Raquel Torres Contreras v. Andrew Saul

• Court: District Court, C.D. California
• Decided: March 28, 2022
• Docket: 2:20-cv-02775
• Status: Unknown

Opinion

Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 1 of 19 Page ID #:692

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAQUEL T.C., ) Case No. 2:20-cv-02775-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of Social Security ) Administration, ) 16 ) ) 17 Defendant. ) ) 18 19 20 I. 21 INTRODUCTION 22 On March 25, 2020, plaintiff Raquel T.C. filed a complaint against 23 defendant, the Commissioner of the Social Security Administration 24 (“Commissioner”), seeking review of a denial of supplemental security income 25 (“SSI”). The court deems the matter suitable for adjudication without oral 26 argument. 27 Plaintiff presents two issues for decision: (1) whether the Administrative 28 Law Judge (“ALJ”) properly considered plaintiff’s testimony; and (2) whether the 1 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 2 of 19 Page ID #:693

1 appointment of former Commissioner of Social Security, Andrew Saul, was 2 constitutional. See Mem. in Supp. of Pl.’s Compl. (“P. Mem.”) at 5-17; Pl.’s 3 Notice of New Authority (“Notice”) at 1-2; see also Mem. in Supp. of Def.’s 4 Answer (“D. Mem.”) at 2-9. 5 Having carefully studied the parties’ memoranda, the Administrative Record 6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 7 the ALJ properly evaluated plaintiff’s subjective symptom testimony. The court 8 also finds that even if former Commissioner Saul’s appointment was 9 unconstitutional, plaintiff fails to establish that her case should be reviewed by the 10 Social Security Administration (“SSA”) de novo. The court therefore affirms the 11 decision of the Commissioner denying SSI. 12 II. 13 FACTUAL AND PROCEDURAL BACKGROUND 14 Plaintiff, who was 38 years old on the alleged disability onset date and 46 15 years old on the application date, completed junior high in Mexico and tenth grade 16 in the U.S. See AR at 39, 73. Plaintiff has past relevant work as a clerk typist. See 17 AR at 60-61. 18 On May 5, 2016, plaintiff filed an application for SSI, alleging an onset date 19 of December 31, 2007. See AR at 73. Plaintiff claimed she suffered from lower 20 back pain, heart problems, and high blood pressure. See id. Plaintiff’s application 21 was initially denied on September 30, 2016. See AR at 79-83. 22 Plaintiff requested a hearing, which the assigned ALJ held on December 19, 23 2018. AR at 34. Plaintiff, represented by counsel and assisted by a Spanish 24 interpreter, appeared and testified at the hearing. AR at 39-61. The ALJ also heard 25 testimony from Alan L. Ey, a vocational expert. See AR at 54-69. The ALJ denied 26 plaintiff’s claim for benefits on March 6, 2019. AR at 28. 27 Applying the well-established five-step sequential evaluation process, the 28 2 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 3 of 19 Page ID #:694

1 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 2 since May 5, 2016, the application date. AR at 21. 3 At step two, the ALJ found plaintiff suffered from the following severe 4 impairments: lumbar spinal stenosis and radiculopathy, status post laminectomies 5 and fusion with repair and revision with hardware removal; failed back syndrome; 6 cervical radiculopathy with left upper extremity weakness; degenerative joint 7 disease of the bilateral knees; and obesity. Id. 8 At step three, the ALJ found that plaintiff’s impairments, whether 9 individually or in combination, did not meet or medically equal one of the 10 impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 22. 11 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 12 determined she had the ability to perform: 13 light work as defined in 20 CFR 416.967(b) except: she can stand 14 and/or walk 4 hours total during an 8-hour day; can occasionally bend, 15 crouch, stoop, and crawl; can occasionally walk on uneven terrain, 16 climb, and work at heights; can frequently push and/or pull with the 17 left upper extremity; and can use the left upper extremity for frequent 18 handling, fingering, feeling, and reaching. 19 AR at 22-23. 20 The ALJ found, at step four, that plaintiff was able to perform her past 21 relevant work as a clerk typist, both as actually and generally performed. AR at 22 27. The ALJ accordingly concluded plaintiff was not under a disability, as defined 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 nn.5-7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the 27 ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 4 of 19 Page ID #:695

