2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 ELIZABETH MARIE PINTO, Case No. 1:21-cv-00585-SKO 11 Plaintiff,
12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1)
17 _____________________________________/ 18
19 I. INTRODUCTION 20 Plaintiff Elizabeth Marie Pinto (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application 22 for Supplemental Security Income (SSI) under the Social Security Act (the “Act”). (Doc. 1.) The 23 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 24 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 25 26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant”). 1 2 Plaintiff protectively filed an application for SSI payments on August 14, 2017, alleging 3 that she became disabled on March 1, 2012,3 due to post-traumatic stress disorder (“PTSD”), severe 4 anxiety, depression, and allergies. (Administrative Record (“AR”) 17, 264.) Plaintiff was born on 5 July 11, 1961, and she was 56 years old on the date the application was filed. (AR 32, 260.) She 6 has at least a high school education and has past work experience as a dishwasher and a teacher’s 7 assistant. (AR 32, 265.) 8 A. Relevant Medical Evidence4 9 Plaintiff’s past medical history included Graves’ disease, depression, anxiety, allergies, 10 asthma, and unspecified hypothyroidism. (See AR 368, 374, 487.) On February 23, 2016, Plaintiff 11 came to the Madera County Behavioral Health Services for a clinical mental health assessment due 12 to feeling increasingly overwhelmed by life changes and an inability to cope with long-term mental 13 health issues. (AR 508.) That day, and again in February 2017, Plaintiff was diagnosed with major 14 depressive disorder and PTSD. (AR 529, 531.) On June 7, 2017, a screening indicated severe 15 depression. (AR 487.) X-rays of Plaintiff’s lumbar spine for lumbago with sciatica taken on 16 September 18, 2017, indicated lack of change as to Grade I/II anterolisthesis of L5 on S1, narrowing 17 of the intervertebral disc space at L5-S1 with superior and inferior endplate sclerotic changes, and 18 minimal anterior osteophytosis throughout the lumbar spine. (AR 571.) 19 On multiple occasions from November 2017 to February 2020, Plaintiff received mental 20 health treatment from a psychiatrist and reported improvements as to her depression and mood 21 swings and, with slight changes to her regimen, sought to continue with the medications. (See AR 22 585–86, 689, 691, 693, 695, 697, 701, 706, 710, 747–48.) On March 12, 2018, Plaintiff reported 23 that the ibuprofen she had been taking was not helping with her back pain, as it had become “more 24 bothersome with movement.” (AR 6345, 637.) A physical examination revealed lumbar pain with 25 decreased range of motion due to pain and mild right lumbar paraspinal muscle tenderness to 26 palpitation. (AR 637.) Plaintiff was assessed for hypothyroidism and acute right-sided lower back 27 3 Plaintiff amended her alleged onset date to August 14, 2017, her application date. (See AR 17, 61, 67–68.) 28 4 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 pain without sciatica, and she was advised to continue with ibuprofen as needed as well as baclofen 2 three times daily. (AR 637.) 3 B. Plaintiff’s Adult Function Report 4 Plaintiff submitted a Function Report dated August 31, 2017. (AR 286–94.) She reported 5 that her illnesses limited her ability to work because her concentration level has been severely 6 impacted to the point where she is constantly losing focus when doing the smallest of jobs. (AR 7 286, 291.) She also stated she is affected by loud or moderate noises and sudden movements, as 8 they make her anxious. (AR 286, 293.) Plaintiff further reported that her allergy to citrus acid and 9 her inability to lift heavy objects limits her ability to work in several industries. (AR 286.) Plaintiff 10 acknowledged wearing the same clothes for days and only bathing when she really needed to, such 11 as every two weeks. (AR 287.) Plaintiff stated she is able to do laundry, wash dishes, sweep, and 12 shop for groceries, but it takes her about two hours and she needs encouragement from her daughter 13 to do household tasks. (AR 288–89.) Plaintiff indicated she can lift only 10 pounds, she cannot 14 stand for extended periods of time, and she has trouble talking and forming sentences. (AR 291.) 15 She further stated she can only pay attention for 10 minutes, she is distracted easily, she can only 16 follow written instructions, otherwise she feels extremely anxious, and she has difficulty following 17 conversations. (AR 291, 293.) Lastly, Plaintiff stated she does not handle stress and changes in 18 the routine well, as she gets anxious. (AR 292.) 19 C. Opinion Evidence 20 On November 27, 2017, State agency mental health disability consultant, Dr. Helen 21 Patterson, noted that Plaintiff had adequate mental capacity to complete complex tasks, to carry 22 out both simple and detailed instructions, to follow directions without additional assistance, and to 23 maintain adequate attention, concentration, persistence, and pace as needed to sustain a normal 24 workday and workweek. (AR 86–87.) On February 13, 2018, Dr. M. Salib, also a State agency 25 mental health disability consultant, affirmed Dr. Patterson’s opinion. (AR 100–01.) 26 On October 17, 2017, Plaintiff underwent a psychological disability evaluation by 27 psychologist Dr. Lance Portnoff, Ph.D. (AR 573–77.) Plaintiff’s chief complaints were PTSD, 28 severe anxiety, depression, and allergies. (AR 573.) During this evaluation, Plaintiff described 1 PTSD with symptoms such as “uncued” panic attacks twice a week and overactive verbal anger, as 2 well as chronic depression. (AR 573–74.) Plaintiff also stated that she does not need help with 3 bathing, dressing, and grooming, but she has inadequate motivation to do such tasks. (AR 575.) 