(SS) Spencer v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: September 27, 2022
• Docket: 1:21-cv-00065
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 11 AMELIA YOLANDA SPENCER, Case No.: 1:21-cv-00065-AWI-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING SOCIAL SECURITY COMPLAINT 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 (Docs. 18, 19) 15 Defendant. 16

17 Findings and Recommendations 18 INTRODUCTION 19 Plaintiff Amelia Yolanda Spencer (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying her application for supplemental security 21 income under Title XVI of the Social Security Act. The matter is currently before the Court on the 22 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 23 McAuliffe for findings and recommendations. 24 /// 25 26 27 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of 28 the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit. 1 Having considered the briefing and record in this matter, the Court finds the decision of the 2 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, this Court will recommend affirming the 4 agency’s determination to deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed an application for supplemental security income on March 18, 2019. AR 198.2 7 Plaintiff alleged that she became disabled on October 14, 2018, due to carpal tunnel in both hands, 8 high blood pressure, constant back pain, anxiety, depression, and right leg pain. AR 198, 226. 9 Plaintiff’s applications were denied initially and on reconsideration. AR 120-24, 128-33. Plaintiff 10 requested a hearing before an ALJ, and following the hearing, ALJ Michael S. Condon issued an order 11 denying benefits on August 28, 2020. AR 12-26, 31-86. Plaintiff sought review of the ALJ’s 12 decision, which the Appeals Council denied, making the ALJ’s decision the Commissioner’s final 13 decision. AR 1-5. This appeal followed. 14 Hearing Testimony 15 ALJ Condon held a telephonic hearing on August 14, 2020. Plaintiff appeared with her 16 attorney, Jonathan Peña. Jessica Coles, an impartial vocational expert, also appeared. AR 33. 17 In response to questions from the ALJ, Plaintiff testified that she lives alone with her dog. She 18 gave up her driver’s license because she stopped driving after her car was towed. She has a twelfth- 19 grade education. She receives income in the form of general relief and food stamps. AR 37-40. 20 When asked about her past work, Plaintiff testified that she worked security at Club One 21 Casino from 2005 to 2008. She lifted boxes up to 80 pounds and did control if there were fights. AR 22 40-42. Plaintiff also had self-employment with Home Funds Direct, as a telemarketer selling 23 mortgages over the phone. The job involved sitting all day talking on the phone and working with a 24 computer. AR 44-45. After working at Club One Casino, Plaintiff also started working as a daycare 25 provider for her grandson. AR 45-46. 26 27

28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 Plaintiff testified that the biggest problems keeping her from working fulltime are her right leg 2 and her left wrist. AR 47. She also has high blood pressure and takes medications. Although the 3 medications control her high blood pressure, they make her tired. She uses inhalers for her asthma or 4 COPD, which help. She also takes medication for her anxiety. AR 47-49. She has an abnormal, 5 larger than normal, heart, which has been monitored. She is not receiving any treatment for it. AR 6 50-52. She has no other heart problems other than trying to get her blood pressure under control. AR 7 53. 8 When asked about her sleep, Plaintiff testified that she sleeps in the daytime because of her 9 pills. She sleeps at night, but always wakes up at 3:00 or 4:00 in the morning. AR 53. She does not 10 take anything to help her sleep. Her blood pressure medication knocks her out. AR 54. 11 When asked about her left thumb, Plaintiff testified that she pulled it out of the socket and the 12 bone is sticking out. She never received treatment it. Her doctor recently provided an order for her to 13 have x-rays, which she had not done yet. AR 54-56. She was given a shot on both sides of her arm to 14 get rid of the pain. She has pain from her hand and thumb up her arm. She cannot move her hand and 15 cannot lift with it. She continued working after she hurt her thumb. AR 57-58. She now takes pain 16 pills for her thumb. It does a lot for the pain, but it shuts her right down. AR 59. 