Mchaffie v. Kijakazi

• Court: District Court, S.D. California
• Decided: March 8, 2024
• Docket: 3:22-cv-01690
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RENEE MCHAFFIE, Case No.: 22-cv-01690-H-LR

12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 MARTIN J. O’MALLEY, Commissioner MOTION FOR SUMMARY of Social Security Administration, 15 JUDGMENT; AND Defendant. 16 [Doc. No. 13.] 17 (2) AFFIRMING THE 18 COMMISSIONER OF SOCIAL 19 SECURITY’S FINAL DECISION

20 On October 31, 2022, Plaintiff Renee Mchaffie filed a complaint against Defendant 21 Martin J. O’Malley, Commissioner of Social Security,1 seeking judicial review of an 22 administrative denial of disability benefits under the Social Security Act pursuant to 42 23 U.S.C. § 405(g). (Doc. No. 1, Compl.) On January 17, 2023, Defendant filed an answer 24

25 1 Plaintiff’s complaint originally named Kilolo Kijakazi, Acting Commissioner of 26 Social Security, as the defendant in this action. (Doc. No. 1, Compl. at 1.) Defendant 27 O’Malley was sworn in as Commissioner of Social Security on December 20, 2023. Pursuant to Federal Rule of Civil Procedure 25(d), O’Malley is therefore automatically 28 1 to Plaintiff’s complaint and a certified administrative record. (Doc. No. 10.) On February 2 16, 2023, Plaintiff filed a motion for summary judgment. (Doc. No. 13.) On March 20, 3 2023, Defendant filed a response in opposition to Plaintiff’s motion. (Doc. No. 15.) On 4 April 3, 2023, Plaintiff filed a reply. (Doc. No. 16.) For the reasons below, the Court 5 denies Plaintiff’s motion for summary judgment, and the Court affirms the Commissioner’s 6 final decision. 7 Background 8 On July 8, 2019, Plaintiff filed an application for disability insurance benefits and 9 an application for supplemental social security income benefits, alleging disability 10 beginning on February 1, 2019. (AR 213-30.) Both claims were denied initially on 11 December 12, 2019 (AR 67-96), and again upon reconsideration on March 24, 2020. (AR 12 97-124.) Plaintiff then requested a hearing before an ALJ, and the ALJ held a telephonic 13 hearing on February 17, 2021.2 (AR 28, 45-66.) During the hearing, Plaintiff amended 14 her alleged disability onset date to July 17, 2019. (AR 51-52.) 15 On September 15, 2021, the ALJ issued a written decision finding Plaintiff not 16 disabled. (AR 28-39.) “To determine whether an individual is disabled within the meaning 17 of the Social Security Act, and therefore eligible for benefits, an ALJ follows a five-step 18 sequential evaluation.” Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 20 C.F.R. 19 § 404.1520). The five-step inquiry asks: 20 (1) whether the claimant is presently engaging in substantially gainful activity; (2) whether the claimant has a severe impairment; (3) whether the 21 impairment is listed, or equivalent to an impairment listed, in Appendix I of 22 the regulations; (4) whether the impairment prevents the claimant from doing past relevant work; and (5) whether the impairment prevents the claimant 23 from performing any other substantially gainful activity. 24 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citing 20 C.F.R. § 404.1520(a)(4)). 25 At step one of the five-step sequential evaluation, the ALJ determined that Plaintiff 26

27 2 Plaintiff and her counsel both consented to holding the hearing by telephone due to 28 1 had not been engaged in substantial gainful activity since July 17, 2019, the amended 2 alleged onset date. (AR 31.) At step two, the ALJ determined that Plaintiff had the 3 following severe impartment: “degenerative disc disease of the lumbar spine, status post 4 lumbar interbody fusion.” (Id.) At step three, the ALJ determined that Plaintiff’s 5 impairment or combination of impairments do not meet or medically equal the severity of 6 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 35.) 7 Before proceeding to step four of the inquiry, the ALJ performed a residual 8 functional capacity (“RFC”) assessment, and the ALJ determined that Plaintiff has the RFC 9 to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that 10 she is able to occasionally climb ladders, ropes, scaffolds, ramps, and stairs, and she is able 11 to frequently balance, stoop, kneel, crouch, and crawl. (AR 35.) In making this RFC 12 determination, the ALJ discounted Plaintiff’s testimony concerning her subjective 13 symptoms. (See AR 36-38 (“[T]he claimant’s statements concerning the intensity, 14 persistence and limiting effects of these symptoms are not entirely consistent with the 15 medical evidence and other evidence in the record for the reasons explained in this 16 decision.”).) 