(SS) Grace Garcia v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 GRACE GARCIA, Case No. 1:20-cv-00373-SAB

10 Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S SOCIAL SECURITY APPEAL AND 11 v. REMANDING FOR FURTHER PROCEEDINGS

12 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 19, 23, 24)

13 Defendant.

14

15 I.

16 INTRODUCTION

17 Grace Garcia (“Plaintiff”) seeks judicial review of a final decision of the Commissioner 18 of Social Security (“Commissioner” or “Defendant”) denying her application for disability 19 benefits pursuant to the Social Security Act. The matter is currently before the Court on the 20 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A.

21 Boone.1 22 For the reasons set forth below, Plaintiff’s Social Security appeal shall be granted in part.

23 II.

24 FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff protectively filed an application for a period of disability and disability insurance 26 benefits on June 3, 2016. (AR 118.) Plaintiff’s application was initially denied on July 29, 2016, 27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been 28 assigned to the undersigned for all purposes. (See ECF Nos. 7, 8, 22.)

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1 and denied upon reconsideration on February 27, 2017. (AR 133-136, 138-142.) Plaintiff 2 requested and received a hearing before Administrative Law Judge Ruxana Meyer (“the ALJ”). 3 Plaintiff appeared for a hearing on November 6, 2018. (AR 36-71.) On January 30, 2019, the 4 ALJ found that Plaintiff was not disabled. (AR 12-30.) The Appeals Council denied Plaintiff’s 5 request for review on January 6, 2020. (AR 1-3.) 6 A. Relevant Hearing Testimony 7 Plaintiff appeared with counsel and testified at the November 6, 2018 hearing. (AR 40- 8 63.) Plaintiff lives with her husband in Selma, California. (AR 40.) Plaintiff’s husband works 9 and she is home by herself during the day unless her sister comes by to help her. (AR 41.) Her 10 sister comes by probably three times per week. (AR 41.) She will help Plaintiff get up, pick up 11 the house, and clean. (AR 41.) If she cannot come during the day she will come in the evening 12 and bring dinner or have Plaintiff get up and help make dinner. (AR 41.) Her sister will help 13 Plaintiff with the laundry and says she is keeping Plaintiff company, but she helps Plaintiff out. 14 (AR 41.) Her sister is battling the same stuff so she helps Plaintiff out. (AR 41.) Her sister is 15 not on disability but has some of the same stuff that Plaintiff has. (AR 41.) 16 Plaintiff was 55 years old on the date of the hearing. (AR 42.) She graduated from high 17 school, attended two years of technical college, and did a secretarial program. (AR 42.) She 18 graduated with a certificate as a career secretary in 1981. (AR 42.) Plaintiff worked for Steve

19 Wilson Produce doing customer sales and inspecting fruit from 2004 to 2012. (AR 43.) She 20 would lift 20 to 30 pounds. (AR 43.) Plaintiff’s job ended because she was not performing her

21 job due to being on pain medication. (AR 44.) She was misusing her pain medication and went 22 into rehab in 2012. (AR 44.) On some days, Plaintiff would be buying all day and other days 23 she would go to different cold storage facilities and would load and buy. (AR 45.) Plaintiff also 24 worked as a fruit inspector at Royal Fruit until 2004. (AR 45.) 25 In 2013, Plaintiff went to work at California Wok for a friend. (AR 45.) She was

26 waitressing but it was difficult to be on her feet and carry things. (AR 45.) The job only lasted a 27 couple weeks and she was let go. (AR 45.) She was not able to make it through the day without

28 having to take extra breaks. (AR 45.)

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1 Plaintiff is unable to work due to pain in her body. (AR 46.) The pain is unpredictable 2 and comes fast. (AR 46.) Her back hurts, and sitting for long periods of time is not good. (AR 3 46.) Plaintiff can sit for thirty minutes at a time before having to get up. (AR 46.) She can stand 4 for 45 minutes, but would be in pain after 30 minutes. (AR 46-47.) Plaintiff can walk for one 5 block and then would need to sit down. (AR 47.) She can walk for thirty to thirty five minutes. 6 (AR 47.) After thirty minutes her fees hurt and her back will start hurting. (AR 47.) 7 Plaintiff was seeing Dr. Chann who told Plaintiff that she needed to go to a meditation 8 class in order for Dr. Chann to continue seeing her. (AR 48.) Plaintiff could not afford it so she 9 stopped going to Dr. Chann. (AR 48.) She did not see another psychiatrist. (AR 48.) She just 10 went to Dr. Sievert one time and he seems like a good fit. (AR 48.) 11 Plaintiff’s husband or sister handle her medication for her. (AR 50.) She has drowsiness 12 and seems to forget things. (AR 50.) She will be talking to someone and just forgets and gets 13 off track. (AR 50.) Plaintiff is not taking any kind of pain medication and is having side effects 14 from the other medications. (AR 50.) She is taking Gabapentin and it causes drowsiness. (AR 15 50.) She has trouble sleeping at night and will doze off during the day. (AR 50.) 16 Plaintiff does not do anything during the day other than going for a walk. (AR 50-51.) 17 Her anxiety is so bad she does not want to be around people. (AR 51.) Most of the time, 18 Plaintiff is either resting, laying down, or will try to do laundry. (AR 51.) Plaintiff will put in a

19 load of laundry and then go sit down and fold it. (AR 51.) She will try to read but her 20 concentration is not very good. (AR 51.) She has not finished a book in a while. (AR 51.) She

21 has side effects of diarrhea, stomach pain, and gets acid reflux from all the medications she is 22 taking. (AR 51.) Plaintiff has diarrhea maybe three or four days a week. (AR 51.) She will go 23 to the bathroom four or five times a day. (AR 51.) Plaintiff wears depends because of her 24 bladder. (AR 52.) She feels the need to urinate quickly also. (AR 52.) She has frequency 25 urinating two or three days a week. (AR 52.) On those days, she will go to the bathroom eight

26 or nine times. (AR 52.) It takes her ten minutes to go to the bathroom and get back. (AR 52.) If 27 she is having diarrhea, it will take fifteen minutes. (AR 53.) She was just diagnosed last month

28 with irritable bowel syndrome. (AR 53.) She started having problems in December of 2017.

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1 (AR 53.) 2 Plaintiff has pain in her upper neck, back, and shoulders and nerve pain in both of her 3 arms and knees. (AR 53.) She has carpal tunnel in both hands and they get stiff and hurt. (AR 4 54.) Her right hand is worse than the left. (AR 54.) Every day, she has pain in her hands, feet, 5 knees, and back that are sharp and stabbing and sometimes throbbing. (AR 54.) The pain is not 6 severe every day, it will be six or seven out of ten. (AR 54.) Plaintiff has severe pain two or 7 three days a week. (AR 54.) On those days, she does not do anything. (AR 54.) The pain is 8 very unpredictable and she is not aware of anything that triggers it. (AR 55.) On bad days, the 9 pain is more intense, but lasts about the same. (AR 55.) It comes in the evening a lot if she has 10 walked. (AR 55.) To deal with the pain, Plaintiff will either rest or sit or sleep in her recliner. 11 (AR 55.) Plaintiff is resting or laying down for six hours in a day. (AR 55.) She will be 12 watching television, or sitting down and reading or listening to meditation music. (AR 55.) 13 Plaintiff is able to bend over and pick up something that is dropped but it would be 14 uncomfortable. (AR 56.) She can climb a flight of stairs. (AR 56.) She is able to walk on 15 uneven surfaces. (AR 56.) She is not very steady on gravel. (AR 56.) Plaintiff can move her 16 head from side to side and touch her chin to her shoulder. (AR 56.) She is able to turn around. 17 (AR 56.) Plaintiff is able to hold up her head with her neck to watch television, but it seems like 18 her head weighs a ton and her neck is always hurting. (AR 57.) She will need to take a break

19 after maybe thirty minutes for ten minutes. (AR 57.) Her hands are stiff and achy due to the 20 carpal tunnel. (AR 57.) Plaintiff is able to hold a pen or pencil, but has difficulty opening

21 things. (AR 57.) Her husband will open water bottles and leave them for her in the refrigerator. 22 (AR 57.) Plaintiff is able to hold eight or nine pounds with her right hand and five or six pounds 23 with her left hand. (AR 57-58.) Plaintiff would be able to consistently use her hands for ten to 24 fifteen minutes before needing a break for ten minutes. (AR 58.) Plaintiff’s physical problems 25 are magnified because she is not able to take pain medication. (AR 58.) 26 She takes Gabapentin which helps, but it causes her to be drowsy and lethargic. (AR 59.) 27 Plaintiff has depression every couple days and some days it is worse than others. (AR 59.) She 28 will isolate and not want to be around anyone. (AR 59.) Plaintiff will stay in her pajamas all day

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1 and will put some clothes on before her husband gets home. (AR 59.) If she is in her pajamas 2 when he gets home then he knows that is not a food sign. (AR 59.) Plaintiff does a lot of crying 3 and has ugly thoughts. (AR 60.) She wishes she was dead and would have overdosed or 4 something. (AR 60.) She has suicidal thoughts a couple times a month. (AR 59.) 5 Plaintiff makes sure to keep in contact with her sponsor every couple days. (AR 60.) 6 Plaintiff used to go to meetings and it is hard for her to get out and go. (AR 60.) Most of the 7 time she is dozing off and it scares her to drive so she does not. (AR 60.) Her sister will drive 8 her or someone else will do the errands. (AR 60.) Her mother will go with her to make sure that 9 Plaintiff is okay. (AR 61.) Plaintiff’s mother does not drive, she just goes with Plaintiff to her 10 doctor’s appointments. (AR 61.) Plaintiff has anxiety every day. (AR 61.) It causes isolation. 11 (AR 61.) She has anxiety about going somewhere and not being able to use the restroom or 12 having an accident. (AR 61.) She started carrying clothes in the trunk of her care in case she has 13 an accident. (AR 61.) Plaintiff has panic attacks around people. (AR 61.) Her husband likes to 14 go to the movies and it is okay when it is dark and they are watching a movie but getting there is 15 difficult for Plaintiff. (AR 61.) 16 Plaintiff’s husband usually does the grocery shopping. (AR 62.) If Plaintiff is out for a 17 doctor’s appointment, she will stop and pick up a couple of things. (AR 62.) Her husband 18 handles their finances. (AR 62.) Plaintiff is able to watch television for thirty minutes and then

19 she will go and take a load out of the dryer and then come back and watch television or read. 20 (AR 62.) She will just take a short break, maybe ten minutes. (AR 62.) Once or twice a week,

21 Plaintiff has a day where she does not get out of bed. (AR 62.) On those days, the pain 22 medication is not helpful. (AR 62.) Her doctor has allowed her to take a sleeping pill and 23 sleeping during the day. (AR 63.) 24 Plaintiff has been diagnosed with rheumatoid arthritis and has had symptoms all along. 25 (AR 63.) The fibromyalgia causes not just her muscles and joints to ache, but her hands and feet.

26 (AR 63.) On a typical day, Plaintiff has to put in a lot of effort just to get through the day. (AR 27 63.) Plaintiff will do laundry and do some cooking. (AR 63.) When she is depressed, it all shuts

28 down. (AR 63.)

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1 Paul Stanford, a vocational expert also testified at the hearing. (AR 64-69.) 2 B. ALJ Findings 3 The ALJ made the following findings of fact and conclusions of law. 4 • Plaintiff last met the insured status requirements of the Social Security Act on December 5 31, 2017. 6 • Plaintiff did not engage in substantial gainful activity (SGA) during the period from her 7 alleged onset date of June 20, 2013, through December 31, 2017, the date last insured. 8 • Plaintiff had the following severe impairments: a mood disorder with depression; 9 generalized anxiety disorder; opioid abuse with physiological dependence; rheumatoid 10 arthritis; and fibromyalgia. 11 • Plaintiff did not have an impairment or combination of impairments that met or medically 12 equaled the severity of one of the listed impairments. 13 • After careful consideration of the entire record, through the date last insured, Plaintiff had 14 the residual functional capacity to perform work as follows: lift 20 pounds occasionally 15 and lift and carry 10 pounds frequently; stand and/or walk for six hours in an eight-hour 16 workday; and sit for about six hours in an eight-hour workday. Plaintiff can perform 17 simple, repetitive tasks. 18 • Through the date last insured, Plaintiff was unable to perform any past relevant work. 19 • Plaintiff was born on October 3, 1963, and was 54 years old, which is defined as an 20 individual closely approaching advanced age, on the date last insured. 21 • Plaintiff has at least a high school education and is able to communicate in English. 22 • Transferability of job skills is not material to the determination of disability because 23 using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is 24 “not disabled,” whether or not she has transferable job skills. 25 • Through the date last insured, considering Plaintiff’s age, education, work experience, 26 and residual functional capacity, there were jobs that existed in significant numbers in the 27 national economy that she could have performed. 28 • Plaintiff was not under a disability, as defined in the Social Security Act, at any time

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1 from June 20, 2013, the alleged onset date, through December 31, 2017, the date last 2 insured. 3 (AR 17-30.) 4 III. 5 LEGAL STANDARD 6 To qualify for disability insurance benefits under the Social Security Act, the claimant 7 must show that she is unable “to engage in any substantial gainful activity by reason of any 8 medically determinable physical or mental impairment which can be expected to result in death 9 or which has lasted or can be expected to last for a continuous period of not less than 12 10 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step 11 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 12 404.1520; Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th 13 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is 14 disabled are:

15 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

16 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 17 her ability to work? If so, proceed to step three. If not, the claimant is not disabled.

