Putz v. Commissioner of Social Security

Opinion

WESTERN DISTRICT OF WASHINGTON DRENA P., Case No. 3:23-cv-05877-TLF Plaintiff, v. ORDER AFFIRMING DEFENDANT’S DECISION TO ACTING COMMISSIONER OF SOCIAL DENY BENEFITS Defendant. Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of defendant’s denial of plaintiff’s application for supplemental security income (“SSI”) and disability insurance benefits (“DIB”) Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. Dkt. 5. Plaintiff challenges the Administrative Law Judge’s decision finding that plaintiff was not disabled. Dkt. 3, Complaint. Plaintiff previously filed an application for DIB and SSI alleging disability beginning December 2016 which was denied initially and upon review and affirmed on appeal to this court and the Ninth Circuit. See Putz v. Kijakazi, No. 21-35733, 2022 WL 6943095 (9th Cir. Oct. 12, 2022). On July 31, 2020 plaintiff filed the current application for DIB and SSI alleging a disability onset date of December 31, 2016. AR 250-56. Plaintiff’s date last insured for the purposes of DIB was June 30, 2021. Her application was denied initially and upon reconsideration. See AR 160-62,

159. On July 7, 2022, a hearing was conducted by Administrative Law Judge (“ALJ”) Lawrence Lee. AR 36-77. On August 18, 2022, ALJ Lee issued a decision finding plaintiff not to be disabled. AR 12-35. On October 12, 2022 the Appeals Council denied the request for review. AR 7-8. Plaintiff filed this appeal. The ALJ found plaintiff had the following severe impairments: morbid obesity, status post right ankle open reduction and internal fixation, right knee osteoarthritis, and bilateral foot osteoarthrosis status post right ostectomy, lumbar degenerative disc disease, fibromyalgia, depression, and anxiety. AR 18. Accordingly, the ALJ determined plaintiff had the Residual Functional Capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) with the following additional restrictions:

She could stand/walk for four hours in an eight-hour workday. She could frequently handle, finger, and feel bilaterally. She could occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. She could occasionally stoop but never kneel, crouch, or crawl. She could never work at unprotected heights, occasionally work with moving mechanical parts, and frequently work in dust, odors, fumes, pulmonary irritants, extreme cold, extreme heat, and vibration. She could interact frequently with coworkers and occasionally with the Public. AR. 21. As a result, the ALJ found plaintiff could perform the requirements of the following occupations: Collator (DOT 208.685-010), Small Products Assembler (DOT 706.684-022), and Production Assembler (DOT 706.687-010). AR 29. STANDARD Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of Social Security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the evidence that supports and evidence that does not support the ALJ’s conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope of the Court’s review. Id. 1. Medical evidence. Plaintiff challenges the ALJ’s assessment of the opinions of Dr. Melanie S.

Orencia, M.D., Ms. Marquetta Washington, N.P., Dr. Michael Clark, M.D., Dr. Robert G. Veith, M.D., Dr. Lezlie A. Pickett, and the non-examining physicians. Dkt. 9 at 3-6. Plaintiff filed the claim on July 31, 2020 so the ALJ applied the 2017 regulations. See AR. 250. Under the 2017 regulations, the Commissioner “will not defer or give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ must nonetheless explain with specificity how he or she considered the factors of supportability and consistency in evaluating the medical opinions. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b).

The Ninth Circuit considered the 2017 regulations in Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022). The Court found that “the requirement that ALJ’s provide ‘specific and legitimate reasons’1 for rejecting a treating or examining doctor’s opinion…is incompatible with the revised regulations” because requiring ALJ’s to give a “more

robust explanation when discrediting evidence from certain sources necessarily favors the evidence from those sources.” Id. at 792. Under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, id. § 404.1520c(b)(2). Id. A. Dr. Melanie S. Orencia, M.D. Plaintiff argues the ALJ erred by failing to discuss Dr. Orencia’s October 2020 opinion. Dkt. 9 at 4. Defendant responds that Dr. Orencia’s letter is not an opinion regarding plaintiff’s functional capacity because it does not describe what plaintiff can do despite her limitations, Dkt. 11 at 11, and defendant argues plaintiff cannot show harm for any failure to weigh the October 2020 letter because the ALJ accounted for the limitations opined by Dr. Orencia in the RFC. Id. at 12. On October 23, 2020, Dr. Orencia provided a letter that described plaintiff’s pain and treatment history. AR 1405. She stated that she is treating plaintiff for knee pain, back pain, fibromyalgia, major depressive disorder, anxiety and migraine. Id. Dr. Orencia stated that plaintiff’s knee and back pain are aggravated by prolonged sitting or 1 See Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (describing the standard of “specific and legitimate reasons”). standing. Id. She also stated that plaintiff’s fibromyalgia flares up with stress and fatigue. Id. The regulations define a medical opinion as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or

