1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SONJA R., ) Case No. ED CV 19-1631-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) 18 19 I. 20 INTRODUCTION 21 On August 27, 2019, plaintiff Sonja R. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking review of a denial of a period of disability, disability insurance benefits 24 (“DIB”), and supplemental security income (“SSI”). The parties have fully briefed 25 the issues in dispute, and the court deems the matter suitable for adjudication 26 without oral argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 Administrative Law Judge (“ALJ”) improperly evaluated the opinion of plaintiff’s 1 treating psychiatrist; and (2) whether the ALJ improperly considered plaintiff’s 2 testimony. Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 6-18; 3 see Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-10. 4 Having carefully studied the parties’ briefs, the Administrative Record 5 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 6 the ALJ properly evaluated the opinion of plaintiff’s treating psychiatrist, Dr. Renu 7 Shishodia, and properly discounted plaintiff’s subjective testimony about her 8 alleged need to keep her legs elevated. The court therefore affirms the decision of 9 the Commissioner denying benefits. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 Plaintiff, who was 38 years old on the alleged disability onset date, is a high 13 school graduate, attended technical college, and has a phlebotomy certificate. AR 14 at 44, 79, 1345. Plaintiff has past relevant work as a surgical technician and 15 laboratory assistant. AR at 71, 1356-57. 16 On November 17, 2012, plaintiff filed an application for a period of 17 disability and DIB, alleging an onset date of October 26, 2012. AR at 79. Plaintiff 18 claimed she suffered from deep vein thrombosis, bipolar disorder, cancer, and 19 hypertension. Id. Plaintiff’s application was initially denied on June 27, 2013. 20 AR at 79-91. 21 Plaintiff requested a hearing, which the then-assigned ALJ, Kenneth Ball, 22 held on March 4, 2016. AR at 36. The ALJ denied plaintiff’s claims on March 23, 23 2016. AR at 15-29. Plaintiff filed a timely request for review of the ALJ’s 24 decision, but the Appeals Council denied the request for review on May 27, 2016. 25 AR at 2-8. Accordingly, the ALJ’s decision became the final decision of the 26 Commissioner. 27 Plaintiff sought review of the decision in this court. On July 16, 2018, the 28 1 undersigned reversed the Commissioner’s decision and remanded the matter for 2 further administrative proceedings. AR at 1408-34. 3 The Commissioner assigned ALJ Josephine Arno to preside over the 4 remanded matter. AR at 1504-08. Plaintiff had filed a duplicative claim for DIB 5 and a subsequent claim for SSI on September 6, 2016. AR at 1437. The new 6 assigned ALJ consolidated plaintiff’s subsequent claims with the remanded claims. 7 AR at 1311. 8 The ALJ held the remanded hearing on May 31, 2018. AR at 1340. 9 Plaintiff, represented by counsel, appeared and testified at the hearing. AR at 10 1345-54. The ALJ also heard testimony from David Reinhardt, a vocational 11 expert. AR at 1356-61. The ALJ denied plaintiff’s claims for benefits on June 24, 12 2019. AR at 1311-31. 13 Applying the well-established five-step sequential evaluation process, the 14 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 15 since October 26, 2012, the alleged onset date. AR at 1314. 16 At step two, the ALJ found plaintiff suffered from several severe 17 impairments: deep vein thrombosis of the right lower extremity and chronic venous 18 insufficiency; pulmonary embolism; post thrombotic syndrome; right lower 19 extremity ulcer; obesity; dermatofibrosarcoma protuberans of the left wrist, status 20 post surgical excision in October 2011 and radiation finishing in February 2012; 21 left wrist and hand osteoarthritis and tendinosis; left shoulder osteoarthritis and 22 tendinosis; generalized anxiety disorder; and bipolar disorder. Id. 23 At step three, the ALJ found plaintiff’s impairments, whether individually or 24 in combination, did not meet or medically equal one of the listed impairments set 25 forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 1316. 