(SS) Briseno v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO C. BRISENO, Case No. 1:21-cv-00720-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, GRANTING 13 v. DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT, AND AFFIRMING 14 MARTIN O’MALLEY, THE DECISION OF THE COMMISSIONER COMMISSIONER OF SOCIAL OF SOCIAL SECURITY 2 15 SECURITY,1 (Doc. Nos. 15, 20) 16 Defendant. 17 18 19 Francisco C. Briseno (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 disability insurance benefits under the Social Security Act. (Doc. No. 1). The matter is currently 22 before the Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 23 15, 20-21). For the reasons set forth more fully below, the Court denies Plaintiff’s motion for 24 summary judgment, grants Defendant’s cross motion for summary judgment, and affirms the 25

26 1 The Court has substituted Martin O’Malley, who has been appointed the Acting Commissioner of Social Security, as the Defendant in this suit. See Fed. R. Civ. P. 25(d). 27 2 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. §636(c)(1). (Doc. No. 9). 28 1 Commissioner’s decision. 2 I. JURISDICTION 3 Plaintiff protectively filed for disability insurance benefits on August 21, 2018, alleging 4 an onset date of May 30, 2017. (AR 262-68). Benefits were denied initially (AR 119-33, 155- 5 59), and upon reconsideration (AR 135-53, 161-66). Plaintiff appeared before an Administrative 6 Law Judge (“ALJ”) on May 12, 2020, and at a subsequent telephonic hearing on September 15, 7 2020. (AR 45-118). Plaintiff was represented by counsel, and testified at the hearings. (Id.). On 8 November 4, 2020, the ALJ issued an unfavorable decision (AR 7-35), and on March 9, 2021 the 9 Appeals Council denied review (AR 1-6). The matter is now before this Court pursuant to 42 10 U.S.C. § 1383(c)(3). 11 II. BACKGROUND 12 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 13 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 14 summarized here. 15 Plaintiff was 43 years old at the time of the first hearing. (See AR 328). He completed 16 two years of college and has specialized training in information technology. (AR 282). He lives 17 with his wife and three children. (See AR 51-52). Plaintiff has work history as an information 18 systems operator/analyst, and help desk and information technology support. (AR 63-70, 109- 19 10). Plaintiff testified that she was unable to work during the relevant period because of chronic 20 back pain and “nerve damage.” (AR 47). At the first hearing, Plaintiff testified he is unable to 21 work because of “issues” with his back and hips, sciatic nerve issues in both legs, difficulty 22 grabbing things, facial pain, inability to walk more than half a block because of shortness of 23 breath and pain in his hips and legs, and limping. (AR 95-96, 98). At his second hearing, 24 Plaintiff testified he can walk half of an hour to an hour. (AR 53). Plaintiff reported he has to 25 constantly change positions from standing, laying down, and sitting every 20-30 minutes, and he 26 is in constant pain. (AR 53, 96-97). At the second hearing, Plaintiff testified that he has 27 migraines every day that “come and go” and last 10 to 15 minutes at a time. (AR 55-56). He is 28 depressed, has anxiety attacks every day, has difficulty sleeping, and has sleep apnea. (AR 50, 1 57, 102-04). Plaintiff testified that he was never psychiatrically hospitalized. (AR 62). Plaintiff 2 reported that he stopped using methamphetamine one and a half years “or so” before the first 3 hearing. (AR 105-06). He testified that he could not maintain a regular work schedule and would 4 miss several days or fall asleep at work because of weakness and drowsiness. (AR 108). 5 Medical expert, Dr. Steven Golub, testified at the second hearing that Plaintiff 6 experienced a myocardial infarction, “however, in the face of normal coronary arteries, it was 7 specific to the use of methamphetamines”; his ejection fraction was up to 55% “which is normal”; 8 he has mild degenerative arthritis of the right knee; and degenerative disease of the lumbar spine. 9 (AR 59-60). Dr. Golub testified that there was no MRI of the lumbar spine, and “the x-rays really 10 are not very significant.” (AR 60). Dr. Golub concluded that an appropriate set of restrictions for 11 someone with Plaintiff’s medical record would be lift and carry 10 pounds frequently and 20 12 pounds occasionally; sit for six to seven hours in an 8-hour day; stand and walk for six hours in 13 an 8-hour day; occasionally climb ramps and stairs; no climbing of ladders, ropes, or scaffolds; 14 occasional balancing, stooping, kneeling, crouching, and crawling; and no exposure to 15 unprotected heights, extremes in temperature, or exposure to vibration. (AR 61). 16 III. STANDARD OF REVIEW 17 A district court’s review of a final decision of the Commissioner of Social Security is 18 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 19 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 20 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 21 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 22 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 23 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 24 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 25 consider the entire record as a whole rather than searching for supporting evidence in isolation. 26 Id. 27 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 28 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 1 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 3 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 4 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 6 U.S. 396, 409-10 (2009). 7 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 8 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 9 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 10 activity by reason of any medically determinable physical or mental impairment which can be 11 expected to result in death or which has lasted or can be expected to last for a continuous period 12 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment 13 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of substantial 15 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 16 The Commissioner has established a five-step sequential analysis to determine whether a 17 claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the 18 Commissioner considers the claimant’s work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the 19 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 20 claimant is not disabled. 20 C.F.R. § 404.1520(b). 21 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 22 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 23 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from “any impairment or combination of 24 impairments which significantly limits [his or her] physical or mental ability to do basic work 25 activities,” the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s 26 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 27 claimant is not disabled. 20 C.F.R. § 404.1520(c). 