4 Dr. Portnoff opined that Plaintiff had some minor cognitive deficits which could be due to 5 depression and anxiety, and that the prognosis for her major depression and PTSD was fair, 6 depending upon continued access and response to an efficacious psychotropic regimen and her 7 underlying health. (AR 576.) Dr. Portnoff opined that Plaintiff was currently capable of managing 8 her own funds independently and performing simple and repetitive tasks. Dr. Portnoff further 9 opined that Plaintiff had no limitations with accepting instructions from supervisors and 10 maintaining regular attendance in the workplace from a psychological standpoint. Dr. Portnoff 11 also opined that Plaintiff had mild limitations in her abilities to perform detailed and complex tasks 12 and to work on a consistent basis without special or additional instructions due to psychiatric 13 problems. Dr. Portnoff opined that Plaintiff had mild to moderate limitations interacting with 14 coworkers and the public and dealing with the stress encountered in a competitive work 15 environment due to her major depressive disorder and PTSD. Finally, Dr. Portnoff opined that 16 Plaintiff had moderate limitations in her ability to complete a normal workday or workweek 17 without interruptions from a psychiatric condition due to psychiatric symptoms. (AR 576–77.) 18 Also on October 17, 2017, State agency disability consultant Dr. Y. Ruo reported that 19 Plaintiff stated her lower back pain no longer hurt and her physical examinations appeared within 20 normal limits. (AR 83.) Dr. Ruo opined that Plaintiff’s physical impairments were not severe. 21 (AR 83.) On February 14, 2018, State Agency disability consultant Dr. Francis Greene affirmed 22 Dr. Ruo’s conclusion that Plaintiff’s physical impairments were not severe. (AR 96.) 23 On January 8, 2020, Plaintiff underwent a mental health evaluation with Dr. Megan 24 Stafford, Psy.D. (AR 714–22.) Plaintiff reported that her present illnesses consisted of depression, 25 anxiety, and PTSD. (AR 715–16.) Dr. Stafford opined that Plaintiff’s abilities of performing 26 simple repetitive tasks and work activities on a consistent basis without special or additional 27 instructions were unimpaired. Dr. Stafford further opined that Plaintiff’s abilities to do the 28 following were mildly impaired: performing detailed and complex tasks; accepting instructions 1 from supervisors; and maintaining regular attendance in the workplace. Dr. Stafford opined that 2 Plaintiff’s abilities to do the following were moderately impaired due to limitations such as her 3 emotional dysregulation, low frustration tolerance, psychomotor agitation, and limited coping 4 skills: interacting with coworkers, supervisors, and the public; completing a normal workday 5 without interruptions from a psychiatric condition; and dealing with the usual stress encountered 6 in the workplace. (AR 718–19.) 7 D. Administrative Proceedings 8 The Commissioner denied Plaintiff’s application for benefits initially on November 29, 9 2017, and again on reconsideration on February 14, 2018. (AR 17, 102, 106, 117.) Consequently, 10 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 123–24.) At a 11 hearing held on November 20, 2019, Plaintiff appeared with counsel and testified before an ALJ 12 as to her alleged disabling conditions. (AR 65–73.) 13 Plaintiff testified that her symptoms had gotten worse since 2017. (AR 66.) It was unclear 14 based on the record how often Plaintiff saw a therapist. (AR 68–72.) Accordingly, the hearing 15 was continued in order to obtain further medical evidence records and for Plaintiff to undergo a 16 consultative examination. (AR 17, 71–73.) 17 1. Plaintiff’s Testimony 18 At the next hearing held on April 8, 2020, Plaintiff appeared with counsel and testified 19 before an ALJ. (AR 44–57.) Plaintiff testified that she had Graves’ disease for roughly 35 years 20 and has been taking medication for it, and otherwise she could not function. (AR 45.) Plaintiff 21 stated her Graves’ disease is not under control and she experiences side effects from the 22 medication. (AR 45–46.) The Graves’ disease also affects her mental impairment and eyesight. 23 (AR 46.) Due to changes in the dosage of the medication, Plaintiff lost weight, did not have the 24 energy to work a full day, and could only lift 10 pounds. (AR 46–47.) She estimated that two or 25 three times a week, she would need to rest or lie down for four or five hours. (AR 47.) 26 Plaintiff testified that it takes her several hours to step out of the house because going out 27 makes her feel afraid and anxious to the point where she feels stomach cramps and her arms 28 shake. (AR 48.) According to Plaintiff, she is always anxious and her anxiety affects her ability 1 to function, but it is not as bad if she does not leave the house. (AR 48–49.) Plaintiff stated she 2 experiences the following symptoms on and off all day: body aches; hands shaking; stuttering 3 when she tries to speak; face twitches; heartbeat racing; and palms sweating. (AR 49.) 4 Furthermore, Plaintiff testified that she takes medication for anxiety twice a day, and 5 though the medication helps, it does not eliminate the anxiety completely. (AR 50.) She is only 6 able to watch a television program for about half an hour to 45 minutes before she needs to take 7 a break. (AR 50–51.) Plaintiff also sees her daughter and grandson on a regular basis. (AR 51.) 8 Because Plaintiff feels overwhelmed by driving in big cities, her daughter must drive her places 9 or she does not go. (AR 51–52.) Plaintiff is able to drive to the store in her small town where it 10 is not as busy. (AR 51–52.) 11 Plaintiff stated she experiences the following symptoms due to depression: loss of 12 appetite; loss of train of thought; constant thoughts of self-doubt; and lack of health hygiene. (AR 13 52.) As to the latter symptom, Plaintiff explained that she would go two to three weeks without 14 doing things like taking a shower or bath and changing clothes. (AR 52.) As for her PTSD, 15 Plaintiff is fearful of going to gatherings and when she does go, she positions herself near an exit. 16 (AR 53.) She is only able to calm down at gatherings if alcohol is involved. (AR 53.) Plaintiff 17 also has recurring thoughts, especially at night, about three to four times a week, that are triggered 18 by self-doubt. (AR 53–54.) And, she is unable to sleep at night without medication due to racing 19 thoughts, body aches, and muscle spasms. (AR 54.) 