26 27 28 1 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 2 determined that plaintiff had the RFC to perform light work with the limitations 3 that she could: stand for two hours total in an eight-hour workday; walk for two 4 hours total in an eight-hour workday; sit for six-hours total in an eight-hour 5 workday; frequently reach in all directions, handle, finger, feel, push, and pull with 6 the bilateral upper extremities; occasionally operate foot controls with the right 7 lower extremity; frequently operate foot controls with the left lower extremity; 8 frequently climb ladders, ropes, or scaffolds; frequently climb ramps or stairs; 9 frequently balance, stoop, kneel, crouch, or crawl; frequently walk on uneven 10 terrain; and occasionally operate a motor vehicle on the job. AR at 1319. The ALJ 11 further limited plaintiff to occasional exposure to unprotected heights, moving 12 mechanical parts, humidity and wetness, dust, odors, fumes, pulmonary irritants, 13 extreme cold, extreme heat, and vibration. Id. The ALJ also determined plaintiff: 14 is able to understand, remember, and carry out simple, routine work tasks but not at 15 a production rate pace, for example, no assembly line work; may tolerate 16 occasional workplace changes; may have frequent interaction with coworkers and 17 supervisors; and may have occasional contact with the public. Id. 18 The ALJ found, at step four, that plaintiff was unable to perform her past 19 relevant work as a surgical technician or lab assistant. AR at 1329. 20 At step five, the ALJ determined that, considering plaintiff’s age, education, 21 work experience, and RFC, there are jobs that exist in significant numbers in the 22 national economy that plaintiff can perform, including as an electronics worker, 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 shoe packer, or office helper. AR at 1329-30. The ALJ accordingly concluded 2 plaintiff was not under a disability, as defined in the Social Security Act, at any 3 time from October 26, 2012 through the date of her decision. AR at 1331. 4 Plaintiff did not request review by the Appeals Council, so the ALJ’s 5 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 Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines the ALJ’s findings are based on legal 13 error or are not supported by substantial evidence in the record, the court may 14 reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 “Substantial evidence is more than a mere scintilla, but less than a 18 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 19 evidence is such “relevant evidence which a reasonable person might accept as 20 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 21 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 22 substantial evidence supports the ALJ’s finding, the reviewing court must review 23 the administrative record as a whole, “weighing both the evidence that supports 24 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 25 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 26 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 27 marks omitted). If the evidence can reasonably support either affirming or 28 1 reversing the ALJ’s decision, the reviewing court “may not substitute its judgment 2 for that of the ALJ.” Id. (internal quotation marks omitted). 3 IV. 4 DISCUSSION 5 A. The ALJ Properly Evaluated the Treating Physician’s Opinion 6 Plaintiff argues the ALJ failed to properly consider the opinion of her 7 treating psychiatrist, Dr. Renu Shishodia. P. Mem. at 7. Specifically, plaintiff 8 contends the ALJ failed to provide legally sufficient reasons for giving Dr. 9 Shishodia’s opinion little weight. Id. Defendant counters the ALJ’s decision was 10 reasonable and that plaintiff does not actually argue Dr. Shishodia’s opinion was 11 consistent with the underlying record. D. Mem. at 3. Defendant also argues Dr. 12 Shishodia’s opinion was the only medical opinion that suggested severe 13 limitations. See id. 14 To determine whether a claimant has a medically determinable impairment, 15 the ALJ considers different types of evidence, including medical evidence. 