28 At step three, the Commissioner compares the claimant’s impairment to severe 1 impairments recognized by the Commissioner to be so severe as to preclude a person from 2 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as 3 severe or more severe than one of the enumerated impairments, the Commissioner must find the 4 claimant disabled and award benefits. 20 C.F.R. § 404.1520(d). 5 If the severity of the claimant’s impairment does not meet or exceed the severity of the 6 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 7 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 8 ability to perform physical and mental work activities on a sustained basis despite his or her 9 limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the 10 analysis. 11 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 12 claimant is capable of performing work that he or she has performed in the past (past relevant 13 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant 14 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If 15 the claimant is incapable of performing such work, the analysis proceeds to step five. 16 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 17 claimant is capable of performing other work in the national economy. 20 C.F.R. § 18 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider 19 vocational factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 20 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 21 find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable 22 of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 23 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 24 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 25 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 26 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 27 work “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 28 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 1 V. ALJ’S FINDINGS 2 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 3 since May 30, 2017, the alleged onset date. (AR 13). At step two, the ALJ found that Plaintiff 4 has the following severe impairments: morbid obesity; cardiomyopathy and coronary artery 5 disease attributed to a history of methamphetamine abuse; hypertension; lumbar degenerative disc 6 disease; mild arthritis of the right knee; obstructive sleep apnea; small fiber neuropathy; anxiety; 7 and depression. (AR 13). At step three, the ALJ found that Plaintiff does not have an impairment 8 or combination of impairments that meets or medically equals the severity of a listed impairment. 9 (AR 14). The ALJ then found that Plaintiff has the RFC to 10 perform light work as defined in 20 CFR 404.1567(b) except he is able to climb ramps and stairs occasionally; he cannot climb ropes, 11 ladders, or scaffolds. His balance is unlimited; he is able to stoop, kneel, crouch and crawl occasionally. He must avoid concentrated 12 exposure to extremes of heat and cold. He must avoid concentrated exposure to vibration. He must avoid concentrated exposure to 13 workplace hazards, such as unprotected heights and dangerous moving mechanical parts. The claimant cannot perform work with a 14 fast production pace or in which the production requirements vary significantly from day to day; and, he requires a workplace with no 15 more than occasional changes to the setting and routine. 16 (AR 16-17). At step four, the ALJ found that Plaintiff is unable to perform any past relevant 17 work. (AR 28). At step five, the ALJ found that considering Plaintiff’s age, education, work 18 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 19 Plaintiff can perform, including cashier II, cafeteria attendant, and sales attendant. (AR 28-29). 20 On that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in the 21 Social Security Act, from May 30, 2017, through the date of the decision. (AR 29). 22 VI. ISSUES 23 Plaintiff seeks judicial review of the Commissioner’s final decision denying him disability 24 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 25 following issues for this Court’s review: 26 1. Whether the ALJ properly weighed the medical opinion evidence; 27 2. Whether the ALJ properly considered Plaintiff’s symptom claims; 28 3. Whether the ALJ properly rejected the lay witness testimony; and 1 4. Whether the ALJ erred at step five. 2 (Doc. No. 15 at 7-17). 3 VII. DISCUSSION 4 A. Medical Opinions 5 For claims filed on or after March 27, 2017, new regulations apply that change the 6 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 7 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 8 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer “give 9 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL 10 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, an ALJ must 11 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical 12 findings from medical sources. 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the 13 persuasiveness of medical opinions and prior administrative medical findings include 14 supportability, consistency, relationship with the claimant (including length of the treatment, 15 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 16 an examination), specialization, and “other factors that tend to support or contradict a medical 17 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 18 a medical source has familiarity with the other evidence in the claim or an understanding of our 19 disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 20 Supportability and consistency are the most important factors, and therefore the ALJ is 21 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 22 Supportability and consistency are explained in the regulations: 23 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 24 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 25 administrative medical finding(s) will be. 26 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 27 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 28 finding(s) will be. 1 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how the other 2 factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when two or more medical 3 opinions or prior administrative findings “about the same issue are both equally well-supported ... 4 and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how 5 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 6 C.F.R. § 404.1520c(b)(3). 7 The Ninth Circuit has additionally held that the new regulatory framework displaces the 8 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 9 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 10 F.4th 785, 787 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s 11 opinion as unsupported or inconsistent, an ALJ must still provide an explanation supported by 12 substantial evidence. Id. at 792. This means that the ALJ “must ‘articulate ... how persuasive’ 13 [he or she] finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain 14 how [he or she] considered the supportability and consistency factors’ in reaching these findings.” 