1 in the Social Security Act, at any time since May 5, 2016, the date the application 2 was filed. AR at 28. 3 Plaintiff filed a timely request for review of the ALJ’s decision, but the 4 Appeals Council denied the request for review on January 29, 2020. AR at 1. 5 Accordingly, the ALJ’s decision became the final decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the SSA must be 10 upheld if they are free of legal error and supported by substantial evidence. Mayes 11 v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court 12 determines the ALJ’s findings are based on legal error or are not supported by 13 substantial evidence in the record, the court may reject the findings and set aside 14 the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th 15 Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 16 “Substantial evidence is more than a mere scintilla, but less than a 17 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 18 evidence is such “relevant evidence which a reasonable person might accept as 19 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 20 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 21 substantial evidence supports the ALJ’s finding, the reviewing court must review 22 the administrative record as a whole, “weighing both the evidence that supports 23 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 24 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 25 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (cleaned up). If the 26 evidence can reasonably support either affirming or reversing the ALJ’s decision, 27 the reviewing court “may not substitute its judgment for that of the ALJ.” Id. 28 4 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 5 of 19 Page ID #:696

1 (cleaned up). 2 IV. 3 DISCUSSION 4 A. The ALJ Properly Evaluated Plaintiff’s Testimony 5 Plaintiff argues the ALJ failed to articulate legally sufficient reasons for 6 discounting her testimony regarding the limiting effects of her physical 7 impairments. 8 1. Legal Standard 9 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 10 evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded 11 SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, 12 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not have the same 13 force and effect as statutes or regulations, they are binding on all components of 14 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). 15 In adopting SSR 16-3p, the SSA sought to “clarify that subjective symptom 16 evaluation is not an examination of an individual’s character.” Id. at *2. 17 [SSR 16-3p] makes clear what our precedent already required: that 18 assessments of an individual’s testimony by an ALJ are designed to 19 evaluate the intensity and persistence of symptoms after the ALJ finds 20 that the individual has a medically determinable impairment(s) that 21 could reasonably be expected to produce those symptoms, and not to 22 delve into wide-ranging scrutiny of the claimant’s character and 23 apparent truthfulness. 24 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up). 25 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 26 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 27 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 28 5 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 6 of 19 Page ID #:697

1 produced objective medical evidence of an underlying impairment that could 2 reasonably be expected to produce the symptoms alleged. Id. Second, if the 3 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 4 must evaluate the intensity and persistence of the claimant’s symptoms and 5 determine the extent to which they limit her ability to perform work-related 6 activities. Id. 7 In assessing intensity and persistence, the ALJ may consider: a claimant’s 8 daily activities; the location, duration, frequency, and intensity of the symptoms; 9 precipitating and aggravating factors; the type, dosage, effectiveness, and side 10 effects of medication taken to alleviate the symptoms; other treatment received; 11 other measures used to relieve the symptoms; and other factors concerning the 12 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 13 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen, 80 F.3d at 14 1283-84 & n.8 (9th Cir. 1996)). To reject the claimant’s subjective symptom 15 statements at step two, the ALJ must provide “specific, clear, and convincing” 16 reasons, supported by substantial evidence in the record, for doing so. Id. at 921, 17 929. 18 2. Plaintiff’s Subjective Symptom Testimony 19 The ALJ summarized plaintiff’s testimony as follows. In an August 2016 20 function report, plaintiff reported back pain, which limited her ability to walk, 21 stand, or lift. AR at 23, 242-43. She also claimed that she tries to engage in 22 regular household chores, but has to take breaks while doing them. AR at 23, 244. 23 At the hearing in December 2018, plaintiff testified that she was being 24 treated for her back issues with pain medication, but that the pills only help for 25 about two hours. AR at 23, 41. She reported four back surgeries, the most recent 26 taking place in April 2018. AR at 23, 41-42. On an average day, she claimed her 27 pain level does not go below an eight, except that it goes to a five when she takes 28 6 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 7 of 19 Page ID #:698