17 After receiving testimony from a vocational expert during the hearing, at step four 18 of the sequential evaluation, the ALJ determined that Plaintiff is capable of performing 19 past relevant work as “a cleaner, housekeeper, and head housekeeper.” (AR 38.) As a 20 result, the ALJ determined that Plaintiff had not been disabled within the meaning of the 21 Social Security Act from July 17, 2019 (the amended alleged onset date) through the date 22 of the ALJ’s decision, and the ALJ denied Plaintiff’s claims. (AR29, 39.) See Ford, 950 23 F.3d at 1149 (“If the ALJ determines, based on the RFC, that the claimant can perform past 24 relevant work, the claimant is not disabled.”). 25 On November 15, 2021, Plaintiff requested review of the ALJ’s decision with the 26 Social Security Appeals Council. (AR 210-12.) On August 31, 2022, the Appeals Council 27 denied Plaintiff’s request for review, rendering the ALJ’s decision final. (AR 1-6.) 28 On October 31, 2022, Plaintiff filed a complaint in this Court, seeking judicial 1 review of the Appeals Council’s denial pursuant to 42 U.S.C. § 405(g). (Doc. No. 1, 2 Compl.) By the present motion and briefing, Plaintiff moves for summary judgment and 3 requests that the Court reverse the Commissioner’s final decision and remand the case for 4 an award of benefits, or in the alternative, remand this case to the Commissioner for further 5 proceedings. (Doc. No. 13-1 at 8.) 6 Discussion 7 I. Legal Standards 8 A. Standard for Determining Disability 9 Under the Social Security Act, “disability” is defined as an “inability to engage in 10 any substantial gainful activity by reason of any medically or mental impairment which 11 can be expected to result in death or which has lasted for a continuous period of not less 12 than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant “shall be determined to be under 13 disability only if his physical or mental impairments are of such severity that he is not only 14 unable to do his previous work but cannot, considering his age, education, and work 15 experience, engage in any other kind of substantial gainful work which exists in the 16 national economy.” 42 U.S.C. § 423(d)(2)(A). 17 “To determine whether an individual is disabled within the meaning of the Social 18 Security Act, and therefore eligible for benefits, an ALJ follows a five-step sequential 19 evaluation.” Ford, 950 F.3d at 1148 (20 C.F.R. § 404.1520). “At steps one through four, 20 the claimant retains the burden of proof; at step five, the burden shifts to the 21 Commissioner.” Maxwell v. Saul, 971 F.3d 1128, 1130 n.2 (9th Cir. 2020) (citing Tackett 22 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)); see also Parra, 481 F.3d at 746 (This is 23 “consistent with the general rule that ‘[a]t all times, the burden is on the claimant to 24 establish [his] entitlement to disability insurance benefits.’” (quoting Tidwell v. Apfel, 161 25 F.3d 599, 601 (9th Cir. 1998)). “If a claimant is found to be ‘disabled’ or ‘not disabled’ at 26 any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d 27 at 1098 (citing 20 C.F.R. § 404.1520). 28 “At step one, the ALJ must determine if the claimant is presently engaged in a 1 ‘substantial gainful activity,’ defined as ‘work done for pay or profit that involves 2 significant mental or physical activities.’” Ford, 950 F.3d at 1148 (quoting 20 C.F.R. § 3 404.1520(a)(4)(i), and Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001)). If the ALJ 4 determines that the claimant is engaged in substantially gainful activity, the ALJ will find 5 the claimant not disabled. See 20 C.F.R. § 404.1520(a)(4)(i), (b). 6 “At step two, the ALJ decides whether the claimant’s impairment or combination of 7 impairments is ‘severe,’ meaning that it significantly limits the claimant’s ‘physical or 8 mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 (quoting 20 C.F.R. § 9 404.1520(a)(4)(ii), and Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)). If none of 10 claimant’s impairments are severe, the ALJ will find the claimant not disabled. See 20 11 C.F.R. § 404.1520(a)(4)(ii), (c). 