20 16 C.F.R. §§ 404.1527(b), 416.927(b).2 The regulations distinguish among three 17 types of physicians: (1) treating physicians; (2) examining physicians; and (3) non- 18 examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Lester v. 19 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating 20 physician’s opinion carries more weight than an examining physician’s, and an 21 examining physician’s opinion carries more weight than a reviewing physician’s.” 22 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 23 §§ 404.1527(c)(1)-(2), 416.027(c)(1)-(2). The opinion of the treating physician is 24 generally given the greatest weight because the treating physician is employed to 25 26 2 The Social Security Administration issued new regulations effective March 27 27, 2017. All regulations cited in this decision are effective for cases filed prior to 28 March 27, 2017. 1 cure and has a greater opportunity to understand and observe a claimant. Smolen v. 2 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 3 751 (9th Cir. 1989). 4 Nevertheless, the ALJ is not bound by the opinion of a treating physician. 5 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 6 ALJ must provide clear and convincing reasons for giving it less weight. Id. If the 7 treating physician’s opinion is contradicted by other opinions, the ALJ must 8 provide specific and legitimate reasons, supported by substantial evidence, for 9 rejecting it. Id. Likewise, the ALJ must provide specific and legitimate reasons, 10 supported by substantial evidence, in rejecting the contradicted opinions of 11 examining physicians. Lester, 81 F.3d at 830-31. The opinion of a non-examining 12 physician, standing alone, cannot constitute substantial evidence. Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006). 14 1. Dr. Shishodia’s Findings and Opinion 15 Dr. Shishodia, a psychiatrist, treated plaintiff from at least early 2017 16 through early 2019. See AR at 1747-77. At a visit on April 18, 2017, plaintiff 17 exhibited normal thoughts, perception, speech, and behavior and appeared in no 18 distress, well-groomed, alert, and oriented to person, place, and time. AR at 1776. 19 However, she also looked depressed, sad, and anxious. Id. Dr. Shishodia 20 concluded plaintiff suffered from bipolar disorder and generalized anxiety 21 disorder. Id. She referred plaintiff for psychotherapy. AR at 1777. 22 Dr. Shishodia treated plaintiff at least three more times in 2017. At each of 23 those examinations, plaintiff appeared to have normal thoughts, perception, speech, 24 and behavior. See AR at 1770, 1772, 1774. She continued to be well-groomed, 25 alert, oriented, and in no apparent distress. See id. Although plaintiff appeared sad 26 during each of those visits, she no longer appeared depressed or anxious. See id. 27 During her August 25, 2017 visit, plaintiff also reported she slept all day for three 28 1 days, and still bites herself or pulls her hair when angry. See AR at 1772. 2 In 2018, Dr. Shishodia consistently reported plaintiff had normal thoughts, 3 perception, speech, and behavior, and continued to appear well-groomed, alert, 4 oriented, and in no apparent distress. See AR at 1762, 1764, 1766, 1768. At her 5 February and May appointments, plaintiff appeared sad but not depressed or 6 anxious. See AR at 1766, 1768. She did, however, report issues with her sleep and 7 low moods with crying spells. See id. But her treatment notes indicate medication 8 was helping with those symptoms. See AR at 1762, 1764, 1768. At her last two 9 2018 appointments on July and October, Dr. Shishodia observed plaintiff did not 10 appear depressed, sad, or anxious. See AR at 1762, 1764. 11 On February 19, 2019, Dr. Shishodia completed a Mental Residual 12 Functional Capacity Questionnaire and an Evaluation Form for Mental Disorders 13 (“2019 opinion”). AR at 1747-48, 1750-53. During the examination, plaintiff 14 appeared well-groomed, oriented, and in no apparent acute distress but with a sad, 15 depressed, and anxious mood. See AR at 1750-51. Plaintiff reported excessive 16 anxiety, restlessness, irritability, unstable moods, and unstable sleep, as well as 17 episodes of biting herself and pulling her hair out when agitated. See AR at 1750. 18 Plaintiff also reported passive death wishes, panic attacks, and feelings of 19 worthlessness, hopelessness, and helplessness. See AR at 1751. 20 As a result of plaintiff’s evaluation, Dr. Shishodia reiterated her previous 21 diagnoses of bipolar disorder and generalized anxiety disorder. See AR at 1753. 