more impairment related restrictions.” 20 C.F.R. § 404.1513. These restrictions include the ability to perform physical, mental, and other demands of work, and the ability to adapt to environmental conditions. Id. The Court agrees that Dr. Orencia’s letter does not fit the definition of a medical opinion that the ALJ would be required to address, because it does not describe functional limitations. Furthermore, plaintiff is unable to show that any error was harmful because the ALJ restricted plaintiff to walking four hours in an eight hour workday, which is consistent with Dr. Orencia’s statement that plaintiff’s back and knee pain is aggravated by standing or sitting for prolonged periods of time. An error that is inconsequential to the non-disability determination is harmless. Stout v. v. Comm’r, Soc.

Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). B. Ms. Marquetta Washington, N.P. Plaintiff argues that the ALJ’s evaluation of Ms. Washington’s opinion is not supported by substantial evidence. Dkt. 9 at 4-5. In her report dated March 25, 2022, Ms. Washington issued a disability/incapacity determination on behalf of the Washington State Department of Social and Health Services. AR 1498-1500. She opined plaintiff would have a significant (moderate) limitation in the following work related abilities: environmental/ non- exertional restrictions, postural restrictions, gross or fine motor skill restrictions, perform

activities within a schedule, maintain regular attendance and be punctual within customary tolerances. AR 1499. She opined plaintiff could perform sedentary work, including: lift 10 pounds maximum, frequently lift to carry small articles such as files or small tools, and sit for most of the day; walk or stand for brief periods. Id.

The ALJ found Ms. Washington’s opinion to be not persuasive because it was inconsistent and unsupported by the medical evidence. AR 26. Specifically, the ALJ noted that “[t]he medical evidence generally shows that the claimant ambulated without difficulty and demonstrated normal strength at 5 of 5, normal reflexes, and intact sensation throughout all extremities.” Id. The ALJ also noted that plaintiff’s symptoms and pain improved with conservative treatment. Id. Inconsistency with the medical evidence is a valid reason to reject a medical opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). Plaintiff argues that the ALJ’s analysis is not supported by substantial evidence, as it is consistent with of Dr. Orencia and Dr. Veith’s opinions, clinical findings of Dr. Orencia, Dr. Veith, Dr.

Komenda, Dr. Jackman, Dr. Kim, Dr. Van Bergeyk, Dr. Charboneau, Dr. Alradawi, Mr. Dicks, and Ms. Hayes. Dkt. 9 at 5. Plaintiff also states that the findings cited by the ALJ and the evidence of improvement and pain relief do not invalidate Ms. Washington’s opinion. Id. “[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner’s actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.”)

Here, the ALJ provided a thorough summary of the medical evidence, citing evidence where, on examination, plaintiff ambulated without difficulty (Dr. Washington’s opinion is inconsistent with this, because Dr. Washington found plaintiff would need to sit for most of the day; and could only walk or stand for brief periods), demonstrated

normal strength, normal reflexes, and intact sensation. AR 23-24 (citing AR 500, 557, 583, 591, 598, 605, 626, 673, 695, 1338-39, 1354, 1361, 1368-69, and 1444-45). Inconsistency with the medical evidence is a valid reason to reject a medical opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). The ALJ also cited evidence in the record where plaintiff demonstrated improvement with conservative treatment. AR 23-24 (citing AR 626, 1324, 1328. 1334, 1439, 1512). This was also a clear and convincing reason, supported by substantial evidence, for rejecting Dr. Washington’s opinion. 20 C.F.R. § 404.1529(c)(3)(iv); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (evidence of medical treatment successfully relieving symptoms can undermine a claim of disability); see also