17 When asked about her issues from a mental standpoint, Plaintiff testified that she has a lot of 18 anxiety all the time and is depressed. She takes medication, but she does not attend counseling. AR 19 59-60. 20 Plaintiff also reported that she has glass in her right foot and will be getting x-rays done. AR 21 61-62. She stepped on some glass at work in 2007. Doctors took some of the pieces of glass out. 22 When it started swelling, she went to the hospital and received a shot. She never did any follow-up 23 and now it is a lump on the bottom of her right foot. AR 62. Because the lump is in the middle of her 24 foot, she leans and walks to the side. She needs laser surgery because it has been there for so many 25 years. When she goes in for x-rays, it will be for her wrist, back and leg. AR 63. She does not use a 26 walker or cane. AR 64. 27 When asked about a typical day, Plaintiff testified that she takes a shower and takes her time 28 cleaning. Her daughter vacuums for her home twice a week. Plaintiff uses paper plates, so she does 1 not have to do washing. She has a whisk broom that she uses for cleaning. She can lift about five 2 pounds with her right arm, but nothing with her left arm. She sits for most of the day. She watches 3 TV. She walks her dog about ½ a block and she can take the bus. She can stand for more than 20 4 minutes. She goes grocery shopping with her daughter every month. AR 64-69. 5 In response to questions from her attorney, Plaintiff testified that she could lift less than a 6 gallon of milk with her right arm. She is not having any major symptoms with regard to her heart. If 7 she tries to vacuum, she starts having palpitations. She will vacuum for a little bit but will sit down 8 and then start back up again. AR 70-71. 9 Plaintiff also testified that she has good days and bad days. On a bad day, she will wake up 10 around 3:00 or 4:00 in the morning, start walking around and will start crying out of nowhere. Her 11 crying spells are random and may last for a few moments or for some hours. She will have three or 12 four days where the crying lasts all day. AR 72-74. 13 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE classified 14 Plaintiff’s past work as guard-security and telephone solicitor. The ALJ also asked the VE 15 hypotheticals. For the first hypothetical, the ALJ asked the VE to assume an individual the same age, 16 same education and same past work experience as Plaintiff. This individual could perform some range 17 of light work, able to lift and carry up to 20 pounds occasionally, 10 pounds frequently, sit for up to 18 eight hours in an eight-hour workday, stand and/or walk up to eight hours total in an eight-hour 19 workday, with no postural limitations, but limited to no more than frequent operation of left foot and 20 hand controls, and no more than occasional pulling with the left upper extremity. This person could 21 understand, remember and apply information to perform simple tasks, could focus on and complete 22 simple tasks, could make simple decisions, and could adapt to routine changes in the workplace, and 23 have no more than occasional contact with the general public, coworkers and supervisors. The VE 24 confirmed that past work would be ruled out, but there would be other work, such as garment sorter, 25 mail clerk and router. AR 79-81. 26 For the second hypothetical, the ALJ asked the VE to assume the same individual as in the first 27 hypothetical, but this person could do no lifting in excess of five pounds with the left upper extremity 28 alone, could occasionally climb ramps and stairs, occasionally balance, stoop, kneel, crouch and crawl, 1 no climbing of ladders, ropes or scaffolds, no exposure to hazards, including unprotected heights and 2 dangerous moving machinery, could not operate motor vehicles, could have no exposure to 3 temperature extremes and no more than occasional exposure to fumes, odors, dust, gases and areas of 4 poor ventilation. In addition to the other mental limitations, this person could not perform fast-paced 5 work or production-rate work, but a daily production quota was acceptable. The VE testified that the 6 jobs would be limited to sedentary based on the descriptions with the left upper extremity. AR 81-82. 7 For the third hypothetical, Plaintiff’s counsel asked the VE to take hypothetical one and add 8 that the individual would have marked limitations in the ability to deal with the usual stress 9 encountered in the workplace, with marked defined as off task fifteen percent of the workday. The VE 10 testified that this individual would not be able to perform any past work. If the person was off task 11 about 10% during the work shift, then there would be no work. AR 83. 