22 Using a check-the-box form, Dr. Shishodia opined plaintiff had moderate 23 functional loss in her mental abilities needed to: understand, remember, and carry 24 out simple and detailed tasks and instructions; maintain attention for a two-hour 25 segment; and interact appropriately with the general public, co-workers, and 26 supervisors. See AR at 1747. Dr. Shishodia further opined plaintiff had marked 27 functional loss in her mental abilities needed to: maintain regular attendance and be 28 1 punctual within customary, usually strict tolerances; and complete a normal 2 workday and workweek without interruptions from psychologically-based 3 symptoms. See id. Based on these opinions, Dr. Shishodia gave plaintiff a poor 4 prognosis, determined she was not competent to manage her own funds, and 5 calculated she would miss more than four days of work per month due to her 6 impairments or treatment. See AR at 1748, 1753. 7 On March 12, 2019, plaintiff presented for another examination with Dr. 8 Shishodia. The results were once again unremarkable, and she did not appear 9 depressed, sad, or anxious. See AR at 1760. Although plaintiff complained that 10 her condition got worse, she also admitted she stopped taking at least one of her 11 medications for two weeks. See id. 12 2. The ALJ’s Findings 13 The parties agree that, because Dr. Shishodia’s opinion was contradicted, the 14 ALJ had to provide specific and legitimate reasons, supported by substantial 15 evidence, for rejecting it. P. Mem. at 7, 13; D. Mem. at 2; Smolen, 80 F.3d at 16 1285. The ALJ gave little weight to Dr. Shishodia’s opinion for five reasons. 17 a. Insufficient References to Medically Acceptable Objective 18 Clinical or Diagnostic Findings 19 The ALJ first found Dr. Shishodia failed to provide sufficient references to 20 medically acceptable objective clinical or diagnostic findings to support her 21 opinion. AR at 1328. Plaintiff argues the ALJ failed to consider the objective 22 clinical findings that Dr. Shishodia recorded in the evaluation form completed on 23 the same day as the questionnaire. P. Mem. at 8. But basing an opinion on a single 24 examination is hardly sufficient, especially when Dr. Shishodia had an extensive 25 medical file for plaintiff going back at least two years. See Steven A. v. Saul, 2021 26 WL 275492, at *4 (C.D. Cal. Jan. 27, 2021) (doctor sufficiently referenced 27 medically acceptable objective findings in opinion by relying on her own 28 1 observations during several sessions over two years); 20 C.F.R. § 404.1527(c)(3) 2 (“The more a medical source presents relevant evidence to support a medical 3 opinion, particularly medical signs and laboratory findings, the more weight we 4 will give that medical opinion.”). Thus, this reason for discounting Dr. Shishodia’s 5 opinion was specific, legitimate, and supported by substantial evidence. 6 b. Lack of Objective Medical Evidence Support 7 The ALJ determined the objective medical evidence did not support Dr. 8 Shishodia’s 2019 opinion. AR at 1328. Although plaintiff argues the ALJ erred in 9 discounting Dr. Shishodia’s opinion for this reason (P. Mem. at 9-10), she points to 10 little in the way of objective medical evidence in the record that might support the 11 opinion that plaintiff was significantly mentally impaired. 12 The ALJ concluded that no objective medical evidence supported Dr. 13 Shishodia’s opinion that plaintiff has significant mental limitations including 14 marked limitations in regular attendance, marked limitations in the ability to 15 complete a normal workweek, missing more than four workdays per month, the 16 inability to complete tasks satisfactorily, and poor adaptive functions. See AR at 17 1328, 1747. Plaintiff argues that the ALJ fails to explain how Dr. Shishodia’s 18 2018 findings that plaintiff exhibited normal thought, speech, perception, and 19 behavior undermine her opinion. P. Mem. at 9. It may be that a claimant could 20 exhibit such normal behavior and function while still suffering the marked 21 limitations found by Dr. Shishodia. But plaintiff does not point to anything in Dr. 22 Shishodia’s findings that would support such limitations, and there does not appear 23 to be anything, as the ALJ found. 