12 “At step three, the ALJ evaluates whether the claimant has an impairment, or 13 combination of impairments, that meets or equals the criteria of any of the impairments 14 listed in the ‘Listing of Impairments.’” Ford, 950 F.3d at 1148 (citing 20 C.F.R. § 15 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1 (pt. A)). “If a claimant’s 16 impairments meet or equal the criteria of a listing, the claimant is considered disabled.” Id. 17 at 1149 (citing 20 C.F.R. § 404.1520(d)). 18 “If the claimant does not meet or equal a listing, the ALJ proceeds to step four, where 19 the ALJ assesses the claimant’s residual functional capacity (RFC) to determine whether 20 the claimant can perform past relevant work, which is defined as ‘work that [the claimant 21 has] done within the past 15 years, that was substantial gainful activity, and that lasted long 22 enough for [the claimant] to learn to do it.’” Id. (quoting 20 C.F.R. §§ 404.1520(e), 23 404.1560(b)(1)). A claimant’s RFC is the most a claimant can do despite the claimant’s 24 physical and mental limitations caused by a claimant’s impairments and any related 25 symptoms. 20 C.F.R. § 404.1545(a)(1); see Ford, 950 F.3d at 1149 n.3. If the ALJ 26 determines, based on the RFC, that the claimant can perform past relevant work, the 27 claimant is not disabled. Ford, 950 F.3d at 1149 (citing 20 C.F.R. § 404.1520(f)). 28 If the claimant cannot perform their past relevant work, the ALJ proceeds to step 1 five and considers the claimant’s RFC, age, education, and work experience to determine 2 if the claimant can make an adjustment to other work that exists in significant numbers in 3 the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); see also Tackett, 180 F.3d at 4 1100–01. If the claimant can make an adjustment to other work, the ALJ will find claimant 5 is not disabled. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant cannot make an adjustment 6 to other work, the ALJ will find the claimant disabled. Id. 7 B. Standard of Review 8 Unsuccessful applicants can seek judicial review of a final decision by the 9 Commissioner. 42 U.S.C. § 405(g). This Court may enter a judgment affirming, 10 modifying, or reversing the decision of the Commissioner, with or without remanding the 11 case for a rehearing. See id. 12 “[F]ederal court review of social security determinations is limited.” Treichler v. 13 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Upon review, the 14 district court must affirm the Commissioner’s decision if it was supported by substantial 15 evidence and based on proper legal standards. Batson v. Comm’r of Soc. Sec. Admin., 359 16 F.3d 1190, 1193 (9th Cir. 2004); see Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). 17 “Under the substantial-evidence standard, a court looks to an existing administrative 18 record and asks whether it contains ‘sufficien[t] evidence’ to support the agency’s factual 19 determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated 20 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “‘Substantial evidence means more than 21 a mere scintilla, but less than a preponderance. It means such relevant evidence as a 22 reasonable mind might accept as adequate to support a conclusion.’” Trevizo v. Berryhill, 23 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec’y of Health & Human Servs., 24 846 F.2d 573, 576 (9th Cir. 1988)); see Biestek, 139 S. Ct. at 1154. In reviewing for 25 substantial evidence, a court “‘must consider the evidence as a whole, weighing both the 26 evidence that supports and the evidence that detracts from the Commissioner’s 27 conclusion.’” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) 28 (Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). “However, if ‘the evidence is 1 susceptible to more than one rational interpretation, [a reviewing court] must uphold the 2 ALJ’s findings if they are supported by inferences reasonably drawn from the record.’” Id. 3 (quoting Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)); see Attmore v. Colvin, 4 827 F.3d 872, 875 (9th Cir. 2016). 5 Further, even when the ALJ commits legal error, the reviewing court must uphold 6 the decision where that error is harmless. Treichler, 775 F.3d at 1099. “An error is 7 harmless if it is ‘inconsequential to the ultimate nondisability determination,’ or ‘if the 8 agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with 9 less than ideal clarity.’” Id. (citations omitted). “[T]he burden of showing that an error is 10 harmful normally falls upon the party attacking the agency’s determination.” Molina, 674 11 F.3d at 1111 (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). “Overall, the 12 standard of review is ‘highly deferential.’” Rounds, 807 F.3d at 1002. 