12 For the fourth hypothetical, Plaintiff’s counsel asked the VE to take hypothetical one and add 13 that the individual would have to take four unscheduled breaks for 15 minutes in duration throughout 14 the workday. The VE testified that there would not be any work for this individual. AR 83. 15 For the fifth hypothetical, the ALJ asked the VE to return to hypothetical one and add that this 16 person could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, no 17 climbing of ladders, ropes or scaffolds, no exposure to hazards, including unprotected heights and 18 dangerous moving machinery and no operation of motorized vehicles. This person could have no 19 exposure to temperature extremes and no more than occasional exposure to fumes, odors, dust, gasses 20 and areas of poor ventilation. The VE testified that this would not change the answer to hypothetical 21 number one. If it was added that the person could not perform fast-paced work or at a production-rate 22 pace, but a daily production quota was acceptable, this would not change the VE’s answer to 23 hypothetical one. AR 84. 24 Medical Record 25 The relevant medical record was reviewed by the Court and will be referenced below as 26 necessary to this Court’s decision. 27 /// 28 /// 1 The ALJ’s Decision 2 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 3 determined that Plaintiff was not disabled under the Social Security Act. AR 15-26. Specifically, the 4 ALJ found that Plaintiff had not engaged in substantial gainful activity since February 13, 2019, the 5 application date. AR 18. The ALJ identified the following severe impairments: chronic obstructive 6 pulmonary disease (COPD), asthma, anxiety, depression, a major depressive disorder with anhedonia, 7 and left hand and thumb atrophy with chronic pain. AR 18. The ALJ determined that the severity of 8 Plaintiff’s impairments did not meet or equal any of the listed impairments. AR 18-20. 9 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 10 functional capacity (“RFC”) to perform a range of light work. She could lift, carry, and push/pull 20 11 pounds occasionally and 10 pounds frequently, could stand/walk for eight hours in an eight-hour 12 workday, and could sit for eight hours in an eight-hour workday. She was limited to frequent 13 operation of left foot and hand controls and to no more than occasional pulling with the left upper 14 extremity. She could understand, remember and apply information to perform simple tasks, was able 15 to focus on and complete simple tasks, make simple decisions, and adapt to routine changes in the 16 workplace. She also could have no more than occasional contact with the general public, coworkers 17 and supervisors. AR 20-24. With this RFC, the ALJ found that Plaintiff could not perform any past 18 relevant work, but could perform other jobs in the national economy, such as garment sorter, mail 19 clerk and router. AR 25-26. The ALJ therefore concluded that Plaintiff was not disabled. AR 26 20 SCOPE OF REVIEW 21 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 22 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 23 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 24 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 25 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 26 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 27 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 28 considered, weighing both the evidence that supports and the evidence that detracts from the 1 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 2 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 3 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 4 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 5 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 6 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 7 REVIEW 8 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 9 substantial gainful activity due to a medically determinable physical or mental impairment which has 10 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 11 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 12 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 13 her age, education, and work experience, engage in any other kind of substantial gainful work which 14 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 15 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 16 1990). 17 DISCUSSION3 18 Plaintiff argues that the ALJ erred by failing to incorporate limitations from examining 19 physician, Jerry R. Livesay, M.D., when formulating Plaintiff’s RFC. Plaintiff also argues that the 20 ALJ failed to include work-related limitations in the RFC and failed to offer clear and convincing 21 reasons for discounting Plaintiff’s subjective complaints. (Doc. 18 at 1.) 22 A. Evaluation of Dr. Livesay’s Medical Opinion 23 1. Legal Standard 24 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 25 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 26