24 The only thing plaintiff points to is the ALJ’s failure to mention that during 25 plaintiff’s November 17, 2017 examination, Dr. Shishodia noted her bipolar 26 disorder was worsening. P. Mem. at 10. But the probative value of that remark is 27 undermined by the fact that Dr. Shishodia included the same note on each of her 28 1 visit summaries from April 2017 to October 2018. See AR at 1762-77. She never 2 elaborated on the remark and continued to report relatively stable findings at each 3 of those visits. ALJs are not required to discuss every possible piece of evidence, 4 especially if it is not probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 5 1012 (9th Cir. 2003). Moreover, even if the ALJ erred in not considering that 6 specific notation, viewing the record as a whole, her conclusion that the objective 7 medical evidence did not support Dr. Shishodia’s opinion was specific, legitimate, 8 and supported by substantial evidence. 9 c. Inconsistency With Other Medical and Non-medical 10 Sources 11 The ALJ also determined evidence from other medical and non-medical 12 sources was inconsistent with Dr. Shishodia’s opinion. AR at 1328. As an 13 example, the ALJ pointed to the unremarkable findings of a 2014 consultative 14 psychiatric examination by Dr. Earbin Stanciell. Id. Dr. Stanciell noted plaintiff 15 had normal speech, mood, affect, thought process, thought content, cognition, 16 memory, concentration, and orientation. See id. (citing AR at 1194). In addition, 17 Dr. Stanciell reported plaintiff had no difficulty interacting with others, did not 18 complain of any psychotic symptoms, and had no problems maintaining 19 concentration. See id. (citing AR at 1195). Based on these observations, Dr. 20 Stanciell opined plaintiff would have: no limitations performing simple and 21 repetitive tasks; mild limitations performing detailed and complex tasks; mild 22 limitations performing work activities on a consistent basis without special or 23 additional supervision; mild limitations completing a normal workday or work 24 week; mild limitations accepting instructions and interacting with co-workers and 25 the public; and mild limitations handling usual work stresses, changes, and 26 demands. See AR at 1195. Plaintiff makes two main arguments against the ALJ’s 27 reliance on Dr. Stanciell’s opinion. 28 1 First, plaintiff argues the consultative examination was no more than a 2 cursory observation made during one physical examination. P. Mem. at 11. Thus, 3 she contends it cannot be substantial evidence to contradict the opinion of Dr. 4 Shishodia who knew and treated plaintiff for three years. Id. Dr. Stanciell’s 5 examination was not cursory as plaintiff argues. Dr. Stanciell performed a 6 complete psychiatric evaluation during which she examined plaintiff and reviewed 7 all of her medical and psychiatric history. See AR at 1192-96. 8 Second, plaintiff contends the ALJ’s RFC is inconsistent with Dr. Stanciell’s 9 opinion, and thus the ALJ erred in relying on that opinion over Dr. Shishodia’s. 10 See P. Mem. at 10-11. Plaintiff ignores that the ALJ gave Dr. Stanciell’s opinion 11 partial weight. AR at 1327. Thus, it makes sense that the ALJ ultimately decided 12 to formulate an RFC that was not entirely consistent with Dr. Stanciell’s opinion. 13 There is no rule that ALJs can only rely on opinions to which they give complete 14 weight. To the contrary, ALJs must resolve conflicts between medical opinions, 15 and ultimately formulate an RFC that is consistent with the evidence as a whole. 16 See Valentine v. Comm’r, 574 F.3d 685, 692 (9th Cir. 2009); Tackett v. Apfel, 180 17 F.3d 1094, 1097-98 (9th Cir. 1999); AR at 1328 (“The undersigned has adopted 18 those specific restrictions on a function-by-function basis that are best supported 19 by the objective evidence as a whole.”). 