18 Step three: Does the claimant’s impairment, or combination of impairments, meet 19 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four.

20 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 21 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

22 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 23 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 24 disabled. If not, the claimant is disabled. 25 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

26 Congress has provided that an individual may obtain judicial review of any final decision 27 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 28 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the

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1 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 2 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 3 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 4 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 5 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 6 considering the record as a whole, a reasonable person might accept as adequate to support a 7 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of 8 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 9 “[A] reviewing court must consider the entire record as a whole and may not affirm 10 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 11 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 12 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment 13 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 14 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 15 upheld.”). 16 IV. 17 DISCUSSION AND ANALYSIS 18 Plaintiff contends that the ALJ erred by failing to provide clear and convincing reasons to

19 reject her symptom testimony and by disregarding the opinion of her treating physicians. 20 Defendant counters that the ALJ properly explained the weight that was provided to the treating

21 physician opinion and why more weight was provided to the other medical opinions which were 22 more consistent with the record. 23 A. Physician Testimony 24 Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons to 25 request the opinions of Plaintiff’s treating physicians Dr. Barry and Dr. Guzzetta. Plaintiff

26 contends that the reason provided by the ALJ that the medical record demonstrate normal 27 findings shows a misunderstanding of fibromyalgia.

28 Defendant counters that Plaintiff misunderstands the ALJ’s reasoning. Defendant argues

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1 that the ALJ found that Plaintiff’s fibromyalgia was a severe impairment, but that the issue at 2 this stage of the analysis is whether Plaintiff’s impairments are disabling and the long history of 3 normal examinations is consistent with the finding that Plaintiff is able to perform light work. 4 Defendant argues that the medical record does not demonstrate that Plaintiff consistently 5 suffered from common symptoms of fibromyalgia such as chronic pain, multiple tender points, 6 fatigue and stiffness. 7 Plaintiff counters that Defendant did not offer any response to her argument that the ALJ 8 failed to apply the correct legal standard. 9 The weight to be given to medical opinions depends upon whether the opinion is 10 proffered by a treating, examining, or non-examining professional. See Lester v. Chater, 81 F.3d 11 821, 830-831 (9th Cir. 1995). In general a treating physician's opinion is entitled to greater 12 weight than that of a nontreating physician because “he is employed to cure and has a greater 13 opportunity to know and observe the patient as an individual.” Andrews v. Shalala, 53 F.3d 14 1035, 1040-41 (9th Cir. 1995) (citations omitted). If a treating physician’s opinion is 15 contradicted by another doctor, it may be rejected only for “specific and legitimate reasons” 16 supported by substantial evidence in the record. Ryan v. Commissioner of Social Sec., 528 F.3d 17 1194, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). 18 Where the treating physician’s opinion is contradicted by the opinion of an examining

19 physician who based the opinion upon independent clinical findings that differ from those of the 20 treating physician, the nontreating source itself may be substantial evidence, and the ALJ is to

21 resolve the conflict. Andrews, 53 F.3d at 1041. However, if the nontreating physician’s opinion 22 is based upon clinical findings considered by the treating physician, the ALJ must give specific 23 and legitimate reasons for rejecting the treating physician’s opinion that are based on substantial 24 evidence in the record. Id. 25 The contrary opinion of a non-examining expert is not sufficient by itself to constitute a

26 specific, legitimate reason for rejecting a treating or examining physician's opinion, however, “it 27 may constitute substantial evidence when it is consistent with other independent evidence in the

28 record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ need not accept

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1 the opinion of any physician that is brief, conclusory, and unsupported by clinical findings. 2 Thomas, 278 F.3d at 957. 3 Plaintiff argues that the ALJ’s reasoning that the opinions of her treating providers were 4 inconsistent with the medical evidence is legally insufficient. However, the ALJ can meet his 5 “burden by setting out a detailed and thorough summary of the facts and conflicting clinical 6 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 7 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen , 779 F.2d 1403, 1408 (9th Cir. 1989)). 8 1. ALJ’s Consideration of Medical Evidence 9 The Court finds no merit to Plaintiff’s argument that the ALJ only referenced 4 pages of 10 medical treatment notes in the 343 page medical record. 11 The ALJ first summarized the medical evidence of record that was germane to the period 12 from June 20, 2013 through December 31, 2017. (AR 22-24.) The ALJ first considered 13 Plaintiff’s treatment records from the Logan Street Medical Group from October 18, 2012 14 through April 8, 2016 which showed longitudinal treatment for bilateral heel pain, respiratory 15 difficulties, mixed hyperlipidemia and other medical conditions. (AR 22, 368-415, 491-524.) 16 these records show the following. 17 On October 18, 2012, Plaintiff had a post-operative visit with Dr. Hann and complained 18 of a tender mass at the mid portion of a healed incision over her left long finger. (AR 368.) She

19 was scheduled for possible foreign body granuloma removal. (AR 368.) 20 On January 21, 2014, Plaintiff was seen to obtain lab results. (AR 372.) There is no

21 record of a physical examination on this date. 22 Plaintiff was seen on January 29, 2015, complaining of bilateral foot pain. (AR 375.) 23 There is no record of a physical examination, but she was diagnosed with mixed hyperlipidemia 24 and bilateral foot pain. (AR 376.) 25 Plaintiff was seen on March 4, 2015, for a follow up. (AR 383.) There is no physical

26 examination recorded and Plaintiff’s diagnosis remained the same. (AR 384.) 27 On April 1, 2015, Plaintiff was seen for a follow up on her foot pain. (AR 387.) She

28 reported that the prednisone did help and she was taking Gabapentin once a day. (AR 387.)

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1 Plaintiff had an unremarkable examination with benign findings noted. (AR 388.) She was 2 maintained on her current medications and was encouraged to use Gabapentin as directed. (AR 3 389.) 4 On November 11, 2015, Plaintiff had a normal mammogram. (AR 400.) 5 Plaintiff was seen on March 31, 2016 for lab results and was complaining of body pain. 6 (AR 404.) Examination was unremarkable and Plaintiff was diagnosed with myalgia. (AR 405.) 7 She was to continue ibuprofen. (AR 406.) 8 Plaintiff returned on October 21, 2016 for lab results for her hyperlipidemia. (AR 396.) 9 There are no physical examination findings. (AR 397.) She was diagnosed with mixed 10 hyperlipidemia. (AR 398.) 11 On May 1, 2017, Plaintiff was seen for a cough with post nasal drip and wheezing. (AR 12 511.) Other than diffuse expiratory wheezes, physical examination was unremarkable. (AR 13 512.) She was diagnosed with acute bronchospasm and prescribed prednisone and an inhaler. 14 (AR 512-513.) 15 On April 10, 2017, Plaintiff was seen for a follow upon her cholesterol. (AR 515.) There 16 is no record of a physical examination. (AR 516.) 17 Plaintiff was seen on May 8, 2017, with a cough and sore throat. (AR 508.) Other than 18 nasal erythema, physical examination was unremarkable. (AR 509.) She was prescribed cipro

19 for infection and promethazine for cough. (AR 510.) 20 On May 22, 2017, Plaintiff was seen for a cough and a headache that had started about a

21 week before. (AR 504.) Plaintiff’s physical examination was generally unremarkable. (AR 22 505.) Mental status examination shows she was alert, oriented, named three objects, serial 7’s, 23 spells words backwards and has normal recall. (AR 505.) Gait had no ataxia or unsteadiness. 24 (AR 505.) Cranial nerves were intact, and she had normal motor bulk and tone. (AR 505.) She 25 was diagnosed with a headache and a cough and was to take cipro. (AR 506.) 26 Plaintiff was seen on June 13, 2017, complaining of a cough and sore throat. (AR 500.) 27 Plaintiff had a chest x-ray that showed slightly under expanded lungs but an otherwise normal x- 28 ray of the chest. (AR 498.) Examination was generally unremarkable other than some nasal

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1 erythema and hypertrophy. (AR 501.) She was diagnosed with allergic rhinitis and a cough. 2 (AR 502.) She was advised to eat early and take a walk after dinner. (AR 502.) 3 On June 20, 2017, Plaintiff was seen for a follow up of her chest x-ray. (AR 494.) 4 Physical examination was unremarkable. (AR 495.) She was diagnosed with a cough and 5 dysphonia. (AR 496.) 6 The ALJ considered that concurrently, Plaintiff was being seen by Dr. Guzzetta, an 7 addiction medication specialist. (AR 22.) Plaintiff was being evaluated and treated for 8 depression, anxiety, insomnia, and opioid dependence. (AR 22, 326-367, 651-669.) These 9 records show the following. 10 Plaintiff was seen for a follow up on her depression on July 12, 2013. (AR 326.) She 11 reported that increasing her Lexapro had helped and she was sleeping better and was attending 12 meetings five times a week. (AR 326.) Plaintiff was alert and oriented and in no acute distress. 13 (AR 327.) Her gait had no ataxia or unsteadiness and she had normal motor bulk and tone. (AR 14 327.) Mood was anxious and depressed and affect was anxious and blunted. (AR 327.) Plaintiff 15 was well-groomed and made good eye contact. (AR 327.) She was to continue Lexapro and 16 Abilify was prescribed. (AR 328.) 17 Plaintiff returned on July 26, 2013, and reported that her medications were working, but 18 she was having a bad headache. (AR 329.) She was attending five meetings per week. (AR

19 329.) She was alert, oriented and in no acute distress. (AR 329-330.) There were no tics and 20 psychomotor activity was normal. (AR 330.) Plaintiff was depressed and anxious with a blunted

21 and anxious affect. (AR 330.) She was well-groomed and made good eye contact. (AR 330.) 22 Plaintiff was to continue the Lexapro and decrease the Abilify. (AR 330.) 23 On August 21, 2013, Plaintiff stated that her depression was improving and the Abilify 24 was working. (AR 332.) Examination findings remain the same and she was to continue her 25 medication. (AR 333.) 26 On October 2, 2013, Plaintiff reported that her depression was improving and she was 27 able to tolerate the Abilify which was helping to decrease her depression. (AR 335.) She 28 reported muscle aches which she felt was due to the Abilify. (AR 335.) Examination results

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1 remained the same, the Abilify was decreased by half and Plaintiff was to begin Elavil. (AR 2 336.) 3 On October 30, 2013, Plaintiff reported that her symptoms were alleviated by the 4 medication and she was feeling well. She was sleeping twelve hours a day as a side effect of 5 amitriptyline and was attending five meetings a week. (AR 338.) Physical examination was 6 unchanged and the Elavil was decreased. (AR 339.) 7 On December 18, 2013, Plaintiff reported that her medication was alleviating her 8 symptoms, however, she was feeling worse since she had to go to court. (AR 341.) She was 9 attending meetings five days a week. (AR 341.) Physical examination remained the same and 10 she was to restart Neurontin. (AR 342.) 11 On December 23, 2013, Plaintiff reported that she was taking three Neurontin a day and 12 was feeling much better. (AR 344.) She was attending five meetings per week. (AR 344.) 13 Physical examination was unchanged. (AR 345.) 14 Plaintiff was next seen on June 1, 2015, requesting to be placed back on her medication. 15 (AR 347.) She had been to prison and now had an ankle monitor. (AR 347.) She was attending 16 two meetings per week. (AR 347.) Physical examination was unchanged. (AR 348.) Plaintiff 17 was to continue Neurontin. (AR 348.) 18 On June 22, 2015, Plaintiff reported that the mediation was working well and was

19 helping. (AR 350.) She was sleeping better, had less anxiety and depression and was attending 20 two meetings a week. (AR 350.) Physical examination was unchanged and she was to continue

21 her medication. (AR 351.) 22 On August 3, 2015, Plaintiff reported that everything was well and overall she felt great. 23 (AR 353.) Plaintiff reported that she felt really good, the best she has in three years. (AR 353.) 24 She denied anxiety or depression. (AR 353.) She was attending two meetings per week. (AR 25 353.) Physical examination was unchanged. (AR 354.) She was to continue her medication and

