repetitive” 25 work sufficiently accommodated medical opinion evidence that plaintiff had 26 “moderate” limitation in pace and “other mental limitations regarding attention, 27 concentration, and adaptation”); Terrey v. Berryhill, 696 Fed. App’x 831, 833 (9th 28 1 Cir. 2017) (ALJ’s RFC finding for “simple and unskilled work” that “must be 2 checked by a supervisor two to three times a day” adequately captured doctor’s 3 opinion that plaintiff had “moderately severe” limitations in understanding, 4 carrying out, and remembering instructions, responding to customary work 5 pressures, and performing complex tasks, and “mild” limitations in relating to 6 others, and performing simple and varied tasks); Hughes v. Colvin, 599 Fed. App’x 7 765, 766 (9th Cir. 2015) (ALJ’s RFC assessment accounted for moderate 8 difficulties in social functioning, concentration, and persistence by restricting 9 plaintiff to simple, routine, repetitive tasks in job where she could work 10 independently, with no more than occasional public interaction). 11 Plaintiff contends the ALJ’s RFC assessment that plaintiff would be “off- 12 task 5% of the workday” is inconsistent with Dr. Belen’s opinion because a 13 “moderate limitation” represents an impairment that affects work up to one third of 14 the time. See P. Mem. at 8-9. But contrary to plaintiff’s argument, the Social 15 Security regulations do not provide a standard definition of the term “moderate.” 16 See Holland v. Colvin, 2016 WL 928665, at *3 (C.D. Cal. Mar. 4, 2016); Serna v. 17 Astrue, 2008 WL 5179033, at *3 (C.D. Cal. Dec. 9, 2008) (citing 20 C.F.R. 18 § 416.902a(c)(4)); Stenson v. Astrue, 2012 WL 1154400, at *8 (S.D. Cal. Mar. 15, 19 2012). Courts have held that a plaintiff “found to have a moderate limitation in her 20 ability to respond appropriately to work pressures in a usual work setting would 21 still be able to satisfactorily function in this area.” Serna, 2008 WL 5179033 at *3 22 (citing Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006)); see also Arriola v. 23 Astrue, 2008 WL 4926961, at *4 (C.D. Cal. Nov. 14, 2008) (noting that 24 “moderate” is “more than a slight limitation in this area but the individual is still 25 able to function satisfactorily”). Moreover, courts in the Ninth Circuit have found 26 that “[m]oderate mental functional limitations — specifically limitations in social 27 functioning and adaptation — are not per se disabling, nor do they preclude the 28 1 performance of jobs that involve simple, repetitive tasks.” McLain v. Astrue, 2011 2 WL 2174895, at *6 (C.D. Cal. June 3, 2011); Koehler v. Astrue, 283 Fed. App’x 3 443, 445 (9th Cir. 2008) (holding that ALJ’s finding that plaintiff lacked a severe 4 mental impairment was proper despite “diagnosis of a ‘moderate’ degree in one’s 5 ability to respond to changes in the workplace setting”). As such, the ALJ’s 6 finding that plaintiff could perform light work except that she is limited to “simple 7 and routine instructions, occasional contact with the public, occasional changes in 8 workplace setting, being off-task 5% of the workday, and being absent one day per 9 month” is consistent with Dr. Belen’s moderate mental limitation findings. 10 Because the ALJ properly considered the moderate mental limitations 11 identified by Dr. Belen in formulating plaintiff’s RFC and substantial evidence 12 supports the ALJ’s findings, the ALJ did not err in considering Dr. Belen’s 13 opinion. 14 B. The ALJ Provided Clear and Convincing Reasons for Discounting 15 Plaintiff’s Testimony 16 Plaintiff also argues the ALJ erred by rejecting plaintiff’s subjective 17 symptom testimony on the grounds that it was inconsistent with the objective 18 medical evidence and plaintiff received routine and conservative treatment. See P. 19 Mem. at 13-16. Plaintiff argues these reasons do not amount to clear and 20 convincing reasons for discounting her testimony. See id. 21 The ALJ must make specific credibility findings, supported by the record. 22 Social Security Ruling (“SSR”) 96-7p. To determine whether testimony 23 concerning symptoms is credible, the ALJ engages in a two-step analysis. 