20 To that end, Dr. Stanciell’s contrary opinion may serve as substantial 21 evidence because it is more consistent with independent clinical findings and other 22 evidence than Dr. Shishodia’s opinion. See Thomas v. Barnhart, 278 F.3d 947, 23 957 (9th Cir. 2002). Specifically, in a different section of the decision titled 24 “Mental Medical Evidence Review,” the ALJ outlined evidence more consistent 25 with Dr. Stanciell’s opinion than Dr. Shishodia’s. See AR at 1237; Garrison v. 26 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“An ALJ can satisfy the substantial 27 evidence requirement by setting out a detailed and thorough summary of the facts 28 1 and conflicting clinical evidence, stating his interpretation thereof, and making 2 findings.” (internal quotation marks omitted)). All of this medical evidence, 3 ranging from 2012 to 2018, shows the ALJ did not simply isolate portions of the 4 record to support her decision as plaintiff argues. To the contrary, the record is 5 consistently clear that plaintiff’s mental health evaluations were relatively stable – 6 and thus more consistent with Dr. Stanciell’s opinion – leading up to Dr. 7 Shishodia’s opinion that plaintiff was significantly mentally impaired. See AR at 8 1327 (citing AR at 927 (December 2012 examination), 1192-96 (March 2014 9 examination), 1282 (December 2015 examination), 1770-77 (2017 examinations), 10 1762-68 (2018 examinations)); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 11 2014) (“A conflict between treatment notes and a treating provider’s opinions may 12 constitute an adequate reason to discredit the opinions of a treating physician . . . .” 13 (citation omitted)). 14 As such, the ALJ’s reasoning that Dr. Shishodia’s opinion was inconsistent 15 with other medical and non-medical evidence was specific, legitimate, and 16 supported by substantial evidence. 17 d. Contradiction Between Opinion and Effect of Medication 18 The ALJ further determined Dr. Shishodia’s opinion was contradicted by 19 evidence that medications improved plaintiff’s anxiety and depression. AR at 20 1328. In support of this reason, the ALJ cited two medical notes from 21 examinations performed by Dr. Patricia Bogema. Id. (citing AR at 1169, 1176). 22 Plaintiff argues those notes show that medication improved only her anxiety but 23 not her depression. P. Mem. at 11. She further contends any improvement does 24 not necessarily mean her mental impairments no longer seriously affected her 25 ability to function. See id. at 11-12. Finally, plaintiff argues those 2012 notes are 26 not necessarily representative of the record as a whole, which shows she has 27 periods of normal moods followed by depressive symptoms. See id. at 12. 28 1 The court agrees with plaintiff. The ALJ only cites to six medical reports 2 indicating medication helped plaintiff’s anxiety. See AR at 1322, 1328. All of this 3 evidence comes from 2013 and 2014 examinations, making it outdated and less 4 probative, given there is at least some evidence in the record that plaintiff’s mental 5 illness worsened in later years. See Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 6 1986) (“Where a claimant’s condition is progressively deteriorating, the most 7 recent medical report is the most probative.” (citation omitted)). In addition, the 8 ALJ failed to consider whether, and if so to what extent, improved anxiety 9 necessarily translated into improved function given that plaintiff also suffers from 10 bipolar disorder and depression. For these reasons, the court finds the ALJ’s 11 determination on this issue was not a legitimate reason supported by substantial 12 evidence to discount Dr. Shishodia’s opinion. 13 e. Use of Check-the-Box Form 14 Finally, the ALJ found Dr. Shishodia did not provide a supportable 15 explanation for her opinion because she used a check-the-box form and failed to 16 elaborate on her ratings. See AR at 1328. Plaintiff argues that such forms are no 17 less reliable than other forms. See P. Mem. at 8-9. She also claims that, contrary 18 to the ALJ’s findings, Dr. Shishodia provided ample explanations on the form. Id. 19 There are conflicting decisions from the Ninth Circuit concerning the 20 reliability of check-the-box forms. In some cases, the court has expressed a 21 preference for individualized medical opinions over check-the-box forms, 22 especially when the forms do not contain any explanation of the bases for the 23 physician’s conclusions. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); 24 Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). But recently, the court ruled 25 that check-the-box forms are no “less reliable than any other type of form.” 26 Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017). Thus, ALJs may not 27 reject the responses of treating physicians without specific and legitimate reasons 28 1 for doing so, “even where those responses were provided on a ‘check-the-box’ 2 form, were not accompanied by comments, and did not indicate to the ALJ the 3 basis for the physician’s answers.” Id. (citing Smolen, 80 F.3d at 1288). 4 There is no need for the court to resolve this inconsistency in the Ninth 5 Circuit precedent. Contrary to the ALJ’s findings, Dr. Shishodia complemented 6 her check-the-box opinion with several notes. See AR at 1747-48 (check-the-box 7 form), 1750-53 (evaluation notes from same day). Thus, this was not a legitimate 8 reason to discount the opinion here. 9 In sum, two of the ALJ’s reasons for discounting Dr. Shishodia’s opinion 10 were invalid. But those errors are harmless because the ALJ also provided three 11 specific and legitimate reasons, supported by substantial evidence, to discount the 12 opinion, and those reasons were sufficient without the other two. Accordingly, the 13 court finds the ALJ properly evaluated and discounted Dr. Shishodia’s opinion. 14 B. The ALJ Properly Evaluated Plaintiff’s Testimony 15 Plaintiff argues the ALJ improperly evaluated her testimony by ignoring her 16 statement that she needs to elevate her legs above her heart for 45 minutes to an 17 hour to alleviate swelling. See P. Mem. at 17; AR at 1348. Plaintiff argues the 18 ALJ had to address that statement and provide a specific, clear, and convincing 19 reason, supported by substantial evidence, to reject it. See id. at 17-18. 20 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 21 evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded 22 SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, 23 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not have the same 24 force and effect as statutes or regulations, they are binding on all components of 25 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). 26 In adopting SSR 16-3p, the Social Security Administration sought to “clarify 27 that subjective symptom evaluation is not an examination of an individual’s 28 1 character.” Id. at *2. 2 [SSR 16-3p] makes clear what our precedent already required: that 3 assessments of an individual’s testimony by an ALJ are designed to 4 evaluate the intensity and persistence of symptoms after the ALJ finds 5 that the individual has a medically determinable impairment(s) that 6 could reasonably be expected to produce those symptoms, and not to 7 delve into wide-ranging scrutiny of the claimant’s character and 8 apparent truthfulness. 9 Trevizo, 871 F.3d at 678 n.5 (internal quotation marks and alterations omitted). 10 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 11 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 12 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 13 produced objective medical evidence of an underlying impairment that could 14 reasonably be expected to produce the symptoms alleged. Id. Second, if the 15 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 16 must evaluate the intensity and persistence of the claimant’s symptoms and 17 determine the extent to which they limit her ability to perform work-related 18 activities. Id. In assessing intensity and persistence, the ALJ may consider: a 19 claimant’s daily activities; the location, duration, frequency, and intensity of the 20 symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, 21 and side effects of medication taken to alleviate the symptoms; other treatment 22 received; other measures used to relieve the symptoms; and other factors 23 concerning the claimant’s functional limitations and restrictions due to the 24 symptoms. Id. (citing 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; 25 Smolen, 80 F.3d at 1283-84 & n.8). If the ALJ rejects the claimant’s subjective 26 symptom statements at step two, the ALJ must provide “specific, clear, and 27 convincing” reasons, supported by substantial evidence in the record, for doing so. 28 1 Id. at 921, 929. 