(SS) Nunes v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: September 25, 2019
• Docket: 2:17-cv-02683
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 AARON EDWARD NUNES, No. 2:17-cv-2683-EFB 11 Plaintiff, 12 v. ORDER 13 ANDREW SAUL, Commissioner of Social Security 14 Defendant. 15 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 (“Commissioner”) denying his application for a period of disability and Disability Insurance 19 Benefits (“DIB”) under Title II of the Social Security Act. The parties have filed cross-motions 20 for summary judgment. ECF Nos. 13 & 16. For the reasons discussed below, the 21 Commissioner’s motion is granted and plaintiff’s motion is denied. 22 BACKGROUND 23 Plaintiff filed an application for a period of disability and DIB, alleging that he had been 24 disabled since April 14, 2012. Administrative Record (“AR”) at 167. His application was denied 25 initially and upon reconsideration. Id. at 90-93, 96-100. A hearing was held before 26 administrative law judge (“ALJ”) Carol L. Buck. Id. at 33-63. 27 ///// 28 ///// 1 On October 20, 2016, the ALJ issued a decision finding that plaintiff was not disabled 2 under sections 216(i) and 223(d) of the Act.1 Id. at 18-26. The ALJ made the following specific 3 findings:

4 1. The claimant meets the insured status requirements of the Social Security Act through 5 September 30, 2017.

6 2. The claimant has not engaged in substantial gainful activity since April 14, 2012, the alleged onset date (20 CFR 404.1571 et seq.). 7 3. The claimant has the following severe impairment: degenerative disc disease of the 8 lumbar spine with spinal stenosis and lumbar radiculopathy (20 CFR 404.1520(c)). 9 * * * 10

11 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation:

16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart 2 P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

3 * * *

4 5. After careful consideration of the entire record, the undersigned finds that the claimant has 5 the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) specifically as follows: the claimant can lift and carry twenty pounds occasionally and ten 6 pounds frequently; the claimant can stand and/or walk six hours in an eight-hour workday and sit for six hours in an eight-hour workday; the claimant can climb ramps and stairs, 7 kneel, crouch and crawl frequently; the claimant can climb ladders, ropes and scaffolds and stoop occasionally; the claimant can balance with no limitations and the claimant 8 must avoid exposure to vibrations. 9 * * * 10 6. The claimant is capable of performing past relevant work as a produce clerk. This work 11 does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565). 12 * * * 13

14 7. The claimant has not been under a disability, as defined in the Social Security Act, from April 14, 2012, through the date of this decision (20 CFR 404.1520(f)). 15