24 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 25 must determine whether a claimant produced objective medical evidence of an 26 underlying impairment “‘which could reasonably be expected to produce the pain 27 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 28 1 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 2 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 3 symptoms only by offering specific, clear and convincing reasons for doing so.” 4 Smolen, 80 F.3d at 1281; accord Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 5 2003). The ALJ may consider several factors in weighing a claimant’s testimony, 6 including: (1) ordinary techniques of credibility evaluation such as a claimant’s 7 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 8 of treatment; and (3) a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 9 at 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 10 At the first step, the ALJ here found that plaintiff’s medically determinable 11 impairments could reasonably be expected to cause the symptoms alleged. AR at 12 18. At the second step, because the ALJ did not find any evidence of malingering, 13 the ALJ was required to provide clear and convincing reasons for discounting 14 plaintiff’s testimony. The ALJ discounted plaintiff’s testimony here because: (1) 15 plaintiff’s statements concerning the intensity, persistence, and limiting effects of 16 her symptoms were not entirely consistent with the medical evidence and other 17 evidence in the record; (2) she received routine and conservative treatment; (3) she 18 did not comply with her prescribed treatment, which caused her diabetes and 19 related symptoms to worsen; (4) she was able to work in the past despite having 20 the same symptoms and diagnoses; and (5) she was capable of performing 21 activities of daily living. Id. at 16, 18. 22 The ALJ’s first reason for discounting plaintiff’s testimony was that it was 23 not entirely consistent with the objective medical evidence. Id. The ALJ discussed 24 the opinions of all the treating, examining, and State agency physicians, as well as 25 plaintiff’s testimony, and found that her statements concerning the intensity, 26 persistence, and limiting effects of her symptoms were not entirely supported by 27 the objective medical evidence and other evidence in the record. Id. at 16-18. 28 1 Plaintiff does not point to any flaw in the ALJ’s analysis, except to note that 2 objective medical evidence is not the only evidence that may establish the degree 3 of impairment. While plaintiff is correct that lack of objective medical evidence 4 cannot be the sole basis for rejecting plaintiff’s testimony, the ALJ here properly 5 considered this factor in conjunction with others in rejecting her subjective 6 testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of objective 7 medical evidence is a factor the ALJ can consider in credibility analysis). 8 The ALJ’s second reason for rejecting plaintiff’s testimony was that she 9 received routine and conservative treatment that is inconsistent with her alleged 10 limitations. Id. at 18. “[E]vidence of ‘conservative treatment’ is sufficient to 11 discount a claimant’s testimony regarding severity of an impairment.” See Parra 12 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Here, the ALJ found that although 13 plaintiff noted a long list of physical impairments, her diabetes and related 14 symptoms are treated with routine care that involves medications and diet changes. 15 See AR at 16, 18, 488, 518, 714, 733-34; Warre v. Comm’r, 439 F.3d 1001, 1006 16 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication 17 are not disabling for purposes of determining eligibility for [disability] benefits.”). 18 In addition, the ALJ noted that plaintiff failed to comply with her prescribed 19 treatment, which caused her diabetes and related symptoms to worsen. See AR at 20 18, 714, 733-34; Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“the 21 individual’s statements may be less credible . . . if the medical reports or records 22 show that the individual is not following the treatment prescribed and there are no 23 good reasons for this failure”). Prior to plaintiff’s non-compliance with her 24 prescribed treatment, her diabetes and related symptoms appeared to be controlled 25 with diet, insulin, checking blood sugar, and medication. See id. at 488, 490-92. 26 Plaintiff does not explain why she failed to comply with her prescribed treatment, 27 nor does she challenge the ALJ’s consideration of this factor. As such, plaintiff’s 28 1 routine and conservative treatment with respect to her physical impairments and 2 her failure to comply with her prescribed treatment are clear and convincing 3 reasons for the ALJ to reject plaintiff’s testimony. 