1 medication. AR at 23, 50. Walking worsens her pain, which also got worse after 2 therapy. AR at 23, 42, 50. She does some household chores, like cooking, but has 3 to lie down for about half an hour after cooking for 30 minutes. AR at 23, 50-51. 4 Generally, she has to lie down three times a day. AR at 23, 51. The ALJ 5 questioned her about medical records stating that she was happy with the results of 6 her recent surgery. AR at 23, 45. She responded that she felt better for about two 7 months, after which her pain returned in a manner worse than before. AR at 23, 8 45-46. 9 In her memorandum, plaintiff highlights additional parts of her hearing 10 testimony and functional report. She testified that she takes pain medication, 11 including Norco, and her doctors recommended a pain pump, which would deliver 12 medicine to her body on a constant basis. See AR at 41, 47. Even with 13 medication, her pain never goes completely away. AR at 49-50. She claims that 14 her four surgeries did not help at all. AR at 41-42. 15 Plaintiff testified that she drives her children to school, about six miles 16 away, but needs help from her sister or husband when she is in too much pain. See 17 AR at 42-44, 242. She stated her sister helps her take the kids to school about 18 twice a week. See AR at 49. She claimed that she does not drive for more than 20 19 minutes. AR at 243. She is allegedly able to walk for only about five or six 20 minutes before her pain requires her to go back home and lie down for half an 21 hour. AR at 50-51. Finally, she claims she cannot lift any kind of objects on her 22 own. AR at 243. 23 3. Analysis 24 At the first step for evaluating a claimant’s symptom testimony, the ALJ 25 found plaintiff’s medically determinable impairments could reasonably be 26 expected to cause the symptoms alleged. AR at 23. At the second step, the ALJ 27 partly discounted plaintiff’s testimony concerning the intensity, persistence, and 28 7 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 8 of 19 Page ID #:699

1 limiting effects of her symptoms as not entirely consistent with the medical 2 evidence and other evidence in the record. Id. Because plaintiff cleared step one 3 and the ALJ found no evidence of malingering, the ALJ’s reasons for discounting 4 plaintiff’s testimony had to be specific, clear, convincing, and supported by 5 substantial evidence. 6 The ALJ’s discussion of plaintiff’s symptom testimony begins with a 7 summary of her statements at the hearing and in her August 2016 function report. 8 See AR at 23. The ALJ then explains that her symptom testimony is not “entirely 9 consistent with the medical evidence and other evidence in the record for the 10 reasons explained in this decision.” Id. The ALJ goes on to summarize the 11 evidence that he interpreted as restricting plaintiff to a reduced range of light 12 exertion, including significant reductions in standing and walking. See AR at 24- 13 27. 14 a. Inconsistencies With Objective Medical Record 15 The ALJ began by analyzing plaintiff’s objective medical history, which 16 revealed a significant history of lumbar spinal stenosis and radiculopathy 17 necessitating multiple surgeries. AR at 24. She first had fusion surgery in January 18 2015, which did not resolve her radiating leg pain. See AR at 24, 362, 390, 494. A 19 nerve conduction study and EMG of her lower extremities from May 2017 returned 20 abnormal findings of chronic denervation at multiple levels, including L4, L5, and 21 S1. See AR at 24, 331. Plaintiff tried a variety of treatments, including physical 22 therapy, oral pain medications, facet injections, and lumbar epidural steroid 23 injections without notable relief. AR at 24, 353. 24 In September 2017, plaintiff had an L4-S1 laminectomy. AR at 24, 359. 25 Treatment notes from February 6, 2018 state the procedure led to complete relief 26 from her radiating leg pain and neurologic changes. See id. Although she 27 complained of posterior back pain, she was ambulating without complaints. Id. 28 8 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 9 of 19 Page ID #:700