16 Id. at 20-27. 17 Plaintiff’s request for Appeals Council review was denied on November 21, 2017, leaving 18 the ALJ’s decision as the final decision of the Commissioner. Id. at 1-3. 19 LEGAL STANDARDS 20 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 21 of fact are supported by substantial evidence in the record and the proper legal standards were 22 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 23 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 24 180 F.3d 1094, 1097 (9th Cir. 1999). 25 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 26 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 27 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 28 1 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 2 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 3 N.L.R.B., 305 U.S. 197, 229 (1938)). 4 “The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 6 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 7 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 8 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 9 ANALYSIS 10 Plaintiff offers five arguments as to how the ALJ erred. First, he claims that the ALJ 11 failed to consider and assess various documented medical conditions at step two. Second, he 12 claims the ALJ erred in failing to explicitly weigh the combined impacts of all his impairments at 13 step three. Third, he claims that the ALJ made multiple errors in weighing medical opinions of 14 both Dr. Hanley, plaintiff’s chiropractor, and the state agency physicians. Fourth, he claims that 15 the ALJ failed to provide adequate reasons for disregarding his testimony regarding his pain and 16 limitations. Fifth, he argues that the ALJ’s step four and five findings are based on a flawed 17 residual functional capacity (“RFC”) assessment. 18 The court, for the reasons stated hereafter, finds none of these arguments convincing. 19 I. Failure to Consider All Medical Conditions 20 Plaintiff notes that, at step two, the ALJ identified only his “degenerative disc disease of 21 the lumbar spine with spinal stenosis and lumbar radiculopathy.” ECF No. 13 at 13; AR at 22. 22 He states that the ALJ neglected to mention and assess his: (1) arthritic hip/bone spurs; (2) two- 23 level annular tear at L4-5 and L5-S1; (3) Lumbosacral Spondylosis; (4) obesity; and (5) 24 gastroesophageal reflux disease. ECF No. 13 at 13-14. 25 The U.S. Court of Appeals for the Ninth Circuit has held that a claimant is prejudiced at 26 step two by an ALJ’s omission of an impairment only where that step is not resolved in the 27 claimant’s favor. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Here, the ALJ did 28 not find that Burch’s obesity was a ‘severe’ impairment . . . . Assuming without deciding that this 1 omission constituted legal error, it could only have prejudiced Burch in step three (listing 2 impairment determination) or step five (RFC) because the other steps, including this one, were 3 resolved in her favor.”); see also Hickman v. Comm’r, 399 F. App’x 300, 302 (9th Cir. 2010) 4 (unpublished) (“Any error in the ALJ’s failure to include a reading disorder as one of Hickman’s 5 severe impairments at step two of the analysis is harmless. The ALJ found Hickman suffered 6 from other severe impairments and, thus, step two was already resolved in Hickman’s favor.”). 7 Additionally, the failure to include an impairment in the step two analysis is harmless if the ALJ 8 considers the functional limitations that flow from said impairment in subsequent steps. Lewis v. 9 Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“The decision reflects that the ALJ considered any 10 limitations posed by the bursitis at Step 4. As such, any error that the ALJ made in failing to 11 include the bursitis at Step 2 was harmless.”). 12 The court finds that, to the extent the ALJ’s failure to assess plaintiff’s other conditions at 13 step two was error, it was harmless. Step two was resolved in plaintiff’s favor when the ALJ 14 determined that his degenerative disc disease of the lumbar spine was a severe impairment and 15 she proceeded to the step three analysis. AR at 22-23. The purpose of step two is to operate as “a 16 de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 17 1290 (9th Cir. 1996); see also Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (the Step 18 Two finding is “merely a threshold determination” that “only raises a prima facie case of a 19 disability.”); Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (“Step two is merely a 20 threshold determination meant to screen out weak claims. It is not meant to identify the 21 impairments that should be taken into account when determining the RFC.”) (internal citations 22 omitted). It follows that, since plaintiff’s claims were not screened out at this step, he was not 23 prejudiced by any error in the step-two analysis. Furthermore, the ALJ went on to state in her 24 RFC findings that she had “considered all symptoms and the extent to which these symptoms can 25 reasonably be accepted as consistent with the objective medical evidence . . . .” AR at 23; see, 26 e.g., Sara Ann W. v. Comm’r of Soc. Sec., No. 2:17-CV-00277-RHW, 2018 U.S. Dist. LEXIS 27 145544, *11-12, 2018 WL 4088771 (E.D. Wash. Aug. 27, 2018) (“[T]he ALJ specifically noted 28 that she considered all symptoms in assessing the residual functional capacity. Accordingly, the 1 Court finds the ALJ did not err in the step two analysis, and if any error did occur it was 2 harmless.”). More significantly, plaintiff fails to identify any evidence demonstrating that his 3 obesity, hip/bone spurs, annular tear, Lumbosacral Spondylosis, or GERD caused limitations not 4 accounted for in his RFC. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere 5 existence of an impairment is insufficient proof of a disability.”). Thus, any error at step-two 6 was, at most, harmless. 