20 With regard to her physical limitations, according to Plaintiff, she always has joint pain 21 in her back, knees, and hands. (AR 55.) She is able to relieve the back pain by laying on the floor 22 with her feet up and a pillow underneath her knees, and she takes prescription pain medication. 23 (AR 55–56.) When her back pain flares up, around two or three times a month, Plaintiff will use 24 a cane to walk. (AR 56–57.) 25 2. Vocational Expert’s Testimony 26 A Vocational Expert (“VE”) also testified at the hearing. (AR 57.) The ALJ noted that 27 there was no past relevant work to consider. (AR 57.) In a first hypothetical, the ALJ asked the 28 VE to assume someone had simple, routine, repetitive tasks in a static work environment with 1 occasional contact with the public, occasional tasks that require teamwork, no concentrated 2 exposure to respiratory irritants such as fumes, smoke, chemicals, or a work environment in poor 3 ventilation, and no work hazards such as working at unprotected heights, operating fast or 4 dangerous machinery, or driving commercial vehicles. (AR 59.) The ALJ asked whether, based 5 on those limitations, any medium range jobs would exist for such a person. (AR 59.) The VE 6 testified that such a person could perform the occupations of kitchen helper or dishwasher, 7 Dictionary of Occupational Titles (“DOT”) 318.687-010, specific vocational preparation (SVP)5 8 level of 2, with about 145,0 00 jobs in the national economy; hand packager, DOT 920.587-018, 9 SVP 2, with about 81,000 national jobs; and meat trimmer, DOT 525.684-054, SVP 2, with about 10 6,000 national jobs. (AR 60.) 11 The ALJ then asked, in addition to the previously mentioned limits, if such a person was 12 unable to sustain a full eight-hour day because of several symptoms related to mental health, 13 whether any of those jobs would be eliminated. The ALJ listed the following symptoms in asking 14 this question: the inability to concentrate or focus; chronic pain; and side effects of medications, 15 to the point where there were only three to four productive hours out of an eight-hour workday. 16 (AR 60.) The VE responded in the affirmative. (AR 61.) 17 E. The ALJ’s Decision 18 In a decision dated April 29, 2020, the ALJ found that Plaintiff was not disabled, as defined 19 by the Act. (AR 17–33.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 20 § 416.920. (AR 18–33.) The ALJ decided that Plaintiff had not engaged in substantial gainful 21 activity since August 14, 2017, the application date (Step One). (AR 19.) At Step Two, the ALJ 22 found Plaintiff’s following impairments to be severe: depressive disorder; Graves’ disease with 23 pretibial myxedema; anxiety disorder; hypothyroidism; asthma; chronic obstructive pulmonary 24 disease; lumbago with sciatica; and spine disorder. (AR 19.) Plaintiff did not have an impairment 25 or combination of impairments that met or medically equaled one of the listed impairments in 20 26 5 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 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (Step Three). (AR 20–21.) 2 The ALJ then assessed Plaintiff’s residual functional capacity (RFC) and applied the RFC 3 assessment at Steps Four and Five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 4 to step four, we assess your residual functional capacity . . . . We use this residual functional 5 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 6 The ALJ determined that Plaintiff had the RFC 7 to perform a range of medium work as defined in 20 CFR [§] 416.967(c). Specifically, [Plaintiff] can lift and carry 50 pounds occasionally and 25 pounds 8 frequently. She can stand and/or walk for six hours in an eight-hour workday. She can perform simple, repetitive, routine tasks in a static work environment that stays 9 the same from day to day in regards to the physical surroundings and tasks to be performed. She can have occasional contact with the public, and perform 10 occasional tasks that require teamwork. She cannot be subjected to concentrated exposure to respiratory irritants such as fumes, smoke, chemicals and poor 11 ventilation, and she cannot work at unprotected heights or around fast or dangerous machinery, and she cannot drive commercial vehicles. 12 13 (AR 21.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 14 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely 15 consistent with the medical evidence and other evidence in the record[.]” (AR 23.) 16 The ALJ found that Plaintiff has no past relevant work (Step Four), but that, on the basis of 17 the RFC assessment, she retained the capacity to perform other work that existed in significant 18 numbers in the national economy, such as kitchen helper, hand packager, and meat trimmer (Step 19 Five). (AR 32–33.) The ALJ concluded that Plaintiff was not disabled since August 14, 2017, the 20 date the application was filed. (AR 33.) 21 Plaintiff sought review of this decision before the Appeals Council, which denied review 22 on October 6, 2020. (AR 5–10.) Therefore, the ALJ’s decision became the final decision of the 23 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 24 III. LEGAL STANDARD 25 A. Applicable Law 26 An individual is considered “disabled” for purposes of disability benefits if they are unable 27 “to engage in any substantial gainful activity by reason of any medically determinable physical or 28 mental impairment which can be expected to result in death or which has lasted or can be expected 1 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 2 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 3 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 4 work but cannot, considering [their] age, education, and work experience, engage in any other kind 5 of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 6 “The Social Security Regulations set out a five-step sequential process for determining 7 whether a claimant is disabled within the meaning of the [Act].” Tackett v. Apfel, 180 F.3d 1094, 8 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The Ninth 9 Circuit has provided the following description of the sequential evaluation analysis: 10 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 11 proceeds to step two and