13 II. Analysis 14 On appeal, Plaintiff contends that the Commissioner’s final decision should be 15 reversed because, in making his RFC determination, the ALJ improperly rejected 16 Plaintiff’s testimony concerning her subjective symptoms. (Doc. No. 13-1 at 1.) Plaintiff 17 contends that the ALJ failed to offer any specific, clear and convincing reasons supported 18 by substantial evidence in the record when rejecting that symptom testimony. (Id.) In 19 response, Defendant argues that the Court should reject Plaintiff’s claims and affirm the 20 ALJ’s decision. (Doc. No. 15 at 3.) Defendant argues that the ALJ properly evaluated 21 Plaintiff’s subjective symptom complaints and gave valid reasons supported by substantial 22 evidence for discounting them. (Id.) 23 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the 24 record, including . . . medical records, lay evidence, and ‘the effects of symptoms, including 25 pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. 26 Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The relevant regulation “directs that 27 ‘[c]areful consideration’ be given to any evidence about symptoms ‘because subjective 28 descriptions may indicate more severe limitations or restrictions than can be shown by 1 medical evidence alone.’” Id. (quoting SSR 96-8p). “When giving such consideration, if 2 the record establishes the existence of a medically determinable impairment that could 3 reasonably give rise to the reported symptoms, an ALJ must make a finding as to the 4 credibility of the claimant’s statements about the symptoms and their functional effect.” 5 Id. 6 The Ninth Circuit has “a two-step analysis for determining the extent to which a 7 claimant’s symptom testimony must be credited.” Trevizo, 871 F.3d at 678. First, the 8 “ALJ must determine whether the claimant has presented objective medical evidence of an 9 underlying impairment which could reasonably be expected to produce the pain or other 10 symptoms alleged.” Id. Second, if the claimant satisfies step one, “and there is no evidence 11 of malingering, the ALJ can reject the claimant’s testimony about the severity of her 12 symptoms only by offering specific, clear and convincing reasons for doing so.” Id. If the 13 ALJ finds the claimant’s allegations of severity are not credible, “[t]he ALJ must state 14 specifically which symptom testimony is not credible and what facts in the record lead to 15 that conclusion.” Smolen, 80 F.3d at 1284. The ALJ’s findings must be “‘sufficiently 16 specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 17 testimony.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Thomas 18 v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). 19 When assessing the claimant’s credibility, the ALJ may consider a range of factors 20 including: “‘(1) ordinary techniques of credibility evaluation, such as the claimant’s 21 reputation for lying, prior inconsistent statements concerning the symptoms, and other 22 testimony by the claimant that appears less than candid; (2) unexplained or inadequately 23 explained failure to seek treatment or to follow a prescribed course of treatment; and (3) 24 the claimant’s daily activities.’” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 25 (quoting Smolen, 80 F.3d at 1284); see also 20 C.F.R. § 404.1529(c). District courts cannot 26 second-guess an ALJ’s credibility decision if the ALJ supports the decision with substantial 27 evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162–63 (9th Cir. 28 2008) (explaining that the reviewing court need not disturb the ALJ’s credibility 1 assessment, even where some of the reasons the ALJ provided for discrediting a claimant’s 2 testimony were improper, so long as the assessment is supported by substantial evidence); 3 see also Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (“Ultimately, the ‘clear and 4 convincing’ standard requires an ALJ to show his work[.] . . . The standard isn’t whether 5 our court is convinced, but instead whether the ALJ’s rationale is clear enough that it has 6 the power to convince.”). 7 In his decision, the ALJ summarized Plaintiff’s subjective symptom testimony as 8 follows: 9 The claimant is a 56-year-old woman who alleges disability due to degenerative disc disease of the lumbar spine, status post lumbar interbody 10 fusion. She alleges that she is unable to lift heavy things. She alleges that she 11 is unable to stand, walk, kneel, or bend for long. She alleges that she is unable to lift more than 10 pounds. She alleges that she is unable to climb stairs or 12 cook. She alleges that she is unable to go out alone or drive. She alleges that 13 she needs to be accompanied to go places. She alleges difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, and stair 14 climbing. 