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (citing Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.2007) (stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity of an impairment”). Accordingly, the ALJ did not err in discounting Ms. Washington’s opinion. C. Dr. Michael Clark, M.D. Plaintiff challenges the ALJ’s assessment of Dr. Clark’s opinion. Dkt. 9 at 5-6. On May 19, 2018 Dr. Clark completed a psychiatric evaluation of plaintiff consisting of a review of records, a mental status examination, and a functional assessment/medical source statement. AR 574-79. Dr. Clark opined that plaintiff could

perform simple and repetitive tasks but would have difficulty with detailed and complicated tasks. AR 578. She would have difficulty maintaining a regular attendance and completing a normal workday or workweek without interruptions from psychologically based symptoms. Id. She would have difficulty dealing with workplace

stress which would exacerbate her mood, anxiety, and possibly pain complaints. AR 579. The ALJ found Dr. Clark’s opinion to be not persuasive on the basis that it was inconsistent with and unsupported by the medical record which showed no mental health treatment and improvement with medication. AR 27. Plaintiff argues that the ALJ’s opinion is not supported by substantial evidence because Dr. Orencia was treating plaintiff’s depression and anxiety and plaintiff’s improvement with treatment “does not justify the ALJ’s rejection of evidence regarding her ongoing symptoms.” Dkt. 9 at 6. “If the frequency or extent of the treatments sought by an individual is not

comparable with the degree of the individual’s subjective complaints...we may find the alleged intensity and persistence of [her] symptoms are inconsistent with the overall evidence of record.” SSR 16-3p. Despite alleging a long history of depression, plaintiff acknowledged that she had not had any specific mental health care for a few years before the evaluation with Dr. Clark. AR 574-75. Additionally, plaintiff testified at the hearing that she is not in any sort of mental health treatment and had not been for approximately seven years. AR 56. Plaintiff cites only one instance in the record indicating that Dr. Orencia was treating plaintiff’s anxiety and depression. Dkt. 9 at 6 (citing AR 1405). In this note Dr.

Orencia stated “I am treating her for...major depressive disorder, [and] anxiety.” AR 1405. The only other note by Dr. Orencia regarding plaintiff’s mental health treatment is that plaintiff presented for medication review and refills and states that “[p]atient has mild persistent...depression and anxiety...which are all stable on her medications.”

AR1438-39. The ALJ did not err in finding that the lack of mental health treatment in the record undermined the limitations opined by Dr. Clark. Accordingly, the ALJ provided a clear and convincing reason to discount Dr. Clark’s opinion. Therefore, any error related to the other reasons listed by the ALJ would be harmless. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). D. Dr. Robert G. Veith, M.D. Plaintiff challenges the ALJ’s assessment of Dr. Veith’s opinion. Dkt. 9 at 6. On July 17, 2018, Dr. Veith conducted a physical examination of plaintiff and provided a physical medical source statement. AR 500-06. Dr. Veith diagnosed plaintiff

with osteoarthritis, both mid feet, with associated foot discomfort with prolonged standing. AR 501. He opined that it would be preferable that her work not require prolonged walking or standing. Id. However, he stated that the job description was not medically necessary, her foot symptoms and conditions were stable, and “further aggressive treatment is not required other than appropriate footwear and anti- inflammatory medication as needed.” Id. The ALJ found Dr. Veith’s opinions partially persuasive as consistent with and supported by the medical evidence including that plaintiff ambulates without difficulty, demonstrated normal strength of 5 of 5, normal reflexes, and intact sensation

throughout all extremities. AR 27. The ALJ also noted that the medical evidence showed symptom improvement and pain relief with conservative treatment. Id. Plaintiff alleges that the ALJ did not acknowledge that Dr. Veith only described foot-related limitations and the ALJ failed to accept Dr. Veith’s opinion regarding walking

and standing limitations. Dkt. 9 at 6. Defendant responds that there is no evidence to suggest that the ALJ understood Dr. Veith’s opinion to relate to any of plaintiff’s other impairments and Dr. Veith’s statement regarding standing and walking limitations was a recommendation, rather than a statement of plaintiff’s functional capacity. Dkt. 11 at 15. As to the first point, plaintiff has not identified any error and there is no evidence that the ALJ considered Dr. Veith’s opinion to relate to any of plaintiff’s conditions other than her foot-related limitations. See Dkt. 9 at 6. As for plaintiff’s second point, the ALJ did not reject this statement – the ALJ found Dr. Veith’s opinions partially persuasive. Dr. Veith did not state a specific functional limitation but instead stated a precatory idea that “it would definitely be