15 Id. (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 16 1. Charles DeBattista, M.D. 17 In October 2018, Dr. Charles DeBattista conducted a psychiatric consultative evaluation 18 of Plaintiff and opined that Plaintiff is able to understand, remember, and carry out simple one or 19 two-step job instructions; is not able to do detailed and complex instructions; his ability to relate 20 and interact with coworkers and the public is mildly to moderately impaired; his ability to 21 maintain concentration and attention, persistence and pace is moderately impaired; his ability to 22 associate with day-to-day work activity, including attendance and safety is mildly to moderately 23 impaired; his ability to accept instructions from supervisors is not impaired; his ability to 24 maintain regular attendance in the work place and perform work activities on a consistent basis is 25 not impaired; his ability to work a full day or week is not impaired; his ability to perform work 26 activities without special or additional supervision is not impaired; and he is capable of handling 27 his own funds. (AR 495). Dr. DeBattista also opined that Plaintiff’s prognosis is good and his 28 condition would be expected to improve in 6-12 months with active treatment. (Id.). 1 The ALJ found Dr. DeBattista’s opinion was “partially persuasive” because “overall it is 2 inconsistent with and unsupported by [] evidence in the record.” (AR 26). In particular, the ALJ 3 found the opined limits in social functioning were inconsistent with evidence in the record that 4 Plaintiff regularly spent time with his family, went shopping, attended church and sporting 5 events, helped his young children with their online schooling, spent time with others online, and 6 was engaged, interactive, cooperative, pleasant, alert, and oriented during treatment visits. (AR 7 26). And the ALJ found the opined limits in concentration, attention, persistence, and pace were 8 inconsistent with Plaintiff’s ability to complete detailed forms, provide a reliable history, manage 9 his appointments and his money, prepare meals, and help his children with online learning. (Id.). 10 Finally, the ALJ cited Dr. DeBattista’s psychiatric examination notes that Plaintiff drove himself 11 to the appointment, appeared anxious and was sweating profusely, had normal posture and gait, 12 made good eye contact, had a depressed and anxious mood, denied suicidal ideation, had normal 13 speech, and was alert and oriented. (AR 27, 494-95). 14 Plaintiff argues, without citation to legal authority, that the ability to interact with medical 15 providers or family at home is not equivalent to an ability to sustain interaction that would be 16 required in a full-time setting, and similarly, the activities cited by the ALJ are not equivalent to 17 an ability to sustain attention or concentration for the duration of a workday or work week. (Doc. 18 No. 15 at 8). An ALJ may discount a medical opinion that is inconsistent with a claimant's 19 reported functioning. See Morgan v. Comm'r of Soc. Sec. Admin, 169 F.3d 595, 601-02 (1999); 20 see also Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). Plaintiff does not cite to, nor can the 21 Court discern, legal authority suggesting that, when considering the consistency of a medical 22 opinion under the new regulations, the ALJ is limited to considering only activities equivalent to 23 those required in a full-time work setting. Moreover, the ALJ noted that treatment providers 24 throughout the record found Plaintiff engaged, interactive, pleasant, cooperative, alert, oriented, 25 and able to provide a reliable history; and, as noted by Defendant, the ALJ outlined Dr. 26 DeBattista’s own mental status examination findings that Plaintiff had anxious and depressed 27 mood, but made good eye contact, had normal speech, had normal posture and gait, denied 28 suicidal ideation, and was alert and oriented. (AR 26-27, 447, 452, 456, 461, 466, 470, 476, 484, 1 489, 494-95, 526, 683, 703, 817 (noting clear speech and good eye contact), 907, 919, 925 2 (noting normal attention span and concentration, and appropriate mood and affect), 947 (noting 3 Plaintiff was engaged, insightful, and receptive in session), 949, 953, 963, 965, 970 (noting 4 Plaintiff remained engaged with substantial attention), 1020, 1028, 1036-37, 1046, 1061, 1069). 5 Thus, when viewing the record as a whole, it was reasonable for the ALJ to conclude that 6 the limitations on Plaintiff’s ability to relate and interact with coworkers and the public, and 7 limitations on “attention and concentration, persistence and pace,” as opined by Dr. DeBattista 8 were inconsistent and unsupported by evidence in the record. Burch v. Barnhart, 400 F.3d 676, 9 679 (9th Cir. 2005) (“Where the evidence is susceptible to more than one rational interpretation, it 10 is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 11 1989) (ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities in 12 testimony). Finally, as noted by the ALJ, Dr. DeBattista specifically opined that Plaintiff’s 13 condition was likely to improve in the next 6 to 12 months with treatment. To be found disabled, 14 a claimant must be unable to engage in any substantial gainful activity due to an impairment 15 which “can be expected to result in death or which has lasted or can be expected to last for a 16 continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also Chaudhry v. 17 Astrue, 688 F.3d 661, 672 (9th Cir. 2012). For all these reasons, the ALJ’s finding that Dr. 18 DeBattista’s opinion was only “partially persuasive” is supported by substantial evidence. 19 2. Satish K. Sharma, M.D. 20 In March 2020, Dr. Satish K. Sharma conducted an “internal medicine evaluation” of 21 Plaintiff and opined that he could push, pull, lift and carry 20 pounds occasionally and 10 pounds 22 frequently; walk and/or stand for a half hour each at one time and a total of 2 hours cumulatively 23 in an 8-hour workday with appropriate breaks; sit for a half hour each at one time and a total of 6 24 hours cumulatively in an 8-hour workday with appropriate breaks; bend and kneel occasionally; 25 had no limits to the use of hands for fine and gross manipulative movements; and did not need an 26 assistive device. (AR 996). The ALJ found the assessed limitations regarding Plaintiff’s ability 27 to lift and carry and sit is consistent with, and supported by, evidence in the record including 28 “images of [Plaintiff’s] lumbar spine, right knee, cardiac testing, objective examination findings, 1 treatment needs, and evidence of [Plaintiff’s] activities.” (AR 23). However, the ALJ found Dr. 2 Sharma’s opinion regarding Plaintiff’s ability to stand and/or walk and climb ladders, ropes, and 3 scaffolds, as well as the absence of environmental limitations as inconsistent overall with the 4 evidence. (Id.). 