evaluates whether the claimant has a medically severe 12 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 13 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 14 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 15 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 16 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 17 18 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 19 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 20 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 21 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 22 “The claimant carries the initial burden of proving a disability in steps one through four of 23 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 24 1989)). “However, if a claimant establishes an inability to continue [his or her] past work, the 25 burden shifts to the Commissioner in step five to show that the claimant can perform other 26 substantial gainful work.” Id. (citing Swenson, 876 F.2d at 687). 27 B. Scope of Review 28 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 1 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 2 the record as a whole.” Tackett, 180 F.3d at 1097. “Substantial evidence” means “‘such relevant 3 evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson v. 4 Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 5 229 (1938)). “‘Substantial evidence is more than a mere scintilla but less than a preponderance.’” 6 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 7 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 8 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 9 only if that decision is not supported by substantial evidence or it is based upon legal error.” 10 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “‘[t]he court will uphold the 11 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.’” Ford 12 v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020); see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 13 (9th Cir. 2001). 14 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 15 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). The Court must 16 instead determine whether the Commissioner applied the proper legal standards and whether 17 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 18 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 19 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 20 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 21 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 22 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 23 1993)). 24 Finally, courts may not reverse an ALJ’s decision on account of an error that is harmless. 25 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). Harmless error “exists when it is clear 26 from the record that the ALJ’s error was inconsequential to the ultimate nondisability 27 determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation 28 marks omitted). “[T]he burden of showing that an error is harmful normally falls upon the party 1 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 2 IV. DISCUSSION 3 Plaintiff alleges that the ALJ harmfully erred in three ways. First, Plaintiff claims the ALJ’s 4 Step Five analysis is not supported by substantial evidence because the VE’s testimony conflicts 5 with the DOT. (Doc. 16 at 7–12.) Second, Plaintiff asserts that the ALJ’s RFC determination is 6 not supported by substantial evidence because the ALJ erroneously failed to obtain an assessment 7 of Plaintiff’s limitations from a treating or examining source and used her lay knowledge to 8 interpret the raw medical evidence. (Doc. 16 at 12–14.) Third, Plaintiff contends ALJ improperly 9 discounted her subjective complaints. (Doc. 16 at 14–17.) For the reasons stated below, the Court 10 finds that the ALJ did not err. 11 A. The ALJ Properly Adopted the VE’s Testimony at Step Five 12 1. Legal Standard 13 At Step Five, the Commissioner considers the RFC assessment, the claimant’s age, 14 education, and work experience to determine if the claimant can perform other work. 20 C.F.R. 15 § 416.920(a)(4)(v). The RFC assessment consists of the “physical and mental” limitations on what 16 a claimant can do because of his or her impairments. 20 C.F.R. § 416.945(a)(1). The ALJ then 17 evaluates potential occupations that a claimant can perform. See 20 C.F.R. § 416.966. The DOT 18 is used to determine what jobs exist in the national economy. Zavalin v. Colvin, 778 F.3d 842, 19 845–46 (9th Cir. 2015). The DOT is the Commissioner’s “‘primary source of reliable job 20 information,’” Johnson v. Shalala, 60 F.3d 1428, 1434 n.6 (9th Cir. 1995), and creates a rebuttable 21 presumption as to a job classification, Tommasetti, 533 F.3d at 1042. 22 In addition to the DOT, the ALJ relies on VE testimony to determine whether a claimant 23 can perform any work and the specific occupations a claimant can perform in light of his or her 24 RFC. Zavalin, 778 F.3d at 846 (citing 20 C.F.R. § 416.966(e); Valentine, 574 F.3d at 689). 25 “‘Given its inherent reliability, a qualified [VE’s] testimony as to the number of jobs existing in 26 the national economy that a claimant can perform is ordinarily sufficient by itself to support an 27 ALJ’s [S]tep-[F]ive finding.’” Kilpatrick v. Kijakazi, 35 F.4th 1187, 1192 (9th Cir. 2022). 28 “Indeed, a VE’s expert opinion ‘may count as substantial evidence even when unaccompanied by 1 supporting data.’” Id. at 1192–93. “Finally, to conclude the Step Five analysis, the ALJ 2 determines ‘whether, given the claimant’s [RFC], age, education, and work experience, [he or 3 she] actually can find some work in the national economy.’” Zavalin, 778 F.3d at 846 (citing 4 Valentine, 574 F.3d at 689; 20 C.F.R. § 416.920(g)). 5 However, “although VE testimony is ‘inherently reliable,’ it is ‘not incontestable.’” 6 Kilpatrick, 35 F.4th at 1193. “When there is an apparent conflict between the [VE’s] testimony 7 and the DOT—for example, expert testimony that a claimant can perform an occupation involving 8 DOT requirements that appear more than the claimant can handle—the ALJ is required to 9 reconcile the inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi v. Astrue, 486 F.3d 1149, 10 1153–54 (9th Cir. 2007)). In Massachi, the Ninth Circuit instructed as follows: 11 the ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine whether the [VE’s] explanation for the conflict is reasonable and whether 12 a basis exists for relying on the expert rather than the [DOT]. 