4 With respect to plaintiff’s mental impairments, the ALJ also found that 5 plaintiff was treated with routine and conservative treatment. See id. at 16-18. In 6 support of this finding, the ALJ noted that plaintiff was prescribed with Prozac by 7 her family doctor, and that her condition is controlled with such routine care. Id. 8 at 16-17, 473. But contrary to the ALJ’s finding, Dr. Belen stated that plaintiff was 9 “responding poorly” to the current treatment by her family doctor, who prescribed 10 her with Prozac. See id. at 475. Although defendant correctly points out that non- 11 conservative treatment options existed since Dr. Belen recommended that plaintiff 12 be seen by a psychiatrist, increase her anti-depressant medication, and attend 13 counseling more than twice a month (id. at 475), plaintiff testified during the 14 hearing that her insurance did not cover therapy. See id. at 53. Thus, the alleged 15 routine care plaintiff received for her mental impairments and her failure to pursue 16 the non-conservative treatment options recommended by Dr. Belen are not clear 17 and convincing reasons to discount her testimony. See Smolen v. Chater, 80 F.3d 18 1273, 1284 (9th Cir. 1996) (finding plaintiff’s failure to seek treatment because of 19 an inability to afford it is not a clear and convincing reason to reject plaintiff’s 20 testimony). 21 The ALJ also considered plaintiff’s ability to work in the past despite having 22 the same symptoms and diagnoses since the late 1990s in rejecting her subjective 23 testimony. See AR at 18. Specifically, the ALJ noted that despite plaintiff’s long 24 history of mental impairments, including being hospitalized as a child and in the 25 late 1990s for mental symptoms and suicidal attempts, she has not received any 26 emergency treatment since then and she was able to work until 2013. Id. at 13, 16, 27 18, 473. The ALJ thus reasonably interpreted the fact that her mental impairments 28 1 did not prevent plaintiff from working until 2013 as suggesting that it would not do 2 so now. See Terrey v. Berryhill, 696 F. App’x 831, 833 (9th Cir. 2017) (finding 3 that the ALJ permissibly discounted plaintiff’s subjective testimony on the ground 4 that his alleged disabling impairments existed at the same time he worked at his 5 previous job). As such, plaintiff’s ability to work in the past despite having the 6 same symptoms and diagnoses is a clear and convincing reason for rejecting 7 plaintiff’s testimony. 8 Finally, although plaintiff argues that the ALJ did not consider her daily 9 activities as a reason to reject her testimony (see P. Mem. at 15), the hearing 10 decision suggests otherwise. The ALJ considered plaintiff’s ability to “complete a 11 range of daily activities,” including dressing, bathing, eating, toileting, household 12 chores, shopping, cooking, and managing her own money. AR at 16, 474. The 13 ALJ also indicated that while plaintiff did report some difficulty going to places by 14 herself, she had “fine” relationships with her family, showed good eye contact and 15 rapport with doctors, and was deemed intellectually and psychologically capable of 16 performing activities of daily living. Id. Thus, the ALJ reasonably considered 17 plaintiff’s ability to perform daily activities in finding that plaintiff’s subjective 18 testimony was inconsistent with the alleged severity of her symptoms. See Stubbs- 19 Danielson, 539 F.3d at 1175 (ALJ properly rejected plaintiff’s testimony where the 20 record reflected that plaintiff engaged in normal activities of daily living, including 21 cooking, house cleaning, doing laundry, and helping her husband in managing 22 finances). 23 Accordingly, the inconsistency between plaintiff’s testimony and objective 24 evidence, in conjunction with the routine and conservative treatment for her 25 physical impairments, her non-compliance with treatment, and her ability to work 26 in the past despite having the same symptoms, and her ability to perform a range of 27 daily activities amount to clear and convincing reasons for the ALJ to reject her 28 1 subjective testimony. 2 C. The ALJ Properly Considered the Lay Testimony from Plaintiff’s 3 Daughter 4 Plaintiff additionally argues the ALJ failed to properly consider plaintiff’s 5 daughter’s testimony. See P. Mem. at 16-17. 6 “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 7 ability to work is competent evidence and therefore cannot be disregarded without 8 comment.