1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ANNIE LARA, Case No. 1:22-cv-00992-SKO 9 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL 10 v. SECURITY COMPLAINT 11 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 12 (Doc. 1) Defendant. 13 _____________________________________/ 14
15 I. INTRODUCTION 16 17 Plaintiff Annie Lara (“Plaintiff”) seeks judicial review of a final decision of the 18 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for 19 disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The matter 20 is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 21 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 22 II. FACTUAL BACKGROUND 23 On November 1, 2018, Plaintiff protectively filed an application for DIB payments, alleging 24 she became disabled on January 5, 2016, due to frequent seizures, fatigue, headaches, sciatic nerve 25 pain, thyroid issues, and depression. (Administrative Record (“AR”) 17, 63, 82, 317, 318, 356, 368.) 26 Plaintiff was born on November 15, 1970, and was 45 years old on the alleged onset date. (AR 32, 27 62, 81, 356,368.) She has at least a high school education and is able to communicate in English. 28 1 (AR 32, 44, 316, 318.) Plaintiff has past work as a store packer. (AR 32, 57, 329, 354.) 2 A. Relevant Medical Evidence2 3 In November 2015, Plaintiff reported to her physical therapist that she had a seizure two days 4 earlier. (AR 541.) She also reported that she experienced “mild migraines.” (AR 502.) 5 Plaintiff presented for a brain MRI in September 2018, which was indicated for her clinical 6 history of headaches, seizures, and trouble with speech. (AR 576.) The MRI showed no abnormal 7 enhancement to suggest a focal mass and no evidence of mesial temporal sclerosis. (AR 576.) An 8 EEG performed that same month was abnormal and consistent with a seizure disorder. (AR 600, 9 1004.) 10 In October 2018, Plaintiff presented for a follow up appointment with her primary care 11 physician and reported that she had had a seizure a few days earlier, which lasted five minutes. (AR 12 609, 775.) Her primary care physician referred her to neurology. (AR 610, 776.) Plaintiff 13 complained of headaches in November 2018, which was attributed to sinusitis and rhinitis. (AR 14 582.) 15 In February 2019, consultative examiner Robert Wagner, M.D., performed a comprehensive 16 internal medicine evaluation of Plaintiff, who complained of seizures and low back pain. (AR 744– 17 49.) Her medical history was noted to be “significant” for headaches. (AR 745.) Plaintiff was 18 driven to the clinic by another person, and reported her history of seizures since age nine, with her 19 most recent seizure being the day before. (AR 744.) She reported that she experiences seizures 20 about three times a week, which she describes as feeling “noise in her head” and with slurred speech 21 and an inability to speak. (AR 744.) According to Plaintiff, the seizures last a few minutes. (AR 22 744.) She reported that has always had an active driver’s license. (AR 744.) Plaintiff takes Keppra 23 and Tegretol for seizure activity. (AR 744.) She reported that she lives with her significant other 24 and two children, and that she cooks, cleans, drives, shops, performs her own activities of daily 25 living without assistance, and walks some for exercise. (AR 745.) Dr. Wagner characterized 26 Plaintiff’s seizures as “absence type seizures,” and opined that she should avoid working around 27
28 2 As Plaintiff’s assertion of error is limited to the ALJ’s consideration of Plaintiff’s subjective complaints, only 1 unprotected heights or heavy machinery. (AR 748.) 2 Following lab work, Plaintiff’s seizure medication was adjusted in May 2019. (AR 859, 3 860.) In December 2019, Plaintiff reported to her primary care physician that she was having weekly 4 seizure activity. (AR 848.) Her medication was adjusted and she was referred to a neurologist for 5 epilepsy. (AR 848.) 6 In June 2020, Plaintiff reported to her primary care physician that she is having seizures, 7 which “caus[e] her to go blank.” (AR 1249.) She reported experiencing “unilateral numbness to 8 the side of her head” with slurred speech once or twice a week for five to ten minutes. (AR 1249.) 9 According to Plaintiff, her last neurology assessment was five years earlier. (AR 1249.) She denied 10 headaches. (AR 1250.) The provider discussed Plaintiff’s Keppra level of 9.0, which was “on the 11 low end.” (AR 1249.) She was again referred to neurology. (AR 1252.) 