13 Massachi, 486 F.3d at 1153. 14 In order for the ALJ to accept VE testimony that contradicts the DOT, “the record must 15 contain ‘persuasive evidence to support the deviation.’” Pinto v. Massanari, 249 F.3d 840, 846 16 (9th Cir. 2001) (quoting Johnson, 60 F.3d at 1435). “Evidence sufficient to permit such a 17 deviation may be either specific findings of fact regarding the claimant’s residual functionality, 18 or inferences drawn from the context of the [VE]’s testimony.” Light v. Soc. Sec. Admin., 119 19 F.3d 789, 793 (9th Cir. 1997) (citations omitted). “The ALJ’s failure to resolve an apparent 20 inconsistency may leave us with a gap in the record that precludes us from determining whether 21 the ALJ’s decision is supported by substantial evidence.” Zavalin, 778 F.3d at 846. Nevertheless, 22 an ALJ’s failure to inquire into an apparent conflict is harmless where there is no actual conflict 23 between the RFC and the DOT. Ranstrom v. Colvin, 622 Fed. Appx. 687, 689 (9th Cir. 2015) 24 (citing Massachi, 486 F.3d at 1154 n.19). 25 2. Analysis 26 Plaintiff raises several issues surrounding the VE’s testimony. She acknowledges that the 27 ALJ directed the VE to testify in accordance with the DOT and to explain any testimony that was 28 inconsistent, but notes that after the VE testified, the ALJ did not make any further inquiry into 1 whether the VE’s testimony was indeed consistent with the DOT. (Doc. 16 at 9–10.) Plaintiff 2 further notes that the VE did not identify any potential conflict from the DOT as to the reaching 3 limitation, nor did the VE provide any explanation to resolve the potential or apparent conflict. 4 (Doc. 16 at 9.) Lastly, Plaintiff contends it was error for the ALJ to fail to ask about conflicts 5 regarding the issue of the static work environment because the VE never testified regarding the 6 source of the vocational information, whether it be from her experience or some other source. 7 (Doc. 16 at 10.) 8 Plaintiff’s arguments are unavailing. Here, the ALJ determined that Plaintiff had the RFC 9 to perform “medium work,” but with various limitation, including limiting Plaintiff to “simple, 10 repetitive, routine tasks in a static work environment that stays the same from day to day in regards 11 to the physical surroundings and tasks to be performed.” (AR 21.) During the hearing, the VE 12 testified that she was familiar with the jobs that existed in the national economy, the DOT, and 13 the Act’s definitions of unskilled, semi-skilled, skilled, sedentary, light, medium, heavy, and very 14 heavy work. (AR 58.) The ALJ also asked whether the VE understood that if she gave an opinion 15 that conflicted with information in the DOT, she would need to advise the ALJ of the conflict and 16 the basis of her opinion. (AR 58.) The VE responded in the affirmative. (AR 58.) 17 The ALJ then presented the VE with two hypothetical questions that included these 18 limitations. (AR 59–61.) In the first hypothetical, the ALJ asked the VE what jobs involving 19 medium work would exist for someone with limitations including simple, routine, repetitive tasks 20 in a static work environment with occasional contact with the public, occasional tasks that require 21 teamwork, no concentrated exposure to respiratory irritants, and no work hazards. (AR 59.) The 22 VE testified that such a person could perform the occupations of a kitchen helper or dishwasher, 23 hand packager, and meat trimmer. (AR 60.) The VE also eroded the number of jobs available in 24 the national economy, based on her personal knowledge and professional experience, to reflect 25 Plaintiff’s limitations. (AR 61.) 26 Despite Plaintiff’s assertion to the contrary, the ALJ assigned no limitation regarding 27 Plaintiff’s ability to reach objects. Thus, the VE’s testimony that Plaintiff could perform the jobs 28 of kitchen helper or dishwasher, hand packager, and meat trimmer did not deviate from the DOT. 1 See, e.g., Reese v. Astrue, No. ED CV 11 –540 –PLA, 2012 WL 137567, at *7 (C.D. Cal. Jan. 17, 2 2012) (finding no conflict between the DOT and Plaintiff’s limitations where ALJ’s RFC 3 determination contained no reaching limitations and VE testimony stated Plaintiff could perform 4 jobs that require constant reaching). 5 Furthermore, the ALJ was not obligated to make additional inquiries as to the source of 6 the VE’s information or to ask a second time whether the VE’s testimony was consistent with the 7 DOT. “A VE’s recognized expertise provides the necessary foundation for his or her testimony. 8 Thus, no additional foundation is required.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 9 2005); see also Kilpatrick, 35 F.4th at 1192–93; Fox v. Barnhart, 42 Fed. Appx. 911, 912 (9th 10 Cir. 2002) (ALJ may rely on VE’s testimony when the expert specifically eroded the number of 11 available [jobs] to address an apparent conflict with the DOT); POLICY INTERPRETATION RULING: 12 TITLES II & XVI: USE OF VOCATIONAL EXPERT & VOCATIONAL SPECIALIST EVIDENCE, & OTHER 13 RELIABLE OCCUPATIONAL INFO. IN DISABILITY DECISIONS, SSR 00–4P, 2000 WL 1898704, at *3 14 (S.S.A. Dec. 4, 2000) (“The DOT lists maximum requirements of occupations as generally 15 performed, not the range of requirements of a particular job as it is performed in specific settings. 16 A VE . . . may be able to provide more specific information about jobs or occupations than the 17 DOT.”). And, Plaintiff does not dispute that the VE identified jobs that would accommodate her 18 static work environment restrictions. 