27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 416.920c Under the new regulations, the Commissioner does “not defer or give any specific 2 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 3 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 416.920c(a). 4 The Commissioner evaluates the persuasiveness of the medical opinions based on the following 5 factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 6 (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence 7 in the claim or an understanding of our disability program’s policies and evidentiary requirements.” 8 20 C.F.R. § 416.920c(c)(3)(1)-(5). Supportability and consistency are the most important factors. 20 9 C.F.R. § 416.920c(b)(2). 10 Ninth Circuit case law preceding the new regulations afforded deference to the medical 11 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 12 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 13 the medical opinions of treating or examining physicians. These standards of articulation no longer 14 apply in light of the new regulations, and the ALJ is not required to provide “specific and legitimate 15 reasons” to discount the medical opinions. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 16 (finding revised social security regulations “clearly irreconcilable with our caselaw according special 17 deference to the opinions of treating and examining physicians on account of their relationship with 18 the claimant”). The Ninth Circuit has clarified that “under the new regulations, an ALJ cannot reject 19 an examining or treating doctor’s opinion as unsupported or inconsistent without providing an 20 explanation supported by substantial evidence.” Id. “The agency must ‘articulate ... how persuasive’ 21 it finds ‘all of the medical opinions’ from each doctor or other source, . . . and ‘explain how [it] 22 considered the supportability and consistency factors’ in reaching these findings.” Id. (internal 23 citations omitted); see also 20 C.F.R. § 416.920c(b). 24 2. Analysis 25 On June 30, 2019, Dr. Livesay completed a consultative psychological examination. AR 331- 26 38. He observed that Plaintiff was “able to readily enter into and maintain a goal directed rapport with 27 the examiner” and appeared to “put forth a sincere effort on the tasks and questions presented her.” 28 AR 331. She was able to sustain her concentration on the tasks and she worked fairly persistently at a 1 relatively steady pace. AR 334. On mental status examination, Plaintiff maintained a cooperative 2 attitude, her behavior was goal directed and she maintained a sincere effort. Her stream of mental 3 activity flowed relatively rapidly, and her speech was delivered at a rapid rate. Her articulations were 4 clear, and her associations were linear. AR 335. Her thought content was congruent with her mood, 5 affect, and the nature the evaluation procedures. Her thought content evidenced themes of 6 helplessness, despair, and a sense of being overwhelmed. Her mood was depressed, and her affect was 7 anxious. Plaintiff presented melancholia and anhedonia. AR 335. She was oriented to time, date, 8 month, year, city, person, place, and situation. She presented a relatively broad fund of knowledge 9 and her estimated level of intelligence fell in the average to high average range. She was able to 10 sustain her concentration even with two periods of tearfulness that required brief breaks. She also was 11 not unduly distracted and was able to follow a three-step command. AR 336. 12 Dr. Livesay diagnosed Plaintiff with (1) major depressive disorder, moderately severe with 13 anhedonia, anxious distress, and melancholia; and (2) insomnia disorder, severe, comorbid with major 14 depression. AR 337. He opined that Plaintiff was capable of managing her own funds. He also 15 opined that her ability to perform simple and repetitive tasks was unimpaired; her ability to perform 16 detailed and complex tasks was mildly impaired; her ability to accept instructions from supervisors 17 was unimpaired; her ability to interact with coworkers and the public was moderately impaired; her 18 ability to perform work activities on a consistent basis without special or additional instruction was 19 mildly impaired; her ability to maintain regular attendance and complete a normal workday/workweek 20 without interruptions from a psychiatric condition was moderately impaired; and her ability to deal 21 with the usual stress encountered in the workplace was markedly impaired. AR 337-38. 