1 On February 16, 2018, Dr. Seung Ha Lim performed a consultative internal 2 medicine examination. AR at 24, 327-30. Dr. Lim reported that plaintiff had a 3 well-healed scar in her lower back, had pain on motion (specifically, slow gait due 4 to back pain), paravertebral tenderness, and decreased range of motion of the back 5 without any signs of radiculopathy. See AR at 24, 328-30. Regarding her 6 extremities, there was no clubbing, cyanosis, edema, effusions, warmth, crepitus, 7 or pain on motion. See AR at 24, 329. There was no laxity of joints, and their 8 ranges of motion were within normal limits. See id. Her deep tendon reflexes 9 were 2/2 and symmetrical throughout, and plantar responses were flexor. See AR 10 at 24, 329-30. Using a Jamar Hand Dynamometer, plaintiff was able to generate 11 65 pounds of force using her right hand and 30 pounds of force using the left. AR 12 at 24, 328. She did not require an assistive device for ambulation. AR at 24, 330. 13 On February 26, 2018, plaintiff had revision L2-3 fusion and durotomy 14 repair. See AR at 24, 411. In a follow up appointment on March 22, 2018, the 15 doctor noted that she had been ambulating without difficulty. See AR at 24, 408. 16 In April 2018, however, plaintiff suffered a dural tear of the lumbar spine, 17 which required surgery involving bilateral paraspinous muscle flap reconstruction, 18 coverage of the dural tear, and an open wound of the lumbar spine. See AR at 24, 19 446. Once discharged, she was able to ambulate independently. AR at 24, 440. 20 In July 2018, plaintiff underwent a consultative orthopedic examination with 21 Dr. Jerry Chuang. See AR at 376-80. She exhibited a limp and abnormal gait with 22 antalgia, and was unable to toe or heel walk. AR at 25, 377. She could squat and 23 rise but only slowly, although she did not use any assistive device to ambulate. Id. 24 Dr. Chuang’s examination of her cervical spine revealed tenderness to palpation 25 and muscle spasm. Id. Range of motion was painful and limited with flexion of 45 26 degrees and extension of 10 degrees. AR at 25, 377-78. Her lumbar spine 27 revealed tenderness to palpation and muscle spasm too. AR at 25, 378. Range of 28 9 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 10 of 19 Page ID #:701

1 motion was also painful, limited with flexion of 40 degrees and extension of 10 2 degrees. Id. Her straight-leg raising test was positive in the supine position 3 bilaterally and in the seated position bilaterally to 60 degrees. Id. Lasegue’s Test 4 and Faber’s Test were both negative. Id. 5 In addition, findings from her extremities were unremarkable except for the 6 knees, which showed tenderness on palpation and painful range of motion limited 7 to 120 degrees flexion in both knees. AR at 25, 378-79. Neurologically, motor 8 strength was 4/5 in the lower extremities, 4+/5 in the left upper extremity, and 5/5 9 in the right upper extremity. AR at 25, 379. She had decreased sensation to light 10 touch in the left L3 to S2 dermatomes. Id. 11 Based on these findings, Dr. Chuang diagnosed plaintiff with lumbosacral 12 radiculopathy with failed back syndrome status post lumbar spine surgery with 13 residual moderate weakness in bilateral lower extremities, mild bilateral knees 14 degenerative joint disease, and mild cervical radiculopathy causing headache and 15 mild weakness in the left upper extremity. AR at 25, 379-80. 16 An August 2018 X-ray of plaintiff’s lumbar spine confirmed her history of 17 fusion and laminectomy, and noted mild diffuse degenerative disc disease. See AR 18 at 24, 560. She was treated with facet injections for pain relief along with physical 19 therapy. See 24, 562, 568-74. The therapy records indicate that her rehabilitation 20 potential was “good.” AR at 24, 573. Subsequent treatment records show that she 21 had a stable, non-antalgic gait. AR at 24, 565. A September 2018 X-ray revealed 22 stable laminectomy and pedicle screws. See AR at 24, 567. 23 Records from October 2018 indicate that plaintiff could ambulate without 24 complaints, exhibited normal gait, 5/5 bilateral lower extremity strength, and her 25 lumbar incision had healed. AR at 24, 578. In terms of pain, she reported 26 treatment for pain management, including a visit to her pain management doctor in 27 September 2018 due to mild intermittent burning in the anterior thigh areas. See 28 10 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 11 of 19 Page ID #:702