19 Moreover, any conflict between the DOT and the VE’s testimony in this case was not 20 apparent and obvious. See Gutierrez v. Colvin, 844 F.3d 804, 807–08 (9th Cir. 2016). “[A]n ALJ 21 need only follow up on those that are.” Id. at 808. To constitute a conflict, the difference between 22 the VE’s testimony and the DOT’s listings must be obvious or apparent. Id. “This means that the 23 testimony must be at odds with the [DOT’s] listing of job requirements that are essential, integral, 24 or expected.” Id. Thus, tasks that are not essential, integral, or expected parts of a job are less 25 likely to qualify as apparent conflicts that the ALJ must inquire about. Id. “Likewise, where the 26 job itself is a familiar one—like cashiering—less scrutiny by the ALJ is required.” Id. The 27 obligation of the ALJ to inquire as to a potential conflict does not extend to unlikely situations or 28 circumstances. Id. 1 Here, the ALJ did not err because there was no apparent or obvious conflict between the 2 VE’s testimony that Plaintiff could perform as a kitchen helper, hand packager, and meat trimmer, 3 despite her limitations of “simple, repetitive, routine tasks in a static work environment that stays 4 the same from day to day in regards to the physical surroundings and tasks to be performed” (AR 5 21), and the DOT’s general statements as to those three occupations. Had the VE opined that 6 Plaintiff would need to perform a wide variety of tasks that were not repetitive and routine on a 7 day-to-day basis, the conflict would have been apparent and obvious, and the ALJ would have been 8 obliged to follow up with more specific questions. See Gutierrez, 844 F.3d at 808. But where, as 9 here, the frequency of such a task is unlikely and unforeseeable, there is no similar obligation. Id. 10 Accordingly, the Court finds that there was no apparent or obvious conflict between the 11 VE’s testimony and the DOT. “The requirement for an ALJ to ask follow up questions is fact- 12 dependent.” Gutierrez, 844 F.3d at 808. While there may be exceptional circumstances where 13 kitchen helpers, hand packagers, and meat trimmers must perform tasks that could vary on a daily 14 basis, this case does not present any such circumstances. In addition, the VE eliminated jobs based 15 on Plaintiff’s limitations. The ALJ was entitled to rely on the VE’s “experience in job placement” 16 to account for “a job’s particular requirements.” See Gutierrez, 844 F.3d at 808–09; POLICY 17 INTERPRETATION RULING: TITLES II & XVI: USE OF VOCATIONAL EXPERT & VOCATIONAL 18 SPECIALIST EVIDENCE, & OTHER RELIABLE OCCUPATIONAL INFO. IN DISABILITY DECISIONS, SSR 19 00–4P, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000). The ALJ properly relied on the VE’s 20 testimony because the hypotheticals presented to the VE considered all of Plaintiff’s limitations 21 that were supported by the record. See Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) 22 (considering VE testimony reliable if the hypothetical posed includes all of claimant’s functional 23 limitations). Accordingly, the ALJ did not err at Step Five. 24 B. The ALJ’s RFC Determination is Supported by Substantial Evidence 25 An RFC “is the most [one] can still do despite [one’s] limitations” and it is assessed “based 26 on all the relevant evidence in [one's] case record,” rather than a single medical opinion or piece of 27 evidence. 20 C.F.R. § 416.945(a)(1). “It is clear that it is the responsibility of the ALJ, not the 28 claimant's physician, to determine [RFC].” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 1 2001). Further, an ALJ’s RFC determination need not precisely reflect any particular medical 2 provider's assessment. See Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 3 2010) (the ALJ properly incorporated physician's observations in the RFC determination while, at 4 the same time, rejecting the implication that the plaintiff was unable to “perform simple, repetitive 5 tasks in an environment without public contact or background activity”). 6 Here, in questioning the ALJ’s failure to develop the record, Plaintiff alleges that “the ALJ 7 did not base the physical RFC limitations on any treating, examining or reviewing opinions of 8 record.” (Doc. 16 at 12.) Specifically, Plaintiff claims that the ALJ took it upon herself to start 9 from scratch and use her lay knowledge to interpret the raw medical evidence, rather than obtaining 10 an opinion from an acceptable medical professional for interpretation. (Id.; see also Doc. 19 at 6.) 11 These contentions are unavailing. 12 The nature of the ALJ’s responsibility is to interpret the evidence in the record, including 13 medical evidence. See, e.g., Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Such a 14 responsibility does not result in the ALJ committing legal error when she assesses an RFC that is 15 consistent with the record. See Mills v. Comm'r of Soc. Sec., No. 2:13-CV-0899-KJN, 2014 WL 16 4195012, at *4 (E.D. Cal. Aug. 22, 2014) (“it is the ALJ's responsibility to formulate an RFC that 17 is based on the record as a whole, and thus the RFC need not exactly match the opinion or findings 18 of any particular medical source.”) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) 19 (original italics)). 20 According to the record, there were several expert medical opinions regarding Plaintiff’s 21 impairments that the ALJ considered in evaluating her RFC. Namely, the ALJ considered the 22 persuasiveness of the opinions of State agency disability consultants Dr. Patterson, Dr. Salib, Dr. 23 Ruo, Dr. Greene, as well as the opinions of Dr. Stafford and Dr. Portnoff, as the ALJ was charged 24 to do. (AR 29–31.) The ALJ found the opinions of Dr. Patterson and Dr. Salib to be “somewhat 25 persuasive,” and the opinions of Dr. Portnoff and Dr. Stafford to be “mostly persuasive,” as they 26 were “consistent with [Plaintiff’s] mental health record” and “supported by their mental status 27 examination findings.” (AR 31.) Even so, in an abundance of caution, the ALJ restricted Plaintiff 28 “to simple routine repetitive tasks with occasional contact with public and occasional tasks that 1 require teamwork because of [her] anxiety and reluctance to go out of her house.” (AR 31.) In 2 addition, the ALJ found the opinions of Dr. Ruo and Dr. Greene to be “somewhat persuasive” and 3 “mostly consistent with the medical evidence record.” (AR 31.) Nevertheless, “with an abundance 4 of caution, and consistent with [Plaintiff’s] lumbar spine x-ray findings and her occasional 5 Graves[’] disease related fatigue,” the ALJ restricted Plaintiff “to a medium [RFC].” (AR 31–32.) 