5 As an initial matter, Plaintiff argues the ALJ failed to include the “need to change 6 positions every 30 minutes” in the hypothetical propounded to the vocational expert. (Doc. No. 7 15 at 9); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (“an ALJ is not free 8 to disregard properly supported limitations”). In support of this argument, Plaintiff cites Social 9 Security Regulation (“SSR”) 83-12, which provides guidance on how a need to alternate sitting 10 and standing affects the ability to perform sedentary or light work. SSR 83-12, available at 1983 11 WL 31253. As an initial matter, a plain reading of Dr. Sharma’s opinion does not indicate that 12 she explicitly found Plaintiff needed to alternate positions between sitting and standing every 30 13 minutes. Rather, in her narrative functional assessment, Dr. Sharma opined that Plaintiff could 14 walk or stand 2 hours cumulatively in an 8-hour workday with appropriate breaks, and in the 15 attached medical statement, as noted by the ALJ, Dr. Sharma further opined that Plaintiff could 16 sit, stand, and walk, respectively, for 30 minutes at one time.3 (AR 996, 999); see SSR 83-10, 17 available at 1983 WL 31251, at *5-6 (a full range of light work requires “standing or walking, off 18 and on, for a total of approximately 6 hours out of an 8-hour workday. Sitting may occur 19 intermittently during the remaining time.”). Regardless, Plaintiff’s argument is inapposite because 20 the ALJ properly rejected the entirety of Dr. Sharma’s opinion as to Plaintiff’s ability to stand 21 and/or walk, along with additional opined limitations, because it was inconsistent with the overall 22 treatment record, including evidence of improvement with conservative and routine treatment, 23 and Plaintiff’s activities. (AR 23). The ALJ also noted that Dr. Sharma stated there was no 24 3 While the ALJ accepted Dr. Sharma’s check the box limitations on sitting/standing/walking as opining 25 that Plaintiff could sit, stand, and walk for 30 minutes “each at one time” for a cumulative total of 6 hours sitting and 2 hours walking and standing, the Court notes that Dr. Sharma arguably misunderstood the 26 instructions in the applicable section of the form to “please check how many hours the individual can” sit/stand/walk without interruption and “if less than one hour, how many minutes without interruption.” 27 (AR 999). Dr. Sharma both checked the box for the number of hours, and entered a number of minutes. Regardless, it is for the ALJ to resolve conflicts and ambiguities in the record. Andrews v. Shalala, 53 28 F.3d 1035, 1039 (9th Cir. 1995). 1 information available for her to review “except the allegations.” (AR 23). 2 First, as noted in Dr. Sharma’s opinion, Plaintiff reported he “has had physical therapy, 3 epidural steroid injections, and radiofrequency ablation, but the back pain has been persistent.” 4 (AR 993). Plaintiff generally argues the ALJ “has improperly characterized Plaintiff’s treatment 5 as conservative and has improperly found these treatments improved Plaintiff’s symptoms when 6 the record shows that they did not.” (Doc. No. 15 at 10). Plaintiff is correct that the Ninth Circuit 7 has rejected an ALJ’s similar rationale for rejecting a claimant’s testimony, noting that the 8 epidural steroid injections and physical therapy the claimant had for her back impairment had not 9 alleviated her symptoms. The Ninth Circuit then noted in footnote 20 that “[i]n any event, we 10 doubt that epidural shots to the neck and lower back qualify as ‘conservative treatment.’” (Doc. 11 No. 15 at 10 (citing Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)); but see Martin v. 12 Colvin, 2017 WL 615196, at *10 (E.D. Cal. Feb. 14, 2017) (“the fact that Plaintiff has been 13 prescribed narcotic medication or received injections [for back and knee pain] does not negate the 14 reasonableness of the ALJ’s finding that Plaintiff’s treatment a whole was conservative, 15 particularly when undertaken in addition to other, less invasive treatment methods.”). However, 16 even assuming, arguendo, that the ALJ erred in discounting Plaintiff’s symptom claims based on 17 improvement with conservative treatment for back pain, the ALJ additionally found that 18 Plaintiff’s cardiovascular functioning improved with routine treatment such as medication and 19 lifestyle changes (AR 526, 542, 552, 562, 596, 658 (blood pressure and heart rate are well 20 controlled on medication), 667, 673, 884, 907, 913, 938, 943); and, as discussed below, any error 21 is harmless because the ALJ’s ultimate finding that a portion of Dr. Sharma’s opinion was not 22 entirely persuasive was supported by substantial evidence. See Carmickle v. Comm’r of Soc. 23 Sec., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (error in considering one of several reasons given in 24 support of ALJ’s finding was harmless because the remaining reasons and ultimate determination 25 were supported by substantial evidence); Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 26 (9th Cir. 2006) (error harmless where it is non-prejudicial to claimant or irrelevant to ALJ's 27 ultimate disability conclusion). 28 Specifically, the ALJ found Dr. Sharma’s limitation on Plaintiff’s ability to stand and/or 1 walk was inconsistent with his ability to attend church, drive, attend youth sporting events, 2 perform light household chores, prepare meals, and care for his children. (AR 23, 294, 299-300, 3 312-15, 321-23, 494 (noting helps out with children, makes a “fair number” of meals)). As 4 above, an ALJ may discount a medical opinion that is inconsistent with a claimant's reported 5 functioning. See Morgan, 169 F.3d at 601-02; see also Ford, 950 F.3d at 1155. Plaintiff argues, 6 without citation to the record, that the “activities of daily living listed by the ALJ do not involve 7 standing or walking in excess of what Dr. Sharma opined Plaintiff could do.” (Doc. No. 15 at 8 10). However, regardless of evidence that could be considered more favorable to Plaintiff, it was 9 reasonable for the ALJ to find the activities reported by Plaintiff during the adjudicatory period 10 were inconsistent with the severity of the limitations opined by Dr. Sharma as to Plaintiff’s ability 11 to stand and walk. Molina, 674 F.3d at 1113 (Plaintiff’s activities may be grounds for 12 discrediting Plaintiff’s testimony to the extent that they contradict claims of a totally debilitating 13 impairment); see also Tommasetti, 533 F.3d at 1040 (ALJ may draw inferences logically flowing 14 from evidence); Burch, 400 F.3d at 679 (where evidence is susceptible to more than one 15 interpretation, the ALJ’s conclusion must be upheld). 