26 consider neurofeedback. (AR 354.) 27 On October 7, 2015, Plaintiff reported that she was feeling really good. (AR 356.) She

28 was stable and improving. (AR 356.) She had some anxiety and wanted to try getting off her

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1 meds and using neurofeedback. (AR 357.) She was attending two meetings per week. (AR 2 358.) Physical examination was unchanged. (AR 358.) She was to continue the Neurontin as 3 needed. (AR 358.) 4 On December 7, 2015, Plaintiff reported that her symptoms were improving and stable. 5 (AR 359.) She reported that she felt really good, but was unable to afford neurofeedback. (AR 6 359.) She was on probation until August and was attending two meetings per week. (AR 359.) 7 Examination was unchanged and she was to continue Neurontin and Lexapro and increase 8 meetings to four a week. (AR 360-361.) 9 Plaintiff returned on March 9, 2016, reported that she wanted to get back on her anxiety 10 medication. (AR 362.) Her depression was doing well and she was a little concerned due to 11 multiple joint and low back pain. (AR 362.) Physical examination found Plaintiff to be oriented. 12 (AR 363.) There were no tics and psychomotor activity was normal. (AR 363.) Mood was 13 depressed and anxious with anxious and blunted affect. (AR 363.) Plaintiff was well groomed 14 with good eye contact. (AR 363.) Speech was normal with no aphasia. (AR 363.) Speech was 15 normal in quality, quantity, rate and Plaintiff was unimpaired in reading, writing, and thought. 16 (AR 363.) Overall Plaintiff had normal form and content. (AR 363.) Immediate, recent, and 17 remote memory were intact, and Plaintiff had normal concentration and intelligence. (AR 363.) 18 Insight and judgment were intact. (AR 363.) Plaintiff was to continue her medication and

19 increase her meetings to three per week. (AR 363.) 20 Plaintiff reported on March 6, 2018 that her gabapentin was working well and she was no

21 longer seeing Dr. Chann. (AR 664.) Plaintiff was alert and oriented and in no acute distress. 22 (AR 665.) There were no tics and psychomotor activity was normal. (AR 665.) Mood was 23 anxious. (AR 665.) Plaintiff was well groomed and made good eye contact. (AR 665.) Speech 24 was normal in quality, quantity and rate with no aphasia. (AR 665.) Thought was normal in 25 form and content. (AR 665.) Plaintiff had normal concentration and intelligence. (AR 665.)

26 Insight and judgment were intact. (AR 665.) Plaintiff was to continue her gabapentin as needed 27 and begin sertraline. (AR 666.)

28 Plaintiff was seen on June 6, 2018, complaining of a lot of pain due to her fibromyalgia

15

1 and reported that the gabapentin was working well. (AR 658.) Plaintiff was alert and oriented 2 and in no acute distress. (AR 659.) There were no tics and psychomotor activity was normal. 3 (AR 659.) Plaintiff was well groomed and made good eye contact. (AR 659.) Speech was 4 normal in quality, quantity and rate with no aphasia. (AR 659.) Thought was normal in form 5 and content. (AR 659.) Plaintiff had normal concentration and intelligence. (AR 659.) 6 Judgment and insight were intact. (AR 659.) Plaintiff was to increase her Seroquel, begin 7 Cymbalta and continue Gabapentin and sertraline. (AR 660.) 8 Plaintiff was seen on September 10, 2018, for a medication follow up and complained of 9 pain and that she was not receiving relief from her medications. (AR 652.) Plaintiff was alert 10 and oriented and in no acute distress. (AR 653.) There were no tics and psychomotor activity 11 was normal. (AR 653.) Plaintiff’s mood was anxious and affect was normal. (AR 653.) 12 Plaintiff was well groomed and made good eye contact. (AR 653.) Speech was normal in 13 quality, quantity and rate with no aphasia. (AR 653.) Thought form and content were normal. 14 (AR 653.) Concentration and intelligence were normal. (AR 653.) Judgment and insight were 15 intact. (AR 654.) Plaintiff was to continue her medication. (AR 654.) 16 The ALJ also considered that records of Plaintiff’s gynecologist, Dr. Maly and that she 17 was treated for pelvic pain and chronic body aches. (AR 22, 420-426, 596-604.) The records 18 show the following. 19 On February 18, 2016, Plaintiff was seen with complaints of vaginal and pelvic pressure 20 for several days and shoulder pain which she was treating with Motrin. (AR 420.) She had an 21 unremarkable exam and was to continue using Motrin for pain. (AR 420.) 22 On March 2, 2016, Plaintiff came for a follow up and complained of chronic pain through 23 her muscle joints that effect different areas at different times. (AR 421.) She stated that the 24 Motrin had not helped mush and she was having a problem with heartburn. (AR 421.) Her 25 primary care physician had prescribed Gabapentin for her painful feet and it had helped. (AR

26 421.) Her pelvic pain was much less. (AR 421.) Plaintiff was prescribed Prilosec and antacids 27 and was to go off the Motrin for a trial. (AR 421.)

28 Plaintiff returned on March 10, 2016 for a follow up. (AR 422.) She stated that she

16

1 received relief from her aching joints and muscles with Motrin and her acid stomach symptoms 2 had been totally relieved with chewable antacids. (AR 422.) Plaintiff was referred to Dr. Barry. 3 (AR 422.) 4 Plaintiff saw Dr. Maly on April 5, 2016. (AR 23, 596-597.) Pelvic examination was 5 largely unremarkable, and she was prescribed an estrogen steroid hormone cream. (AR 597.) 6 Plaintiff had a pelvic ultrasound on July 7, 2016, which showed a tiny cystic area near a 7 prior cesarean section scar that might be related to the scar or may be due to adenomyosis and 8 ovaries were within normal limits. (AR 424.) 9 On August 23, 2016, Plaintiff was seen reporting increasing problems with her bladder. 10 (AR 23, 604.) She reported that she has frequency, but drinks a lot and has increased urinary 11 urgency and a little stress urinary incontinence with no suprapubic pain or discomfort. (AR 12 604.) She found to have mild stress urinary incontinence, pelvic examination was largely 13 unremarkable, and she was prescribed an estrogen steroid hormone cream. (AR 23, 604.) 14 Plaintiff was seen on October 4, 2016, and reported definite improvement in her 15 incontinence, urgency, vaginal dryness and irritation. (AR 23, 603.) She was to continue her 16 medications. (AR 603.) 17 On April 3, 2017, Plaintiff had an annual examination and reported she had done well on 18 estradiol but recently had recurrent hot flashes. (AR 24, 601.) When she had used Premarin in

19 the fall her vaginal dryness, irritation and urinary urgency markedly improved and she was 20 having no bladder control problems, no suprapubic pressure, and no abdominal or pelvic pain.

21 (AR 24, 601.) Examination was unremarkable and her Estradiol was increased on days when she 22 had hot flashes and she was to use Premarin cream for urinary control and Analpram for 23 hemorrhoids. (AR 24, 602.) 24 On November 9, 2017, Plaintiff was seen for hot flashes. (AR 600.) She reported that 25 medication has helped and her hot flashes are almost gone. (AR 600.) She was to do her Kegel

26 exercises daily and reported being better now that she is over her cold and cough. (AR 600.) 27 On January 23, 2018, Plaintiff complained of a four or five week history of abdominal

28 bloating, loose stools and recurrent epigastric pain but no urinary tract symptoms. (AR 599.)

17

1 Her symptoms were found to be due to GI etiology. (AR 599.) The record notes that she does 2 not have a primary care physician which is why she came to Dr. Maly for evaluation. (AR 599.) 3 On February 13, 2018, Plaintiff was seen for a follow up and reported that her epigastric 4 and substernal pain and burning had markedly improved but she still had intermittent episodes of 5 abdominal cramping with two to three loose bowel movements daily. (AR 598.) Plaintiff was 6 referred to Dr. Ginn for a GI evaluation and colonoscopy. (AR 598.) 7 On April 5, 2018, Plaintiff was seen for her annual examination and reported that she was 8 doing well other than some vaginal dryness and discomfort with intercourse and stress urinary 9 incontinence. (AR 596.) Physical examination was unremarkable and she was do daily Kegel 10 exercises and encouraged to exercise and lose weight. (AR 596-597.) 11 The ALJ considered that during this same time period, from March 21, 2016 to December 12 5, 2017, Plaintiff was seeing a rheumatologist, Dr. Barry for treatment of symptoms of pain, 13 fatigue, sleep disturbances, and depression. (AR 22-23, 416-417, 431-446, 532-556.) These 14 records show the following. 15 The ALJ found it notable that on March 21, 2016, Plaintiff saw Dr. Berry complaining of 16 general aching involving the trunk and limbs over the past 6 years. (AR 23, 431.) She reported 17 that her main problem was her shoulders but that most joints ached, she was not sleeping well, 18 and was fatigued. (AR 431.) She reported neck pain and having been in two motor vehicle

19 accidents. (AR 431.) She reported difficulty completing her household chores and was “judged 20 a Steinbrocker2.” (AR 431.) However, physical examination was unremarkable. (AR 23.) On

21 examination she was not in obvious distress. (AR 431.) Examination was unremarkable with no 22 inflammation and range of motion was good, other than some reduced lateral rotation in the 23 cervical spine (AR 431.) There was no tenderness or significant joint deformity. (AR 431.) 24 Her symptoms suggested fibromyalgia and she was to be treated with Gabapentin. (AR 23, 431.) 25 Depression was reported as mild and not a major problem. (AR 23, 431.) 26 Plaintiff was seen on April 5, 2016, and reported that general aching persisted and 27 Gabapentin was not helping. (AR 431.) Plaintiff reported not sleeping at night. (AR 431.) Her 28 Gabapentin was stopped and she was prescribed Cymbalta. (AR 431.)

18

1 On April 8, 2016, Plaintiff had a bone scan that showed low bone mass (osteopenic). 2 (AR 23, 416.) 3 On May 18, 2016, Plaintiff reported that she was not sleeping and fatigue remained a 4 problem. (AR 417.) She was using Gabapentin for her foot pain and had taken the Cymbalta 5 which helps but was not sufficient. (AR 417.) She reported that her function was not good and 6 she did not have much social interaction. (AR 417.) Zolpidem was added at night and Dr. Barry 7 strongly recommended a gym. (AR 417.) 8 On June 21, 2016, Plaintiff reported being better than the last visit. (AR 543.) She was 9 getting 6 to 7 hours of fairly good sleep and was feeling more rested. (AR 543.) Her aching 10 seems less and she was more outgoing and smiling. (AR 543.) There was no swelling, warmth, 11 or tenderness in the hands or feet where she complains of pain. (AR 543.) Plaintiff had bilateral 12 carpal tunnel surgery in 2013, and Tinel’s was not present and there was no wasting. (AR 543.) 13 Hand function was judged to be good. (AR 543.) There was no synovitis and her circulation 14 was normal. (AR 543.) There was no swelling, warmth or tenderness associated with her foot 15 pain. (AR 543.) She was advised about proper footwear. (AR 543.) 16 On July 19, 2016, Plaintiff complained of ongoing hand pain that burns. (AR 543.) Her 17 carpal tunnel surgery helped. (AR 543.) Plaintiff seemed to have bilateral foot pain in the tarsal 18 area. (AR 543.) She has very flat feet and inserts had been tried but led to increased discomfort.