6 Having considered both the opinions of multiple medical professionals, the ALJ formulated 7 Plaintiff’s RFC, which included a more restrictive limitation to exertional activity than found by 8 the opining physicians.6 See Mills, 2014 WL 4195012, at *4 (finding argument that the ALJ was 9 improperly attempting to “play doctor” to be without merit where the ALJ “carefully analyzed the 10 various medical opinions, treatment records, and [the] plaintiff's own testimony in formulating an 11 RFC.”); see also 20 C.F.R. § 404.1527(d)(2) (“the final responsibility for deciding [an RFC] is 12 reserved to the Commissioner”), § 404.1545(a)(1) (“We will assess your [RFC] based on all the 13 relevant evidence in your case record.”). “Indeed, [P]laintiff can hardly fault the ALJ for giving 14 [her] the benefit of the doubt and assessing an RFC that is more favorable to [P]laintiff than most 15 of the medical opinions in the record.” Mills, 2014 WL 4195012, at *4. 16 Plaintiff does not challenge the ALJ’s evaluation of the physicians’ opinions, nor does she 17 specify any additional functional limitations that were not accounted for in the ALJ’s RFC 18 assessment. Further, Plaintiff does not otherwise show any inconsistency between this evidence 19 and her RFC. Instead, she appears to be advocating for an alternative interpretation of the evidence 20 that she cites in her briefing. The Court, however, will not second-guess the ALJ’s reasonable 21 interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff. See 22 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 23 In sum, the Court does not find error in the ALJ’s reliance on the opinions of the physicians 24 and finds that substantial evidence supports the ALJ’s conclusions regarding the impact of 25 Plaintiff’s impairments on the RFC. Plaintiff may disagree with the RFC, but the Court must 26 uphold the ALJ’s determination because it is a rational interpretation of the evidence. See Ford, 27 6 The ALJ’s RFC assessment is also based on consideration of the subjective complaint testimony, which, as set forth 28 more fully below, the ALJ appropriately discredited. 1 950 F.3d at 1159 (“Our review of an ALJ’s fact-finding for substantial evidence is deferential,” 2 and “our inquiry ‘defers to the presiding ALJ, who has seen the hearing up close’”); Thomas, 278 3 F.3d at 954. 4 C. The ALJ Properly Evaluated Plaintiff’s Testimony 5 1. Legal Standard 6 In evaluating the credibility of a claimant’s testimony regarding their impairments, an ALJ 7 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 8 the ALJ must determine whether the claimant has presented objective medical evidence of an 9 underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. 10 The claimant is not required to show that their impairment could reasonably be expected to cause 11 the severity of the symptom they have alleged; they need only show that it could reasonably have 12 caused some degree of the symptom. Id. If the claimant meets the first test and there is no evidence 13 of malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 14 if they give “‘specific, clear and convincing reasons’” for the rejection. Id. 15 As the Ninth Circuit has explained: 16 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 17 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 18 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 19 by substantial evidence, the court may not engage in second-guessing. 20 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 21 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009) (“If an ALJ finds a claimant’s 22 characterization of his or her own symptoms unreliable, the ALJ must make a credibility 23 determination backed up by specific findings.”). Other factors the ALJ may consider include a 24 claimant’s work record and testimony from physicians and third parties concerning the nature, 25 severity, and effect of the symptoms of which he or she complains. Light, 119 F.3d at 792. 26 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 27 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 28 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 1 findings are not sufficient to satisfy this standard; “‘rather, the ALJ must identify what testimony 2 is not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 3 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 4 2. Analysis 5 Here, Plaintiff contends that the ALJ erroneously discounted her subjective complaints and 6 failed to provide “clear and convincing” reasons for doing so. (Doc. 16 at 14–17.) The ALJ’s 7 analysis first focused on whether Plaintiff had an underlying medically determinable physical or 8 mental impairment that could reasonably be expected to produce her symptoms. After carefully 9 considering the evidence, including Plaintiff’s Adult Function Report, the Third-Party Adult 10 Function Report submitted by Plaintiff’s daughter, and Plaintiff’s testimony at the hearing (AR 22– 11 23), the ALJ determined that Plaintiff’s medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms (AR 23). However, the ALJ did not fully accept Plaintiff’s 13 testimony concerning her own limitations, finding that “[her] statements concerning the intensity, 14 persistence and limiting effects of these symptoms are not entirely consistent with the medical 15 evidence and other evidence in the record.” (AR 23; see also AR 31.) Specifically, the ALJ found 16 that Plaintiff’s subjective symptom testimony was inconsistent with the medical evidence, 17 including records showing improvement with treatment. 18 In evaluating a claimant’s claimed symptoms, an ALJ may find a plaintiff less credible 19 when his or her symptoms can be controlled by treatment and/or medication. See 20 C.F.R. 20 § 416.929(c)(3)(iv)–(v); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 21 Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for 22 purposes of determining eligibility for SSI benefits.”). But, the Ninth Circuit has explained how, 23 [a]s we have emphasized while discussing mental health issues, it is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of 24 treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated 25 instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. 