preferable if she could be in a line of work that did not require prolonged standing and walking. Again, it would be preferable that she avoid prolonged standing and walking, but essentially, the job description is not medically necessary.” AR 501. An ALJ is not required to incorporate a physician’s precatory recommendations when formulating the residual functional capacity (“RFC”). See Carmickle v. Comm’r, Soc. Sec. Admin, 533 F.3d 1155, 1165 (9th Cir. 2008) (the ALJ does not err in rejecting a physician’s proposal when it is framed as a recommendation rather than an imperative); Valentine v. Comm’r of Soc. Sec. Admin., 533 F.3d 685, 691-92 (9th Cir. 2009) (an ALJ does not err by excluding recommendations from the residual functional capacity finding).

Therefore, the ALJ did not err in assigning partial weight to Dr. Veith’s opinion and, as discussed above, the inconsistency regarding evidence that plaintiff ambulates without difficulty, demonstrated normal strength, normal reflexes, and intact sensation, was a clear and convincing reason supported by substantial evidence for discounting

the opinion. E. Lezlie A. Pickett Plaintiff challenges the ALJ’s assessment of Dr. Pickett’s opinion on the basis that “in a previous case involving another claimant, the ALJ was informed that Dr. Pickett had lied in a consultative psychological report she prepared for Social Security on April 9, 2021, just over two months after her report in this case.” Dkt. 9 at 7. Defendant responds that plaintiff provides no support for this allegation and therefore this argument presents no basis to reconsider the ALJ’s decision. Dkt. 11 at 15. On January 29, 2021, Dr. Pickett examined plaintiff and completed a disability evaluation. AR 1407-13. Dr. Pickett opined that plaintiff “currently appears able to obtain

and maintain full time employment.” AR 1413. She also opined that plaintiff would have little or no trouble with simple or complex instructions, little or no trouble making simple or complex decisions, and would not likely have a significant impairment in her thinking and reasoning abilities. Id. She concluded that plaintiff’s mental health symptoms do not limit her from being able to sustain and persist for a normal work week. Id. The ALJ found Dr. Pickett’s opinions persuasive on the basis that they are generally consistent and supported by the medical record. AR 27. Plaintiff’s attorney, Eitan Yanich, submitted a declaration stating: “[o]n December 6, 2021, ALJ Lee issued a decision in a case where I was representing a claimant. That

claimant had been evaluated by Lezlie Pickett, Ph.D, and his hearing testimony proved that Dr. Pickett had made a number of false statements in her report.” Dkt. 16 at 1. Mr. Yanich attested that he has reported this to a second ALJ, the state agency, the Department of Health, and the SSA Office of General Counsel. Id. at 1-2.

Although Mr. Yanich states that ALJ Lee was the ALJ in both this case and in the previous case where Dr. Pickett allegedly made false statements, there is no evidence in the record that plaintiff raised Dr. Pickett’s credibility either to the ALJ or to the Appeals Council. Mr. Yanich states that proof of this has been provided to the state agency, the Department of Health, and to the Office of General Counsel, but he does not state that a formal finding or decision has been rendered by any of those agencies. See Dkt. 16. Plaintiff does not allege that Dr. Pickett has falsified information in this case. Plaintiff argues that “[t]he Commissioner’s continued reliance upon and defense of medical evidence from a dishonest expert witness calls into question whether the

Commissioner is impartially administering the disability adjudication process.” Dkt. 15 at 3. Because plaintiff does not present any evidence that Dr. Pickett is under investigation, that a decision has been rendered regarding this medical professional’s reliability, or that Dr. Pickett falsified any information in this case, plaintiff has not shown error. F. Non-examining physicians Plaintiff challenges the ALJ’s assignment of partial weight to Dr. Robert Stuart, M.D., Dr. Tom Dees, M.D., Dr. Eugene Kester, M.D., and Dr. Don B. Johnson, Ph.D. Dkt. 9 at 10-11.

i. Dr. Robert Stuart, M.D. and Dr. Tom Dees, M.D. Plaintiff challenges the ALJ’s assessment of Dr. Stuart and Dr. Dees on the basis that these examiners are lacking in supportability and consistency, and specifically, that they erroneously found no documentation of fibromyalgia. Dkt. 9 at 10.