19 (AR 543.) She was advised that there is a break in period and stated she would try them again. 20 (AR 543.) There was no objective arthritis in the appendicular joints. (AR 543.) Deep tendon

21 reflexes in the biceps, triceps, and brachioradialis were normal. (AR 543.) There was no 22 triggering. (AR 543.) Capillaries were normal. (AR 543.) Plaintiff asked for codeine, but he 23 put a hold on this medication for two months. (AR 543.) 24 On August 31, 2016, Plaintiff reported not doing well with general aching, fatigue, poor 25 sleep and depression. (AR 433.) Lyrica was added and she was to continue Cymbalta. (AR

26 433.) 27 On September 27, 2016, Plaintiff reported that she was much more depressed and her

28 function at home was poor. (AR 23, 433.) She was not able to take care of her four year old

19

1 grandson. (AR 433.) She did not want to take medication. (AR 23, 433.) Dr. Barry noted that 2 Plaintiff’s depression seemed more than usually seen in fibromyalgia. (AR 433.) He 3 recommended that she see a psychiatrist and she agreed. (AR 23, 433.) 4 On November 16, 2016, Plaintiff complained of the same symptoms. (AR 542.) She 5 reported fatigue, not sleeping well, generalized aching in the muscles and joints, paresthesias in 6 the arms and legs and remains depressed. (AR 542.) Plaintiff reported that she had seen Dr. 7 Chann who told her she did not have significant pain and he would not give her new medication. 8 (AR 542.) She reported that her activity at home was poor and she was no longer taking care of 9 her four year old grandson. (AR 542.) Plaintiff did not read the paper Dr. Barry had provided to 10 her on fibromyalgia. (AR 542.) She was not exercising as recommended. (AR 542.) “She is 11 passive, depressed and wants an easy solution for her problems and [Dr. Barry] discussed this 12 with her. Until she shows more insight she will not improve.” (AR 542.) Plaintiff was to taper 13 off Lyrica as she thought this was making her worse. (AR 542.) 14 On December 6, 2016, Plaintiff reported that her symptoms were unchanged despite 15 using medications and seeing several physicians. (AR 541.) She reported that she remains 16 stressed, fatigued with poor sleep, general aching, and depression remains a problem. (AR 541.) 17 Dr. Barry had a long discussion with Plaintiff about her fibromyalgia. (AR 541.) He noted that 18 Plaintiff had not come to grips with this and has not accepted that she is an integral part of any

19 treatment program. (AR 541.) She is deconditioned and he again emphasized that she must be 20 more physically active. (AR 541.) He recommended a gym for physical and psychological

21 reasons. (AR 541.) He emphasized that until she comes to grip with her need to participate in 22 her program she will not improve. (AR 541.) 23 On February 7, 2017, Plaintiff complained of general aching in her trunk and four limbs, 24 feeling fatigued, depressed, and not sleeping well. (AR 541.) Plaintiff reported that her physical 25 activity is “very poor” and at times she could hardly get up, her finances are poor, and there is

26 marital discord. (AR 541.) She was considering moving out of her house. (AR 541.) Dr. Barry 27 noted that Plaintiff had not shown any desire to participate in management of her fibromyalgia

28 and he had little to offer without her cooperation. (AR 541.)

20

1 On April 3, 2017, Plaintiff reported that her symptoms had remained unchanged over the 2 past few years and she had fatigue, general aching, poor sleep, and remained depressed. (AR 24, 3 534.) Plaintiff reported that her activity was very poor and she spent most of her days at home 4 “resting.” (AR 24, 534.) She does go to her drug meetings and receives some support there, but 5 she has no money and conflicts with her husband remain unchanged. (AR 534.) Dr. Barry noted 6 that he would not change Plaintiff’s medications unless she shows more insight into her 7 fibromyalgia and depression she will not improve. (AR 534.) Dr. Barry opined that until 8 Plaintiff assumes more control of her life’s problems and more insight into her situation, this will 9 remain unchanged. (AR 534.) Plaintiff was prescribed Cymbalta for symptom relief. (AR 24, 10 534.) 11 On May 22, 2017, Plaintiff reported that she had a headache for the past week but no 12 neurological symptoms or vision changes. (AR 534.) She also reported that her stress level 13 remains high. (AR 534.) She used ibuprofen one to two times a day and this is sufficient. (AR 14 534.) Plaintiff was not in obvious distress and there were no gross neurological signs. (AR 534.) 15 Mentation and limb movement were normal. (AR 534.) Balance and coordination were normal. 16 (AR 534.) 17 Plaintiff was seen on June 20, 2017, for a refill of ibuprofen. (AR 534.) Her account was 18 in arrears and Dr. Barry noted that only emergency medication would be refilled until she

19 corrected her account or gets a new physician. (AR 534.) Plaintiff was advised that ibuprofen 20 was available over the counter. (AR 534.)

21 On August 29, 2017, Plaintiff reported that her symptoms persisted in the same fashion 22 and she had generalized body pain, fatigue, depression, poor sleep and social activity remained 23 poor. (AR 533.) She reported she does not want to get out of her house, see people including 24 family, finances remain a problem, and she was experiencing marital discord. (AR 533.) 25 Plaintiff was only taking Gabapentin and ibuprofen and reported it did not help. (AR 533.) Due

26 to her addiction problems in the past, Dr. Barry would not add narcotic medications. (AR 533.) 27 Plaintiff was provided with a prescription for Naproxen and was to stop ibuprofen. (AR 533.)

28 Dr. Barry noted that he would no longer order any medication after this because Plaintiff showed

21

1 little insight into her problems and this had not changed during the time he had seen her. (AR 2 533.) Dr. Barry told Plaintiff that he was retiring in the next few months. (AR 533.) 3 The ALJ also consider that on September 15, 2016, Plaintiff saw Dr. Han due to 4 numbness and tingling in both hands. (AR 23.) Dr. Han noted that bilateral hands do not show 5 any obvious thenar and first dorsal interosseous muscle atrophies, the hands were not assuming 6 claw deformity. (AR 447.) Plaintiff had negative Wartenberg sign and Froment tests. (AR 7 447.) She had negative bilateral Adson and Roos signs. (AR 447.) There was no tenderness 8 over the upper medial arms and volar pronator forearm areas and no tenderness over the medial 9 and lateral epicondylar areas. (AR 447.) Plaintiff had no tenderness at the bilateral cubital 10 tunnels, but she did have a positive elbow flexion test and positive Tinel and Phalen sign across 11 the bilateral carpal tunnel. (AR 447.) Phalen and Durkan’s maneuver elicited some burning 12 pain, radiating up to the volar forearm and upper lateral arm area. (AR 447.) There was no pain 13 over the Guyon’s canal. (AR 447.) Plaintiff had no pain or tenderness over the bilateral first 14 dorsal compartment with negative Finkelstein test and no pain at the thumb basal joints with 15 negative grind test. (AR 447.) There was no pain over the bilateral scaphoid and lunate joint 16 area, but the Watson maneuver elicited pain and discomfort, although the test itself was negative. 17 (AR 447.) There was a negative left shuck test, but some pain; negative piano key test, but some 18 pain; and Plaintiff complained of pain along the left ECU tendon sheath, especially near the

19 insertion into the dorsal base of the fifth metacarpal. (AR 447.) The resisted left wrist extension 20 elicited increased pain and discomfort. (AR 447.) Plaintiff also complained of slight pain and

21 tenderness over the left and right ulnar fovea, but Dr. Han did not see any obvious swelling there. 22 (AR 447.) There was no pain or tenderness over the bilateral FCU tendon or at the hook of 23 hamate. (AR 447.) Plaintiff did have pain and tenderness over the left and right ring fingers first 24 annular pulley areas, and passive IP joint flexion did elicit triggering with pain. (AR 447.) 25 Otherwise, Plaintiff had grossly intact flexors, extensors, and intrinsic function. (AR 447.) 26 Plaintiff had electrodiagnostic testing on September 28, 2016, which was normal and 27 showed no evidence of carpal tunnel syndrome or other neuropathy. (AR 23, 479-480.) 28 The ALJ considered that Plaintiff saw Dr. Chann, a psychiatrist, from October 12, 2016,

22

1 through January 9, 2018, who addressed her symptoms of depression and anxiety. (AR 23, 455- 2 465, 558-594.) These records show the following. 3 Plaintiff saw Dr. Chann on October 12, 2016, and Dr. Chann assessed her with a Global 4 Assessment of Function (“GAF”)2 of 45-50.3 (AR 462.) Plaintiff was noted to have passive 5 suicidal ideation. (AR 462.) 6 Plaintiff was seen on November 9, 2016, and Dr. Chann assessed her GAF was 45-50. 7 (AR 457.) She had no suicidal or homicidal ideation. (AR 457.) Plaintiff hygiene was 8 appropriate and her attire was casual. (AR 461.) She had appropriate eye contact and activity 9 was average. (AR 461.) Speech was spontaneous and Plaintiff was cooperative. (AR 461.) Her 10 mood was sad and dysphoric. (AR 461.) Plaintiff denied hallucinations, illusions, and 11 delusions. (AR 461.) Her thought content was worthless. (AR 461.) Though processes were 12 goal directed. (AR 461.) Plaintiff’s attention and concentration were fair and distractibility was 13 variable. (AR 461.) Insight was intact (AR 461. ) 14 Dr. Chann saw Plaintiff on December 21, 2016, reporting that she was taking her 15 medication and was sleeping more but still tired. (AR 455.) She stated that her sister visits with 16 her two to three times a week. (AR 455.) Plaintiff presented with appropriate hygiene and 17 casual attire. (AR 456.) Her eye contact was appropriate. (AR 456.) Activity was average, 18 speech was spontaneous, and Plaintiff was cooperative. (AR 456.) Her mood was sad, fearful,

19 anxious, and dysphoric. (AR 456.) Plaintiff denied hallucinations, illusions, or delusions. (AR 20 456.) Her thought content was helpless, worthless, and guilt. (AR 456.) Attention and

21 concentration were fair. (AR 456.) Distractibility was variable. (AR 456.) Plaintiff was 22 oriented and IQ was average. (AR 456.) Insight and judgment were superficial (AR 456.)

23 2 “The GAF score is a ‘multiaxial’ assessment that reflects a clinician’s subjective judgment of a patient’s overall 24 level of functioning.” Green v. Astrue, No. 5:10-cv-01294-AJW, 2011 WL 2785741, at *2 n.2 (C.D. Cal. July 15, 2011) (quoting American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders Multiaxial 25 Assessment 30, 34 (4th ed. Text rev. 2000) (DSM-IV)). 26 3 A GAF range of 41–50 reflects “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep 27 a job).” Vanbibber v. Carolyn, No. C13-546-RAJ, 2014 WL 29665, at *1 (W.D. Wash. Jan. 3, 2014) (quoting American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders Multiaxial Assessment 30, 28 32 (4th ed. Text rev. 2000) (DSM-IV)).

23

1 Plaintiff was seen on March 30, 2017, with appropriate hygiene and casual attire. (AR 2 24, 591.) Eye contact was appropriate and speech was spontaneous. (AR 591.) Plaintiff was 3 cooperative. (AR 591.) Mood was sad and discouraged. (AR 24, 591.) There were no 4 hallucinations or delusions. (AR 591.) Thought content was guilt and evasive. (AR 591.) 5 Attention and concentration were fair and distractibility was variable. (AR 591.) Plaintiff was 6 oriented and insight and judgment were intact. (AR 591.) Her GAF was assessed at 45-50. (AR 7 592.) 8 Plaintiff was seen on April 27, 2017, complaining regarding her spouse and reported that 9 her sister had got her into coloring in coloring books. (AR 585.) Hygiene was appropriate and 10 attire causal. (AR 586.) Speech was spontaneous and there were no hallucinations or delusions. 11 (AR 586.) Thought content was helplessness and thought process was goal directed. (AR 586.) 12 Attention and concentration were fair. (AR 586.) Distractibility was variable and Plaintiff was 13 oriented. (AR 586.) Plaintiff was assessed with a GAF of 45-50. (AR 587.) 14 On June 8, 2017, Plaintiff’s hygiene appropriate. (AR 580.) Eye contact was appropriate 15 and activity was average. (AR 580.) Plaintiff’s speech was spontaneous and she was 16 cooperative. (AR 580.) Her mood was stable. (AR 580.) There were no hallucinations or 17 illusions. (AR 580.) Thought content was excess worry. (AR 580.) Thought processes were 18 goal directed. (AR 580.) Attention and concentration were fair and distractibility was variable.

19 (AR 580.) Plaintiff was oriented and insight and judgment were intact. (AR 580.) Plaintiff was 20 assessed with a GAF of 45-50. (AR 581.)

21 Plaintiff was seen on September 5, 2017, and mental examination was largely 22 unremarkable. (AR 24, 573.) Hygiene was appropriate and attire was casual. (AR 574.) 23 Plaintiff had appropriate eye contact. (AR 574.) Activity was average, and she is noted to be 24 jittery. (AR 574.) Speech was spontaneous and Plaintiff was cooperative. (AR 574.) Her mood 25 was irritable. (AR 24, 574.) Plaintiff had no hallucinations or illusions. (AR 574.) Thought

26 process was evasive. (AR 574.) Attention and concentration were fair. (AR 574.) Plaintiff was 27 oriented and insight and judgment were intact. (AR 574.)