16 Finally, the ALJ noted that Dr. Sharma had “no information available in the records 17 except the allegations” (AR 993), and the ALJ found Dr. Sharma’s opinion as to Plaintiff’s ability 18 to stand and/or walk was inconsistent with “unremarkable” musculoskeletal, neurological, and 19 cardiovascular examinations findings across the longitudinal record. (AR 23). Plaintiff failed to 20 identify or challenge these findings in his opening brief; thus, he has waived his opportunity to 21 raise these issues. Carmickle, 533 F.3d at 1161 n.2 (court may decline to consider issues not 22 raised with specificity in plaintiff’s opening brief); see also Kim v. Kang, 154 F.3d 996, 1000 (9th 23 Cir. 1998) (the Court may not consider on appeal issues not “specifically and distinctly argued” in 24 the party’s opening brief). Regardless, as noted in the ALJ’s decision, the record included 25 clinical and objective findings of ejection fraction greater than 55%; normal coronary arteries; 26 normal left ventricular function and filling; stable blood pressure; 2019 imaging showing stable 27 degenerative changes of the lumbar spine and osteoarthritis in the right knee; normal respiratory 28 examination findings; normal cardiovascular examination findings; normal neurological 1 examination findings; normal gait; normal station and stability; lumbar and knee joint tenderness; 2 and reduced lumbar range of motion. (AR 20-23, 424, 452, 466, 470, 476 (“respiratory effort 3 unremarkable”), 526 (denying cardiovascular and musculoskeletal symptoms), 542, 552 (no 4 edema), 596, 606, 609, 611-12, 642 (improved lower extremity mobility), 650 (reduced lumbar 5 range of motion and motor strength), 666, 671-73, 703 (normal range of motion, negative straight 6 leg testing), 714, 716, 723-24, 775-76, 780 (no assistive device for ambulation, abnormal lumbar 7 range of motion, tenderness to palpation), 786-87, 798 (positive straight leg test on left), 802, 813, 8 824, 830 (reporting improvement after injection), 865, 877, 884 (normal gait, station, mobility), 9 891-92 (normal blood pressure), 899, 907 (normal cardiovascular, respiratory, musculoskeletal 10 findings), 913, 919, 938, 943 (normal station and stability), 1028, 1081 (normal hip x-ray). Based 11 on the foregoing, it was reasonable for the ALJ to conclude that the severity of stand and/or walk 12 limitations and the limitations as to Plaintiff’s ability to climb ladders, ropes, and scaffolds 13 assessed by Dr. Sharma was not consistent with examination findings across the longitudinal 14 record. Burch, 400 F.3d at 679. 15 For all of these reasons, after viewing the ALJ’s reasoning in light of the record as a 16 whole, the ALJ’s finding that Dr. Sharma’s opinion was “not entirely persuasive” is supported by 17 substantial evidence. 18 3. Silvia Diego, M.D. 19 In May 2020, Dr. Silvia Diego, Plaintiff’s treating physician, opined that Plaintiff cannot 20 walk even half a block; can sit, stand, and walk for 15 minutes at one time; can sit, stand, and 21 walk, respectively, for less than 2 hours in an 8-hour working day; he would need to take 22 unscheduled breaks during a working day and would need to lie down during that time; he can 23 never lift and carry any amount of weight, twist, stoop, crouch/squat, climb ladders, or climb 24 stairs; he is limited in using his upper extremities for grasping, fine manipulations, turning and 25 twisting objects, and reaching. (AR 987-88). Dr. Diego also opined that, on average, Plaintiff 26 would be off-task 25% or more of a typical workday interfering with attention and concentration 27 needed to perform even simple work tasks; and he would be likely to be absent three days per 28 week and 4 days per month on average. (AR 988-89). As to his mental health limitations, Dr. 1 Diego also opined that Plaintiff had “poor” ability to follow work rules, relate to co-workers, deal 2 with public, use judgment, interact with supervisors, and deal with work stress; and Plaintiff had 3 no ability to function independently or maintain attention/concentration. (AR 989). In 4 documents attached to the opinion, Dr. Diego further opined that he experienced fatigue and 5 chronic pain; would need to continuously shift positions at will from sitting, standing, and 6 walking; congestive heart failure kept him from walking “at a speed needed to maintain a job”; 7 chronic pain kept him from standing and sitting for long periods of time; and he would need to 8 use an assistive walking device in order to successfully engage in a job. (AR 990-91). Dr. Diego 9 concluded that Plaintiff is unable to successfully maintain employment. (AR 991). The ALJ 10 found Dr. Diego’s opinion was “not persuasive.” (AR 25). 11 First, as to supportability, the ALJ found Dr. Diego’s opinion was inconsistent with her 12 own treatment records. See Tommasetti, 533 F.3d at 1041 (ALJ may properly reject a medical 13 opinion if it is inconsistent with the provider's own treatment notes). The Court may decline to 14 address this issue as it was not raised with specificity in Plaintiff’s briefing. See Carmickle, 533 15 F.3d at 1161 n.2. Regardless, the Court notes that the ALJ’s decision cites Dr. Diego’s own 16 physical examination findings of normal gait, normal station and stability, tenderness of the 17 lumbar spine and knee, normal neurological activity, and normal cardiovascular findings. (AR 18 21, 25, 452, 466, 470, 476, 884, 892). Moreover, as to consistency, the ALJ found Dr. Diego’s 19 opinion was inconsistent with objective findings across the longitudinal record, improvement of 20 Plaintiff’s lumbar, knee, and cardiac impairments with conservative treatment, and Plaintiff’s 21 ability to engage in regular activities. (AR 25). Plaintiff generally argues that the ALJ 22 improperly found Dr. Diego’s opinion less persuasive based on (1) improvement and “adequate 23 management” in Plaintiff’s knee and lumbar symptoms with injections, medications, physical 24 therapy, and radiofrequency ablation treatment, and (2) Plaintiff’s regular engagement in 25 activities throughout the record. (Doc. No. 15 at 11). 26 As above, even assuming, arguendo, that the ALJ erred in discounting Plaintiff’s 27 symptom claims based on improvement with conservative treatment for back pain, the ALJ 28 additionally found that Plaintiff’s cardiovascular functioning and mental health symptoms were 1 treated routinely; and, as discussed below, any error is harmless because the ALJ’s ultimate 2 finding that a portion of Dr. Diego’s opinion was not persuasive was supported by substantial 3 evidence. See Carmickle, 533 F.3d at 1162-63; Stout, 454 F.3d at 1055. Namely, the ALJ found 4 Dr. Diego’s opinion is inconsistent with Plaintiff’s ability to care for his children, help care for 5 the family dog, shop, drive, attend church, attend youth sporting events, and attend appointments. 6 (AR 23, 294, 299-300, 312-15, 321-23, 494). An ALJ may discount a medical opinion that is 7 inconsistent with a claimant's reported functioning. See Morgan, 169 F.3d at 601-02; see also 8 Ford, 950 F.3d at 1155. Plaintiff generally argues that the “activities of daily living listed by the 9 ALJ are not actually inconsistent with the limitations Dr. Diego assessed.” (Doc. No. 15 at 11). 10 However, the Court finds it was reasonable for the ALJ to find the activities reported by Plaintiff 11 during the adjudicatory period were inconsistent with the severity of the limitations opined by Dr. 12 Diego, including the inability to walk even half a block, the inability to sit, stand, or walk for 13 more than 15 minutes at a time, and use a cane for ambulation. Molina, 674 F.3d at 1113; Burch, 14 400 F.3d at 679. Finally, as discussed in detail above, while not specifically challenged by 15 Plaintiff, it was reasonable for the ALJ to find the severity of Dr. Diego’s opined limitations was 16 inconsistent with overall normal and unremarkable objective findings across the longitudinal 17 record, including Dr. Diego’s own examinations of Plaintiff. (AR 20-23, 25, 424, 452, 466, 470, 18 476, 526, 542, 552, 596, 606, 609, 611-12, 642, 666, 671-73, 703, 714, 716, 723-24, 775-76, 780, 19 786-87, 798, 865, 877, 884, 891-92, 899, 907, 913, 919, 938, 943, 1028, 1081). 