15 (AR 36.) 16 The ALJ properly assessed the credibility of this symptom testimony under the Ninth 17 Circuit’s two-step test. The ALJ began at step one of the analysis by finding that Plaintiff’s 18 medically determinable impairments could reasonable be expected to cause the alleged 19 symptoms. (AR 36.) Because the ALJ made this finding at step one, and the ALJ did not 20 find any evidence of malingering in the record, the ALJ could only reject Plaintiff’s 21 subjective symptom testimony if he provided “specific, clear and convincing reasons for 22 doing so.” Trevizo, 871 F.3d at 678. The ALJ did so here. 23 As a reason for discounting Plaintiff’s subjective symptom testimony, the ALJ 24 explained that Plaintiff’s “statements concerning the intensity, persistence and limiting 25 effects of [her] symptoms are not entirely consistent with the medical evidence” in the 26 record. (AR 36-37.) This was a specific, clear and convincing reason for discounting 27 Plaintiff’s symptom testimony. See Smartt, 53 F.4th at 498 (“When objective medical 28 1 may indeed weigh it as undercutting such testimony.”); Carmickle, 533 F.3d at 1161 2 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 3 subjective testimony.”). And the ALJ supported his reasoning by citing to substantial 4 medical evidence in the record. 5 Plaintiff’s amended alleged onset date in this case is July 17, 2019, and Plaintiff had 6 lumbar interbody fusion surgery on July 25, 2019. (See AR 417-31.) Post-surgery 7 treatment notes from August 2019 identified by the ALJ state that Plaintiff “is progressing 8 nicely after surgery; “[h]er pain is well-controlled” with medication; and her left lower 9 extremity pain “is resolving.” (AR400; see AR 37.) Treatment notes from October 2019 10 state that Plaintiff continued to progress nicely after surgery. (AR 37, 549.) The notes 11 further state that although Plaintiff “continues to note some low back pain” and “a warm 12 sensation in her left foot,” she “had been ambulating at home without any difficulty,” and 13 “[s]he denies any pain in her bilateral lower extremities.” (Id.) The notes also state that 14 Plaintiff had full strength and sensation in her lower extremities. (Id.) Treatment notes 15 from January 2020 also state that Plaintiff had full strength and sensation in her lower 16 extremities. (AR 37, AR653.) In the notes, Plaintiff reported having “low back stiffness” 17 and “warmness and tingling” in her left foot, but she denied any pain radiating down her 18 lower extremities and stated that physical therapy has been helping. (AR 652.) Finally, 19 records from March 2020 show that Plaintiff requested disability forms, but she also 20 reported that at that time her surgeon cleared her to go back to work and would not extend 21 her disability any further. (AR 37, 1000.) In light of the above, there was substantial 22 medical evidence in the record to support the ALJ’s discounting of Plaintiff’s subjective 23 symptom testimony. 24 Plaintiff argues that the ALJ improperly discounted her symptom testimony based 25 on the medical evidence in the record. (Doc. No. 13-1 at 5.) Plaintiff explains that an ALJ 26 cannot dismiss a claimant’s testimony based solely on a lack of objective medical evidence 27 to fully corroborate the alleged severity of pain. (Id. (citing Bunnell v. Sullivan, 947 F.2d 28 341, 354 (9th Cir. 1991) (en banc)); see also Doc. No. 16 at 3.) Plaintiff is correct that an 1 ALJ may not “reject a claimant’s subjective complaints based solely on a lack of medical 2 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 3 676, 680 (9th Cir. 2005). But that is not what the ALJ did here. Rather, the ALJ noted that 4 Plaintiff’s symptoms were not entirely consistent with the medical evidence in the record, 5 and the ALJ noted the specific medical evidence in the record that is inconsistent with 6 Plaintiff’s symptom testimony. That is a proper basis for discounting a claimant’s 7 subjective symptom testimony. See Smartt, 53 F.4th at 498; Carmickle, 533 F.3d at 1161. 