22 The ALJ found the opinion of Dr. Livesay persuasive because he was a specialist in 23 psychology; he had the opportunity to evaluate Plaintiff; and his opinion was consistent with 24 Plaintiff’s mental status examination findings, as well as the conservative nature of her mental health 25 treatment since February 2019. AR 23. In evaluating the persuasiveness of Dr. Livesay’s medical 26 opinion, the ALJ properly considered Dr. Livesay’s specialization, along with the examining 27 relationship and the consistency and supportability of the opinion. See 20 C.F.R § 416.920c(c)(1)-(4). 28 1 Plaintiff contends that “[w]hile the ALJ found the opinion of Dr. Livesay to be persuasive (AR. 2 23), he failed to incorporate into the RFC Dr. Livesay’s opined marked limitations in the ability to 3 deal with the usual stress encountered in the workplace.” (Doc. 18 at 8.) Yet, an ALJ need not 4 “explicitly transcribe [each] limitation in the RFC,” provided he “account[s] for it in his ‘translation.’” 5 Wascovich v. Saul, No. 2;18-cv-659-EFB, 2019 WL 4572084, at *5 (E.D. Cal. Sept. 20, 2019); 6 Rounds v. Commissioner of Social Security Administration, 807 F.3d 996, 1006 (9th Cir. 2015) 7 (“[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.”). 8 Here, the ALJ expressly accounted for Dr. Livesay’s recommended marked impairment in the ability 9 to deal with the usual stress encountered in the workplace by limiting Plaintiff not only to simple 10 tasks, but also to making only simple decisions. AR 23-24 (“The undersigned considered carefully the 11 recommended marked impairment in the ability to deal with the usual stress encountered in the 12 workplace and the undersigned finds the claimant is reasonably limited to the completion of simple 13 tasks, making only simple decisions.”) The ALJ explained that with these limitations in place, 14 Plaintiff would be “reasonably able to adapt to routine changes in the workplace.” AR 24. 15 Plaintiff argues, however, that the limitation to simple tasks and decisions “fails to reconcile 16 Dr. Livesay’s opinion that Plaintiff experiences marked deficits in dealing with the usual stress 17 encountered in [the] workplace.” (Doc. 18 at 8.) To support her argument, Plaintiff does not cite any 18 relevant, persuasive case authority. Instead, Plaintiff relies on Social Security Ruling (“SSR”) 85-15, 19 which provides, in part, that “[t]he reaction to the demands of work (stress) is highly individualized,” 20 “the mentally impaired may have difficulty meeting the requirement of even so-called ‘low stress’ 21 jobs,” and “[b]ecause the response to the demands of work is highly individualized, the skill level of a 22 position is not necessarily related to the difficulty an individual will have in meeting the demands of 23 the job.” (Doc. 18 at 8) (quoting SSR 85-15.) 24 In contrast, the Commissioner cites district courts within this Circuit finding that a limitation to 25 unskilled work adequately accounts for a claimant’s low stress tolerance. (Doc. 19 at 5-6) (citing 26 Messerli v. Berryhill, No. 1:16–cv–00800–SKO, 2017 WL 3782986, at *11 (E.D. Cal. Aug. 31, 2017 27 (limitation to “simple, repetitive tasks” accounted for moderate to serious limitations in claimant’s 28 ability to deal with the usual stress encountered in a competitive workplace); Yates v. Colvin, 1:15- 1 CV-0667-JLT, 2016 WL 5402707, at *8 (E.D. Cal. Sept. 27, 2016) (limitation to simple, repetitive 2 tasks accounted for physician’s opinion that claimant would have difficulty dealing with stress in 3 competitive work); Keller v. Colvin, 2:13-CV-0221 CKD, 2014 WL 130493, at *3 (E.D. Cal. Jan. 13, 4 2014) (ALJ accounted for physician’s opinion that claimant had “poor capacity to tolerate stress” with 5 limitations to simple, repetitive tasks, i.e., unskilled work, with reduced interpersonal contact); see 6 also Vezina v. Barnhart, 70 Fed.Appx. 932, 934 (9th Cir. 2003) (affirming ALJ’s decision where in 7 response to hypothetical question restricting claimant to low-stress work, vocational expert identified 8 jobs involving simple, repetitive, relatively unskilled tasks).) 