12 In October 2020, Plaintiff underwent a neurology evaluation. (AR 1135–39.) She reported 13 that in high school she “outgrew” the grand mal seizures she had as a child and now only has “vocal” 14 symptoms, in that she “knows what she is going to say” and can write it out but the “[w]ords don’t 15 come out.” (AR 1135, 1288.) She reported that there is a “sense of noise in her mind” that warns 16 her “something is coming on.” (AR 1135, 1288.) Plaintiff has such episodes twice a week and they 17 last one to twelve minutes. (AR 1135, 1288.) The neurologist reduced one of Plaintiff’s seizure 18 medications and requested that Plaintiff “[p]rovide written documentation during the events of 19 unable to speak.” (AR 1138, 1291.) In November 2020, Plaintiff attended a seizure medication 20 refill appointment. (AR 1153.) She denied any “recent seizure-like activity.” (AR 1153.) 21 Plaintiff presented for a follow up with a neurologist in March 2021. (AR 1126–28, 1278– 22 90.) She reported “doing ok” and that her last seizure was two days earlier, which lasted “15 23 seconds” and she described as “noise in her head.” (AR 1126, 1278.) She also stated that she had 24 “trouble speaking” during the episodes, which occurred four to five times per week, but she did not 25 lose consciousness. (AR 1126, 1278.) Plaintiff reported that in the past two months she “noted less 26 frequent bigger seizures” and “felt better” when her medication was adjusted. (AR 1126, 1278.) 27 She also reported that she gets migraines three to four times per month and that the headaches can 28 last one to one-and-a-half days. (AR 1126, 1278.) The neurologist increased her seizure medication 1 and prescribed pain medication. (AR 1126–27, 1278–79.) 2 In June 2021, Plaintiff reported to her primary care physician a diagnosis of migraines. (AR 3 1213.) She stated that she gets a headache two to three times per week. (AR 1213.) The provider 4 assessed Plaintiff with “chronic tension-type headache.” (AR 1214.) She noted her impression that 5 Plaintiff’s headaches “may be abdominal migraine.” (AR 1215.) 6 B. Plaintiff’s Statement 7 In December 2018, Plaintiff completed an “Adult Function Report.” (AR 344–51.) She 8 reported that her seizures interrupt her speech in the middle of a conversation. (AR 344.) Plaintiff 9 stated she could prepare complete meals or sandwiches, but if seizures were present that day, she 10 would not use the stove, only the microwave. (AR 47–48, 346.) She reported that she goes outside 11 almost every day and can drive and shop in stores. (AR 347.) According to Plaintiff, she reads and 12 watches television daily, and plays Bingo two or three times per month. (AR 348.) She also 13 socializes with others, visits restaurants, and attends church on a regular basis. (AR 348.) 14 C. Administrative Proceedings 15 The Commissioner denied Plaintiff’s applications for benefits initially on March 22, 2019, 16 and again on reconsideration on June 19, 2019. (AR 17, 105–110, 112–17.) Consequently, Plaintiff 17 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 118–56.) At the hearing on 18 March 15, 2022, Plaintiff appeared with counsel and testified before an ALJ as to her alleged 19 disabling conditions. (AR 44–57.) 20 1. Plaintiff’s Testimony 21 Plaintiff testified that she had previously kept a seizure journal, but only to provide to one 22 doctor, whom she had not seen for very long. (AR 47.) She stated that she was experiencing 23 headaches about two to three days per week that would last up to five hours, and that she would need 24 to rest for the remainder of the day. (AR 47–48.) She also needed to rest for the remainder of the 25 day if she experienced a seizure. (AR 48.) 26 Plaintiff testified that her “biggest problem” with her seizures was her speech, and that she 27 had had one episode in which she could not speak for 45 minutes. (AR 49, 50.) According to 28 Plaintiff, she had trouble speaking due to seizure symptoms three to four times per week. (AR 50.) 1 She testified that she takes medication for seizures and migraines, but she had not been to the 2 emergency department for those symptoms for years prior to the hearing. (AR 50–51.) 3 Plaintiff testified that she took a nap every day for at least an hour, but all day if she had a 4 seizure or headache. (AR 55.) She also cannot focus or concentrate on days when she has a seizure 5 or headache. (AR 56.) 