8 Indeed, in a recent published decision, the Ninth Circuit rejected this exact same 9 argument that Plaintiff makes here. In Smartt v. Kijakazi, the Ninth Circuit aptly 10 explained: 11 [T]he ALJ properly discounted Smartt’s subjective pain testimony by identifying specific discrepancies between her testimony and the objective 12 medical evidence. 13 In his decision, the ALJ also noted that Smartt’s symptoms are “not 14 entirely consistent with the medical evidence.” (emphasis added). Smartt argues that, by using this phrase, the ALJ improperly penalized her for not 15 providing objective medical evidence fully corroborating the severity of her 16 self-reported symptoms. Smartt is correct that an ALJ may not “reject a claimant’s subjective complaints based solely on a lack of medical evidence 17 to fully corroborate the alleged severity of pain.” Burch, 400 F.3d at 680. But 18 Smartt incorrectly reads the ALJ’s “not entirely consistent” language as committing the error identified in Burch. 19 In contrast to Smartt’s interpretation, the district court interpreted the 20 ALJ’s “not entirely consistent” phrase to mean “the record contains 21 conflicting evidence” between Smartt’s subjective symptom testimony and other evidence in the record, including the objective medical evidence. The 22 context of the ALJ’s decision as a whole demonstrates that this is the correct 23 reading of the ALJ’s meaning because, as discussed above, the ALJ highlighted several inconsistencies between Smartt’s subjective symptom 24 testimony and the objective medical evidence in the record, including record 25 evidence about Smartt’s driving and her irregular use of mobility aids. 26 Claimants like Smartt sometimes mischaracterize Burch as completely forbidding an ALJ from using inconsistent objective medical evidence in the 27 record to discount subjective symptom testimony. That is a misreading of 28 Burch. When objective medical evidence in the record is inconsistent with 1 the claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such testimony. We have upheld ALJ decisions that do just that 2 in many cases. 3 Smartt, 53 F.4th at 497–98; see, e.g., Carmickle, 533 F.3d at 1161; Klick v. Saul, 820 F. 4 App’x 656, 657 (9th Cir. 2020) (“The ALJ performed the required two-step analysis and 5 provided specific, clear and convincing reasons for his finding by citing the medical record 6 . . . .”). As such, the ALJ provided a specific, clear and convincing reason for discounting 7 Plaintiff’s symptom testimony by citing to medical evidence in the record that was 8 inconsistent with Plaintiff’s subjective testimony. See id. 9 Further, as an additional reason for discounting Plaintiff’s subjective symptom 10 testimony, the ALJ explained that Plaintiff’s daily activities are not as limited as would be 11 expected given her complaints of disabling symptoms and limitation. (AR 37.) This is 12 also a specific, clear and convincing reason for rejecting Plaintiff’s subjective symptom 13 testimony that was well supported by the evidence in the record. As the ALJ noted, 14 Plaintiff reported that she has no difficulty with personal care, grooming, or taking her 15 medication, and she is able to shop in stores for groceries, dog food, and house supplies. 16 (See AR37, AR 300-02.) In addition, Plaintiff reported taking care of her 2-year-old great 17 granddaughter from 10:00 a.m. to 7:00 p.m., five days a week in 2020 and 2021. (See 18 AR37, 810, 833, 914, 930, 936, 958.) 19 Plaintiff criticizes the ALJ for relying on evidence regarding the childcare she 20 provided for her great granddaughter. (Doc. No. 13-1 at 7; Doc. No. 16 at 3-4.) Plaintiff 21 contends that in contrast to the ALJ’s finding, the evidence regarding her childcare 22 activities actually supports her symptom testimony because the relevant notes state that it 23 was too much work for Plaintiff. (Id.) A review of the record shows that Plaintiff 24 specifically stated that she “fel[t] overwhelmed” by the babysitting, and “that it [wa]s a bit 25 too much.” (AR 914.) Nevertheless, even if the childcare activities were a bit too much 26 for Plaintiff, the evidence in the record still demonstrates that she was capable of 27 performing a substantial amount of childcare work during the workweek, (See AR37, 810, 28 1 determination that Plaintiff is still able to perform “light work” with some limitations. In 2 addition, it is notable that Plaintiff’s childcare work was similar to Plaintiff’s prior work of 3 providing in-home care for her aunt. (See AR 49.) See, e.g., Smartt, 53 F.4th at 500 4 (finding it notable that the claimant’s “daily activities[, which included childcare 5 activities,] require many of the same ‘capabilities . . . necessary for obtaining and 6 maintaining employment’”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 7 (9th Cir. 1999) (same); Mitchell v. Colvin, 584 F. App’x 309, 311 (9th Cir. 2014) (same). 