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 9 quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see 10 also 20 C.F.R.§§ 404.1513(d)(4), 416.913(d)(4) (explaining that the Commissioner 11 will consider all evidence from “non-medical sources,” including “spouses, parents 12 and other caregivers, siblings, other relatives, friends, neighbors, and clergy”). The 13 ALJ may only discount the testimony of a lay witness if he provides specific 14 “reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 15 (9th Cir. 1993); see Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay 16 testimony as to a claimant’s symptoms is competent evidence that an ALJ must 17 take into account, unless he or she expressly determines to disregard such 18 testimony and give reasons germane to each witness for doing so.”). 19 Victoria Jurado, who is listed as plaintiff’s daughter, completed a Third 20 Party Function Report on November 25, 2015. AR at 390-98. In the Third Party 21 Report, Ms. Jurado stated that plaintiff is always tired, she needs reminders to 22 brush her teeth, shower, and take her pills, and can only make light meals. Id. at 23 391-92. Additionally, Ms. Jurado stated that plaintiff only does her laundry about 24 twice a month, and she cannot go outside by herself, but that she goes to the store 25 for food about once a month. Id. at 392-93. Ms. Jurado also stated that plaintiff’s 26 impairments have affected her hearing, seeing, memory, ability to complete tasks, 27 concentrate, understand, follow instructions, and use her hands. Id. at 395. 28 1 The ALJ stated he gave limited weight to plaintiff’s daughter’s Third Party 2 Function Report because, while it was “provided by someone who has observed 3 the claimant on a regular basis, it is provided by a non-medical source and is based 4 on the claimant’s subjective complaints. Nonetheless, it has been considered.” Id. 5 at 17. 6 Because a lay witness is by definition not an acceptable medical source, the 7 ALJ’s discounting of plaintiff’s daughter’s testimony on the ground that she is not 8 a medical source amounted to a wholesale rejection of all lay witness testimony 9 and was not germane to plaintiff’s daughter. See Smolen, 80 F.3d at 1289 (the 10 ALJ’s rejection of plaintiff’s family member’s testimony as biased “amounted to a 11 wholesale dismissal of the testimony of all [the family] witnesses as a group and 12 therefore does not qualify as a reason germane to each individual who testified”). 13 Thus, the first reason the ALJ gave was not germane. 14 The second reason given by the ALJ was that the daughter’s statements were 15 based on plaintiff’s subjective complaints. A review of the report reflects that 16 many of the statements were based on the daughter’s own observations, as the ALJ 17 acknowledged in stating the report was given by someone who regularly observed 18 plaintiff. Yet portions of the report reflect information that would have come from 19 plaintiff herself, such as reports of plaintiff’s poor sleep quality, how plaintiff feels, 20 and certain of the statements about plaintiff’s limitations. See AR at 391-93, 395- 21 96. As discussed above, the ALJ properly discounted plaintiff’s subjective 22 testimony. Because the ALJ found that plaintiff’s daughter’s Third-Party Report 23 was based on plaintiff’s subjective complaints, this is a germane reason for the ALJ 24 to reject it. See Edgecomb v. Berryhill, 741 F. App’x 390, 392 (9th Cir. 2018) 25 (“the ALJ gave germane reasons for affording little weight to the opinion of [the] 26 nurse practitioner” because her “opinion was based on [claimant’s] self reporting, 27 which the ALJ determined was not fully credible”). Although not all of the report 28 1 || was based on these subjective complaints, the ALJ did not discount the report 2 || entirely, but rather stated he had considered it and given it limited weight. 3 Thus, while the ALJ could not reject plaintiff's daughter’s testimony on the 4 || ground that it was provided by a non-medical source, the ALJ cited a germane 5 || reason for giving only limited weight to her report given that it was in part based 6 || on plaintiffs subjective complaints, which the ALJ properly discounted. 7 V. 8 CONCLUSION 9 IT IS THEREFORE ORDERED that Judgment shall be entered 10 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 11 || this action with prejudice. 12 13 Cp ZY 14 | DATED: November 24, 2020 15 SHERI PYM 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 18