6 Plaintiff testified that she has a driver’s license and that she “only drive[s] to church on 7 Sundays.” (AR 46.) She can take care of her personal care so long as she not experiencing seizures 8 or migraines. (AR 52.) According to Plaintiff, she can cook meals and clean up, but that she cannot 9 do so on “seizure and migraine days.” (AR 52.) Plaintiff testified that on those days, she can do 10 “[a]bsolutely nothing” and must rest. (AR 52.) She no longer plays Bingo because she cannot sit 11 for that long. (AR 53.) 12 2. Vocational Expert’s Testimony 13 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a hand 14 packager. (AR 57.) The ALJ asked the VE to consider a person of Plaintiff’s age, education, and 15 past work history. (AR 58.) The VE was also to assume this person is limited to a light exertional 16 level, but that she was limited to jobs that do not require the use of ladders, ropes, or scaffolds. (AR 17 58.) The individual could occasionally climb stairs and ramps. (AR 58.) The individual could 18 occasionally bend, balance, crouch, stoop, and kneel, but never crawl (AR 58.) The individual could 19 frequently push and pull with her lower extremities. (AR 58.) The individual would be limited to 20 jobs that do not have exposure to dangerous machinery or moving machine parts as well as 21 unprotected heights, and would need to avoid concentrated exposure to extreme cold or heat, 22 vibration, or poorly ventilated workspaces. (AR 58.) The individual could handle, finger, feel, and 23 frequently reach with the bilaterally upper extremities. (AR 58.) The VE testified that such a person 24 could not perform Plaintiff’s past work, but could perform other light jobs in the national economy 25 with a specific vocational preparation (SVP)3 of 2, such as office helper, Dictionary of Operational 26 3 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 Titles (DOT) code 239.567-010; information clerk, DOT 237.367-018; and mail sorter, DOT code 2 209.687-026. (AR 58–59.) 3 The ALJ asked the VE to consider a person with the same limitations as in the first 4 hypothetical, but with additional limitations that she could handle, finger, feel, and reach only 5 occasionally with her bilateral upper extremity. (AR 59.) The VE testified that there would be no 6 work such a person could perform. (AR 59.) The VE further testified that being off task more than 7 10% of the workday, or missing two or more days of work per month, is work preclusive. (AR 55.) 8 The ALJ asked the VE to consider a third hypothetical regarding the first hypothetical person 9 but with the additional limitations that the person would require additional breaks of ten minutes 10 each hour beyond normal breaks, and/or miss two days a month from an inability to concentrate on 11 tasks, persist in job duties, or to remain on a necessary job pace due symptoms, limitations, treatment, 12 and side effects, including a need to elevate the legs for several hours each day. (AR 60.) The VE 13 testified that such limitations would “exceed employee tolerance,” such that there would “be no 14 competitive employment.” (AR 60.) In response to Plaintiff’s attorney, the VE further testified that 15 the need for additional breaks and absenteeism “each on their own would preclude work.” (AR 60.) 16 D. The ALJ’s Decision 17 In decision dated April 14, 2022, the ALJ found that Plaintiff was not disabled. (AR 17– 18 31.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 19 19–31.) The ALJ decided that Plaintiff met the insured status requirements of the Act through 20 March 31, 2023, and she had not engaged in substantial gainful activity since January 5, 2016, the 21 alleged onset date (step one). (AR 19.) At step two, the ALJ found Plaintiff’s following 22 impairments to be severe: lumbar degenerative disc disease, sacroiliitis, cervical spondylosis, 23 internal derangement of the left knee, right knee chondromalacia patella, seizure disorder, and 24 chronic headaches. (AR 20–23.) Plaintiff did not have an impairment or combination of 25 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 26 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 23–24.) 27 28 1 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the 2 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 3 to step four, we assess your residual functional capacity . . . . We use this residual functional 4 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 5 The ALJ determined that, through the date last insured, Plaintiff had the RFC: 6 to perform light work as defined in 20 CFR [§] 404.1567(b) except that she is limited to jobs that do not require the use of ropes, ladders, or scaffolds. She can 7 occasionally climb ramps and steps. She can occasionally balance, bend, stoop, 8 and kneel, but never crawl. She can frequently push and pull with the lower extremities. She is limited to jobs that do not have exposure to dangerous 9 machinery or moving machine parts, as well as unprotected heights. She needs to avoid concentrated exposure to extreme cold or heat, vibration, or poorly ventilated 10 workspaces. She can handle, finger, feel, and reach frequently with her bilateral upper extremities. 