1 id. 2 Finally, the ALJ took into account plaintiff’s history of obesity, which 3 documented body mass index scores over 30. AR at 25, 404, 407, 410, 422, 425. 4 The ALJ considered the combined effects of obesity and plaintiff’s other severe 5 impairments on her fatigue, pain, and overall functional capacity pursuant to SSR 6 02-1p.2 See AR at 25. 7 Plaintiff makes three main arguments in support of her contention that the 8 ALJ’s reliance on the objective medical evidence was not a proper reason to 9 discount her testimony. First, she argues that the ALJ failed to connect any 10 specific portions of her testimony to the parts of the record supporting the ALJ’s 11 decision. See P. Mem. at 14. While the ALJ’s analysis could have been more 12 explicit, the court finds that, on balance, the ALJ’s juxtaposition of plaintiff’s 13 testimony with the inconsistent medical evidence is sufficiently clear for the court 14 to evaluate. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (ALJs are 15 not required to “perform a line-by-line exegesis of the claimant’s testimony, nor do 16 [the regulations] require ALJs to draft dissertations when denying benefits” 17 (citation omitted)). In fact, the ALJ expressly identified a particularly important 18 inconsistency between the objective medical record and plaintiff’s claim that her 19 pain worsened about two months after her April 2018 surgery. See AR at 23, 45- 20 46. The ALJ acknowledged that, in July 2018, Dr. Chuang’s orthopedic 21 examination revealed multiple issues that appear to support plaintiff’s claim of 22 increased pain, including a limp, abnormal gait with antalgia, and limited range of 23 motion due to pain. See AR at 24; Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th 24 Cir. 2014) (ALJ must not cherrypick evidence). But by late 2018, plaintiff was 25 ambulating without complaints and treating mild intermittent burning pain in her 26 27 2 SSR 02-1p was rescinded and replaced by SSR 19-2p on May 20, 2019, after 28 the ALJ’s decision. 11 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 12 of 19 Page ID #:703

1 anterior thigh areas with injections and physical therapy. See AR at 24; Celaya v. 2 Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (ALJ’s finding that symptoms were 3 controlled was clear and convincing reason to reject plaintiff’s testimony). 4 Plaintiff is correct that treatment with injections is not conservative, but the court 5 will not second-guess the ALJ’s determination that, taking all of the objective 6 medical evidence into account, plaintiff’s overall condition contradicted her claims 7 of incapacity. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where 8 evidence is susceptible to more than one rational interpretation, it is the ALJ’s 9 conclusion that must be upheld.” (citation omitted)). 10 Second, plaintiff argues the ALJ cherrypicked evidence to support his 11 conclusion that plaintiff did not exhaust treatment options. See P. Mem. at 14-15 12 (citing AR at 23). But as defendant points out, that page of the decision does not 13 actually say what plaintiff claims. Plaintiff may have intended to cite page 24 of 14 the AR in which the ALJ states that plaintiff pursued conservative treatment, 15 including oral pain medications, facet injections, and lumbar epidural steroid 16 injections. To the extent the ALJ intended to rely on these treatment forms as a 17 reason to reject plaintiff’s testimony, the court agrees they are not actually 18 conservative. See Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 19 2011) (steroid injections and certain types of oral pain medication, like narcotics, 20 are not considered conservative treatments). Nonetheless, this error was harmless 21 because the ALJ found other inconsistencies between plaintiff’s testimony and the 22 objective medical record. 23 Third, plaintiff argues that even if inconsistency with the medical evidence 24 was a proper reason to reject her testimony, it could not have been the only reason. 25 See P. Mem. at 14; Burch, 400 F.3d at 680 (“[A]n ALJ may not reject a claimant’s 26 subjective complaints based solely on a lack of medical evidence to fully 27 corroborate the alleged severity of pain.” (citation omitted)). Defendant responds 28 12 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 13 of 19 Page ID #:704