On February 3, 2021, Dr. Stuart opined that plaintiff could occasionally lift 20 pounds and frequently lift 10 pounds, could stand/walk and sit approximately 6 hours in an 8-hour workday, could occasionally climb ramps/stairs, could never climb ladders/ropes/scaffolds, could occasionally stoop, kneel, or crouch, could never crawl, did not have manipulative, visual or communicative limitations but did have environmental limitations. AR 125-127. On December 20, 2021, Dr. Dees opined the same limitations. AR 148-151. Both doctors noted no documentation of fibromyalgia. AR 127, 151. The ALJ found Dr. Stuart and Dr. Dees’ opinions to be partially persuasive because they are generally supported by and consistent with the objective medical

evidence, noting that plaintiff ambulates without difficulty, demonstrated 5 out of 5 strength normal reflexes, had intact sensation throughout all extremities, and showed symptom improvement and pain relief with conservative treatment. AR 26. However, the ALJ found plaintiff could only stand/walk for four hours in an eight-hour workday. Id. Plaintiff argues that Dr. Alradawi diagnosed plaintiff with fibromyalgia in contrast to the doctors’ statements that there was no documentation of fibromyalgia in the record. Dkt. 9 at 10. Plaintiff points to a February 12, 2019 note by Dr. Alradawi that states “49-year-old female with slight elevation in CRP of 12.4 on 1/19/2018. We will need to rule out spondyloarthropathies. Other explanation for her pain includes

fibromyalgia” and a March 8, 2019 notes that states “49-year-old-female with a slight elevation in C-reactive protein without any evidence of spondyloarthropathy. MRI results from Swedish Hospital showed a lumbar disc extrusion at L5-S1 of 0.7 cm without significant central canal stenosis or neural foraminal stenosis.” AR 557, 565-567.

Defendant argues that the notes plaintiff cites reflect that Dr. Alradawi’s notes were in regard to an attempt to rule out spondyloarthropathies and suggested that fibromyalgia was an explanation for plaintiff’s pain. Dkt. 11 at 16. The Court agrees, the notes do not constitute a diagnosis as plaintiff suggests, and even if plaintiff were able to show error, the ALJ included fibromyalgia as a severe impairment in the RFC. See Stout v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). ii. Dr. Eugene Kester, M.D., and Dr. Don B. Johnson, Ph.D. On February 3, 2021, Dr. Kester opined that plaintiff does not have understanding and memory or sustained concentration and persistence limitations but does have social interaction limitations including a moderate limitation in the ability to

appropriately interact with the public, accept instructions and respond appropriately to criticism, and get along with coworkers. AR 128-29. He also opined plaintiff would have adaptation limitations including a moderate limitation in her ability to respond appropriately to changes in the work setting and would do best in a job where her daily responsibilities were fairly set. AR 129-30. On December 17, 2021, Dr. Johnson opined the same limitations. AR 152-54. The ALJ found Dr. Kester and Dr. Johnson’s opinions to be partially persuasive on the basis that they were partially consistent with and supported by the medical

evidence which shows no mental health treatment and improvement with medication. AR 27. Plaintiff argues that the ALJ failed to include Dr. Kester and Dr. Johnson’s opinions in the RFC including that plaintiff is moderately limited in her ability to interact

with others and adapt and manage herself, and that she may occasionally have issues with attendance and concentration, persistence, or pace. Dkt. 9 at 11. Defendant responds that plaintiff misrepresents Dr. Johnson’s full opinion, and the ALJ reasonably included that opinion in the RFC by limiting plaintiff to frequent interactions with coworkers and occasional interactions with the public. Dkt. 11 at 17. Dr. Johnson opined that plaintiff does not have sustained concentration and persistence limitations and explained this, stating: claimant is capable of sustaining an SGA level work schedule without significant interruptions from current MH symptoms. Her focus on being disabled and unable to work, due to physical/pain issues, along with no formal mental health treatment may occasionally cause issues with attendance and CPP, but from a psychological standpoint, she is deemed able to sustain.