11 12 (AR 24–31.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 13 expected to cause the alleged symptoms[,]” they rejected Plaintiff’s subjective testimony as “not 14 entirely consistent with the medical evidence and other evidence in the record . . . .” (AR 25.) The 15 ALJ determined that Plaintiff was unable to perform her past relevant work (step 4), but was not 16 disabled because, given her RFC, she could perform a significant number of other jobs in the local 17 and national economies, specifically office worker, information clerk, and mail sorter (step 5). (AR 18 31–33.) The ALJ concluded Plaintiff was not disabled at any time from January 5, 2016, through 19 the date of the decision. (AR 33.) 20 Plaintiff sought review of the ALJ’s decision before the Appeals Council, which denied 21 review on June 7, 2022. (AR 5–10.) Therefore, the decision became the final decision of the 22 Commissioner. 20 C.F.R. § 404.981. 23 24
25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 2 A. Applicable Law 3 An individual is considered “disabled” for purposes of disability benefits if they are unable 4 “to engage in any substantial gainful activity by reason of any medically determinable physical or 5 mental impairment which can be expected to result in death or which has lasted or can be expected 6 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 7 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 8 impairment or impairments are of such severity that [they] are not only unable to do [their] previous 9 work but cannot, considering [their] age, education, and work experience, engage in any other kind 10 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 11 “The Social Security Regulations set out a five-step sequential process for determining 12 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 13 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 14 following description of the sequential evaluation analysis: 15 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 16 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 17 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 18 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 19 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the 20 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 21 claimant is not disabled. If not, the claimant is disabled. 22 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 23 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 24 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 25 “The claimant carries the initial burden of proving a disability in steps one through four of 26 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 27 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 28 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 1 Id. (citing Swenson, 876 F.2d at 687). 2 B. Scope of Review 3 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 4 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 5 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such 6 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 8 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 9 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 10 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 11 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 12 only if that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell 13 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s 14 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., 15 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more 16 than one rational interpretation, the court may not substitute its judgment for that of the 17 Commissioner.”) (citations omitted). 18 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 19 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 20 determine whether the Commissioner applied the proper legal standards and whether substantial 21 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 22 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply 23 by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa 24 v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a 25 whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 26 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 27 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 1 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 2 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti 3 v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 4 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party 5 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations 6 omitted). 