28 On October 10, 2017, Dr. Chann saw Plaintiff and mental examination was largely

24

1 unremarkable. (AR 24, 569.) Plaintiff was seen with appropriate hygiene and casual attire. 2 (AR 569.) Eye contract was appropriate. (AR 569.) She had no hallucinations or illusions, and 3 thought content was worthless. (AR 569.) Attention and concentration was fair. (AR 569.) 4 Distractibility was variable. (AR 569.) Plaintiff was oriented and insight and judgment were 5 superficial. (AR 569.) 6 Plaintiff was seen on November 9, 2017 with appropriate hygiene and casual attire. (AR 7 564.) Eye contact was appropriate and there were no hallucinations or illusions. (AR 564.) 8 Plaintiff reported that she was able to leave the house. (AR 564.) Attention and concentration 9 were fair and distractibility was variable. (AR 564.) Insight and judgment were superficial. 10 (AR 564.) She had no suicidal or homicidal ideation. (AR 564.) 11 Plaintiff was seen on January 9, 2018, and mental examination was largely unremarkable. 12 (AR 24, 558.) She reported that she had went out for the holidays. (AR 558.) Hygiene was 13 appropriate and attire was casual. (AR 559.) Plaintiff had appropriate eye contact and activity 14 was average. (AR 559.) Her speech was spontaneous and she was cooperative. (AR 559.) 15 Plaintiff denied hallucinations or illusions. (AR 559.) Thought content was evasive and she 16 ruminated. (AR 559.) Attention and concentration were fair. (AR 559.) Plaintiff was oriented 17 and insight and judgment were intact. (AR 559.) Plaintiff was assessed with a GAF of 45-50. 18 (AR 560.) 19 The ALJ also considered that Plaintiff saw Dr. Aryan, a neurosurgeon, to assess her 20 complaints of neck pain with upper extremity numbness. (AR 23, 24, 526-528.) Dr. Aryan 21 evaluated Plaintiff on June 29, 2017, to see if anything could be done from a surgical standpoint. 22 (AR 526.) Physical and mental examination were normal. (AR 24.) Dr. Aryan found Plaintiff 23 to be well developed and well nourished and that she appeared her stated age. (AR 528.) 24 Plaintiff was awake, oriented to time, place, and person. (AR 528.) She had a normal mood and 25 affect. (AR 528.) Musculoskeletal examination notes 5/5 strength for deltoids, biceps, triceps,

26 and hand grip on motor exam with no atrophy noted. (AR 528.) Plaintiff was able to ambulate 27 without assistance. (AR 528.) Sensory examination revealed no areas of diminished perception

28 to pinprick or soft touch in the upper extremities. (AR 528.) Examination of the peripheral

25

1 vessels and lymphatics showed no swelling or tenderness present, and there was no 2 lymphadenopathy present in cervical regions. (AR 528.) Plaintiff was diagnosed with spinal 3 stenosis, cervical region and was referred for physical therapy and injections. (AR 24, 529.) 4 2. ALJ’s Consideration of Opinion Evidence 5 The ALJ went on to consider the opinion evidence that was germane to the period from 6 June 20, 2013 through December 31, 2017. (AR 24-27.) Plaintiff had a consultative psychiatric 7 evaluation on June 27, 2017 by Dr. Lewis. (AR 24-25, 470-474.) Plaintiff endorsed symptoms 8 of depression and anxiety with medical comorbidities. (AR 24, 470.) Plaintiff reported that she 9 still gets a little sad because she embezzled $200,000 and has to pay it back. (AR 471.) She 10 reported a history of polysubstance abuse and is going to group therapy and a psychiatrist and 11 does not get suicidal when she is depressed. (AR 24, 471.) Hygiene was good and she was 12 appropriately dressed. (AR 472.) There were no involuntary movements or unusual 13 mannerisms. (AR 472.) Eye contact was good and facial expressions were appropriate. (AR 14 472.) Behavior was cooperative. (AR 472.) 15 Plaintiff’s mental status examination was normal. (AR 24.) Conversation, pace, and 16 intensity were easily understood with no obvious expressive or receptive deficits. (AR 472.) 17 Form of speech was logical, coherent, and concise; articulation quality was clear; velocity and 18 volume were normal. (AR 472.) Stream of mental activity was within normal limits. (AR 472.)

19 Stream of consciousness was linear, logical, coherent, and goal directed. (AR 472.) There were 20 no indications of hallucinations or delusions. (AR 472.) Plaintiff was guarded while discussing

21 her allegations. (AR 472.) Affect was appropriate. (AR 472.) Plaintiff reported her sleeping 22 and eating habits as good and denied a history of suicide attempts, self-injurious behavior and 23 psychiatric admission. (AR 472.) 24 Plaintiff was oriented to person, place and date. (AR 472.) Her fund of knowledge and 25 information was consistent with her educational level and socioeconomic/cultural background.

26 (AR 472.) There was no difficulty identifying the capital and governor of California, naming 27 three former presidents of the United States, naming the current president, stating 12 eggs in a

28 dozen, and the reason why food is put in the refrigerator. (AR 472.) She was able to

26

1 differentiate appropriately. (AR 472.) 2 Plaintiff’s judgment was within normal limits. (AR 472.) She performed satisfactorily 3 on gross indicator of rote learning and memory, attention encoding and auditory processing. 4 (AR 473.) She performed satisfactorily on broad indicator of numerical reasoning ability and 5 mental alertness. (AR 473.) Recent memory recall was satisfactory. (AR 473.) Attention and 6 concentration were satisfactory. (AR 473.) Abstract thinking was within normal limits. (AR 7 473.) 8 Plaintiff reported her daily activities as getting up, drinking coffee, and taking her 9 medication. (AR 473.) She reported she washes the dishes, does the cooking and sweeping. 10 (AR 473.) Her husband does the laundry, pays the bills and does the grocery shopping. (AR 11 473.) She reports her hobby to be watching television. (AR 473.) 12 Dr. Lewis diagnosed Plaintiff with unspecified depressive disorder, mild in partial 13 remission; unspecified anxiety disorder; nicotine dependence in reported remission; and opioid 14 dependence in reported remission. (AR 24, 473-474.) Her prognosis for improving in the next 15 12 months was good. (AR 474.) 16 Dr. Lewis opined that Plaintiff was not significantly impaired from a mental status 17 standpoint. (AR 24.) Specifically, Dr. Lewis found Plaintiff was capable of managing her own 18 funds; her ability to perform simple and repetitive tasks is unimpaired. (AR 474.) Her ability to

19 perform detailed and complex tasks, to accept instructions from supervisors, and to interact with 20 coworkers and the public to perform work activities on a consistent basis without special or

21 additional instruction is unimpaired. (AR 474.) Plaintiff’s ability to maintain regular attendance 22 in the workplace and complete a normal workday/workweek without interruptions from a 23 psychiatric condition and to deal with the usual stress encountered in the workplace are mildly 24 impaired. (AR 474.) 25 The ALJ considered the mental residual functional capacity questionnaire completed on

26 April 17, 2017 by Dr. Chann, Plaintiff’s treating psychiatrist. (AR 25, 483-485.) Dr. Chann did 27 not indicate the frequency or length of contact. (AR 483.) She diagnosed Plaintiff with

28 “dysterymia;” major depression moderate to severe; PTSD; psychological functions impacting

27

1 physical health; relational issues with husband; and financial problems; and fibromyalgia; pain 2 syndrome; and overweight. (AR 25, 483.) Plaintiff’s prognosis was guarded. (AR 483.) 3 Plaintiff was taking Cymbalta, Elavil, and Gabapentin. (AR 483.) Side effects of Plaintiff’s 4 medications were listed as lack of energy, tiredness, and drowsiness. (AR 483.) 5 Dr. Chann opined that Plaintiff was unable to remember locations and work-like 6 procedures; understand and remember very short and simple instructions; understand and 7 remember detailed instructions; carry out detailed instructions; maintain attention and 8 concentration for extended periods of time; perform activities within a schedule; maintain regular 9 attendance, and be punctual within customary tolerances; sustain an ordinary routine without 10 special supervision; work in coordination with or proximity to others without being distracted by 11 them; complete a normal workday and workweek without interruptions from psychologically 12 based symptoms; and perform work at a consistent pace without an unreasonable number and 13 length of rest periods for 15 percent of a workday. (AR 25, 483.) She opined Plaintiff was 14 unable to carry out very short and simple instruction for five percent of a workday and unable to 15 make simple work related decisions for 10 percent of a workday. (AR 483-484.) Plaintiff was 16 unable to accept instruction and respond appropriately to criticism from supervisors 15 percent 17 of the workday. (AR 25, 484.) She would be unable to get along with coworkers and peers 18 without distracting them or exhibiting behavioral extremes and maintain socially appropriate

19 behavior and to adhere to basic standards of neatness and cleanliness ten percent of the day. (AR 20 484.) She would be unable to interact appropriately with the general public and ask simple

21 questions or request assistance five percent of the day. (AR 484.) Plaintiff would be unable to 22 be aware of normal hazards and take appropriate precautions and to travel in unfamiliar places or 23 use public transportation 10 percent of the day. (AR 484.) She would be unable to respond 24 appropriately to changes in the work setting and set realistic goals or make plans independently 25 of others fifteen percent of the day. (AR 25, 484.) 26 Dr. Chann stated that Plaintiff presented with moderately severe depression symptoms 27 which consisted of difficulty getting out of bed, taking care of activities of daily living, increased 28 aches and pains in body, feeling tired, difficulties sleeping, lack of concentration, forgetfulness,

28

1 headaches, guilt, anxiety related to personal health and financial issues, fears, irritability, self- 2 punitive, and internal anger. (AR 485.) Dr. Chann opined that Plaintiff would be absent from 3 work 2- 3 days per month. (AR 485.) She stated that Plaintiff presents being forgetful, with 4 inability to concentrate, and her mind feels scattered. (AR 484.) Dr. Chann found that Plaintiff 5 was not a malinger. (AR 485.) Dr. Chann based her opinion on Plaintiff’s history and medical 6 file, the progress, and office notes, and psychological evaluations and reports. (AR 485.) Dr. 7 Chann stated, Plaintiff presents being very depressed, has physical pain impacting psychological 8 health, has been compliant and motivated with treatment, and is going through medication 9 adjustment but so far has had minimal response. (AR 485.) 10 The ALJ considered the May 3, 2017,4 physical medical source statement provided by 11 Plaintiff’s treating rheumatologist, Dr. Barry. (AR 25, 487-490.) Dr. Barry stated that he had 12 seen Plaintiff every 2-3 months since March of 2016. (AR 487.) The diagnosis upon which the 13 opinion was based was fibromyalgia. (AR 25, 487.) Plaintiff’s prognosis was guarded. (AR 14 487.) Her symptoms were fatigue, pain, and depression. (AR 487.) There were no objective 15 signs or clinical findings to support the opinion. (AR 487.) Plaintiff had been treated with 16 analgesics and antidepressants. (AR 487.) Her impairments were expected to last 12 months 17 and emotional factors contribute to the severity of her symptoms and limitations. (AR 487.) 18 Dr. Barry opined that Plaintiff can walk one block without severe pain; sit for thirty

19 minutes at one time; stand ten minutes at one time; and can sit for about four hours and 20 stand/walk about two hours in an eight hour workday. (AR 25, 487.) Plaintiff would need to

21 walk five times for ten minutes during an eight hour workday. (AR 488.) Plaintiff does not need 22 to elevate her legs when sitting. (AR 488.) She does not need an assistive device. (AR 488.) 23 Plaintiff can lift less than 10 pounds frequently, 10 pounds occasionally, and 20 pounds rarely. 24 (AR 488.) She can occasionally twist, stoop/bend, crouch/squat, climb stairs, and never climb 25 ladders. (AR 488.) She has no reaching, fingering, or handling limitations. (AR 489.) 26 Dr. Barry opined that Plaintiff would be off task 25 percent or more of a workday due to 27

28 4 The ALJ stated the date of this as May 31, 2017, however, the date of the opinion is May 3, 2017.