1 that “there is an analytical difference between a lack of corroborating medical 2 evidence and a contradiction between subjective claims and existing medical 3 evidence.” Def.’s Mem. in Supp. of Answer (“D. Mem.”) at 4 (quoting Sills v. 4 Astrue, 2013 WL 782076, at *3 (C.D. Cal. Mar. 1, 2013)). The court agrees with 5 defendant that the inconsistencies identified by the ALJ – specially those 6 concerning plaintiff’s condition in mid and late 2018 – rise to the level of 7 contradictions, rather than a mere lack of corroborating medical evidence. 8 “Contradiction with the medical record is a sufficient basis for rejecting the 9 claimant’s subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 10 F.3d 1155, 1161 (9th Cir. 2008) (citation omitted). Thus, this reason alone would 11 be sufficiently specific, clear, and convincing to discount plaintiff’s symptom 12 testimony. Nonetheless, the ALJ provided additional reasons. 13 b. Prior Inconsistent Statements 14 The ALJ also noted inconsistencies between plaintiff’s testimony and prior 15 statements made to her providers. Specifically, after her surgeries in September 16 2017, February 2018, and April 2018, she reported being “very happy” with the 17 procedures. See AR at 24, 359, 411. And on October 10, 2018, plaintiff told a 18 provider that she was “[o]verall . . . happy with her outcome to date.” See AR at 19 24, 578. 20 The court agrees with plaintiff that her February and March 2018 statements 21 are not necessarily inconsistent with her recent testimony. She testified that her 22 pain worsened about two months after her April 2018 surgery, after she made those 23 first two statements. Thus, those statements are more representative of a temporary 24 period of reprieve, rather than lasting relief. See Davis v. Saul, 2021 WL 2333256, 25 at *6 (S.D. Cal. June 7, 2021) (ALJ “erred in relying on cherry-picked instances of 26 temporary relief to reject Plaintiff’s subjective symptom testimony” (citations 27 omitted)). 28 13 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 14 of 19 Page ID #:705

1 On the other hand, plaintiff’s October 2018 statement is indeed inconsistent 2 with plaintiff’s later testimony. Prior inconsistent statements by a claimant may be 3 a valid clear and convincing reason to discount her testimony. See Ghanim, 763 4 F.3d at 1163 (prior inconsistent statements regarding symptoms may be 5 considered); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (accepting 6 reason that plaintiff made inconsistent statements regarding the severity of his 7 diabetic symptoms). 8 Plaintiff argues the ALJ selectively cited the record, which also shows that 9 on October 8, 2018 her “pain management physician” reported that plaintiff was 10 having continued pain with activity. See P. Mem. at 16 (citing AR at 568). As 11 defendant points out, however, the report that plaintiff cites is from her physical 12 therapy provider, not a physician. In any event, plaintiff does not explain why her 13 description of her symptoms to the physical therapy provider was markedly 14 different from what she told her physician just two days later. 15 Plaintiff also contends the ALJ is focusing too much on plaintiff’s 16 statements about being happy with her progress. See P. Mem. at 16-17. She 17 argues that the ALJ failed to consider the record as a whole, which is more 18 reflective of her overall condition than isolated evidence of temporary 19 improvement. See id. But the ALJ did consider all relevant evidence, some of 20 which tended to support plaintiff’s testimony. As previously noted, the ALJ 21 described several treatment records that recounted plaintiff’s significant history of 22 lumbar spinal stenosis and radiculopathy, as well as her many surgeries. But the 23 record also shows many normal or mild findings after plaintiff’s last surgery on 24 April 2018. Those unremarkable findings bolster plaintiff’s October 2018 report 25 that she was happy with her progress. 26 Accordingly, this was also a specific, clear, and convincing reason, backed 27 by substantial evidence, to discount plaintiff’s symptom testimony. 28 14 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 15 of 19 Page ID #:706