20 For all of these reasons, the Court finds the ALJ’s finding that Dr. Diego’s opinion was 21 not persuasive is supported by substantial evidence. 22 4. Sharin Keyes, LCSW 23 In March 2020, Ms. Sharin Keyes, Plaintiff’s treating clinical social worker, opined that 24 Plaintiff had extreme limitations in his ability to maintain attention and concentration for 25 extended periods; sustain an ordinary routine without special supervision; make simple work- 26 related decisions; complete a normal work-day and work-week without interruptions from 27 psychologically-based symptoms and to perform at a consistent pace without an unreasonable 28 number and length of rest periods; respond appropriately to changes in the work setting; travel in 1 unfamiliar places or use public transportation; set realistic goals or make plans independently of 2 others; and tolerate normal levels of stress. (AR 978-79). Ms. Keyes opined that Plaintiff had 3 marked limitations in his ability to understand, remember and carry out very short and simple 4 instructions; understand, remember, and carry out detailed instructions; perform activities within 5 a schedule, maintain regular attendance, and be punctual within customary tolerances; work in 6 coordination with or proximity to others without being distracted by them; interact appropriately 7 with the general public, ask simple questions or request assistance; and be aware of normal 8 hazards and take appropriate precautions. (Id.). Ms. Keyes also opined that Plaintiff would 9 require a break every 30 minutes; would likely be absent as a result of the impairments or as a 10 result of necessary medical therapy more than 4 days per month; had 3 episodes of 11 decompensation within 12 months, each at least 2 weeks long; and had a complete inability to 12 function independently outside the area of one’s home. (AR 980). Ms. Keyes concluded that 13 Plaintiff is unable to successfully maintain employment due to his impairments. (AR 982). 14 The ALJ found Ms. Keyes’ opinion was “not persuasive” because it is inconsistent with 15 the objective mental status examination findings, mental health treatment needs of the Plaintiff, 16 and evidence of Plaintiff’s activities. (AR 25-26). The ALJ also noted the nature and extent of 17 Ms. Keyes’ relationship with Plaintiff is vague in the opinion, as she noted that she first treated 18 Plaintiff in September 2019 and then lists the “last contact” as March 2019. (AR 25); see Woods, 19 32 F.4th at 792 (“an ALJ can still consider the length and purpose of the treatment relationship, 20 [and] the frequency of examinations, . . . However, the ALJ no longer needs to make specific 21 findings regarding these relationship factors”). Plaintiff generally argues that the ALJ has not 22 shown Ms. Keyes’ opinion is “inconsistent with or unsupported by the record”; his prescribed 23 medication causes additional fatigue and deficits in concentration; and “all of Plaintiff’s treating 24 and examining providers have agreed that he has significant deficits in physical and mental 25 functioning despite extensive treatment for his pain and mental health conditions.” (Doc. No. 15 26 at 12). However, Plaintiff fails to specifically contest the ALJ’s findings regarding the treatment 27 relationship as reported in Ms. Keyes’ opinion, nor does he challenge the ALJ’s reasoning that the 28 extreme mental health limitations opined by Ms. Keyes, including a complete inability to function 1 independently outside the area of his home (AR 980), were inconsistent with Plaintiff’s activities, 2 the nature of his treatment, and the mental status examination findings. (See AR 25-26, 294, 299- 3 300, 312-15, 321-23, 447, 452, 456, 461, 466, 470, 476, 484, 489, 494-95, 526, 683, 703, 817, 4 907, 919, 925, 947, 949, 953, 963, 965, 970, 1020, 1028, 1036-37, 1046, 1061, 1069). Most 5 notably, Plaintiff does not identify or challenge the ALJ’s findings that several of the limitations 6 noted in the narrative attached to Ms. Keyes’ opinion are not supported by any evidence in the 7 record, including the assessment that claimant had three episodes of decompensation within a 8 twelve month period, each lasting two weeks long. (AR 26). As properly noted by the ALJ, 9 “[t]he only evidence of mental health treatment was outpatient and during these visits the 10 claimant was described as engaged, insightful, receptive, functional, interactive, and/or engaged.” 11 (Id. (citing AR 947, 949, 953, 963, 965, 970)). Plaintiff also testified at the hearing that he has 12 never been psychiatrically hospitalized. (AR 62-63). For all of these reasons, and regardless of 13 evidence that could be considered more favorable to Plaintiff, including the opinions of other 14 medical sources, it was reasonable for the ALJ to find the extreme limitations assessed by Ms. 15 Keyes were not consistent with the objective medical evidence, Plaintiff’s mental health treatment 16 history, and Plaintiff’s activities. Burch, 400 F.3d at 679. 17 After viewing the ALJ’s reasoning in light of the record as a whole, the Court concludes 18 that the ALJ’s finding that Ms. Keyes’ opinion was “not persuasive” is supported by substantial 19 evidence. 20 B. Symptom Claims 21 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 22 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 23 The ALJ first must determine whether there is “objective medical evidence of an underlying 24 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 25 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment 26 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 27 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 28 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 1 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 2 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 3 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 4 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 5 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 6 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 7 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 8 credibility determination with findings sufficiently specific to permit the court to conclude that 9 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 10 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 11 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 12 F.3d 920, 924 (9th Cir. 2002)). 13 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 14 be expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning 15 the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with 16 the medical evidence and other evidence in the record” for several reasons. (AR 19). 17 First, the ALJ found Plaintiff’s symptoms and impairments have “improved with 18 medications, injections, physical therapy, use of sleeping aides and a CPAP, and implementation 19 of lifestyle changes.” (AR 19). The effectiveness of medication and treatment is a relevant factor 20 in determining the severity of a claimant’s symptoms. 