29

1 symptoms severe enough to interfere with concentration and attention. (AR 25, 489.) She is 2 capable of low stress work. (AR 489.) She would have good days and bad days and would miss 3 about four days a month due to impairments or treatment. (AR 489.) This is consistent with 4 typical fibromyalgia symptoms. (AR 489.) Plaintiff’s depression results in poor tolerability to 5 stress. (AR 489.) Plaintiff would need to take one to two unscheduled breaks in a workday. 6 (AR 490.) The onset of these limitations is 2010. (AR 490.) 7 The ALJ also considered a September 10, 2018 physical medical source statement by 8 addiction medicine specialist, Dr. Guzzetta. (AR 25, 638-641.) He diagnosed Plaintiff with 9 fibromyalgia and anxiety and stated her prognosis was fair. (AR 25, 638.) Her symptoms 10 included pain and anxiety. (AR 638.) There were no clinical findings or objective signs. (AR 11 638.) He characterized her pain as total body, moderately severe. (AR 638.) Plaintiff had been 12 treated with Gabapentin with inadequate response. (AR 638.) He found that emotional factors 13 did not contribute, but her anxiety did contribute, to her symptoms and functional limitations. 14 (AR 638.) Dr. Guzzetta identified 12 trigger points. (AR 638.) Dr. Guzzetta opined that 15 Plaintiff could lift and/or carry up to 10 pounds occasionally. (AR 25, 638.) He indicated that 16 Plaintiff could stand and/or walk for less than two hours in an eight-hour workday, as well as sit 17 for less than two hours in an eight-hour workday, with significant postural limitations. (AR 25, 18 638-639.) Dr. Guzzetta opined that Plaintiff would likely be “off task” for 25% or more of an

19 eight-hour workday due to symptoms that would interfere with attention and concentration. (AR 20 25, 639.) He opined that Plaintiff was capable of moderate stress, normal work. (AR 640.) She

21 would be likely to have good and bad days. (AR 640.) Dr. Guzzetta opined that Plaintiff would 22 be expected to be absent from work more than four days per month. (AR 25, 641.) These 23 limitations would apply since 2012. (AR 640.) 24 The ALJ also considered a September 24, 2018 opinion by FNP Bergen and a October 25 20, 2018 mental medical source statement by psychiatrist Sievert finding them to be inconsistent

26 with the medical record prior to the date last insured. (AR 26, 642-646, 648-650.) FNP Bergen 27 stated she had been seeing Plaintiff since March 14, 2018. (AR 642.) Plaintiff was diagnosed

28 with fibromyalgia and her prognosis was fair. (AR 642.) Plaintiff’s symptoms were pain and

30

1 anxiety due to disease state. (AR 642.) Plaintiff’s pain was described as total body, moderately 2 severe. (AR 642.) When asked to identify clinical findings and objective signs, FNP Bergen 3 wrote not applicable. (AR 642.) The treatment and response was listed as Gabapentin with 4 inadequate response. (AR 642.) Emotional factors do not contribute, but anxiety and 5 psychological factors due contribute to the severity of the symptoms and functional limitations. 6 (AR 642.) FNP Bergen identified 12 trigger points. (AR 643.) She opined that Plaintiff could 7 sit or stand for 20 minutes at one time. (AR 644.) Plaintiff can sit and stand/walk for less than 8 two hours in an eight hour workday. (AR 644.) Plaintiff does not need to shift at will from 9 standing, sitting, and walking. (AR 644.) Plaintiff must walk for ten minutes every twenty 10 minutes and would need to have a 10 minute unscheduled break every 20 minutes due to pain, 11 paresthesias, and numbness. (AR 644.) Plaintiff does not need to elevate her legs with 12 prolonged sitting and does not need an assistive device when standing or walking. (AR 644.) 13 Plaintiff can occasionally lift 10 pounds. (AR 645.) She can frequently twist and climb stairs, 14 occasionally stoop and bend; and rarely crouch or squat. (AR 645.) Plaintiff has no reaching, 15 fingering or handling limitations. (AR 645.) Plaintiff is likely to be off task more than twenty 16 five percent of the day due to symptoms severe enough to interfere with her attention and 17 concentration. (AR 645.) She is capable of moderate stress, normal work. (AR 645.) She is 18 likely to have good and bad days. (AR 645.) Plaintiff will miss more than four days per month

19 due to her impairments or treatment. (AR 645.) The earliest that the limitations would apply 20 would be March 14, 2018, which is after the date last insured. (AR 646.)

21 Dr. Sievert had seen Plaintiff on one occasion. (AR 648.) He diagnosed her with major 22 depression, severe, recurrent. (AR 648.) Her prognosis was fair. (AR 648.) Plaintiff had no 23 limitation in her ability to remember locations and work-like procedures; and understand and 24 remember very short and simple instructions. (AR 648.) She was precluded five percent of an 8 25 hour workday from understanding and remembering detailed instructions. (AR 648.) Her

26 memory was generally intact. (AR 648.) Plaintiff was not limited in her ability to carry out very 27 short and simple instructions or in making simple work related decisions. (AR 648.) She was

28 precluded ten percent of the time from carrying out detailed instructions; maintaining attention

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1 and concentration for extended periods of time; performing activities within a schedule, 2 maintaining regular attendance, and be being punctual within customary tolerances; sustaining a 3 routine without supervision; working in coordination with or in proximity to others without 4 being distracted by them; and completing a normal workday and workweek without interruptions 5 from psychologically based symptoms and performing at a consistent pace without an 6 unreasonable number and length of rest periods due to ongoing symptoms of depression. (AR 7 648.) Plaintiff has no limitations in her ability to ask simple questions or request assistance; and 8 in maintaining socially appropriate behavior, and adhering to basic standards of neatness and 9 cleanliness. (AR 648.) Plaintiff is precluded ten percent of the time from interacting 10 appropriately with the general public; and accepting instructions and responding appropriately to 11 critics from supervisors and is precluded fifteen percent of the time from getting along with 12 coworkers or peers without distracting them or exhibiting behavioral extremes due to ongoing 13 mental and physical problems. (AR 648-649.) Plaintiff had no limitations in her ability to be 14 aware of normal hazards and take normal precautions. (AR 649.) Plaintiff was precluded five 15 percent of the time from responding appropriately to changes in the work setting and setting 16 realistic goals or making plans independently of others; and was precluded fifteen percent of the 17 time from traveling in unfamiliar places or using public transportation due to marked difficulty 18 from ongoing depression. (AR 649.) Plaintiff would be absent more than four days per month

19 due to her impairments or treatment. (AR 649.) The earliest the limitations would apply would 20 be October 2018. (AR 650.)

21 The ALJ also considered the opinion of the agency physicians who reviewed the medical 22 record. (AR 26.) The ALJ found that Dr. Rehman opined on July 25, 2016, that Plaintiff could 23 perform a full range of light work. (AR 26.) Dr. Rehman reviewed that record and found that 24 Plaintiff could occasionally lift and carry 20 pounds and frequently lift and carry ten pounds. 25 (AR 115.) Plaintiff could stand and walk or sit for 6 hours in a normal 8 hour workday with

26 normal breaks. (AR 115.) Plaintiff had no postural or manipulative limitations. (AR 115.) The 27 ALJ also found that Dr. Bugg reviewed the record on October 28, 2016, and also opined that

28 Plaintiff could perform the full range of light work. (AR 26, 128-129.)

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1 Dr. Dees reviewed the record on July 21, 2016, and found that Plaintiff had only mild 2 limitations in her activities of daily living; ability to maintain concentration, persistence and pace 3 and no limitations in her ability to maintain social functioning. (AR 26, 113.) Dr. Dees noted 4 that Dr. Guzzetta’s notes of March 9, 2016 showed that Plaintiff requested to be placed back on 5 medication, but she reported doing well with depression, was fully oriented, had no psychomotor 6 disturbance, normal mood and affect, normal speech, memory and concentration were intact, and 7 there was no sign of cognitive decline or impairment. (AR 113.) On reconsideration, Dr. Flocks 8 reviewed the record and on February 24, 2017 opined that Plaintiff had no restrictions or 9 difficulties in mental functioning. (AR 26, 126.) 10 Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons 11 for giving greater weight to the agency physicians than to the opinion of Dr. Guzzetta and Dr. 12 Barry. 13 1. Dr. Guzzetta’s Opinion 14 Plaintiff argues that the ALJ failed to take into account the fact the length of treatment by 15 Dr. Guzzetta. A treating physician’s opinion is entitled to controlling weight on the issue of the 16 nature and severity of the claimant’s impairment where it is well-supported by medically 17 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 18 substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2). “If there is ‘substantial

19 evidence’ in the record contradicting the opinion of the treating physician, the opinion of the 20 treating physician is no longer entitled to ‘controlling weight.’ ” Orn v. Astrue, 495 F.3d 625,

21 632 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(2). “In that event, the ALJ is instructed by § 22 404.1527(d)(2) to consider the factors listed in § 404.1527(d)(2)-(6) in determining what weight 23 to accord the opinion of the treating physician.” Orn, 495 F.3d at 632. The factors to be 24 considered include the “ ‘[l]ength of the treatment relationship and the frequency of 25 examination’ by the treating physician, the ‘[n]ature and extent of the treatment relationship’

26 between the patient and the treating physician, the ‘[s]upportability’ of the physician’s opinion 27 with medical evidence, and the consistency of the physician’s opinion with the record as a

28 whole.’ ” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (quoting 20 C.F.R. §

33

1 404.1527(c)(2)-(6)). “In many cases, a treating source’s medical opinion will be entitled to the 2 greatest weight and should be adopted, even if it does not meet the test for controlling weight.” 3 Ghanim, 763 F.3d at 1161 (quoting Orn, 495 F.3d at 631). 4 The ALJ did consider that Plaintiff had been treated by Dr. Guzzetta, an addiction 5 specialist, from September 12, 2013 through September 10, 2018. (AR 22.) The ALJ noted that 6 Dr. Guzzetta had seen Plaintiff for evaluation and treatment of depression, anxiety, insomnia, 7 and opioid dependence. (AR 22.) The ALJ considered the September 10, 2018 physical medical 8 source statement provided by Dr. Guzzetta. (AR 25.) The ALJ found that the functional 9 limitations opined by Dr. Guzzetta were mostly inconsistent with the relevant medical evidence 10 in the record through the date last insured, including the reports of normal or largely normal 11 physical examinations. (AR 25.) The ALJ found that the record as a whole tends to support a 12 finding that Plaintiff could perform a wide range of light work and little weight was given to Dr. 13 Guzzetta’s opinion. (AR 25.) 14 Plaintiff contends that the ALJ did not cite to evidence other than four pages of the 15 medical record representing normal examinations, but Plaintiff fails to cite to any evidence with 16 other than normal examinations findings that would contradict the ALJ’s finding. Defendant 17 counters that the medical record is consistent with the opinions of the agency physicians that 18 Plaintiff had the ability to perform light work and Dr. Guzzetta’s treatment from the relevant

19 period consisted of normal examination findings. Defendant cites to multiple records in the 20 exhibits cited by the ALJ that demonstrate that Plaintiff had a normal gait with no unsteadiness

21 and normal muscle bulk and tone. (AR 327 (July 12, 2013), 331 (July 26, 2013), 333 (August 22 21, 2013), 336 (October 2, 2013), 339 (October 30, 2013), 342 (December 18, 2013), 345 23 (December 23, 2013), 348 (June 1, 2015), 351 (June 22, 2015), 354 (August 3, 2015), 357 24 (October 7, 2015), 360 (December 7, 2015), 363 (March 9, 2016.) The Court notes that many of 25 the early records do not contain any physical findings and those that do show normal findings. 26 Similarly, Defendant argues that the other examinations by Plaintiff’s medical providers 27 in the record demonstrate similar generally normal findings. (AR 431 (March 21, 2016), 447 28 (September 15, 2016), 528 (June 29, 2017), 534 (May 22, 2017), 536 (August 29, 2017), 542 (no

34

1 physical findings for visits on August 31, 2016; September 27, 2016; and November 16, 2016), 2 543 (June 21, 2016 and July 19, 2016).) An x-ray of the neck only showed mild cervical 3 spondylosis and an electromyography showed no signs of carpal tunnel. (AR 451, 529.) 4 Substantial evidence in the record supports the ALJ’s finding that Plaintiff had generally 5 normal medical and psychological examinations which were inconsistent with the limitations 6 opined by Dr. Guzzetta. Plaintiff argues that the lack of objective findings are not inconsistent 7 with Plaintiff’s complaints of fibromyalgia, but the ALJ found that Plaintiff’s fibromyalgia was a 8 severe impairment. 9 Plaintiff argues that the ALJ erred by rejecting Dr. Guzzetta’s opinion that Plaintiff 10 would miss over four days of work per month due to her fibromyalgia pain and that her pain 11 would interfere with her attention and concentration interfering with her perform even simple 12 tasks for twenty five percent of the workday. However, as the ALJ addressed in the opinion, the 13 mental health records in evidence through the date last insured were inconsistent with such 14 limitations in Plaintiff’s attention and concentration. (AR 25.) Dr. Guzzetta’s records show 15 largely normal mental examinations, including that Plaintiff was in no acute distress, was alert 16 and oriented to person, place and time; and had normal psychomotor activity. (AR 328, 331, 17 333, 336, 339, 342, 345, 346, 351, 354, 357, 360.) These records also show that Plaintiff 18 reported improvement with her medication and that her symptoms were alleviated by her

19 medication. (AR 332, 335, 338, 341, 344.) When Plaintiff returned in June 2015 after being 20 released from prison, she stated she had been totally depressed and wanted to get back on her

21 anxiety and depression medication. (AR 346.) At the next visit, she reported that everything 22 was well and overall she felt great, the best she had felt in three years. (AR 353.) She continued 23 to report that her medication was working, she was improving and her symptoms were alleviated 24 by the medication. (AR 350.) In September and October of 2015, Plaintiff reported that her 25 symptoms were not limiting her activities, she was continuing to feel well, and wanted to get off

26 medications and try biofeedback. (AR 356, 359.) 27 Plaintiff returned on March 9, 2016, stating she wanted to get back on her medication and

28 was doing well with her depression and anxiety, but having pain in multiple joints and her lower