7 II. Failure to Weigh Combined Effect of Impairments at Step Three 8 Plaintiff notes that, at step three, the ALJ held that “[t]he claimant’s impairment does not 9 meet or medically equal the criteria of any medical listing.” AR at 22. Plaintiff argues that the 10 use of the singular “impairment” is clear evidence that the ALJ failed to assess the individual and 11 collective effect of all of his impairments. As the Commissioner correctly points out, however, 12 this would be reversible error only if plaintiff offered some theory as to how his impairments 13 actually combined to equal a listed impairment. In Lewis, the Ninth Circuit rejected an argument 14 made under similar circumstances: 15 The ALJ did not discuss the combined effects of Lewis’s impairments, or compare them to any listing. Unlike the claimants in 16 Lester and Marcia, however, Lewis has offered no theory, plausible or otherwise, as to how his seizure disorder and mental retardation 17 combined to equal a listed impairment. Nor has he pointed to evidence that shows that his combined impairments equal a listed 18 impairment. 19 … 20 The ALJ did not err in concluding that Lewis's conditions did not equal a listed impairment. 21 22 236 F.3d at 514. See also Burch, 400 F.3d at 683 (“An ALJ is not required to discuss the 23 combined effects of a claimant’s impairments or compare them to any listing in an equivalency 24 determination, unless the claimant presents evidence in an effort to establish equivalence.”). 25 Plaintiff has not shown that his impairments equal a listed impairment and, thus, he is not entitled 26 to relief on this claim. 27 ///// 28 ///// 1 III. Errors in Weighing Medical Evidence 2 Plaintiff’s arguments regarding the ALJ’s evaluation of medical evidence are subdivided 3 into two separate sub-claims. First, he contends that the ALJ offered insufficient reasons for 4 disregarding the opinions of Dr. Hanley, his chiropractor. Second, he contends that the ALJ 5 offered insufficient reasons for assigning great weight to the opinions of non-examining state 6 agency physicians Sheehy and Christian. Neither argument is persuasive. 7 A. Dr. Hanley 8 The ALJ may discount testimony from non-acceptable medical sources, like chiropractors, 9 if she provides reasons germane to that witness for doing so. See Mollina v. Astrue, 674 F.3d 10 1104, 1111 (9th Cir. 2012). And, at the times relevant to plaintiff’s disability claims, a 11 chiropractor was considered an “other source.” See, e.g., Ball v. Colvin, 607 F. App’x 709, 710 12 (9th Cir. 2015). The question, then, is whether the ALJ provided germane reasons for discounting 13 Dr. Hanley’s opinions. In her decision, the ALJ discounted Dr. Hanley’s opinion for several 14 reasons. She noted that Dr. Hanley’s assessment was: (1) made very near to plaintiff’s onset date 15 and was not consistent with more recent medical records; (2) inconsistent with other, more recent 16 medical findings indicating that plaintiff’s condition was stable; and (3) inconsistent with 17 plaintiff’s activities of daily living. AR at 25. The ALJ’s reasons were germane. 18 Dr. Hanley authored his findings in August of 2012 and June of 2013. AR at 283, 306. In 19 June of 2013, Dr. Hanley assessed the following work restriction for plaintiff: 20 Patient should be restricted from lifting greater than 70 pounds, 8-12 times per day. He should be precluded from repetitive bending and 21 lifting. He is precluded from any static standing greater than 10 minutes without a brief break to change positions before resuming. 22 He is precluded from any static sitting or driving greater than 2 hours without a brief break to change positions to standing before resuming 23 another stint. He should be precluded from any occupations that require prolonged static forward flexed postures. 24 25 AR at 317. His diagnoses, issued alongside the foregoing restriction, found “desiccation with 26 internal disruption” of the L4-L5 disc and L5-S1 disc. Id. Dr. Hanley also diagnosed left thigh 27 paresthesias. Id. He noted that previous procedures undertaken to treat these conditions had not 28 provided plaintiff with any significant relief. Id. at 321. Subsequent medical records showed, as 1 the ALJ pointed out, marked improvement. In July of 2015, for instance, medical records note 2 that plaintiff was “doing his best to stay off any pain meds at this time” and “maintains a pretty 3 active lifestyle and . . . is thinking about starting to run again.” Id. at 547. In January of 2016, 4 records noted that plaintiff’s pain level had improved and he was taking less of his Tramadol and 5 Tylenol 3. Id. at 539. Plaintiff also repeatedly told his provider that his pain was not high. In 6 July of 2013, not long after the second treatment visit with Dr. Hanley, plaintiff rated his pain as a 7 “one” on a ten-point scale. Id. at 361. The numbers remained consistently low to moderate on 8 the ten-point scale: 9  In August of 2013, plaintiff rated his pain as a “three.” Id. at 356. 10  In January of 2014, plaintiff rated his pain as a “two.” Id. at 348. 11  In November of 2014, plaintiff rated his pain as a “four.” Id. at 569. 12  In October of 2015, plaintiff rated his pain as a “two.” Id. at 542. 13  In January of 2016, plaintiff rated his pain as a “two.” Id. at 539. 14  In April of 2016, plaintiff rated his pain as a “one.” Id. at 535. 15  In August of 2016, plaintiff rated his pain as a “three.” Id. at 530.2 16 Inconsistency with medical evidence is a germane reason for discounting the opinion of an “other 17 source.” See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Plaintiff might argue that 18 his overall medical record is subject to alternative interpretations that are more favorable to Dr. 19 Hanley’s 2013 assessment. But the existence of other, rational interpretations of the record is not 20 a basis for reversal. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“The court 21 will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 22 interpretation.”). Further, the disagreement as to plaintiff’s capabilities between Hanley and the 23 state agency medical consultants (who issued their findings in December of 2014 and February of 24 /////