7 IV. DISCUSSION 8 Plaintiff contends that the ALJ failed to articulate clear and convincing reasons for 9 discounting Plaintiff’s statements regarding her seizure disorder symptoms. (Doc. 14 at 5–9; Doc. 10 17 at 2–7.) The Acting Commissioner responds that the ALJ properly relied on evidence in the 11 record that undermined the credibility of Plaintiff’s allegations of disabling symptoms and 12 limitations. (Doc. 16 at 7–15.) The Court agrees with the Acting Commissioner. 13 A. Legal Standard 14 The test for deciding whether to accept a claimant’s subjective symptom testimony turns on 15 whether the claimant produces medical evidence of an impairment that reasonably could be expected 16 to produce the symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); see also 17 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1281–82 & 18 n.2 (9th Cir. 1996). The Commissioner may not discredit a claimant’s testimony on the severity of 19 symptoms merely because they are unsupported by objective medical evidence. Reddick, 157 F.3d 20 at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s testimony not credible, the 21 ALJ “must specifically make findings which support this conclusion.” Bunnell, 947 F.2d at 345. 22 The ALJ must set forth “findings sufficiently specific to permit the court to conclude that the ALJ 23 did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 24 2002); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell, 947 F.2d at 345- 25 46. Unless there is evidence of malingering, the ALJ can reject the claimant’s testimony about the 26 severity of a claimant’s symptoms only by offering “specific, clear and convincing reasons for doing 27 so.”5 Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must identify what 28 1 testimony is not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; 2 Smolen, 80 F.3d at 1284. 3 B. Analysis 4 As noted above, in determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically 5 determinable impairments reasonably could be expected to cause the alleged symptoms. (AR 22.) 6 The ALJ, however, also found that Plaintiff’s statements regarding the intensity, persistence and 7 limiting effects of these symptoms were “not entirely consistent” with the RFC. (AR 22.) Because 8 the ALJ did not make any finding of malingering, the ALJ was required to provide clear and 9 convincing reasons supported by substantial evidence for discounting Plaintiff’s subjective symptom 10 allegations. Smolen, 80 F.3d at 1283-84; Tommasetti, 533 F.3d at 1039–40. Here, the ALJ provided 11 at least three valid reasons for not fully recrediting Plaintiff’s statements regarding her seizure 12 disorder symptoms. 13 1. Inconsistency with Medical Evidence 14 Plaintiff testified that she can do “absolutely nothing” on days that she experiences a seizure 15 or headache, which is two to three days per week, and must instead rest all day. (AR 47–48, 52.) 16 However, the ALJ found this testimony to be inconsistent with the medical record, which shows that 17 Plaintiff worked despite her seizure condition and that there was “no significant change in her 18 reported seizure activity around her alleged onset date.” (AR 29.) The ALJ further found that the 19 medical record lacks documented reports of “serious or frequent symptoms” or “serious limitations 20 associated with these conditions.” (AR 29.) 21 An ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical 22 evidence to fully corroborate the alleged severity of [the impairment].” Burch, 400 F.3d at 680. 