35

1 back. (AR 362.) Mental status examination was normal: including unimpaired reading, writing 2 and thought; intact cognition and memory; and normal concentration and intelligence. (AR 363.) 3 Her judgment and insight were intact. (AR 363.) 4 Dr. Guzzetta saw Plaintiff on March 6, 2018. (AR 664.) Mental examination was 5 unremarkable with normal concentration and intelligence, and intact judgment and insight. (AR 6 665.) Plaintiff returned on June 6, 2018, and September 10, 2018, and at both visits mental 7 status findings remained the same. (AR 653-654, 659.) On September 10, 2018, Dr. Guzzetta 8 issued the physical medical source statement. (AR 638-641.) Inconsistencies in a physician’s 9 opinion and lack of support in the medical record constitutes a legitimate basis for rejecting the 10 opinion. Morgan v. Comm’r, 169 F.3d 595, 603 (9th Cir. 1999); Thomas, 278 F.3d at 957. 11 The ALJ could reasonably find that the limitations opined by Dr. Guzzetta were 12 inconsistent with the medical record. The ALJ provided a specific and legitimate reason for the 13 weight provided to Dr. Guzzetta’s opinion. 14 2. Dr. Barry’s Opinion 15 Plaintiff argues that the ALJ erred by failing to take into account that Dr. Barry 16 specialized in rheumatology. However, the ALJ did consider that Dr. Barry was a 17 rheumatologist and Plaintiff saw him to address her symptoms of pain, fatigue, sleep 18 disturbances, and depression. (AR 22-23.) The ALJ noted that rheumatologist Dr. Barry saw

19 Plaintiff on March 21, 2016, reporting neck pain and general aching of the trunk and all four 20 limbs. (AR 23, 431.) Physical examination was largely unremarkable, with no tenderness or

21 significant joint deformity, although Dr. Barry did observe reduced range of motion in the 22 cervical spine. (AR 23, 431.) Dr. Barry found that Plaintiff’s symptoms were suggestive of 23 fibromyalgia and depression was not felt to be a problem. (AR 23, 431.) 24 The ALJ considered that Plaintiff saw Dr. Barry again on September 27, 2016 25 complaining that she was much more depressed and wanted to avoid medication. (AR 23, 433.)

26 Dr. Barry directed Plaintiff to see a psychiatrist. (AR 23, 433.) Plaintiff saw Dr. Barry on April 27 3, 2017, and reported that her symptoms were unchanged and she spends most of her day at

28 home. (AR 24, 534.) Dr. Barry prescribed Cymbalta for symptom relief. (AR 24, 534.)

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1 The ALJ also considered the May 3, 2017 physical source statement completed by Dr. 2 Barry. (AR 25, 487-490.) The ALJ concurred that Plaintiff is limited to a range of light work, 3 but found Dr. Barry’s physical limitations to be otherwise inconsistent with the relevant medical 4 evidence in the record through the date last insured including the normal or largely unremarkable 5 physical examinations. (AR 25.) The ALJ afforded Dr. Barry’s opinion some, but not 6 significant, weight. (AR 25.) 7 Plaintiff argues that the ALJ’s finding that Dr. Barry’s opinion was inconsistent with the 8 medical record is contrary to fact and law. However, Plaintiff does not point to any evidence in 9 the record that would support Dr. Barry’s opinion. Rather, Plaintiff argues that no such evidence 10 is necessary and the visits records Plaintiff’s symptom complaints. Defendant argues that the 11 ALJ properly found that the medical record was more consistent with the opinions of the agency 12 physicians that Plaintiff can perform light work. Defendant cites to the numerous records 13 addressed above which show no acute distress, normal gait with no unsteadiness, and normal 14 muscle bulk and tone. Defendant also argues that, although Dr. Barry treated Plaintiff on 15 multiple occasions, his records often contain very few clinical findings. Defendant also notes 16 that Dr. Barry’s notes show that Plaintiff did not have any desire to participate in the 17 management of her fibromyalgia and he could offer her little absent her cooperation. 18 Here, Plaintiff argues that the ALJ demonstrated a fundamental misunderstanding of

19 fibromyalgia citing to Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017). In Revels, the ALJ 20 rejected the testimony of the claimant’s physician finding that it was not supported by the

21 objective medical evidence. Id. at 663. The appellate court found that the ALJ had erred by 22 relying on four visits in which the doctor noted that the claimant’s body parts were nontender 23 with normal range of motion. Id. “Lacking certain tender points does not rule out fibromyalgia- 24 related symptoms, since a doctor need only find eleven out of eighteen tender points to diagnose 25 the condition. Moreover, a person with fibromyalgia may have ‘muscle strength, sensory

26 functions, and reflexes [that] are normal.’ ” Id. (citations omitted). The ALJ also erred by 27 finding that the opinion was not supported by the objective medical evidence because at multiple

28 appointments, the evidence showed less than eleven out of eighteen tender points which

37

1 demonstrated a fundamental lack of knowledge of fibromyalgia which is diagnosed “entirely on 2 the basis of patients’ reports of pain and other symptoms,” and “there are no laboratory tests to 3 confirm the diagnosis.” Id. (citations omitted.) “Pursuant to SSR 12-2P, tender-point 4 examinations themselves constitute ‘objective medical evidence’ of fibromyalgia” and 5 “symptoms of fibromyalgia wax and wane,” so a person may have “bad days and good days. 6 Revels, 74 F.3d at 663. 7 Here, Dr. Barry’s set forth physical limitations, some of which the ALJ found were 8 consistent with light work. The ALJ accepted those limitations consistent with light work and 9 rejected the more severe limitations finding that they were inconsistent with the medical record 10 which demonstrated normal or unremarkable physical examinations. (AR 25.) Unlike the 11 Revels court which found that the ALJ had erred by finding that there was no objective evidence 12 to support the limitations opined due to the presence of tender points, the physical examination 13 findings in the record do not make such findings. As the ALJ found, review of the longitudinal 14 record demonstrates few findings that would support Dr. Barry’s opinion. Specifically, Dr. 15 Barry found no tenderness on examination, although he did find reduced range of cervical 16 motion on March 21, 2016. (AR 431.) He also noted that Plaintiff needed to lose weight and 17 depression was not a major issue. (AR 431.) 18 Plaintiff returned on April 5, 2016 and May 18, 2016, reporting symptoms, but there are

19 no physical examination findings and her medications were addressed. (AR 431, 432.) At the 20 May 18, 2016, visit, Dr. Barry noted that Plaintiff was advised to join a gym. (AR 432.)

21 Plaintiff returned on June 21, 2016, and reported that she was doing better, sleeping better, 22 aching less, and was more outgoing and smiling. (AR 543.) Dr. Barry did not note any 23 tenderness. (AR 543.) 24 Dr. Barry saw Plaintiff on July 19, 2016 and noted that there was no triggering. (AR 25 543.) Plaintiff returned on August 31, 2016 and reported not doing well with general aching,

26 fatigue, poor sleep and depression and her medications were adjusted, but there are no 27 examination findings noted. (AR 433.) Plaintiff returned on September 27, 2016 reporting she

28 was more depressed and could not take care of her four year old grandson. (AR 433.) There are

38

1 again no examination findings noted, and it was suggested that Plaintiff see a psychiatrist. (AR 2 433.) 3 Plaintiff saw Dr. Barry on November 16, 2016 and continued to complain of the same 4 symptoms and that she was no longer watching her four year old grandson. (AR 433.) Dr. Barry 5 noted that she did not review the information he provided to her on fibromyalgia, was passive 6 and depressed seeking an easy solution. (AR 433.) There are no examination findings noted. 7 Plaintiff saw Dr. Barry on December 16, 2016 reporting her symptoms were unchanged. 8 (AR 541.) Dr. Barry noted that Plaintiff had not come to grips with her fibromyalgia and has not 9 accepted that she is an integral part of the treatment program. (AR 541.) It was emphasized that 10 she needed to become more physically active and recommended that she join a gym. (AR 541.) 11 Dr. Barry emphasized with Plaintiff that until she came to grips with her need to participate in 12 her program she will not improve. (AR 541.) There are no examination findings noted. (AR 13 541.) 14 On February 7, 2017, Dr. Barry noted that Plaintiff has shown no desire to participate in 15 the management of her fibromyalgia and he had little to offer her absent her cooperation. (AR 16 541.) There are no examination findings. 17 On April 3, 2017, Plaintiff reported that her symptoms were unchanged and she was 18 attending her drug meetings. (AR 534.) There are no examination findings. 19 On May 3, 2017, Dr. Barry completed the physical source statement. (AR 487-490.) 20 Plaintiff saw Dr. Barry on May 22, 2017, and noted that mentation, balance and coordination 21 were normal. (AR 534.) 22 Plaintiff was seen on August 29, 2017, and reported that her symptoms persist in the 23 same fashion. (AR 533.) There are no examination findings. 24 While Plaintiff regularly complained of pain, similarly review of the longitudinal record 25 demonstrates that, other than some findings of hand tenderness following her carpal tunnel

26 surgery (AR 368, 447) and some findings on July 3, 2018 (AR 635), Plaintiff had general normal 27 examinations and there are no findings of tenderness or tender points in the record. (AR 388,

28 404, 420, 495, 502, 506, 528, 622.) The ALJ could reasonably find that Dr. Barry’s limitations

39

1 were inconsistent with his findings and the longitudinal medical record. Further, the ALJ 2 properly found that Dr. Barry’s opinion that Plaintiff would off task for twenty five percent of a 3 work day due to symptoms severe enough to interfere with attention and concentration was 4 properly rejected for the same reasons addressed the same limitation set forth in Dr. Guzzetta’s 5 opinion. 6 The ALJ provided a specific and legitimate reasons for the weight provided to Dr. 7 Barry’s opinion that is supported by substantial evidence in the record. 8 B. Plaintiff’s Symptom Testimony 9 Plaintiff contends that the ALJ failed to provide clear and convincing reasons to reject her 10 symptoms testimony. Plaintiff argues that the ALJ improperly found that her daily activities 11 were inconsistent with a finding of disability and the only other reason provided was 12 inconsistency with the medical record which is also flawed. Defendant counters that the ALJ 13 properly evaluated Plaintiff’s symptom testimony and provided clear and convincing reasons to 14 discount her testimony. Plaintiff replies that the ALJ did not make any findings of how her 15 limited activities are inconsistent with her alleged symptoms, did not explain how the medical 16 records are inconsistent with her testimony, and her testimony cannot be rejected on the sole 17 ground that it is not corroborated by the objective medical evidence. Further, Plaintiff argues 18 that Defendant is offering post hoc rationalizations that the ALJ did not rely on in the opinion. 19 “An ALJ is not required to believe every allegation of disabling pain or other non- 20 exertional impairment.” Orn, 495 F.3d at 635 (internal punctuation and citations omitted). 21 Determining whether a claimant’s testimony regarding subjective pain or symptoms is credible, 22 requires the ALJ to engage in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th 23 Cir. 2012). The ALJ must first determine if “the claimant has presented objective medical 24 evidence of an underlying impairment which could reasonably be expected to produce the pain 25 or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)

26 (internal punctuation and citations omitted). This does not require the claimant to show that her 27 impairment could be expected to cause the severity of the symptoms that are alleged, but only

28 that it reasonably could have caused some degree of symptoms. Smolen, 80 F.3d at 1282.