25 2 In a separate section of his brief, plaintiff points out that he had several medical 26 evaluations where his pain was “five” or above on the scale. The court has not overlooked these evaluations, but notes that they hew closer to an exception than a rule. The disparate dates of 27 evaluations cited by plaintiff – January of 2013 (AR at 378), May of 2013 (Id. at 486-88), January of 2015 (Id. at 565), and April of 2015 (Id. at 553) – supports a reading that plaintiff’s pain, more 28 often than not, fell into a low to moderate level. 1 2015) lends additional credence to the ALJ’s finding that Hanley’s opinion was inconsistent with 2 the record as a whole. AR at 64-73, 75-81.3 3 B. State Agency Medical Consultants 4 Plaintiff argues that the ALJ failed to offer “any rational reasons” for according great 5 weight to the opinions of the state agency medical consultants. He notes that the ALJ found 6 “nothing of record to contradict the State agency medical consultants’ opinions.” AR at 25. 7 Plaintiff argues that the opinions are contradicted by the record, insofar as it indicates that he 8 received multiple spinal injections and prescription pain relievers. ECF No. 13 at 18. This 9 argument is unpersuasive because it appears to misinterpret the state agency medical consultant 10 opinions. As the Commissioner points out, neither physician assessed plaintiff with a clean bill of 11 health. Rather, both noted his spinal disorders and assessed exertional limitations based thereon. 12 See AR at 67-69, 78-81. Thus, the fact that plaintiff underwent treatment for his back issues does 13 not establish that the physicians’ opinions are contradicted by the record. 14 Plaintiff also argues that neither state agency medical consultant referenced certain aspects 15 of his treatment, including, inter alia, medial branch blocks, an epidural spinal injection, and the 16 prescription of opioid pain relievers. But plaintiff cites no authority which establishes that a 17 reviewing physician is required to explicitly reference every part of the record in formulating an 18 opinion. Such a standard would, due to the expansive record in many social security cases, render 19 the issuance of such opinions a virtual impossibility.4 20 3 The ALJ did not explicitly state that she was rejecting Dr. Hanley’s opinion because of 21 its inconsistency with those of the state agency medical consultants. Nevertheless, the Ninth Circuit has held that a reviewing court may draw “specific and legitimate inferences” from an 22 ALJ’s opinion. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“It is true that the 23 ALJ did not recite the magic words, ‘I reject Dr. Fox’s opinion about the onset date because. . . .’ But our cases do not require such an incantation. As a reviewing court, we are not deprived of our 24 faculties for drawing specific and legitimate inferences from the ALJ’s opinion.”). Here, the ALJ specifically noted that the opinions of the state agency medical consultants was “reasonable and 25 consistent with the objective medical evidence.” AR at 25. By contrast, she noted that Dr. 26 Hanley’s opinion was “inconsistent with the record as a whole.” Id. Given that the opinions of the consultants (both of whom, it must be emphasized, are medical doctors) form part of the 27 overall record, the court is confident in inferring the ALJ’s reliance thereon.