23 Nonetheless, “lack of medical evidence . . . is a factor that the ALJ can consider in [their] credibility 24 analysis.” Burch, 400 F.3d at 681. See also Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 25 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 26 In this case, the record demonstrates that Plaintiff has had seizures since she was nine years 27 old. (AR 744.) Despite this, she worked as a packager at Best Buy from 2000 until March 2016, 28 after her alleged onset date. (AR 355. See also AR 317–19.) A summary of 362 pages of Plaintiff’s 1 treatment notes by an independent medical examiner does not indicate any significant change in 2 seizure activity around her alleged onset date. (AR 1087, 1092–93.) Nor does the medical record 3 contain documented reports of worsening symptoms or serious limitations associated with Plaintiff’s 4 headaches or seizures. Shortly before the relevant period, Plaintiff described her headaches as 5 “mild.” (AR 502.) On several occasions, Plaintiff failed to mention any headache symptoms 6 associated with her seizure disorder at all (see AR 744, 1135, 1288), and, in June 2020, expressly 7 denied headaches (AR 1250). Plaintiff reports of her seizure disorder during the relevant period, 8 while consistent, similarly do not indicate any increase in frequency or severity during this time. 9 (AR 609, 776 (October 2018: incidence of a five-minute seizure); AR 744 (February 2019: seizures 10 affect ability to speak, occur three times per week, and last a few minutes); AR 848 (December 2019: 11 “weekly” seizure activity reported); AR 1135, 1288 (October 2020: seizure episodes occur twice a 12 week, last one to twelve minutes, and cause an inability to speak); AR 1153 (November 2020: 13 denying any “recent seizure-like activity”); AR 1126, 1278 (March 2021: seizures occurred four to 14 five times per week, during which she had “trouble speaking”).) 15 Despite bearing the burden of proving her disability, Plaintiff does not point to any evidence 16 to the contrary. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (noting that claimant bears 17 burden of proving that she is disabled and must present “complete and detailed objective medical 18 reports of her condition from licensed medical professionals”). The record does not contain any 19 opinions from treating or examining physicians indicating that Plaintiff is disabled as a result of her 20 seizure disorder or that she has limitations greater than those determined in the ALJ’s decision. 21 Plaintiff does not challenge, for example, the ALJ’s consideration of the opinion of the consultative 22 examiner, Dr. Wagner, who found that Plaintiff’s seizure disorder warrants only environmental 23 limitations (AR 748), all of which the ALJ incorporated in Plaintiff’s RFC (AR 24). While she 24 obviously disagrees with the ALJ’s assessment of the medical record, Plaintiff fails to articulate 25 exactly how the record supports her belief that her seizure disorder and headaches result in greater 26 limitations than those found by the ALJ. Instead, Plaintiff criticizes the ALJ’s “general citations to 27 entire exhibits,” suggesting that the ALJ’s citations to the record render their reasoning “not 28 sufficiently specific” enough to be clear and convincing. (See Doc. 14 at 6 (citing Brown-Hunter v. 1 Colvin, 806 F.3d 487, 493 (9th Cir. 2015).) Had the ALJ only cited to entire exhibits in rejecting 2 Plaintiff’s subjective statements, Plaintiff’s argument might have merit. However, the ALJ 3 thereafter cited to specific records within these exhibits, summarized above, that support their 4 conclusion that Plaintiff’s claims of total disablement are uncorroborated by the medical record. See 5 Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s 6 findings are upheld if supported by inferences reasonably drawn from the record”). 7 For the foregoing reasons, the Court finds the ALJ’s conclusion that the evidentiary record 8 does not support, and in fact undermines, Plaintiff’s subjective statements is supported by substantial 9 evidence. The ALJ’s determination that Plaintiff’s complaints are inconsistent with the objective 10 medical evidence is therefore a clear and convincing reason for discounting her subjective symptom 11 testimony. See Molina, 674 F.3d at 1113 (concluding that the ALJ properly discredited claimant 12 testimony based on inconsistencies with objective medical evidence).; 20 C.F.R. § 404.1529(c)(3). 13 2. Conservative Treatment 14 The ALJ also noted that, despite Plaintiff’s statements of total disablement as a result of her 15 seizure disorder, the medical record shows that she did not regularly treat with a neurologist, and 16 that her first visit with a neurologist during the relevant period was not until October 2020. (AR 29 17 (citing AR 1135–39); see also AR 1249 (reporting last neurology assessment occurred in 2015).) 18 The ALJ also observed that the “level” of Keppra, a medication used to treat Plaintiff’s seizure 19 disorder, was noted to be relatively low. (AR 29 (citing AR 1249).) Plaintiff had no emergency 20 room visits or hospitalizations for seizures or headaches during the relevant period. (AR 25, 50– 21 51.) While one imaging study was positive for seizure disorder (AR 600, 1004), another showed no 22 brain lesions, scarring, or masses (AR 576). 