20 C.F.R. § 416.929(c)(3) (2011); see 21 Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively 22 controlled with medication are not disabling for purposes of determining eligibility for benefits) 23 (internal citations omitted); see also Tommasetti, 533 F.3d at 1040 (a favorable response to 24 treatment can undermine a claimant's complaints of debilitating pain or other severe limitations). 25 Moreover, evidence of “conservative treatment” may be sufficient to discount a claimant's 26 testimony regarding the severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 27 2007); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (ALJ may properly rely on the fact 28 that only conservative treatment has been prescribed). Plaintiff argues, without citation to the 1 record, that his treating providers, specifically Dr. Sharma, noted his back pain did not improve 2 even after treatment with arguably non-conservative treatment including physical therapy, 3 epidural shot injections, and nerve ablation treatments; and the ALJ erred by failing to consider 4 Plaintiff’s self-reported side effects from medications. (Doc. No. 15 at 14; AR 993). However, in 5 support of this finding, the ALJ cites evidence of improvement in the “unremarkable 6 musculoskeletal, neurological, and cardiovascular findings,” cardiac testing that noted 7 improvement in Plaintiff’s heart functioning with an ejection fraction of around 55%, and 8 Plaintiff’s reports of improvement of his functioning during treatment visits. (AR 19, 666, 672- 9 73 (blood pressure improved with medication, chest pain “unlikely due to coronary artery 10 disease”), 687, 703 (normal range of motion, gait, negative straight leg testing), 723-24 (“quality 11 of movement significantly improved), 735, 769, 877, 884, 892, 938, 943 (denies joint pain, 12 tenderness, difficulty walking), 1020). Moreover, as discussed above, even were the Court to 13 assume the ALJ erred in discounting Plaintiff’s symptom claims based on improvement with 14 conservative treatment for back pain, the ALJ additionally found that Plaintiff’s mental health 15 treatment has remained conservative and his cardiovascular functioning improved with routine 16 care (AR 19-20); and, as discussed supra, the ALJ’s ultimate rejection of Plaintiff’s symptom 17 claims was supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63. 18 Second, the ALJ found Plaintiff’s statements are inconsistent because Plaintiff “engaged 19 in a somewhat normal level of daily activity and interaction,” and his “ability to participate in 20 such activities undermines [his] allegations of disabling functional limitations.” (AR 19). A 21 claimant need not be utterly incapacitated in order to be eligible for benefits. Fair, 885 F.2d at 22 603; see also Orn, 495 F.3d at 639 (“the mere fact that a plaintiff has carried on certain activities . 23 . . does not in any way detract from her credibility as to her overall disability.”). Regardless, even 24 where daily activities “suggest some difficulty functioning, they may be grounds for discrediting 25 the [Plaintiff’s] testimony to the extent that they contradict claims of a totally debilitating 26 impairment.” Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012)(internal citations 27 omitted), superseded on other grounds by 20 C.F.R. § 416.920(a). In support of this finding, the 28 ALJ cites evidence throughout the decision of Plaintiff’s ability to perform a range of daily 1 activities, including run errands, mow the front lawn, fold and put away laundry, wash dishes, 2 drive a half hour, walk for a half hour to one hour, manage is personal care, shop, regularly spend 3 time with others (on the phone, in person, and online), attend church, travel to his mother’s house, 4 prepare meals, care for others, attend youth sporting events, and manage and attend appointments. 5 (AR 19, 294 (noting “walking” and “grocery shopping as needed” as usual daily activities), 299- 6 300 (cannot lift over 30 pounds), 312-15, 321-23 (noting Plaintiff goes outside “often throughout 7 the entire day”), 494 (noting helps out with children, makes a “fair number” of meals)). 8 Plaintiff generally argues that while he “tries” to take care of his children and perform 9 household chores, he needs to change positions every 30 minutes and take breaks, has depression 10 and panic attacks, and his medications cause drowsiness and dizziness. (Doc. No. 15 at 14). 11 However, regardless of evidence that could be considered favorable to Plaintiff, it was reasonable 12 for the ALJ to find that Plaintiff’s documented activities, including his own reports in the record 13 that he takes care of the kids including taking them to school and attending sporting events, and 14 helping with shopping, cooking, and yard work, was inconsistent with his allegations of entirely 15 debilitating functional limitations. Molina, 674 F.3d at 1113 (Plaintiff’s activities may be 16 grounds for discrediting Plaintiff’s testimony to the extent that they contradict claims of a totally 17 debilitating impairment); see also Tommasetti, 533 F.3d at 1040 (ALJ may draw inferences 18 logically flowing from evidence); Burch, 400 F.3d at 679. 19 Third, the ALJ found Plaintiff’s alleged mental and physical limitations are inconsistent 20 with the objective medical evidence. (AR 20-21). Medical evidence is a relevant factor in 21 determining the severity of a claimant’s pain and its disabling effects. Rollins v. Massanari, 261 22 F.3d 853, 857 (9th Cir. 2001) (an ALJ may not discredit a claimant’s pain testimony and deny 23 benefits solely because the degree of pain is not supported by objective medical evidence). 24 Plaintiff generally argues, without citation to the record, that the ALJ fails to identify specific 25 aspects of Plaintiff’s testimony that are inconsistent with specific portions of the medical record. 26 (Doc. No. 15 at 13-14 (citing Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015)). However, 27 the ALJ’s decision detailed medical evidence documenting normal and unremarkable objective 28 findings across the relevant adjudicatory period, in contradiction of Plaintiff’s claims of disabling 1 limitations. (AR 20-21). 2 For example, as to his alleged cardiomyopathy, coronary artery disease, and hypertension, 3 the ALJ noted Plaintiff sought treatment for claimed symptoms of chest pain, shortness of breath, 4 and fatigue; however, after treatment with medication and changes in lifestyle, examination 5 findings were consistently normal and he had no swelling in his extremities. (AR 20, 526, 542, 6 552, 596, 658, 667, 673, 884, 891-92, 899, 907, 913, 919, 938). The ALJ acknowledged that 7 Plaintiff continued to complain of shortness of breath “with little to no exertion,” however the 8 objective examination results regularly document unremarkable respiratory effort and normal 9 respiratory rate and pattern. (AR 20, 526, 542, 552, 596, 675, 884, 891-92, 899, 907, 913, 919, 10 938). Finally, the ALJ cited normal objective test results, including a 2019 transthoracic 11 echocardiogram that showed an ejection fraction greater than 55%, normal coronary arteries, 12 normal left ventricular function, and normal left ventricular filling. (AR 20, 665-66, 671-72 13 (noting chest pain not due to coronary artery disease). 