8 As such, Plaintiff’s childcare activities was another specific, clear and convincing reason 9 supported by substantial evidence for discounting Plaintiff’s subjective symptom 10 testimony. See Smartt, 53 F.4th at 499 (“Even if the claimant experiences some difficulty 11 or pain, her daily activities ‘may be grounds for discrediting the claimant’s testimony to 12 the extent that they contradict claims of a totally debilitating impairment.’” (quoting 13 Molina, 674 F.3d at 1113)). 14 As an additional reason for discounting Plaintiff’s subjective symptom testimony, 15 the ALJ also reasonably relied on the findings from state agency doctors Kim Rowlands, 16 M.D., and Jeanine Kwun, M.D. (AR 38.) At the initial review level, Dr. Rowlands found 17 that Plaintiff had the capacity to perform work at a light exertional level with postural 18 limitations, which is in line with the ALJ’s RFC determination. (AR 76-78, 90-92.) At the 19 reconsideration level, Dr. Kwun also found that Plaintiff had the capacity to perform work 20 at a light exertional level with postural limitations. (AR 105-07, 118-20.) As such, the 21 findings of these two state agency doctors was another specific, clear and convincing 22 reason given by the ALJ and supported by substantial evidence for discounting Plaintiff’s 23 subjective symptom testimony. See, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 24 (9th Cir. 2008) (“[T]he medical evidence, including Dr. Eather’s report and Dr. Neville’s 25 report—which both found Stubbs–Danielson could perform a limited range of work— 26 support the ALJ’s credibility determination.”); Klein v. Berryhill, 717 F. App’x 664, 666 27 (9th Cir. 2017) (finding ALJ properly discounted claimant’s symptom testimony because 28 it was inconsistent with the medical opinion evidence). 1 As an additional reason for discounting Plaintiff’s subjective symptom testimony, 2 the ALJ also reasonably relied on the fact that Plaintiff stopped working for reasons 3 unrelated to her allegedly disabling impairment. (AR 38.) The evidence in the record 4 shows that Plaintiff reported that she stopped working in July 31, 2019 “[b]ecause of other 5 reasons,” specifically that she “[m]oved from Washington state to CA and could not do the 6 heavy lifting.” (AR 275.) As such, this was another specific, clear and convincing reason 7 supported by substantial evidence for discounting Plaintiff’s subjective symptom 8 testimony. See J.S. v. Kijakazi, No. 22-35602, 2023 WL 4200020, at *1 (9th Cir. June 27, 9 2023) (“An ALJ may find subjective symptom testimony incredible if the claimant left 10 work for a non-impairment related reason.”); see, e.g., Bruton v. Massanari, 268 F.3d 824, 11 828 (9th Cir. 2001) (finding ALJ properly discounted claimant’s symptom testimony 12 because he left work for reasons other than his impairments). 13 In sum, the ALJ provided four specific, clear and convincing reasons for rejecting 14 Plaintiff’s testimony about the severity of her symptoms. And those reasons were all 15 supported by substantial evidence in the record. As such, the Court rejects Plaintiff’s 16 challenge to the ALJ’s RFC determination, and the Court affirms the Commissioner’s final 17 decision. See, e.g., Heinig v. Saul, 845 F. App’x 660, 661 (9th Cir. 2021) (affirming the 18 Commissioner’s denial of benefits and finding the ALJ properly gave specific, clear, and 19 convincing reasons supported by substantial evidence to discount the claimant’s symptom 20 testimony where the testimony was inconsistent with the objective medical evidence in the 21 record, the claimant’s daily activities, and the reason for claimant’s loss of her previous 22 job). 23 / / / 24 / / / 25 / / / 26 27 28 1 Conclusion 2 For the foregoing reasons, the ALJ did not commit reversible error in discounting 3 || Plaintiff's subjective symptom testimony. As such, the ALJ’s disability determination 4 ||must be upheld. Accordingly, the Court denies Plaintiffs motion for summary judgment, 5 the Court affirms the Commissioner’s final decision. 6 IT IS SO ORDERED. 7 || DATED: March 8, 2024 | | | | | : 8 MARILYNW. HUFF, Distri ge 9 UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28