1 c. Inconsistencies with Medical Opinions 2 Next, the ALJ highlighted differences between plaintiff’s symptom 3 testimony and the opinions of two consultative examiners. As already discussed, 4 the consultative examinations were performed by Dr. Lim in February 2018 and 5 Dr. Chuang in July 2018. The ALJ noted that both physicians opined that plaintiff 6 was capable of performing work in the light exertion range. See AR at 25, 327-30, 7 376-80. Dr. Chuang assessed more restrictive limitations than Dr. Lim, which the 8 ALJ concluded were more consistent with the record given that Dr. Lim’s opinion 9 predated plaintiff’s two most recent surgeries. See AR at 26. Accordingly, the 10 ALJ adopted Dr. Chuang’s more restrictive limitations, which reduced plaintiff’s 11 ability to stand and/or walk to four hours out of an eight-hour workday and 12 provided for various non-exertional limitations. See AR at 26, 376-80. 13 As previously discussed, plaintiff testified that, among other things, she 14 cannot walk for more than six minutes before her pain requires her to lie down for 15 half an hour. AR at 50-51. She alleges that her ability to stand and lift objects is 16 also severely limited. See AR at 50-51, 243-44. But her testimony is inconsistent 17 with Dr. Chuang’s opinion that she can walk or stand four hours out of an eight- 18 hour workday and lift 10 pounds frequently or 20 pounds occasionally. See AR at 19 380. Plaintiff does not argue the ALJ erred in concluding that Dr. Chuang’s 20 opinion was reasonable and supported by the objective medical evidence. See AR 21 at 25-26. Thus, this was also a specific, clear, and convincing reason to discount 22 her testimony. See Kallenbach v. Berryhill, 766 F. App’x 518, 521 (9th Cir. 2019) 23 (inconsistencies between the medical opinion evidence and plaintiff’s subjective 24 testimony may be a specific, clear, and convincing reason to discount the 25 testimony). 26 d. Inconsistencies with Activities of Daily Living 27 Finally, the ALJ determined that plaintiff’s activities of daily living 28 15 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 16 of 19 Page ID #:707

1 (“ADLs”) appeared to be compatible with an ability to sustain the work activities 2 allowed by the RFC. See AR at 27. The ALJ noted that in August 2016, after her 3 first back surgery, plaintiff reported she could perform various household chores, 4 such as cooking, washing dishes, and doing laundry, albeit with breaks. See id. 5 (citing AR at 243-44). Plaintiff also claimed she was able to carry groceries from 6 her car to the entrance of her house, and was able to take her children to and from 7 school. Id. (citing AR at 242-43). Further, at the December 2018 hearing, plaintiff 8 testified that she maintained the ability to drive, and that she actually drives to her 9 sister’s home and takes her children to and from school most of the time. See id. 10 (citing AR at 42-44). Plaintiff also cooks for about half an hour, after which she 11 reportedly has to lie down or take a break. Id. (citing AR at 43). 12 “[I]f a claimant engages in numerous daily activities involving skills that 13 could be transferred to the workplace, the ALJ may discredit the claimant’s 14 allegations upon making specific findings relating to those activities.” Burch, 400 15 F.3d at 681 (citations omitted). Here, the court is not convinced that the ADLs 16 plaintiff testified about are inconsistent with her symptom testimony. Although 17 plaintiff testified that she can perform several ADLs, the ALJ did not adequately 18 consider plaintiff’s testimony that she can only do those activities for a small 19 period of time. See Reddick, 157 F.3d at 722 (“Only if the level of activity were 20 inconsistent with Claimant’s claimed limitations would these activities have any 21 bearing on Claimant’s credibility.” (emphasis added)). For example, she reported 22 that she has to take breaks when doing chores, cannot drive for more than 20 23 minutes, and can only walk for about five or six minutes. See AR at 50-51, 243- 24 44. Notably, the vocational expert testified that plaintiff would not be able to 25 perform any jobs if she indeed needed as many breaks as she testified. See AR at 26 64-65; Reddick, 157 F.3d at 722 (finding plaintiff’s symptom testimony was 27 consistent with ADLs because they were “sporadic and punctuated with rest”); 28 16 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 17 of 19 Page ID #:708