26 27 Garrison, 759 F.3d at 1017. 28 Here, the ALJ did not discredit Plaintiff merely due to waxing and waning symptoms. To 1 the contrary, the ALJ stated as follows: 2 [Plaintiff’s] mental health record shows generally consistent mental status examinations and stability on her medication regimen. The record shows [Plaintiff] 3 regularly saw her prescribing psychiatrist, but did not regularly engage in counselling or individual therapy. Her respiratory disorders are well controlled on 4 medication. Plain x-ray imaging shows a grade I/II anterolisthesis of L5 on S1 with superior and inferior endplate degenerative changes, without evidence of instability 5 (Exhibit 6F), and her occasional back pain is controlled with ibuprofen according to her testimony. [Plaintiff’s] Graves[’] disease requires some occasional medication 6 adjustment (Exhibit 9F). 7 (AR 31.) 8 At the first hearing on November 20, 2019, Plaintiff testified that her symptoms had gotten 9 worse since 2017. (AR 66.) At the next hearing held on April 8, 2020, Plaintiff testified that she 10 takes medication for anxiety twice a day, and though the medication helps, it does not eliminate 11 the anxiety completely. (AR 50.) Plaintiff also stated she experiences the following symptoms 12 due to depression: loss of appetite; loss of train of thought; constant thoughts of self-doubt; and 13 lack of health hygiene. (AR 52.) And, she is unable to sleep at night without medication due to 14 racing thoughts, body aches, and muscle spasms. (AR 54.) 15 However, there is substantial evidence in the record that Plaintiff’s mental and physical 16 conditions had indeed improved with medication and treatment during the relevant period. For 17 example, in October 2017, during a mental health evaluation with Dr. Portnoff, Plaintiff reported 18 PTSD with symptoms such as “uncued” panic attacks twice a week and overactive verbal anger, as 19 well as chronic depression. (AR 573–74.) In November 2017, when Plaintiff was seen for 20 depression and anxiety, she did not report mood swings and she stated her anxiety level was 21 manageable. (AR 585.) In particular, Plaintiff sought to continue with the medications and 22 reported no side effects. (AR 585.) The psychiatrist, Dr. Ramon Raypon, deemed her symptoms 23 to be stable. (AR 586.) When Plaintiff returned in December 2017 and February 2018 to see Dr. 24 Raypon, she reported feeling less depressed and nervous, her mood was good, and she was doing 25 well on her medications and not experiencing any adverse side effects. (AR 587–89.) In March 26 2018, Plaintiff again reported doing well on the medication, which she stated helped her with sleep 27 and feeling less depressed and nervous. (AR 689.) Over the course of visits throughout the next 28 few years, Plaintiff reported improvements as to her depression and mood swings and, with slight 1 changes to her regimen, sought to continue with the medications. (AR 691, 693, 695, 697, 701, 2 706, 710.) In February 2020, Plaintiff reported recent episodes of anxiety and depression, but 3 stated medications were helping to control her symptoms and they were “‘manageable’” with no 4 reports of mood swings or agitation. Accordingly, Dr. Raypon decreased the dose of one of 5 Plaintiff’s medications and noted her symptoms were “somewhat better.” (AR 747–48.) 6 Furthermore, as discussed above, the ALJ fully considered several medical opinions. (AR 7 30–31.) For example, the ALJ described how Dr. Stafford opined that Plaintiff’s ability to perform 8 simple and repetitive tasks was unimpaired; however, her abilities to complete a normal workday 9 without interruptions from a psychiatric condition and to deal with the usual stress encountered in 10 the workplace were moderately impaired due to emotional dysregulation, low frustration tolerance, 11 and limited coping skills. (AR 30.) The ALJ also noted that Dr. Patterson opined Plaintiff “had 12 adequate mental capacity to sustain complex tasks, to follow directions without additional 13 assistance, and to maintain adequate attention, concentration, persistence and pace as needed to 14 sustain a normal workday and workweek.” (AR 31.) Dr. Salib agreed and endorsed Dr. Patterson’s 15 opinion. (AR 31.) In addition, the ALJ highlighted that Dr. Ruo noted Plaintiff “reported that her 16 low back pain did not hurt any more, and her physical examinations appear within normal limits.” 17 (AR 31.) Accordingly, Dr. Ruo opined that Plaintiff’s physical impairments were non-severe, and 18 Dr. Greene agreed and endorsed the opinion of Dr. Ruo. (AR 31.) Finally, the ALJ found that the 19 Third-Party Function Report submitted by Plaintiff’s daughter was “consistent” with Plaintiff’s 20 allegations, “but not persuasive, as it is not well supported by the medical and mental health 21 records.” (AR 32.) 22 As there is substantial evidence of Plaintiff's improvement with treatment, such is a clear 23 and convincing reason for not finding Plaintiff’s subjective complaints to be fully credible. See 24 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599–600 (9th Cir. 1999) (the ALJ’s adverse 25 credibility determination properly accounted for physician’s report of improvement with 26 medication); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming denial of benefits and 27 noting that claimant’s impairments were responsive to treatment). While Plaintiff may disagree 28 with the ALJ’s interpretation of the medical evidence, it is not within the province of this Court to 1 second-guess the ALJ’s reasonable interpretation of that evidence, even if such evidence could give 2 rise to inferences more favorable to Plaintiff. See Rollins, 261 F.3d at 857. 3 V. CONCLUSION AND ORDER 4 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 5 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 6 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 7 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 8 IT IS SO ORDERED. 9
10 Dated: November 29, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11
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