23 Plaintiff does not dispute any of the foregoing evidence. She instead asserts the ALJ’s 24 reasoning is “belied by the record” because Plaintiff’s Keppra level is not an “indicator of . . . 25 whether the dosage or treatment is conservative.” (Doc. 17 at 5–6.) But, as Plaintiff herself points 26 out, a Keppra level of 9.0, as was noted in June 2020, is not “effective.” (Id. at 6 (quoting Peters v. 27 Colvin, No. CV 13-8907-JPR, 2015 WL 349421, at *7 n.9 (C.D. Cal. Jan. 23, 2015) (“Levetiracetam 28 [Keppra)] must be present at a concentration of between 12 and 46 mcg/mL to be effective.”).) It 1 was reasonable, then, for the ALJ to conclude that Plaintiff’s Keppra regimen was conservative, 2 given the evidence showing it at a sub-therapeutic level in her system. 3 In arguing that her treatment was not conservative, Plaintiff also points to the fact that she 4 was taking another seizure medication (carbamazepine/Tegretol), in addition to Keppra. (See Doc. 5 17 at 6.) While true, it does not undermine the ALJ’s conclusion. See, e.g., Pena v. Comm’r of Soc. 6 Sec., No. 1:21-CV-00301-EPG, 2022 WL 4237887, at *5 (E.D. Cal. Sept. 14, 2022) (adopting the 7 ALJ’s characterization of treatment with Keppra and another seizure medication as “conservative 8 treatment”); Frias v. Colvin, No. EDCV 13-0932-MAN, 2015 WL 1005339, at *4 (C.D. Cal. Mar. 9 4, 2015) (same). Plaintiff’s course of treatment, with minimal neurology involvement and no 10 hospitalizations, stands in stark contrast to that at issue in Federico v. Comm’r of Soc. Sec. Admin., 11 where the plaintiff “was prescribed at least three antiseizure medications (Tegretol, Keppra, and 12 Depakote), she frequently sought treatment in the emergency room, she was transported to the 13 hospital via ambulance on multiple occasions, and she has undergone numerous imaging studies and 14 had many appointments relating to her seizure disorder.” No. CV-20-00508-TUC-RCC (MSA), 15 2022 WL 17481775, at *3 (D. Ariz. June 30, 2022). Moreover, at a neurology follow up appointment 16 in March 2021, Plaintiff reported that in the past two months she noted fewer “bigger seizures” and 17 “felt better” when her medication was adjusted (AR 1126, 1278). See Warre v. Comm’r of Soc. Sec. 18 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with 19 medication are not disabling for the purpose of determining eligibility for SSI benefits.”). 20 Given the substantial evidence of a conservative treatment regimen used to treat Plaintiff’s 21 seizure disorder, the ALJ was entitled to discount Plaintiff’s credibility on this basis. See, e.g., Parra 22 v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (evidence of conservative treatment is sufficient to 23 discount a claimant’s testimony regarding severity of an impairment); Johnson v. Shalala, 60 F.3d 24 1428, 1434 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment has 25 been prescribed). 26 3. Activities of Daily Living 27 Finally, the ALJ determined that Plaintiff’s claim of total disability is inconsistent with her 28 “reported significant activities.” (AR 25.) The ALJ noted that at the consultative examination by 1 Dr. Wagner, Plaintiff reported that she had active driver’s license and “continued to drive.” (AR 2 29.) She also told Dr. Wagner that she had the ability to cook, clean, shop, perform her own activities 3 of daily living without assistance, and walk for exercise. (AR 27.) In her written statement, Plaintiff 4 reported that she goes outside almost every day and can drive and shop in stores. (AR 347.) She 5 socializes with others, visits restaurants, and attends church on a regular basis. (AR 348.) She also 6 played Bingo monthly during the relevant period. (AR 347.) At the hearing, Plaintiff testified that 7 she no longer plays, not because of seizure activity but because she cannot sit for the five hours it 8 takes to play. (AR 53.) 9 An ALJ may properly consider a claimant’s daily activities when evaluating credibility. Fair 10 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (the nature of daily activities may be considered when 11 evaluating credibility). Moreover, in evaluating a claimant’s credibility, an ALJ may consider 12 inconsistencies between the claimant’s testimony and the claimant’s conduct and whether the 13 claimant engages in daily activities inconsistent with the alleged symptoms. Molina, 674 F.3d at 14 1112. Even where those activities suggest some difficulty functioning, they are grounds for 15 discrediting Plaintiff’s testimony to the extent that they contradict claims of a totally debilitating 16 impairment. Id. at 1113. 