1 Trevizo, 871 F.3d at 682 (“[M]any home activities are not easily transferable to 2 what may be the more grueling environment of the workplace, where it might be 3 impossible to periodically rest or take medication.” (cleaned up)). 4 In support of its argument that the ADLs contradict plaintiff’s symptom 5 testimony, defendant cites a case in which the Ninth Circuit treated a claimant’s 6 ability to fix meals, do laundry, work in the yard, and occasionally care for a child 7 as evidence of his ability to work. See D. Mem. at 6-7 (citing Morgan v. Comm’r 8 of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). But the functional 9 limitation at issue in that case was a lack of motivation and concentration. See 10 Morgan, 169 F.3d at 600. The plaintiff’s ADLs clearly contradicted his claims of 11 severe limitations in those specific functional areas. Additionally, the Ninth 12 Circuit found that the plaintiff was able to spend “a substantial part of his day 13 engaged in pursuits involving the performance of physical functions that are 14 transferable to a work setting.” See id. Here, again, plaintiff testified that although 15 she can perform certain ADLs, she only does so for relatively small periods of time 16 before needing rest. 17 For these reasons, the court finds that plaintiff’s symptom testimony was not 18 inconsistent with her statements about ADLs. Thus, this was not a convincing 19 reason to discount her symptom testimony. But this error was harmless because 20 the ALJ identified three other specific, clear, and convincing reasons, supported by 21 substantial evidence, to discount plaintiff’s symptom testimony. 22 B. The Court Rejects Plaintiff’s Vague Constitutional Challenge 23 On September 8, 2021, several months after defendant filed her 24 Memorandum, plaintiff filed a Notice of New Authority. In the Notice, she states 25 that the U.S. Department of Justice’s Office of Legal Counsel issued an opinion on 26 July 8, 2021 that casts significant doubt on the constitutionality of the appointment 27 of the prior Commissioner of Social Security. Notice at 1. Plaintiff notes she filed 28 17 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page 18 of 19 Page ID #:709

1 her claim for benefits on May 5, 2016, participated in a hearing on December 19, 2 2018, received the ALJ’s adverse decision on March 1, 2019,3 and was denied 3 review by the Appeals Council on January 29, 2020. Id. at 2. She indicates that 4 Andrew Saul held the office of Commissioner of Social Security as the sole person 5 dischargeable for cause only between June 17, 2019 and July 11, 2021. Id. at 1-2. 6 The court is puzzled by plaintiff’s filing, which does not explain whether she 7 is seeking any particular type of relief as a result of the alleged constitutional 8 problem with the former Commissioner’s appointment. Plaintiff had never raised 9 the issue prior to the filing of her Notice. To try to ascertain the nature of 10 plaintiff’s argument, the court reviewed other social security cases in which 11 plaintiff’s counsel also participated and raised the issue. From that, it appears 12 plaintiff intended to argue that the Commissioner’s final decision in this case arose 13 from an unconstitutional administrative process. See, e.g., Dareth T. v. Kijakazi, 14 2022 WL 671540, at *2 (C.D. Cal. Mar. 7, 2022). Specifically, the allegedly 15 unconstitutional removal provision rendered Saul’s tenure as Commissioner 16 unconstitutional, which in turn tainted his delegation of authority to the assigned 17 ALJ and the Appeals Council to consider and decide plaintiff’s case. See id. 18 The court will not address each of the arguments plaintiff’s counsel 19 presented in other cases but not here. The court finds only that it is not convinced 20 plaintiff’s constitutional challenge warrants reversal here, for two reasons. First, 21 the Ninth Circuit recently opined that “the possible invalidity of a restriction on the 22 removal of an official does not render invalid the appointment of the official.” See 23 Toni D. M. v. Kijakazi, 2022 WL 423494, at *2 (C.D. Cal. Jan. 5, 2022) (citing 24 Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021)). Second, 25 plaintiff has not even attempted to show any connection between the allegedly 26 unconstitutional removal clause and the ALJ’s or Appeals Council’s decision 27 28 3 The date of the ALJ’s decision is actually March 6, 2019. See AR at 28. 18 Case 2:20-cv-02775-SP Document 30 Filed 03/28/22 Page19o0f19 Page ID#:710

1 || denying her benefits. See id. at *3 (citing other cases on point); Dareth T., 2022 2 || WL 671540, at *3 (same). Accordingly, the court rejects plaintiff's incomplete 3 || constitutional challenge. 4 V. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that Judgment shall be entered 7 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 8 || this action with prejudice. ' Pep 11 | DATED: March 28, 2022 SHERI PYM 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19