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1 Then “the ALJ may reject the claimant’s testimony about the severity of those symptoms 2 only by providing specific, clear, and convincing reasons for doing so.” Brown-Hunter v. 3 Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). “The ALJ must specifically make findings that 4 support this conclusion and the findings must be sufficiently specific to allow a reviewing court 5 to conclude the ALJ rejected the claimant’s testimony on permissible grounds and did not 6 arbitrarily discredit the claimant’s testimony.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 7 2004) (internal punctuation and citations omitted). Factors that may be considered in assessing a 8 claimant’s subjective pain and symptom testimony include the claimant’s daily activities; the 9 location, duration, intensity and frequency of the pain or symptoms; factors that cause or 10 aggravate the symptoms; the type, dosage, effectiveness or side effects of any medication; other 11 measures or treatment used for relief; functional restrictions; and other relevant factors. 12 Lingenfelter, 504 F.3d at 1040; Thomas, 278 F.3d at 958. In assessing the claimant’s credibility, 13 the ALJ may also consider “(1) ordinary techniques of credibility evaluation, such as the 14 claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other 15 testimony by the claimant that appears less than candid; [and] (2) unexplained or inadequately 16 explained failure to seek treatment or to follow a prescribed course of treatment. . ..” 17 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284). 18 The district court is constrained to review those reasons that the ALJ provided in finding the

19 claimant’s testimony not credible. Brown-Hunter, 806 F.3d at 492. 20 The ALJ found that Plaintiff’s medically determinable impairments could reasonably be

21 expected to cause the alleged symptoms prior to the date last insured, but her statements 22 concerning the limiting effects of her symptoms were not entirely consistent with the medical 23 evidence and other evidence in the record for the reasons explained in the decision. (AR 22.) 24 The ALJ considered a July 3, 2016 function report completed by Plaintiff. (AR 21, 258- 25 265.) Plaintiff asserted that she could not work due to chronic pain throughout her body (AR 21,

26 258.) Plaintiff reported that she woke up and was unable to get out of bed for about an hour. 27 (AR 259.) She found it difficult to put on her tops, to wash and do her hair, to wash her body,

28 and she had difficulty shaving because it was hard to bend. (AR 259.) Plaintiff stated she did

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1 not prepare her own meals, but contrarily stated that on a good week she prepared meals two to 2 three times and only once in a bad week. (AR 260.) She stated it took her one hour to prepare a 3 meal. (AR 260.) She could not prepare meals because it was hard to use a knife and open 4 containers. (AR 260.) Plaintiff did laundry on a good day but did not do any outside work or 5 ironing. (AR 260.) On a good day it would take her about one and a half hours to do laundry, 6 and on a bad day she would spend three hours doing laundry. (AR 260.) Her husband would 7 remind her to lean on things and take her time. (AR 260.) Plaintiff stated she was unable to do 8 house or yard work because she was not able to bend or lift because of her weak hand and her 9 feet hurt. (AR 261.) 10 Plaintiff stated she did not spend her day inside. (AR 261.) Her feet hurt when she stood 11 and she had lots of depression. (AR 261.) Plaintiff was able to ride in a car and her sister took 12 her where she needed to go. (AR 261.) Plaintiff did not drive because her hands bothered her 13 and she was too depressed and suffered from anxiety. (AR 261.) Plaintiff’s sister would take 14 her to shop in stores or Plaintiff’s husband would do the shopping. (AR 261.) Plaintiff went 15 shopping about two to three times per month. (AR 261.) Her husband takes care of the bills and 16 her ability to handle money had not changed since her condition began. (AR 261-262.) 17 Plaintiff’s hobbies were reading and watching television. (AR 262.) She watched 18 television daily. (AR 262.) Plaintiff did not spend much time with others due to her depression.

19 (AR 262.) She would spend time with others two to three times per month. Plaintiff stated she 20 did not go anywhere on a regular basis but went places at least two times per week with her

21 sister, husband, or daughter. (AR 262.) 22 Plaintiff does not have any problems getting along with people but does not have much of 23 a social life due to her depression, anxiety, and pain. (AR 263.) Plaintiff had difficulty lifting, 24 squatting, bending, standing, walking, kneeling, climbing stairs, using her hands and getting 25 along with others, as well as difficulty with memory, completing tasks and concentration. (AR

26 263.) She reported she cannot do any heavy lifting due to pain, lack of motivation, depression 27 and anxiety and preferred to be by herself in bed. (AR 263.) Plaintiff can walk for thirty

28 minutes on a good day and then needs to rest for twenty minutes. (AR 263.) She can pay

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1 attention for twenty minutes and does not finish what she starts. (AR 263.) Plaintiff does not 2 have any problems following written instructions on a good a day and is unsure on a bad day. 3 (AR 263.) She can follow spoken instructions pretty well but lacks motivation. (AR 263.) 4 Plaintiff gets along with authority figures and has never been fired or laid off from a job. (AR 5 263.) 6 She stated she was not handling stress well at the moment and did not want to do 7 anything stressful. (AR 264.) She does not handle changes in routine well. (AR 264.) She was 8 fearful of taking narcotics for her pain due to her past addiction. (AR 264.) Plaintiff was taking 9 medication which caused side effects of constipation, insomnia, fatigue, dizziness, stomach 10 aches, dry mouth, sleep, dark urine, weight change, confusion, and light headedness when 11 getting up. (AR 265.) 12 The ALJ also considered that at the hearing, Plaintiff testified she was unable to work 13 primarily due to diffuse body pain, urinary incontinence, and anxiety. (AR 21.) She stated she 14 could only stand for about forty five minutes at one time, could sit for about thirty minutes at one 15 time, and could walk about one block before needing to rest. (AR 21.) She reported that she was 16 able to prepare meals and do laundry without assistance, but her sister helped her with household 17 chores. (AR 21.) 18 The ALJ noted “that there are some inconsistencies between the claimant’s allegations

19 and her self-reported daily activities prior to the date last insured.” (AR 21.) 20 Specifically, while the claimant has alleged that she was limited in her ability to work at any exertional level, the record reflects that she can perform at least some 21 activities of daily living, such as preparing meals, laundering clothes, and grocery shopping with assistance. While such activities are not determinative of the 22 ultimate issue in the case, they are suggestive of greater function than alleged. 23 (AR 21 (internal citation omitted).) The ALJ also found Plaintiff’s assertion that she was unable

24 to work to be inconsistent with the medical record and probative mental health examinations that 25 showed normal or largely unremarkable physical and mental examinations during the relevant

26 period. (AR 21.) 27 Defendant argues that the ALJ could properly discredit Plaintiff’s testimony regarding

28 her daily activities where they contradict her claim of a totally debilitating impairment. “[T]he

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1 mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract 2 from her credibility as to her overall disability.” Orn, 495 F.3d at 639 (citing Vertigan v. Halter, 3 260 F.3d 1044, 1050 (9th Cir. 2001)). In addressing the claimant’s testimony, “the ALJ must 4 specifically identify the testimony she or he finds not to be credible and must explain what 5 evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 6 2001). “Inconsistencies between a claimant’s testimony and the claimant’s reported activities 7 provide a valid reason for an adverse credibility determination.” Burrell v. Colvin, 775 F.3d 8 1133, 1137 (9th Cir. 2014). However, “[g]eneral findings are insufficient; rather, the ALJ must 9 identify what testimony is not credible and what evidence undermines the claimant’s 10 complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at 834). “To support a lack of 11 credibility finding, the ALJ was required to point to specific facts in the record that would 12 support the lack of credibility finding. Burrell, 775 F.3d at 1138. 13 Here, the ALJ found that Plaintiff’s testimony that she was able to do laundry, prepare 14 meals and shop with assistance suggested that she had greater functioning but the ALJ did not 15 identify “which daily activities conflicted with which part of Claimant’s testimony.” Burrell, 16 775 F.3d at 1138. The ALJ did not identify any conflicts between Plaintiff’s testimony to 17 support an adverse credibility finding based on her daily activities. 18 While the ALJ also found that medical record was inconsistent with Plaintiff’s testimony,

19 the ALJ cannot discredit Plaintiff’s pain testimony solely because it is found not to be supported 20 by the objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)

21 (citing 20 C.F.R. § 404.1529(c)(2)); Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991). The 22 ALJ did not identify any other reasons to discredit Plaintiff’s testimony. Therefore, even if there 23 is substantial evidence to support the ALJ’s finding that the clinical evaluations and objective 24 evidence are inconsistent with Plaintiff’s complaints, the ALJ could not properly reject 25 Plaintiff’s testimony for this reason alone. See Bunnell, 947 F.2d at 347. 26 The Court finds that the ALJ erred by failing to provide clear and convincing reasons to 27 reject Plaintiff’s symptom testimony. 28 / / /

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1 C. Remand for Further Proceedings 2 Plaintiff seeks remand for payment of benefits arguing the three part test has been met 3 and there is no serious doubt that she is disabled looking at the record as a whole. Defendant 4 counters that if remand is necessary the ordinary remand rule should apply and the matter should 5 be remanded for further proceedings. 6 The ordinary remand rule provides that when “the record before the agency does not 7 support the agency action, ... the agency has not considered all relevant factors, or ... the 8 reviewing court simply cannot evaluate the challenged agency action on the basis of the record 9 before it, the proper course, except in rare circumstances, is to remand to the agency for 10 additional investigation or explanation.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 11 1090, 1099 (9th Cir. 2014). This applies equally in Social Security cases. Treichler, 775 F.3d at 12 1099. Under the Social Security Act “courts are empowered to affirm, modify, or reverse a 13 decision by the Commissioner ‘with or without remanding the cause for a rehearing.’ ” Garrison 14 v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014) (emphasis in original) (quoting 42 U.S.C. § 15 405(g)). The decision to remand for benefits is discretionary. Treichler, 775 F.3d at 1100. In 16 Social Security cases, courts generally remand with instructions to calculate and award benefits 17 when it is clear from the record that the claimant is entitled to benefits. Garrison, 759 F.3d at 18 1019. 19 The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which 20 must be satisfied in order for a court to remand to an ALJ with instructions to calculate and 21 award benefits: (1) the record has been fully developed and further administrative proceedings 22 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 23 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 24 discredited evidence were credited as true, the ALJ would be required to find the claimant 25 disabled on remand.” Garrison, 759 F.3d at 1020. The credit as true doctrine allows “flexibility”

26 which “is properly understood as requiring courts to remand for further proceedings when, even 27 though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a

28 whole creates serious doubt that a claimant is, in fact, disabled. Id. at 1021. Even when the

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1 circumstances are present to remand for benefits, “[t]he decision whether to remand a case for 2 additional evidence or simply to award benefits is in our discretion.” Treichler. 775 F.3d at 1102 3 (quoting Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)). 4 The ALJ failed to provide clear and convincing reasons to reject Plaintiff’s symptom 5 testimony. However, “a reviewing court is not required to credit claimants’ allegations regarding 6 the extent of their impairments as true merely because the ALJ made a legal error in discrediting 7 their testimony.” Treichler, 775 F.3d at 1106. It is only where “there are no outstanding issues 8 that must be resolved before a determination of disability can be made,” that the court has the 9 “discretion to credit a claimant’s testimony as true and remand for benefits, and only then where 10 ‘it is clear from the record that the ALJ would be required to find [the claimant] disabled’ were 11 such evidence credited.” Id. 12 Viewing the totality of the evidence in the record, the Court disagrees with Plaintiff’s 13 assertion that there is no serious doubt that Plaintiff is disabled and finds that remand for further 14 consideration is warranted. While the ALJ did err by failing to provide clear and convincing 15 reasons to reject Plaintiff’s pain testimony, “[a] claimant is not entitled to benefits under the 16 statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may 17 be.” Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). Review 18 of the record raises a doubt as to whether Plaintiff is disabled. 19 Specifically, while Plaintiff’s July 3, 2016 function reported asserted that she had 20 numerous limitations due to pain and depression, there is evidence in the record that Plaintiff 21 reported improvement with her medication which was controlling her symptoms of depression 22 during 2012 and 2013. (AR 326, 329, 333, 335, 338.) After Plaintiff was released from prison, 23 she returned to treatment with Dr. Guzzetta in 2015 and on August 3, 2015, reported that 24 everything was going well and she felt great. (AR 353.) She denied any anxiety or depression. 25 (AR 353.) She continued to report improvement through March 2016. (AR 356, 359, 362.) It

26 also appears that Plaintiff was taking care of her four year old grandson until September 2016. 27 (AR 433, 542.) Additionally, as defendant points out there is substantial evidence discussed

28 above that Plaintiff was non-complaint with treatment recommendations from her treating

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1 rheumatologist, Dr. Barry. (AR 433, 541.) Viewing this along with the objective findings in the 2 medical record, there remains a question as to whether Plaintiff is actually disabled. 3 Accordingly, this matter shall be remanded for the ALJ to address Plaintiff’s symptom 4 testimony. 5 The ALJ is advised that the Social Security regulations require the Commissioner to set 6 forth a discussion of the evidence, and the reason or reasons upon which the decision is based. 7 42 U.S.C. § 405(b)(1)). The agency must explain its reasoning in order for the Court to be able 8 to perform a meaningful review. The Ninth Circuit has held that to meet the burden, the ALJ 9 must “specifically identify the testimony [from a claimant] she or he finds not to be credible and 10 . . . explain what evidence undermines the testimony.” Treichler, 775 F.3d at 1102 (quoting 11 Holohan, 246 F.3d at 1208). Accordingly, “[g]eneral findings are insufficient” for an ALJ to 12 meet the burden of setting forth clear and convincing reasons to reject a claimant’s testimony. 13 Treichler, 775 F.3d at 1102. 14 V. 15 CONCLUSION AND ORDER 16 Based on the foregoing, the Court finds that the ALJ did not err in the weight provided 17 to her treating physicians’ opinions, but did err by failing to identify clear and convincing 18 reasons to reject her symptom testimony. Accordingly, IT IS HEREBY ORDERED that

19 Plaintiff’s appeal from the decision of the Commissioner of Social Security is GRANTED IN 20 PART and this matter is remanded back to the Commissioner of Social Security for further

21 proceedings consistent with this order.

22 IT IS SO ORDERED.

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24 Dated: May 17, 2021 UNITED STATES MAGISTRATE JUDGE 25

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