AR 153. The full quotation from Dr. Johnson is consistent with the limitations contained in the RFC; the ALJ did not fail to include the opinions of these doctors regarding sustained concentration and persistence limitations because these doctors did not opine that plaintiff had these limitations. 2. Plaintiff’s statements regarding subjective symptoms Plaintiff challenges the ALJ’s assessment of her testimony because the ALJ failed to provide specific, clear, and convincing reasons for rejecting her testimony. Dkt. 9 at 16. The ALJ’s determinations regarding a claimant’s statements about limitations “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In assessing a Plaintiff’s credibility, the ALJ must determine whether Plaintiff has

presented objective medical evidence of an underlying impairment. If such evidence is present and there is no evidence of malingering, the ALJ may only reject plaintiff’s testimony regarding the severity of his symptoms for specific, clear and convincing reasons. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). On September 3, 2020, plaintiff completed a “Function Report – Adult” form. AR 352-59. She stated that she is extremely and continuously exhausted and tired which makes it difficult to concentrate. AR 352. She stated that her conditions limit her from standing. AR 353. She stated that she can lift no more than ten pounds, cannot squat, kneel, climb stairs, stand in place for more than 5-10 minutes, walk or sit for long

periods of time. AR 357. She stated that it is hard to complete tasks, her memory and concentration are affected by exhaustion, her hands hurt and cramp when she uses them too much. Id. At the hearing, she testified that she lives with her sister and they help each other. AR 49-50. She testified that she is unable to exercise. AR 50. She testified that she has a car, but she leaves the house mainly for grocery shopping. AR 51. In her free time she lays down, tries to watch TV or read a book, make greeting cards, and listen to music. AR 51-52.

She testified that she has severe lower body pain that inhibits her from standing for more than ten minutes before she needs to sit down, and she starts getting woozy and sweating profusely from the pain if she stands for too long. AR 58. She further testified that she gets extreme weakness in her right knee if she stands too long which

has caused her to fall. AR 58. She stated that she gets extreme pain for sitting too long and will get cold sweats from the pain. AR 59-60. She stated on a good day she can walk a few hundred feet. AR 62. She testified she can lift ten pounds and carry no more than five pounds. Id. The ALJ’s decision summarized the treatment record, concluding that (1) physical examination findings were primarily unremarkable and “inconsistent with the degree of limitations asserted,” (2) the medical evidence showed improvement with conservative treatment, (3) plaintiff’s mental health symptoms were not as limiting as alleged, and (4) there was a lack of mental health treatment and in other medical appointments plaintiff presented largely unremarkably. AR 23-26.

As for the ALJ’s first reason, “[c]ontradiction with the medical record is a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But an ALJ may not reject a claimant’s subjective symptom testimony “solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying rule to subjective complaints other than pain). Treatment records cannot be cherry-picked; the ALJ must consider a

particular record of treatment in light of the overall diagnostic record. Ghanim v. Colvin, 763 F.3d at 1164. Plaintiff restates her argument that the ALJ did not properly evaluate the medical evidence as he did not properly evaluate the findings and opinion of Dr. Orencia, Ms.

Washington, Dr. Clark, Dr. Veith, Dr. Jackman, Dr. Van Bergeyk, Dr. Charboneau, and Dr. Alradawi. Dkt. 9 at 12. This argument is unavailing – the Court has already determined that the ALJ did not err in evaluating the medical opinions. Plaintiff also argues that the ALJ erred by rejecting plaintiff’s statements about her fibromyalgia, arguing that the objective findings cited by the ALJ are consistent with a diagnosis of fibromyalgia, citing Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017). Social Security Administration regulations recommend looking at longitudinal records because the symptoms of fibromyalgia “wax and wane,” and a person may have “bad days and good days.” SSR 12-2p at *6. See also Revels, 874 F.3d at 663. In this case, the ALJ considered the longitudinal record and concluded that plaintiff’s limitations

were not as severe as she described. See AR 23-26. Contrary to plaintiff’s contention, the ALJ did not rely on normal objective findings to discount her fibromyalgia, but accounted for findings that both supported and did not support plaintiff’s statements, and determined that examination findings were primarily unremarkable and inconsistent with the degree of limitation asserted. See AR 22-24. As stated above, the ALJ provided a thorough summary of the medical evidence, citing evidence where, on examination, plaintiff ambulated without difficulty, demonstrated normal strength, normal reflexes, and intact sensation. AR 23-24 (citing AR 500, 557, 583, 591, 598, 605, 626, 673, 695, 1338-39, 1354, 1361, 1368-69, and 1444-45).