9 Case law in this circuit “tends to favor the view that a restriction to simple/routine tasks is not a 10 catchall and does not account for all moderate limitations.” Xiong v. Kijakazi, No. 1:21-cv-00134- 11 GSA, 2022 WL 2119029, at *14 (E.D. Cal. Jun. 13, 2022) (collecting cases and noting that the cited 12 cases tend to refute the notion that a limitation to simple, routine tasks is all encompassing). However, 13 as the Commissioner suggests, “there is some case law supporting the notion that a limitation to 14 simple routine tasks at least encompasses low stress tolerance.” Id. (citing Henry v. Colvin, No. 1:15- 15 cv-00100-JLT, 2016 WL 164956, at *18 (E.D. Cal. Jan. 14, 2016) (simple tasks encompasses low 16 stress tolerance); Keller, 2014 WL 130493, at *3 (simple, repetitive tasks “appropriately captured” 17 physician’s opinion that claimant required “low stress settings”)); see also Calisti v. Colvin, 2015 WL 18 7428724, at * 7 (E.D. Cal. Nov. 23, 2015) (holding RFC including limitations for simple, repetitive 19 work adequately captured moderate limitations in maintaining attendance, completing a normal 20 workday without interruptions from psychiatric condition and dealing with stress); Coats v. Colvin, 21 No. 1:14-cv-00712 - JLT, 2015 WL 5813333, at *22 (E.D. Cal. Sept. 30, 2015) (“Courts within the 22 Ninth Circuit have also concluded that a claimant’s low tolerance of stress is encompassed in a 23 limitation “to simple, repetitive tasks” and work “that does not require meeting fast-paced quotas.”). 24 Further, courts within this district have found that a serious or marked impairment in the ability to deal 25 with the usual stress encountered in a competitive workplace is adequately addressed by a limitation to 26 “simple repetitive tasks.” See Messerli, 2017 WL 3782986, at *11 (finding limitation to “simple 27 repetitive tasks” accounted for moderate to serious limitations in claimant’s ability to deal with the 28 usual stress encountered in a competitive workplace); Keller, 2014 WL 130493, at *3 (ALJ accounted 1 for physician’s opinion that claimant had “poor capacity to tolerate stress” with limitations to simple, 2 repetitive tasks, i.e., unskilled work, with reduced interpersonal contact). The ALJ here not only 3 included a limitation to simple tasks, but also included a limitation to simple decision-making and no 4 more than occasional contact with the general public, coworkers and supervisors. AR 23-24. 5 The Court further finds that the ALJ appropriately accounted for Dr. Livesay’s marked 6 impairment in the ability to deal with the usual stress encountered in the workplace by finding she was 7 reasonably able to adapt to routine changes in the workplace with limitations to the completion of 8 simple tasks and making only simple decisions. AR 23-24. See McClung v. Astrue, 2:11-CV-2874 9 CKD, 2013 WL 78882, at *8 (E.D. Cal. Jan. 4, 2013) (ALJ accounted for moderate to marked 10 limitation in adapting to common work stress by finding claimant could adapt to changes in a routine 11 work setting). 12 Moreover, the ALJ’s finding that Plaintiff’s stress limitations could be appropriately 13 accommodated by simple work and simple decisions was also supported by the assessments of the 14 state agency psychiatrists, which the ALJ found persuasive and who opined that Plaintiff only had 15 moderate limitations in the ability to respond appropriately to changes in the work setting. AR 22, 100 16 (“able to adapt to minimal changes and stresses in the prospective work setting consistently over 17 time”), 116 (same). 18 B. Plaintiff’s Subjective Complaints 19 Plaintiff argues that the ALJ erred by rejecting her symptom complaints “without any specific 20 rationale, let alone a clear and convincing reason.” (Doc. 18 at 10.) 21 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 22 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson, 359 F.3d at 1196. 23 First, the claimant must produce objective medical evidence of his impairment that could reasonably 24 be expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014. If 25 the claimant satisfies the first step and there is no evidence of malingering, the ALJ may reject the 26 claimant’s testimony regarding the severity of his symptoms only by offering specific, clear and 27 convincing reasons for doing so. Id. at 1015. 