17 The Court finds that the above-described activities tend to suggest, as the ALJ concluded, 18 that Plaintiff may still be able to perform, on a sustained basis, the basic demands of the 19 representative occupations identified by the ALJ (see AR 33). See Fair, 885 F.2d at 603 (finding 20 that if a claimant has the ability to perform activities “that involved many of the same physical tasks 21 as a particular type of job, it would not be farfetched for an ALJ to conclude that the claimant’s pain 22 does not prevent her from working”); see also, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 23 1175 (9th Cir. 2008) (finding that the ALJ sufficiently explained their reasons for discrediting the 24 claimant’s testimony because the record reflected that the claimant performed normal activities of 25 daily living, including cooking, housecleaning, doing laundry, and helping her husband managing 26 finances); Morgan, 169 F.3d at 600 (ALJ’s determination regarding claimant’s ability to “fix meals, 27 do laundry, work in the yard, and occasionally care for his friend’s child” was a specific finding 28 sufficient to discredit the claimant’s credibility); Kelly v. Astrue, 471 F. App’x 674, 677 (9th Cir. 1 2012) (holding that ALJ properly made an adverse credibility finding because, in part, claimant’s 2 daily activities included driving, washing the dishes, shopping, and caring for her two children); 3 Nelson v. Colvin, No. 1:15-cv-00696-SKO, 2016 WL 3407627, at *20 (E.D. Cal. June 20, 2016) 4 (ALJ properly discredited subjective complaints of claimant who suffered from chronic back 5 problems where claimant engaged in activities such as preparing simple meals, washing dishes, 6 driving a car, shopping for groceries and household supplies 2–3 times a week, walking up to a mile, 7 using a computer for about half an hour at a time, visiting with family, mopping and vacuuming, 8 independently handling her own finances, and doing yoga tapes at home.). 9 The record also contains, as Plaintiff points out, some contrary evidence, such as her 10 testimony that she only drives on Sundays to church. (See AR 46.) The ALJ’s decision recognized 11 that Plaintiff has some work limitations because of seizure activity. (See AR 24 (incorporating the 12 workplace environmental limitations opined by Dr. Wagner in Plaintiff’s RFC) 6; see also AR 31 13 (“Given the claimant’s musculoskeletal impairments, in combination with her history of seizures 14 and headaches, the undersigned has found she would be limited to jobs that do not require the use 15 of ropes, ladders, or scaffolds, and with the above environmental limitations.”).) The Court 16 concludes that the ALJ properly discredited Plaintiff’s testimony that her limitations render her 17 completely unable to work, however. Fair, 885 F.2d at 604; see also Bunnell, 947 F.2d at 346 (“So 18 long as the adjudicator makes specific findings that are supported by the record, the adjudicator may 19 discredit the claimant’s allegations based on inconsistencies in the testimony or on relevant character 20 evidence.”). Where the ALJ makes a reasonable interpretation of Plaintiff’s testimony, it is not the 21 Court’s role to second-guess it. Rollins, 261 F.3d at 857 (affirming ALJ’s credibility determination 22 even where the claimant’s testimony was somewhat equivocal about how regularly she was able to 23 keep up with all the activities and noting that the ALJ’s interpretation “may not be the only 24 reasonable one”). 25 In sum, the Court finds the ALJ discounted Plaintiff’s subjective symptom allegations related 26 to her seizure disorder and headaches for at least three clear and convincing reasons supported by 27 6 Dr. Wagner also emphasized Plaintiff’s possession of an active driver’s license in opining only environmental 28 limitations because of her seizure disorder and headaches, which Plaintiff does not challenge. (See AR 748 (Plaintiff 1 substantial evidence. 2 V. CONCLUSION AND ORDER 3 After consideration of Plaintiff’s and Defendant’s briefs and a thorough review of the record, 4 the Court finds that the ALJ’s decision is supported by substantial evidence and is therefore 5 AFFIRMED. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant Kilolo 6 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 7 IT IS SO ORDERED. 8
9 Dated: September 6, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 10
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