Additionally, the ALJ considered that plaintiff showed improvement with conservative treatment, citing plaintiff’s own reports to providers that her symptoms improved with massage therapy, medication such as meloxicam and Cymbalta, and orthovisc injections. AR 24-25 (citing AR 500, 501, 626, 1324, 1328, 1334, 1363, 1392,

1439, 1512). A finding that a claimant’s impairments are successfully managed with conservative treatment can serve as a clear and convincing reason for discounting a claimant’s testimony. See 20 C.F.R. § 416.929(c)(3)(iv) (the effectiveness of medication and treatment are relevant to the evaluation of a claimant’s alleged symptoms); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (evidence of medical treatment successfully relieving symptoms can undermine a claim of disability); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (citing Parra v. Astrue, 481 F.3d 742, 750– 51 (9th Cir.2007) (stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity of an impairment”).

Therefore, because the ALJ provided specific, clear, and convincing reasons for discounting plaintiff’s subjective symptom testimony, the Court need not consider the remaining reasons for discounting plaintiff’s testimony given by the ALJ, as any error with respect to those reasons would be harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[W]here the ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony, but also provided valid reasons that were supported by the record,” “an error is harmless so long as there remains substantial evidence supporting the ALJ’s decision and the error ‘does not negate the validity of the ALJ’s ultimate conclusion.’”).

3. Lay witness evidence Plaintiff challenges the ALJ’s assessment of plaintiff’s sister, Brigit P., arguing that the ALJ did not state any convincing reason for rejecting Brigit’s testimony. Dkt. 9 at 16-18.

For cases filed prior to March 27, 2017, the Court would uphold the ALJ’s decision to discount the opinion of a non-acceptable medical source, such as a friend or a family member, if the ALJ provided “reasons germane to each witness for doing so.” Turner v. Commissioner of Social Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); 20 C.F.R. § 404.1502. For applications filed on or after March 27, 2017, such as this one, an ALJ is “not required to articulate” how he or she evaluated evidence from non-medical sources such as educational personnel, public and private social welfare agency personnel, and other lay witnesses. 20 C.F.R. § 404.1502(e). When lay witness testimony includes similar limitations as the claimant’s testimony, an “ALJ’s well-supported reasons for

rejecting the claimant’s testimony apply equally well to the lay witness testimony.” Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012). The ALJ determined that Brigit’s observations were not more persuasive than the accumulated medical evidence and were unpersuasive for the same reason that plaintiff’s testimony was unpersuasive, they were inconsistent with and unsupported by the medical record. AR 28. Here, plaintiff’s sister testified, and provided a written report, that plaintiff could do very few household chores. AR 66-68. She testified that when they need to leave the house, plaintiff cannot walk unaided, and when she starts sweating from pain they need

to leave. AR 67. She testified that on plaintiff’s better days she is not sleeping all day. AR 68. The information provided by plaintiff’s sister relates to similar limitations as information provided by plaintiff herself. Because the Court found that the ALJ properly rejected plaintiff’s testimony due to its inconsistency with objective medical evidence

and improvement with conservative treatment, it follows that these same reasons are sufficient to properly reject the lay witness testimony. See Molina, 674 F.3d at 1117. Accordingly, the Court finds the ALJ did not err in rejecting the lay witness testimony. 4. Whether the RFC is sufficient Plaintiff alleges that the ALJ’s RFC is legally erroneous because it does not include all of the limitations described by Dr. Orencia, Ms. Washington, Dr. Clark, Dr. Veith, and the limitations described by plaintiff and her sister. Dkt. 9 at 18. However, because the Court has already determined that the ALJ did not err in rejecting these opinions, there is no error.

Based on the foregoing discussion, the Court concludes the ALJ properly determined plaintiff to be not disabled. Therefore, the ALJ’s decision is AFFIRMED. Dated this 5th day of July, 2024. A Theresa L. Fricke United States Magistrate Judge