28 1 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 2 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 3 persistence and limiting effects of those symptoms. AR 21. The ALJ was therefore required to 4 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 5 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting 6 Plaintiff’s subjective complaints. First, the ALJ determined that Plaintiff’s statements and allegations 7 were inconsistent with the medical evidence of record and the record as a whole. AR 21. Although 8 lack of supporting medical evidence cannot form the sole basis for discounting testimony, it is a factor 9 that the ALJ can consider. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). For instance, 10 with regard to Plaintiff’s complaints of back pain, the ALJ noted those symptoms were not consistent 11 with the objective findings in June 2019, which revealed only mild tenderness in her back, negative 12 straight leg raising, no muscle spasms, flexion, extension, lateral flexion and rotation of her back were 13 within normal limits as were her movements of the upper and lower extremities. AR 21-22, 327-28. 14 Similarly, with regard to her thumb, medical examination revealed only tenderness to palpation with 15 flexion and extension and atrophy in the “snuff box” region of the left hand. AR 22, 328. With 16 regard to Plaintiff’s foot, the ALJ noted that the record evidence reflected independent ambulation. 17 AR 20, 24. Indeed, Plaintiff herself testified that she was able to walk and did not use a cane or 18 walker. AR 63-64. 19 Additionally, the ALJ considered the limited course of treatment since February 2019. AR 20 300, 311, 312, 344. An ALJ may discount a plaintiff's subjective complaints based on an unexplained, 21 or inadequately explained, failure to seek treatment. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th 22 Cir. 1991). Further, the ALJ noted that Plaintiff injured her thumb while working and she kept 23 working. AR 21, 58. 24 Plaintiff argues primarily that the ALJ failed to set forth specific, clear and convincing reasons 25 for discounting her subjective complaints regarding her anxiety and depression. (Doc. 18 at 11.) 26 However, it is evident from the record that the ALJ discounted Plaintiff's subjective complaints 27 regarding her limited and conservative mental health treatment, noting her use of psychotropic 28 medications and counseling only in the past. AR 21, 23. Plaintiff does not disagree with the ALJ's 1 findings concerning her limited and conservative mental health treatment. Where, as here, there is no 2 medical evidence that Plaintiff's failure to seek treatment “was attributable to her mental impairment 3 rather than her own personal preference,” an ALJ may properly consider the claimant’s failure to seek 4 mental health treatment. See, e.g., Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012); Rivota v. 5 Saul, No. 1:18-cv-01342-BAM, 2020 WL 1306985, at *6 (E.D. Cal. Mar. 19, 2020) (finding no error 6 in ALJ’s consideration that plaintiff sought little mental health treatment and did not participate in 7 counseling). Further, an ALJ is permitted to consider evidence of conservative treatment in evaluating 8 a claimant’s subjective complaints. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (finding 9 evidence of conservative treatment sufficient to discount claimant’s testimony regarding severity of 10 impairment). 11 For these reasons, the Court finds that the ALJ did not commit reversible error in evaluating 12 Plaintiff’s subjective complaints. 13 CONCLUSION AND RECOMMENDATION 14 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 15 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 16 HEREBY RECOMMENDED as follows: 17 1. Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security 18 be denied; and 19 2. The Clerk of this Court be directed to enter judgment in favor of Defendant Kilolo 20 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff Amelia Yolanda 21 Spencer. 22 These Findings and Recommendations will be submitted to the United States District Judge 23 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 24 served with these findings and recommendations, the parties may file written objections with the 25 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendations.” The parties are advised that the failure to file objections within the specified time 27 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 28 1 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 2 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED.

5 Dated: September 27, 2022 /s/ Barbara A. McAuliffe _ 6 UNITED STATES MAGISTRATE JUDGE

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