14 As to his alleged lumbar spine, right knee pain, and small fiber neuropathy, the ALJ noted 15 Plaintiff has undergone regular treatment including medication, injections, radiofrequency 16 ablation, and physical therapy, and musculoskeletal and neurological findings were normal 17 throughout the record aside from occasional notations of tenderness to the lumbar spine and knee, 18 decreased range of motion, positive straight leg testing, and abnormal gait. (AR 21, 424, 452, 19 466, 470, 476, 526 (denying musculoskeletal symptoms), 552, 642 (improved lower extremity 20 mobility), 703 (normal range of motion, negative straight leg testing), 775-76, 780 (no assistive 21 device for ambulation, abnormal lumbar range of motion, tenderness to palpation), 786-87, 798, 22 802, 813, 824, 830, 865, 877, 884 (normal gait, station, mobility), 891-92, 899, 907, 913, 919, 23 938, 943, 1028, 1081 (normal hip x-ray)). The ALJ also cited 2018 x-rays of Plaintiff’s lumbar 24 spine revealing mild levocurvature and “significant” degenerative disease at L5-S1 and facet joint 25 degeneration most prominent at that level, with additional 2019 x-rays revealing stable 26 degenerative changes of the lumbar spine and osteoarthritis in his right knee. (AR 21). Finally, as 27 to his mental health, the ALJ noted Plaintiff underwent mental health treatment in 2019, which 28 included medication and counseling, and “overall” the objective mental status findings were 1 unremarkable aside from observations that he was depressed and/or anxious. (AR 21-22, 899, 2 907, 919, 925, 947-49, 963, 965, 970, 1020, 1046, 1054, 1062). 3 Overall, the ALJ explicitly recognized evidence in the record that could be considered 4 more favorable to Plaintiff and nonetheless found the severity of his symptom claims was 5 inconsistent with the weight of the objective medical evidence. (See AR 18-21). “[W]here 6 evidence is susceptible to more than one rational interpretation, it is the [Commissioner’s] 7 conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This 8 was a clear and convincing reason, supported by substantial evidence and largely unchallenged by 9 Plaintiff, for the ALJ to discount Plaintiff’s symptom claims. 10 The Court concludes that the ALJ provided clear and convincing reasons, supported by 11 substantial evidence, for rejecting Plaintiff’s symptom claims. 12 C. Lay Witness Testimony 13 Plaintiff’s wife submitted a Third Party Function Report in September 2018 that, among 14 other things, reported that Plaintiff cannot lift, sit, stand, walk, or squat for long periods of time, 15 needs breaks to lie down or stretch, and pain triggers anxiety attacks. (AR 320-32). The ALJ 16 noted the lay witness testimony and found it was “overall consistent” with Plaintiff’s statements, 17 including his ability to attend his children’s sporting events, and cook, clean, shop, and attend 18 appointments with his wife. (AR 18-19). Plaintiff argues the ALJ improperly rejected her lay 19 witness testimony. (Doc. No. 15 at 15-16). 20 As an initial matter, while not addressed by either party, the Court notes there is case law 21 suggesting that that an ALJ is not required to articulate reasons for discounting lay witness 22 statements under the revised regulations. See Fryer v. Kijakazi, 2022 WL 17958630, at *3 n.1 23 (9th Cir. Dec. 27, 2022) (“It is an open question whether ALJs are still required to consider lay 24 witness evidence under the revised regulations, although it is clear they are no longer required to 25 articulate it in their decisions.”); Neri v. Comm'r of Soc. Sec., 2022 WL 16856160, at *7 (E.D. 26 Cal. Nov. 10, 2022) (finding that, under the revised regulations, an ALJ must consider, but not 27 necessarily articulate how the ALJ considered lay testimony). Regardless, the Ninth Circuit has 28 continued to hold that where the ALJ gives clear and convincing reasons to reject a claimant’s 1 testimony, and where a lay witness’ testimony is similar to the claimant’s subjective complaints, 2 the reasons given to reject the claimant’s testimony are also sufficient to reject the lay witness 3 testimony. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009); 4 Johnson v. Kijakazi, 2022 WL 3998572, at *2 (finding ALJ’s failure to address lay witness 5 testimony harmless where the lay witness statements were “largely duplicative” of plaintiff’s 6 testimony). Regardless of Plaintiff’s general assertion that the ALJ failed to “note the quality and 7 duration of [] activities as described by the witness,” the Court finds the lay witness statements 8 were consistent with Plaintiff’s symptom claims. (See AR 311-27). As discussed above, the ALJ 9 provided clear and convincing reasons to reject Plaintiff’s symptom claims; thus, the ALJ’s 10 decision was likewise sufficient to discount the lay witness testimony. 11 D. Step Five 12 Last, Plaintiff argues the ALJ “omitted the limitations assessed by Plaintiff’s treating and 13 examining doctors, Plaintiff’s credible allegations, and the testimony of the lay witness”; and 14 therefore erred at step five by posing an incomplete hypothetical to the vocational expert. (Doc. 15 No. 15 at 16-17). “If an ALJ's hypothetical does not reflect all of the claimant's limitations, the 16 expert's testimony has no evidentiary value to support a finding that the claimant can perform 17 jobs in the national economy.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 18 Cir.2009) (citation and quotation marks omitted). However, as discussed in detail above, the 19 ALJ's consideration of the medical opinions, Plaintiff's symptom claims, and the lay witness 20 testimony, was supported by the record and free of legal error. The hypothetical proposed to the 21 vocational expert contained the limitations reasonably identified by the ALJ and supported by 22 substantial evidence in the record. As a result, the ALJ did not err at step five. 23 VIII. CONCLUSION 24 A reviewing court should not substitute its assessment of the evidence for the ALJ’s. 25 Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment 26 as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail 27 above, the ALJ properly considered the medical opinion evidence, Plaintiff’s symptom claims, 28 the lay witness testimony, and the findings at step five. After review, the Court finds the ALJ’s 1 | decision is supported by substantial evidence and free of harmful legal error. 2 Accordingly, it is ORDERED: 3 1. Plaintiff's Motion for Summary Judgment (Doc. No. 15) is DENIED. 4 2. Defendant’s Cross Motion for Summary Judgment (Doc. No. 20) is GRANTED and 5 the decision of the Commissioner of Social Security is AFFIRMED for the reasons set 6 forth above. 7 3. The Clerk is directed to enter judgment in favor of the Commissioner of Social 8 Security, terminate any pending motions/deadlines, and close this case. 9 | Dated: _ January 23, 2024 Wile. Th fareh Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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