28 4 The court also rejects plaintiff’s contention that the ALJ should have assigned greater 1 IV. Failure to Provide Adequate Reasons for Discounting Plaintiff’s Subjective Testimony 2 3 Next, plaintiff argues that the ALJ failed to sufficiently explain her finding that “the 4 claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms 5 are not entirely consistent with the medical evidence and other evidence in the record for the 6 reasons explained in this decision.” AR at 24. He points out that the ALJ did not identify what 7 specific testimony was not credible. ECF No. 13 at 21-22. Plaintiff also accuses the ALJ of 8 misrepresenting the scope of his daily activities. Id. at 22. The court is unconvinced. 9 In Lingenfelter v. Astrue and in regard to the assessment of a claimant’s credibility, the 10 Ninth Circuit articulated the following: 11 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 12 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 13 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 14 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 15 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 16 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 17 Second, if the claimant meets this first test, and there is no evidence 18 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 19 convincing reasons for doing so[.] 20 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks omitted). Here, the ALJ 21 found that plaintiff’s medical impairment could reasonably have been expected to cause the

22 weight to the opinion of Dr. Hanley over that of the state agency medical consultants. Such 23 assignment of weight would make little sense given that the ALJ concluded that the state agency medical consultants’ conclusions were in greater accord with the overall record. Additionally, the 24 great emphasis which plaintiff puts on Dr. Hanley’s treating relationship is difficult to square with the actual record, which indicates that Hanley saw plaintiff twice (once in August of 2012 and a 25 second time in June of 2013). AR at 283, 306. Theirs was not a doctor-patient relationship that 26 was either continuous or long lasting. Finally, it cannot be ignored that Dr. Hanley is not a medical doctor; he is a chiropractor. The court points this out not to disparage either Dr. Hanley 27 in particular or the chiropractic profession as a whole. Nevertheless, and especially given the regulations at the time of the decision, an ALJ could hardly be faulted for putting greater stock in 28 the opinions of medical doctors. 1 symptoms he alleged. AR at 24. Accordingly, the issue before the court concerns the second step 2 analysis - whether the ALJ offered specific, clear and convincing reasons for discounting the 3 “intensity, persistence and limiting effects of [plaintiff’s] symptoms . . .” Id. 4 Plaintiff complains that the ALJ’s opinion does not specifically identify what testimony is 5 not credible. ECF No. 13 at 21-22. But there is hardly an exhaustive inventory of pain testimony 6 to parse and there can be little doubt as to what the ALJ was addressing. At his hearing, plaintiff 7 testified that his pain “varies all the time.”5 AR at 49. He claimed that, on some days, he could 8 “do, you know, all my household stuff and be relatively comfortable on a good day.” Id. 9 Plaintiff stated that he often experienced pain the day after, however. Id. Accordingly, and as the 10 ALJ underlined in her decision, it was relevant that the medical evidence indicated that he was 11 receiving conservative6 treatment and his pain level was broadly stable. Id. at 23. 12 “Contradiction with the medical record is a sufficient basis for rejecting the claimant’s subjective 13 testimony.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).

14 5 Curiously, at the same hearing plaintiff testified that the condition of his back had 15 remained “pretty steady.” AR at 54. The court allows that it may be that plaintiff was using the term “steady” in a global sense and attempting to convey that the pain fluctuations were 16 themselves constant. In any event, the ALJ did not reference or explore this inconsistency.

17 6 Plaintiff argues that his treatment was not ‘conservative’ and points to the fact that he underwent epidural injections and was prescribed multiple opioids. ECF No. 13 at 22. At the 18 time of the hearing, however, he indicated that he was only taking Tylenol 3 for his pain. AR at 19 48-49. And multiple treatment notes indicated substantial improvement and reduction of opioid prescriptions. Id. at 539 (January 2016 treatment notes – “[Plaintiff] is taking less of his 20 Tramadol and Tylenol 3, as the pain has been better for him recently.”); 542 (October 2015 treatment notes – “Patient presents for a scheduled med check and for refill of his Tylenol 3 and 21 Tramadol 50mg, which he takes pm back pain. He states that he only uses these on occasion, rarely, only for his severe pain related to increase in strenuous activities.”). The fact that plaintiff 22 had epidural injections does not, standing alone and factored into the longitudinal record, rebut 23 the label of ‘conservative.’ Plaintiff admitted that he had never had surgery, that he was not continuing to take the injections, and that, at the time of his hearing, he was managing his 24 condition with only Tylenol 3. Id. at 47-48, 53-54.