2 At the first step, the ALJ here found plaintiff’s medically determinable 3 impairments could reasonably be expected to cause the symptoms alleged. AR at 4 1320. At the second step, the ALJ discounted plaintiff’s symptom testimony about 5 having to keep her legs elevated based on inconsistencies with the objective 6 medical evidence and other evidence in the record, including plaintiff’s previous 7 statements. See AR at 1320-22. The ALJ also concluded that plaintiff’s need to 8 keep her legs elevated constituted merely conservative treatment. See AR at 1322. 9 Because plaintiff cleared step one and there was no evidence of malingering, the 10 ALJ’s reasons for discounting plaintiff’s symptom testimony had to be specific, 11 clear, and convincing and supported by substantial evidence. 12 Plaintiff argues she testified she is required to elevate her legs above her 13 heart every 45 minutes to an hour (P. Mem. at 15 (citing AR at 1348)); however, 14 that was not precisely her testimony. Rather than testifying she has to elevate her 15 legs every 45 minutes to an hour, at her second hearing in 2018, plaintiff testified 16 that when she takes a break, she lies down with her “legs elevated up to 45 minutes 17 to an hour for as long as [she] need[s] to, depending on the swelling.” AR at 1348. 18 At her first hearing in 2016, plaintiff testified she spends most of the day, 19 approximately six hours, with her right leg elevated above her heart. AR at 54-55. 20 Thus, her testimony overall is that she elevates her legs much of the day. 21 Plaintiff’s argument focuses on plaintiff’s testimony regarding her need to 22 elevate her legs, and contends the ALJ fails to offer any reason to discount this 23 testimony. P. Mem. at 17-18. But plaintiff ignores the ALJ’s evaluation of her 24 testimony regarding deep vein thrombosis and chronic venous insufficiency, which 25 are the conditions that allegedly require plaintiff to keep her legs elevated in the 26 first place. See AR at 54-55, 1319-22. More than once, the ALJ specifically 27 acknowledged plaintiff’s testimony that she elevates her legs. See AR at 1320, 28 1 1322. The ALJ also noted plaintiff’s complaints of difficulty sitting and standing 2 because of pain, swelling, leg ulcers, heaviness, and stiffness, all of which 3 allegedly limit plaintiff’s ability to stand and walk for extended periods. AR at 4 1320. 5 The ALJ ultimately determined plaintiff’s testimony about these symptoms 6 and limitations was inconsistent with the objective medical evidence and other 7 evidence in the record. See AR at 1320-22; Christine G., 402 F. Supp. 3d at 922 8 (in evaluating a claimant’s symptom testimony, the ALJ may consider the 9 consistency of the claimant’s statements); SSR 16-3p, 2017 WL 5180304, at *8 (if 10 a claimant’s testimony is inconsistent with the objective medical evidence and 11 other evidence, the ALJ will determine that his or her symptoms are less likely to 12 reduce his or her capacity to perform work-related activities). The ALJ pointed to 13 treatment notes from 2013 and 2014 showing plaintiff had a steady gait, normal 14 range of motion, and good strength. See AR at 1034 (Dec. 2013), 1054 (June 15 2013), 1173 (Feb. 2014). Treatment notes from May 2015 also show plaintiff 16 denied pain or numbness in her extremities or any other issues with her 17 muscoskeletal system. See AR at 1300. Further, the results from a 2019 18 consultative examination revealed plaintiff had no pain or swelling in her 19 extremities while in motion. See AR at 1727. The consultative physician also 20 noted plaintiff showed normal muscle bulk and good motor strength throughout her 21 body. See AR at 1728. The ALJ specifically considered plaintiff’s need to elevate 22 her legs to treat her conditions and indicated she found such need to be merely 23 conservative treatment. See AR at 1322 (citing AR at 1743); Parra v. Astrue, 481 24 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of conservative treatment is sufficient 25 to discount a claimant’s testimony regarding severity of an impairment.” (internal 26 quotation marks omitted)). 27 Considering the ALJ’s careful analysis of plaintiff’s testimony as to these 28 1 || issues, the court concludes the ALJ provided specific, clear, and convincing 2 || reasons, supported by substantial evidence in the record, to discount plaintiff's 3 || alleged need to keep her legs elevated. 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. 9 Pep 11 | DATED: March 29, 2021 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19