25 Separately, plaintiff argues that he should not be penalized for not taking opioids insofar 26 as they had adverse side effects. ECF No. 13 at 23. In a footnote, he also references the ongoing national epidemic of opioid addiction and claims that is odd for the ALJ to penalize him for 27 taking less opioid pain medication. Id. at 23 n.7. These points, taken in isolation, are somewhat persuasive. But plaintiff’s treatment notes, as noted supra, represent that he was scaling back his 28 medication because he was coping well and not out of any fear of addiction. 1 Elsewhere, plaintiff complains that the ALJ misrepresented the scope of his daily 2 activities in discounting his testimony. He argues that her references to his ability to do laundry, 3 dishes, and chores for his parents when able, overlook his testimony that he cannot cook or shop 4 for himself. ECF No. 13 at 22. The court does not agree and, in fact, finds it difficult to follow 5 the logic of plaintiff’s argument on this point. The fact that plaintiff cannot cook or shop for 6 himself does not undercut, in any automatic way, potential inferences a finder of fact might draw 7 from the activities plaintiff stated he is able to do. In any event, an ALJ “may discredit a 8 claimant’s testimony when the claimant reports participation in everyday activities indicating 9 capacities that are transferable to a work setting . . . .” Molina v. Astrue, 674 F.3d 1104, 1113 10 (9th Cir. 2012). Here, plaintiff’s ability to live alone, do household chores, and occasionally 11 assist his parents offer some basis for discrediting his claims of total debilitation. Id. (“Even 12 where those activities suggest some difficulty functioning, they may be grounds for discrediting 13 the claimant's testimony to the extent that they contradict claims of a totally debilitating 14 impairment.”). 15 V. Errors at Steps Four and Five 16 Plaintiff offers two separate theories for reversal with respect to this claim. His first is 17 essentially a summation. He points to the foregoing claims alleging error in the weighing and 18 assessing of medical evidence and argues that, if they are credited, the RFC cannot be accurate. It 19 follows, he argues, that if the RFC is not accurate, it necessarily invalidates any subsequent 20 analysis that relies upon it. The court, for the reasons stated supra, does not credit the arguments 21 finding fault with the ALJ’s handling of medical evidence. Thus, it obviously declines to reverse 22 on this basis. 23 Plaintiff’s second theory faults the ALJ’s finding that he could return to a former job as a 24 “Produce Clerk.” He argues that his description of that job included work falling under the 25 “heavy” exertional level. ECF No. 13 at 25. He notes that the vocational expert (“VE”) 26 expressed some confusion about the specifics of this former job and assigned a job code for a 27 position that “bears no resemblance” to plaintiff’s former job. Id. The ALJ’s decision identified 28 two other jobs – Cashier (DOT 211.462-018) and fast food worker (DOT 311.472-010) – which 1 | plaintiff could perform. AR at 28. Accordingly, this error was inconsequential to the ultimate 2 | non-disability determination and, therefore, harmless. See Tommasetti, 533 F.3d 1035, 1038 (an 3 || error is harmless and does not warrant reversal if it is “inconsequential to the ultimate 4 || nondisability determination.”’). 5 CONCLUSION 6 Based on the foregoing, it is hereby ORDERED that: 7 1. Plaintiffs motion for summary judgment (ECF No. 13) is DENIED; 8 2. The Commissioner’s cross-motion for summary judgment (ECF No. 16) is 9 | GRANTED; 10 3. The Clerk is directed to enter judgment in the Commissioner’s favor and close this 11 |} case. 12 | DATED: September 24, 2019. g Yy, Mt, / = hf tH A 13 EDMUND F. BRENNAN 4 UNITED STATES MAGISTRATE JUDGE

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